(CNN) - Saying the prosecution has provided no evidence regarding the use of a blindfold -- which could be used to make the government's case for premeditation and thus first-degree murder -- Jordan Linn Graham's attorney, Michael Donahoe, asserts that he is unprepared to defend his client if the trial is held in December as planned.
Donahoe further said he learned of the "blindfold theory" and the DNA testing of "a piece of cloth found on a shoal in the river" only during an October 25 conference call, more than three weeks after it was sent to an FBI lab and 10 weeks after it was collected from the alleged crime scene.
That timing is important, the attorney says, because if the "alleged blindfold" was not sent to a lab until at least October 2, the day before the indictment was filed, it "would suggest the blindfold theory was not put to the grand jury at all."
"If, as is stated in the complaint affidavit, Jordan and Cody (Johnson) were arguing intensely on the ledge, it hardly seems plausible that the argument would cease abruptly so Jordan could apply a blindfold," says Donahoe's brief supporting a motion to dismiss the case. "Frankly at this point the defense has no idea of how the government intends to try this case before the petite jury and likewise has grave doubt about what was put before the grand jury."
Donahoe further slams the FBI and U.S. Attorney's Office for its handling of Graham's interrogation and subsequent report based on that interrogation. The case is being handled federally because the alleged crime happened in a national park.
The report, which alleges an FBI interrogator inappropriately touched Graham's knee during the interview, states that almost an hour and a half of Graham's interrogation was not recorded, despite the necessary equipment being on hand. Failing to preserve such evidence, which includes Graham's first admission that she had previously lied, is a violation of Graham's rights, the defense brief says.
Other parts of the interview were misconstrued or provided without necessary context, according to the papers filed by Donahoe, which labels the government's version of Graham's statement "incomplete, coerced and subject to suppression."
"The whole recorded part of the interrogation was an epic effort by (the interrogator) to isolate key words that would at a minimum support a voluntary manslaughter theory; with enough room for the argument that Jordan could have walked away, which might even support a theory of depraved heart for first- or second-degree murder," the court brief states.
It continues, "At best this synopsis is a decontextualized, exaggerated interpretation that was intended to distort and contradict what Jordan actually reported."
Graham has pleaded not guilty to charges of first-degree murder, second-degree murder and making false statements.
On July 7, just more than a week after they got married, Graham and her husband were arguing at Montana's Glacier National Park, according to court affidavits. Graham said in a court filing that during the argument, Johnson grabbed her by the arm and she removed it, pushing Johnson simultaneously and accidentally sending him off the cliff, according to court documents.
The complaint against her says, "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."
Donahoe's brief takes issue with how the incident was cast in the complaint and accuses the interrogator of twisting her words to fit certain charges. In September, Donahoe said Johnson pinned his wife down during their argument and that when Johnson grabbed Graham's arm, she jerked it away and shoved him "all in one motion, the grabbing and pushing."
Graham did not report the incident. She initially told police Johnson had left in a dark vehicle the night of July 7 with unknown friends. On July 11, according to an affidavit, Graham led a party to a popular spot in the park called "The Loop," where Johnson's body was located and she called authorities.
"Ranger S.P. commented to Graham he thought it was unusual that she had found the body. Graham replied, 'It was a place he wanted to see before he died,' and 'He would come up here with friends to drive fast when his friends were visiting from out of state,' " the affidavit states.
Five days later, Graham came clean during the FBI interrogation, telling the interrogator that she lied but that Johnson's death was an accident, according to the defense brief.
"I was afraid that they weren't going to give me a chance to explain things and they were just gonna kind of put me in handcuffs and take me away right there and say that I had committed a crime or that I had planned this to kill somebody," she said, according to the brief.
The affidavit states that Graham texted a friend the night her husband died, saying she was going to talk to Johnson about having "second thoughts."
Graham texted, "Oh well, I am about to talk to him."
Her friend responded, "I'll pray for you guys."
Graham then replied, "Dead serious, if u don't hear from me at all again tonight, something happened," according to a court document filed in the case.
Wednesday, July 30 2014 6:43 PM EDT2014-07-30 22:43:54 GMT
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