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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.

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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.”

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

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