MISSOULA, Mont. - Last-minute documents are being filed in the case against a Kalispell newlywed accused of pushing her husband off a cliff.
The most recent order filed in the case addresses an ongoing concern about a portion of an interrogation by an FBI that wasn't recorded. During that interview Jordan Linn Graham allegedly admitted she was there the night her husband Cody Lee Johnson fell to his death.
Prosecutors alleged Graham intentionally pushed Johnson off a cliff in Glacier National Park in July, after the two got into an argument. They had been married just eight days.
On July 16, FBI Agent Stacey Smiedala questioned Graham about that night, and for the first time Graham admitted she was there after previously telling investigators Johnson had gone to the park with friends.
The problem defense attorneys have with that admission is that the original statement and an hour and a half of the interview were not recorded.
This week U.S. District Court Judge Donald Molloy weighed in. In the order, Molloy wrote, "...the problem exists because he (Smiedala) chose not to record Graham until he had first shaped her statement by choosing descriptors and language that would allow him to guide her recorded statement..."
Molloy went on to write that this isn't the first time Smiedala used this procedure. Molloy cites two other cases where the agent recorded only small portions of interviews. "...the events of July 16, and the decision to record and not record portions of that interview were not random," the order states.
Molloy also points out the decision to not record the interview isn't illegal because Smiedala was the only person in the room with Graham during the unrecorded interview. Had a Kalispell Police Officer or other law enforcement been present he would have been required under FBI policy to record the interview.
But Molloy's bottom line: "the structure of the interview process on July 16 allows the government to shape the presentation of Graham's statement at trial."
Molloy said if Graham's unrecorded statements come up at the trial jurors will be reminded to weigh the testimony carefully.
In separate documents filed late Tuesday, federal prosecutors disclosed they may call an expert FBI witness who examined a cloth that they say could have been used as a blindfold. Prosecutors only recently announced the cloth found near Johnson's body was being tested for DNA.
The notice says the witness "will explain the mitochondrial analysis of four human hairs embedded in the cloth she conducted and that Mr. Cody Johnson could not be excluded as the origin of three of those hairs."
Graham faces charges of first and second degree murder and a third charge for allegedly lying to authorities about Johnson's disappearance.
The trial is scheduled to start December 9. The deadline to file briefs in the case is Thursday.