Legal jockeying is continuing in the Jordan Graham murder case as the Dec. 9 trial date approaches.

Documents filed this week included an order on a defense motion about alleged improprieties in the preparation of the prosecution’s case as well as a new defense allegation that the prosecution is ignoring court-set deadlines.

The order, issued by U.S. District Judge Donald Molloy, indicates special instructions may be given to the jury about a partially recorded interview of Graham by a Federal Bureau of Investigation agent nine days after the incident that defense attorneys argue was inappropriately conducted.

Graham is charged in U.S. District Court with first-degree murder, second-degree murder and making false statements for allegedly pushing her new husband, 25-year-old Cody Johnson, off a cliff in Glacier National Park on July 7, then repeatedly lying to law enforcement about what happened.

Graham’s attorneys have repeatedly argued that the July 16 interview was conducted by FBI Agent Stacy Smiedala in a way meant to shape her testimony. They specifically allege that Smiedala intentionally guided Graham during an unrecorded portion of the interview so that the subsequently recorded summary interview would create the narrative he wanted.

Molloy ruled that Smiedala’s actions did not rise to the level of anything illegal, but that 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, or to impeach her recorded statement if she did not follow script or his word choice.”

That, he wrote, pits his credibility against hers.

“The procedure employed by the FBI in interviewing Graham creates serious questions concerning the potential for shaping or manipulating interview evidence to fit the prosecution’s perspective about the events that took place at the ‘Loop’ in Glacier National Park,” Molloy wrote.

Molloy also noted similar issues involving Smiedala in prior cases, including one case where he interviewed a defendant for an hour and a half before recording only the last five minutes as a “summary of statements made.”

“Although the concern in [the prior case] was voluntariness — which is not at issue in the present case — the similarity between the interview procedures demonstrates that the events of July 16th and the decision to record and not record portions of that interview were not random, even to the point of Agent Smiedala using female officers as part of the process,” he wrote.

“Although this process may be permissible at the investigatory stage,” Molloy continued shortly thereafter, “the attempt to use this strategic maneuver by shaping a recorded interview impacts the reliability and fairness of evidence presented to the jury.”

Molloy ruled that the most appropriate response is to provide a cautionary instruction to jurors. He provided a possible wording for such an instruction.

“The questions and statements made by law enforcement in any recording are not evidence,” the proposed instruction read. “If a member of law enforcement testifies in court, he or she is a witness and the statements he or she makes on the stand are evidence. However, in any recorded interview questions by an agent, like those of an attorney, are not evidence and may only be considered to understand the context of statements made by the defendant.”

Molloy denied requests by the defense to dismiss the indictment or dismiss the first-degree murder charge.

Defense Attorney Michael Donahoe has also filed opposition to a prosecution filing that it intends to present evidence that Graham has previously fabricated allegations of abuse against former boyfriends and that she made statements in the weeks leading up to her wedding to Johnson that she could murder her mother and stepfather.

Donahoe argues that, while the document claims it is only a notice of evidence the prosecution intends to present, it should actually have been a motion seeking permission to introduce the evidence and is thus late, since all such motions should have been filed by a Nov. 8 deadline.

His response to the document also shed light on how the supposed statement by Graham regarding her mother and stepfather were collected.

According to Donahoe, a 16-year-old girl was told to pretend to be Graham’s friend to get her talking about Johnson and to report back everything she learned. He later said the girl was being used as “a sort of human webcam to gather dirt on the defendant” and provide that information to law enforcement.

The person who then reported the third-hand information reportedly shared her fear that Graham would kill her mother and stepfather before killing that person and the person’s two adult children.

Donahoe wrote that the interview including the third-hand information and the fears of further murders is on video and can be provided to the court.

“Considering that the source of defendant’s alleged threats against the parents is part of a circle of people set on vilification of the defendant, extreme caution should be exercised here,” he wrote. “It would be very confusing to have to air before the jury a scenario that includes, at a minimum, a youngster who was being used as a tool by a pair of misguided adults determined to convict the defendant by rumor or innuendo.”

Donahoe also argued both the alleged statement and the supposed allegations of former abuse were irrelevant, and that the alleged threat was not reported right away, indicating it was not a legitimate threat.

Reporter Jesse Davis may be reached at 758-4441 or by email at jdavis@dailyinterlake.com.