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Judge: Feds must turn over underwear from '75 AIM slaying

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By Carson Walker -- Associated Press

SIOUX FALLS, S.D. (AP) - Attorneys for a former American Indian Movement activist accused of murdering another member of the group in 1975 must be allowed to conduct DNA tests on the victim's underwear, a federal magistrate judge has ruled.

U.S. Magistrate Veronica Duffy, in an order filed June 20, gave prosecutors 20 days to give Anna Mae Pictou Aquash's underwear to attorneys for John Graham, a Canadian who is to stand trial Oct. 6 in Rapid City.

The defense also is seeking a sanitary napkin it says was taken from Aquash's body during an autopsy, though federal prosecutors said the government never had possession of that item and investigators were not obligated to keep it. Duffy told the government to look for the sanitary napkin and give it to the defense if it is found.

Though Graham would not be cleared if another man's DNA was found on the underwear, it could help the defense challenge prosecutors' version of events leading to the December 1975 slaying of Aquash on the Pine Ridge Indian Reservation. Conversely, the prosecution's case could be bolstered if Graham's DNA is found.

The autopsy found evidence that Aquash had sex or was raped shortly before she was killed. The underwear was kept and tested after Aquash's body was found, but showed no signs of blood or semen, federal prosecutors Marty Jackley and Bob Mandel wrote in their response to the defense's request for the evidence.

Duffy gave each side 10 days to appeal her decision.

Graham's lawyer, John Murphy, said June 23 he did not want to comment beyond the court order. Federal prosecutors are prohibited from discussing pending cases and had not yet filed their response.

Duffy rejected prosecutors' request to order Graham to submit a DNA sample, saying a search warrant is needed. She also rejected the government's request for more time to conduct its own DNA tests on the evidence before giving it to the defense.

''The government has had ample time to do any testing it wished to do,'' she wrote.

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Graham was placed under house arrest in Canada in 2003 and was extradited to the U.S. late last year.

AIM is an activist group that has protested the federal government's treatment of Indians and has demanded that the government honor its treaties with tribes.

The group occupied Wounded Knee on Pine Ridge during a 71-day standoff in 1973 that included an exchange of gunfire with federal agents who surrounded the village. Aquash, a member of the Mi'kmaq Tribe of Nova Scotia, was there.

Prosecutors said some AIM leaders ordered Aquash's killing because they suspected she was a government informant. Those leaders have denied the accusation and blamed the government for her death.

Federal authorities also denied any involvement.

The allegation that someone raped Aquash before she was killed came up at the 2004 trial of the other man charged with killing Aquash, Fritz Arlo Looking Cloud, who was convicted and sentenced to a mandatory life prison term.

Looking Cloud's lawyer ultimately was denied a request to have Aquash's body tested for DNA evidence before the family exhumed and took her body to Nova Scotia for reburial.

At Looking Cloud's trial, witnesses said he, Graham and another AIM member, Theda Clark, drove Aquash from Denver and that Graham shot Aquash in the Badlands as she begged for her life.

Clark has not been charged. She lives in a nursing home in western Nebraska and has refused to talk about the case.

Graham, a Yukon Native also known as John Boy Patton, denies killing Aquash, though he acknowledged being in the car with her from Denver.

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