THOSE GUYS ARE GOING to get the big needle, David Nevin figured. Lethal injection. Nevin read the August 31, 1992, newspaper accounts of Randy Weaver’s and Kevin Harris’s ambush of federal officers and their standoff in a fortified cabin on the top of a castlelike point. A lawyer would have to be a masochist to represent a militant neo-Nazi who killed a federal agent and then held 300 government agents at bay for eleven days.
“I’ll need a day to think about it,” Nevin told the federal judge, Mikel Williams, who had called to ask Nevin to serve as Kevin Harris’s court-appointed attorney. The next day, Nevin agreed to take the case.
He flew to Spokane and drove with another lawyer to the hospital where Kevin was staying, made his way through an army of marshals guarding the door, and slid into the hospital room where Harris was spiderwebbed with tubes, recuperating from surgery on his bullet wounds. He was bloated from the intravenous feeding and was so pale, it looked as if he’d already served twenty years.
“I’m David Nevin,” he said. He told Kevin that he’d been appointed to represent him, and Harris looked up at him wearily. At first glance, David Nevin was thin and aristocratic, with graying, wavy hair that—it became apparent as you talked to him—had probably been quite long at one time.
“Hi,” Kevin whispered. “I have a lawyer. You don’t have to worry about it.”
But the lawyer who’d promised to represent him wasn’t really qualified, and so Harris’s parents, Barb and Brian Pierce, auditioned Nevin, asking if he’d ever represented someone charged with killing a law enforcement officer before. Nevin said no, but he assured them he would be up to the task.
It wasn’t much of a case, Nevin thought on the short flight back to Boise. It was a losing proposition on every side. As a court-appointed lawyer, Nevin would be working for forty to sixty dollars an hour, less per hour than his overhead. They were going to throw everything at this Harris kid; he was going to have to work eighty hours a week to match the full technical and legal might of the U.S. government. He’d be facing Ron Howen, who collected neo-Nazi convictions like other people collect stamps. He’d be representing an accused cop killer with racist beliefs, a combination that was poison to a jury, even an Idaho jury. There were a million reasons to turn down the case and one very good reason to take it: Gerry Spence.
Two days earlier, newspapers reported that Spence, the famed Wyoming defense attorney, was considering representing Weaver. Bo Gritz had called him during the standoff and Spence had agreed because Gritz told him it might bring Weaver down from the mountain. The Boise legal community buzzed with the chance to see perhaps the greatest trial lawyer in the country—a bombastic, entertaining, plainspoken storyteller who claimed never to have lost a criminal case. Nevin had read a couple of Spence’s books and had even attended one of Spence’s psychodrama workshops in Wyoming, where he gave an uncharacteristically flat demonstration of his trial methods.
Nevin loved the idea of working with Spence, and he firmly believed in the defense attorney’s responsibility to defend society’s worst, but something about the case squirreled with his conscience. He saw the need to challenge government and to keep it from abusing citizens and their rights. But, at the same time, he hadn’t gone into law to represent white-separatist cop killers.
Whites were certainly separate in the Shreveport, Louisiana, neighborhood where David Nevin grew up in the 1950s and 1960s. With his chin resting on his back fence, the young Nevin could see the “colored quarter,” blocks of two-room shanties—tin-roofed, board-frame homes with no paint, no lawn, and no running water. His divorced parents impressed upon Nevin the importance of the civil rights struggle and taught him equally that there was a dominant order in the South—a legacy of abusive power among the white majority—that was evil and immoral. So, alongside a fair hatred of racism, Nevin grew up believing that, often, the establishment is just dead wrong.
He was everydude in the late 1960s and early 1970s—a shaggy-haired, liberal, itinerant college student, checking in at the University of Connecticut, the University of Iowa, and finally, Colorado State University, where he graduated in 1974. He got a job in the woods of Colorado on a construction crew—hard, tiring work that made him realize there had to be a better life out there and that made him decide to go back to school for something better: heavy equipment operator.
Or law school. Either one beat swinging a pick. Nevin did the obligatory aimless trip through Europe and then applied to law schools and, once accepted, flew from Luxemburg to Spokane, and from there hitchhiked to Moscow, home of the University of Idaho. He graduated from law school in 1978, moved to Boise, and eventually took a job in the public defender’s office. Like most PDs’ offices, Boise’s was horribly understaffed; at any given time, 150 cases crossed Nevin’s desk, with time to prepare only five of them. It was straight triage, like bringing one ambulance to the scene of a fifty-car accident every day.
Two weeks on the job in 1978, Nevin had his first criminal trial. He faced the toughest prosecutor in Boise—the plug-muscled, steely-eyed perfectionist Ron Howen, who unnerved Nevin with his nonchalant confidence. During jury selection, when Nevin asked a potential juror whether he could believe the defendant could be innocent, Howen snapped up in a voice so authoritative, it sounded like the law itself: “Your honor, I object. The issue before this jury is not innocence. It is guilt or not guilt.”
About the same age as Nevin, Howen was a no-nonsense logician who would sooner lose a finger than plea-bargain a case. He swung the law like a club, almost always going for the broadest charge and the stiftest sentence. Boise defense attorneys joked that Howen had the perfect formula for prosecution, four words: “No” to plea bargains, and “What happened next?” to witnesses.
Nevin’s client in that first case was a black man named Tommy Fort, who, in an effort to drive to Salt Lake City and see his girlfriend, had been arrested stealing five gallons of gas. Tommy had climbed the fence at a private fueling station, but the pump wouldn’t work. So he broke a window, got the keys, flipped on a pump and filled a beat-up, handheld, five-gallon tank. Howen charged Fort with burglary and grand theft, which Nevin thought was a little stiff for someone trying to pinch a few gallons of gas. It seemed to him like overprosecution.
But Howen told the jury this was more than just a simple theft. He called as a witness the owner of the private fueling station, who also delivered fuel oil to tanks all over the city. When he’d broken into the building to turn on the pump, Tommy had grabbed a ring of keys that would open fuel tanks all over the city. Howen had the witness identify the keys and testify to the fact that they could open thousands of tanks.
In his first closing argument ever, Nevin said, “Mr. Howen would have you believe that Tommy Fort was involved in a conspiracy to control the fuel oil market in the city of Boise—” He showed the jury the battered gas tank, implying he would have to do it five gallons at a time. Then came Nevin’s encore. How could Tommy be guilty of burglary, breaking into a building to commit a crime, when his crime had been committed outside?
The jury hung on the serious charges, and Tommy Fort was found guilty only of attempted petty theft. In the real world of lawyers—where innocence is unashamedly measured in degrees—it was a huge victory. And so were the next four cases Nevin tried, bringing cross-eyed looks from the other PDs and jokes that he might never lose.
As soon as he began to wonder himself, he did lose. But he quickly gained a reputation as one of the top defense attorneys in Boise, a natural in front of a jury. After he left the public defender’s office, he continued to hold his own against Howen. But their biggest case together went to Howen, the 1986 trial of Elden “Bud” Cutler, security chief of the Aryan Nations, who hired an FBI agent to behead a witness in the Order trial.
Over seven or eight cases, Nevin and Howen developed a grudging respect and a good working relationship. The prosecutor seemed intrigued by the young upstart who managed to smudge some of his intricate prosecutions. Both rose in the Idaho legal community, Nevin as a top criminal lawyer and death penalty specialist, Howen as a top federal prosecutor and the scourge of white supremacists.
Nevin learned a lot about what a prosecutor was trying to accomplish by talking to Howen. “My job is to put on a good enough case that the defendant has to take the stand,” Howen told him. “Because then, I’ve won my case.”
Howen taught him another important lesson about being a lawyer, something that came back to Nevin as he decided to take Kevin Harris’s case. Howen said, “What you have to do as a lawyer is get away from the fear of losing.”
CHUCK PETERSON WASN’T THINKING about winning or losing. As soon as he read that Gerry Spence had volunteered to be Weaver’s lawyer, Peterson had only one thought: he needed to be on that case. Peterson wasn’t in the upper echelon of Boise defense attorneys like Nevin. He was talented and confident, an in-your-face litigator who’d been trained as an army lawyer on a base with 28,000 soldiers and just seven defense attorneys. But after the army, he hadn’t fit in at his first big law firm. So he hung his own shingle with a handful of other lawyers and tried to make a name for himself. But Boise—home to federal, state, and county courts, federal agencies, the Idaho legislature, and corporate offices—was up to its lapels in lawyers, 1,333 in the district, 40 percent of the lawyers from an area with 20 percent of the state’s population. Chuck Peterson felt like just another suit.
But working on a case with Gerry Spence—who never even wore a suit—could change that. Since Spence was from Wyoming, he would need local counsel, and Peterson figured that was his chance to finally display his talent. “I just gotta figure out a way to get on that case,” he said to one of his partners.
Like Nevin, Peterson was a student of Spence’s, and he recalled the Wyoming lawyer’s advertisement years earlier: “Best Trial Lawyer in America Needs Work….” On August 31, while Bo Gritz was still trying to get Sara Weaver to surrender, Peterson sent Spence a fax, offering his assistance as “Best co-counsel in America …”
That afternoon, Peterson—young-looking and intense, with a sharp face and spiked, blond hair—got ready to leave his office and go to his first night class at nearby Albertson College. Burned out on the law, he was thinking about becoming a counselor. As he was getting ready to leave, the secretary said he had a phone call. It was Gerry Spence. “Right,” Peterson said. Before sending the fax that morning, he’d told some of his partners about it, and he laughed at their clever joke as he punched the button for the speaker phone.
“This is Chuck Peterson.”
There was no mistaking the tugboat baritone. “Chuck. This is Gerry Spence. I got your fax.”
“Oh?”
“You know,” Spence said, “that’s something I would have done if I was your age. I’m going to get in my airplane and fly to Boise, and you can pick me up at the airport.”
“Sure.”
“You arrange a way for us to meet with our client,” Spence bellowed.
“Okay.”
After they hung up, Peterson grabbed one of his partners, Garry Gilman. “You may as well come along. It’s going to be a hell of a show, no matter what.” Chuck Peterson never made it to those counseling classes.
“LOOK,” GERRY SPENCE GROWLED at Randy Weaver. “I haven’t decided if I’m going to defend you or not, but if I defend you, I’m not going to listen to that bullshit.” Spence told Randy that he had black and Jewish relatives. “I’ll defend you, maybe, but it isn’t going to have anything to do with your beliefs, and I don’t want to hear about any of that stuff, and you’re not going to say any more about it.”
That was about the last time Randy talked to his attorney about the Jewish conspiracy.
Gerry Spence had arrived in Boise the day before as grand and confident as Peterson expected, six feet two inches tall, 230 pounds—but in a way, even bigger than that. A fringed buckskin coat draped over John Wayne shoulders, gray felt cowboy hat pulled down over his silver pageboy haircut and settled just above his squinting eyes, Gerry Spence seemed for all the world like the gunfighter he fancied himself. He and his lawyer son, Kent, had driven with Peterson to the Ada County jail—a drab, concrete block of a building out by Boise’s strip malls and office parks. Randy Weaver sat in front of them, tired and beaten, just hours after his surrender. Peterson sized up his potential client. His head was shaved, he was pale and weak-looking, shackled, wearing an orange jail jumpsuit and orange thongs. Spence had expected a wild-eyed, charismatic kook, and what he was seeing was just a tired, little man. But he also sensed that he was listening to someone who was telling the truth. Peterson and Spence looked at each other: This guy kept all those officers at bay?
That night, they just listened to Weaver’s tale: set up by the government on a phony gun charge, his son shot in the back, his wife shot in the head. Every few minutes, he’d start weeping and couldn’t finish his story.
Kent Spence didn’t seem too enamored of the case and, as Peterson dropped the Spences off at their hotel, he figured he’d never see them again. He guessed they’d fly out the next morning and Peterson—who had told the local judge he’d represent Weaver—would be stuck with this dog of a case.
But they were still in Boise the next morning, when Spence lectured Randy about not talking about his beliefs. That day at the jail, Spence had pointed questions for Weaver: Who shot first? Where were you? What did you see? Randy answered clearly and consistently, and then he started in on his beliefs, how the Jews were probably behind the whole thing, and that’s when Spence stopped him. “Keep that stuff to yourself.”
That afternoon, they drove downtown to meet with the judge. “Well, what do you think?” Spence asked the other attorneys on the way.
Peterson didn’t think they had much of a case, but he stayed quiet. He was there because of Gerry Spence, not Randy Weaver. “I don’t know. What do you think?”
“I don’t know,” Spence said.
The lawyers turned into the parking lot at the federal courthouse, hours before the arraignment was to begin. There were television and print reporters camped all over the courthouse steps, and Spence turned to his son. “We’re in this case.”
Kent Spence—the actor they’d have to hire to play his dad twenty-five years younger—grinned, shook his head, and turned to Peterson. “You in?”
“If you’re in, I’m in.”
“We may never get paid,” Gerry said.
“Oh, well,” Peterson said. “If you’re in, I’m in.”
Back at Peterson’s office, Spence sat down and wrote two press releases, one with his name on top and the other with Randy’s name.
STATEMENT OF Gerry Spence:
I was told that if I would agree to represent Randy Weaver he would come down off of the mountain and surrender. Hoping that my agreement to represent him would prevent further bloodshed, I have made my appearance on his behalf in federal court today.
Mr. Weaver and our co-counsel do not see eye to eye on many issues.
We do not believe in white separatism.
We do not share Mr. Weaver’s religious beliefs.
But our personal beliefs and his are not important to this case. In America, all of our religious and political beliefs are protected by our Constitution….
And then, Spence composed Randy’s statement, detailing in it how his wife and son were murdered and explaining he had come down from the mountain only to protect his girls.
“I have never believed that I could get a fair trial in a government court,” Spence wrote for his newest client. “I was assured that Mr. Spence, one of the great lawyers of the country who has spent his life fighting for people and the cause of freedom, will see that I get a fair trial. I believe Mr. Spence will see that my rights are protected. If I did not believe that I would still be up there.
“I have authorized Mr. Spence to undertake my defense understanding that he and I see eye to eye on very few political and religious issues. As a matter of fact, we are poles apart in our beliefs. But one thing he and I agree on, and that is people ought not to be murdered by their own government.”
BESIDES SINGLE-HANDEDLY REVIVING the buckskin industry, Gerry Spence had another rare quality, one vital among prominent people of the twentieth century, the ability to define himself. In a world narrated by mass media, fame cast people arbitrarily as Good Guy or Bad Guy, but Gerry Spence would have none of that. Through a chain of bold and unlikely court victories and a string of books about his exploits and philosophies, he crafted himself as the Lone Ranger of the law, not just a good guy, but something more, a mythical figure, a hero. Big. It was some trick, creating a hero from a profession that mostly inspired mistrust and scorn.
In the courtroom, Spence was his own work, painting himself—broad and imperfect—for the jury just as soon as he was turned loose on them. He hoped to make the jury forget the client and concentrate on the lawyer—who didn’t fight the other side’s battle of details and evidence, but who crafted a homespun story, a worldview, an ethic that he invited the jury to adopt as its own. “Folks, you and I know this case isn’t about a murder. It’s about …” Every chance in front of the jury he repeated his story and every question was framed through that worldview. Outside the courtroom, he spun another kind of story, revealing and reinventing himself in a string of books that mixed his exploits, his flaws, and his philosophies like a stiff drink that he just kept topping off; he was a man who just couldn’t stop writing his autobiography.
Gerry Spence sprang from Colorado ranch and farm families in January of 1929, the winter before the Great Depression. One grandfather was a member of the Zion Religion, an Old Testament, fundamentalist faith that decreed, among other things, that it was a sin to eat pork. Some Protestant fire made it to Gerry’s mother, but that was pretty much the end of that line in the Spence family. Gerry’s own faith was the Western ideal of individualism.
His father was a chemist at the University of Wyoming, but the Depression sent the family spilling out of Laramie and into California, looking for work. They ended up back in Wyoming—in Sheridan—where Spence’s dad worked for a railroad and the family grew up poor. Spence’s mother made coats and gloves for her three children from the hides of elk, deer, and antelope, and the family took in tourists to get by. Gerry helped out, washing and ironing sheets, driving horse teams, and selling cinnamon rolls door to door. By fifteen, he was a pushy loudmouth who terrorized the rest of the family—perfect attributes, his devout mother realized, for a preacher. Gerry thought he was better equipped to be a lawyer.
He graduated high school at a time when it was still possible to go off to sea for adventure, and Spence had a fine time as a merchant marine. He drank rum, smoked cigars, visited whorehouses. But he refused to pay union dues, and the other merchant marines tossed him overboard and emptied a garbage chute on him. He eventually quit, moved back to Wyoming, was married, and got into law school, but his mom didn’t approve of his gambling or his godlessness, and they argued almost as much as Gerry and his wife did. During his first year of law school, Spence’s mother committed suicide.
Her death was hard on Spence, and at first he blamed his own boozing and debauchery for her sorrow, and ultimately, her death. He graduated first in his law class at the University of Wyoming, failed the bar, passed the second time, and moved to Riverton, Wyoming, to join a law practice. In 1953, he ran for county attorney as a Republican, knocking on doors and leaving notes for those people he missed. Every registered Republican got a check “to be cashed for honest law enforcement,” and at twenty-four, Gerry Spence became the youngest county attorney in the state. He was a buzz saw. He shut down the Little Yellow House brothel in Riverton, revoked liquor licenses, and even prosecuted himself for shooting ducks outside of shooting hours. He won a second term but didn’t run for a third, deciding instead to aim for Congress. He got pounded and set up a private practice.
Gerry Spence in the early 1960s was the picture of Republican establishment—four kids, a member of the Kiwanis, the Elks, and the Sheridan Country Club. He represented insurance companies looking to screw those little guys he’d later champion.
There was a midlife crisis: lots of drinking, some sensitivity training, and an affair with a woman named Imaging. He campaigned to be a judge, was rejected by the governor, sold everything, and moved to Mill Valley, California, where he planned to go to art school. That didn’t work out, and he and his wife divorced. Spence wandered back to Wyoming, married Imaging, and sobered up. He went back to his insurance law practice and got rich. In his first book, Gunning for Justice, Spence wrote that he was in a grocery store when he saw a hobbled accident victim that he’d earlier defeated in court. After years of representing the establishment, Spence had a “crisis of conscience” and vowed to spend the rest of his life on the side of criminal defendants and people suing big corporations.
The cases—he called them “little people trying to get big justice”—made him famous in the West and in the larger legal community. Spence’s reputation quickly went national with a string of high-profile cases, beginning with the 1979 Karen Silkwood case, whose heirs sued Kerr-McGee Corp., charging she had been contaminated by Kerr’s Oklahoma nuclear plant. Spence won a $10.5 million civil suit, but it was overturned on appeal, and the family eventually settled for $1.4 million. He represented a beauty pageant queen, Miss Wyoming, in a case against Penthouse magazine, which published an article, purporting to be fiction, describing a woman who resembled Spence’s client but boasted incredible sexual talents. With his commanding pronouncements and disdain for legal technicalities, Spence cut through the “legalese,” turned witness’s testimony into his own speeches, and strained courtroom decorum so much that the opposing attorney in the Miss Wyoming case moved for mistrial four times—during Spence’s opening statements alone. Miss Wyoming won a $26.5 million defamation award in that case—also overturned.
When rich, powerful clients requested his services, he transformed them into little people, too, so that in 1990, Imelda Marcos became “a small fragile woman” whose only crime was being “a world-class shopper.” Charged with embezzlement and racketeering in a New York trial, the former first lady of the Philippines hired Spence for a reported $5 million. His loud, plainspoken tactics didn’t play as well in front of a New York judge, who rode Spence throughout the trial. Even his co-counsel in that case tired of his antics. But Spence won the case, and Marcos was acquitted. He did many cases for free but commanded huge fees when his clients could pay—40 to 50 percent of the settlements at a time when other top attorneys got 33 percent. He bragged that he’d never lost a criminal trial and hadn’t lost a civil case since 1969.
Spence’s ethics were welded to his emotions, and he used the same zeal to win a murder acquittal for an old ranch hand and sheriff named Eddie Cantrell as he did to convict another accused murderer while serving as a special prosecutor in 1979. In that case, Spence wore a bulletproof vest and placed bodyguards around the courtroom to illustrate the viciousness of the defendant, a man named Mark Jurgenson, who’d killed an old friend of Spence’s. At his most stirring and manipulative, Spence asked for and got the death penalty. Later, he would write that it was the worst thing he ever did. In another epiphany, he decided he was against the death penalty. He even tried to get Jurgenson’s sentence changed to life in prison.
But in 1991, Jurgenson was electrocuted, the first execution in Wyoming in twenty-six years. In some ways, Jurgenson’s death was the most startling example of Spence’s power in the courtroom and, also, his ability to reinvent himself—a trait critics called hypocrisy.
And there were plenty of critics: prosecutors and attorneys who’d faced him, companies whose pockets had been lightened by his rhetoric, and judges who’d spent entire trials trying to keep him in line. But by September 1992, Gerry Spence had something that transcended all of that: celebrity. Gerry Spence came to the Randy Weaver case in September 1992 as probably the best-known attorney in the world, a perfect mix of brilliance and self-promotion.
IN BOISE, IDAHO, it was as close to a dream team as you’re likely to get. On Weaver’s side of the table were Spence, his son, and the sharpest of the Wyoming contingent, Gerry’s assistant, Jeanne Bontadelli—the left side of his brain. (“Jeanne? Have I read that memo?” “Yes, Gerry, you have.”) Peterson and Garry Gilman completed Weaver’s team.
Nevin was assisted by another court-appointed lawyer, Ellison Matthews—for twenty-four years one of the top criminal lawyers in Boise. “Ellie” was the antithesis of the manic attorneys on the two teams. They would be flying off the walls, arguing circles around minute bits of law, and—on those rare occasions when he said anything—Matthews would interject quietly and forcefully, right to the heart of whatever they were talking about. Spence called him a three-worded laser.
At first, of all the lawyers, only Gerry seemed optimistic. And only he grasped what the case would finally be about. Nevin was edgily preparing for a regular murder case, one that didn’t look particularly promising. His guy had admitted shooting the federal marshal. Peterson—assigned by Spence to Weaver’s initial gun charge and the failure to appear—worried about the tape recordings of Randy with the informant Ken Fadeley and about the letters Vicki Weaver wrote, pronouncing their hatred for government and their intent never to show up in court. Spence paid some attention to the evidence, but he talked more about freedom of religion, until the other lawyers began to wonder if that wasn’t what the case really was about.
They got some clues in September, at the preliminary hearings, the first chance for defense attorneys to really see the case against them. During Kevin Harris’s preliminary hearing, the prosecution asked for a delay because Boise police needed to provide security for Vice President Dan Quayle, who was making a campaign stop. Nevin was suspicious. He knew prosecutors would rather skip the preliminary hearing and take the case straight to a grand jury, a group of citizens who met in secret, without the defense present and usually rubber-stamped indictments.
Nevin feared that they were delaying the preliminary hearing to give a grand jury time to indict Weaver and Harris, which would nullify the hearing and keep the defense attorneys from hearing the evidence. U.S. Attorney Ellsworth promised the delay wouldn’t keep the two men from having a preliminary hearing, and Nevin said that as long as that was true, he didn’t mind the delay.
On September 15, Kevin Harris’s preliminary hearing began with ten motions from Ron Howen filed just the night before. The judge told Howen that many of the issues had been settled already. Later, as prosecutors questioned a relatively unimportant FBI witness for hours, Nevin began to get suspicious again. He leaned over to Matthews. “Do you think he’s just stalling?”
That afternoon, the grand jury returned an indictment against Harris, and the prosecutors immediately asked that the preliminary hearing be canceled. David Nevin felt like he’d been kicked in the teeth.
Nevin remembered a case years earlier in which a witness could have destroyed his case, and he’d asked Howen whether the prosecutor was going to call that witness. The prosecutor had said no, and even though Nevin opened the door for that witness to testify, Howen stood by his word and didn’t call him. Deep down, Nevin believed Howen was an honorable man, but he couldn’t shake the suspicion that the delay had been intentional. It made him wonder what incredible pressure Howen must be under.
WITH SPENCE ONBOARD, the battle quickly became one of public perception. Two days after Spence’s press releases accused the government of murder, an unnamed Justice Department official offered another version of events. “I’ve heard enough of this talk that we shot a mother with a baby in her arms,” the official told the Spokane newspaper. “That’s just not true.” The official gave an inaccurate account of the August 22 shooting, claiming snipers were given the order to fire only after Vicki and other members of the family shot first at a helicopter.
Gene Glenn’s assistant in Salt Lake City, Dave Tubbs, also told reporters there was more to Vicki Weaver’s shooting than her husband was letting on. “I can tell you we don’t shoot mothers with babies in their arms,” he said. Tubbs said the FBI rules of engagement preclude agents from firing unless their lives are in danger. “So, obviously, if a shooting occurred that resulted in the death of Vicki Weaver, something happened to precipitate that shooting…. We don’t go around killing people unless there’s good reason.”
But in Boise, that was one of the problems facing the assistant U.S. attorneys assigned to the case—Ron Howen and a terse coiled spring of an attorney named Kim Lindquist. They had Degan’s gun, which had been fired seven times. They had Sammy Weaver, who had been shot in the back. And, worst of all, they had Vicki Weaver’s death. They weren’t going to be able to try Randy Weaver for murder without giving the jury the “good reason” for his wife’s death. Their task was making a jury see that Randy Weaver was ultimately responsible for everything that happened on Ruby Ridge. It was not going to be easy.
On the third floor of Boise’s glass federal building, Ron Howen’s door opened on a simple office with plain, working furniture, ordered files on the desk, and Howen at work—always at work—sometimes straight through the night, banking on his ability to bludgeon his courtroom opponent with sheer drive. He had a decent, serious face and a dusting of gray hair; the thing he looked like most was a prosecutor. He always looked like that, even when he was pressing free weights at the Boise YMCA, a grim, daily workout that gave him a solid linebacker’s body and the athletic, purposeful walk of the righteous. All he wanted was to be. a prosecutor, and friends marveled at the six-figure offers he turned down from private firms.
Howen was a religious fundamentalist and a family man who hung evidence of his avocations on the walls of his office, including several framed hunting photos. Howen hunted with an old-fashioned longbow, a primal weapon that required incredible strength and discipline, trailing wild game into the mountains of central Idaho with his son and the llamas they used to pack their equipment.
The other trophies on Ron Howen’s walls were encased reminders of his more civilized kills. In one of the frames was an unexploded pipe bomb from the Aryan Nations bombing case. In the other was a silver badge. Up close, it revealed itself as seized evidence from another trial: a shield over a battle-ax and a Roman cross, inscribed with the ancient Gaelic words that translated to “You are my battle-ax and my weapon of war.” There were two German words on the shield: Bruders Schweigen.
It all went back to that case, the original Order trial, in which Howen had been co-counsel in a masterly prosecution that tied together the actions of two dozen people in a textbook conspiracy. The strength of that case was that it clearly showed the crimes were committed to further neo-Nazi beliefs, opening up the entire ugly Aryan Nations world to the scrutiny of a jury. Once the prosecutor established there was a conspiracy to commit crimes to further neo-Nazi goals, he could bring in those beliefs as evidence. The formula had worked for Howen in Order II, in the Coeur d’Alene bombing case of Randy Weaver’s friend Proctor James Baker, and in the prosecution of Elden “Bud” Cutler.
Howen recognized many of the same beliefs in the Weaver case and knew he had a much better case if he could get the Christian Identity religion in front of the jury. Howen thought those beliefs formed the basis for Randy Weaver’s drive to force federal agents into a violent confrontation. He needed to make the jury realize that Randy Weaver and Kevin Harris weren’t just responsible for Bill Degan’s death but for the entire standoff—responsible even for the deaths of Sam and Vicki Weaver.
That would solve a couple of strategic problems as well. First, of course, it allowed the prosecutors to introduce testimony about the Weavers’ beliefs. And second, it opened a door for dealing with Vicki Weaver’s death. While testimony about her shooting would take away from the rest of the government’s case, it would be more disastrous to allow the defense to introduce her death and make it look as if the government was hiding something. The prosecutors figured it was better strategy to lay the events out forthrightly and show—through the conspiracy charge—that Vicki Weaver died because she and her husband were involved in a criminal enterprise to force a gun battle with the government. As he’d explained to the grand jury: No, Randy and Vicki Weaver weren’t members of Order I or Order II, but they were forming their own criminal enterprise to carry on the work of those groups.
And so Howen patterned the indictments after The Order conspiracy cases. As he and Lindquist began piecing together the evidence, they found the Weavers’ 1983 interview with the Waterloo Courier, right before they left Iowa. In it, Randy talked about establishing a “300-yard kill zone encircling the compound.” That seemed to be the beginning of Randy’s obsession with violent confrontation, and so the prosecutors decided the conspiracy should begin there, nine full years before the shoot-out.
Conspiracy was the first count charged, because once you proved that, the other charges came together like spokes on a wheel. Through September, Howen worked on an intricate sixteen-page indictment, listing ten separate, circular charges: conspiracy to provoke a confrontation, sawing off a shotgun, failing to appear for court, assaulting and impeding deputy marshals, killing William Degan, intimidating or impeding an FBI helicopter, harboring a fugitive (Randy Weaver), possessing guns and ammunition as a fugitive, violating terms of release, and carrying a firearm in commission of a crime. As they said on old TV shows, Howen threw the book at ‘em.
Within the first charge, conspiracy, there were nine objects—or goals—of the conspiracy, things like maintaining a mountain stronghold, collecting guns, and stealing their neighbors’ property. There were also twenty-eight (by trial there were forty) overt acts, things that might not be illegal but which furthered the conspiracy, actions like moving to Idaho and mailing a letter to Ronald Reagan.
Howen and Lindquist ran their conspiracy theory past Maurice Ellsworth, who approved it. Then they showed it to officials with the ATF, FBI, and the U.S. Marshals Service. The deputy marshals, who had spent eighteen months dealing with Weaver and who had lost a colleague, thought it was a good idea. But U.S. Marshals director Henry Hudson, himself a former prosecutor, didn’t like it. It brought in too much extraneous information and detracted from the important charge—the murder of Bill Degan.
The indictment sent shock waves through FBI headquarters. A conspiracy indictment endangered all the other charges, FBI officials complained. The conspiracy indictment would open the entire case, including the death of Vicki Weaver, to the scrutiny of the defense, and possibly, the public. And, despite earlier reports, top FBI officials knew that Vicki and the other people inside the cabin had never fired at a helicopter. Such a broad case would open up documents and reports that the FBI would much rather remained closed.
Finally, Howen checked with the Justice Department. Two top officials disagreed with the broad indictment but later said they had no supervisory control over the case and so they didn’t say anything.
Howen filed the superseding indictment on October 1 and expanded it November 17. As the case moved toward a spring trial, Ron Howen got ready to go into court and prove once more that racist beliefs could fuel a violent criminal enterprise. Only this time, his criminal conspiracy wasn’t among a shady group of Aryan Nations members robbing armored cars and murdering Jews. It was a family.
ALTHOUGH THEY WERE OUTRAGED by the indictment, in a way it was the best news the defense team had gotten since the case began. Nevin had warned the other lawyers of his experiences with Howen and his overprosecution of simple cases like Tommy Fort’s gasoline theft. They guessed that—with a federal law officer dead—Howen would reach too far again. When the indictment came out, they saw he had gone further than any of them would have guessed.
Peterson’s biggest worry was that prosecutors would simply charge Harris with murder and charge Weaver with failing to appear and selling sawed-off shotguns. Then, he thought, Cooper would testify to watching his buddy die, a pathologist would testify that Harris’s gun had killed him, they’d play the tapes of Randy selling guns; that’s it, the defense is screwed. Vicki Weaver’s death had nothing to do with those charges. The defense attorneys’ best chance was a complete retelling of the story, from the government screwups to Vicki’s murder, a pattern that just might convince jurors that Randy Weaver and Kevin Harris weren’t to blame for what had happened.
As Nevin and Peterson read Howen’s indictment, they were amazed at Spence’s intuition. All along he’d been saying this case would be about freedom of religion and now, by starting the conspiracy in 1983, the government was making it a case about Randy Weaver’s beliefs.
To Spence, this wasn’t a criminal trial, it was an inquisition. The only way for the government to cover up its barbaric behavior on Ruby Ridge was to demonize Randy Weaver, and the only way to do that was to make him seem like a charter member of The Order. Spence returned to his stone-and-log mansion in Jackson Hole, Wyoming, to prepare for trial. He started with the grand jury testimony Ron Howen had presented. He stared out the window at the Grand Tetons, a jagged ribbon that divides Idaho and Wyoming. One grand jury witness had been James Davis, an FBI agent who painstakingly detailed the crimes committed by The Order, The Order II, and other Aryan Nations members. His testimony covered seventy-four pages of the transcript and had little to do with Randy Weaver. Randy Weaver belonged to none of those groups and had been to the Aryan Nations only a few times. They were trying to bury this little man by associating him with people he wasn’t connected with at all. Spence was aghast. Yet, from a strategic point of view, he couldn’t have been happier. This was the ground he had come to fight over.
IF THEY EXPECTED the far-reaching indictment, the defense team never expected what came next. In November, the U.S. attorney for Idaho, Maurice Ellsworth, applied to the Justice Department’s Criminal Division for permission to seek the death penalty. The October indictment had included the possibility of the death penalty for killing a federal officer in performance of his duties, but after studying the case, even Nevin didn’t really think the government would attempt it.
Yet Ellsworth wrote that Weaver’s and Harris’s actions were premeditated, “founded in racial bigotry and baseless hatred for authority … cold and heinous in its direction at law enforcement…. The death of Degan was the direct and planned result of Weaver’s selfish and monstrous proclamation that ‘The tyrant’s blood will flow.’ His legal and moral accountability fully supports imposition of the death penalty.”
Justice Department officials didn’t think Ellsworth was serious. They figured he was just going through the motions, dotting is and crossing is. But when Associate Deputy Attorney General David Margolis called Ellsworth and Howen, they assured him they were very serious. They thought Harris and Weaver should be put to death.
In February 1993, the judge in the case ruled the death penalty didn’t apply, but by that time, defense attorneys had gotten the message: they were going hard after Randy Weaver and Kevin Harris.
Another realization came to each of the defense attorneys separately and much earlier, the feeling that they not only had a case, but were staring full-faced at injustice. Each batch of discovery documents first outraged them and—as attorneys—thrilled them: the interview with Deputy Marshal Norris (who said the first shot sounded like a marshal’s gun); the early arrest affidavit (in which Weaver and Harris were supposed to have fired from a truck); and the most amazing document of all, the FBI’s rules of engagement.
Peterson—who had constructed a computer database to keep track of everything—would jump on the telephone to Spence. “Have you seen this one?”
“Yeah, somewhere, but I don’t know where the hell it is,” the old gunfighter would growl. “Jeannie, dammit! Where’s that document?”
Nevin knew all along he had the most difficult case. He had the shooter, a guy who admitted killing a law officer. Yet Nevin had begun to believe that even the shooting of Degan was defensible, since so much evidence didn’t fit the government’s side of the story—especially Degan’s seven missing shots and the business with the dog. Early on, sitting in Chuck Peterson’s office—with Spence on the speaker phone—Nevin had described Kevin’s version of the shoot-out (“I mean, what could he do? They were shooting at his friend!”), becoming more and more animated until Spence said, “You ought to write that down.”
Despite Spence’s almost hypnotic insistence that this was a civil rights case, Nevin continued preparing for a case about a shoot-out, a fuzzy two- or three-minute gunfight in the middle of dark woods.
If the other attorneys’ opinions were transformed by reading reports and documents, Nevin’s epiphany came in October, when he visited the Weaver cabin again.
Spence, Peterson, and Garry Gilman had already been through the cabin, skulking around and taking photographs of the rock outcroppings, of the Y in the logging road, and of Peterson reaching up to unlock the birthing shed, the way Randy had done when he was shot. Spence said the trip wasn’t much help because the FBI had already carted away all the evidence, before they could get a look at it. “It’s just a cabin in the woods,” said Spence, who’d seen his share of cabins in the woods.
Gilman sensed something else. “The overwhelming feeling I have here is sadness,” he told a reporter, while standing on the back porch. “To think that three people are dead over a missed court date seems incredibly wrong and sad.”
Nevin and Ellie Matthews flew up to North Idaho in October, after reading Deputy Marshals Cooper and Roderick’s account of the shoot-out. Autumn had blown into North Idaho and chill winds shook whistles from the trees. Like everyone else, Nevin was struck by how beautiful and peaceful the ridge top was, and he spent some time just walking around, trying to imagine—like Gilman—how things could have gotten so out of hand. It reminded Nevin of some places he’d been to during his aimless years in Colorado, bikes and tools and junk all over the yard, the clean, full air cut with hints of wood smoke. He began to connect with his client, who was himself just an aimless kid.
The cabin itself was spooky, full of bad vibes even for someone who didn’t believe in such stuff. That night, with the October wind howling through the plywood walls, they slept on the cabin floor where Randy and Kevin had lain, where Sara had crawled to get food and take care of the baby. Nevin always liked to visit the scene of a case he was defending. It fueled his imagination and helped him explain what happened to a jury. But this felt different. It was tough staying in this place without being overwhelmed and saddened.
The next morning, they walked down the same trail Sammy and Kevin had taken, through the fern field, down to the Y. They looked for the stump Degan had hidden behind and tried to imagine five or six people with guns in such dense woods and brush. If it was possible to be claustrophobic outside, it would happen there, in that thick forest. Several hundred yards down a steep hill, the government’s version of events began to seem less and less likely. For one thing, marshals claimed to have received fire from the cabin after Degan was shot, yet that seemed impossible—unless the Weavers had some sort of weapons that allowed their shots to bend over the lips of ridges and around trees.
They went to the upper observation point where Hunt had photographed the family and down to the lower point where Roderick threw rocks at the dog. That was something Nevin could never figure out. He tried to picture these three guys crawling through the woods, carrying a machine gun with a silencer, suddenly deciding to throw some rocks. He knelt behind the boulder where Roderick had been and threw a couple of stones into the gully between himself and the cabin. It was too far away even to come close to hitting the cabin.
The rock clattered down the hillside, and Nevin stood up. Of course. The silenced machine gun, the rocks, the undercover plan with agents hiding in the woods, even the shoot-out itself. This was a case about a dog.