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Murder Charge Against Canadian Upheld in South Dakota

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By William Vogeler, Esq. on April 03, 2018 7:00 AM

John Graham shot Anna Mae Aquash in the back of the head, execution-style in the Badlands of South Dakota.

She died that day in December 1975, but it took authorities 35 years to get Graham to trial because he had fled to Canada. In 2010, he was convicted of felony murder and sentenced to life in prison.

In Graham v. Young, the convicted murderer claimed he was wrongly extradited. The U.S. Eighth Circuit Court of Appeals said he was wrong.

"Dual Criminality"

Graham and two other men kidnapped Aquash, who was an American Indian Movement leader. They thought she was also an FBI informant.

The kidnappers took her from Denver, through Rapid City and then to the Badlands. Arlo Looking Cloud was also convicted in her death, but received a lesser sentence for cooperating with authorities. A third conspirator died before he could be prosecuted.

On appeal, Graham argued that the trial court lacked jurisdiction to prosecute him for felony murder because it was a not a crime in Canada. He said he was a Canadian citizen, protected by treaty.

If there was any mistake with the extradition, the appellate judges said, it was not their problem. The Canadian Minister of Justice waived that issue.

Consent to Waiver

The Eighth Circuit said the issue was "complicated because felony murder was not included in the extradition request" from American prosecutors. However, the appeals court said, Canada expanded the scope of extradition by waiver.

The appeals panel said it would "not sit in judgment of Canada's interpretation of Canadian criminal law" to extradite Graham for felony murder prosecution in the United States.

"[T]he Minister of Justice's authority to issue a Consent to Waiver requested by the United States is an issue of Canadian law that may not be collaterally attacked in this country," the judges said and affirmed.

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