Canadian appeals conviction in '75 AIM slaying

VERMILLION, S.D. (AP) – A Canadian man convicted in the 1975 killing of a fellow American Indian Movement activist says the government should not have been allowed to move his case from federal to state court after his extradition to the U.S.

John Murphy, attorney for John Graham, told the South Dakota Supreme Court on Monday that he didn't have sufficient time before trial to question the court's decision to allow Graham's case to be moved. Graham, a member of the Southern Tutchone tribe in Canada's Yukon territory, was convicted in December 2010 of taking part in the killing of Annie Mae Aquash.

Murphy said that during Graham's trial, the judge told Graham that he had no standing to challenge his presence in state court, saying, “it doesn't matter how you got here. Now that you're here, this case can proceed.”

Prosecutors say Graham and two other AIM activists, Arlo Looking Cloud and Theda Clarke, killed Aquash because they suspected she was a government informant. Aquash was a member of the Mi'kmaq tribe of Nova 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, but a U.S. district judge in August signed an order 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. But two courts ruled that the U.S. government lacked jurisdiction to try Graham because he is not American Indian, and the case was eventually moved to state court.

Graham was acquitted of premeditated murder but convicted of felony murder and sentenced to life in prison without parole.

Murphy said that since the trial, he has obtained a photocopy of a waiver of speciality filed with the extradition paperwork that he says raises more questions than it answers.

“We know nothing of how this got into South Dakota courts,” he said.

South Dakota Attorney General Marty Jackley said Monday that any extradition issues were ruled on by the Canadian government and are not relevant in the appeal. He said the shift from a federal murder charge to a state murder charge was justified.

“It's the same offense. It's the same facts,” he said.

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

“Looking Cloud's statement in 2002 is inconsistent with his trial testimony and with every other statement he gave,” Murphy said.

Murphy also questioned the inclusion of a conversation between an AIM member and Leonard Peltier – who is serving a life sentence after being convicted in 1977 of shooting two FBI agents – in which Peltier accused Aquash of being an FBI informant.

He said the testimony from Troy Lynn Yellow Wood was hearsay.

Justice Steven Zinter challenged Murphy on those points, saying that witness testimony that Graham did the shooting was consistent at trial and that the accusation that Aquash was an FBI informant was well established.

Jackley said prosecutors at Graham's trial established the motive that AIM members suspected Aquash of being an informant and they embarked on a chain of events that led to her death.

He said Looking Cloud's testimony was consistent, and defense attorneys had the chance to cross examine him on the stand.

The state Supreme Court will issue a written ruling on the appeal at a later date.

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