Defense claims government conspired against newlywed

Premeditation charge could hinge on blindfold theory

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Both the prosecution and defense teams in the Jordan Graham murder trial filed reams of documents in federal court in Missoula on Nov. 8 which not only indicate strategies that may be employed by the lawyers but new information about what might have happened when Graham’s newlywed husband died.

Graham, 22, has admitted that she pushed Cody Johnson, 25, off a cliff along the Loop Trail in Glacier National Park on July 7, eight days after they were married, but her federal public defender, Michael Donahoe, maintains Johnson’s death was an accident.

Now the defense team says Graham is a victim of a conspiracy involving government attorneys, local police and the Federal Bureau of Investigation who colluded to deprive her of due process and a fair trial.

Graham faces charges of first-degree murder or second-degree murder and making false statements. Her defense team now seeks dismissal of the full indictment and the first-degree murder charge, suppression of certain evidence, and/or the denial of the prosecution’s right to present certain arguments at trial.

Donahoe claims the government “selectively preserved evidence by recording only those portions of the defendant’s interrogation it felt would benefit its case” and “presented incomplete evidence to the grand jury which rendered it false.” No part of Graham’s July 16 interrogation was video recorded despite taking place at the Kalispell Police Department, where previous interviews of Graham had been video recorded, he claimed.

The defense also accuses prosecutors of seeking a first-degree murder charge in retaliation for Graham exercising her constitutional entitlement to argue for bail and subsequently being released, and that the premeditated murder charge was filed in order to gain an advantage in plea deal negotiations.

One of the most unusual disclosures to emerge from the Nov. 8 filings is the prosecution’s theory that Johnson might have been blindfolded before he fell off the cliff.

“On Oct. 25, 2013, in a telephone conference with defense counsel, government counsel told the defense for the first time that premeditation may be proved because the government now believes Jordan placed a blindfold on Cody before pushing him off the ledge,” Donahoe wrote.

Graham allegedly referred to a blindfold during a July 17 interview by FBI Agent Stacey Smiedala. She told Smiedala that on the day Johnson died, the couple had gone to church and then to Dairy Queen, where she said she discussed a big surprise for Johnson with his friends.

“I could tell that he just needed a break and so he always wants all of his friends to be around him and I just wanted to plan a big barbecue with all his friends involved and just kind of surprise him and show him that, you know, I was still there for him and I loved him,” Graham said. “I wanted to do something for him.”

But when they returned home, the couple got into an argument about their marriage. Graham claimed Johnson held her down, never hitting her but controlling her movements. That’s when they decided to drive to Glacier Park and go for a walk.

While walking near the cliffs along the Loop Trail, Graham told Smiedala, Johnson began bragging about not being afraid of the cliff and said, “I could do this with a blindfold on.” She said she was growing frightened about him falling when Johnson grabbed her arm and she pushed back, causing him to fall.

That story seems to contradict statements by one of Johnson’s friends, Levi Blasdel, who has spoken publicly about Johnson’s fear of heights.

Possible evidence of the blindfold theory includes a piece of cloth found near Johnson’s body that was sent to the FBI’s DNA lab in Quantico, Va. about 10 weeks after it was discovered. Donahoe said the defense has yet to be furnished with a DNA report.

Among the few motions filed by the prosecution is one seeking to continue the trial date from Dec. 9 until February to allow time for DNA testing on the cloth. DNA results are expected to be back in the Flathead within 30 or 40 days.

The defense also raised issues about Smiedala’s interviewing techniques. Graham said in an affidavit that Smiedala put his chair so close to hers their knees were touching, and that he put his hand on her bare knee when she was wearing shorts.

She also said Smiedala repeatedly asked her if she had been angry when Johnson fell off the cliff and told her “he was going to treat me just like his daughter.” Graham said she was “shocked” when she read the Sept. 9 complaint and saw how Smiedala had changed what she said in the interview.

“I never told Agent Smiedala that I started to walk away and then decided to turn around and push Cody off the ledge with two hands,” Graham said in the affidavit, “Those were his words. That is not what happened.”

Donahoe called the July 16 interview an “ambush.” He says Smiedala was chosen for his specific skills and psychological techniques and that Graham was summoned to the police department without being told “she was going to be subjected to a psychological interview by a skilled FBI agent.”

The failure to record all of Graham’s statements was a “grand government strategy designed to avoid creating a complete electronic record of the interrogation,” Donahoe said, adding that Smiedala had isolated “key words that would at a minimum support a voluntary manslaughter theory.”

Furthermore, the defense claims, the prosecution did not request that the initial complaint be sealed because the case was expected to attract national media attention. In a Sept. 13 hearing, Donahoe said it seemed peculiar that instead of just going to a grand jury, the prosecution launched their case through a complaint, “the virtue of the complaint being that the affidavit would be published.”

“And all of that got played in the press in news cycle after news cycle after news cycle,” Donahoe said.

Despite Graham’s later statements that she had passed a polygraph test, FBI Agent Steven Liss later testified that no actual polygraph was ever administered.

According to Assistant Federal Defender Andrew Nelson, the defense team has received from the prosecution nearly 9,000 pages of discovery, about 20 hours of video and 4,146 images, and the names of nearly 87 witnesses the prosecution may or may not call.

But Nelson notes that prosecutors have indicated they may seek to disclose new scientific evidence and potential expert testimony after the Oct. 31 discovery deadline imposed by U.S. District Court Judge Donald Molloy.

Molloy has scheduled a Nov. 15 evidentiary hearing and set a Nov. 27 deadline for submitting any plea agreements.