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Graham Plea

Jordan Linn Graham, center, leaves the Federal Courthouse in Missoula, Montana on Friday afternoon October 4, 2013 after pleading not guilty to first degree murder charges for allegedly pushing her husband, 25-year-old Cody Lee Johnson, to his death in Glacier National Park last July. Johnson is escorted by federal probation officer J.R. Waller and her mother Lindy Rutledge.(AP PHOTOS/MICHAEL GALLACHER/Missoulian)

Prosecutors will not be allowed to use evidence they say shows a Kalispell newlywed accused of pushing her husband to his death in Glacier National Park fabricated allegations of abuse in prior relationships or comments she allegedly made about killing her parents.

Jordan Linn Graham, 22, faces charges of first-degree and second-degree murder and a charge of making a false report to law enforcement regarding the July 7 death of her husband, Cody Lee Johnson, 25.

The couple was arguing on a section of The Loop trail in the park when Graham allegedly pushed Johnson to his death. They had been married just eight days.

Prosecutors have said the push that sent Johnson over a cliff was intentional, while Graham has said it was “instinct” in response to her husband grabbing her arm.

In advance of the trial, which is scheduled to begin Monday, U.S. District Judge Donald Molloy issued a written order prohibiting government attorneys from telling jurors about alleged statements and evidence showing Graham fabricated claims of abuse in previous relationships – and had threatened to kill her parents last summer.

“The government has failed to demonstrate a similarity between the alleged past and present conduct,” Molloy wrote.

The offered evidence is tenuous and would “confuse issues, waste time, and be highly prejudicial but with little meaning,” the judge wrote.

Prosecutors also will not be able to reference a piece of DNA evidence found near Johnson’s body in their opening arguments.

In court documents, prosecutors have said they plan to call two separate scientific witnesses to describe DNA results from a black cloth found below the crime scene and to show that hairs found embedded in the cloth belong to Johnson. They have suggested that the cloth may have been used as a blindfold.

However, Molloy wrote in his order that the court is reserving judgment on the cloth’s admissibility at trial and ordered prosecutors not to “imply, suggest or otherwise make reference to DNA evidence, hair examination or laboratory reports in its opening statement.”

The evidence could mislead or confuse the jury, Molly wrote.

“Despite two hearings and the full opportunity to explain how the evidence is relevant and probative of any issue in the case, the government has yet to come up with anything but conjecture and speculation,” he wrote.

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In a separate order, Molloy ruled that only Graham’s statements from an interview and polygraph exam with an FBI agent would be allowed as evidence during the trial – not the agent’s questions and statements.

By including the agent’s commentary, prosecutors could force Graham to choose between waiving her constitutional right to remain silent or to testify and defend her statements and challenge the agent’s testimony, the judge said.

Any recorded questions by the FBI agent are not evidence and will only be considered for context, Molloy wrote in his decision. Any statements the agent makes while on the witness stand will be considered evidence.

Defense lawyers contend in a pretrial brief that prosecutors have little more than circumstantial evidence to support their charge that Johnson’s murder was premeditated.

“Bottom line: Impeachment is no substitute for substantive evidence,” Graham’s lawyers wrote, asking Molloy to direct a judgment of acquittal on the first-degree murder charge.

If Molloy made a direct judgment, he could do so before the jury trial, or reserve a decision until after the case is presented, according to court documents.

In their own pretrial brief, prosecutors maintain the push was premeditated and wrote that premeditation can occur during the incident at issue. Prosecutors also wrote that circumstantial evidence is pertinent in the case since Graham and Johnson were the only two on the trail at the time of Johnson’s death.

Surrounding circumstances “conclusively demonstrates the defendant’s guilt,” prosecutors wrote.

Graham remained under electronic monitoring and on house arrest at her mother and step-father’s home in Kalispell pending Monday’s trial in Missoula.

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

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