Federal prosecutors have asked a judge to set a December date for the murder trial of John Graham and Richard "Dickie" Marshall, rather than wait for Marshall's scheduled trial in February.

"This Motion is necessitated due to the age of the case, the preparations that have been made for trial, and that both Defendants remain in pre-trial custody," the motion filed in U.S. District Court on Wednesday said.

Graham, 52, was scheduled to stand trial in Rapid City this week on charges that he killed fellow American Indian Movement activist Annie Mae Aquash, also known as Anna Mae Aquash, 30, in 1975 on Pine Ridge Indian Reservation.

U.S. District Judge Lawrence Piersol canceled the trial last Friday after ruling that the indictment against Graham was insufficient because it did not show that either Graham or Aquash, who were both Canadian citizens and members of Canadian tribes, were members of a federally recognized tribe.

Aquash's family later issued a statement calling the defense's motion "the cruelest of 11th hour heists" by forcing another delay in a case that is already 33 years old.

"Assaulted, raped and murdered in life, Annie Mae's spirit continues to be assaulted and denied justice," Aquash's daughter, Denise Maloney Pictou, wrote.

On Monday, a federal grand jury issued a superceding indictment that charges Graham and Marshall with first-degree murder. The indictment specifically notes that Aquash and Graham both fit the legal definition of "Indian," as does a third co-defendant, Fritz Arlo Looking Cloud.

Graham and Marshall were initially charged in separate indictments. Because they are now listed together they will be tried together unless the judge orders they be tried separately.

Judge Piersol issued an order Wednesday stating that the court could schedule the trial of Graham and Marshall for Dec. 9 if all parties can be ready for trial then. He asked counsel to respond by Tuesday, Oct. 14.

Prosecutors filed a response, saying they had provided all discovery material to the defense attorneys and asking that the trial be set for Dec. 9 for both Graham and Marshall.

Looking Cloud was convicted of murder in 2004 and is serving a mandatory life prison sentence.

Contact Heidi Bell Gease at 394-8419 or heidi.bell@rapidcityjournal.com