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Graham attorneys move to withdraw guilty plea

By Emily Adamson, KECI Reporter, eadamson@keci.com
Published On: Mar 25 2014 06:04:09 PM MDT
Updated On: Mar 25 2014 09:26:16 PM MDT
MISSOULA, Mont. -

Attorneys for Jordan Graham are asking to withdraw her guilty plea.

The Kalispell newlywed pleaded guilty to second-degree murder in December for pushing her husband off a cliff in Glacier National Park last summer. Graham had been married to Cody Lee Johnson for just eight days.

A sentencing hearing was scheduled for Thursday.

Now Graham's attorneys say she should be able to take back her plea after they say the government overstepped the plea agreement.

Senior Litigator Michael Donahoe's argument hinges on the Assistant U.S. Attorneys' sentencing recommendation. He says they won't put the first-degree premeditated charge to rest, despite the Graham's plea to second-degree murder.

"At the sentencing phase the government reneged on its promise and instead decided to argue vigorously in its sentencing papers that defendant acted with both planning and premeditation..." he wrote.

He went on to write, "It is an unlawful process that allows the government to totally avoid any defendant friendly result by the jury but at the same time achieve the most favorable government result by its sentencing argument. That was not the spirit of the plea agreement that the government offered in this case."

Court documents say Assistant U.S. Attorney Zeno Baucus couldn't be reached for comment on his position on the motion to withdraw the plea.

The final decision on whether to allow Graham to take back her plea will come from Judge Donald Molloy. He has not yet filed a response.

Click here to read the motion filed in U.S. District Court Tuesday evening by Graham's attorneys, asking to withdraw the guilty plea. Click here to read the support for the motion.

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If the sentencing hearing does happen Thursday, the guidelines leave Molloy's options relatively wide open.

"In theory Judge Molloy's options are everything from one day to life," said Missoula defense attorney Michael Sherwood.

There is no longer a mandatory minimum sentence. But there are guidelines that can help judge's reach a base point.

For second-degree murder and little to no previous criminal history the sentencing guideline chart lists 235 to 293 months, which is about 20 to 25 years.

But Sherwood emphasized that's just a starting point.

Molloy will have reviewed a presentencing report before the hearing and Sherwood believes he'll have already made up his mind.

"Usually when a judge walks into a courtroom, they've pretty much made a decision," Sherwood said.

Prosecutors asked for a life sentence for Graham or a minimum of 50 years. Graham's attorneys asked for a 10 year sentence.