That’s what federal prosecutors believe happened, according to a new court filing by Graham’s defense team.
“In support of this new theory, the government is awaiting DNA test results being run on a piece of cloth found on a shoal in the river in the same general vicinity as where Cody’s body was recovered,” says the motion by Michael Donahoe, a senior litigator with the Montana federal defender’s office.
But it’s unclear whether the prosecution plans to use this theory at Graham’s murder trial, which is scheduled to start Dec. 9, or whether it is part of what the defense calls a conspiracy to trump up the case and misrepresent evidence to gain leverage in plea bargaining.
Assistant U.S. Attorney Jessica Fehr tells PEOPLE federal prosecutors will have no comment on the remarks in the filing other than whatever they might include in any formal response to the court, which has not yet been filed.
Mishandled Police Interview?
At the heart of the defense’s new filing, on Nov. 8, is a complaint that officials mishandled Graham’s police interview by failing to record all of her statements and by misrepresenting what she said.
According to the motion, Graham – who was released from jail while she awaits trial – told investigators that she and Johnson were arguing, he grabbed her arm and her jacket, said, “Let go,” and then she pushed him with both hands without realizing she would be pushing him to his death.
But in the official FBI report, Special Agent Steven Liss made it sound as if there was a break in the scuffle in which Graham “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.”
“This is by far the most damning sentence in the complaint, and the most often quoted in the news media,” Donahoe wrote in the Nov. 8 filing. “However, this statement is a complete fabrication, found nowhere within the recorded statements of Jordan Graham. Jordan clearly told [the interviewer] that the movement to free her arm [and the push] that resulted in Cody falling off the ledge was one continuous motion.”
Donahoe also expresses confusion about the direction of the prosecution’s case. “If … Jordan and Cody were arguing intensely on the ledge, it hardly seems plausible that the argument would cease abruptly so Jordan could apply a blindfold,” Donahoe wrote.
But if the government is indeed going with the blindfold theory, Donahoe said the defense needs more time to prepare.
A judge last month declined requests from both sides to begin the trial in February. An evidentiary hearing is scheduled for Friday.