John Graham lawyer to appeal conviction, life sentence in Aquash murder trial in South Dakota

"Cruel and unusual punishment" cited as grounds to allow parole

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      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.”




      Feb 4, 2011 at 8:36pm

      Charges should be reduced to 40 or 50 years

      W Jones

      Feb 4, 2011 at 9:58pm

      Here we go again... another legal loophole as an escape route.
      Graham's attorney John Murphy actually told the court that he believed the prosecution HAD proven it's case for 2nd degree murder. Graham and Murphy did not present any counter argument or call a single witness, yet Graham tells the victim's daughters that the truth hasn't come out.
      Did he expect his truth to be told if even HE didn't tell it?

      Comrade Black

      Feb 5, 2011 at 4:04am

      Actually he said the Defense had proven it's case, because they felt the prosecution hadn't proven anything.
      Not one piece of physical evidence, nothing. Only the testimony of a man that has lied on stand numerous times, was drunk when confessing, and has changed his story many times, and the testimony of an FBI agent, and that of a womyn who's husband had an affair with the victim.
      anyone who takes the time to look deeper into this case will see that nothing makes sense and Graham's conviction is based on very little.
      Why out of the 76 Indigenous persons that were missing or murdered at Pine Ridge, most of which were killed by the FBI or GOONS, did the FBI only ever investigate this one, which they pinned on another AIM member?


      Feb 5, 2011 at 9:33am

      The jury only had to believe that it may have "been possible" that Mr. Graham was involved in her kidnapping. The jury did not believe he committed murder. This whole case was based on 35 years of heresay, and paid government informants for the prosecution. They even tried to say that Mr. Leonard Peltier, who was also illegally extradited from Canada ordered her execution; a man who could not defend himself, as he has been serving 35 years in jail for murders he did not commit. Best to get more information about this case, before you pass judgement. And find out about our Extradition Treaty with the U.S. Canada will hand over any the U.S. wants, whether it breaks the treaty (again) or not.

      W Jones

      Feb 5, 2011 at 4:02pm

      I don't think you were there Comrade Black or you would have heard the conversation with the judge where John Murphy conceded that the prosecution HAD proven the charge of 2nd Degree Murder, but not 1st degree murder. It is in the court record and cannot be expunged by rumors.
      The jury process demands that the jury is UNANIMOUS in believing BEYOND REASONABLE DOUBT that a defendent is guilty for anyone to be found guilty of any charge against them. If the bar was as low as 'been possible' US prisons would be much damn fuller than 10% of the American population incarcerated.
      Peltier was found guilty. Therefore that fact is admissable in any US court. people can argue about the process that brought him to that place, but now he doesn't get to defend himself in a court, he gets to attempt the parole process. So far he has consistently been denied parole because he will not admit or show contrition for his crime. That is his option... and it will also become John Graham's option if his attorney manages to get life without parole (the sentence applicable at the time of the crime) overturned for life with the possibility of parole. Graham will have to admit he was there (and that should not be such a problem for him since he has already done so and that admission is on tape) and that he is contrite for his involvement.
      To Saoirse, I know way more about this damn case than I ever wanted to, and quite obviously more than you seem to. The witnesses had to tell what they SAW. That is why he was in fact convicted... because 4 people recounted seeing Anna Mae tied, held against her will and taken away and they remembered seeing for themselves that John Graham was there. That is not hearsay. That is 1st person evidence. All the crap that appeared on the internet prior to his case being heard in court was probably hearsay, but hearsay was not permited in the court, and particularly not in front of Judge Delaney. You didn't hear any of the witnesses for the prosecution running about giving interviews or publicising themselves, but boy oh boy the defense did. One of them is selling music albums off the back of this case, the defense lawyers made an incredible amount of money at $120 per hour for their time, one of them is running ads in Indian Country based onthe fact that he got Dickie Marshall off, and the debacle of lies was shameful.
      During the Reign of Terror way too many people died. Many of the deaths you mention were in fact investigated, and it is known what happened to those poor souls.
      But if you are truly concerned with justice, why don't you take an honest look at what happened to Ray Robinson? Then why don't you try matching the stories of people like Madonna Thunderhawk, or Candy Hamilton, or Bruce Ellison, or Vern Bellecourt or Bill Means or Dennis Banks, or Chris Westerman, or Carter Camp. Try it. It would be funny if it didn't involves the innocent deaths of people who were trying to help themselves and their Nations.

      James Simon

      Feb 6, 2011 at 1:25pm

      Kinda funny, Grahm whining about "life" when he was convicted of taking one. For the perspective of somebody in the courtroom see:

      Bottom line: Expect more indictments.

      Behind the scenes

      Feb 6, 2011 at 6:57pm

      Graham needs to rot in prison! Too bad he didn't get the death sentence!

      Charmaine Steele

      Mar 13, 2011 at 5:41pm

      Annie Mae Aquash, died from frost, according to two autopsies. After studying the weather charts of the area and the surrounding areas, for the time period the coroner stated as the TOD - about 10 days (before Jan24/76)making the date of death-February 14 1976. It is very clear that her death occurred exactly when the coroner stated and not on December 12, 1975. You cannot alter an estimated time of death by 64 days. You cannot hide an autopsy that suggests the gun shot was most likely self inflicted. All people knowing her would be certain that she would not commit suicide due to depression...but unless you have ever been stuck out in a sudden change of weather where you were aware of the frost biting at you and eating may not realize it, but if you had a gun in your pocket, each and every one of us would do the same thing, under the circumstances. She did not die from the (self inflicted) gun shot....she died from the frost.

      Charmaine Steele

      Mar 13, 2011 at 5:47pm

      The word "genocide" comes to mind.


      Mar 14, 2011 at 7:33pm

      I don't know who W Jones is, but I find some of the things you are saying to be alarming. Alarming because I don't believe you really know as much as you pretend to. I have known John Graham personally for a long time and I have known his entire family, nothing could convince me that there are murderous inclinations from him...nor would I ever believe that somebody could ORDER him to commit an act so out of his character. There are a lot of people who made money off this case, including some people in Vancouver who were paid more than $10,000 to help finger John...Who is paying W Jones? Any chance you are related to somebody with the last name White?