At midnight on June 11, Howen called his best friend and talked about the grueling trial. He said he’d probably be working until 5:00 a.m. that morning, preparing to fight the defense team’s argument that all the charges should be dismissed.
In court that morning, defense attorneys argued that the government hadn’t proved its case at all.
“No one claims to have seen Kevin Harris shooting except for Mr. Cooper,” Nevin argued. “And everything that Mr. Cooper says about the circumstances that he claims occurred there have been shown by the government’s own witnesses to be wrong.”
After a ten-month apprenticeship, Peterson railed against the conspiracy charge with Spence-like overstatement. “This is perhaps the newest low in the history of American jurisprudence … sinking to the level now of prosecuting families.”
Howen argued that the charges had been proved, beginning with the first count, the conspiracy indictment he’d so carefully crafted. As he spoke, his left hand shook. “We presented evidence that there was a prediction and a prophecy going back to 1983 in Iowa that there was going to be this violent confrontation with federal law enforcement agents who were deemed by the defendant and his wife as being Satanic or Luciferian.”
Howen went through each of the charges, getting to number seven: that Kevin Harris had harbored a fugitive, Randy Weaver.
“And the actions Mr. Harris took in terms of the harboring charge involved him making security patrols with a firearm, transporting food and supplies and mail up to the residence. He took up … residence with them … and …”
Howen paused, shuffled through his notes and looked over at Lindquist, who smiled reassuringly, raising his eyebrows. Howen looked back at his notes and swallowed.
“I’m sorry, Judge,” he said. “I can’t continue.” He sat down, his hands pressed together between his legs. Deputy marshals and local FBI agents patted him on the back, and Lodge called a recess.
When the lawyers came back, Howen was gone. The judge asked Lindquist if he wanted to finish Howen’s argument, but he said no. Then Lodge dismissed one count against Weaver: being a felon in possession of a firearm and one count against both Weaver and Harris: threatening to shoot at a helicopter.
Ten months earlier, Lon Horiuchi had first testified before the grand jury that he accidentally killed Vicki Weaver while trying to protect an FBI helicopter.
JUNE 15, 1993. CLOSING ARGUMENTS. Rachel Weaver rested her head on her aunt Julie’s shoulder, lifted her hand to her chest, and flashed a small wave to her father, who waved back. Sara and her dad made eye contact, and he gave her a wide smile and a slow, easy nod. The girls looked away from Randy to the big, handmade door taken from their cabin, which leaned against a wall where it had been placed as evidence just a few days before.
The courtroom was packed with friends, relatives, reporters, lawyers, and a growing number of people who now saw the Weaver case as representative of federal law enforcement abuse. Federal law officers were there also, including Deputy Marshal Dave Hunt, who joined Lindquist at the prosecution table where Ron Howen was conspicuously absent, another person worn down by the Weaver case. Behind them, the crowd spilled out into the hallway and into an adjacent courtroom, where sound was piped in for those who didn’t get into the main courtroom. “I think half the lawyers in Boise are here,” one attorney said.
Most had come to hear Spence. He stood up at the defense table and scanned the courtroom, going through the ritual that he repeated every time he argued for the last time in a case. Basically, it consisted of this: Gerry Spence got scared out of his wits.
He’d fought it when he was younger and tried to hide it from the jury. But they knew. And he’d become a better lawyer when he admitted that fear to himself and, finally, to the jury. Now, it was part of his method. During a long trial, he tried to force the jury to make a decision—not about the evidence so much but—about him. And so if they found against his client, then he had to face the truth that he’d been rejected and that an ideal that he had believed and represented to the jury had been called a lie. There was no match for the fear of failure that haunted a lawyer who never lost.
At the defense table, the other attorneys shook hands and whispered confidently to Kevin and Randy. Peterson straightened Kent Spence’s tie, and Nevin watched the jury to see if they still hated him for resting Kevin Harris’s case.
“Due to unforeseen circumstances,” Kim Lindquist said, “Mr. Howen is not with us.” Lindquist spread his notes over the podium and ended the way the case had begun, with a reasoned explanation of charges that had lost much of their power since the first week of the trial. But Lindquist brought fire to his closing argument and reminded the jury that a deputy U.S. marshal was dead. To Gerry Spence’s horror, Lindquist, the tight-lipped ex-Marine, stood up there and told a story.
“This trial has a theme,” Lindquist said. “This is the story of … two people, who had the purpose or the resolve to defy the law and then resist the enforcement of that law with violence. Every aspect of this trial is reflected in that theme.”
Lindquist blamed it all on the Weavers’ Old Testament, white-separatist religion. “They believed they were dealing with Satan himself. It became the center of their lives. It became a self-fulfilling prophecy to legitimize their beliefs. If there was no persecution, the core of their religion would have been false, a fallacy. Ridiculous.”
Lindquist wrote hatred in red letters on the evidence pad. He talked about the old Bible study group and the newspaper story with the “300-yard kill zone.”
“That’s Iowa,” Lindquist said, “and the conspiracy has begun.” He held up the shotguns, spoke about the ATF investigation, and the attempt to make Weaver an informant.
“Randy Weaver told them to pound sand. He’d rather wait until they came to get him—Hear my words—he’d rather wait until they came to get him, at which time he’d resist with violence. Because that was his resolve.” He spoke about the failure to appear, the Queen of Babylon letters, and the U.S. Marshals Service’s attempts to negotiate a settlement.
“If any of these marshals had gone up there … and said, ‘We are U.S. marshals and we’re here to arrest you,’ you know what would’ve happened…. The suggestion has been made they were there to ambush the Weavers. [Why would] they go up there without bulletproof vests … and leave the sniper rifle behind?”
He talked about the shoot-out and said, “Kevin Harris murdered Bill Degan while Bill Degan was in the performance of his official duties.”
The defense attorneys, he said, used “histrionics and false expression of emotion.” Vicki’s death was a tragic accident, he said. “I’ve heard speculation; I’ve heard sarcasm; and I’ve heard lots of cynicism. But statements from lawyers are not evidence.”
And then Lindquist returned to his theme, the Weavers’ resolve to have a confrontation with the government. “Why is Vicki Weaver dead?
Because of that resolve. Why is Bill Degan dead? Why is Sammy Weaver dead? Because of that resolve.”
DAVID NEVIN TOLD the jury he’d seen the surprise in their faces when he rested his case. He tried to explain to them that he didn’t need to put on a defense if the government didn’t prove its case. “The government’s case against Kevin Harris is false,” he said. “The government set out to prove Kevin Harris wheeled and fired and killed Bill Degan for no reason.
“They failed for one very good reason. It’s not true.”
Nevin said the conspiracy charge was “a preposterous contention.”
“If Mr. Weaver had wanted to have a shoot-out with the U.S. government, he could have come down any day and done it.” For a couple of hours, Nevin clicked off the inconsistencies in the government’s story, the witnesses who changed their minds and the physical evidence that didn’t mesh with the marshals’ versions of events. He sketched for them Kevin’s story and the marshals’ stories and asked which one made more sense. “I guess you can boil it all down to this: Cooper says he didn’t shoot
Sammy, and he did. He says he did shoot Kevin Harris, and he didn’t.”
Nevin said he also knew they had the choice of convicting Kevin of manslaughter or second-degree murder, and he urged them to go all the way, to rule that he’d acted in self-defense and that he wasn’t guilty. Nevin closed with a quotation from George Washington: “Government is not reason, it’s force. Like fire, it’s a dangerous servant of a fearful master.”
Throughout the trial, some jurors had been more impressed with Nevin’s measured, thoughtful arguments than with any of Spence’s performances. But after Nevin finished, every eye went to the old country lawyer, who was busy conjuring the fear that he used like adrenaline.
Nevin had given the jury the reasons to acquit, and now Spence wanted to give them the desire.
Lindquist’s closing had been about five times better than Spence figured it would be. He’d actually given the jury a way to convict in this case: Ignore the contradictory evidence and find these people guilty because you don’t like them. Spence wondered all over again if he still had it, if he could reach this jury and make them see what he saw, see what he believed.
A friend could tell Spence was nervous, and she called him over to her. “Come over here and let me tell you a joke.”
“Don’t tell me a joke,” Gerry Spence said, “tell me how to be real.”
HE SHOOK RANDY’S HAND, shook the hands of the defense team, and—as he always did—let the jury in on his fear as if it were some secret. “I’ve been at this for over forty years, and I never begin any case the way I feel right now…. I think to myself, can I do what I need to do now? … I need to be the best lawyer I can be in the next two hours and thirty-five minutes.”
And then he talked about the jury. Two jurors were in their seventies, three in their sixties, and only one was younger than forty-three. Spence said he hoped he didn’t offend them, but he guessed their average age was forty. “You may be the most important jury that’s come along in a decade,” he said. “This is a watershed case … a case kids in law school are going to read about.”
During the trial, Judge Lodge had ruled that Spence had to remain in one place, something the lawyer called “a spastic embrace” with the podium. Now Spence was allowed to move around the courtroom and he ran like an unleashed dog. He walked over and knelt next to Randy, looking into his eyes. “Randy, I’ll tell you what you’re guilty of. You’re guilty of being one stubborn mother. You are guilty of being afraid.” He looked up at the jury. “And aren’t we all guilty of being afraid?”
Spence threw everything he could think of into his argument. This was no time to be subtle. He accused the government of a cover-up and spun out new theories—Vicki was murdered because they thought she was a witness at the roadblock. Degan’s own men shot him. He told a story about a talking swan and another about a boy who crushes a bird. Federal agents were “the Waco boys” and “the new Gestapo in America.” He introduced his wife Imaging and had her stand, introduced Weaver’s daughters and had them stand twice (“I want him to walk out and be free with his little children.”), clapped his hands in front of Lindquist’s face and yelled, “Wake up!” at the prosecutor.
Like a man stumbling around in a dark room, Spence’s argument was all over the place until—as always—he found the switch and turned on the lights.
His voice boomed through the courtroom. “Marshals aren’t supposed to shoot little boys in the back!” Sara shuddered. “A little boy whose voice hadn’t even changed!” Rachel sat up straight and squeezed her aunt’s hand. “This is a man who has been the victim of a smear and had his wife and son killed. And I don’t want him hurt anymore.
“This is a murder case,” Spence said. “But the people who committed the murder have not been charged, and the people who committed the murder are not here in court.
“Randy Weaver was not a criminal,” Spence said. “He had no propensity to commit crimes. This is a man who never even had a traffic accident, never even had a traffic ticket. Never been charged with a crime of any kind and honorably served his country.
“I want to talk to you about … punishment. Randy Weaver would willingly go to the penitentiary for the rest of his life if he could have his boy back. Randy Weaver would go to the penitentiary for the rest of his life … if he could have Vicki back. Hasn’t he been punished enough? Doesn’t this terror and this horror have to end sometime? Shouldn’t it end with you, and shouldn’t it end without having to compromise? Shouldn’t this jury have the courage to stand up and say, ‘No, they overexercised their power.’ I ask you to do that.”
TWENTY-TWO
CYRIL HATFIELD KNEW exactly why he was on this jury. He was here to make sure Kevin Harris and Randy Weaver didn’t go free.
Gerry Spence had noticed Hatfield right away. Attorneys have a sense for that sort of thing, he said, which jurors they’re reaching and which ones they aren’t. After forty years as a lawyer, Spence could guess who his allies were, and he just knew he could count on the red-faced, seventy-two-year-old financial planner who smiled constantly at him and seemed to mouth his approval of Spence’s most stirring speeches.
“Aw, bullshit,” Cyril muttered while he smiled at Gerry Spence. Or: “The son of a bitch is grandstanding.” Spence couldn’t have been more wrong about Cyril.
The jury had been admonished throughout the trial not to talk about the case, and so they showed up for deliberations fresh, without a clear idea what any of the others were thinking—except of course Cyril, who’d mumbled his dislike of Spence loud enough for some of them to hear. And so they weren’t sure what to do when Cyril walked into the jury room the day after closing arguments and began campaigning to be foreman. Some jurors wondered if he was too set on convicting the men to serve as the mediator for the rest of the jury.
Not that the rest of the jury was necessarily in favor of acquittal. In fact, Dorothy Mitchell, a forty-five-year-old teacher, had no idea what to do. She walked back into the jury room that first day and started crying. It was impossible! They weren’t ready to decide this case. After a decade in education, she figured that some jurors simply hadn’t been able to process the mass of evidence: the fifty-four witnesses, the hours of videotape, the gruesome autopsy photos, the drawings, guns, and letters, bullets, batteries, and belt buckles.
She had been devastated when the defense rested its case. Like many of the other jurors, Dorothy Mitchell had been waiting for Spence or Nevin to put this case in some sort of context. Her jaw had dropped when Nevin rested. He was such a decent guy, she just wished he could explain to them what happened. She began to think about the arguments he and Spence made during opening and closing arguments and in every cross-examination—particularly Spence, whose sense of the absurd allowed him to deflate the far-reaching government indictment by asking uptight marshals why they didn’t just pat their knee and call old Striker over for a scratch behind the ears.
The prosecution had given them no framework to settle the case, Mitchell feared, no plausible story to serve as a touchstone while sifting through the evidence. Instead, the jury was given some vague conspiracy and a litany of technical, seemingly unrelated acts within it. The evidence was mixed-up and confused, and there were too many questions that hadn’t even been asked, much less answered. Some jurors wished they could just walk over to Randy Weaver and ask him: “Why didn’t you come down? What were you thinking, letting Rachel tote those rifles around? Do you really believe this stuff about lost tribes of Israel?”
The judge sequestered them on June 15, a dozen people who had already been together two months and who celebrated one another’s birthdays, chatted about the weather, and made penny bets about how long the frequent trial delays would last. The mound of pennies had grown as a wall chart behind the jury-room door was updated with the running scores, and breezy April gave way to the dry heat of summer. Everything changed with sequestration and the realization that they could talk about the case now. It was as if you were suddenly forced to spend every
waking moment with the people in your office until you solved an impossible riddle.
A judge eager for a speedy verdict must have chosen the decor for the jury room in the federal courthouse at Boise. It was spectacularly uninviting—turquoise carpet and institutional green walls. The room heated up like a furnace, and on Saturdays, with the courthouse closed, there was no air-conditioning. In the center of the room, the jury gathered around two long wooden tables, strewn with coffee cups, snack trash, and twelve sets of complex, sixty-nine-page jury instructions. There was a coffee machine, a coatrack with magazines, and a ceramic water fountain. There were no windows.
Cyril was elected foreman on June 16, the first day of deliberations.’ Dorothy Mitchell, who was a veteran of one of the toughest contract battles in the history of Idaho schools, pushed hard to get Hatfield elected foreman, hoping his duties as moderator would keep him busy and blunt his drive for conviction.
Before them were eight charges:
Against both Weaver and Harris: Conspiracy to provoke a violent confrontation, which carried a maximum sentence of five years in prison; assaulting and resisting federal officers, ten years; and first-degree murder, life imprisonment.
Against Weaver: Making illegal firearms, five years; failure to appear in court, five years; committing crimes while on pretrial release, ten years; and using a firearm to commit a violent crime, five years.
Kevin was also charged with harboring a fugitive, which carried a sentence of five years.
Each count also contained the possibility of a fine of up to $250,000.