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A Kalispell woman accused of murdering her newlywed husband took the witness stand Friday, admitting that she pushed him off a cliff in Glacier National Park, but insisting “it was instinct” sparked when he grabbed her arm during an argument.

Appearing nervous, Jordan Linn Graham, 22, testified during a hearing on a defense motion to dismiss the federal indictment against her – or, at least, to strike the first-degree murder charge filed following the death of 25-year-old Cody Lee Johnson last July 7.

U.S. District Judge Donald Molloy, though, denied the motion, finding no prosecutorial misconduct.

However, he did order prosecutors to thoroughly look into the performance record of the FBI agent who interviewed Graham as part of the murder investigation. During Friday’s hearing in Missoula, Graham and her attorneys questioned the agent’s actions during a two-hour interrogation last summer.

Johnson’s body was found below a cliff in The Loop area of the park after he was reported missing in early July, just eight days after his Flathead Valley marriage to Graham. Prosecutors say Graham intentionally pushed her husband from behind, while defense attorneys say she acted in self-defense.

Initially, Graham told authorities her husband had climbed into a dark-colored car on the night of July 7, and that she had not seen him alive again. He had gone to the park, she said, to drive around with buddies from out of state.

Then, during a July 16 interview with Kalispell police and the FBI, Graham said she had pushed her husband over the cliff. That disclosure came after the woman told Glacier Park authorities that she had found her husband’s body.

However, the interview in which she first confessed to pushing Johnson during an argument was not recorded.

Because her first admission was not recorded, no one – including the jury – will ever know for sure what happened or what interrogation techniques the FBI agent used against Graham, or their exact conversation, said Michael Donahoe, senior litigator for the Federal Defenders of Montana and Graham’s attorney.

A hearing during which Graham and the agent each recount the interview is not a substitute for the initial burst of emotion and truthfulness from Graham, he said. “This hearing certainly does not re-create that.”

That the interview wasn’t recorded affects the credibility of the FBI agent, but not the admissibility of the statements made during the interview, and defense attorneys will have an opportunity to cross-examine the agent during trial, prosecutors countered.

A polygraph report, written by FBI agent Stacey Smiedala, indicates that Graham walked away from her husband during an argument, when her recorded admissions say otherwise, Donahoe said. Graham was asked to come to the police station for a polygraph test, when the actual intent was to extract a confession from her without ever conducting a polygraph, he said.

***

In the affidavit that supported the government’s initial allegation of second-degree murder, FBI Special Agent Steven Liss wrote that Graham removed Johnson’s hand from her arm after he grabbed her during an argument.

“After removing Johnson’s hand from her arm, Graham stated she could have just walked away, but due to her anger, she pushed Johnson with both hands in the back and as a result, he fell face first off the cliff.”

In her recorded statement, Graham said she wasn’t going to walk away, although she had pretended to walk away in other arguments with Johnson.

Smiedala then asked, “So it was fair for him to probably assume you were probably going to walk away?”

Graham: “Uh huh.”

Smiedala: “Possibly?”

Graham: “Possibly, yes.”

In her recorded statement, Graham said emotions were high but, “I mean, never was planned, no. I would never ever, ever plan on to do that to anybody.”

Later, Smiedala asked her if she lost track of where they were on the mountain.

“Yeah,” Graham responded. “I think I didn’t realize that one push would mean for sure you were over.”

***

On Friday, Smiedala recounted the chronology of the July interview, saying Graham voluntarily came to the Kalispell police station, where a detective introduced her to him.

Graham signed forms consenting to a polygraph exam and indicating that she understood her rights, including that she could stop the questioning at any time. The two sat next to each other while he described the equipment and purpose to her.

Through the pre-test interview that lasted about 45 minutes, Graham was “somewhat quiet but well-behaved and very respectful,” Smiedala told the court.

When he confronted Graham about her being in Glacier National Park with Johnson on the night of his death and said he knew she had been there, she was quiet for a few seconds and then broke into tears, saying that she had been in the park, Smiedala said.

At that point, he tapped her knee in an effort to comfort her and to build rapport and did so several more times, he said. “Take a deep breath, I know you’re upset, and that sort of thing, but never prolonged.”

He added that he didn’t record the portion of the interview to that point because of an FBI policy against recording any polygraph proceedings to prevent techniques from becoming common knowledge. He didn’t decide not to give her a polygraph until after she recounted her story.

When he showed Graham a security footage image of herself and Johnson entering Glacier Park that night, she continued her story, saying that she had the “wedding blues,” that she and Johnson argued and that she “pushed Cody with both hands off of the cliff,” Smiedala said.

He called the police detective back into the room and had Graham demonstrate her motions the night of Johnson’s death, and then recorded the first of two more statements by Graham.

To his surprise, Graham alluded to self-defense, which she had not done during the unrecorded portion of the interview, Smiedala said.

After the first recorded statement, he left and consulted with another FBI agent and returned roughly 15 minutes later with additional questions, which he asked during the second recorded statement.

Graham also drew an image of the area where she allegedly pushed Johnson before the interview process ended at about 6:15 p.m., more than two hours after it began.

***

Graham recounted a different version of the unrecorded interview, saying that she came to the police station voluntarily at the request of the detective, who said she needed to briefly talk with Graham to tie up a few loose ends before going on maternity leave.

Graham also testified that she felt uncomfortable when Smiedala placed his hand on her knee during the interview – although she did not leave the room or tell him to remove his hand – and that she had moved chairs at different times during the interview process.

In a signed declaration, Graham stated that the agent’s hand was on her knee “the entire time I was in the room by myself with Agent Smiedala,” then clarified Friday that his hand was on her knee only for about the five minutes it took for her to recount her story of what happened July 7 the first time.

“It was meaning the time that we were sitting next to each other,” she said.

When confronted about the inconsistency by Assistant U.S. Attorney Kris McLean, she said she didn’t realize the wording or the declaration would be so important.

After the entirety of the unrecorded and recorded interviews, Graham said, the agent “told me that I was in the clear, that I wouldn’t be seeing him again and that I was free to go.”

In her declaration, Graham said she was “shocked” when arrested nearly two months after the interview with Smiedala.

Graham was indicted by a grand jury Oct. 3 and pleaded not guilty to charges of first-degree murder, a lesser included charge of second-degree murder and a charge of making false statement to law enforcement.

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Reporter Alice Miller can be reached at 523-5251 or at alice.miller@missoulian.com.

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