THE FACTS WILL SHOW that this ultimate confrontation occurred not because of a government perception of Randy Weaver’s beliefs, but because of Randy Weaver’s actions,” Kim Lindquist told the seven women and five men—all of them white—who stared at him from the jury box. They ranged in age from thirty-one to seventy-two, from a ninth-grade graduate to an MBA. Many had served on juries before, several had been crime victims. Most owned guns.
All morning on April 14, 1993, the jury listened as Lindquist, and especially Howen, colorlessly and carefully built their case like legal bricklayers. “On or about” this date the Weavers said this; “To wit,” the Weavers purchased that; “In furtherance” of the conspiracy, Randy Weaver did something else. They painted Weaver—in blacks and grays—as a racist, religious zealot commanding an army that also happened to be his family, a man who sought and finally achieved an Apocalyptic holy war with federal agents who did everything they could to avoid confrontation. Finally, on August 21, 1992, the Weavers got their wish, chasing the deputy marshals into the woods and shooting Bill Degan in cold blood.
It was a classic prosecutorial laying out of the facts. And the defense attorneys for Weaver and Kevin Harris couldn’t have asked for a better setup. At one-thirty that afternoon, David Nevin stood up to give his client’s side, looking for all the world like your favorite college professor, the one all the girls had a crush on and all the boys identified with.
“Kevin dove into the bushes and tried as hard as he could to save his friend’s life,” Nevin said. “Kevin did the best he could in an almost impossible situation.” He told the jury they would hear later about Degan’s sad, painful death, and he described it for them himself, to get it out in the open and defuse its power later.
And then, he just told Kevin’s story, from the moment he and Sammy Weaver saw the dog running off into the woods—”They think it’s probably an animal, deer, bear, elk, mountain lion.” Nevin’s voice was a revelation to the people who’d never heard him: quiet, honest, and authoritative, a hint of polite Southern lilt, stark contrast to the prosecutors’ industrial presentation of the evidence. “It’s ten-thirty in the morning on a Friday in late August. It’s quite pleasant in the woods.” Nevin described Sammy Weaver and Kevin walking through the woods, when suddenly, a camouflaged man steps out of the woods, points a rifle at the dog, and shoots it. And then Nevin’s voice gathered strength and authority until it didn’t seem possible it was coming from that spindle-thin guy. “The evidence will be there was no legitimate reason to shoot that dog. The dog was just doing what dogs do.” Sammy fired at the man, who dove back into the woods, Nevin said, his voice getting louder, his hands more animated.
“The woods just light up. Kevin sees smoke puffs … shells fly. Randy sees these guys, and at some point he starts to holler. Sam yells back, ‘I’m comin’, Dad, I’m comin’, Dad.’ They cut loose on him.” And then Nevin’s voice leveled off. “I want you to know, Sam Weaver was shot in the back, running away. Running home.”
At the defense table, Randy Weaver stared at his shoes. Kevin Harris began to cry.
Nevin was quiet again. The last thing Kevin Harris wanted was to shoot anyone. But when they started shooting at Sammy, he turned and fired at the marshals. “I don’t have any doubt that it’s a slug from his thirty-ought-six that kills Mr. Degan.” Nevin paused. “I’m sorry about that, but he did that in self-defense.” The lawyer described the next twenty-four hours, the family preparing for an attack, the grief over Sammy’s death, and the snipers moving into place around the cabin, shooting Randy and Kevin, killing Vicki. “On a jet from Washington, D.C., they have decided they will alter the FBI rules of engagement. Instead of the situation that pertains under Idaho law, they have decided they will shoot to kill whenever they see an adult male with a gun.”
Along the way, Nevin planted several seeds for later, like the seven shots Bill Degan fired before he died and the first shot Deputy Marshal Frank Norris heard during the shoot-out, “the distinctive sound of a two-twenty-three”—one of the marshals’ guns.
“The evidence will be that they handled this situation terribly,” Nevin said. “They botched it. They blew it. I’m here because I didn’t want Kevin to be the fall guy for them.”
PASSING LAWYERS TRIED to look nonchalant as they walked by Judge Edward Lodge’s courtroom on the sixth floor of Boise’s glass federal building. Like little boys strolling past a porn shop, gray men in navy blue suits and tweed jackets peeked into the plain courtroom, and lawyers from all over the city timed their business at the federal court building with the hope of witnessing some major league bombast. By mid-afternoon, David Nevin was finished with his straightforward, reasoned opening, and everyone knew it was time for the big gun. It was Gerry Spence’s turn.
Howen and Lindquist anticipated the worst, a grandstanding mockery of the law. They had fought Gerry Spence’s appointment to the Weaver case and had tried to get him tossed off the case for talking to the media. Now they stared straight ahead while Gerry Spence pushed his cowboy hat aside, straightened his Western-yoked suede jacket, gathered his notes, and stood.
Outside, on the strip in front of the courthouse, the protesters were gone. A handful had shown up the day before, carrying signs much more professional looking than the felt-pen-on-beer-box rantings at Ruby Ridge. An angular man in a suit paced with a sign that read: “The Most Despicable Criminals Are Those Who Wear a Badge. FREE Weaver & Harris.” A woman marched behind him with another sign: “Hide the Women and Kids. Here Comes the FBI.”
But Kent Spence had gathered the protesters, patriots, and white separatists together and asked them to not create a stir. “We really appreciate your support, but we would be better off without it.”
Bo Gritz was gone, too. He’d come the day before as well, pacing in a dark leather bomber jacket and chatting with reporters—”Any more questions from the commie-pinko faggots?” Bo had gotten the message from defense attorneys; they didn’t want any reminders in the gallery of Randy’s beliefs, and so Gritz had personally called Randy’s skinhead friends and told them that if they had to come, “be respectful, like you’re going to church.” A couple of them showed up, sheepish in jeans and T-shirts, their hair grown out into awkward fuzz with no discernible part. The skinheads were nice, misunderstood kids who just weren’t needed at this point of the case, Bo said. “There’s nothing wrong with a good haircut, but we don’t need people thinking this trial is about their beliefs.” As for himself, Bo wasn’t allowed in the courtroom because he was on the witness list.
Gritz’s appearance was a bonus for a scraggly band of mostly older gentlemen who had come to Boise to watch the trial. They carried right-wing newspapers under their arms and wore wrinkled suits that had never been in style, not even twenty-five years before, when that particular strain of polyester was engineered. They sold hastily-pulled-together books and pamphlets about the case (Chapter 14—”Jews Dominate Federal Government”) and $6 tapes of Carl Klang’s epic “The Ballad of Randy Weaver” (“the army of your enemy/slayed your bride and only son/and nearly killed your close companion/when the shrapnel pierced his lung”). A classical music composer asked for advice on a fifteenth-century funeral piece he was composing (“Which instrument do you think would best represent Striker?”), and at least three radical right poets were inspired to write about the case, including one that rhymed “baby in diapers” with “infidel’s own snipers.”
Largely ignored by the mainstream media at first, the Weaver case reverberated among the far right, among neo-Nazis, tax protesters, Birchers, and the conspiracy-fed old men who rode the elevator to the sixth floor of the federal building in Boise, went through a second metal detector, and waited in line for seats in the back of the courtroom.
Reporters were there, too, regional mostly, but also from Seattle and Los Angeles. They filled a notebook page or two with the prosecutors’ technical opening statements and a few more with Nevin’s strong opening. They waited eagerly for Gerry Spence to begin.
There were marshals in blue blazers everywhere, a handful in the parking lot, five in the courthouse lobby, several more walking throughout the building, five on the sixth floor, and at least six in the plain federal courtroom. Three uniformed security people stood watch at all four corners of the building and—two years before the bombing in Oklahoma City—the Boise federal courthouse had its first metal detectors, manned by deputy marshals. One day before the tax deadline, Boise citizens walked through a demilitarized zone of federal officers just to pick up a new 1040. Others rode the elevator to the sixth floor and waited outside the packed courtroom, hoping just to hear the famous Wyoming attorney.
“WE REPRESENT A MAN we’re proud to represent.” Gerry Spence looked over his shoulder at Randy Weaver, who wore a striped tie and dark suit coat, his skinhead stubble grown into a gray-flecked pompadour, his once-skeletal cheeks filled out from jailhouse food. Spence had to make sure the jury liked Randy Weaver, and to do that, he had to show that he liked Randy Weaver, because Spence was damn sure that by the end of the trial, the jury was gonna like him. Earlier, he’d sat close to Randy and even put his arm around the smaller man.
Goal number two was to show he was in the same boat as the jury, as a sort of tour guide, leading them all through the complexity and fear to the truth and eventually, to freedom. By the end of the trial, the jury would feel like prisoners themselves, and in that, at least, they could empathize with his client. And Spence would be there to feel their pain. “My proposition here today is that when we walk out of this courtroom together, all of us, that we all walk out, every one of us. The facts and the evidence in this case are going to establish that we all have the right to be free.”
And then, the payoff, the quick, dark summation, the refrain they would hear for three months—”This is a case, simply put, that charges Randy and Kevin with crimes they didn’t commit in order to cover up crimes the government did commit.”
Over the next two hours, he stuttered and misspoke a little, lost his place and overacted as he laid out his case, not quite the smooth delivery of David Nevin. Spence neophytes were confused. Where was the master orator? But those who’d read his books or attended his seminars knew the defense attorney didn’t mind stumbling now and again, for the same reason he didn’t mind writing about his flaws: his drinking and carousing. Heroes were great for selling books and attracting clients, but in the guts of case building and plot telling, juries and readers alike respond to real human beings.
“Mr. Howen knows the evidence will be they didn’t belong to the Aryan Nations,” Spence grumbled, looking down at the prosecutor several times and shaking his head. “Yes, they called God Yahweh. They worshiped the same God, the same Jesus, but they were independent thinkers. And they wanted the truth.
“They’d heard [Idaho] was a place where people were independent thinkers. They taught the kids themselves. Taught ‘em out of the McGuffey Reader. These children were bright and well read.”
He was rolling through his rose-colored view of history by the time he got to Striker, the golden Labrador whose barking had started the shoot-out. “He was so dangerous that he could beat you to death with his tail. He and Sammy were close. Striker was his closest friend.” Of course, all of the kids had cute, cuddly animals—Rachel’s chicken, Rocky, and Sara’s mutt, Buddy.
“They lived like ideal people,” Spence said. “It was an idyllic life. If the government had left them alone, they’d still be living it today.”
But the government “underestimated the moral fiber of this man. Here’s what they did,” Spence said, speaking for federal agents: “‘If we can get a person involved in a crime, then we got ‘em and they can either go to jail or the penitentiary for years and years, or they can snitch for us.’ That’s what they did to Randy Weaver and it’s called entrapment because he had never committed a felony in his life…. One day, those ATF men came to him and said, ‘We’ve got ya!’”
Spence boomed out each bit of government deceit: the informant, the trick with the broken-down pickup truck, the magistrate telling Randy he could be required to reimburse the government for his attorney’s fees if he was found guilty, the probation officer giving him the wrong court date. Was it any wonder, he asked, that the Weavers distrusted the government? And how did the government respond to his fear? By demonizing the Weavers, by telling reporters they were dangerous white supremacists.
“We always demonize our enemies in every war,” he said. “Japs, Russians, Germans. For the purposes of the war, we demonize them so we can kill them.”
He went over all the events again with that Spence touch. “They threw rocks—these people who will tell you they didn’t want to be discovered—big boulders, to see if they could get something stirred up.”
The judge had warned Spence about keeping his emotions in check, but the big Wyoming attorney became more animated as he described the shoot-out and, finally, the shot that killed Vicki Weaver.
“It was a perfect shot on her head by a perfectly skilled sniper,” he said. He bent over, a make-believe baby in his huge paws, a frown on his suede face. Spence rocked the baby back and forth, his fingers clutched around it. “She bled to death in a matter of seconds. They couldn’t get the baby out of her arms.” And then his voice caught, and Gerry Spence choked up.
It was just what prosecutors had been expecting. Kim Lindquist objected. “That better not be emotion, Your Honor.”
It was a fastball, big and fat, right over the plate, and Spence turned on it quickly, throwing his most disbelieving look toward the prosecutors. “What we have here is something that is sad, and I’m sorry counsel can’t feel it.”
CYNICS ARE WELL FED in a courtroom. When Gerry Spence finished his opening statements and sat down next to Randy Weaver, the scoring began. Howen was too stiff, too unemotional, even for a prosecutor. A former Marine, Lindquist was effective, but in the battle of number-two hitters, Nevin had shone. Spence’s marks were mixed—the expectations were always so high—but everyone appreciated his moral indignation and his emotion near the end.
Of course Spence would argue his emotion was real. In essence, it probably was. Spence often lectured young attorneys to “just tell the truth.” Juries, he said, will know if an attorney is being disingenuous. Unspoken was the idea that most important was that an attorney believe he was telling the truth, telling and retelling and rethinking his side of the truth until the attorney convinced himself that it was the whole truth. In that way, your clients could always be innocent, and their civil claims could always be just. Gerry Spence tried to teach young attorneys the ability to believe themselves. How else could he describe the Weavers as “ideal people … living an idyllic life,” when even their own relatives saw them as racist and paranoid, or claim the marshals threw “boulders” to stir up trouble?
Of course, it’s an attorney’s job to tell one side of the story, and Spence didn’t hold the patent on shading the truth. After all, prosecutors had spent part of the morning explaining the Weavers sold their house in Iowa as part of a plan to get into a gunfight nine years later.
It was ironic that in a case that began because of conspiracy theories, that’s what good lawyering resembled more than anything else. Both require careful selection of certain facts, rejection of anything that doesn’t fit, and the formation of a cohesive explanation of everything that—by its nature—is only part of the truth.
But most juries know their job is to decide whose story contains less bullshit. By the end of that first day of U.S. v. Randy Weaver and Kevin Harris, this jury already was sifting through the rhetoric and mulling the basic questions it would use to decide the case: Was Randy Weaver set up? What started the gunfight? Why was Vicki Weaver killed? And the larger questions: Who was responsible for what happened? How do we expect our government to treat those in society with antisocial beliefs?
The jurors filed out of the room and the lawyers—by nature an intelligent and insecure breed of people—felt the shooting pain of doubt: Did I reach anyone at all? By that time, it didn’t matter whether Spence’s wavering voice was real or not, because, for lawyers on the job, something like emotion is so closely tied to the effect of emotion that when the briefcases are closed at the end of the day, only one thing counts: Did it work?
For all the charges of conspiracy, all the philosophy of government power and racial hatred, for all the maneuvering on both sides, the opening statements boiled down to: Who shot first? For the next few weeks, the government would try to prove the Weavers and Kevin Harris chased the deputy marshals through the woods and shot Bill Degan in cold blood. The defense attorneys would try to show that the marshals killed Striker and then turned their guns on Samuel Weaver. Everything hinged on that shoot-out, the witnesses’ credibility, the Weavers’ mistrust of the government, and most important, the ethic, the cohesive view of the world, that Spence and Nevin were trying to get across to the jury.
LARRY COOPER WAS some witness. He was poised and authoritative, a good example of what a law enforcement officer should look and sound like. On the first day of testimony, Thursday, April 15, Ron Howen led the deputy U.S. marshal through his impeccable background (Marine Corps, bachelor’s degree in criminal justice, police officer, border patrol) to his decision to join the marshals service and the Special Operations Group to his friendship with Bill Degan, who Cooper said “was like a brother to me.”
Cooper testified that he had trained Arthur Roderick as well and that he knew all of the deputy marshals on the August trip to Weaver’s cabin except Frank Norris. Howen had him list all the gear they brought on that trip and all the weapons. All morning, Cooper described the way they got ready for the mission, how they drove up to the woods and spent several hours watching the cabin. They were getting ready to leave, he testified, when the dog charged down the hill, bringing the Weaver men down with it. He described the pell-mell retreat into the woods, spinning around to shoot the dog, deciding against it, watching Randy run away, and seeing Kevin and Samuel walk toward himself and Degan.
Bill Degan went up on his left knee with his weapon to his shoulder, pointed in the direction of Kevin Harris and Samuel Weaver, and he said, “‘Stop, U.S. marshals.’” And then Kevin “brought the weapon around to hip level and fired.” Cooper said he fired back at Harris, who “dropped like a sack of potatoes.” And then he turned his gun on Samuel Weaver. Cooper said he heard two shots—presumably the shots that killed Striker—and heard Samuel yell “You son of a bitch!” and then run away down the trail. Cooper couldn’t tell if the boy had a gun. “I decided that Bill didn’t fire, that Samuel had not fired at Bill, and that he was a thirteen-year-old kid and I wasn’t going to shoot him.”
It was a big hole in the government case. Ballistics experts would later say that a bullet from Cooper’s gun hit Samuel Weaver in the back and killed him, and yet Cooper still insisted that he saw Samuel alive, running away after he’d fired the last time.
He described Degan calling out to him, said he fired another three-round burst into the woods, and ran to find his friend. Degan was lying on his side, blood in his mouth, gurgling just before he died.
Cooper’s lips pursed, and he fought back tears. “I put my left two fingers on his left carotid artery and … I get three or four heartbeats and then it stops.”
Howen immediately asked the judge if they could break for the noon recess. As they walked out of the courtroom, reporters couldn’t believe Howen had blown the chance to humanize the government and use Cooper’s emotion. There was little doubt what Spence would’ve done with a moment like that.
COOPER TESTIFIED ALL AFTERNOON, detailing Frank Norris’s attempts to revive Degan, the yelling and gunfire up the hill, and the exhausting wait for help. The jury seemed captivated as he described the driving rain and the difficulty getting Degan’s body down from the ridge. Rather than leave it for the defense, Howen stepped on the other big land mine in Cooper’s testimony. Cooper described Jurgenson taking their rifles and counting how many cartridges were missing, and Howen asked if Cooper found anything surprising about that count.
“Yes, sir, when they told me that Degan’s magazine was missing several rounds.”
“Had you ever been aware of, prior to that time, that he had even fired his weapon?” Howen asked.
Somebody had killed Samuel Weaver. Cooper claimed it wasn’t him, but the only other person who fired enough times to kill Samuel was Degan, yet the government claimed the first shot in the gunfight was the one that hit him in the chest. So he’d have to squeeze off seven shots, one at a time, with good enough aim to hit someone running away. With a debilitating, fatal chest wound. Prosecutors hoped that such facts—damaging as they could be to their case—would just blend in with the other facts they presented and would be overshadowed by the Weavers’ overall responsibility for the shoot-out. Howen asked a few more questions, including one about Degan’s funeral, then told the judge he had no further questions.
After seven months of preparation, David Nevin had the first shot at a government witness, and it couldn’t have been a more important one. Cooper was the only witness—other than Kevin Harris—to the death of William Degan. In fact, this was probably the most important witness against his client.
But Nevin was stewing about a stunt Howen had pulled earlier. In his opening statement, Nevin had contrasted the marshals’ guns—with laser sights—against Kevin Harris’s old hunting rifle and its iron sights—a post on the muzzle of the gun and a tiny ring near the breech, two pieces that are lined up to aim the gun.
At one point during his earlier testimony, Cooper changed into the full camouflage that he’d worn the morning of August 21 and held the gun he’d used, the Colt Commando 9-mm suppressed submachine gun—a powerful machine gun with a silencer. Howen asked Cooper several questions about laser sights, a device that placed a red beam right on the target. Then, with uncharacteristic drama, Howen had Cooper point the gun he’d used last August at the prosecutor’s chest and turn on the device on top, the device Nevin had called a laser sight.
“Is that not what we commonly call a flashlight?” Howen asked, the plain, white light shining on his gray suit.
“It is, sir.”
“It is not a laser sighting device as counsel stated in his opening statement?”
“No, sir, it’s not,” Cooper said.
“You can buy something like that for about thirty dollars or forty dollars at any Kmart or Fred Meyer store?”
Nevin was pissed. He felt as though he’d been set up, and he wasn’t about to lose credibility with the jury on something like that. When the prosecutor was finished, he leaped up and asked Cooper if he knew the FBI agent sitting at the prosecution table, Gregory Rampton.
“Did you know that Mr. Rampton led me to believe that was a laser sight on—”
Howen interrupted. “I object to counsel testifying at this time.”
Nevin came right back in and asked Cooper if he knew “Mr. Howen was going to do a little demonstration with the gun pointed at him?”
“Yes, sir.”
“You guys kind of planned that out before you started?”
Cooper said they had.
Nevin would later wonder if his defensive beginning was a bad idea. It was several minutes before the blood drained out of his face and he moved on, right to Frank Norris, the only one of the deputy marshals whom Cooper didn’t know before the shoot-out. The attorney tried to paint Norris as an outsider among a group of men who’d worked together often.
Nevin and Cooper sparred over minor points like the law officer’s insistence on calling the cabin “a compound.”
“It sounds like you’re using the term to imply that it’s a highly fortified area designed to be defended and strategically protected, that kind of thing. Did you mean to imply that?” Nevin asked
“It certainly was well defended,” he answered.
“You know about the luck that Mr. Weaver had in trying to defend that property?”
Nevin also tried to shake the picture of Cooper as an experienced law enforcement officer, impeccable in his observations and cool under pressure.
“Up here on Ruby Ridge was the first time you ever fired a gun in the course of duty, except on the shooting range, right?”
“That is correct, sir.”
Nevin asked why the marshals went to a shooting range the day before the shoot-out, and why Cooper needed a 9-mm machine gun with a suppressor. No reason, Cooper answered.
“You just carried a heavier, less effective weapon by accident?”
Nevin bounced back and forth between questions about the dog and questions about the gun, pulling the two strands together carefully, gaining momentum. Wouldn’t it be difficult, he asked, to carry on an undercover operation with a dog like Striker around? And wasn’t the only useful thing about the 9-mm machine gun the fact that it had a silencer?
Then Nevin asked why they’d thrown rocks at the dog. Just to see what it would do, Cooper answered.
“You wanted to lure that dog up the side of that hill so you could take him out with your silenced gun.”
“No, sir.”
“You carried that heavy gun that was less capable up there for that purpose, didn’t you?”
“No, sir.”
It was the best weapon of a defense attorney. The prosecution got to parade witnesses up on the stand just to tell the story, but defense lawyers had a more difficult job, punching holes in the government testimony, then hoping the jury would connect the dots. Nevin tried to show the jury what he’d realized in the woods that day: the marshals were planning to kill Striker all along. That was why they brought the silenced gun and why they threw rocks. They weren’t supposed to provoke a gunfight and they did, and that lie called into question everything else they did.
Nevin also pounded at Cooper’s first interview with the FBI. In the report of the interview, called a 302, FBI agents quoted Cooper as saying he pointed his gun above the rock he was hiding behind and fired off a three-round burst, possibly the shots that killed Sammy Weaver. Cooper said he never fired blindly into the woods, that he’d never said that to FBI agents, and that his 302 didn’t imply that.
During another break, Nevin had Cooper change back into his camouflage clothing, including the net mask. He had Cooper put his pack on, grab his rifle, and stand in front of the model of Ruby Ridge, in front of the jury. Cooper’s blue eyes peered out at the jury from two silver-dollar-size holes in the mask, the rest of his body completely covered in black and camouflage, a floppy canvas jungle hat perched on his head.
“Suppose you were walking through the woods,” Nevin said, “and you don’t have in mind to assault anybody…. And imagine that suddenly you encounter somebody who’s dressed like you are. How do you think you’d respond to that?”
“If they weren’t pointing a gun at me, I would be curious as to what was going on. I might even decide to leave the area.”
But Nevin kept at him. “What if one of them was right here and shot your dog right there next to you, bang, with a gun, just like that?”
Cooper didn’t lose his temper. He calmly said, “That didn’t happen, Mr. Nevin.”
SPENCE TOLD NEVIN he did a great job, but David was stuck with his usual second-guessing. He’d tried to shake Cooper on several points, but Cooper was a strong witness. He stuck by his story, and Nevin worried that he hadn’t gotten across to the jury how important Degan’s seven shots were and how ridiculous it was to bring a machine gun with a silencer on such a mission.
He asked a few more questions the next day, and then Spence took over the Cooper cross-examination. He got right to the issue.
“So, the problem we have here is that the government relies on you, the defense relies on Kevin Harris. It is your word against his. That’s the situation, isn’t it?”
He asked how many times Cooper had gone over his version of events, how many people he’d told it to.
“You’ve had what, seven, eight months since this event to get your testimony straight?” Spence asked.
“Same as everyone else, sir.”
Spence asked about the Y, the fork in the old logging trails where he and Roderick and Norris waited all day for help. “So you will admit you had over twelve hours to sort of get your perceptions about what took place—your stories about what took place—all lined up; isn’t that true?”
“Counselor, my perceptions maybe,” Cooper answered. “But if you are implying that we sat up there and talked to each other about our stories—”
Spence asked if Cooper told his story to anyone else after Degan’s funeral.
“I came back, but I don’t recall going into the story of what happened up there.”
“The story of what happened,” Spence repeated.
“The truth of what happened, Mr. Spence.”
“Is it okay if we use the word story to do that?”
“I can’t control what you do, Mr. Spence.”
“No,” the attorney said. “You can’t.”
Spence took every opportunity to redefine Cooper’s testimony and to show the jury the worldview he was creating. Cooper described surveillance of “the compound,” but in Spence’s words, it became “this little residence with the chickens, the zinnias, the dogs, and the kids.” Samuel Weaver became “little Sammy, whose voice hadn’t even changed, much to his own embarrassment.” Striker became Old Striker and in coming days, That Big Ol’ Yella Lab, and finally, Old Yeller, Who Never in the History of the World Bit Anybody.
Ah, the dog. Spence had plenty of questions about the dog. “Now the dog’s big crime was that he was following you, isn’t that true?”
Howen objected.
Spence tried again. “Did the dog do anything … that was illegal?”
Howen objected.
“Let me put it to you this way. As a member of the Special Operations Group, had you in your training been taught that because … you had automatic weapons and you were wearing camouflage gear, you had the right to kill somebody’s dog?”
“No, sir,” Cooper answered. “That has never been taught to me.”
Spence just kept asking about the dog. He asked whether Cooper had a dog, whether he liked dogs, whether dogs generally chase people who run away. “Do you know of anyone in the history of the world that Striker ever bit?”
Cooper admitted he didn’t.
“Did anyone ever tell you,” Spence asked, “it’s against the law to kill a person’s dog?”
Spence got to the question that had intrigued the defense attorneys from the beginning. “As a man who has thought about this case a lot, Mr. Cooper, does it make sense to you that Officer Roderick would be shooting the dog after Mr. Degan is dead, after Mr. Degan is shot?”
Of course, Howen objected.
ONLY TWO DAYS of testimony, one witness into the trial, and Spence was already pushing the envelope. He kept trying to ask Cooper if he thought the defense’s version of events made more sense than the prosecution’s. Howen repeatedly objected, and Lodge sustained most of the objections. But Spence kept asking the same questions, until the judge slammed his hands on his desk and ordered the attorney to stop.
Spence immediately moved for a mistrial, and Howen objected to the motion for mistrial in front of the jury.
“What we’ve got here is counsel who gets to his feet and accuses me of improprieties,” Spence said, pointing at Howen. “When the court sustains him, the court not only sustains the objections, but it sustains in the eyes of the jury his argument that I am improper.”
Spence said it would be impossible now to put on a case. “I think I have been irreparably injured, and I ask for a mistrial.”
Judge Edward Lodge was a grandfatherly man, white-haired and soft-spoken, a former football star. In Idaho, he had the reputation as a patient and wise judge who stayed on schedule and didn’t mess around. He called Spence’s motion preposterous and denied the bid for mistrial.
The constant bickering—Spence objecting to Howen objecting to Nevin’s objection—had become comical, but Lodge wasn’t amused.
“Your Honor,” Howen said at one point on the second day. “In my twenty years of prosecuting, I have never had anybody object to the way I number exhibits.”
Prosecutors complained that Spence wasn’t asking questions. He was testifying, introducing information, and throwing around theories barely disguised as queries. And the questions he did ask, Howen said, were “inflammatory and repetitious.”
Spence said the judge’s rulings hamstrung him. “We can’t have a fair trial if this jury believes I’m some kind of charlatan … breaking the rules.”
Lodge said he wasn’t trying to make Spence look bad; the attorney was doing that himself. “I’m not going to play games with either counsel. This has been a personality problem from day one,” Lodge said in the middle of day two. “So start acting like professionals.”
AS THE INFORMANT Ken Fadeley took the stand, some of his testimony was already lost to the prosecution. The hail of pretrial motions largely had been focused on the question of Randy Weaver’s beliefs. Spence had argued eloquently that the government’s plan to dredge up every unsavory deed and belief of the far right was prejudicial. And focusing the case on his religion—even if it was a racist religion—was a violation of Randy’s religious freedom. “Our religion,” he’d said, “our very belief in God, although probably conventional, is our own business.” Howen argued that Weaver’s beliefs were the very point of this case, the reason he wanted a shoot-out with federal officers. Judge Lodge tried to negotiate the middle, agreeing that some evidence would be allowed in, but some wouldn’t—like the first taped meeting between Randy Weaver, Frank Kumnick, and the fictional biker, Gus Magisono, during which Randy made it clear that he didn’t want to join their new criminal gang but also made it clear he had some pretty ugly beliefs.
“Call Kenneth Fadeley.”
He looked like the biggest accountant at the firm, the guy leading the company softball team in homers. Bald and thick, with ruddy skin and glasses, Fadeley hadn’t seen Randy Weaver since the meeting when Randy accused him of being a snitch. Fadeley had been at home last August when he heard about the shoot-out and Degan’s death from an ATF agent who called him. Fadeley had set the telephone down and started crying.
Now, on April 19, the fourth day of the trial, Fadeley settled into the witness chair and began laying out his undercover work, the Aryan Nations World Congresses, the meetings with Kumnick and Weaver.
He described one of the last meetings, during which Randy seemed agitated. “He felt he was being prepared to do something dangerous for the white cause,” Fadeley said. “He would give 110 percent to whatever it was he felt he was being prepared to do, and it was dangerous and something he had to do.” Fadeley did everything the prosecution wanted, put Randy at the Aryan Nations, placed him in context with a breed of criminals and racists. It was strong, compelling testimony that perfectly set up the tapes.
Jurors put on wireless headphones and listened to recordings of Fadeley’s telephone call to the Weavers’ house, the meeting at Connies, where Weaver sold him the shotguns, and the final meeting in Fadeley’s car. They heard racist small talk and Randy’s demand for $300 for a double barrel gun and listened to him say, “I heard you were bad.” For hours, they listened to scratchy, fuzzy meetings between the white separatist and the informant—the poor quality of the tapes just adding to the sense of shady, criminal behavior. The language was profane and racist and Fadeley was such a good witness, he apologized to the jury for his part in it.
On one taped telephone conversation, Vicki Weaver answered the telephone. Hearing her voice at the defense table, Randy began crying.
Still, the prosecution’s case was as good as it was going to get. They had the strong testimony of Cooper, two credible FBI agents talking about evidence, and now Kenneth Fadeley, exposing Randy’s racism and gun dealing. Putting an informant on the stand was usually problematic for the prosecution, because informants often had a criminal record themselves and were getting some sort of deal for their testimony. But Fadeley was different. Whatever reason he had for going undercover—thrills? moral indignation? money?—he was no criminal. He seemed unshakable.
At the end of the fifth day of the trial, Lodge instructed the jurors to ignore a news event that was playing itself out 2,000 miles away, in Waco, Texas. There, a poorly executed ATF raid two months earlier had dissolved into a gun battle that left ten people dead and sparked a standoff between David Koresh’s apocalyptic Branch Davidian church and federal officials. Richard Rogers and his Hostage Rescue Team had responded and spent the next fifty days trying to negotiate a settlement. But that afternoon, on April 19, 1992, the FBI sent tanks to open holes in the walls of the Branch Davidian compound for tear gas, and a fire—probably set by the people inside—erupted, killing eighty people. Jurors were to ignore that case, Lodge said, and not to connect anything that was happening in Waco with the case before them.
Little did he know those two cases would be linked forever and would help fuel a movement that would eventually lead to the bombing of a federal building and the deaths of 168 more people in the name of conspiracy.
CHUCK PETERSON WAS SCARED to death. Kent Spence told him that if the cross-examination of Fadeley went bad, the whole case might be lost. “If they can’t believe us about the initial stuff,” Kent said, “they’ll never believe us when we ask them to disregard a marshal.”
Gerry Spence had given Peterson a quick lesson in his trial methodology: creating a story and telling that story with every witness, with every question. “Every time you stand up, you tell the story again.” Now, the old master was ready to turn Peterson loose on one of the most important witnesses in the case.
“You know,” Spence said, “I’ve never done this before.”
Oh shit, Peterson thought. I’m going to die out there. Initially, Spence was going to cross-examine all the witnesses, but Peterson had worked hard and had prepared for Fadeley, and so Gerry had offered him a crack at the informant. But now, clearly, Spence was having second thoughts. Peterson had done plenty of cross-examinations, but never in place of the best attorney in the world.
“Look” Spence said. “I’m going to be there, and we’re going to get through it. Now, you’re going to say, ‘You lie for a living?’ Right? And you’re gonna say, ‘That’s how you make your money?’ Right? And ‘You like to lie?’ Right?”
Peterson hadn’t thought of any of those questions. “Wait, I’m here to help you,” Peterson said. “You don’t have to let me cross.”
“No,” he said. “I’ve got to do this.”
Peterson started slowly. He called the informant Magisono. “Excuse me, it’s Fadeley, isn’t it?” It seemed Fadeley had several names. And there were other things that Fadeley said that weren’t true. He wasn’t a biker, was he?
No, Fadeley answered.
“So that was a lie?” Peterson asked. Then he asked if Fadeley really was a gun dealer.
No, Fadeley answered. That was another part of his cover.
“That would have also been a lie?” Each time Fadeley admitted lying, Peterson turned and scratched another red hash mark on the standing chart. It wasn’t long before Peterson had counted thirty-one lies.
Then he turned to Fadeley’s undercover work at the Aryan Nations, where he’d talked to guys like Randy and Frank Kumnick and had written down license plate numbers in the parking lot.
“I used to live there in Coeur d’Alene,” Peterson said. “There’s a little Free Methodist Church down the road not too far there from Hayden Lake. Did you stop there and get all the license plates, too?”
“No, sir.”
Peterson asked about the Catholic church, then the Episcopalians, the Baptists, the Quakers, and the Lutherans. “Those people were not considered by you worthy of taking their license plates. They weren’t a danger, were they?”
He asked questions about how poor Randy was and how often he said he was just trying to feed his family. Then he asked why only certain meetings were taped. Why, for instance, wasn’t the actual meeting taped in which Randy offered to sell sawed-off shotguns? Fadeley said he didn’t know before the meeting that Randy was going to suggest that.
But Peterson asked if it was because the informant didn’t want any evidence of entrapment. There were several meetings without tapes or notes, Peterson pointed out.
“Didn’t ATF tell you, ‘Don’t record those initial conversations when You’re talking to this guy about the money and getting him to do the deal? You don’t record those because then there’d be evidence of entrapment that could be used against us.’”
“That’s wrong,” Fadeley answered.
They talked about the October 11 meeting, in which Randy and Fadeley both pointed at the barrel of the shotgun that Randy was going to saw. Fadeley said that when he pointed, he was only making sure he understood where Weaver had pointed. But Peterson suggested he was showing Randy exactly where to cut the gun off.
And then they started talking about money.
Peterson asked how much Fadeley would get paid for the case.
Fadeley said he didn’t know.
“It certainly would have something to do with the number of lies you told throughout the case, wouldn’t it?”
“I was told I’d be paid case by case,” Fadeley said later. He got expenses, and “after we concluded a case, there may be a monetary settlement possible.”
“And you would assume that … you would have to get him convicted, right?”
“If he was guilty,” Fadeley answered.
“Well, if you don’t get a conviction, you don’t get any money, right?”
Fadeley considered it. “I would assume so.”
“And that’s not just your assumption, sir,” Peterson practically leaped over the podium. “If Randy Weaver gets acquitted of this gun case, you don’t get paid, right?”
“I guess so.”
A bonus for a conviction? Suddenly, the perfect witness, the unshakable informant, had a reason to lie. When Peterson turned around, Spence and Nevin were grinning at him.