When asked why he did it, McCann made the statement that became infamous, the words that became the subhead of every story written about the slaughter at the time:
“I did it because they made fun of me, and because I could.”
At the time, no one imagined the possibility that Clay McCann would be released from jail three months later to return to his home and law practice.
That he’d committed the perfect crime.
4
“EXPLAIN THIS TO ME AGAIN,” NATE ROMANOWSKI said to Joe over coffee in the small dining room of Alisha Whiteplume’s home on the Wind River Indian reservation.
“It’s about jurisdiction and venue, and what they call ‘vicinage,’” Joe said. “It’s a hidden loophole in the federal law. Or at least it was hidden until recently.”
A large-scale map of Yellowstone was spread out on the table between them with cups of coffee and the pot holding down the edges.
“Yellowstone was established as the first national park in the world in 1872 by an act of Congress. The boundaries were drawn before Wyoming, Idaho, and Montana were granted statehood,” Joe said, pointing at the strips of national park land that extended beyond the square border of Wyoming—which contained more than ninety-two percent of the park—north into Montana and west into Idaho. “About two hundred and sixty square miles of Yellowstone is in Montana, and about fifty in Idaho. The law in Yellowstone is federal law, not state law. If a crime is committed there, the perp is bound over under federal statutes and tried either inside the park at a courthouse in Mammoth Hot Springs, or sent to federal district court in Cheyenne. The states have no jurisdiction at all.”
Nate nodded while he traced the boundary of the park with his finger on the map. He was tall with wide shoulders and a blond ponytail bound with a falconer’s leather jess. He had clear ice-blue eyes and a knife-blade nose set between twin shelves of cheekbones. A long scar he received two years before from a surgical knife ran down the side of his face from his scalp to his jawbone.
Joe continued. “Because Congress wanted to keep Yellowstone all in one judicial district, it overlaps a little bit into two other states, these strips of Montana and Idaho. Got that?”
“Got it,” Nate said, a little impatiently.
“That’s where the problem comes in with Clay McCann and the murders,” Joe said. He’d read most of the file the night before and finished it before breakfast that morning before taking the girls to school and driving to the reservation. “Article Three of the Constitution says the accused is entitled to a ‘local trial,’ meaning a venue in the state, and a ‘jury trial’ but doesn’t say where the jury has to come from. The Sixth Amendment of the Constitution specifies a ‘local jury trial’—that’s the vicinage. That means the jury would have to come from the state—Idaho—and the district—Wyoming—where the crime took place.”
Nate stopped his finger on the thin strip of Idaho on the map. Boundary Creek separated Wyoming and Idaho within the park. “You mean the jury would have to come from here? Within these fifty miles?”
“Right. Except no one lives there. Not one person has a residence in that strip of the national park. So no jury can be drawn from a population of zero.”
“Shit,” Nate said.
“Clay McCann declined to be tried in Cheyenne, which was his right to decide. He demanded to be tried where the crime was committed, by a jury from the state and district, as the Constitution states. The federal prosecutors in charge of the case couldn’t get around the loophole in the law, and still can’t. It was never an issue before, and there is no precedent to bypass it. The only thing that can be done is to change the district or change the Constitution, and I guess there is going to be legislation to do that. But even if it’s passed . . .”
Nate finished for Joe, “Clay McCann still walks. Because they can’t create a law after the fact and then go back on the guy.”
Joe nodded.
“The son of a bitch got away with it,” Nate said. “Did he know what he was doing?”
Joe said, “That’s not clear. He claims the campers insulted him and he lost his cool. He said in the deposition he’d never seen or heard of the people he killed before he killed them.”
Nate shook his head slowly. “There has to be something to get him on. I mean, I couldn’t just grab you right now and drive you up to the Idaho part of the park and put a bullet in your head, can I?”
“You better not try,” Joe said, smiling. “And it wouldn’t work for you. That would be kidnapping and you could be tried and convicted of that in Wyoming because you planned and carried out a major felony on your way to commit the murder.”
“So McCann’s defense is that he didn’t know the victims were there and hadn’t planned to kill them when he went on his little hike, so what happened . . . happened. He just went on a little day hike armed to the teeth?”
Joe said, “That’s what he claimed in his deposition. And that’s what he said to the court in Yellowstone, where he served as his own lawyer.”
“So the murder of four people isn’t a crime?” Nate asked with a mixture of disgust and, Joe noted, a hint of admiration.
Joe said, “Oh, it’s a crime. But it’s a crime that can’t be tried in any court because no one has the power to give him a proper trial. The only thing they can legitimately get him on is possessing firearms in a national park, and they booked him for that and he was tried and convicted of it. But that’s just a Class B misdemeanor, no more than six months or a fine of five thousand dollars, or both. So there’s no jury trial and the Sixth Amendment doesn’t apply.”
“Jesus.”
“They even tried to get him on a federal statute called Project Safe Neighborhoods that was set up to really nail guys who have a gun on federal property. That would have at least sent him to prison for ten years. But to qualify for that”—Joe dug a sheet out of the file and read from it—“McCann had to be a felon, a drug user, an illegal alien, under a restraining order, a fugitive, dishonorably discharged, or committed to a mental institution.” Joe lowered the sheet and looked up at Nate. “McCann didn’t qualify for any of those. Hell, he’s a lawyer with no past criminal record at all.”
Nate drained his cup and leaned back in his chair.
“I have a feeling he knew about the loophole,” Nate said. “Maybe he just decided to go hunting.”
Joe shrugged. “Could be. Or maybe there’s some kind of connection with the victims, but nobody’s been able to establish one. I want to get more information on him, and I want to talk to him.”
Nate said, “I ought to just drive up there and blow his head off. Everybody would be happy. Hell, he’s a murderer and a lawyer.”
Joe smiled grimly. “That’s not why I’m here.”
“So, why are you here?” Nate asked, knowing the answer.
“I want to ask you if you’ll help me out with this one.”
“You didn’t even need to ask.”
Joe hesitated before he said, “I wanted to see if you were still on your game.”
“Meaning what?” Nate asked, offended.
Joe sat back and gestured around Alisha Whiteplume’s kitchen. “Meaning this.”
Nate was in love.
Alisha Whiteplume taught third grade and coached at the high school on the reservation. She had a master’s degree in electrical engineering and a minor in American history and had married a white golf pro she met in college. After working in Denver for six years and watching her marriage fade away as the golf pro toured and strayed, she divorced him and returned to the reservation to teach, saying she felt an obligation to give something back to her people. Nate met her while he was scouting for a lek of sage chickens for his falcons to hunt. When he first saw her she was on a long walk by herself through the knee-high sagebrush in the breaklands. She walked with purpose, talking to herself and gesticulating with her hands. She had no idea he was there. When he drove up she looked directly at him with surprise. Realizing how far she had c
ome from the res, she asked him for a ride back to her house. He invited her to climb into his Jeep, and while he drove her home she told him she liked the idea of being back but was having trouble with reentry.
“How can you find balance in a place where the same boys who participate in a sundance where they seek a vision and pierce themselves are also obsessed with Grand Theft Auto on PlayStation Two?” she asked. Nate had no answer to that.
She said her struggle was made worse when her brother Bob intimated that he always knew she would come back since everybody did when they found out they couldn’t hack it on the outside. She told Nate that during the walk she had been arguing with herself about returning, weighing the frustration of day-to-day life on the reservation and dealing with Bobby against her desire to teach the children of her friends, relatives, and tribal members. Later, Nate showed her his birds and invited her on a hunt. She went along and said she appreciated the combination of grace and savagery of falconry, and saw the same elements in him. He took it as a compliment. They went back to her house that night. That was three months ago. Now he spent at least three nights a week there, and it was Alisha’s house where Joe located Nate.
Nate was still wanted for questioning by the FBI but thus far had eluded them. Apparently, the FBI had its hands full with more pressing matters. It had been months since Special Agent Tony Portenson had been in the area asking Joe if he’d seen his friend lately.
“What, you think I’ve been domesticated?” Nate asked, incredulous. “You think I’ve lost my edge?”
Joe didn’t answer. He had noticed how Nate’s middle had gone soft as a result of Alisha’s good cooking. Before Alisha, Nate had survived at his stone house on the banks of the river by hacking off cuts of antelope that hung in the meat cellar and grilling the steaks. Now, he sat down to real meals at least twice a day.
“I didn’t say that.”
“I’ll never go back on my word,” Nate said, in reference to the vow he’d made to help Joe when he asked or when he simply needed it whether or not he asked. Nate had made the promise years before when Joe proved his innocence after Nate had been charged with a murder he didn’t commit.
“I’m leaving tomorrow,” Joe said.
At that moment, the door opened and Alisha Whiteplume entered carrying two bags of groceries. Joe and Nate stood, and each took a bag and put it on the counter.
“Hello, Mr. Pickett,” Alisha said cautiously. “It’s good to see you again.”
“Alisha.”
She was slim and dark, with piercing, always amused eyes and a good figure. Joe could see why Nate was enchanted.
“Are you here to take my boy away?” she asked, arching her eyebrows.
“If he’s willing,” Joe said.
“Are you willing?” she asked Nate softly.
He hesitated, looking from Joe to Alisha.
Joe thought, He’s got it bad. Don’t tell me he’s going to ask . . .
“What do you think?” Nate said to her.
She began to pull cans out of a sack and put them away in the cupboards. “I think Joe wouldn’t ask for your help if he didn’t think he needed it, and I’d be disappointed in you if you refused because you wouldn’t be the man I know and love.”
Nate said to Joe, “It’ll take me a couple of days to finish up some business. Where will you be staying in the park?”
“I’m not sure yet,” Joe said, choosing as always not to ask Nate what his business was. “It’s about to close for the season. Either Mammoth, Old Faithful, or West Yellowstone. Those are the only places still open. I’ll call when I know.”
Nate nodded. “Come with me for a minute.”
Alisha said good-bye to Joe and resumed putting groceries away. Joe followed Nate outside to Nate’s Jeep.
“She’s something,” Joe said.
“Damned right,” Nate answered, swinging up the back hatch and flipping open the lid on a large metal toolbox. He removed the tray of tools on top to reveal a stash of weapons underneath. Nate’s .454 Casull, manufactured by Freedom Arms in Freedom, Wyoming, was a heavy five-shot revolver of incredible power and accuracy in Nate’s hand. It was on top.
“What are you carrying up there?” Nate asked.
“My shotgun, I guess,” Joe said. He hadn’t given weapons any thought. “And I’m not even sure about that. It’s illegal to have a firearm in the park, like I mentioned.”
Nate’s look of disdain was epic. “Fuck the Park Service,” he said, digging into the box. “We’re Americans last I looked. That’s the only thing about this situation that causes me heart-burn: helping out the Feds.”
“Actually, I’m working for the governor.”
“They’re all the same,” Nate grumbled, digging into the box and handing Joe a semiautomatic Glock-23 .40.
“You’ve used one of these, right? Thirteen in the magazine and one in the chamber, so you’ve got fourteen rounds of high-caliber hell. Buy some shells, practice a little so you get familiar with it. It’s a damned good weapon, and practically idiot-proof. Rack the slide and start blasting. No hammer to get caught in your clothes, no safety switch to forget about.”
“Fourteen misses,” Joe said, alluding to his ineptitude with a handgun. “That’s why I’m bringing my shotgun.”
“Twenty-seven misses,” Nate said. “There’s an extra full magazine in a pocket on the holster. Take it anyway. You never know. It’ll make me feel better if you have it.”
Joe started to protest, but Nate’s expression convinced him not to start an argument. He’d carried a Glock .40 before since it was the assigned weapon of the Game and Fish Department. His last weapon was thrown into the Twelve Sleep River after the situation with the Scarlett brothers. At the time, Joe had thought he’d never carry a handgun again, and that was fine with him then, and fine with him now. Handguns were good for only one thing: killing people.
“What about this letter to the governor,” Nate said. “Can you figure anything out about it?”
Joe shook his head.
“Or the fact that four of the Gopher State Five got whacked? Who is Gopher State One?”
“No idea.”
“The governor is okay with me assisting?”
“He doesn’t want to know about it.”
“I can’t say I blame him,” Nate said, reaching for the .454.
JOE FOUND BUD Longbrake in the Quonset hut working on the engine of his one-ton truck. Bud was perched high on the front bumper, leaning in over the engine. Eduardo stood on the dirt floor next to the truck handing up tools as Bud called out for them. They’d not fired up the propane heater in the corner of the building, so it was colder inside than it was outside. Bud had a policy about not turning on the heaters before November, as if to defy the coming of winter until its proper time on the calendar. Joe noticed he wouldn’t even use the heater in the truck until then.
“I’ll take over if you don’t mind,” Joe said to Eduardo.
“No problema,” Eduardo said, stepping away from the toolbox and blowing on his hands. “I need to eat some hot lunch.”
“Seven-eighths socket,” Bud called down.
Joe snapped the attachment on the wrench and handed it up.
“Goddamn mice get in the engine and chew up the belts,” Bud grumbled. “I gotta put new belts on every year.”
Although Bud hired contractors in semitrucks to haul cattle to buyers, he liked to move his brood stock to lower pasture himself behind the one-ton. His plans were always delayed until he got the truck running again.
“Bud, I got offered my old job back,” Joe said.
There was a slight hesitation in Bud’s hand as he reached down for the socket wrench.
“I took it,” Joe said.
Bud cranked on a bolt. “I figured you probably would.” “I’m sorry.”
“Don’t be,” Bud said. “You need to do what you’re good at.”
“Thank you.”
Bud worked for a while without saying anything and
called for the fresh belt. Joe unwrapped it from the packaging and handed it up.
“You’ve always got a job here if you want it,” Bud said. “You’re a good hand.”
It was the ultimate compliment on a ranch, Joe knew, and it made him feel guilty for leaving. Worse, he had to ask, “I was hoping we could come to an arrangement for Marybeth and the kids to stay here for a while longer. At least until we can get a house in town.”
Bud snorted. “Why do you even ask me that?”
Joe didn’t know what Bud meant and froze up.
Bud said, “Of course they can stay. I’ll work up some kind of rent deal and let you know. I don’t want you even thinking about moving for a while. I like having you around here and I’d miss the hell out of those girls of yours.”
“Thank you, Bud,” Joe said, genuinely grateful.
“I’ll give Eduardo a raise,” Bud said, as much to himself as to Joe. “Make him the foreman and see how he works out. I think he can do it, as long as the immigration people don’t come sniffing around.”
“Sorry to spring this on you now,” Joe said.
“There’s never a good time on a ranch,” Bud said. “But with winter coming, this is as good a time as any, I guess.”
Bud fit the belt on and tightened the bolts. “They giving you a vehicle?”
Joe and Marybeth had only the family van. “I’ve got to pick one up in town,” Joe said.
“You need a ride to go get it?”
“Sure,” Joe said, feeling bad about letting this good man down.
“I’ll finish up here and give you a ride,” Bud said.
AS THEY WALKED to the main house, Bud turned with his grease-stained finger to his lips and said, “Shhhh. Missy is taking a little nap. That art meeting went until all hours last night.”
Joe felt a tingle in his heart.
“She didn’t get back until three this morning,” Bud said in all innocence. “They must have had a lot to discuss.”
Joe bit his lower lip to keep from saying anything. He waited on the porch while Bud went inside for his keys.