by Jess Walter
They voted 12–0 to convict Randy Weaver of failure to appear. They also found Randy guilty of committing a crime while on pretrial release.
Next they voted on the murder charge against Kevin Harris. Frank Norris’s testimony (“the distinctive sound of a.223”) had convinced Karen Flynn that they had to acquit. Now, even Eunice Helterbran admitted that if Norris heard one of the marshals’ guns first, then the government couldn’t prove that Harris had fired first. While some jurors still wished they could punish Harris for Bill Degan’s death, there was certainly reasonable doubt. The vote was 12–0 for acquittal on murder and manslaughter.
The next day, the jury was ready to vote again and reached verdicts on three more counts: not guilty of assaulting and resisting the other marshals and not guilty of using guns in the commission of felonies. Then the big one: Weaver not guilty of murder. Again, the marshals’ story just didn’t fit with the evidence.
On Monday of the fourth week, they wrestled with count seven: did Kevin harbor a fugitive? Not wanting the outside world to know where they were in the proceedings, the jury sent a vague note to Judge Lodge.
His answer was equally vague. “Did that answer your question?” an impatient bailiff asked in the hallway between the courtroom and the jury room.
“No,” Weaver said. The jury finished the day without voting. That night, they watched a home video of Mary Flenor’s family picking ripe tomatoes from her garden and imagined going home.
The next day, July 7, they reached a not-guilty verdict on the harboring charge. Foreman Weaver pressed quickly on, to count one, conspiracy. He was stunned to find there was broad agreement. A conspiracy among a family that started in January 1983, lasted until 1994, and was furthered by moving to Idaho? It was ridiculous on its face.
Jack Weaver had expected two to three days of deliberations on the conspiracy charge alone. But within an hour, he could see the rest of the jury felt as he did. They had charged these guys with everything but speeding. In football, he thought, the prosecution would have gotten fifteen yards for piling on.
But with that many acquittals on the flip charts, the proconviction caucus thought Randy Weaver deserved more punishment. Even some of the moderates said Randy’s stubbornness had caused this mess. They debated the only remaining charge, that he sold sawed-off shotguns. The acquittal coalition insisted Randy had been entrapped, but jurors couldn’t agree on what the ATF agent had said to his informant about reeling Randy in.
Intimidated by Lodge, they wrote an apologetic note asking for a replay of Chuck Peterson’s mocking and skeptical cross-examination of Herb Byerly, the ATF agent who’d set up the sting. Peterson beamed as he prepared to listen to the testimony the jury had asked to hear.
Lindquist stared out the courtroom window at the scorched foothills, while Howen watched the jury for a reaction. They had filed into a side courtroom, notebooks crammed with instructions and notes that they’d puzzled over for close to a month now.
A court clerk read from the transcript Peterson’s bristling cross-examination and Byerly’s answer. “‘I instructed Mr. Fadeley about entrapment … that he was not to go out there and entice someone, providing them with undue rewards for violating the law.’” Peterson asked Byerly why he didn’t tape-record every one of Fadeley’s meetings with Weaver before the gun sale. “You wanted to make sure … there was no record of what your informant was saying to this man,” Peterson needled. Byerly disagreed. Then Peterson asked Byerly about the government’s practice of paying informants a bounty for cases in which their testimony helps win conviction.
Outside the courtroom, Chuck Peterson had trouble hiding his smile as Gerry Spence slapped him on the back. At the least, the jury was talking about entrapment. Peterson always suspected that Spence had given him the weapons charge and the failure-to-appear because he’d figured they were losers. Then, if they lost those cases, Spence could always say he was still undefeated. It was the best way to stay unbeaten: avoid the bad cases and assign away the bad charges. Now, less than a year after he’d considered quitting the law, just a few months since he’d been scared to death to cross-examine a witness in front of Spence, Peterson allowed himself to believe he might actually win one.
WHY WOULDN’T THE ATF tape all those meetings? Anita Brewer was insistent that professional agents of the federal government’s top police agency could document their cases better. Unless Peterson was right, and they didn’t tape those meetings on purpose. The Dorothys could see the entrapment issue eating at the other jurors. They went back to their hotel on July 7 still disagreeing, but there were some cracks developing in the three jurors who still wanted one more conviction.
Back at the hotel that night, they took the winnings from the penny pools—about three dollars—added a buck each and bought fifteen tickets for the multistate Powerball lottery, agreeing to share their winnings. They also had a cake delivered and threw a baby shower for Karen Flynn, who was getting ready to deliver the baby boy she carried through the long trial and deliberation.
Jack Weaver slept well. An exhausted Dorothy Hoffman cried herself to sleep. The bad diet, lack of exercise, and stress were wreaking havoc with her system, and she was hoping she could make it through deliberation over the last count.
At seven forty-five Thursday morning, July 8, Jack Weaver asked for any comments and instantly regretted it. Frank Rost hauled out a sheaf of yellow legal pages and Weaver knew he’d made some more middle-of-the-night notes and was going to give a speech. He’d done it before with little impact.
Usually, Rost made his point, wandered a little, and then would pipe down, but this time he went straight for the jugular, calling Flynn, Helterbran, and Sigloh closed-minded and unwilling to let go of their first impressions of the case. The proconviction jurors yelled back with equal vigor until Weaver jumped in between the hollering jurors and shouted “Sit down and shut up!” to Rost, a man older than his father.
Two jurors escorted Rost to the nearby grand jury room while Weaver called a twenty-minute break. Checking in the men’s gathering room, he found Rost with his feet up on a chair and one hand over his face, feeling miserable. Jack Weaver told him they could get a verdict if he could get things settled down for a vote. At 8:25 a.m., he called for a ceasefire. Then he polled the jury on their last count.
“To acquit?”
Six hands went up immediately, then came two more, three more, and the last one. Finally, they had all twelve. They voted again on every charge, just to be sure. Kevin—not guilty on all five charges. Randy—not guilty on the five most serious charges, guilty of failing to appear and committing crimes while on pretrial release. The jurors joined hands. The teacher, Dorothy Mitchell, burst into tears. A few others cried as well. It was 9:45 a.m. on the last day of the longest jury deliberations in the history of Idaho federal courts. They were done.
THE JURORS WERE NERVOUS as they filed into the courtroom one more time. It was packed with reporters, lawyers, and other observers. Dorothy Mitchell smiled at Kevin Harris and then looked at the prosecution table. Her heart went out to Dave Hunt, the deputy marshal who’d tried so hard to solve this case peacefully. He sat there next to Ron Howen and Kim Lindquist, big black bags under his eyes, an expression of overwhelming exhaustion on his face.
Fourteen deputy marshals guarded the doors in the courtroom. Randy Weaver and Gerry Spence looked at each other one more time, and the Wyoming lawyer nodded confidently. The judge asked the jury if it had reached a verdict.
“We have, Your Honor,” Jack Weaver said. He gave the two-page jury form to the judge, who read it for the longest minute in Boise, then handed it back to be read aloud.
At the prosecution table, Dave Hunt felt as though he’d been kicked in the head. “Not guilty. Not guilty. Not guilty.” Time slowed down, and he felt like he was losing his bearings. The murder charge. “Not guilty.” A whoop went up in the courtroom, and Hunt didn’t hear anything else. You can’t get away with murder, he thought. Not in America.
Hunt’s head swung about, and everything seemed to move around him in soundless slow motion—Kevin Harris and Randy Weaver hugging, the defense attorneys smiling. It had all come to this. Dave Hunt thought about everything he’d tried to do and couldn’t believe it had ended this way, with Degan dead and Kevin and Randy going free.
Nevin felt redeemed. Tears streamed down Kevin Harris’s face as he hugged Randy, who had smiled and nodded as each verdict was read and who mouthed “Thank you” to the jury. Kevin’s mom waved a cigarette at her son; it had been ten months since he’d been able to have one. As Nevin congratulated Kevin, Randy, and the other defense lawyers, a deputy marshal leaned toward him and said they would need to take Kevin back to jail for processing. Nevin, who’d come to be known as the cordial, polite lawyer on the defense team, said, “The hell you will. He’s going out the front door with me.”
Then Nevin turned to Lodge. “Your Honor, I’d assume Mr. Harris will be discharged at this time.”
Lodge looked back at the verdicts. “Yeah, I’d guess so.”
Dave Hunt didn’t hear any of that. He sat bewildered and entranced until Kim Lindquist pulled at his arm and said, “Dave. Dave. Come on.” By then the courtroom was emptying, and Hunt stood and walked silently out.
For the first time in ten months, Kevin Harris left the courtroom without handcuffs or guards. He looked for Nevin. “Help, where are you?” He leaned on his mother’s shoulder and sobbed. Outside, he was surrounded on the courthouse steps by reporters and well-wishers. “I just want to thank the jury for everything,” he said. “I had total faith in Yahweh the Creator.”
Gerry Spence watched with a wide grin. Randy had gone back to jail until September or so, but he would be out soon. Spence talked to reporters and signed copies of his new book, which had just been released with impeccable timing. The book was a collection of essays on governmental and corporate power called From Freedom to Slavery. The first chapter was a letter to a Jewish friend, defending Spence’s decision to represent a white separatist and talking about government’s misconduct in the case. Spence scribbled his name on the title page and handed the book to a constitutionalist who’d driven all the way from Portland in a beat-up Pinto station wagon.
Spence autographed another book as he spoke to reporters. He said the case wasn’t over. “There is a dead mother who died with a baby in her arms. There is a little boy, four feet, eleven inches tall, who died with a bullet in his back. Who is going to be responsible for these deaths?”
TWENTY-THREE
ON OCTOBER 18, 1993, Randy Weaver was sentenced to eighteen months in jail—fourteen of which he’d already served—and a $10,000 fine. With good behavior, he’d be out by Christmas. Earlier, the judge had dropped one of the charges Randy was convicted of—committing crimes while on pretrial release—because he’d been found not guilty of those crimes (murder, assault, and the rest). After four years of investigation, at a cost of several million dollars, the U.S. government managed to convict Randy Weaver of failing to appear in court.
At his sentencing, two jurors—the Dorothys—testified that since the trial ended they’d visited Randy and met his family and they thought he should go home. Keith Brown also testified, saying Sara and Rachel were doing incredibly well, but insisting they needed their father back. Spence gave another stirring speech and asked Judge Lodge to limit Randy’s sentence to the fourteen months he’d already served.
“This is a man who has learned a great deal,” Spence said. “The only evidence before Your Honor—and I think the truth—is that this family needs its daddy.”
But Ron Howen was back from his bout with exhaustion, and he was ready to fight some more. He asked the juror Dorothy Hoffman if she’d ever sought out Bill Degan’s family, and he recommended that the judge sentence Randy to three years in prison. He said that no matter what happened in court, the standoff and the three deaths were ultimately Randy’s fault. Howen read a 1990 letter from Weaver’s attorney Everett Hofmeister, a letter that wasn’t allowed into testimony during the trial. “‘The present course you are following is suicidal,’” Hofmeister wrote two years before the shoot-out. “‘In a few short years, you will look back on what happened as a needless disaster.’
“You just want to weep when you read a letter like that,” Howen said.
“Since this trial has concluded, every morning I’ve gotten up and looked at myself in the mirror,” the prosecutor continued. “And I’ve asked, ‘What did I fail to do in order to convince that jury the defendant was guilty?’… Well, it is my responsibility, and I must bear it.”
Howen said he had begun to realize that he and Weaver were somewhat alike. He was raised in a German Mennonite home with separatist beliefs, Howen said, but he was also bound by the Bible’s admonition to submit to authority. And he said he was taught to love his neighbor. Howen’s voice cracked as he said he was even trying to love Randy Weaver. “It has been the hardest thing for me to do in my life.”
After the sentencing, Ron Howen was transferred out of the criminal division of the U.S. Attorneys Office. Kim Lindquist left Boise altogether and took a job in Bogotá, Colombia, working drug interdiction cases at the U.S. embassy.
In other federal agencies, many people blamed Howen for losing the Weaver case, because of his insistence on filing a broad indictment. A sweeping Justice Department investigation found the indictment was flawed. Howen was “overzealous” and used “faulty judgment.” His statements before the grand jury bordered on testimony and the decision to seek the death penalty was overreaching, the report stated.
Ron Howen refused to talk publicly about the case. He bought some farmland and set to work as one of the hardest-working attorneys in the civil division. Ten days after Randy Weaver was sentenced, Judge Lodge shifted some of the blame away from Howen though, finding the FBI in contempt of court and fining it $1,920 for its delays and obstructions.
“The actions of the government, acting through the FBI, evidence a callous disregard for the rights of the defendants and the interests of justice,” Lodge wrote. “Its behavior served to obstruct the administration of justice….”
DAVE HUNT WAS TIRED. After the trial, he decided to quit the U.S. Marshals Service. “I don’t want to do it anymore,” he told his wife. It wasn’t anything he could really explain.
The closest he could get was describing his feelings when he came home from Vietnam. So many guys died over there, and so many more sacrificed years of their lives and limbs off their bodies. Yet when Hunt left the Marine Corps and enrolled at Indiana University, people either ignored Vietnam vets or reviled them. He couldn’t understand that in 1971, and he couldn’t understand this twenty-two years later. “Feds Lose Big,” one newspaper headline screamed after the trial. Hunt knew mistakes were made in the case, but he hated the way it had become a symbol for federal law enforcement run amok. It was an awful feeling to think you were doing the people’s bidding and find out the people hated you. He wondered: What exactly did Billy Degan die for?
The other deputy marshals resumed their careers. They talked occasionally with Hunt about the case and said they were most upset that so few people believed Kevin Harris fired the first shot. Art Roderick sometimes wished the bullet that had whistled by his stomach had hit him so that people would see just how dangerous the Weavers really were. He and the other marshals agreed that everyone had forgotten the other victim in the case, Degan. His family remained quiet about their loss.
In the end, Hunt didn’t quit the U.S. Marshals Service. He just kept getting up and going to work. But he didn’t go after any more fugitives. Instead, he did some accounting for an organized crime and drug task force and took on administrative chores. Other deputy marshals tried to cheer him up: “You won your case. It’s okay.” Weaver had been found guilty of failure to appear, the warrant Hunt spent all that time trying to serve peaceably. But Hunt didn’t think he’d ever shake his empty feelings, and every time an Idaho resident complained on the radio or in a lette
r to the editor—”Why didn’t they just go up there and ask Weaver to come down?”—Hunt relived it all over again. Newspaper and magazine stories seemed to portray Randy Weaver as some sort of folk hero, someone who stood up to the oppressive government. Hunt pictured Randy hiding behind his kids—sacrificing his family because he didn’t want to face the charges, right or wrong, filed against him. It made Hunt sick.
The case stayed in the news for years, and just when Hunt thought people had forgotten it, some new report came out or a lawsuit was filed or some guy wanted on a minor charge announced that he wasn’t going to be taken alive. All over the United States, people who despised or feared the U.S. government drew inspiration from Randy Weaver. An accountant refused to testify before a grand jury in a drug case; a developer refused to file paperwork for a project; a tax protester refused to come out of his house.
For a few years in the mid-nineties, such cases seemed to be everywhere—angry veterans and patriots and militia members vowing to battle traffic tickets and zoning ordinances and court orders. Some local officials were terrorized and threatened. When one Montana sheriff asked for help with an armed fugitive living on a nearby ranch, federal agents said they worried about being drawn into a violent confrontation. Such reluctance had a name among federal agents. They called it Weaver Fever.
In 1995, more than twenty government protesters who called themselves Freemen holed up on a farm in Montana rather than face charges of bank fraud, robbery, and intimidating local officials. Saying they’d learned their lesson from Ruby Ridge, FBI agents surrounded the farm and waited them out. After eighty-one days, the Freemen surrendered without a shot being fired.
BO GRITZ DIDN’T WIN the presidency in 1992. He didn’t even win Boundary County. He received just 46 of the 3,850 votes cast in Boundary, 1.2 percent, not even half as many votes as Randy Weaver got when he ran for sheriff.
