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Jordan Linn Graham, left, enters federal court in Missoula in October for her arraignment on first and second degree murder charges for allegedly pushing her husband of eight days, Cody Lee Johnson, off a cliff in Glacier National Park killing him.

A Kalispell bride accused of pushing her husband to his death in Glacier National Park in July may have blindfolded him first, prosecutors contended in U.S. District Court on Friday.

“Oh, come on,” U.S. District Judge Donald Molloy said in disbelief during the court hearing, at which prosecutors asked to delay the trial until February.

Molloy said he’s inclined to decline that request and called the hypothesis that 22-year-old Jordan Linn Graham blindfolded 25-year-old Cody Johnson before his death “rank speculation.”

Assistant U.S. Attorney Zeno Baucus told Molloy prosecutors are awaiting DNA test results on a piece of fabric found 1,000 feet from Johnson’s body, where he fell from The Loop trail, just off Glacier Park’s Going-to-the-Sun Road.

Nuclear DNA test results from a lab in Quantico, Va., are expected soon on the cloth, which was found in water, Baucus said. But mitochondrial results likely won’t be available until December.

Because only two people were involved, and only one is still alive, prosecutors must bring circumstantial evidence to bear, he said.

But if prosecutors did not tell grand jury members about the blindfold and their hypothesis, then Graham is being tried for murder on an entirely new theory, said Andrew Nelson, the woman’s assistant federal defender.

Delaying the trial would benefit the defense, Baucus countered, saying that Graham previously waived her right to a speedy trial and extra time would help both sides prepare to argue the complex case.

If DNA results came back negative for either Graham or Johnson, any connection would be ruled out, also benefiting the defense, Baucus added.

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However, defense attorneys argued prosecutors knew about the blindfold during a pretrial conference and never mentioned it – and now the deadline for discovery has passed.

While prosecutors called defenders to alert them to the piece of evidence and its testing 10 days before the discovery disclosure deadline, defense attorneys still do not have the results and cannot do their own testing or prepare an expert witness, Nelson said.

The blindfold is not the only piece of discovery that came after the Oct. 31 deadline imposed by Molloy, and defense attorneys requested that items disclosed after the deadline be excluded from evidence in an earlier motion, but Friday asked only that the trial itself not be delayed.

If DNA from Graham or Johnson is found on the cloth, prosecutors would tie it to several of Graham’s statements, Baucus said.

In recorded statements taken July 16, Graham said she told Johnson she didn’t want to hike the trail. “And he said, I could do this with a blindfold on,” court documents show.

Graham also stated Johnson never removed his wedding ring. However, he was found without a ring on his hand, Baucus said. The couple were married eight days before Johnson’s death.

Additionally, Johnson is shown driving in a security photo of the couple’s vehicle entering the park the night of July 7. If there were only one set of keys, how did Graham get them to drive home? he asked.

The statements, keys and ring are evidence; the blindfold theory is speculation that DNA testing won’t necessarily make into material evidence, Molloy maintained, ordering prosecutors to divulge evidence and a witness list – pared down from the current list of more than 80 – to defense attorneys as soon as possible and no later than Dec. 5.

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Also during Friday’s court hearing, Molloy:

• Did not rule on a motion in limine by the defense to exclude laypersons from testifying about Graham’s mental state.

• Granted a motion in limine by the defense to exclude nude photos of Graham and Johnson during the trial.

• Did not rule on a motion in limine by the defense to exclude graphic autopsy photos from the trial. Defense attorneys said the images inherently have the ability to prejudice jurors, while prosecutors said the images will corroborate their theory that Graham intentionally pushed Johnson from behind.

• Granted a motion in limine by the defense to prohibit the doctor who performed the autopsy from commenting on Graham’s mental state.

• Did not rule on a motion in limine by the defense that text messages be excluded because of differing records of the mobile provider and prosecutors. Defense attorneys said that the incomplete record is troublesome, while prosecutors said they believe Graham deleted data from her phone before authorities reviewed its contents.

Graham will face charges of first-degree and second-degree murder, as well as a third charge of making false statements to law enforcement officers during the trial, which remains scheduled to begin Dec. 9.

If convicted of first-degree murder, Graham faces mandatory life imprisonment. The second-degree murder charge carries a maximum sentence of life in jail. Both charges also carry a $250,000 fine and five years of supervised release.

Jurors could convict Graham of either murder charge, but not both, or could find her not guilty of both.

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

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