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An attorney representing the Kalispell bride who pleaded guilty last year to pushing her husband off a cliff in Glacier National Park has filed an appeal, saying prosecutors twisted the truth during trial and pulled a “bait and switch” to win a plea for a greater crime.

In his appeal to the 9th U.S. Circuit Court of Appeals, attorney Michael Donahoe of Helena further argued that prosecutors withheld evidence in their ambition to win a murder conviction against Jordan Linn Graham for the death of her husband, 25-year-old Cody Lee Johnson.

Donahoe is asking that Graham's second-degree murder conviction be reversed and that she instead be tried for manslaughter.

“The government’s effort from beginning to end was nothing but a kaleidoscopic set of theories in search of evidence,” Donahoe wrote in his 122-page appeal. “Evidence the government was willing to distort and shape to suit its purposes.”

Prosecutors with the U.S. Attorney’s Office in Missoula said they weren’t free to discuss the appeal. They have 30 days to file a response and will make their comments in their public filing, they said Friday.

Donahoe said that what prosecutors initially shaped as a heated marital discussion that involved a push was soon billed as an elaborate deception by Graham to “entice Mr. Johnson to the ledge in order to cast him to his death after the application of a blindfold.”

During trial, Graham said she was having second thoughts about marrying so young and that she took her husband to Glacier Park on July 7, 2013, to discuss it. The two climbed over a retaining wall on Going-to-the-Sun Road and stopped at the ledge below.

It was there, Graham told the court, that she expressed her marital unhappiness. An argument followed during which Graham said Johnson grabbed her arm. She brushed his hand away and pushed in a moment of anger, then saw him go over the edge.

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In recently unsealed documents cited in Donahoe’s appeal, police said they discovered a black cloth 1,000 feet downstream from where Johnson’s body was found. It would become central to prosecutors’ argument that Graham planned to kill her new husband.

“In preparation for the grand jury indictment of the defendant, law enforcement recognized the potential significance of the cloth,” court records say. “In addition to being a conspicuous piece of evidence at an otherwise clean crime scene in Glacier National Park, the defendant had made statements to law enforcement during her July 16, 2013, interview that potentially implicated the cloth that was recovered.”

But Donahoe said the discovery of the cloth didn’t surface until grand jury preparations were made in October 2013. That was seven weeks after Graham was arrested and three weeks after she was indicted, he said.

The presentation of the cloth came in the form of an attachment in the government’s motion to continue trial. Donahoe said there was no evidence that their “blindfold theory” was included as probable cause in their argument of deliberate homicide.

“This matters for several reasons, chief among them being that it raises the question of whether this court (ever cared) what the grand jury was told,” Donahoe wrote. “To appreciate the gravity of this question and to answer it affirmatively – that yes, the Court should care – is central to the resolution of this appeal.”

Donahoe said the court also committed several errors throughout the trial, including with regard to Graham’s acceptance of responsibility. In his sentencing, U.S. District Judge Donald Molloy said Graham had failed to show remorse for what she did.

But Donahoe disagreed and cited several moments when Graham did show remorse, including her “heartfelt apology” to Sherry Johnson, her mother-in-law, and several other statements she made throughout the trial.

“Things were not supposed to be this way,” Donahoe quoted Graham as telling the judge. “And I once again am just truly and deeply sorry.”

He suggested Graham was punished “vindictively” when prosecutors upped the charges to include murder. Donahoe believes they did so out of retribution after Graham successfully argued for bail over their objections.

Donahoe also said Graham’s police interrogation wasn’t recorded in its entirety, and that the “eleventh-hour reliance” on the blindfold theory raised serious concerns.

“The combination of the government’s failure to record appellant’s interrogation in its entirety, its willingness to distort her July 16th statement and punish her for obtaining bail – together with the government’s eleventh-hour reliance on the ‘blindfold’ theory – each and all raise very serious concerns,” Donahoe wrote.

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Reporter Martin Kidston can be reached at 523-5260, or at martin.kidston@missoulian.com.

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