Graham has pleaded not guilty to murder and making a false statement.
Graham was indicted in October, and there have been a flurry of motions in the lead-up to trial. In one of the most recent filings, US District Judge Donald Molloy last week (Dec. 2) rejected an attempt by Graham's attorneys to have the indictment dismissed because of an FBI agent's interrogation techniques.
Graham initially told investigators that Johnson, 25, had driven away with friends the night of July 7. Three days later, she led park rangers to his body so the search would be called off "and the cops will be out of it," according to prosecutors' court filings.
Her discovery of the body prompted investigators to call Graham back for further questioning under FBI investigator Stacey Smiedala on July 16. Graham agreed to be interviewed without a lawyer present and to take a polygraph test, though one was never administered, according to prosecutors.
Smiedala questioned Graham for about 1 hours without recording the conversation, then recorded two shorter statements by her.
In the recorded portion, Graham said she and Johnson argued about whether they should have waited longer to get married, and they took that argument from their Kalispell home to Glacier National Park, according to a transcript.
Graham said Johnson grabbed her arm at one point. She said she knocked his arm off and pushed him in one motion, causing him to fall from a steep cliff near the Loop trail.
"I think I didn't realize that one push would mean for sure you were over," Graham said, according to the transcript.
Graham attorney Michael Donahoe said in his request to dismiss the indictment that Smiedala didn't record the first 1 hours of his interrogation of Graham so that he could "shape" her statement for when it was recorded later.
Molloy rejected Donahoe's request to dismiss the indictment but said "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 what happened the night of Johnson's death.
Molloy said that if there is testimony about Graham's unrecorded statements to Smiedala the jury will be told to weigh the evidence with caution and that the FBI could have recorded the interview and chose not to.
-AP