SIOUX FALLS, S.D. - Two men newly indicted for a 1975 slaying on the Pine Ridge Indian Reservation were arraigned Friday in federal court in Rapid City. John Graham and Richard Marshall each are charged with three alternate counts of committing and aiding and abetting the first-degree murder of Annie Mae Aquash when all three were active with the American Indian Movement.
Graham was to stand trial this week, but the judge threw out the indictment because grand jurors didn't previously consider whether Graham or Aquash, both Canadians, belonged to a federally recognized American Indian tribe.
The judge gave lawyers until Tuesday to indicate whether Graham and Marshall could be tried together starting Dec. 9 in Rapid City.
Graham's lawyer, John Murphy, wrote in his response it would be too soon, mainly because the case might not be resolved before the Christmas holiday begins Dec. 20 for families that might be hosting or travelling, which would create an urgency for jurors.
"If the trial goes into the Christmas holiday week, jurors may feel rushed to reach a verdict prior to the holiday beginning. This is not fair to any party involved in the case, and it would prejudice Mr. Graham," Murphy wrote.
The trial would likely last longer than the eight intervening business days, and if Graham and Marshall are tried together, it's even more likely jurors would deliberate into the holiday break, he argued.
Murphy wrote there are evidence issues and other matters that also will take longer to resolve.
In their response, federal prosecutors Marty Jackley and Bob Mandel, who asked for an expedited trial, said Dec. 9 would work.
The government expects to take about four days for its main case and call approximately 29 witnesses.
There still is enough time to handle other issues well before the trial, the prosecutors argued.
"The United States believes that there is sufficient time to try the case before the Christmas holiday."
Marshall's lawyer, Dana Hanna, has not yet filed his response to the proposed trial date.
Marshall was indicted separately in August, five years after Graham and a third AIM member, Arlo Looking Cloud, were charged.
Looking Cloud was convicted in 2004 of killing Aquash and sentenced to a mandatory life prison term.
Witnesses at his trial said he, Graham and another AIM member, Theda Clarke, drove Aquash from Denver in late 1975 and that Graham shot Aquash in the Badlands as she begged for her life.
Clarke, who lives in a nursing home in western Nebraska, has not been charged.
Graham has denied killing Aquash but acknowledges being in the car from Denver.
Some speculated Aquash was killed by AIM members because she knew some of them were government spies, while others said she was executed because she herself was an informant. Federal authorities have said Aquash was not an informant and they had nothing to do with her death.
Aquash, 30, was among the Indian militants who occupied the village of Wounded Knee in a 71-day standoff with federal authorities in 1973 that included an exchange of gunfire with agents who surrounded the village.
