by Steve Fiffer
clippings about the case. T h e n he talked to m a n y residents to get a
sense of h o w best to tap into or arouse the a n t i g o v e r n m e n t sentiment
of a jury.
Duffy's opening statement evoked memories of the "Man from H o p e "
video that in 1992 had introduced a different side of Bill Clinton to his
jurors, the voters. The "Men from Hill City" presentation chronicled the
Larson brothers' roots—their first museum, their dreams of collecting fos-
sils—and their ultimate realization of their dreams, the American Dream.
They now sold fossils to the greatest museums around the world, Duffy
told the jury.
Having humanized the defendants, Duffy addressed the govern-
ment's charges. So, too, did Neal Larson's lawyer, Bruce Ellison. T h e core
of the Duffy/Ellison defense was simple: their clients never knowingly
illegally collected on public lands. In some instances in which they may
1 6 4 TYRANNOSAURUS S U E
have collected on such land, they did so only after receiving permission
from those w h o m they thought owned the land; in other words, they
thought they were on private, not public, property. In other instances,
they relied on the word of private collectors w h o m they trusted. And on
still other occasions, they did not believe it was against the law to collect
the particular type of specimens they were charged with stealing. In
short: these honorable scientists either did no wrong or meant to do no
wrong, said their lawyers.
For the next six weeks, Mandel and his team reconstructed their
case as Peter Larson and his team would construct a d i n o s a u r — b o n e by
bone. Quite frankly, few visitors to the institute would find it exciting to
watch Larson or Terry Wentz use their airbrades and epoxy for more
than a few minutes. Similarly, few visitors to Judge Battey's c o u r t r o o m
were held spellbound by the government's use of 92 witnesses and h u n -
dreds of exhibits. "This was the kind of case where you bust your butt
trying to prove the elements, subjecting the jury to tedious testimony,"
Mandel acknowledges.
Of course, in building a case or a dinosaur, it is the end product that
is i m p o r t a n t . And, in fairness to the lawyers, there were m o r e than a few
telling, if not theatrical, m o m e n t s .
Thursday, January 12 FBI Agent William Asbury takes the stand for
the prosecution. He testifies about the various fossils, maps, documents,
and other matter seized during searches of the institute. As he does so,
the prosecution formally introduces m a n y of these pieces into evidence.
There are so many exhibits—more than 500—that the prosecution pro-
vides the jurors with notebooks cataloguing the evidence. Six television
monitors also display institute field notes for jurors and spectators.
Asbury testifies that these notes indicate that the defendants knew that
they were illegally collecting on public lands.
Friday, J a n u a r y 13 Duffy cross-examines, or tries to cross-examine,
Asbury about some of the fossils in question. Example: Did Asbury
k n o w that the institute h a d sold o n e of the specimens to the
Smithsonian, charging only what it cost to prepare it because the fossil
was of scientific import? Zuercher rises to object, arguing that how
m u c h the institute charged is irrelevant. Judge Battey sustains the objec-
tion. Still, Duffy has m a d e his point to the jury; the Larsons weren't
profiting from this so-called illegal activity. Why, therefore, the fuss?
T H E Y ' R E N O T C R I M E S 1 6 5
Tuesday, January 17 During his cross-examination of Asbury, Bruce
Ellison focuses on another fossil. The Larsons are charged with falsely
telling the customs service that a baleen whale excavated in Peru had no
commercial value. After bringing the bones back to Hill City, the insti-
tute reconstructed the fossil and then sold it for $225,000. Ellison asks
Asbury if he knows how m a n y m a n - h o u r s went into the excavation,
transport, and preparation of the specimen. His point is that the bones
truly had no value when they passed through customs; thus, there was no
false declaration.
Ellison also tackles the obstruction-of-justice charge against his
client. Does Asbury k n o w when Neal Larson first changed the dates on
the boxes of fossils in question? Ellison is laying the groundwork for his
defense: that although Neal did change the dates, he had remedied the
situation by the time he t u r n e d the boxes over to the FBI on the day of
the raid. Asbury says he is not aware when the dates were first changed.
Friday, January 20 O n e of the counts of the indictment charges that
Peter Larson and Eddie Cole collected a Paleonephrops browni (fossil lob-
ster) from federal lands at the Fort Peck Reservoir in Montana, despite the
fact that Larson was aware that others had been prosecuted for illegally
collecting fossils there.
The prosecution presents Becky Otto, an archaeologist with the U.S.
Army Corps of Engineers. She testifies that in September 1988, after the
lobster was collected, the corps had turned d o w n a request by the insti-
tute to collect at the reservoir The prosecution believes this proves that
the defendants knew a permit was required.
On cross-examination, Duffy attempts to establish his client's inno-
cence by demonstrating that Larson and the government differ over what
constitutes illegal collecting. Otto says her agency never gives permits to
commercial collectors, but she admits that Corps of Engineers' regulations
don't specifically use the terms "fossils" or "paleontological resources." She
adds that "minerals" are included in the regulations and that fossils were
intended to fall under that definition. Duffy follows up by asking if Otto is
aware that the solicitor general of the U.S. Department of the Interior has
ruled that fossils are not minerals. Mandel objects; Duffy's portrayal of
governmental policy here is inaccurate, the prosecutor asserts.
Ron Banks, Cole's lawyer, also cross-examines Otto. T h e archaeolo-
gist has stated that corps rules ban disturbing any government proper-
1 6 6 TYRANNOSAURUS S U E
ty or natural resources. Does that mean a person could be arrested for
picking a flower on federal land? asks Banks, w h o is trying to plant the
idea that the regulations are hazily, if not foolishly, worded.
Otto: "The possibility is remote."
Tuesday, J a n u a r y 24 Two i m p o r t a n t witnesses are examined,
Sharkey Williams and Lee Campbell. Larson is accused of removing fos-
sil remains, including portions of three Triceratops, from Williams's
ranch in the days preceding the discovery of Sue. Williams testifies that
he owns some of his land, but he leases the land in question from the
Cheyenne River Sioux tribe. He says that Larson could have found out
the boundaries of the leased land by asking officials of the tribe. He adds
that he and Larson never talked about the difference between the leased
and unleased land. Larson has always maintained that he believed
Williams owned the l
and and had the power to give permission to dig.
Williams testifies that he did give Larson permission to dig but did not
k n o w that Larson was actually going to remove fossils. He says that
Larson later sent h i m a check in payment for the fossils and for dis-
turbing the land. Williams cashed the check. Given these facts, is Larson
guilty of a crime? The jury will have to decide.
Campbell is a commercial collector with w h o m Larson has done
business. He has been granted i m m u n i t y in return for his testimony.
Campbell admits that he and Peter Larson removed a Triceratops from
BLM property near Lusk, Wyoming, in June 1987. Larson has main-
tained that he thought they were on private land. Did they know they
were on federal land? asks the prosecution. Campbell responds that he
told Larson there was a "high probability" that they were indeed within
BLM boundaries.
On cross-examination, Duffy produces a transcript of Campbell's
grand jury testimony concerning the location of the fossil. "I've
searched my brain 50 times on that, and I just can't remember," he had
testified. Duffy wants to k n o w why Campbell is now contradicting that
testimony. " H o w m a n y m o r e times did you rack your brain?" he asks.
Campbell: "It's been another 50 or so. A lot." He explains that other
evidence refreshed his memory. What evidence? A m a p on which he had
marked an "X" to designate where the Triceratops was found. The mark is
on BLM land, just across the border from the private land. When did he
T H E Y ' R E N O T C R I M E S 1 6 7
show the m a p to Larson? Duffy asks. Campbell admits that he can't recall.
Again, the jury will have to determine if Larson committed a crime here.
Tuesday, January 31 The government calls Marion Zenker. Because
she works for the institute, Zenker is termed a "hostile witness." As a
result, the rules of cross-examination apply. Zenker demonstrates that
she is not kindly disposed to the prosecution. She prefaces o n e response
by saying, "Prior to o u r being invaded by federal agents in 1992 . . . "
Most telling is Zenker's description of the m a n n e r in which the
Larsons operate. Zenker began working at the institute in 1989. At that
time, she tells the jury, the bookkeeping and correspondence were a
mess. Most of the Larson brothers' contracts were verbal, not written.
She even found some notes inscribed on the back of m a t c h b o o k covers.
In short: "These were people w h o loved fossils a n d happened to have a
business," says Zenker. Eventually, the jury will have to decide whether
to accept this "absent-minded professor" defense.
Tuesday, February 7 Sue Hendrickson testifies. Because the prose-
cution wasn't certain when it would need her, Hendrickson has been in
town for several days. Still not allowed to c o m m u n i c a t e with anyone at
the institute or view the trial, she is in emotional turmoil.
In his opening statement, Duffy anticipated Hendrickson's appear-
ance. He told the jury to r e m e m b e r that she had been given i m m u n i t y
in return for her testimony. This a d m o n i t i o n was a not-so-subtle hint
that witnesses put in this position may do whatever it takes to please the
government and save themselves from p r o s e c u t i o n — a n d that their
credibility should be weighed accordingly.
Mandel suspects that Duffy will grill Hendrickson about her o w n
alleged sins for which the government has forgiven her. To defuse such
cross-examination, Mandel himself asks Hendrickson about her past.
The prosecutor inquires if Hendrickson always declared fossils, amber,
gold nuggets, pearls, and the like when she entered the United States and
if she paid income tax on items that she sold. She responds that she
always declared items she believed she was required to declare and that
she paid taxes on income she believed was taxable.
Mandel moves to Hendrickson's knowledge of the defendants' con-
duct. He inquires about fossils collected in Wyoming with Lee Campbell
and others in 1987.
1 6 8
TYRANNOSAURUS S U E
Mandel: There was no permission obtained to collect this
specimen, was there?
Hendrickson: Not that I remember.
Mandel: Were you aware that this specimen was collected
from BLM land?
Hendrickson: I don't r e m e m b e r being aware of that, no.
A collecting trip to M o n t a n a with Larson and Eddie Cole in 1988 is
the next subject of inquiry. Hendrickson acknowledges that the party
slept at a c a m p g r o u n d located at Fort Peck Reservoir, federal land. She
does not, however, recall, collecting the lobster fossil that the govern-
m e n t alleges was illegally excavated.
Mandel has better luck when following the paper trail rather than
the fossil trail. Peter Larson is accused of failing to declare $15,000 in
cash that he took to Peru. Customs regulations require declaration of
over $10,000 in cash or travelers checks. Bank records showed that
Larson withdrew the $15,000 in two separate transactions of $8000 and
$7000. Hendrickson accompanied Larson on the trip.
Mandel: Do you k n o w why it was split into two separate
transactions u n d e r $10,000 each?
Hendrickson: I don't k n o w why the two checks were written
separately. W h e t h e r there was one calculation of
what was needed, then a further calculation what
was needed, I don't know.
Hendrickson testifies that she and Larson split the $15,000 between
t h e m when they entered Peru. Why? "For safety's sake, you would each
carry certain a m o u n t s of money. And as long as you are carrying less
than $10,000 a piece, there's no need to make a declaration of it."
Mandel isn't satisfied. "Is it fair to say, then, that one reason was to
avoid making a declaration?" he asks.
Hendrickson: "That's likely one reason, yes."
Duffy chooses not to cross-examine Hendrickson. "We'd set her up
[to the jury] as their star witness, a n d I'd spent hours preparing for her,"
he later said, "but [the prosecution] didn't lay a glove on her."
T H E Y ' R E N O T C R I M E S 1 6 9
Ellison asks only a few questions. He focuses on two fossil finds.
First, he tries to establish that the defendants honestly believed they
were on private land when they excavated the Triceratops from Sharkey
Williams's property.
Ellison: From your conversations with Mr. Williams,
did you have the impression that that was his
ranch . . . ?
Hendrickson: Yes.
Hendrickson leaves the stand, deeply dismayed that she was put in
the position of having to testify against her closest friends.
"I felt so sorry for her," Larson would later say. "I knew she didn't
want to h u r t us. And she really didn't. I think her testimony was a d u d
for the government. She knew we hadn't d o n e anything wrong."
T h u r s d a y a n d Friday, F e b r u a r y 16-17 Under cross-examination,
defendant Bob Farrar, the Larsons' partner, concedes that the institute
didn't get permits at m a n y of the sites w
here it dug and that it did n o t
always require those from w h o m it bought fossils to verify that their
finds had been collected legally.
The government charges that the institute sold the Field M u s e u m a
catfish fossil purchased after it was collected by Fred Ferguson in
Badlands National Park.
Mandel: For example, when you are buying fossils from
within the boundaries of Badlands National
Park, sir, could you go so far as to, say, call up
the park ranger and ask if it's legal?
Farrar: No, I wouldn't bother him with that.
Mandel: Because he might tell you that it isn't, right?
Farrar: I don't know.
But Farrar did think that Ferguson had "some sort of permission . . .
to collect."
Mandel:
You, of course, have seen that written permis-
sion, haven't you, Mr. Farrar?
1 7 0 TYRANNOSAURUS S U E
Farrar: No, I haven't.
Mandel: Did you ever ask to see it?
Farrar: Yes, I have.
Mandel: You weren't shown it.
Farrar: No.
Mandel: Well, did that make you possibly question
whether or not it existed?
Farrar: No, I believed it did exist.
Is Farrar naive or was he calculating? This is a question for the jury.
Mandel offers another example of such naivete or calculation—the
institute's participation with Campbell in the removal of a Triceratops
from what turned out to be BLM land. The institute has always insisted
that Campbell never said the fossil was on public land.
Mandel: Before collecting it, what effort did you make to
find out whether or not that was federal land?
Farrar: We m a d e no efforts whatsoever.
The prosecutor then t u r n s to the Triceratops skull found on Sharkey
Williams's ranch. T h e institute eventually sold the fossil to a Japanese
m u s e u m for $125,000. Before assenting to the purchase, the m u s e u m
asked for certification that the skull had been collected on private land.
M a n d e l :
Tell me, what efforts did Black Hills Institute
make to determine the status of the land that
came off of?
Farrar:
We asked permission from the rancher to collect;
that's all we did.
Mandel:
No o n e ever m a d e a five-minute p h o n e call to