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Jury acquits Marshall for aiding and abetting Aquash murder

Compilation By Paul DeMain
Rapid City, South Dakota (NFIC) May 2010

 

Dick Marshall, left, and Devonna
Pourier celebrate Marshall’s
release. Rapid City Journal/AP.
Photo by Ryan Soderlin.

A federal jury on April 22 found Vine Richard “Dickie” Marshall not guilty of murder in connection with the 1975 execution slaying of American Indian Movement activist Annie Mae Aquash of Nova Scotia, Canada.

Marshall’s friends and relatives,  erupted in cheers and applause when the verdict was read after about two hour of deliberation by the jury. Marshall stood and hugged Dana Hanna, his court-appointed attorney.

Hanna, making remarks after the trial noted that people have said a Native American cannot get a fair trial in front of an all-white jury in South Dakota. “We have proved them wrong today,” he said.

Prosecutors had tried to prove that Marshall, 59, provided the handgun used to kill Aquash, who some in AIM believed was a government informant.

Arlo Looking Cloud, who was convicted in 2004 of her murder and is serving life in prison, was the government's key witness. After years of denying that he, John Graham, Theda Clarke and Aquash had stopped at Marshall’s home in Allen just hours before Aquash was killed near Wanblee, Looking Cloud came forward in 2008 to say they had stopped in Allen and that Marshall had given them a handgun.

Looking Cloud’s attorney, Barry Bachrach testified that Looking Cloud began talking about the visit to Marshall’s home about six months before  he approached the government with the information.

Looking Cloud testified that he saw Marshall pull a box out of a night stand in the bedroom of his house. “He opens the box, and there’s a pistol in it,” Looking Cloud testified.

Looking Cloud said Marshall gave the gun to Theda Clarke, who eventually gave it to Graham. Hours later, Graham shot Aquash in the back of the head in the Badlands of the Pine Ridge Reservation, Looking Cloud told the jury.

On the witness stand Looking Cloud claimed he did not tell the story sooner because he was afraid of Marshall. Looking Cloud said his father, Johnny Looking Cloud worked with the International Indian Treaty Council, whose members were also leaders in some cases leaders of AIM, and associated with the Aquash events.

Looking Cloud also said he feared for his other Pine Ridge relatives as well, estimating that he could be related to at least  500 people there.

William Bill Means, also known as “Kills” was a director of the International Indian Treaty Council  for many years. Looking Cloud, Graham, and Clarke stopped at his house the night they had Annie Mae Aquash in the car with them just hours before she was executed.

U.S. District Judge Lawrence Piersol denied a motion for a mistrial made by Marshall’s attorney  after Looking Cloud said Marshall had served as American Indian Movement leader Russell Means’ “enforcer” and had confessed to a murder.

clarke-theda-007-bw.jpg
 Theda Clarke

Piersol ordered federal prosecutors not to ask more questions about why Looking Cloud said he feared Marshall.
However, defense attorney Dana Hanna then opened the door himself for more questioning by talking about Means and by mentioning Marshall’s conviction in the fatal shooting of Martin Montileaux in a Scenic bar in 1975.

Assistant U.S. Attorney Robert Mandel asked Looking Cloud what he meant when he said he believed Marshall to be “Means' enforcer.”

“He was Russell Means' gunman,” Looking Cloud said.

Hanna objected, moving again for a mistrial, and was overruled.

“Why did you believe that sir?” Mandel asked.

“It’s been common knowledge in the Native community” Looking Cloud replied before Piersol ordered that his answer be stricken from the record.

Looking Cloud  testified that he knew that Marshall had been charged with murder and released from prison years later after confessing to the crime in connection with the Montileaux killing.

“I was fearful for my family,” Looking Cloud explained.

Looking Cloud also changed his story about what happened when they went to Bill Means’ house on the Rosebud Reservation. Previously, he said he did not go inside the house. On April 22, he said he needed to use the home’s rest room and that Charlie Abourezk answered the door. He said he was also afraid of Abourezk - now a well-known Rapid City attorney and the son of former South Dakota U.S. Senator James Abourezk.

“What did you think Charlie Abourezk was going to do to you, Mr. Looking Cloud?” Hanna asked.

“He is well-connected with all the AIM leadership and of course a lot of the members,” Looking Cloud replied.

looking_cloud.jpg
 Arlo Looking Cloud

Looking Cloud’s attorney, Barry Bachrach, testified that the government made no specific promises when Looking Cloud came forward in 2008 to tell authorities Marshall had provided the murder weapon. Bachrach said then-U.S. Attorney Marty Jackley, who currently is South Dakota’s attorney general, had agreed that if Looking Cloud testified truthfully, the government would provide a statement regarding his cooperation that could be used to seek a reduction of Looking Cloud’s sentence. The government could also make a statement when Looking Cloud is eligible for parole, which could be as early as 2013. Asked if the government specified what they wanted Bachrach said “absolutely not.”

Assistant U.S. Attorney Robert Mandel suggested to jurors that there was another reason Looking Cloud didn’t talk sooner. If he had mentioned going to Marshall’s to get a gun, Looking Cloud would have been admitting he knew Aquash would be killed, Mandel said.

Mandel cited evidence that Clarke had given Graham a note that read something like, “take care of this baggage.”

“Folks, there wasn’t any baggage,” he said. “There was only a human being they wanted taken care of, and that was Annie Mae Pictou... ‘Take care of it?’ Hey, you can draw your own conclusions as to what that meant.”

In order for Marshall to be convicted, federal prosecutors had to prove beyond a reasonable doubt that he had both provided the gun and known it would be used to kill Aquash. Hanna suggested in his closing arguments that the government had proven neither.

One of Marshall’s relatives, Owen Marshall, said afterward he thought it was a fair trial.

“I think it was the right decision, the right verdict,” said Owen Marshall, whose father is a cousin of Richard Marshall. “This is justice. I feel bad for Annie Mae’s family as well. They deserve justice as well, but not by sending the wrong man to prison.”

A weary-looking lead prosecutor, Bob Mandel, referred all questions to Mark Salter, spokesman for the U.S. attorney’s office in South Dakota.

“Our office has always understood the challenges prosecuting a 35-year-old murder case, but we have not accepted that as a reason to avoid presenting the case to a jury,” Salter said.

Hanna argued that Looking Cloud made up the story about Marshall in hopes of getting out of prison and because Looking Cloud believed Marshall had “ratted him out” to investigators.

 banks-dj.gif
 Dennis Banks

Hanna also addressed what he called the “elephant in the room”: Who ordered Aquash’s death? He said AIM leader Dennis Banks, along with Leonard Peltier, had the most to fear from her because she knew about their criminal activities and had heard Peltier confess to shooting two FBI agents.

“She was killed because of what might happen in the future,” Hanna said. “She could have put Dennis Banks and Leonard Peltier away for decades,” he said.

Denise Pictou Maloney, the older of Aquash’s two daughters, had said before the verdict that the case was a step toward justice, regardless of its outcome, because of the evidence that came forth.
The verdict “was a toss, we knew that,” she said April 22. “But it is what it is. And in our territory, the fact that he saw my mother at his house with those people, and did nothing to help her, makes him an accessory in our eyes. And he will never be forgiven for that in our territory.”

Shortly after Marshall walked out of a county jail following his acquittal, a spokesman for the U.S. attorney’s office in South Dakota acknowledged the difficulty of trying a nearly 35-year-old murder case. South Dakota Attorney General Marty Jackley said Murphy’s case is different from Marshall’s, and said the trial should go on as scheduled in July.

The first full day of trial began with testimony from some of the last people to see Aquash alive. Troy Lynn Yellow Wood, a woman who owned a house in Denver where Aquash stayed before she was abducted to South Dakota, said Aquash was led out of her house with her head bowed, like a prisoner. That came after a meeting with AIM members and others about whether Aquash was an informant.

“I think she believed her life was coming to an end,” Yellow Wood said.

Graham, who is from Canada’s Yukon territory and belongs to the Southern Tutchone tribe, awaits trial in state court.

South Dakota Attorney General Marty Jackley said he expects Graham to be tried in July.

Graham faces one count of felony murder in relation to kidnapping, one count of felony murder in relation to rape and one count of premeditated murder in Aquash’s slaying. Another AIM member, Thelma Rios, is charged in state court with one count of felony murder in relation to kidnapping and one count of premeditated murder.

“We’re moving forward with both cases,” Jackley said.

Compiled from articles from the Associated Press, Rapid City Journal and in-court notes.



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