The lawyer for a Canadian Native man convicted of murder in the U.S. says he will appeal both the conviction and the sentence.
“We filed our notice of appeal today, actually,” John Murphy told the Georgia Straight on February 4 of plans regarding his client, John Graham.
Graham, a Yukon-born Southern Tutchone and former Vancouver resident, was convicted by a jury of felony murder on December 10, 2010, in the 1975 shooting death of Canadian Native activist Anna (sometimes spelled Annie) Mae Aquash in South Dakota. In January 2003, a federal grand jury indicted Graham and another man, American Native Fritz Arlo Looking Cloud, on murder charges. Looking Cloud, who implicated Graham, received a guilty verdict in 2004 and was sentenced to life in prison.
On January 24, 2011, in Rapid City, South Dakota, Seventh Circuit Judge Jack Delaney sentenced Graham, 55, to life in prison without parole. The sentence is mandatory under state law in effect in 1975, and Graham will serve his time in a state correctional facility.
The prisoner was previously found not guilty of premeditated murder in the sensational 35-year-old case. “The jury found him guilty of participating in the kidnapping of her [Aquash] that ultimately led to her death,” Murphy explained of the difference between a finding of premeditated murder and that of felony murder. Aquash’s body was found in February 1976 on the Pine Ridge Indian Reserve.
On the phone from his Rapid City office, Murphy said the notice of appeal “is just a one-paragraph note that starts the clock”. He said the appeal process would probably take nine to 12 months.
Noting that he wouldn’t give any details of the grounds for his appeal of the conviction “even if I was able to”, Murphy did elaborate some on the sentence challenge.
“The life-without-parole sentence is improper in this case, and we’ll be challenging the constitutionality of the sentence [that] the statute requires,” he said. “It’s cruel and unusual punishment for the charge of felony murder that was committed by a 19-year-old.”
According to the Rapid City Journal, Murphy argued during the sentencing hearing that Graham, who had been in custody in South Dakota since his extradition from Vancouver in 2007, should be eligible for parole. Judge Delaney denied Murphy’s objection, leaving the matter to a higher court.
Murphy represented Graham in previous appearances in federal court where charges were dismissed for jurisdictional reasons (Graham and Aquash both belonged to First Nations not recognized by the U.S. government). He said Canadians should find it “of interest” that U.S. officials still pressed murder charges, even after they lost their appeal of the federal charges’ dismissal. “Was it proper for him to face state charges after he was extradited under federal laws? After the federal courts dismissed it [murder charges], he was subjected to state prosecution.”
Murphy also noted that the former U.S. attorney for South Dakota who prosecuted Graham federally, Marty Jackley, was later appointed the state’s attorney general. “He was the guy who lost the [federal] appeal”¦and then he brought the state charges.”
The Rapid City Journal reported that before his sentencing, Graham spoke to Aquash’s daughters, Debbie Maloney and Denise Maloney Pictou, in the courtroom: “The truth hasn’t come out here,” Graham said. “I’d like to tell your family that Annie Mae wasn’t kidnapped”¦she wasn’t murdered in my presence”¦that just did not happen.”
Graham has maintained that he only drove Aquash from Colorado to a so-called safe house in South Dakota.
Maloney Pictou held up a photograph of Aquash and said: “This, John Graham, is what you stole from me.” Maloney told Graham: “I looked at you and I pitied you.”