Court in SD upholds Dismissal!!!!!!!!!!!!
Monica
By CARSON WALKER
Tuesday, Jul 28, 2009 - 04:15:41 pm CDT
A federal appeals court on Tuesday upheld the dismissal of a key
charge against one of two men accused of the 1975 slaying of a fellow
American Indian Movement member, opening the possibility he could be
tried in state court.
John Graham pleaded not guilty to charges that he killed or aided and
abetted in the death of Annie Mae Aquash on the Pine Ridge Indian
Reservation.
U.S. District Judge Lawrence Piersol threw out the first indictment
against Graham because it did not show that either Graham or Aquash
belonged to a federally recognized American Indian tribe. They both
belonged to Canadian tribes.
When federal prosecutors re-indicted Graham, Piersol again dismissed a
similar charge against him.
The appeals court agreed that both indictments were flawed because
they did not prove that either Graham or Aquash were American Indian.
Tribal status gives the federal government jurisdiction in the case.
U.S. Attorney Marty Jackley and Graham's lawyer, John Murphy, argued
the case in April before a three-judge panel of the 8th U.S. Circuit
Court of Appeals, which filed its unanimous decision affirming
Piersol's dismissal of the charge.
Jackley argued the law does not require Graham to be an American
Indian because the third co-defendant, Arlo Looking Cloud, belongs to
a federally recognized tribe.
But the appeals court disagreed, saying federal jurisdiction doesn't
extend to an accomplice.
"The counts in both indictments failed to allege Graham's Indian
status, which cannot be cured by an application of aider-and-abettor
liability," they wrote.
Jackley said his office is "evaluating the decision and available
options."
Two charges are pending against Graham, but prosecutors would still
have the challenge of showing that either Aquash or Graham were
American Indian.
If federal prosecutors opt to not go forth with a trial against
Graham, he could be tried in state court, though that would happen
only after government lawyers drop the remaining charges, said
Attorney General Larry Long.
"It's still just a little too early to tell. As to the overall
question, 'Does the state have jurisdiction?' The answer to that, of
course, is yes, if the federal courts have determined conclusively
that they don't have jurisdiction," he said.
Murphy said he and Graham are pleased with the decision and that it's
resolved.
The other man charged, Richard Marshall, last week asked that he be
tried separately. He's pleaded not guilty.
Jurisdiction is not in question with Marshall because he belongs to a
recognized tribe, as does Looking Cloud, who was convicted in 2004 for
his role in Aquash's murder and sentenced to life in prison.
Witnesses said Looking Cloud, Graham and Theda Clarke, another AIM
member, drove Aquash from Denver and that Graham shot Aquash on orders
from AIM leaders who suspected she was a government informant.
Prosecutors accuse Marshall of providing the revolver and shells.
Clarke is in her mid-80s and lives in a nursing home in western
Nebraska. Graham fought his return from British Columbia for more than
four years before he was extradited in December 2007.
Sizzle Flambé
> U.S. District Judge Lawrence Piersol threw out the first indictment
> against Graham because it did not show that either Graham or Aquash
> belonged to a federally recognized American Indian tribe. They both
> belonged to Canadian tribes.
> [...]
> The appeals court agreed that both indictments were flawed because
> they did not prove that either Graham or Aquash were American Indian.
> Tribal status gives the federal government jurisdiction in the case.
This would be "The Bashby Loophole": why Guardian Betsy Ashby
says her targets for genocide are the Indians *not* belonging
to federally recognized American Indian tribes. Keeps her below
federal "radar", she hopes, as then only state jurisdiction
applies to lives being "totally annihilated". Thing is, she's
wrong on a couple of counts. Discussion is on the Internet, on
interstate & international lines: federal jurisdiction. Travel
to carry out plans, across state lines: federal jurisdiction.
In short, interstate conspiracy: federal jurisdiction. Betsy's
every BIT as good a lawyer as she is an Internet Investigator!
[...]
> Witnesses said Looking Cloud, Graham and Theda Clarke, another AIM
> member, drove Aquash from Denver and that Graham shot Aquash on orders
> from AIM leaders who suspected she was a government informant.
Nawwww, how could this BE ? Hasn't Malica solemnly ASSURED us
that "it was never the practice of AIM to punish, let alone
execute, informants or collaborators" ? Why, yes, she has !
http://groups.google.com/group/alt.native/msg/c6f65d5fde80f2e0
So which time were you LYING, Malica, THEN or NOW ?
Dave
This has nothing to do with Monica, except as an interested and
compassionate woman who cares about her people. She's doing us all a
service by posting this very important news (which you don't seem to
care about? all you want to do is infantile personal attacks?).
This throws the whole case into new terrain, now. I'm very glad for
John Graham, even though of course the vicious State of South Dakota
is slavering at the mouth (still totally under the control of true
monsters like Gov. Janklow the Manslaughterer) to get control of the
legal charade.
Sizzle Flambé
... a *participant* in the events of the time, had you forgotten?
<http://tinyurl.com/annie-mae-timeline-iii>
Monica Charles [...] admits in an email to News From Indian Country
that some members of AIM later accuse her of being either informant A
or B. Charles also writes in December 2003 email that she hears
"other
people were killed because they were thought to be A and B." ...