AIM Myth Busters: Marshall Trial, Part II--Winners and Losers

"[M]uch of the testimony revolved around whether or not Dick [Marshall] and his then-wife, Cleo, took possession of the murder note, 'Take care of the baggage.'

...From the start, government prosecutors had their hands tied, sort of like the victim’s, just before Arlo and John Boy Graham (to be tried in July) dragged [Anna Mae Aquash] to a cliff near Wanblee, South Dakota and ended her life."---AIM Myth Busters (4-23-10)

The AIM Myth Busters (4-23-10) have posted a second article about the trial of Dick Marshall for the December 1975 murder of Anna Mae Aquash. The most authoritative account of her murder appears in American Indian Mafia by the former FBI Agent-in-Charge Joseph Trimbach and his son John. [See the AIM Myth Busters' first article about Dick Marshall's trial, "Tales From the Courtroom: Arlo Takes the Fall, Once Again" (4-18-10).]

Marshall Trial, Part II--Winners and Losers

It took the jury less than two hours to conclude that there was insufficient evidence to find Dick Marshall guilty of aiding and abetting the 1975 murder of Anna Mae Pictou Aquash. Marshall stood accused of providing the never-recovered .38 special used to shoot the victim in the head, an increasingly difficult charge to prove once defense counselor Dana Hanna raised the possibility that any one of the three alleged killers, Theda, Arlo, or John Boy, could have been packing their own heat. Indeed, much of the testimony revolved around whether or not Dick and his then-wife, Cleo, took possession of the murder note, “Take care of the baggage.” Given the many shortcomings in this second courtroom attempt to bring justice to Anna Mae, the easily-confused jury might have been more convinced that the Marshalls kept note paper rather than guns, let alone the gun.

When the trial moved to the deliberation room on Thursday, it was clear that things were not going as well as hoped in a controversy that pitted one tribal clan against another. In a case where the word of one convicted killer, Arlo Looking Cloud, challenged the word of another convicted killer, Dick Marshall, identifying the good guy and the bad guy was admittedly problematic. The jury's body language said it all: they just weren’t getting it. Even if the facts had been presented in a meaningful and clear manner, it would have been an uphill battle to “prove it” to jury members who said they spend their free time watching CSI shows on TV.

For the casual observer, it seemed unfair that virtually all the evidence that would have made the case a slam-dunk was deemed prejudicial and was thrown out. Short of a major turnaround - a surprise witness or an effective closing statement, both equally unlikely - the odds were against the government overcoming the threshold of reasonable doubt and reasonable conclusions. Interminable cross examinations involving testimony having little or nothing to do with the case, and a strategy tied to a pile of hearsay evidence, all pointed to a hung jury as the best possible outcome.

From the start, government prosecutors had their hands tied, sort of like the victim’s, just before Arlo and John Boy Graham (to be tried in July) dragged her to a cliff near Wanblee, South Dakota and ended her life. Not only did the government need to show evidence that Dick and his ex-wife kept guns in their house, prosecutors needed to convert the only person convicted of aiding and abetting the murder, Arlo, into a credible star-witness. This was a hurdle made even higher by the sweeping evidence the jury was not allowed to hear. For openers, there was the unmentioned minor cache of weaponry taken from the Marshall household when Dick went on trial for the 1975 murder of Martin Montileaux. In fact, Dick was awaiting trial in that case when he briefly held Anna Mae against her will in his living room. The jury was not allowed to hear how Dick had put a gun to Montileaux’s neck, a few months earlier, and had pulled the trigger as AIM leader Russell Means stood by and watched. The jury was not allowed to hear how Dick later confessed to the crime, or about possible reasons Dick was bound to do Russell’s bidding as body guard and enforcer. How about first-hand evidence of the state of fear that still exists on the reservation should anyone publicly mention several AIM murders yet to be adjudicated, or even investigated?

Understandably, the jury had trouble believing Arlo’s testimony that he is not as afraid of prison gangs as he is of Russell’s people, and of what they might do to any one of hundreds of Arlo’s family members. The all-white jury had no concept of having approximately 500 relatives on the reservation, as Arlo truthfully testified, or the threat from those who may yet seek revenge from anyone testifying against an aging but still menacing AIM crime machine, with a long history of preying on reservation Indians.

Still, there were small signs of progress in the hunt for Anna Mae’s killers. One of the key government witnesses, journalist Serle Chapman, provided emotional and compelling testimony about how AIM lawyers Ken Tilsen and Bruce Ellison tried to con him into believing that anyone who viewed photographs of the victim could have easily recognized the face as Anna Mae’s. Eventually, Chapman saw through the ruse and demanded to see the photographs. This was when, as he recalled on the witness stand, Chapman sensed that not only were AIM lawyers misleading him, they were doing so to shield their own involvement in the murder conspiracy.

For over thirty years, Ellison has led efforts to cover up his questioning of Anna Mae as she sat tied up in his Rapid City office a few days before his friends conspired against her. In 2001, Ellison famously decried reservation murders, such as Anna Mae’s, in front of a UN Human Rights Commission in another farce where AIM lawyers alleged FBI involvement in AIM murders. Ellison’s claim that Anna Mae’s badly decomposed body was easily identifiable is also one of several planted stories passed on to Peter Matthiessen, author of the highly falsified yet critically acclaimed, In the Spirit of Crazy Horse. Matthiessen has been stuck defending a long series of lies designed to exonerate his book’s main subject, Leonard Peltier, another convicted AIM killer. In both the Anna Mae murder and the Peltier murders of FBI Agents Jack Coler and Ron Williams, Matthiessen’s story attempts to implicate and blame the FBI in a vast conspiracy of shady characters and mining company executives. Today it seems almost comical that Matthiessen credits Ellison and Peltier for helping him write a book the media once described as “meticulously researched.”

Although Marshall got off, his trial revealed a bit more of the truth in a growing movement of outrage against AIM lawyers and a hoped-for backlash. Arlo’s testimony, you may recall, outed Rapid City counselor Charlie Abourezk for his role in the murder. Senator James Abourezk’s son rounds out the trifecta of legal expertise that still provides pro bono cover-up and explains why achieving justice for Anna Mae has been long in coming. As was the case in the razing of Wounded Knee village in 1973 and the legal defense that followed, when the lawyers are involved in the crime, it becomes that much more difficult to win the courtroom battle. The rules are designed to protect the innocent, not highlight guilty officers of the court who manipulate rules of evidence to help themselves avoid jail time.

Still, there is hope. Justice seekers look forward to future trials and the possibility of testimony regarding attorney Ken Tilsen, who says his office records from the period of Anna Mae’s interrogations and death have mysteriously disappeared, and who claims a mild stroke prevents him from remembering much else from those days. In a remarkable irony, Tilsen was recently given a lifetime achievement award by the Minnesota chapter of the American Civil Liberties Union (ACLU). I am sure his family members are proud of his achievements in the area of “lifetime” accomplishments and defending people’s “civil liberties.” But I doubt Anna Mae’s daughter Denise, who spent much of the trial in tears, believes Tilsen is deserving of anything but swift justice with regard to her mother’s civil liberties.