Newlywed asks to withdraw guilty plea in husband's murder

2014-03-26T06:00:00Z 2014-10-24T08:21:40Z Newlywed asks to withdraw guilty plea in husband's murderBy KATHRYN HAAKE of the Missoulian missoulian.com

The Kalispell newlywed accused of pushing her husband off a cliff last summer asked to withdraw her guilty plea late Tuesday, arguing the agreement she accepted was “illusory” and a “hollow formality.”

Jordan Graham, 22, was to be sentenced in Missoula’s U.S. District Court Thursday for the July murder of 25-year-old Cody Johnson along a trail in Glacier National Park. It’s now unclear if the sentencing will proceed as scheduled.

First, U.S. District Judge Donald Molloy will have to rule on Graham’s motion to withdraw her guilty plea. If he accepts the motion, a new trial will be scheduled.

If he rejects her motion, the sentencing could continue as planned.

In Tuesday’s motion, federal public defender Michael Donahoe argued that prosecutors “breached the plea agreement” by suggesting in a sentencing memorandum filed last week that Graham murdered Johnson with both intent and premeditation.

That memorandum, and its suggestion that Graham be sentenced to life in prison, rendered December’s plea agreement “nothing but an empty promise” – merely a means by which prosecutors avoided a possible manslaughter verdict, Donahoe said.

Graham accepted the plea agreement near the end of her trial, pleading guilty to second-degree murder. In exchange, prosecutors agreed to drop a first-degree murder charge – and its contention that Johnson’s death was premeditated.

For a first-degree murder conviction, prosecutors needed to prove there was intent on Graham’s part; intent is not required for a second-degree murder conviction.

“By offering and agreeing to accept a plea agreement to second degree supported by an extreme recklessness plea colloquy, the government effectively removed the issue of defendant’s alleged premeditation as an issue in the case,” Donahoe wrote Tuesday.

“That was the entire purpose of the plea agreement,” he added.

Then came the sentencing memorandum, where prosecutors argued that Graham planned the murder of Johnson on the night of July 7 and should spend the rest of her life in prison – or at least the next 50 years.

Graham has admitted pushing her husband of eight days off a cliff in Glacier Park during an argument. She was experiencing doubts about their marriage, she said, and shoved Johnson during a heated exchange.

Her intent was not to kill him, Graham said, but rather an instinctive response to Johnson grabbing her arm.

*****

In his sentencing memorandum, assistant U.S. attorney Zeno B. Baucus honed in on evidence that Molloy expressly prohibited from December’s trial.

That evidence included a long, black cloth found in the vicinity of Johnson’s body, which prosecutors theorized Graham used to blindfold her husband before pushing him off a cliff along Glacier Park’s Loop trail.

Graham also took away her husband’s car keys, prosecutors contended, and removed his wedding ring before the altercation.

Prosecutors again honed in on the “surprise” theory, suggesting that Graham spoke to Johnson of a surprise she had planned for the night of July 7. Friends later said Johnson was excited for his wife to reveal the surprise.

“Cody ultimately experienced a surprise that evening, but it was one from which he did not return,” Baucus wrote in his sentencing memorandum.

On Tuesday, Donahoe said the prosecution’s return to premeditation theories rendered the plea agreement void – and asked the judge to allow Graham to withdraw her admission of guilt.

Prosecutors have not honored Graham’s plea of guilty to second-degree murder, her attorney said. Instead, they remain focused on proving first-degree murder, insisting that the plea agreement “does not adequately reflect the seriousness of defendant’s conduct.”

“By making what should have been its closing argument to the jury in its sentencing papers, the government has furnished a ‘fair and just reason’ to support defendant’s request to withdraw her plea,” Donahoe wrote.

“The government’s plea agreement promise ... is an empty and hollow formality,” he said. “Therefore, the defendant argues that the government’s offer for a plea agreement was and is illusory and in bad faith.”

Reporter Kathryn Haake can be reached at 523-5268 or at kate.haake@missoulian.com.

Copyright 2015 missoulian.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

(26) Comments

  1. Alan H Johnson
    Report Abuse
    Alan H Johnson - March 27, 2014 2:03 pm
    @ BJackson: And you were right! Looks like he split the difference between the 50 to life that the Government sought and the 10 proposed by the defense. She will be in her fifties when she gets out. Of course the withdrawal issue will go to the 9th Circuit.
  2. Tracker
    Report Abuse
    Tracker - March 27, 2014 10:08 am
    Again, THERE WAS NO PLEA AGREEMENT.
  3. imwithu
    Report Abuse
    imwithu - March 27, 2014 10:00 am
    Thanks, BJackson, for clearing that up for me (I'm commenting under my own comment because, for some reason, there isn't an option to reply under yours). Criminal law is so interesting to me!
  4. Ponderosa
    Report Abuse
    Ponderosa - March 26, 2014 6:40 pm
    I see many criminal law and procedure comments. Educational, yes.
    I see personalized perceptions of the girls expressions and conclude indifferent. Perhaps.
    However, from a psycho social view, does the girl always have a flat "affect"? =restricted non- verbal facial expression, and perhaps blunted capacity (especially)for a bizarre incident. Hence dissociated from an aberrant circumstance...maybe too ghastly for a traditional girl to disclose (till now)...hence a minimalist remark to an acquaintance (paraphrased) that marriage is not a happy experience.
    SO Let me throw out a nagging concept...Not wishing to taint the deceased, who cannot speak...but wondering if the girl (now)is willing to speak about the most intimate relational changes (that abuse counselors see) when an abuser traps his quarry? Marriage may slam the trap in an abuser's mind...what kind of kink did this girl endure in just over a week's time? What the hay did the deceased try to introduce on a ledge? Just another view point, people...I could be wrong.
  5. BJackson
    Report Abuse
    BJackson - March 26, 2014 6:32 pm
    Self defense would be a direct response to a direct threat, based on her own statements, there was no direct threat to her life, hence no self defense. With their relationship being short term, it would be impossible to argue abuse, that could justify self defense. Based on her own statements, self defense does not hold up.
  6. BJackson
    Report Abuse
    BJackson - March 26, 2014 6:27 pm
    Alan, if the withdrawal is granted, I am sure there will be another plea agreement, if not, I am sure there will be an appeal, I am thinking this has been set up this way by the defense. Michael is not a stupid attorney, he has played the system.


    Based on what I have heard this evening, I don't think Molloy is going to grant the withdrawal.
  7. imwithu
    Report Abuse
    imwithu - March 26, 2014 3:54 pm
    Doesn't that seem to make the whole scenario sort of suspect? I mean,assuming her story is true, how is it not self-defense and, if it is self-defense, why doesn't she get to use that in her defense. And, since she hasn't been using self defense then it must not have been self defense which would make the whole story false. Right? I don't get it.
  8. Alan H Johnson
    Report Abuse
    Alan H Johnson - March 26, 2014 3:19 pm
    Well, with some experience on the Criminal Justice Act Panel for the Federal Defenders, as you have, I don't think the defendant went into the plea blind on sentencing. The guidelines are there, Michael Donohue is one of the most experienced and respected federal defenders in the state and I'm sure the defendant was fully briefed on what the federal sentencing guidelines say. The US Attorney's office does not usually offer a specific recommendation for sentencing in a plea agreement, also because of the sentencing guidelines
    After the Government's decision to argue sentencing as if she had pleaded to Murder I, I believe defense counsel has to raise that issue in a motion to witdraw the plea. Even if not successful with Judge Molloy, it preserves the issue for later appeal. Molloy could grant the motion. He could also do just a straight guidelines sentence and say that he rejected the Government's Murder I-style argument. But if the judge agrees the argument was in bad faith, a withdrawal of plea might be the best way to prevent the Government from doing this again with someone else.

    This is not about guilt or innocence, it's about the Government playing by the rules. The rules are there to ensure that any citizen gets a fair shake before the court. If the plea is withdrawn, it can still be settled by another plea agreement.
  9. BJackson
    Report Abuse
    BJackson - March 26, 2014 12:59 pm
    Cats Life, my comment is based on over 40 years of arguing cases both in Federal Court as well as State Courts, I believe there is a small chance he may allow the withdrawal, but not much. Knowing Molloy personally, I say again, it will be interesting to see how he rules.


    It would appear, the defense did waive that which they did not previously object to, the court can reject, but as I said, both of these moves have been a calculated risk on the defenses side. Especially in light of the fact, they did enter into a plea agreement without sentencing being discussed.


    In my opinion, the withdrawal request will be denied and she will be sentenced on Thursday, then it will be time for the appeal, which is a given if the withdrawal is not allowed. I don't believe it is a ruse, but it is a calculated risk as well as calculated move on the defenses part. To carry this out for a very long time.
  10. Cats Life
    Report Abuse
    Cats Life - March 26, 2014 12:20 pm
    "... it will be interesting to see how the Judge rules on this request."

    ____________________________________________________

    There is a 100% (that is zero) chance Molloy will allow her to withdraw her guilty plea. They went through an entire trial (except reaching verdict). There is no way he will allow this charade to happen a second time. In addition, there does not appear to be any request to the Court made by the defense that the prosecution be prohibited from arguing premeditation at sentencing. The defense appears to have waived that which they did not object to. And clearly, the Court is not required to accept the prosecution claim of premeditation.

    The Court can rectify this situation quite simply: order that the prosecution remove the premeditation argument from their memo. The defense cannot show prejudice in light of the fact that the Court can sentence her to life in prison on other grounds, and does not need to rely on premeditation as justification for a lengthy sentence.

    This is a ruse by the defense, and the Court will be quick to recognize it as such.
  11. BJackson
    Report Abuse
    BJackson - March 26, 2014 11:12 am
    That is possible in a State case, but not in a Federal case, this case is Federal and their guidelines are completely different than a State case.
  12. SS396CHEV
    Report Abuse
    SS396CHEV - March 26, 2014 11:03 am
    If I was standing on top of a cliff and someone grabbed my arm, the last thing I would do is push them off. The risk would be, I might go over the cliff with that person.
  13. BJackson
    Report Abuse
    BJackson - March 26, 2014 10:13 am
    As they were having difficulty is showing premeditation at the trial, it is a very calculated risk on the defenses part at this point in time to request a withdrawal of the plea. The prosecution has been over zealous of their wording in the sentencing memo, it will be interesting to see how the Judge rules on this request. I don't believe the plea agreement included any recommendations as to sentence when it was entered. Entering in a plea agreement was a calculated risk that does not seem to have panned out the way the defense was hoping.
  14. BJackson
    Report Abuse
    BJackson - March 26, 2014 10:05 am
    Walter, as they are Federal Public Defenders, you and I are paying for them.
  15. BJackson
    Report Abuse
    BJackson - March 26, 2014 10:04 am
    The defense did try to bring up self-defense and she did make a claim of self defense during the interview process.
  16. imwithu
    Report Abuse
    imwithu - March 26, 2014 9:07 am
    From what I have read, the prosecution doesn't have enough evidence to show premeditation. I'm not saying it wasn't premeditated but I don't think the evidence is there. No one is disputing that the couple was having a discussion about her unhappiness in the marriage. It's easy to imagine that kind of conversation leading to one of the spouses taking their ring off and gving it back. Also, the black cloth could have come from anywhere as that is a heavily trafficked trail. It could have fell out of a hiker's pack.

    So, I think that the prosecution should focus on the facts. And, from what I can tell, the facts show that Jordan has no remorse for what she did. When a person with a conscience accidently pushes someone off a cliff, they feel really bad about it. She has not shown has conscience - or the sense that she understands the difference between right and wrong or the value of a human life . And, for that, she should be supervised for the rest of your life.

    Another thought I had - if Cody grabbed her arm in a way that she felt threatened enough to swing her arm back and hit him hard enough to go over the edge, why isn't she claiming it was self-defense?
  17. gg9668
    Report Abuse
    gg9668 - March 26, 2014 7:26 am
    If she is allowed to withdraw her plea I hope she gets convicted of the 1st degree charge and they throw the book at her. She needs to be locked up for life. She has never shown any remorse for murdering Cody and continues to try any trick to avoid taking responsibility. She is a heartless cold-blooded killer and should not be allowed to ever be free again. Lock her up and throw away the key!
  18. idiot state
    Report Abuse
    idiot state - March 26, 2014 7:19 am
    Clogging up the legal system and wasting the Court's time. Time and money which this evil "human" doesn't deserve.
    If this "human" is granted a new trial, then the ultimate punishment will be an option again. A very good and just option.
    The fact that the young man's parents continue to have to go through this, and possibly a new trial, is appalling. Put this woman away for good.
  19. walter12
    Report Abuse
    walter12 - March 26, 2014 6:54 am
    Wow, this woman has gall along with being evil. By the way who is paying for all these crooked lawyers?
  20. Roger
    Report Abuse
    Roger - March 26, 2014 6:41 am
    Anything less than life without parole is not justice for the cold, calculating killer.
  21. Objective observer
    Report Abuse
    Objective observer - March 26, 2014 6:40 am
    Too late Jordan. We'll see you in about fifty years.
  22. MTminded
    Report Abuse
    MTminded - March 26, 2014 6:35 am
    Her motion should be granted, with one condition: she should be facing the death penalty if convicted.
  23. crazedwalker
    Report Abuse
    crazedwalker - March 26, 2014 12:10 am
    Actually, if she gets a new trial, DEATH is back on the table.
  24. Soccer is REAL FOOTBALL
    Report Abuse
    Soccer is REAL FOOTBALL - March 25, 2014 10:03 pm
    20 yrs max, 10 suspended.
  25. dsrobinsMT
    Report Abuse
    dsrobinsMT - March 25, 2014 9:23 pm
    Her picture is very revealing. She is a cold hearted murderess who clearly planned her husband's murder well in advance. Now she is trying to avoid the necessary penalty.
  26. Greg Strandberg
    Report Abuse
    Greg Strandberg - March 25, 2014 8:06 pm
    So she's getting life.
Missoulian Civil Dialogue Policy

Civil Dialogue Policy for Commenting on Missoulian.com

We provide this community forum for readers to exchange ideas and opinions on the news of the day. Passionate views, pointed criticism and critical thinking are welcome. Comments can only be submitted by registered users. By posting comments on our site, you are agreeing to the following terms:

Commentary and photos submitted to the Missoulian (Missoulian.com) may be published or distributed in print, electronically or other forms. Opinions expressed in Missoulian.com's comments reflect the opinions of the author, and are not necessarily the opinions of the Missoulian or its parent company. See the Terms of Service and Privacy Policy for more information.

Our guidelines prohibit the solicitation of products or services, the impersonation of another site user, threatening or harassing postings and the use of vulgar, abusive, obscene or sexually oriented language, defamatory or illegal material. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual orientation, disability or other classification. It's fine to criticize ideas, but ad hominem attacks on other site users are prohibited. Users who violate those standards may lose their privileges on missoulian.com.

You may not post copyrighted material from another publication. (Link to it instead, using a headline or very brief excerpt.)

No short policy such as this can spell out all possible instances of material or behavior that we might deem to be a violation of our publishing standards, and we reserve the right to remove any material posted to the site.

Add Comment
You must Login to comment.

Click here to get an account it's free and quick

The 4:06 – trending topics and hot headlines

Missoulian digital director Emily Foster presents the latest news you need to know about today's headlines …

The 4:06 – trending topics and hot headlines

The 4:06 – trending topics and hot headlines

Missoulian digital director Emily Foster presents the latest news you need to know about tod…

The 4:06 – trending topics and hot headlines

The 4:06 – trending topics and hot headlines

Missoulian digital director Emily Foster presents the latest news you need to know about tod…

The 4:06 – trending topics and hot headlines

The 4:06 – trending topics and hot headlines

Missoulian reporter Martin Kidston presents the latest news you need to know about today's h…

The 4:06 – trending topics and hot headlines

The 4:06 – trending topics and hot headlines

Missoulian reporter Kate Haake presents the latest news you need to know about today's headl…

Yellowstone by Moonlight - Yellowstone National Park Time-Lapse

Yellowstone by Moonlight - Yellowstone National Park Time-Lapse

Yellowstone by Moonlight: A time-lapse journey through Yellowstone National Park under the n…

The 4:06 – trending topics and hot headlines

The 4:06 – trending topics and hot headlines

Missoulian digital director Emily Foster presents the latest news you need to know about tod…

The 4:06 – trending topics and hot headlines

The 4:06 – trending topics and hot headlines

Missoulian digital director Emily Foster presents the latest news you need to know about tod…

The 4:06 – trending topics and hot headlines

The 4:06 – trending topics and hot headlines

Missoulian reporter Kate Haake presents the latest news you need to know about today's headl…

The 4:06 – trending topics and hot headlines

The 4:06 – trending topics and hot headlines

Missoulian reporter Martin Kidston presents the latest news you need to know about today's h…

Les Schwab

Deals & Offers

loading...

Search our events calendar