I’m not sure of the source on this but Monica Charles posted this on alt.native…
A defense lawyer for one of two men charged with the 1975 slaying of
an American Indian Movement member has accused prosecutors of putting
“erroneous and untrue” accusations in a court filing because the
alleged murder weapon was locked up at the time.
John Graham and Richard Marshall pleaded not guilty to charges they
committed or aided and abetted the Dec. 12, 1975, murder of Annie Mae
Aquash on the Pine Ridge Indian Reservation. They are scheduled to
stand trial starting May 12 in Rapid City, S.D.
The government’s theory is that Marshall gave a .32-caliber revolver
and shells to Graham, Arlo Looking Cloud and Theda Clark, who stopped
by Marshall’s house with Aquash around Dec. 12, 1975.
According to court testimony, hours later, after taking her to a cliff
in the Badlands, Looking Cloud gave Graham the gun, he shot Aquash as
she prayed, and then the two men buried the weapon nearby under a
bridge and it never was found.
At the time, Marshall was awaiting trial for killing Martin Montileaux
on March 1, 1975, a crime for which he was later convicted.
Prosecutors asked the judge to allow evidence that the .32-caliber
pistol used to kill Aquash could have been the same one seized when
Marshall was arrested for the Montileaux murder.
But Marshall’s attorney, Dana Hanna, responded that his client
couldn’t have had the gun when Aquash was killed because it was in
placed in police custody in March 1975 and offered as evidence at the
April 1976 trial in which Marshall was convicted of killing
Hanna included with his filing a court transcript of the trial in
which South Dakota Highway Patrolman Merlyn Muir testified he
recovered the gun after Marshall was arrested.
After the shooting, law enforcement officers chased and caught a 1968
Ford carrying Marshall and seven other people.
Muir said he found the .32-caliber revolver under the right front
seat. Four other guns also were seized from the car, including a .22-
caliber pistol used to kill Montileaux.
Hanna argued that the .32-caliber pistol was never directly tied to
And a receipt showing the car’s release to a woman on June 1, 1975,
does not indicate if any of the guns were returned, only the car’s
“contents,” he wrote.
The transcript of Muir’s testimony shows that the .32-caliber gun was
offered as an exhibit. It was not received into evidence because it
played no part in the Montileaux case, Hanna wrote.
The defense lawyer wrote that such “easily discoverable and available
facts” prove Marshall didn’t have access to the gun from March 1975 to
“Obviously, it could not have been the gun that was used to kill Anna
Mae Aquash on December 12, 1975,” Hanna wrote.
“It is demonstrably, provably, false, based upon the court records,”
he said in an interview.
U.S. Attorney Marty Jackley is not allowed to comment on pending
In his motion, Hanna argued that besides the gun, prosecutors also
should not be allowed to tell jurors about Marshall’s conviction for
the Montileaux murder.
He included the Montileaux trial transcript of neurosurgeon Dr. Edward
James, who testified that Montileaux was shot in the neck from the
front and the bullet severed his spinal cord, which paralyzed him,
then lodged in his shoulder. He died days later of pneumonia.
Hanna argued the government wants to include the Montileaux murder on
grounds the circumstances are similar, but Aquash was killed with a
bullet to the back of the head. The person who shot Montileaux was
facing him, he wrote.
“The facts of the defendant’s prior offense have absolutely no
connection or relevance to the killing of Anna Mae Aquash,” Hanna
Clarke, who lives in a western Nebraska nursing home, has not been
charged. Looking Cloud was convicted in 2004 for his role in Aquash’s
murder and sentenced to life in prison.