by Steve Fiffer
T h e prosecution also faced the media. A philosophical Mandel told
reporters that he trusted the jury's verdict. "I felt we proved the case," he
said in a later interview, "but if I was the only person I ever had to con-
vince, we'd reach decisions very quickly." He says it is apparent that the
j u r y " b o u g h t the big government versus the little guy spin."
The New York Times called the verdict a "significant setback for fed-
eral prosecutors." A Denver Post headline declared: " N o Meat in Fossil
Verdicts." And back in Rapid City, the Journal proclaimed: "Verdict
Victory for Fossil Hunters." But would that victory continue through
the sentencing?
More than ten m o n t h s passed before the Larsons found out if they
were going to prison or would receive probation. The jury's inability to
reach a verdict on almost half the crimes created most of the delay.
Because of the deadlock, Judge Battey had to determine whether or not
to acquit the defendants of the outstanding 68 charges. He eventually
ruled against acquittal, saying, "a reasonable jury could have found the
defendants guilty of all those charges they were unable to agree on."
This decision gave the prosecution the option to retry the case. It
also moved juror LaNice Archer to speak out. "'Reasonable' to me was
n o t spending millions of dollars on a glorified trespassing case," she told
Bill Harlan.
Later, Archer and six fellow jurors held a news conference. They reit-
erated that they had voted 11-1 for acquittal on all the unresolved
charges. Then they offered a startling revelation: if they had it to do all
over again, they would now acquit the defendants of everything. They had
I K E P T W A I T I N G F O R S O M E T H I N G T O H A P P E N 1 8 7
voted to convict only because they interpreted the judge's instructions to
require that they disregard key elements of the defense, explained Archer.
"They [the defendants] are not fraudulent people," added juror
Cindy Fortin. "They're a good group of guys. Very good. The govern-
m e n t did not prove they were guilty of anything, with intent." Juror
Phyllis Parkhurst added: "I sat there t h r o u g h the whole trial, and I kept
waiting for something to happen. It never came." Archer described Neal
Larson as a m a n devoid of criminal intent. "This is the guy w h o invent-
ed Flubber. He's the absent-minded professor." As for some of the real
professors w h o had testified, the government's expert witnesses, Archer
said, "I started to sense early on a professional snobbery and jealousy in
the scientific community."
In May, Peter Larson traveled to Tokyo in May to m o u n t an ambitious
dinosaur exhibition. Hendrickson helped him set up the display. This
marked the first time that the pair had been able to talk face to face since
Hendrickson had been called before the grand jury three years earlier
and told that she could not c o m m u n i c a t e with any of the potential
defendants. "There was a lot of hugging," Hendrickson remembers.
" O u r friendship was as strong as ever," Larson agrees.
M u s e u m officials and the public alike lavished praise on the Tokyo
exhibition. A paper Larson had written for the occasion, "Tyrannosaurus
rex—Cranial Kinesis," was also well received. Here, based on his b o n e -
by-bone, joint-by-joint study of Stan's skull, he detailed for the first
time how the creature's head moved. "Pete knows as m u c h about this as
anyone in the world," says Bakker. "It was i m p o r t a n t work."
Larson returned to the United States upbeat. This m o o d continued
through the summer, thanks to mostly good news from the c o u r t r o o m .
Despite Judge Battey's ruling, the government decided not to retry the
case. In a prepared statement, U.S. Attorney Schreier said a new trial
would not be a p r u d e n t use of government resources. She said the con-
victions in h a n d constituted an "adequate basis for the court to impose
sentence in the case."
Said Attorney Ellison: "Hopefully such a reasonable attitude will
continue through sentencing."
Sentencing never became an issue with o n e of the defendants. In
August Judge Battey threw out Farrar's two felony convictions and the
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TYRANNOSAURUS S U E
institute's felony convictions as well. The judge cited a recent ruling by
the U.S. Supreme C o u r t that suggested that these convictions would be
overturned on appeal.
The news was equally good in the field. Larson had returned to the
badlands, albeit cautiously. He no longer trusted collectors or landown-
ers to tell him the status of a particular parcel of land. He checked every-
thing with local registrars and used a GPS (global positioning system)
to determine his exact whereabouts.
In August, Steve Sacrison found another T. rex in the same formation
where Stan and Duffy had been found. A smiling Larson noted that exca-
vation would begin five years to the day after Sue had been found. "It's a
wonderful thing to happen to us at this time," he told the press. "T. rex has
been our icon for quite a long time through ups and downs, and all the
downs are easier to take if you have ups like this." He added that the find
"symbolizes o u r joy in getting back to work again and doing the things we
love." He named the dinosaur "Steven" after its discoverer and announced
that this T. rex. would stand by Stan in the new Black Hills Museum.
Two weeks into the excavation, Larson developed another snapshot
for his dinosaur p h o t o album. It's possible that the tyrant lizard was a
cannibal, he proffered. Spines on Steven's dorsal vertebrae had been
sheared off in a m a n n e r suggesting that they had been eaten by one of
their own. The sites of the bites were similar to those on other animals
that had been preyed u p o n ; Larson called t h e m the "T-bone and ten-
derloin" sections. The huge size of the "portions" also pointed to only
o n e possible aggressor—a fellow T. rex.
Thanksgiving and Christmas 1995 came a n d went without Judge Battey
passing sentence. So, too, did New Year's Day 1996 and January 10, the
first anniversary of the start of the trial. On January 22, Neal Larson
finally appeared in court. He faced up to 12 m o n t h s in jail and a $1000
fine for his m i s d e m e a n o r conviction. The government had argued for a
stiff sentence because, it said, Larson engaged in a pattern of criminal
behavior.
A c o u r t r o o m full of supporters, including Larson's wife and five
children, listened as Judge Battey declared that it was a "close call"
whether to p u t Larson on probation or send h i m to prison. His deci-
I K E P T W A I T I N G F O R S O M E T H I N G T O H A P P E N 1 8 9
sion: two years probation and the m a x i m u m fine of $1000. A tearful
Larson hugged friends a n d relatives after the decision a n d told
reporters: "I'm happy, joyful, and thankful. It's been a long four years."
W h e n Peter Larson headed to court for sentencing on January 29,
he knew he could face up to 33 m o n t h s in prison. Federal sentencing is
&nb
sp; not easy to diagram. In determining the length of a sentence, a judge
must determine which "level" to assign to each conviction. Each level
offers a range of prison time. For example, level 6—the level Duffy
thought applicable—is zero to six m o n t h s . Once the judge selects a
level, he or she has flexibility to choose a sentence within the level's
range.
In November, Judge Battey, w h o m the defense had attempted to
recuse four times, had held a hearing to help him determine Larson's
sentencing level. Duffy argued for level 6 and probation. T h e govern-
ment, w h o m Duffy had criticized at every turn, aggressively pushed for
a m u c h higher level and a sentence that included significant prison
time, 33 to 41 m o n t h s .
A federal judge can take several factors into consideration w h e n
determining the sentencing level. If prosecutors can show that there
were aggravating circumstances in the case, the level can be increased.
In this case, Zuercher alleged violations of Peruvian statutes a n d offered
evidence not presented at trial. Duffy believed the presentation specious
and called his own witnesses from Peru to rebut it.
Sentencing guidelines also permitted moving to a higher level "if
the defendant was an organizer or leader of a criminal activity that
involved five or m o r e participants and was otherwise extensive." Here
Zuercher continued to press the point that the jury had refused to
accept: The institute was a criminal enterprise. The prosecutor n a m e d
Neal Larson, Farrar, Zenker, and Hendrickson as ringleader Larson's
"participants."
Larson and others were flabbergasted to learn that a decision by the
U.S. Supreme C o u r t permits federal judges to use acquittals against a
defendant when determining a sentencing level. That decision allows
the judge to weigh evidence from the trial using a different standard
than the jury uses. A jury can convict only if it finds "beyond a reason-
able doubt." A judge can take into account whether a "preponderance"
1 9 0 TYRANNOSAURUS S U E
of the evidence would have supported a guilty charge. This is a consid-
erably easier standard to prove. "I still don't understand how a judge can
find you guilty of the same charge a jury finds you not guilty of," says
Larson. " H o w is that fair?"
Fair or not, Judge Battey had, in effect, d o n e just that in setting the
sentencing level. His choice: not level 6, but, depending on different
computations, 17 or 18. As a result, Larson faced 24 to 33 m o n t h s in
prison if the judge did not place h i m on probation. This put Larson at
a level higher than those for aggravated assault, involuntary manslaugh-
ter, and child pornography, complained Duffy. Resorting to another
popular culture reference, Duffy said, "[Larson] has to be beyond
Snidely Whiplash for this to happen."
Earlier in the winter, Larson had broken his leg falling down an icy
stairway. On sentencing day, with his wife and children at his side, he
hobbled into the crowded c o u r t r o o m on crutches. Once seated, he heard
Mandel argue for a prison term of 30 m o n t h s and a fine of $50,000. Then
the judge asked him if he wanted to say anything. He rose slowly from his
chair and said, "I absolutely and positively accept responsibility for all of
my a c t i o n s . . . . [But] I never intended to do anything wrong."
Battey, w h o had received 190 letters supporting Larson, was ready to
rule. He said Larson was "a likable person," b u t he did not believe this
protestation of lack of intent. Larson was too expert a collector not to
have at least suspected he was on public lands, said the judge. In addi-
tion, Battey saw a pattern of conduct. "This was not an isolated theft of
government property," he noted, in direct contrast to the jury's findings.
Judge Battey sentenced Larson to two years in prison. Coincidentally,
this was the exact a m o u n t of time the government had offered in its first
plea bargain offer. The judge also sentenced Larson to an additional two
years of "supervised release," the equivalent of parole, and fined him
$5000.
Duffy lit no victory cigar this time. "It's a staggeringly dispropor-
tionate sentence for the offenses committed," he said, promising to
appeal the convictions. Later Duffy would take some solace in the fact
that the fine had been relatively light. T h e judge could have put the
institute out of business if he had chosen to, the lawyer said.
Larson was left to w o n d e r h o w the plea bargain that would have
kept h i m out of jail went up in smoke. He feels that the Journal's story
I K E P T W A I T I N G F O R S O M E T H I N G T O H A P P E N 1 9 1
about the negotiations d o o m e d the deal and still wants to k n o w w h o
leaked the story to reporter O'Gara. There has been speculation that
s o m e o n e from the defense c a m p did so, perhaps without thinking of the
consequences or perhaps out of a desire for publicity. Duffy denies any
involvement.
Larson recalls his attorney confirming details of the negotiations to
O'Gara. This suggests that O'Gara might have learned these details from
the government. But why would the prosecutors have leaked the story?
Perhaps, some say, because there was a split in the U.S. attorney's office
over the plea bargain. This theory holds that those w h o wanted to go to
trial and p u t Larson behind bars called O'Gara in an attempt to sabo-
tage the negotiations. If so, it appeared to have worked. "The b o t t o m
line is that whoever did it cost me two years of my life," says Larson.
Larson's stiff sentence caused m a n y institute supporters to second-
guess Duffy. In particular they questioned his decision from day one to
play the case out in the press—a strategy that clearly antagonized b o t h
the prosecution and Judge Battey. Aware of his critics, Duffy adamantly
defends his strategy. "I sleep the sleep of the just," he says, adding: "We
were invited to a press war by Schieffer and the DOJ [Department of
Justice]."
Clearly. But did he have to accept the invitation? Yes, he says. "The
net effect was positive." There were only a few convictions, and "the fines
could have been so m u c h worse. [Judge Battey] could have applied eco-
nomic sanctions that destroyed the institute."
But what of the prison term? "The sentencing was draconian," says
Duffy. "The use of alleged illegal violations in Peru to form a basis for
relevance was wrong."
Duffy concludes: "I'm offended that if you piss the government off
you have to pay. That's what started the case and that's what ended it."
Perhaps. But if a lawyer knows that the government will react neg-
atively, even punitively, if "pissed off," shouldn't he try to avoid waging
war in the press?
In the end, Duffy seems to have won the battle but lost the war. His
strategy to portray the defendants as the victims of an evil prosecutor
and vindictive government worked brilliantly with the jury. But it failed
just as spectacularly with the judge a n d the U.S. attorney's office. Thi
s is
not to say that if Duffy had never talked to the press, he could have kept
1 9 2
TYRANNOSAURUS S U E
his client out of prison. Few m e m b e r s of the c o m m u n i t y think two years
in prison is a fair sentence for failing to declare cash or travelers' checks.
But from the m o m e n t the FBI raided the institute—perhaps even
before, when Rangers Santucci and Robins began their investigations—
the government seemed bent on making an example of the Larsons, and
a slap on the wrist wouldn't do.
Why did the government need to make an example of anyone? "The
government was never able to create a uniform system of laws to cover
[fossil collecting]," Duffy explains. "And what government can't get by
directive, oftentimes it takes by indictment." Chicoinne agrees, but he
places some of the blame on Duffy's shoulders. "Mandel was an u p -
front guy. In my opinion, you could have eventually sat down with him
a n d m a d e a lot better deal than two years. The crimes alleged here were
not inherently egregious—not child abuse, molestation, or bilking peo-
ple out of savings." The spotlight should have been turned off so that
"the government could settle without a lot of people looking at them.
The government doesn't want people to think it's soft."
Kevin Schieffer was never accused of being soft. Thus his comments
on whether he felt vindicated by the sentencing might surprise some of
his critics. "There's not a whole lot of vindication when the law is stupid,"
he said recently. "I empathize with the institute in that that area of the
law was screwed up. To their credit they lobbied to get it changed to what
they thought would be better. But even if getting permits is screwed up,
you don't ignore them. As a p r o s e c u t o r . . . you can't walk away when you
have guys as sophisticated as these . . . flagrantly ignoring the law."
On February 19, three weeks after the sentencing, friends and fam-
ily of Peter Larson gathered at the Alpine Inn restaurant on Main Street
for a going-away party. Larson had agreed to "surrender" at the federal
prison in Florence, Colorado, two days later. "There was some laughing
and some crying," he remembers.
He admits that he had cried considerably m o r e than he had laughed
in the preceding days. "At the point of sentencing, it became more real.