U.S. ordered to turn over evidence in 1975 slaying of Canadian aboriginal activist
A U.S. federal magistrate judge has granted a request from a Canadian man to allow DNA testing on an undergarment from a 1975 slaying and ordered the government to look for another piece of evidence.
John Graham stands trial starting Oct. 6 in Rapid City, S.D., on first-degree murder for the December 1975 slaying of Anna Mae Pictou-Aquash on the Pine Ridge Indian Reservation. She was a fellow American Indian Movement member who was also from Canada.
Earlier this year, Graham's lawyer, John Murphy, asked a judge to make the government reveal the location of and make available for testing Pictou-Aquash's underwear and a sanitary napkin said to have been taken from the first autopsy.
That autopsy found evidence that Pictou-Aquash had sex or was raped shortly before she was killed. Murphy wrote that if DNA other than Graham's is present, the defence should be allowed to compare the samples to databases, which could clear Graham if someone else's DNA were present.
In their response, federal prosecutors Marty Jackley and Bob Mandel wrote the government never had possession of the pad, nor were investigators obligated to keep it. The panties were kept and tested after Pictou-Aquash's body was found but showed no signs of blood or semen, the prosecutors wrote.
U.S. Magistrate Veronica Duffy, in an order filed Friday, told the government to do a thorough search for the sanitary napkin and gave the government 20 days to give the defence the underwear and the sanitary napkin, if they are found.
Duffy also gave each side 10 days to appeal her decision.
DNA evidence from the items won't exonerate Graham because he could still have killed her, nor would evidence of his DNA prove he murdered her, but Graham has a right to the testing, she wrote.
"The evidence does not go to the heart of proving or disproving Mr. Graham's guilt," Duffy wrote.
She denied prosecution requests to have Graham submit a DNA sample, saying a search warrant is needed for such an order, and to do DNA testing before giving the evidence to the defence.
"The government has had ample time to do any testing it wished to do. The court will not further delay Mr. Graham's access to this evidence while the government seeks to now have testing done," she wrote.
Duffy wrote she also does not have the authority to limit the defence testing only to determine Graham's guilt, as prosecutors asked.
Rape allegation surfaced at 2004 trial
The allegation that someone raped Pictou-Aquash before she was killed came up at the 2004 trial of the other man charged with killing her, Fritz Arlo Looking Cloud, who was convicted and sentenced to a mandatory life prison term.
At that sentencing hearing, Mandel said if any DNA were available, it would be relevant to the case against Graham, not Looking Cloud.
Any DNA found "would ultimately be beneficial to the United States in further prosecution that might take place in this matter regarding the co-defendant," he said, referring to Graham.
In 2004, Looking Cloud's lawyer ultimately was denied a request to have Pictou-Aquash's body tested for DNA evidence before the family exhumed and took her body to her native Nova Scotia for reburial.
At Looking Cloud's trial, witnesses said he, Graham and another AIM member, Theda Clark, drove Pictou-Aquash from Denver and that Graham shot her in the Badlands as she begged for her life.
Clark has not been charged. She lives in a nursing home in western Nebraska and has refused to talk about the case.
Prosecutors have alleged that Pictou-Aquash was slain by Graham and two other men at a time when rumours were circulating that the prominent AIM member was an FBI informant.
Graham, a Yukon native also known as John Boy Patton, denies killing Pictou-Aquash, though he acknowledged being in the car with her from Denver.
Murphy said Monday he did not want to comment beyond the court order. Federal prosecutors are prohibited from discussing pending cases and had not yet filed their response.