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) MEMORANDUM IN SUPPORT OF
) MOTION TO QUASH SUBPOENA
) OF THEDA CLARK
Theda Clarke has been subpoened as a material witness by the United States in the trial of
John Graham and Vine Richard Marshall. She has been ordered to appear at the U.S. Courthouse
in Rapid City, South Dakota, on May 12, 2009 at 9:00 a.m. Ms. Clarke is incompetent to testify in
Ms. Clarke is 84 years old. She suffers from the late effects of a cerebral vascular
accident (stroke), dementia, diabetes, hypertension, hyperlipidemia, anxiety, depression and arthritis.
Both her long term and short term memory are significantly impaired. Her medications include:
dilatin (seizure), zocor (cholesterol), celexa (anti-depressant), and remeron (anti-depressant/anxiety).
These medications may also impair her memory. Ms. Clarke is currently wheelchair bound and her
transportation to Rapid City poses a risk of falling. Ms. Clarke further suffers from “sundowning.”
As Ms. Clarke tires, her confusion will increase. See attached Affidavit of John McClain M.D. and
clinical notes of Ann Brost, M.A. attached to Court Document 256.
In addition, Ms. Clarke is uncommunicative. She distrusts strangers, including Court
appointed counsel. If compelled to appear as a witness in this case, it is believed she will not
respond to questions posed by counsel or the Court. Counsel will invoke Ms. Clarke’s Fifth
Amendment privilege against self-incrimination on her behalf. See attached Affidavit of Michaele
THEDA CLARK IS INCOMPETENT TO TESTIFY
Theda Clarke is incompetent to testify. She lacks the capacity to remember and recount
the alleged events upon which the Government bases its case against the Defendants.
Fed R. Evid. 601 provides in part that “[e]very person is competent to be a witness except
as otherwise provided in these rules.” As a general rule, the competence of a witness depends upon
an ability to observe, to remember
, to communicate and to understand the nature of an oath and the
duty it imposes to tell the truth. U.S. v. Michael Bloome, 733 F. Supp. 545, 546-547 (Dist Ct. N.Y.
1991). Pursuant to Fed. R. Evid. 104, the competency of a witness to testify is for the Court to
The Government seeks testimony concerning events which led to the death of Anna Mae
Aquash in 1975. As stated supra
, Ms. Clarke is 84 years old and confined to a wheel chair. She
suffers from the late effects of a cerebral vascular accident (stroke), dementia, diabetes,
hypertension, hyperlipidemia, anxiety, depression and arthritis. Both her long term and short term
memory are significantly impaired.
Her medications include: dilatin (seizure), zocor (cholesterol),
celexa (anti-depressant), and remeron (anti-depressant/anxiety). These medications may also impair
her memory. As a result of Ms. Clarke’s dementia and memory impairment she cannot give
meaningful testimony and is incompetent to testify. See Affidavit of Dr. John McClain M.D. and
1The trial court’s decision as to competency will only be reversed for an abuse of
discretion. U.S. v. Peyro, 786 F.2d 826, 830 (8th Cir. 1986).
clinical notes of Ann Brost, M.A. attached to Court Document 256.
As a result of her dementia and memory impairment, Theda Clarke also lacks the personal
knowledge required under Fed. R. Evid. 602. Fed R. Evid. 602 provides in part that “[a] witness
may not testify to a matter unless evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter.”
In the present case, the Government alleges that Ms. Clarke was an active participant in the
kidnapping and murder of Ms. Aquash. However, as a result of her dementia, Ms. Clarke’s memory
of the alleged events is so impaired that the Government cannot establish the requisite personal
knowledge required of a witness under Rule 602.
In addition, as a result of her dementia, the probative value of any testimony by Ms. Clarke
is substantially outweighed by the danger of misleading the jury. Pursuant to Fed. R. Evid. 403, Ms.
Clarke’s testimony should be precluded.
INVOCATION OF FIFTH AMENDMENT PRIVILEGE
Testimony by Theda Clarke could be used by the Government to prosecute Ms. Clarke for
federal crimes. U.S. Attorney Marty J. Jackley has stated that Ms. Clarke may be indicted in the
future for the murder of Anna Mae Aquash. Ms. Clarke will refuse to testify in this matter and
Counsel will invoke Theda Clarke’s Fifth Amendment privilege against self-incrimination.
Therefore, the subpoena requiring Ms. Clarke’s presence before this Honorable Court on May 12,
When a witness invokes the Fifth Amendment privilege against self-incrimination, the
Court typically questions the witness outside the presence of the jury in order to determine the
validity of the claimed privilege.2 However, a witness’ attendance should not be compelled
where he may reasonably invoke his Fifth Amendment privilege against self-incrimination as
grounds for refusing to answer essentially all relevant questions. U.S. v. Sawyer, 2006 LEXIS
In the present case, there is little doubt that Ms. Clarke’s Fifth Amendment privilege
against self-incrimination is proper. As stated supra
, the Government alleges that Ms. Clarke
was an active participant in the kidnapping and murder of Ms. Aquash. The Government has
also represented that it may indict Ms. Clarke for Ms. Aquash’s murder. As a result, Ms. Clarke
may reasonably invoke the Fifth Amendment privilege against self-incrimination as grounds for
refusing to answer essentially all relevant questions and should not be compelled to appear.
Furthermore, Ms. Clarke is uncommunicative and distrusts strangers, including
her Court appointed counsel. If compelled to appear as a witness in this case, it is believed she
will not respond to questions posed by counsel or the Court. Thus, Counsel will necessarily
invoke Theda Clarke’s Fifth Amendment privilege against self-incrimination on Ms. Clarke’s
behalf. See attached Affidavit of Michaele Sanders Hofmann.
The subpoena also subjects Ms. Clarke and Ponderosa Villa to undue burden. Ms. Clarke
is currently a resident of Ponderosa Villa. Ponderosa Villa is a nursing home located in
Crawford, Nebraska. Ms. Clarke is currently wheelchair bound and takes several medications.
The transportation of Ms. Clarke pursuant to the subpoena will require that she be attended by a
2“To sustain the privilege, it need only be evident from the implications of the question,
in the setting in which it is asked, that a responsive answer to the question or an explanation ofwhy it cannot be answered might be dangerous because injurious disclosure could result.” U.S.
v. Bowling, 239 F.3d 973 (8th Cir.).
nursing assistant for mobility and toileting and a registered nurse for the dispensing of
medications. Arrangements will also need to be made for the overnight stay of Ms. Clarke and
the medical staff as she physically cannot tolerate travel to and from Rapid City, South Dakota
and Crawford, Nebraska in a single day. Counsel notes that the subpoena requires Ms. Clarke to
travel 120 miles from Crawford, Nebraska to Rapid City, South Dakota. See attached Affidavit
Theda Clark is incompetent to testify under Fed. R. Evid. 601. In addition, as a result of
significant impairment of both her long and short term memory, she lacks personal knowledge as
required by Fed. R. Evid. 602, and any probative value of Ms. Clarke’s testimony would be
outweighed by the danger of misleading the jury pursuant to Fed. Rule Evid. 403. Finally,
Counsel will invoke Ms. Clarke’s Fifth Amendment privilege against self-incrimination and the
transportation of Ms. Clarke to Rapid City, S.D. is unduly burdensome.
Therefore, it is respectfully requested that this Honorable Court quash the subpoena of
_/s/ Michaele Sanders Hofmann
Michaele Sanders Hofmann
Attorney for Theda Clarke
Costello, Porter, Hill, Heisterkamp,
Bushnell & Carpenter, LLP
704 St. Joseph Street
P.O. Box 290
Rapid City, SD 57709-0290
Telephone: (605) 343-2410
CERTIFICATE OF SERVICE
I hereby certify that on this 4th day of May, 2009, a true and correct copy of the
MEMORANDUM IN SUPPORT OF MOTION TO QUASH SUBPOENA OF THEDA
were served upon the following persons, by placing the same in the service indicated,
addressed as follows:
COSTELLO, PORTER, HILL, HEISTERKAMP,
BUSHNELL & CARPENTER, LLP
/s/ Michaele Sanders Hofmann
Michaele Sanders HofmannAttorney for Theda ClarkeCostello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, LLP704 St. Joseph StreetP.O. Box 290Rapid City, SD 57709-0290Telephone: (605) 343-2410Facsimile: (605) 343-4262Email:
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