Ruby Ridge Page 41

  Howen led Norris through the direct testimony, again tripping his own land mine rather than leave it for the defense. What was the first shot he heard that day, Howen asked.

  Norris knew it was coming. All the other deputy marshals had testified that it was a heavy-caliber shot, but they all sounded alike to Norris, and he had told the same story since the first day. He told it again now. “I thought it sounded like a two-twenty-three.”

  Ellie Matthews took just a few minutes for his cross-examination, establishing that Norris told FBI agents it was the “distinctive sound of a two-twenty-three,” the guns the marshals and Samuel Weaver were carrying, and not the 30.06 that Kevin Harris used to kill Degan.

  Spence was next. “So what you heard would be consistent with Mr. Roderick shooting the dog, followed by two shots, also of a two-twenty-three, consistent with Sammy, when he hollered, ‘You son of a bitch! You killed my dog!’ and fired two shots at Mr. Roderick. That’s all consistent with what you heard, isn’t it?”

  Howen objected. But Spence knew the jury had gotten it. He asked only a couple of dozen more questions, managing to squeeze the words “distinctive sound of a two-twenty-three” into five of them. When he was done, Spence said, “Thank you, Mr. Norris.” And he meant it.

  COULD IT GET WORSE? Each time it seemed Ron Howen made some progress, the muscular prosecutor was forced to apologize for evidence problems or for a witness he’d forgotten. On May 25, he had especially sour news. A bullet the government wanted to enter into evidence had apparently been picked up by an FBI agent below Ruby Ridge, then placed back in about the same place later, and photographed.

  Spence and Nevin had been ridiculing the bullet—they called it the “magic bullet”—from the beginning. It was in almost-pristine condition, unlike the other bullets recovered from the scene of the shoot-out, which had slammed into trees or rocks, bending and twisting the bullets. It was an important piece of evidence because it matched Sara’s.223 rifle, and the government might have tried to show that it proved other family members fired at the Y. But at least two searches of the crime scene with a metal detector had failed to turn up the bullet, and it wasn’t found until the last day of the standoff. Defense attorneys argued from the beginning that it was planted. Now, they said, there was proof.

  “I have been raising all kinds of unprecedented Cain in this case about the magic bullet,” Spence railed. “Today we are told that the photos [of the bullet] we were given were reconstructed photos!”

  More evidence came in doubt that afternoon, when an FBI agent testified that he’d mapped the scene without using triangulation—the standard method of marking evidence by measuring the distance from two fixed points. Because of the thick brush, the FBI agent had measured the distance from only one tree or one rock and could only really fix evidence from one direction.

  Spence asked for precise distances between shell casings at the Y. The FBI agent said he could only give estimates.

  “Nobody knows today where anything was?” Spence asked.

  “Generally,” the agent said, “that’s the way it was.”

  Other FBI agents testified that evidence was lost or misplaced. They were all minor errors that might have gone unnoticed in any other case, but this wasn’t any other case. In some ways, it had become The People vs. the U.S. Government. And the most critical testimony in that case was still coming. The first part had asked: Was Randy a gun dealer and neo-Nazi; the second: Who shot first; and now the trial moved into its final question: Why was Vicki Weaver killed.

  DUKE SMITH KNEW. The associate director for operations in the U.S. Marshals Service, Smith had been on the jet with the FBI’s Richard Rogers when the rules of engagement were devised and was in the helicopter that Lon Horiuchi said he was protecting when he shot Randy Weaver and Kevin Harris and killed Vicki.

  Matthews blistered Smith as much as his laid-back personality would allow. “Isn’t it true, Mr. Smith, that the so-called rules of engagement were primarily established because the United States marshal was dead?”

  “No, sir.”

  “There was no ongoing firefight, was there, when you arrived in Idaho?”

  “That seems to be the case,” Smith said.

  The rules established that lethal force should be used against any adult with a weapon. Matthews pointed out that the marshals’ own statistics showed the Weavers almost never left the cabin without guns. “Weren’t you aware that your actions virtually guaranteed snipers shooting somebody on that hill?”

  Smith said the rules were just guidelines.

  Spence took his turn at the piñata. “You made the rules of engagement before you even talked to the men that were there. Isn’t that true?”

  “That’s true.”

  Spence asked his questions incredulously, with a how-could-you-be-so-stupid tone that burned guys like Smith, who weren’t used to having their authority questioned. “After a year and a half of no confrontations, no injuries, nobody pointing a gun at anybody,” Spence asked, “didn’t you want to know at the time you were making your rules of engagement what had happened to precipitate a sudden explosion like this?”

  Smith’s biggest blow to the prosecution was his description of his ride in the helicopter, which Horiuchi said he heard just before he began firing. Smith traced on a model their low path, which took the helicopter south and west of the cabin, most likely out of rifle range and with only a quick glimpse of the cabin itself. Horiuchi had testified the helicopter was behind him, north of the cabin. If Smith was right, then Horiuchi was protecting a helicopter that wasn’t there.

  The defense attorneys asked if the helicopter had been assaulted or hindered in any way (the exact wording of the charge against Weaver and Harris). Smith had to admit that no, in his opinion, it hadn’t been. In fact, he admitted, it wasn’t even there.

  “Did the helicopter you were riding in ever come behind those snipers over here?” Matthews asked.

  “I don’t believe so.”

  RICHARD ROGERS FINISHED the first half of his testimony, and David Nevin leaned toward a couple of reporters and said, “I don’t know about you guys, but if there’s a fire, I’m following him out of here.”

  The commander of the FBI’s Hostage Rescue Team, Rogers was also the author of the rules of engagement. He was tough and sculpted in a perfectly fitted blue suit, an Irish-looking guy aging better than most of his contemporaries, with thinning hair but a gaze that looked like it could bore holes in younger agents. He answered every question with confidence, a twenty-two-year FBI agent who knew he was in the right.

  Lindquist asked him if the modified rules of engagement were a mandate for snipers to shoot any armed adult.

  “Absolutely not,” Rogers said. “It’s giving them the tools to be able to protect themselves.”

  Spence took the defense’s first crack at Rogers. “The people that get on these [hostage rescue] teams are people who know they are going to be trained to shoot other human beings, aren’t they?”

  “Well, that’s certainly part of it.”

  “And they know when they volunteer that they may have to kill a citizen?” Spence asked.

  “Or a terrorist.”

  “Now listen,” Spence said in the challenging voice he saved for people of authority. “We’re going to be here a long time. Just answer my question, and we’ll get along.” Spence explored his theory that the snipers had been ordered to kill Vicki Weaver. “Would you expect [your snipers] to hit somebody in the head every time at two hundred yards with a ten-power scope?

  “If they’re not moving,” Rogers answered. But he insisted her death was an accident and that they didn’t know about it until almost a week later.

  “Would there be any reason why, if Mr. Weaver was standing next to the front door of his home and screaming at the top of his lungs, that nobody could hear him cry out that his wife had been killed?”

  “Well, sir, clearly it didn’t happen.”

  Rogers was up again the next
day and Spence dove right in, asking about federal agents’ fears of booby traps on Ruby Ridge. “If there were booby traps,” Spence said, “the children and the dog and the chickens and all the rest running around the yard must have a very good knowledge of where they are, so they [didn’t] step on them.”

  The rules of engagement were next. “So you knew that under these rules of engagement, a true ambush had been set up by the federal government, isn’t that true?”

  “Of course not,” Rogers answered.

  “Did you use that rule of engagement at Waco?”

  Finally, even the unflappable Rogers was fired up by Spence. He’d led the HRT’s response to the standoff with the Branch Davidians also, and at Spence’s mention of that case, Rogers flushed red. “Judge, you know, I resent the implication that man has made concerning Waco.” He spun back to Spence. “Are you aware of the fact that no shots were fired at Waco?”

  Ellie Matthews asked if Rogers ever considered the laws of the state of Idaho.

  “In what regard, sir?”

  “In establishing your rules of engagement,” Matthews said.

  “No, sir. I don’t operate under state law. I operate under federal law, which supersedes state law.” The answer went over like a bomb in a courtroom and a jury box filled with Idaho citizens.

  “MR. LON HORIUCHI.”

  The muscle came in first, four buffed, flat-topped FBI agents in boxy suits, eyes shifting immediately to the conspiracy theorists in the back rows of the courtroom. There were already a half-dozen deputy marshals inside, but with the trouble between the two agencies, no one was surprised the FBI provided its own security. The burly agents had been pacing the halls of the federal building since Rogers first testified, but they were even more visible with Horiuchi’s appearance. A neo-Nazi group had published a “Wanted: Dead or Alive” poster featuring Horiuchi, and the FBI was keeping him in a safe house in Boise during his testimony.

  Spence objected to the FBI agents, saying the jury might interpret them as a sign that Randy and Kevin were dangerous. “They sit with Uzis under their arms…. Their presence is very, very conspicuous. They look mean. They don’t smile. They stand around the hallway so you can’t walk through the hallway.”

  Kevin and Randy glared openly at Horiuchi as he sat down in the witness chair. Behind Horiuchi, agents set up the heavy, two-plank door from the Weaver cabin, with its little windows on top, covered by curtains, the bullet hole visible from anywhere in the courtroom. The crude door looked strange so far from Ruby Ridge, here in the middle of a courtroom in the middle of a city. Kevin and Randy fidgeted and bounced their knees as if they might leap over the defense table at any time. The FBI sniper never seemed to look at them.

  Every inch a soldier, Lon Horiuchi said “sir” every time he answered a question. He testified evenly, without a hint of emotion, that he heard a helicopter and thought Kevin Harris was moving to a position to shoot at the helicopter. He said he was trying to kill Kevin Harris when he wounded Randy Weaver. He was also trying to kill Kevin Harris when he killed Vicki Weaver. Horiuchi pointed to a hole in the door’s curtain, which corresponded with the hole in the window as proof that the curtains were pulled and that Horiuchi couldn’t see Vicki Weaver when he fired.

  “Did you intend to shoot her?” Lindquist asked.

  “No, sir.”

  A lot of guns had passed through the courtroom over the previous thirty days, but none like this one. Lon Horiuchi’s sniper rifle was camouflage-painted and bigger than anything they’d seen, with an extra-thick barrel and a huge scope on top, a bipod screwed to the bottom of the gun.

  “This is the gun you shot Mrs. Weaver with and Mr. Weaver with and Mr. Harris with,” Gerry Spence asked, “isn’t it?”

  “Yes, sir, it is.”

  Spence was almost as professional as Horiuchi as he asked the sniper about every detail of the rifle, the orders he was given, and the kind of bullets he used. There was no playful banter with this witness, fewer loaded questions.

  On Horiuchi’s second day on the stand, Spence asked him about the rules of engagement, specifically how they related to the dogs, which weren’t to be shot unless they threatened FBI agents. The Weavers, meanwhile, could be shot just by coming outside with weapons.

  “From your standpoint, the dog had better rights than the human?”

  Lindquist objected.

  There were no doubts about Gerry Spence’s sincerity during his seething cross-examination, a string of knifing questions that left the row of reporters with dry mouths. Horiuchi sat upright, staring straight ahead, answering like a machine. Usually a blur of whispered comings and goings, the courtroom was still.

  “You intended to kill both [Kevin and Randy], didn’t you?”

  “Sir, if they came out all at one time, we were intending to take them all out at one time, versus waiting for one individual to come out and take him piecemeal. Our normal procedures are whenever you have more than one subject, you try to take them out one at a time.”

  Spence laid out his own theory. The snipers knew that the armored personnel carriers would bring the Weavers out into the open. They had plenty of documentation from the marshals about what happened when the Weavers heard a vehicle on their road. The snipers got into position and waited for the family to come out, so they could gun them down. “You testified yesterday the reason you didn’t shoot them [at first] is because you hadn’t expected them to come into sight, that they surprised you?” Spence asked.

  “Yes, sir.”

  Spence cocked his head. “I take it that had you known they were going to be in that position, had you been ready, you would have shot at that point.”

  “Probably not, sir.”

  “Well, I’m confused. You tell me the reason you didn’t shoot is because they surprised you.”

  The prosecution objected, but Spence was moving too quickly to argue the point.

  “You saw somebody you identified as Kevin Harris?”

  “Yes, sir.”

  “You see him in the courtroom?”

  “Yes, sir, I do.”

  “That’s the man you were going to kill, isn’t it?”

  “Yes, sir.”

  “You wanted to kill him, didn’t you?”

  “Yes, sir.”

  Spence had the six-foot-two-inch Harris and the five-foot-eight-inch Weaver stand up and he asked Horiuchi how he could mistake them. He asked if they were told that Vicki Weaver was more zealous than her husband. And then he asked about the second shot. “Just before you shot, you knew the door was open, didn’t you?”

  “At that time, yes sir.”

  “Didn’t you know that there was a possibility of someone being behind the door?” Spence asked.

  “There may have been, yes, sir.”

  “You shot twice and both times you made mistakes; is that correct?”

  Lindquist objected and again, Spence moved on without much argument. He considered asking Horiuchi if he was sorry for what had happened, figuring he’d give some answer like, “Sir, I am not trained to feel sorry.” Then again, he might just say yes.

  “You heard a woman screaming after your last shot?” Spence asked.

  “Yes, sir, I did.”

  “That screaming went on for thirty seconds?”

  “About thirty seconds, yes, sir.”

  “I want us to just take thirty seconds, now pretend in our mind’s eye that we can hear the screaming—” Spence was quiet and whether or not they wanted to, everyone in the courtroom watched the plodding second hand on the wall clock straight across from the jury, one, two…. With the door behind the sniper, a jagged hole in its window, the jury was as close as it would get to the horror of Rachel and Sara Weaver, who screamed and screamed until they were out of breath while their mother lay dead on the kitchen floor.

  IN THE NEXT YEAR, FBI officials reviewing the case would decide no one needed to be fired or prosecuted, in part because Lon Horiuchi wasn’t actually following the modified rules
of engagement. Since the firmly believed that a helicopter was in danger, FBI brass said, Horiuchi was in fact following the bureau’s standard rules—shooting to protect someone else.

  Nevin proposed to the sniper that there was no threat to the helicopter and Horiuchi said yes, there was. “But you were waiting to kill them irrespective of a threat, weren’t you?” Nevin asked.

  “Based on the rules, sir, we could.”

  The defense attorneys challenged virtually every part of Horiuchi’s story, Nevin hauling the door out, standing behind it where Kevin would have to have been to be struck in the arm and chest by the gunshot. Earlier, Horiuchi said he’d seen Kevin flinch. Nevin wondered how Horiuchi could have seen anyone flinch behind the door if the curtains were indeed drawn.

  “Mr. Horiuchi, I’m going to put my arm right next to the door,” Nevin said. “Would you do me a favor? Would you say ‘bang’?”

  “Bang.”

  Nevin shook. “Did I flinch?”

  “I can’t tell, sir.”

  “You can’t see me, can you?”

  “No, sir.”

  Lon Horiuchi finished testifying the afternoon of June 4, on the thirty-second day of the trial, almost two months after it had begun. On the way, he paused and looked over the shoulder of a courtroom sketch artist who had drawn his steady, mechanical face. Later, Horiuchi asked if he could get a copy.

  Ron Howen walked back to his office and slumped at his desk. A package was waiting for him. There was a cover letter from an FBI agent saying the package was in response to an April 13 subpoena for any records generated by the shooting review team. The package contained some documents that already had been turned over, but also notes of interviews with FBI agents that had never been given to the defense.

  Most troubling were two crude drawings by Horiuchi. Scribbled on a hotel notepad, they showed a stick figure approaching a door, a dot on his chest, crosshairs on the door. In one of the windows of the door were two semicircles—two heads. Howen set the drawings down on his desk. Horiuchi had just finished testifying, and now the prosecutor was going to go into court and hand over notes and drawings that showed two heads where the sniper reported seeing none. Of all evidence problems and delays, Howen knew this was the worst. It was the low point of his career.