November 8, 2005

A judge extended John Graham's bail to next June 23, 2006 as he fights extradition to the United States.

The British Columbia Supreme Court last February ordered Graham sent to the United States to stand trial for the killing of Anna Mae Pictou Aquash.

The extradition needs the federal justice minister's signature to go ahead. John's lawyer Terry LaLiberte is preparing an appeal that will include a constitutional challenge of Extradition Act ammendments that put less onus on countries to provide evidence to back their requests.

Information posted by Matthew Lien, John Graham Defense Committee:

Monday, February 21, 2005

John Graham returned to court today for the final decision of B.C. Supreme Court Justice Bennett, with respect to John's extradition. After issuing critical words to the Crown (representing the U.S.) regarding the weaknesses and inadequacies of the case against John, she ultimately decided she could not rule against the extradition request, relying largely on the hearsay testimony of John Trudell when making her decision.

The official order will not be made until March 2 at 9:00 AM. At that time, John will be remanded briefly into custody -- most likely for two or three hours -- while his lawyers file for his appeal, after which John will remain free to help prepare his appeal.

The courtroom was filled with supporters who shed tears and embraced each other when the judge announced her decision. Following the judgment, chanting could be heard from supporters gathered outside, protesting John's extradition and carrying banners which read, "Free John Graham" and "Don't let the Canadian government extradite another innocent man."

Outside the courthouse, Vancouver, Feb. 21, 2005. Photo: Joni Miller.

While today's decision is disappointing news, we have already recognized the judge's limited powers to oppose an extradition request by the U.S. In anticipation of this decision, these hearings have been very helpful for preparing the key arguments for appeal.

Anyone who has paid attention to these proceedings has seen the sloppy and suspicious evidence provided by the U.S., which includes a dead witness who was certified as available to testify; the promise of testimony which is entirely contradicted in that witness's previous Grand Jury testimony; and an affidavit from the only alleged eyewitness declaring his refusal to testify, while asserting he was coerced by investigators -- a familiar experience in the related history of fraudulent FBI affidavits.

An affidavit was also sworn by Leonard Peltier just a few weeks ago, describing how he was promised his freedom in return for providing false testimony against John.

These hearings have also helped to inform and educate more people about the shameful and shoddy case against John Graham. Where a concern may have existed in the hearts of many regarding the ability for an Indigenous man to receive a fair trial in South Dakota, there is now little doubt that the case against John is false and fraudulent.

The U.S. government's concern over the errors and weaknesses revealed in their case may be evident in the eleventh-hour change of the Crown prosecutor. A new prosecutor was appointed last week to represent the U.S. in the coming proceedings.

Those of us seeking truth and justice in this matter view this case and the current extradition process as a clear continuation of the U.S. government's harassment and abuse of Native Americans.

On the positive side, we also view this process as a powerful opportunity to raise awareness about the actions of the FBI, which are directly related to the death of Anna Mae Aquash and scores of Native Americans, and the wrongful imprisonment of Leonard Peltier.

Helen Telquaa outside the courthouse, Vancouver, Feb. 21, 2005. Photo: Joni Miller.

The Road Ahead

In preparation for the struggle ahead, we are planning two campaigns:

- One campaign is a request for letters to the editors of your local newspapers. Keeping our concern for truth and justice in the public eye is extremely important. We must let the people and the government of Canada know our opinions about this case, and the reasons for concern as it relates to John Graham and Canada's very sovereignty.

- The other campaign is a call for letters to Canada's Justice Minister Irwin Cotler. The final decision on whether John is sent to the U.S. rests with Minister Cotler. Your letters will be very important.

We will be preparing outlines for these two campaigns soon, and will include key points for your letters.

Wednesday, February 2, 2005

John's defence attorneys submitted their final arguments today, and Supreme Court Justice Elizabeth Bennett announced she would deliver her final decision on Monday, February 21.

In closing, John's attorney Terry LaLiberte discussed two points: one, that the certified evidence has been shown to be unreliable, and two, that the U.S. has not established the identification of John Graham as the perpetrator of the murder of Anna Mae Aquash.

Mr. LaLiberte said the certified evidence of identification is "full of holes" in describing the person the U.S. is looking for, and does not match the booking sheet from John's arrest in Vancouver. The U.S. information as certified by U.S. Attorney Robert Mandel, states that they are looking for a Caucasian, 188cm tall, weighing 87 kg.

"They cannot get around the fundamental fact," said LaLiberte, "that the guy they want is six inches taller than Mr. Graham," said LaLiberte, "and there is a problem with the weight and the racial description."

The U.S. claims John was also known as John Boy Patton. "Also known by whom?" asked LaLiberte. "We have requested that they clarify these points, and they have not proffered that evidence."

Mr. LaLiberte stated that "there is no link" between the witnesses' identification of a "John Boy Patton" and the photos of John Graham. "This is totally inadequate," said Mr. LaLiberte. "Witness John Trudell claims a John Boy Patton shot Aquash, but identifies Mr. Graham's photo as John Graham. There is nothing to link our citizen in Canada to this person in South Dakota."

"They have not proven the identity," said LaLiberte, "and that should be the end of it."

John's co-counsel Gregory DelBigio, also spoke to the issue of the photographs. He pointed out that the certified summary of evidence attributes testimony to witnesses "by saying, for example, the witness 'is able' to identify a photo. They do not say that the witness actually identified the photo." Mr. DelBigio pointed out that this is significant, because it appears the U.S. Attorney is speaking on behalf of witnesses by claiming they are able to provide evidence that they have not actually provided. "It is not a concrete assertion," said Mr. DelBigio. "They do not even say the witness made the testimony to the investigators, they only say the witness is able to make the identification."

Mr. DelBigio argued that on the critical point of identifying a suspect, "There should be evidence that witnesses have positively identified the photo."

Mr. LaLiberte pointed out again that U.S. Attorney Mandel certified evidence that does not exist. He argued that the body of evidence is inadequate, since one alleged witness, Al Gates, was dead for nine months when he was certified as being "available to testify;" another witness, Frank Dillon, has said he did not make the statements attributed to him; and the only alleged eyewitness, Arlo Looking Cloud, has stated he will not testify against Graham, as the U.S. claims.

"We have provided cogent evidence that he will not testify against Graham," said LaLiberte. "His lawyer says he will not testify. And the proof is in the pudding. In a recent Grand Jury investigation, Mr. Looking Cloud did not testify against Mr. Graham, and even refused immunity."

Mr. LaLiberte also stated that evidence submitted is not attributed to anyone. "Some of this appears to be speculation by Mr. Mandel," said Mr. LaLiberte, referring to the U.S. Attorney who certified the evidence.

"We want to believe our neighbour," said LaLiberte, referring to the U.S., "but there is some threshold at which so many holes have been punched in the certified evidence, that we can no longer presume it is reliable."

Gregory DelBigio addressed the impact of the erosion of evidence, the dead witness, recanted testimony, and the failure to identify John Graham. He pointed out that whenever John's attorneys demonstrated that evidence was not available as originally claimed by the U.S., they respond that they "did not rely on that piece of evidence." Regarding witness Al Gates, who is dead, Mr. DelBigio said, "They now say they don't rely on the Gates testimony." But he said the court must consider the entire body of evidence together. "The certification refers to the entire package of evidence," said Mr. DelBigio. "The Court can no longer be sure the evidence is sufficient for committal."

Mr. DelBigio said the Court has a duty to impose some minimum requirements on the quality of evidence from the U.S. "This is not a rubber stamp or meaningless ritual," he told Justice Bennett. "There is some bare minimum of protection for a Canadian citizen."

Mr. LaLiberte agreed. "There is no due process here," he said. "We've shown big holes in the evidence. They say 'trust me, I'm an Attorney General.' The certified evidence is totally inadequate. They are hiding behind the law, making bold assertions that are not true. The process is flawed. Who are these people - the Ecoffeys and Alonzos and Graff - these people who are claiming witnesses are able to testify to these things?"

"Whenever we show their evidence is wrong," said Mr. LaLiberte, "they say it doesn't matter. Well, it does matter."

Crown Attorney Deborah Strachan, representing the U.S. said, "The extradition judge is not to be concerned about reliability of evidence." She insisted the Extradition Act requires the court to presume the evidence supplied is accurate and presented in good faith. "Fairness of the process is irrelevant," she told the court.

Justice Bennett recessed the hearing, announcing that her final decision will be read at 9:00 a.m. on Monday, February 21. If she does commit John Graham for extradition, he will appeal.

John's case is very similar to the 2003 case of U.K. vs. Tarantino, in which the Court stayed the proceedings due to the unreliability of the evidence supplied by the U.K. As in John's case, a witnesses was shown to have died, another witness had absconded, and a third witness was shown to be unreliable. The Judge in that case ruled that although our Extradition Act requires courts to trust the foreign state, there is some minimum threshold of reliability that the Canadian courts must uphold.

"The court has the power to control its own process," the judge ruled. "It is for the court to guard its own integrity." This certainly would sound like the Court of a sovereign nation.

Tuesday, February 1, 2005

Today, the Crown representing the U.S. made their final submissions, presenting a summary of the evidence supplied by the U.S. Attorneys against John Graham.

Crown Attorney Deborah Strachan outlined the evidence that a murder had taken place, and the allegations that Anna Mae Aquash was forcibly taken from the home of Troy Lynn Yellow Wood in Denver, that she was tied up, taken to Pine Ridge, and murdered. She recounted the witnesses who claim to have seen John with Anna Mae prior to the murder. And she recounted the testimony from Arlo Looking Cloud, saying that he witnessed John shooting Anna Mae.

John's defence attorneys challenged all of this evidence, pointing out that one alleged witness is dead, and that two others have recanted their stories, saying they will not testify as the summary suggests. Arlo Looking Cloud says his testimony was coerced when the FBI fed him alcohol and drugs, that he was denied a lawyer of his choice, and that he will not testify against John Graham in any subsequent trial. Looking Cloud is the only alleged eyewitness, and his video-taped "confession while intoxicated" would not be admissible if he refuses to testify, leaving the US without a single eyewitness.

Supreme Court Justice Bennett asked the Crown to explain a lack of detail in identifying some of the witnesses who had identified Graham. She appeared concerned about the incomplete nature of the evidence.

"The case is full of hearsay," Justice Bennett complained to the Crown. "There is no date on these witness statements. I don't know who these witnesses are. I have no idea if these are witness statements. They are very vague. I have no source for where this came from."

Crown attorney Strachan responded to this direct questioning by Justice Elizabeth Bennett about the reliability of the evidence, explaining that the witness statements in question were summaries from "a number of witnesses," compiled by FBI Special Agent James Graff and supplied to Canada and certified by US District Attorney Robert Mandel.

Justice Bennett stated that, even though the statements were summaries, she needed to know who the witnesses were. "I need a source," she said. Justice Bennett appeared slightly ruffled by the lack of detail. "This is not a meaningless ritual," she said. "Without evidence of the witness's means of knowledge, the Judge cannot determine how to weigh this evidence."

"I take your point," Strachan said. She acknowledged that the evidence summary "could have been worded better."

"These are layers of hearsay on hearsay," Justice Bennett said. "If the summary is so bereft of information, what's the point of having a judge review this? It could be rubber-stamped by a bureaucrat in Ottawa." The Supreme Court Justice pointed out that "Nobody identified all the photographs [of John], which would have been easy to do, an obvious thing to do, but it wasn't done."

Defence counsel Terry LaLiberte had previously pointed out that the U.S. attorneys have been "careless and cavalier" in their manner of submitting evidence. A particular case in point is the fact that the only alleged eyewitness, Arlo Looking Cloud has stated, according to an affidavit from his new lawyer, Terry Gilbert, that he will not testify as claimed in the summary of evidence.

On this point, Crown counsel Strachan argued, "This affidavit is irrelevant." She claimed that the statement by U.S. authorities that a witness is "available for trial" relates to the time of the certification, and "is not a guarantee that the witness will be available at the time of trial, which could be any time." Strachan has also stated earlier that the certification of evidence only means that the evidence itself is available, not the specific witness.

However, since Mr. Looking Cloud is the only available eyewitness in this case, if he refuses to testify as he claims he would, the case seems to fall apart. The U.S. government could, of course, still submit his previous statement, but would then face his testimony that the statement was coerced and that he had been plied with drugs and alcohol.

Graham's lawyer, LaLiberte, had asked that Justice Bennett stay the proceedings based on a 2001 decision in BC Supreme Court by Justice Stein, in the extradition case of the United Kingdom versus Tarantino. In that case, the Justice tossed out the case due to the unreliability of the evidence submitted. The Tarantino case bears an uncanny similarity to John's case. An alleged witness had died, another witness had disappeared, and a third witness had been shown to be unreliable. The judge found that the UK attorneys had been "careless and cavalier" in supplying unreliable evidence, a term used my Mr. LaLiberte in the Graham case.

Canada's Extradition Act requires the court to presume evidence supplied by a foreign country is honest, fair, and accurate. Justice Bennett denied the motion to stay these proceedings, but it is very likely that John could appeal on these grounds, should he be committed to be extradited.

In the Tarantino decision, Justice Stein pointed out that Canada relies on "fairness and good faith" of the foreign country. Stein referred to the certification of evidence as the "fibre with which the safety net as to available evidence is woven." The judge stated that if the certification was not performed with the "utmost diligence and care" that the "Canadian court is without proper foundation upon which to deprive a Canadian citizen of liberty."

"It is for the court," said Stein, "to guard its own integrity."

"A violation occurs," the judge ruled, "where it is concluded that the diligence of the requesting state is not of a standard which justifies the granting of the presumption" of reliability. The judge explained that this presumption was "a statutory shortcut that impacts on the liberty of a citizen [and] requires a careful, considerate approach by the foreign authority."

Mr. LaLiberte has argued throughout this hearing that such careful, considerate, and fair conduct by the U.S. authorities has been entirely lacking, and that in fact, they have been "negligent or deceitful," in certifying evidence that does not exist.

Canadians remember that Leonard Peltier was extradited from Canada in 1976 on completely fraudulent evidence manufactured by the FBI, when they coerced Myrtle Poor Bear to sign false affidavits, just as Arlo Looking Cloud has claimed the FBI coerced him, and just as Leonard Peltier has sworn in a recent affidavit submitted by John's attorneys, that he was asked to falsely testify against John in return for his freedom. He refused, saying that he would not be "another Myrtle Poor Bear."

John's hearing continues on Wednesday morning, at which time Mr. LaLiberte will respond to the Crown's summation of evidence with his closing submission.

John's lawyers are ready to promptly appeal, should Justice Bennett issue an order to extradite.

Monday, January 31, 2005

Hello friends and supporters,

I apologize for the delay in providing updates. As I am out of the country and unable to attend the current round of hearings, it has been difficult to gather daily information.

Today, the B.C. Supreme Court Justice Elizabeth Bennett dismissed the defence's motion to stay the proceedings. The defense had based its motion on a 2003 extradition case known as "Tarantino," in which the judge stayed proceedings due to unreliable evidence submitted by the requesting country.

John's attorney, Terry LaLiberte, had described how U.S. District Attorney Robert Mandel in South Dakota “deliberately or negligently” certified that evidence exists, when in fact, it does not. He pointed out that the certified witness, Al Gates, is dead, and that another witness, Frank Dillon, denies making the statement attributed to him.

The U.S. also certified Arlo Looking Cloud as an eyewitness available to testify, who is already convicted of aiding in the murder. However, John's lawyers submitted an affidavit from Arlo’s lawyer, Terry Gilbert, stating that he will not testify against John. Arlo demonstrated this unwillingness by refusing to testify recently before a Grand Jury. Arlo has recanted his previous testimony, and has alleged in interviews that detectives provided him with drugs and alcohol to coerce testimony from him in the absence of legal representation, and that he was denied the right to choose his own attorney. His case is currently being appealed.

In the end, the judge agreed with the Crown, that the evidence of errors and inconsistencies in the U.S. summary of certified evidence did not establish an abuse of process. She did point out however, that such matters could be brought before Canada’s Minister of Justice, should she approve the order to extradite John.

She explained that her role is simply to determine if John is the person sought by the U.S., and that, at first appearance, the evidence seems adequate. Canada’s extradition treaty with the U.S. presumes that the evidence supplied by the U.S. is accurate -- a matter of grave concern to anyone familiar with the Leonard Peltier extradition and its documented falsification of evidence by the U.S.

On a positive note, the judge did allow an affidavit into evidence, which was obtained recently from Leonard Peltier. The affidavit describes how Robert Branscombe offered Leonard his freedom if he testified falsely against John Graham.

While Branscombe has said he never worked for, nor acted on behalf of the FBI, and that he has only acted on his own, John's lawyers produced evidence that contradicts this assertion, showing that Branscombe did in fact have a contract with the FBI, at or around the time he offered Peltier this deal.

We'll provide more information as developments continue, and will post news stories to the website as www.grahamdefense.org as they are published.

Again, we thank you for your understanding of the challenges we face in getting accurate information out quickly. We apologize for the inconvenience, and greatly appreciate your continued support.

Sincerely,

Matthew Lien
John Graham Defense Committee

January 11, 2005

This is an update following today's brief court appearance, and also to inform you of a powerful and in-depth news article written by Pulitzer Prize nominee Rex Weyler for the Vancouver Sun. The story ran over the weekend, and has received both praise and extensive circulation. The story is so provocative and revealing, attempts were made to have the story stopped prior to publication. We commend the Vancouver Sun for recognizing its strong and balanced content by publishing this article.

You will find the article posted on our website at www.grahamdefense.org, with the title, "Who Killed Anna Mae".

John Graham appeared today as scheduled in BC Supreme Court, to hear the judge's brief rulings on two of the Defense's motions.

One motion was questioning the constitutional validity of this extradition, as considered under sections 32 and 33 of the Canadian Extradition Act. The judge recognized that she was bound by existing case law, and that there was nothing she could do at the BC Supreme Court level.

The bright side is that there are currently two cases to be heard by the Supreme Court of Canada, which raise very similar questions about the constitutional validity of Canada's Extradition Act. Should either case be successful, it would provide new case law which could have an impact on the possible extradition of John Graham.

A grave issue being recognized during these proceedings is how Canada's sovereignty vanishes in the presence of this new Extradition Act of 1999. Under the previous Extradition Act, the requesting state needed to submit first-hand evidence and affidavits. With the implementation of the post-9/11 Extradition Act, no evidence is needed, other than a simple summary which can include second- and third-hand evidence, and evidence that would never meet Canada's own evidentiary requirements.

Until this issue is considered at the Supreme Court level, judges presiding over extraditions do so with minimal authority, and Canada's sovereignty becomes a mockery before the intentions of the United States of America. We do hope that John's case will help to rectify this alarming reality, as we prepare for an appeal to the Ministerial level where much greater authority exists, should these proceedings conclude with the issuing of an Order to Extradite.

John's lawyers were also seeking to have a booking photo excluded. At question was how the photo wound up in the US and in front of prosecution witness John Trudell for the identifying of John Graham. Why would the US authorities require a photo taken after John was indicted and arrested, in order to identify him? Didn't the US authorities already know who they were looking for? Of equal concern is the question of how the photo was provided to US authorities.

The matter of the photo might have enabled John's lawyers to review potentially inappropriate involvement by US authorities and the RCMP, as well as the origin of identifying information in the US.

John's lawyers had also sought to exclude the entire summary of evidence, because of its known falsehoods. However, the judge again ruled that, under the existing Extradition Act, she can not exclude the summary of evidence even though it is clearly fraught with inconsistencies and inaccuracies, and shows signs of sloppiness and possible fraud and abuse of process.

So we are now where we left off last December. With these issues behind us, John's hearings will commence again on January 25.

Thank you again for your continuing interest and support. Please watch the John Graham Defense Committee website at John Graham Defense Committee for more updates and information.

JANUARY 7, 2005

John and his legal team will make a brief appearance in court on January 11, 2005, where Supreme Court Justice Bennett will announce her decision on certain arguments which were raised during earlier hearings. This appearance is only expected to last a few minutes.

John's extradition hearings will commence on January 25, and are scheduled to continue until February 2. All of you who can attend to show support are welcome. As before, the hearings will take place at BC Supreme Court, 800 Smythe Street, Vancouver, BC.

Arlo Looking Cloud presents argument for appeal

The oral argument for Arlo Looking Cloud's appeal will take place on January 10, 2005, in St. Louis. This was originally scheduled for St. Paul, but has now been relocated to St. Louis.

An oral argument will be presented before a three judge panel who will render a decision on the direct appeal. The focus of the argument will be Government misconduct in the manner in which statements were obtained, and the ineptness of Arlo's trial lawyers in challenging such statements. The actual appeal process will last for several months following.

As you probably already know, December 6, 2004 was the first day of extradition hearings for John Graham. Following are updates from those hearings, for your information.

Day 1: December 6, 2004

In the morning prior to court, John was feeling some stress but was also very positive to be walking the path of truth. He was surrounded my many friends and family members, some from the local area and others who flew to Vancouver to observe the hearings and offer their support.

During the first day, John's lawyers and the Crown began presenting their positions before BC Supreme Court Justice Bennett. John's lawyers reviewed the details of his arrest with an officer on the witness stand, examining how John was first detained on a false accusation of harassment. While in police custody on this charge, John was allowed to contact a lawyer -- which he did. After this call, however, John was then informed of a new charge relating to the US indictment for the murder of Anna Mae Aquash. The original complaint evaporated and was replaced solely by this new charge. After being informed of the new charge, John was not asked if he wished to contact legal counsel -- an apparent violation of his rights, as John was now in further jeopardy -- and was further interrogated.

Another witness for the Defense was a woman employed at the local police detachment where John was required to check in on a daily basis. Not only has John been checking in consistently and reliably, but he had also made friends of the staff and had sold one of his hand-crafted willow chairs to a woman working there. John has been crafting such items to help subsidize his income, since the restrictions of house arrest make it nearly impossible to find other employment.

Day 2 - December 7, 2004

The second day was devoted to a few procedural matters, with a great deal of time spent reviewing the arrest procedures and the apparent violation of John's rights once informed of the charge relating to the US indictment.

At the conclusion of the second day, the hearings were adjourned until Thursday at 10:00 AM.

Day 3 - December 9, 2004

The day began with the lawyers for John Graham continuing their review of the arrest procedures and possible violations of John's rights.

A new argument presented centered around the identification and a photograph of John taken at the time of arrest in Vancouver. The photo was faxed to the US for identification. The individual which the US relied upon to positively identify the photo was John Trudell, a witness for the prosecution. John Trudell looked at the photo and identified it only as "Graham". He never referred to the person in the photo as "John Boy," as he had consistently in the past. Furthermore, the arrest sheet sent from Vancouver described the man in custody as Caucasian, 87 kg in weight, and 188 cm tall -- several pounds and inches more than John's weight and height, not to mention the oversight that John is clearly an Indigenous man.

Subsequently, the judge ruled the booking sheet inadmissible.

This raised many important questions about the procedures during the arrest. This also led to questions about how the US had obtained the original description of John Graham, and how they determined it was the same description as the "John Boy" described in much of the documentation. It appears as though the US may have sent agents north to Canada, to meet with John and obtain identifying information, and then return to include this information in a warrant for John's arrest. This would suggest they had no idea who they were looking for, and supports John's assertion that agents had repeatedly come to the Yukon and threatened him to name a killer responsible for Anna Mae's death, and that if he did not, they would "ruin his life".

Once John was arrested, the US and Canadian authorities, and John Trudell, concluded the Canadian authorities had arrested the right man -- even though much of the information describing John on the arrest sheet was incorrect.

John's lawyers also questioned much of the case law which the Crown was relying on to defend themselves against apparent procedural improprieties. It was expressed by John's lawyers that the case law was outdated, and had since been replaced with cases that had set new precedence supporting an individual's rights as balanced with the rights of society -- in John's case, the balance had shifted much too far from an individual's rights as enshrined in the Canadian Charter or Rights.

Near the end of the day, the Crown asked to know if John's lawyers intended to request a Stay of Proceedings, to prepare their position against such a request. It was confirmed that John's lawyers did intend to request a Stay of Proceedings, based in part on an affidavit provided by the legal counsel for Arlo Looking Cloud, the credibility and reliability of another witness, and new information about the availability of another witness which raised questions about the US' certification of evidence.

Arlo Looking Cloud is the only alleged eye witness the prosecution intends to call, to testify against John Graham in a US trial. The affidavit, however, declares that Arlo will refuse to testify against John should such a trial occur (as he demonstrated recently when refusing to testify before a Grand Jury). Many believe Arlo was coerced into providing false testimony against John, which inadvertently led to his own conviction earlier this year. Now that Arlo is no longer under the influence of alcohol and other drugs (as he admitted to being in his videotaped "confession") and is now being represented by unbiased and qualified legal counsel, Arlo has recanted much of his previous testimony. Accusations of drugs and alcohol being provided by the original authorities from the time of his arrest persist.

Court was then adjourned for the day.

The Final Week - Days 4, 5, 6 and 7

Some thoughts on extradition...

As we entered the final week of hearings, we expected to conclude before the week's end. Without the ability of John's lawyers to examine the US Government's evidence (as restricted under US - Canada extradition law), we are considerably limited in what weaknesses, abuses of process, and untruths we can expose.

Given the current policy for extradition between the US and Canada -- where the two countries have agreed essentially on a handshake, a brief procedural review and a rubber stamping of documentation for an extradition -- there is very little we are able to question at this stage. The lawyers for John have raised many important issues during these hearings, and these could prove much more useful during an appeal to the Supreme Court and the Minister of Justice. We are nevertheless fully prepared for the possibility that the judge may have no choice but to issue an order of extradition, and recognize that this would only conclude the first round.

The problem with this "friendly" agreement between the US and Canada, is that it assumes the US Government will always act in good faith when prosecuting a case against a Canadian citizen. However, history reveals many instances where the US Government has engaged in wrongful and malicious prosecution against Native Americans, notably those involved with the American Indian Movement during the 1970s.

For this reason, we believe it is unconstitutional that the Canadian Government should represent the United States in such a preceding, rather than representing the rights of the Canadian citizen being sought, and places the Canadian Charter of Rights and Freedoms and Canada's very sovereignty into question.

In our opinion, when a foreign nation -- let alone the most powerful nation on Earth -- has a documented history of prosecutorial abuse again Native Americans, they must not be allowed to extract a citizen from Canada without disclosing the evidence. The Canadian Government must defend the individual's rights and freedoms against the foreign government's claim, should they be potentially false and malicious -- as is evident in the charge again John Graham.

However, during these hearings, we see the Crown repeatedly reminding the judge that she has no authority to question the "reliability and credibility of the evidence" beyond the summary, even though much of it has been proven to be unreliable or unavailable. Their position is that a Canadian judge can not have discretion over the reliability of evidence, without having a detailed knowledge of the US legal system.

As someone watching from a Canadian perspective, it is an insult to Canadian sovereignty -- not to mention aboriginal sovereignty -- that the Canadian court which alleges to provide a fair and unbiased venue, has no right to question, or even to view first-hand, the evidence supposedly held by the United States.

John's lawyers continue to refer to existing case law which states that the Canadian judge's role "must not be reduced to 'meaningless'". Precisely what the role of the judge can be, however, seems to be unclear and a point of continuing argument.

We are therefore fully prepared to challenge this existing extradition policy before the Supreme Court of Canada.

Now... on to the developments of the second week

BC Supreme Court Justice Bennett ordered the Crown to obtain detailed information from the US on how they identified John Graham, on the origin of its identifying information, and how it linked that identification to the person known as "John Boy" described in other testimony. The Crown obliged. It is expected to take a couple of weeks to obtain this information from the US.

The judge stated that, while she may not have the authority to rule on the information obtained from the request, the Minister would have more authority to consider it later. This rare order was a clear indication that the concerns expressed by the Defense on the matters of identification do indeed have serious weight, and could assist John's lawyers further on.

The Defense also continued their questioning of the evidence described in the summary, focusing on two points specifically:

1) A witness who was certified by the US as being available to testify, Al Gates, had been deceased for up to nine months prior to his allegedly being certified. This raises questions about the reliability and credibility of the certification process. Obviously, Mr. Gates had not been contacted to confirm that he would testify, because he was not alive at the time. The prosecution asserts that this is only one witness who was not correctly certified. However, the Defense asserts this is evidence that the certification process was not handled with due diligence, and casts doubt on the entire body of evidence as certified by the prosecuting authorities.

John's lead attorney, Terry LaLiberte, went on to accuse the US of fraud and of misleading the Canadian court.

2) Another witness presented in the US summary of evidence who came under question was Frank Dillon. Mr. Dillon has previously stated that John told him he had to "off" Anna Mae. However, the Defense has acquired Grand Jury testimony where Frank Dillon testified that John had never said this, and that John had never used the word "off." The contradictory testimony obviously calls into question the reliability and credibility of this evidence.

John's lawyers assert that Canada "can not extradite on evidence which does not exist, has not been diligently examined, or is inaccurate." They further assert that, since the US is a party to the case before the Canadian court, the court must be prepared to judge the evidence which has come into question.

Following these arguments, the Defense requested the judge consider either a Stay of Proceedings, or that she disallow the evidence provided and certified by the US. Either solution would render this matter closed, and John would not be extradited.

Adjourned

The court adjourned on Thursday for the holiday season, planning to reconvene on January 25, 2005, at which time the information obtained by the Crown regarding how the US obtained identifying information for John Graham will be reviewed. We expect this to require one or two days, assuming no further information is brought before the court.

It is unclear how the judge will rule. Clearly, the Defense has been successful in demonstrating -- even in this extremely restricted extradition venue -- that the case prepared by the US is fraught with inaccuracies, unreliability, and a lack of credibility. Whether BC Supreme Court Justice Bennett deems she has the authority to act on this information will be determined when court reconvenes.

Lawyers file motion to halt Graham extradition
The Province
December 15, 2004

John Graham's lawyers yesterday filed a motion to halt his extradition hearing, saying the U.S. "deliberately or negligently" failed to disclose the collapse of its three key witnesses.

"It is blatantly misleading . . . and shows a lack of diligence, carelessness or a cavalier attitude" by the U.S., Graham's lawyer, Terry LaLiberte, said in B.C. Supreme Court.

Graham, 49, is fighting extradition for the 1976 murder of Annie Mae Aquash in South Dakota. LaLiberte said 80-year-old medicine man Al Gates had been dead for nine months when the U.S. said he was "available for trial." He said witness Frank Dillon has repudiated statements he allegedly made against Graham. Arlo Looking Cloud, who was convicted of Aquash's murder and is appealing, says he will not testify against Graham.

© The Vancouver Province 2004

Graham lawyers want flaws in case explained
The Province
December 16, 2004

John Graham's lawyers want South Dakota Assistant U.S. Attorney Robert Mandel to explain in court the gaps and flaws in the U.S. bid to extradite Graham.

The extradition hearing for Graham, 49, wanted by the U.S. for the 1976 murder of Annie Mae Aquash in South Dakota, was adjourned yesterday to Jan. 11. by B.C. Supreme Court Justice Elizabeth Bennett.

"Mr. Mandel is clearly relying on the work of his investigators to put forward to Canada a case that the U.S. says is ready for trial yet we have found not just inconsistencies in the U.S. case but that the evidence appears not to exist," said Graham's lawyer, Terry LaLiberte.

LaLiberte proved medicine man Al Gates had been dead for nine months when the U.S. put forward his name as "available for trial."

Arlo Looking Cloud, the only alleged witness to Aquash's murder, has said the FBI induced him with heroin and alcohol to give a false statement and he will not testify against Graham.

A third witness, Frank Dillon, has denied making an incriminating statement against Graham, saying it was misrepresented.

Mandel said in a letter last Jan. 26 that all "the evidence . . . is available for trial" and sufficient to prosecute.

© The Vancouver Province 2004