SD court upholds conviction in 1975 AIM slaying

May 31, 2012 Associated Press

PIERRE, S.D. (AP) ­ The South Dakota Supreme
Court on Thursday upheld a Canadian man's murder
conviction and life sentence in the 1975 slaying
of a fellow American Indian Movement activist,
ruling that the state had jurisdiction to prosecute him.

John Graham was convicted in December 2010 of
taking part in the killing of Annie Mae Aquash.
Prosecutors said Graham and two other AIM
activists, Arlo Looking Cloud and Theda Clarke,
killed Aquash because they suspected she was a government informant.

Graham, a member of the Southern Tutchone tribe
in Canada's Yukon Territory, argued that the
government should not have been allowed to move
his case from federal to state court after his extradition to the U.S.

However, the state's highest court ruled
unanimously that the state had jurisdiction to
prosecute Graham and that prosecutors presented
sufficient evidence to convict him. Graham's
sentence of life in prison without parole also is
not grossly disproportionate to his crime, the justices said.

"Indeed, the evidence reflects that Graham was
involved in Aquash's initial kidnapping, in
ensuring that she was kept in captivity, in
transporting her to her place of death, and in
the ultimate shooting," Justice Steven Zinter wrote for the court.

Graham's lawyer, John R. Murphy of Rapid City,
said he and Graham are disappointed in the ruling
but will pursue secondary appeals.

"We are going to continue to pursue relief both
in the courts in the United States as well as
seeking to address certain matters regarding the
propriety of the extradition in Canada," Murphy said.

South Dakota Attorney General Marty Jackley was
traveling and not immediately available to comment on the ruling.

Aquash's body was found in a remote area in
southwest South Dakota in February 1976. She was
a member of the Mi'kmaq tribe of Novia Scotia.
Federal agents investigated the case for years
but didn't bring an indictment until March 2003,
when Denver police arrested Looking Cloud.

Looking Cloud was convicted in federal court of
first-degree murder in 2004 and sentenced to life
in prison. A federal judge signed an order in
August reducing Looking Cloud's sentence to 20 years.

Clark, who was never charged, died in October.

Graham was arrested in December 2003 in
Vancouver, British Columbia, on federal charges
in Aquash's killing. Two courts ruled that the
U.S. government lacked jurisdiction to try Graham
because he is not an American Indian. The case
was eventually moved to state court.

Graham was acquitted of premeditated murder in
the state trial, but was convicted of felony
murder and sentenced to life in prison without
parole. The felony murder charge alleged he was
involved in a killing while engaged in another felony, kidnapping.

Graham argued that the state lacked jurisdiction
to prosecute him for felony murder because he was
extradited from Canada on a different charge,
premeditated murder. He contended that his
conviction should be overturned and he should be
allowed to return to Canada to challenge his extradition.

But the Supreme Court said Canada consented in
February 2010 to Graham's prosecution for felony murder.

"Graham has not argued that Canada did or would
object to Graham's prosecution for felony murder.
On the contrary, the only record evidence
reflects Canada's express consent to the prosecution," the court said.

Graham also contended that several witness
statements should not have been allowed at his
trial, including those made by Looking Cloud
about an alleged 2002 telephone conversation
between Looking Cloud and Aquash's daughter,
Denise Maloney, in which Looking Cloud said
Graham shot Aquash with Looking Cloud and Clarke present.

Graham said Looking Cloud changed his story to negotiate a reduced sentence.

The Supreme Court said Looking Cloud's testimony
was admissible because it was consistent with his
prior statement to Maloney in the telephone call.

The appeal also questioned the inclusion of
another person's testimony about a conversation
in which Leonard Peltier ­ who is serving a life
sentence after being convicted in 1977 of
shooting two FBI agents ­ accused Aquash of being
an FBI informant. The Supreme Court said that
person's testimony was impermissible hearsay, but
that its inclusion in the trial was a harmless
error because it would not have affected the verdict.

AIM was founded in the late 1960s to protest the
U.S. government's treatment of Indians and to
demand the government honor its treaties with
Indian tribes. The group grabbed headlines in
1973 when it took over the village of Wounded
Knee on South Dakota's Pine Ridge Indian
Reservation, leading to a 71-day standoff with
federal agents that included the exchange of gunfire.