Tim Giago: More to the Aquash murder case than meets the eye

Opinion

Monday, October 25, 2010

The law can be complex, just, frustrating, hurtful, and sometimes, unfair.

A motion filed by South Dakota Attorney Dana L. Hanna to quash a subpoena that would force recently acquitted Richard Marshall to testify in the case of John Graham and Thelma Rios in their upcoming trial for the alleged murder of Anna Mae Pictou Aquash 35 years ago brings into question all of the above.

Hanna levels accusations at the Attorney General of South Dakota, Marty Jackley, that the subpoena he served on Marshall is issued in “bad faith.” He writes that the subpoena “to elicit testimony from Mr. Marshall that the State prosecutors will use to bring a vindictive perjury charge against Mr. Marshall in a petition to the State Parole Board to revoke Mr. Marshall’s parole, an illegitimate prosecutorial abuse of the subpoena power that courts have condemned as a ‘perjury trap.’”

If Marshall is forced to testify in the Graham - Rios trial he could be charged with perjury if the prosecutors decide that his testimony is not the truth as they know it. Marshall was serving a 99-year sentence for murder he committed in 1976 and is now on parole. He was charged with supplying the weapon that was used in the murder of Aquash, a charge that was rejected in a jury trial in April of 2010.

The main witnesses in the upcoming trial will be Arlo Looking Cloud, a man already serving time in prison for the murder of Aquash, and Serle Chapman, an informant who was not only paid more than $100,000 by the government, but who also was given special waivers by the government to remain in the United States as a witness despite the expiration of his visa.

Although the prosecution vehemently denies that any deals were cut with Chapman and Looking Cloud, Hanna charges that deals were made, first by allowing Chapman to stay in the USA after his and his wife’s visas expired and to Looking Cloud by intimating that he would be eligible for parole in less time than his original sentence would have allowed.

Looking back on the trial of Marshall, Hanna writes, “On April 22, 2010, after deliberating for one hour and 45 minutes, the jury found Richard Marshall Not Guilty. On May 7, 2010, Mr. Jackley’s deputy, Mr. Oswald, had a subpoena served on Richard Marshall that directed him to testify as a State’s witness in the trial of Rios and Graham.”

“I have reasonable belief that Mr. Jackley’s service of a subpoena on Mr. Marshall in this trial is the first step toward accomplishing his threat to seek to revoke Richard Marshall’s parole by means of a perjury charge if he went to trial and was found not guilty,” Hanna wrote in his Motion to Quash.

When Hanna quizzed Jackley about why the subpoena was served on Marshall and asked about the consequences, Jackley replied that nothing would happen to Marshall “as long as he tells the truth.” When Hanna suggested to the Court that Jackley was setting up a “vindictive perjury trap,” Jackley told the Court as long as Marshall testifies to “the truth,” then Marshall will not have “an issue” as to a perjury charge. According to Hanna, the Court then asked the critical legal question: Who would determine what is “the truth?”

So Marshall is faced with an impossible and unconstitutional dilemma, according to Hanna. “If he gives truthful testimony – that he did not give a gun to Theda Clarke – which does not conform to Mr. Jackley’s understanding of ‘the truth,’ then the State will charge him with perjury in a parole revocation proceeding: thus the only way Mr. Marshall could prevent a false perjury prosecution would be by committing the crime of perjury – by giving false testimony what would conform to the prosecution’s theory of the facts.”

The Motion to Quash was filed by Hanna on October 18, 2010. The Motion asks the Court to:

1. To order the Attorney General and his prosecutors to make a specific offer of proof setting out in concrete detail the testimony they would seek and expect to elicit from Richard Marshall, the facts they intend to prove by his testimony and the evidentiary purpose and relevance of such testimony;

2. To order a hearing on Mr. Marshall’s motion to quash with an opportunity for all parties and Mr. Marshall to be heard and to present evidence;

3. To order that the subpoena directing Mr. Marshall to testify as a prosecution witness in the trial of this case be quashed; and

4. To order any other relief that this Court deems just and appropriate.

There is much, much more to this case than meets the eye. This motion to quash was filed with the Seventh Judicial Court in Rapid City, S. D., Crim. No. 09-3953 and 09-3954. Any questions for Hanna can be directed to 605-791-1832.

The trial of John Graham and Thelma Rios for their alleged participation in the 35-year-old murder of Aquash is scheduled to begin in State Court in Rapid City on November 29, 2010.

Tim Giago, an Oglala Lakota, is the editor and publisher of Native Sun News. He was a Nieman Fellow at Harvard with the Class of 1990. His weekly column won the H. L. Mencken Award in 1985. His book Children Left Behind was awarded the Bronze Medal by Independent Book Publishers. He was the first Native American ever inducted into the South Dakota Newspaper Hall of Fame in 2007. He can be reached at editor@nsweekly.com.