Ruby Ridge Page 36

  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.

  “No, sir. I had not.”

  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?”

  “I believe so.”

  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.