Replies

One of the best summaries I ever read was by Larry Pratt of GOA. It was in an article he wrote called "Could a Search Warrant can be your Death Warrant".

It's long, but well worth the read.

Weaver's defense attomey, Gerry Spence, argued that Degan was killed in self-defense when he and the other Marshals fired the first rounds and provoked the shootout. Federal Marshal Larry Cooper, who had been with Degan, denied that they had fired first. His testimony was contradicted by another Marshal, Frank Norris, who said the first shot he heard fired in the gunfight was the distinctive snapping sound of a .223 rifle like those carried by the government agents, not the boom of a .30-06 like Harris carried that day. Harris and Sammy Weaver, the 13-year-old, arrived right after Marshal Roderick killed the Weaver dog.

It was probably Cooper who killed Sammy with a shot in the back from his 9mm submachine gun according to the testimony of the governrnent's ballistic expert, Dr. Martin Fackler.

No wonder the jury did not believe the prosecution. But there were many more discrepancies in the government's case which, in the end, converted a trial of the conspiracy and separatist views of Weaver and Harris to the integrity and motives of the government.

Spence was able to require Cooper to come to court dressed as he was on the fatal day in August: face mask; camouflage pants, shirt, gloves and floppy jungle hat; green military backpack and a black 9mm submachine gun with a silencer and a black flashlight attached to the muzzle. The man looked dressed for a commando raid against Iraq. This was a key moment, because the jury had been told by the government that they were on the Weaver property merely for surveillance.

As Spence later showed, it may have been Cooper who killed Degan. Degan, as he was shooting at the retreating Sammy Weaver (maybe six or seven times) was moving sideways and probably crossed Cooper's field of fire. Since Cooper's gun was silenced, Degan would not have heard it. One of Cooper's bullets almost certainly hit Degan's backpack, thus turning partially turning him around. At that point either another of Cooper's bullets may have killed Degan.

How the Weaver dog, Striker, was killed revealed another government discrepancy. During the 1992 siege, when they were not under oath, these Federal Marshals told newspapers that the dog had attacked them. At that time, Cooper said that he had jumped out of his foxhole and blindly fired a three-round burst. But when they were under oath before the grand jury, they told another story. Under oath they admitted that they had a plan to toss rocks at the Weaver house to get Striker to chase them, after which they shot him.(57)

Federal Marshal Service Director Henry Hudson rationalized this plan as an attempt "to find a way to peacefully carry out their lawful responsibility of serving a Federal, court-ordered warrant for the arrest of Randall Weaver." (58)

Another discrepancy in Cooper's story was his claim that he never heard Degan fire a shot. Seven empty cartridges from Degan's gun were found near his position. Degan's gun did not have a silencer. Cooper was either deaf or Iying.(59)

Under oath, the BATF's paid informant, Kenneth Fadeley, admitted that he had persuaded Weaver to commit a crime by shortening the barrels of two shotguns to just below legal length. The informant even specified the exact length Weaver was to cut. Fadeley also confessed that he would be paid extra if Weaver were convicted.

Fadeley's handler, BATF agent Herb Byerly, disputed the claims of extra pay. But Byerly then went on to testify that he was going to recommend the informant for a bonus which just happened to be the amount Fadeley said he would be paid for the conviction.(60)

This is almost a textbook case of what is legally known as "entrapment." Entrapment is defined as when the government persuades someone to commit a crime he had no intention of committing beforehand. At the trial it was shown that the government's informant was the one who broke the law by entrapping Weaver. In other words, the crime would not have occurred without the government.

When Weaver was then arrested for his "crime," he was arraigned before U.S. Magistrate Stephen Ayers. Ayers would admit later that he "erred" when he misinformed Weaver that his home could be taken from him if he failed to appear for his trial on the shotgun charges. He also admitted that he "erred" when he told Weaver, inaccurately, that Weaver would have to reimburse the government for a court-appointed lawyer. (Weaver had no money to hire a private attorney as he made his living cutting firewood.)

Worse still, Weaver was given the wrong date for his trial--March 20 instead of the correct February, 1991 date.(61) Under oath, Federal Judge Harold Ryan's clerk Everett Hofmeister, had to admit that he mailed Weaver a notice of trial for March 20 -- but the trial was set for February 19, 1991. Another clerk, when on the stand, gave conflicting accounts about whether he had even mailed a notice to Weaver.(62) For whatever reason, this was the only charge on which the jury found Weaver guilty.

Once Weaver failed to appear for the trial (perhaps because he had good reason to suspect a government frame-up), the government sent Federal Marshals up on the mountain where Weaver lived. That surveillance led months later to the killing of Weaver's wife and son.

Ironically, Federal Marshal Warren Mays testified that the failure to appear charge was going to have to be dropped because the court gave Weaver the wrong date. Mays said he knew of no effort to tell Weaver that the charge would be dropped. Weaver, whose wife and son lay dead because of the government's actions, was devastated by this testimony: "Weaver leaned his head on his right hand and shook his head after Mays' testimony."(63)

The jury in the Weaver trial was probably like most juries. We Americans generally give the government the benefit of the doubt. Even if we sit in a jury box, let the government make a respectable case and the defendant will go to jail. In the Weaver case, a U.S. Marshal lay dead. The government may have figured it didn't need to make much of a case.

A review of the prosecution's testimony suggests that not much of a case is precisely what the government did make. Federal Marshal Ron Evans stuck steadfastly to two contradictory statements he made under oath. He testified at the trial that he would "never forget" seeing Weaver's 16-year-old daughter Sarah with a rifle on one occasion. When defense attorney Spence confronted him with his earlier grand jury statement that "I did not see one [rifle] with her", Evans said: "I believe I was telling the truth in both instances."(64) This artful phrasing would protect Evans from a potential perjury charge.

Another government ballistics expert, Lucien Haag, testified that the physical evidence supported the government's version of what happened during the gunfight on Weaver's property, namely, that the government was fired upon first. But on cross-examination, he said there was no physical evidence to dispute the defense's claim that Marshall Roderick, not Harris, fired first.(65) Either the evidence, or Haag's story, changed completely in minutes.

Another government contradiction was revealed at the trial when the defense discovered that the prosecution had been withholding evidence. This evidence was essential to the outcome of the trial and to the possibility of future criminal prosecution. On June 6, the FBI sniper, Ron Horiuchi, who killed Vicki Weaver, testified that he shot her accidentally. He had actually been trying for Kevin Harris, Horiuchi testified on the stand. Horiuchi claimed to be able to hit a quarter at 200 yards--the distance he was from Vicki Weaver when he killed her.

But after Horiuchi was excused and was on an airplane back to Quantico, Virginia to rejoin the FBI's Hostage Rescue Team, the government finally handed over explosive evidence that Horiuchi lied on the stand. This evidence included Horiuchi's formal report following his killing of Vicki Weaver, with a drawing attached. The drawing of the shooting scene clearly showed two heads in the door.

This was not the only flaw in Horiuchi's testimony. When Horiuchi wounded Randy Weaver and Kevin Harris, they had been on their way to pay their last respects to Sam Weaver, whose body had been laid out in a nearby shed. Horiuchi testified that he shot to keep them from shooting at a helicopter overhead. But Associate Marshal Service Director Wayne Srnith testified that the helicopter never flew over the Weaver cabin on that day.(66)

When brought back to the stand, Horiuchi testified that both of these statements were the truth. Undermining his credibility still further was the matter of the state of the door to Weaver's cabin when Horiuchi opened fire. Horiuchi claimed that the curtains to the door were closed and he could not see through it when he shot Vicki Weaver. The defense brought the actual door into the courtroom to demonstrate that Horiuchi was correct. But Horiuchi's formal report had clearly shown two figures standing in what must have been an open door.(67)

When the commander of the FBI's Hostage Rescue Team, Dick Rogers, was asked about the killing of Vicki Weaver and the wounding of Randy Weaver and Kevin Harris, Rogers said he was concerned to learn that one of his snipers apparently missed a target.(68) Rogers was apparently unconcerned that Horiuchi's shooting of Vicki Weaver violated the FBI's rules of engagement for the Weaver case. These rules were in turn a major departure from the FBI's normal rules. Normally, FBI agents are allowed to shoot only when a life is in danger. Their rules of engagement in Idaho permitted shooting at anyone who was armed. Vicki Weaver was holding a baby in her arms when Horiuchi killed her.

Grand jury transcripts made it clear that the Federal Marshals had lied to the FBI telling them that a continuing fire fight was underway between the Weavers in their "fortress" and the Marshals. This led to the FBI to formulate its unusual rules of engagement. But these rules violated Idaho law. When Rogers was asked at the trial by what authority he allowed the rules of engagement to violate Idaho law, he was unable to cite a single federal law justifying these actions.(69)

The government also lost credibility in front of the jury because they were caught inexplicably moving and then replacing a bullet supposedly fired by Harris, and then fabricating the photo of it. When Spence asked FBI agent Greg Rampton why he had not confessed to the phony picture during his earlier testimony, Rampton countered: "You never asked me about that, and I tried to stick with the questions you asked."(70) Another FBI agent, Larry Wages, revealed that the prosecutor had known about the trickery a week earlier.

FBI Agent Larry Cooper admitted on the stand that he had been rehearsed several times by his superiors and others, including the Federal prosecutor, Ron Howen.(71)

One of the alternate jurors, Gena Hagerman, added that she (and presumably other jurors) had been offended by the conduct of Federal agents at the siege. After they had killed Vicki Weaver, on following mornings the agents would call out to the survivors in the cabin, "Vicki, we had pancakes for breakfast, what did you have?"(72)

When the prosecution finished its case, the defense stunned the courtroom by declining to present their own on the grounds that the government had not proved their case. Lead defense attorney Gerry Spence later made a powerful summary of the defense's case in his final remarks before the jury deliberated.

Some of Spence's remarks were as follows. He told the jury that "HRT" (Hostage Rescue Team) was "a nice euphemism for 'expert killers.'"

"This is a murder case," Spence said, "but the people who committed the murders have not been charged, and the people who committed the murders are not in court." At one point, Spence walked over the BATF Agent Herb Byerly and roared: "Mr. Byerly represents a new twist in America today, called Big Brother. Only in America can I point a finger at this guy and his agency and say this is the new Gestapo here in America!"

He ridiculed the prosecution's claim that being a snitch or entrapping somebody was somehow "honorable." Furthermore, "Something is very horrid that's happened here...What is happening in America when the government doesn't target criminals, (but innocent people)?...The new low in American jurisprudence is to attack the American family..."(73)

Georgetown University law professor Paul Rothstein summed up the Weaver verdict by saying, "what this shows is that (the) jury and people in general are not willing to hand law enforcement officers a license to do anything they want."(74)

(57) Bonners Ferry Herald, May 12, 1993.
(58) The New York Times, July 9, 1993, at Al, D18.
(59) Spokesman-Review, April 17, 1993.
(60) Spokesman-Review, April 21, 1993.
(61) Phil. (PA) Inquirer, May 10, 1993, at A12.
(62) Spokesman-Review, April 23, 1993, at B1.
(63) Spokesman-Review, May 6, 1993.
(64) _Id_.
(65) Spokesman Review, June 121[sic] , 1993, at A9.
(66) Chris Temple, _A chronology of the events..._, JUBILEE, July, 1993, at 3.
(67) The Idaho Statesman, June lO, 1993, at C1.
(68) Spokesman Review, June 13, 1993, at A16.
(69) Temple, _supra_, note 66.
(70) The New York Times, May 28, 1993, at A18.
(71) Paul Hall, _Weaver Trial Update_, JUBILEE, May/June, 1993, at 11.
(72) Spokesman-Review, June 24, 1993, at A1.
(73) Temple, _supra_., note 66, at 5.
(74) USA Today, July 9, 1993, at 3A.