John Graham Charged on Three Alternative Counts of First Degree Murder

Picture and article about John Graham (above)

"John Graham aka John Boy Patton has been charged by complaint in federal court on three alternative counts of first degree murder for committing and aiding and abetting others in the unlawful killing of Annie Mae Aquash on or about December 12, 1975."--U.S. Attorney Marty J. Jackley

Today a federal judge dismissed the indictment against John Graham for the December 1975 murder of the Canadian Indian Anna Mae Aquash.

UPDATE: News from Indian Country (10-3-08) explains:

In a last minute decision by a federal judge on Oct. 3rd, federal authorities have confirmed that the trial of John Graham will be postponed because of a technical flaw in the indictment regarding Jurisdiction. Graham in a recent motion, claimed that because he is not an American Indian as defined by U.S. statutes, the U.S does not have jurisdiction over him in this case. The murder case against Graham was dismissed, but new charges were filed shortly after the decision by Federal Judge Lawrence Piersol.

Hours after the indictment was dismissed, District of S. Dakota U.S. Attorney Marty J. Jackley announced that "John Graham aka John Boy Patton has been charged by complaint in federal court on three alternative counts of first degree murder for committing and aiding and abetting others in the unlawful killing of Annie Mae Aquash on or about December 12, 1975":

Graham Faces Three Counts of Aiding and Abetting

October 3, 2008
Rapid City, SD

United States Attorney Marty J. Jackley announced that John Graham aka John Boy Patton has been charged by complaint in federal court on three alternative counts of first degree murder for committing and aiding and abetting others in the unlawful killing of Annie Mae Aquash on or about December 12, 1975, near Wanblee in Indian Country. Count one alleges Graham to be an Indian that committed and aided and abetted others in the unlawful killing of Aquash, an Indian or other person. Count two alleges Graham committed and aided and abetted others in the unlawful killing of Aquash, an Indian. Count three alleges Graham committed and aided and abetted an Indian in the murder of Aquash, an Indian or other person. All counts have a penalty of mandatory life imprisonment. The charges are merely accusations and Graham is presumed innocent until and unless proven guilty. The investigation is being conducted by the FBI and BIA. United States Attorney Marty J. Jackley and Assistant US Attorney Robert A. Mandel are prosecuting the case.

U.S. Attorney Jackley also announced:

Graham to Make First Appearance in Federal Court on New Charges

October 3, 2008
Rapid City, SD

United States Attorney Marty J. Jackley announced that John Graham aka John Boy Patton, will appear today at 2:15 p.m. in front of US Magistrate Judge Veronica L. Duffy on three alternative counts of first degree murder for the unlawful killing of Annie Mae Aquash on or about December 12, 1975, near Wanblee in Indian Country.

The Canadian Press (10-3-08) reports:

U.S. prosecutors filed a new complaint Friday against a Canadian man less than two hours after a judge dismissed the indictment in the slaying of an indigenous Canadian woman 32 years ago.

John Graham was scheduled to stand trial Monday in Rapid City on a charge of first-degree murder for the 1975 shooting death of Annie Mae Aquash on the Pine Ridge Indian Reservation when both were affiliated with the American Indian Movement.

The ruling means Monday's trial will be called off but the case will proceed under a new complaint and will likely go before grand jurors again.

Graham is now charged with three alternative counts of first-degree murder for committing and aiding and abetting others in the killing of Aquash on or about Dec. 12, 1975, near Wanblee, according to a news release from U.S. Attorney Marty Jackley. The indictment alleges that Graham and Aquash are both Indians and the charges carry a penalty of life in prison.

Graham is from the Tsimshian tribe in the Yukon and for four years fought his return to South Dakota in Vancouver. He was extradited in December after the Supreme Court of Canada refused to review his case.

Aquash was a member of the Mi'kmaq Tribe. Her family had her remains exhumed from an Oglala grave in 2004 and reburied in her native Nova Scotia.

Piersol filed his response Friday to a request from Graham's lawyer, John Murphy, that the indictment be dismissed on grounds the United States didn't have jurisdiction.

Graham and Aquash were Canadian citizens and members of Canadian tribes, but the indictment doesn't show that either is a member of a federally recognized American Indian tribe, which the law requires, he argued.

Jackley and Assistant U.S. Attorney Bob Mandel argued at a hearing Thursday that the indictment was sufficient because the other man indicted and already convicted, Arlo Looking Cloud, does fit the definition of Indian.

Looking Cloud is an Oglala Lakota originally from Pine Ridge. The indictment would allow jurors to find that Graham aided and abetted Looking Cloud, the prosecutors argued.

Piersol rejected that.

"There is no authority for this proposition. The aiding and abetting statute is simply another means of convicting someone of the underlying substantive offence, which in this case is murder," he wrote.

"There is no dispute that the superseding indictment fails to set forth Graham's Indian status. An indictment must set forth the essential elements of the offence charged or it is fatally defective."

Murphy said he had no comment on the decision or the new complaint. Jackley was unavailable to comment.

One of Aquash's two daughters, Denise Maloney Pictou of Halifax, said earlier this week family members were preparing to travel to Rapid City for the trial. She said Friday they would wait to comment about the judge's decision.

Looking Cloud was convicted in 2004 and sentenced to a mandatory life prison term but could qualify for parole.

Apparently he was ready to testify at Graham's trial.

Looking Cloud was at a Louisiana prison but his status with the federal Bureau of Prisons indicates he's "in status" and he's currently listed as an inmate in a western South Dakota jail.

A third AIM member, Richard Marshall, is scheduled to stand trial in February in Sioux Falls on a charge of aiding and abetting Aquash's murder. [Full text]