by Steve Fiffer
Hermosa.
In early August a second rendition of Sue's skull arrived in Hill City
courtesy, strangely, of the very same a r m of the government that had
originally hauled off the real Sue—the South Dakota National Guard.
The guard had been enlisted by Bancroft Elementary School in Sioux
Falls. A year earlier second graders a n d 11 parents sympathetic to the
institute had created a green, papier-mache likeness of Sue's head. They
wanted the Larsons to have something to r e m e m b e r the dinosaur if the
courts ruled against them.
The likeness was a bit larger than Sue's real skull, a n d therein lay the
problem. The school had been unable to find a m e a n s of transporting
the copy to the institute until the guard volunteered. "It's almost like the
National Guard did its penance," said the institute's Marion Zenker. "It's
wonderful."
1 5 6 TYRANNOSAURUS S U E
Even m o r e wonderful was the discovery of another skull—Duffy's.
In late August, Steve Sacrison had renewed the search for the bulk of the
T. rex. About 40 feet from the area where the rest of the bones had been
found, Sacrison discovered Duffy's lower jaw a n d part of the upper jaw.
Larson a n n o u n c e d that he expected they would find the rest of the skull.
T h e n the commercial collector a n n o u n c e d that Duffy was not for sale.
T h e fossil, which Larson believed was a three-quarters grown subadult,
would be displayed in the new m u s e u m with Stan—and Sue, if the
Supreme C o u r t ruled in the institute's favor.
Peter Larson was sitting in Patrick Duffy's office w h e n the telephone call
came. H u g h O'Gara, a staff writer for the ubiquitous Journal, was on to
a big story. Was it true, O'Gara wanted to know, that a plea bargain in
the criminal case was imminent? Larson remembers that Duffy con-
firmed the details of the negotiations.
On September 20, the Journal ran one of its biggest headlines since
the discovery of Sue: "Fossil Case Won't Go to Trial." "Hit by several
recent setbacks in the celebrated 'Sue' fossil prosecution, the federal gov-
e r n m e n t is virtually giving up the case," O'Gara wrote, citing "sources
connected with the case." Larson has never been able to determine w h o
those sources were.
At the time the trial was set to begin on November 1. But, wrote
O'Gara: "Negotiations are u n d e r way that will result in the dismissal of
all b u t one charge in the 2 8 - m o n t h - o l d federal case. . . . Preliminary
negotiations call for the institute—but n o n e of the four principals . . .
— t o plead guilty to o n e felony charge that does not involve any of the
fossils the government has claimed were illegally collected." The gov-
e r n m e n t would, however, keep all the disputed fossils it had seized from
the institute.
This wasn't the first time the defendants a n d the government had
discussed a plea bargain. But, according to Larson, up until this time
prosecutors h a d always insisted that he, not his business, plead guilty to
o n e felony and that he agree to 24 m o n t h s in prison. "Those terms were
unacceptable," according to the paleontologist, w h o maintained that he
had d o n e no wrong. As the trial approached, however, several develop-
m e n t s led the U.S. attorney's office to soften its position and agree to let
the institute itself take the fall. On September 6, Park Service Ranger
N E G O T I A T I O N S A R E U N D E R W A Y 1 5 7
Stan Robins had died. The government considered h i m a key witness, as
he had been a m o n g the first to investigate the institute.
Adverse rulings by Judge Battey also forced the prosecutors to
reconsider the chances of success at trial a n d reopen negotiations with
the defendants. On September 8, the judge h a d denied the government's
motion to move the trial to Aberdeen. A Rapid City jury would, in all
likelihood, be sympathetic to the defendants. O'Gara's exclusive article
about a settlement ended rather curiously. "The plea agreement u n d e r
negotiation calls for no publicity by either side in the settlement."
Obviously, one of the sides had violated that term—for where else could
O'Gara have received such detailed information?
Judge Battey apparently read about the plea bargain negotiations in
the paper like everyone else. He didn't like it. At a pretrial hearing the
day after O'Gara's story appeared, the judge spoke. The Journal secured
a copy of the transcript of his remarks:
From what I saw in the paper, if that's the plea agreement, it's
not a plea agreement, it's a capitulation by the government. I
am going to look very closely at whether or not in any plea
agreement of your client, principal officers of a closed corpora-
tion can escape by putting fault over on the corporation. I m a d e
a decision on this.
Later the judge added:
I don't want to enter into a plea agreement. . . . It looks to me
from what I see in filings that there are relative degrees of fault,
even a m o n g the conspiracy m e m b e r s . Some may be marginally
involved; others may be highly involved. But I will wait T h e
last thing lawyers should be worrying about now is a plea agree-
ment.
Within a few days, Duffy was back in c o u r t — w o r r y i n g about the
judge. For the second time, the institute's lawyer filed a m o t i o n seeking
that Battey recuse himself. Duffy cited the judge's recent c o m m e n t s as
further evidence that the defendants were already presumed guilty by
the m a n w h o would conduct their trial.
1 5 8 TYRANNOSAURUS S U E
The government was back in court, too. The Journal's article about
the supposed plea bargain had once again compromised the govern-
ment's ability to get an impartial jury in Rapid City, said prosecutors.
They again moved that the trial be moved to Aberdeen. In documents
filed to support the m o t i o n , Mandel asserted that the government had
not offered a plea agreement. The Journal would later acknowledge this,
stating that the article should not have given the impression that a ten-
tative deal had been struck.
"There was no offer and no acceptance," Mandel explained in a
1999 interview. Negotiations were proceeding, the prosecutor said, but
he refused to discuss the specifics. Larson says that reporter O'Gara "had
it just about right." The deal, however, had not been sealed. When the
story broke, Larson was trying to decide to which felony the institute
would plead guilty. "I wasn't going to lie and say we'd d o n e something
we hadn't done," he explains.
Did the leak to the Journal prevent a deal? "If there had been an
offer and acceptance, I don't think it would have mattered," Mandel
speculated. T h e n he added: "Was it conducive to reaching an agree-
ment? Well, there never was one after this."
Bob Chicoinne, Hendrickson's lawyer, doesn't know who leaked the
story, but he knows he would have handled O'Gara's call differently than
Duffy did. "You say, ' N o comment.' You don't discuss the status of plea
/>
negotiations with anyone—especially the press—until you have them
b u t t o n e d up."
Neither the government n o r Duffy prevailed on their motions.
Judge Battey, furious with the Journal and whomever had leaked the
story about the plea bargain, gave serious consideration to moving the
trial to Aberdeen. In the end, however, he decided that both sides could
get a fair trial in Rapid City. He also decided that the defendants could
get a fair trial if he remained on the bench.
Running the risk of further alienating the judge, Duffy appealed this
decision to the Eighth Circuit. A three-judge panel ruled unanimously
that Battey need not step down; he had not shown the high degree of
bias necessary for removal. "Judge Battey [performed] precisely the type
of analysis that he is required to perform in analyzing a plea agreement,
albeit prematurely," wrote the court.
N E G O T I A T I O N S A R E U N D E R W A Y 1 5 9
O n e of the three judges did, however, take the time to write a sepa-
rate opinion. Judge C. A d e n Beam worried that Battey's remarks might
have "a chilling effect" on future plea bargain attempts. He added that
he hoped a thaw might be forthcoming. "This is a matter in which the
public interest may best be served by a plea bargain," he noted.
Many observers believed that the interest of the defendants would
also best be served by a plea bargain and that one might have been
achieved early o n — l o n g before the government a n d the defendants
expended large sums of m o n e y These same observers believe that the
personalities and tactics of the principal attorneys m a d e it difficult to
effect such a bargain. "Would it have settled with different lawyers?"
mused Mandel some years after the trial. "That might have been possi-
ble. Things were very polarized from the beginning and that doesn't
help. In all my years as a lawyer, I have never seen a case played out in
the press like this one."
Just as the Eighth Circuit ruled that Battey should stay where he
was, the Supreme Court decided that Sue should remain where she was.
The court denied the institute's petition to hear its appeal of the deci-
sion that, in effect, n a m e d Maurice Williams the fossil's rightful owner.
Four years and two m o n t h s after finding the T. rex, two years a n d six
m o n t h s after the seizure, Peter Larson had finally exhausted his legal
remedies to win back the find of his lifetime.
Conventional love stories are played out in three acts. Act One: Boy
meets girl and they fall in love. Act Two: Boy loses girl. Act Three: Boy
gets girl back. Act Two in this most unconventional love story was n o w
officially over.
Larson's ability to get Sue back now lay in the hands (or m o r e p r o p -
erly the wallet) of Maurice Williams, not the judicial system. Williams
still wasn't sure what he wanted to do with the tons of bones sitting at
the School of Mines. He had received offers for Sue, but he wasn't cer-
tain that he wanted to sell her. "I had heard that the most m o n e y is tak-
ing it for tour," he told Harlan after the Supreme C o u r t denied the insti-
tute's petition. O n e could picture beer companies vying for the rights to
present the "Rolling Bones."
Sue was already a worldwide celebrity. T h e publicity attendant on
the criminal trial of those w h o found her could only enhance her n o t o -
1 6 0 TYRANNOSAURUS S U E
riety—and value. If, as Judge Beam said, the public interest would best
be served by a plea bargain, Maurice Williams's interest was probably
best served by a trial that would continue to keep Sue in the camera's
glare.
As January 10, 1995, approached, it became clear that Williams
would again be the winner. United States v. Black Hills Institute, Peter
Larson, et al. was going to trial.
1 0
T H E Y ' R E NOT C R I M E S
"Five million dollars," Redden said a second time. The bidding
had finally slowed down.
The three men in the private room above the floor had
yet to be heard from. Dede Brooks rang them up. Were they
planning on bidding? she asked.
The defendants moved d o w n the street in a herd, followed by predators
bearing minicams and note pads. They found refuge inside a three-
story tall, white concrete structure—the federal building. But as they
took their places in Judge Battey's large wood-paneled c o u r t r o o m , a
more dangerous threat presented itself—the two-headed prosecutorus
lex, Bob Mandel and David Zuercher.
Mandel, an amiable m a n in his mid-forties with short, dark hair and
a dark mustache, was born and raised in the big city—Chicago. He had
emigrated to the Dakotas in the late 1970s after graduating from Antioch
Law School in Washington, D.C. Initially, he worked for the Legal Services
Corporation on an Indian reservation in North Dakota. In 1982 he joined
the U.S. attorney's office in South Dakota. He had handled both civil and
criminal cases and now supervised the Rapid City office. Although he
understood why some people liked to collect fossils, he had no interest in
doing so himself. "It's not my idea of entertainment," he explains.
The bearded Zuercher, in his mid-forties, was thinner and m o r e
temperamental than Mandel. A native of Nebraska, he had gone to
1 6 2 TYRANNOSAURUS S U E
college and law school in South Dakota. After working for the South
Dakota attorney general, he had joined the U.S. attorney's office about
15 years earlier.
Judge Battey had been screening prospective jurors since the fall.
Still the vast majority of the 34 m e n and w o m e n in the first panel to be
questioned by the judge and the lawyers acknowledged that they had
heard and read about the case. T h e prosecution did not aggressively
attempt to dismiss those w h o were familiar with the events of the last
two years and eight m o n t h s . Mandel explains that it is very difficult to
prove bias and that such an effort may antagonize those w h o are ques-
tioned or just observe the questioning—some of w h o m inevitably wind
up on the jury. As a result, the government and defense quickly selected
eleven w o m e n and three m e n to serve as jurors and alternates.
Mandel says that every time a case goes to trial, "you struggle with
making it understandable for the jury." He admits that this was a par-
ticular challenge in this case as there were so m a n y different instances of
alleged illegal collecting and so m a n y other alleged crimes involving
financial transactions a n d customs violations. "You try to lay it all out
for the jury in the indictment," the prosecutor says. T h e trial, therefore,
began with Zuercher reading the full text of that 33-page d o c u m e n t — a
task that took m o r e than an hour.
Mandel then began his opening statement. He promised the jurors
that the evidence would show that the defendants engaged in a "far-
reaching conspiracy for an extended period of time." He also promised:
"This is not going to be a complicated cas
e."
On its face, the case wasn't that complicated—at least with respect
to fossil collecting. T h e jurors had merely to decide if the defendants
had knowingly and willfully collected specimens from any or all of the
federal, state, a n d tribal lands cited by the government. "In the abstract,
you think, So what? Anyone can get screwed up [as to whether they are
collecting on forbidden lands]," Mandel later explained. "My task was to
try to focus on the fact that the defendants did have knowledge about
what they were doing." That would require getting the jury to answer
"yes" to two questions, Mandel says. "One: Did the defendants know it
was illegal to collect on public lands? And two: Did they k n o w they were
on federal lands when they were collecting?"
T H E Y ' R E N O T C R I M E S 1 6 3
Mandel told the jury that the evidence would show that the defen-
dants had lobbied for laws permitting collecting on public lands.
Therefore, they obviously knew that it was currently illegal to collect on
those lands. The prosecutor also promised that the defendants' o w n
field notes would prove that they knew they were on federal lands. They
were very good m a p readers and m a p drawers, he said. In fact, govern-
m e n t investigators following the defendants' notes a n d m a p s had found
the sites and even the holes where fossils had been excavated.
Mandel showed the jurors a m a p of those sites. But the prosecutor
couldn't present a m a p of the defendants' hearts and minds. And this
was the m a p he needed. For it was clear from the outset that the fate of
the defendants would rest on whether the jury viewed t h e m as sophisti-
cated criminals intent on ignoring the laws of the land or honest m e n
who truly didn't k n o w that they were doing anything wrong.
Honest m e n , proclaimed Duffy, w h o by this time represented only
Peter Larson; the other defendants, including Neal Larson, h a d their
o w n attorneys. To prepare for the trial, Duffy had gone to M o n t a n a ,
where, earlier, Gerry Spence had w o n a multimillion-dollar verdict in
a civil lawsuit against the g o v e r n m e n t following an infamous incident
at Ruby Ridge, Idaho. Spence represented Randy Weaver, the white
separatist whose wife and son had been killed in a s h o o t - o u t with the
FBI. In Butte, Duffy went to the library a n d read all the newspaper
