Ruby Ridge Page 34

  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 writ
e 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.