by Jess Walter
He checked the date on the cover letter. It had been stamped in the FBI mail room May 21, 1993. Two weeks earlier. The FBI had mailed this vital package fourth class.
TWENTY-ONE
DAVID NEVIN HAD GONE over the scenario so many times in his mind that he could practically hear it. “Defense calls Kevin Harris.” The jury members lean forward in their chairs as Kevin walks past the judge and sits down in the witness chair, looks at the jury with his perfectly guileless face, and waits. No lawyer games. Nevin just asks him, “Kevin, what happened?”
No, he couldn’t do it. Howen would eat him alive.
But Kevin was such a good kid! They would have to see that. Nevin had looked the jury members over, face by face, and he knew that if they could just hear Kevin’s story in Kevin’s own words—instead of through some self-conscious attorney or through the piecemeal impeachment of government witnesses—they would realize he was telling the truth. He’d given the same story ever since the FBI interviewed him in his hospital bed, never once deviating or denying that he’d shot Bill Degan. Kevin would sit down in that chair and say what he’d said from the beginning: “I didn’t want to shoot that man.”
The decision had been looming there throughout the trial. During every crisis over this Witness’s testimony or that piece of evidence, every split-second reaction to the government’s case, the larger questions were there, haunting him: Should he put on a case? Should he let Kevin testify? Kevin didn’t take much of an interest in the strategy of his defense, but he made it clear he wanted to testify.
The knowledge that somebody’s life rests in your hands can paralyze an attorney, and Nevin had done enough death penalty cases to know what that fear felt like at its dreariest. But life in prison was often a victory in death penalty cases. With Kevin, freedom was the only acceptable answer. In some ways, that put more pressure on Nevin. This kid’s life was at stake. Shouldn’t he be allowed to testify?
So he ran it past Spence, who turned down the corners of his wind-weathered mouth and shook his head. “You can’t put Kevin on.”
That convinced him. He had to put Kevin on.
Maybe it was just his own personality; maybe David Nevin was too self-tortured to completely trust anyone. After all, Spence had been nothing but generous to him. (Perhaps too generous? Stop it, he told himself.) But from Spence’s first phone call—”David? I hear you’re a great attorney.”—Nevin had played a game with himself, allowing somewhere in the back of his mind for the absolute worst and then half expecting it. He worried about being so completely overshadowed by Spence that the jury forgot Kevin Harris even had a lawyer. That hadn’t happened, and as the trial wound down, he knew he’d held his own. He worried that Spence would be impossible to work with, like some legal rock star, trashing motel rooms, demanding bourbon and women after every cross-examination, dismissing the rest of the team like some studio band. That hadn’t happened either. Spence had been gracious and complimentary, a great attorney to work with.
So maybe Spence wasn’t just outfoxing the prosecutor but was outfoxing Nevin, too. Maybe Kevin’s testimony would somehow hurt Randy’s case. Worn down from months of preparation and weeks of grueling trial, Nevin imagined Spence as some Machiavellian figure who had it all wired and who knew the jury needed to punish someone and that someone would be Kevin. That was the worst thing Nevin could imagine: Randy walking out that door and the jury nailing the quiet kid who wouldn’t even have been there if it hadn’t been for Weaver.
He knew that Spence and Peterson were leaning toward resting their case without calling any witnesses. It made sense for them. They’d presented a pattern of government bumbling and misconduct against Randy. They had a paid informant, screwups on Randy’s court date, and a parade of witnesses who said Randy and Vicki were great people. And, when it came right down to it, their guy didn’t shoot anybody.
It was harder for Nevin. He still had the shooter. He thought he’d convinced the jury that the deputy marshals’ version of the shoot-out made no sense, but at the same time, who knew? Maybe they would get back in deliberations and say it didn’t matter who shot first. They wanted to punish someone. Kevin.
Nevin wasn’t some inexperienced hack. He was one of the top defense attorneys in Idaho. But Spence was something else—the best in the world. Who knew what went on in a mind like that?
Spence came over for dinner a few times during the trial and hunched down on the couch with Nevin’s two sons, playing video games. He sidled up to Nevin at one point and said he wanted to confide something. “The big boy needs some attention.” Spence smiled. “The little one’s such a star.” And the thing was, he was right!
But the more generous Spence became, the more Nevin played devil’s advocate with himself. For weeks, all six attorneys had debated whether or not to put on a case. It came up at meetings, over lunch, while jogging, and the lawyers routinely jumped from one side of the argument to the other. Nevin decided to convince Gerry that Kevin needed to testify—in part to see how Spence reacted. He explained that Kevin’s story would be unimpeachable because it had never changed.
“You’re right,” Spence said finally. “You should put him on.”
What? Nevin was tortured. Perhaps it was all in his mind, but why the sudden switch, why did Spence now say it was a good idea to put Kevin on? What the hell did that mean? Maybe Spence only advised him not to put Kevin on so he then would change his mind and put him on. That would get Randy’s story out there without having to put Randy on the stand. It was so perfect!
“I can’t put him on,” Nevin said. They’d done a good enough job cutting away at the government case that he didn’t need to do it.
“Right,” Spence said. “You can’t put him on.”
There is a point at which a lawyer must trust his client. Tougher, Nevin realized, was the point at which he trusted another lawyer.
He remembered watching Spence screw up a cross-examination once. He settled in behind his big Stetson, a funny curl on his mouth, and Nevin said to himself, “What the hell was that? That’s the best attorney in the world?” He couldn’t imagine what that pressure must be like. Spence’s power wasn’t in his trial strategy or his craftiness; he wasn’t smarter than the other lawyers. He worked hard at those things, but his real strength was those moments of clarity when he spoke so intuitively and powerfully to a jury that he cut through all the posturing and legal language.
The questions of guilt and process fell away, and his words sounded suspiciously like truth.
Consciously, Nevin had always liked Spence. Now, by the end of the trial, he even convinced his subconscious. Still, that didn’t help with his decision.
His taciturn co-counsel Ellie Matthews was no help either. He listened to Nevin’s back-and-forth ravings as if the young attorney were speaking a lost Chinese dialect. “Just make a decision,” Matthews said.
JUDGE LODGE WAS FURIOUS about the Horiuchi drawings and interview notes. He fined the government for one day of the defense team’s costs, even sixty dollars an hour for the Spences and Garry Gilman, who were working for free. “It does appear that it is somewhat of a pattern on the part of people, agencies outside of the District of Idaho,” Lodge said. “It seems to be totally inexcusable … to send something like this fourth-class mail when a trial of this nature is going on, with the cost of time and human tragedy that is involved.” Lindquist wondered if someone at the FBI was doing this on purpose.
They dragged Horiuchi back from Washington, D.C., put him on the stand, and asked him about the two heads he’d drawn in the Weaver’s window. Horiuchi said they represented Randy and Sara Weaver, who were running ahead of Harris into the cabin. The sniper said he added the heads because the FBI agent who interviewed him asked where he estimated Randy and Sara were when he fired. He insisted the curtains were drawn and that he couldn’t see them or Vicki Weaver.
Spence pointed out that in his drawing, Horiuchi’s crosshairs weren’t on Kevin Harris, but were on the windo
w of the door. “Let’s assume … the curtain at the bottom of the window was open approximately seven or eight inches,” Spence asked. “You could have seen the movement of those two heads across there, couldn’t you?”
“If the curtain was open, yes, sir.”
“You could have seen Vicki Weaver standing there, couldn’t you?”
“Yes, sir, if the curtain was open.”
“You did see her, didn’t you?”
“No, sir, I did not.”
Nevin asked why, if Horiuchi’s drawing was to estimate where Randy and Sara were, he drew only the tops of their heads in the window. If he couldn’t see through the window and he couldn’t see through the door and he was trying to illustrate where they might be, wouldn’t he draw their whole bodies behind the door? Unless of course he did see those two heads in the doorway.
“No, sir.”
ALL THAT WAS LEFT was the science. Ballistics and forensics experts were often the spine of a prosecutor’s case, the place where the other evidence could be connected to the government’s theory. But since the FBI laboratory had virtually ignored the case, prosecutors were forced to go out and find their own experts to examine the evidence. And if there was ever a case that needed experts, it was this one.
Seven weeks into the trial, there was still no consensus about what had happened during the shoot-out with the marshals. For nearly a year, the news media had described it as an Old West shoot-out, but this was no quick draw on opposite ends of a corral, good guys versus bad guys. It was a confusing blur of shots, overlapping positions, and wild firing.
The defense team’s story remained the same: Roderick shoots Striker. Sammy gets mad, fires at Roderick, and misses. Degan shoots Sammy in the arm, and Sammy turns to run home. Kevin shoots Degan to protect Sammy. And Cooper shoots Sammy in the back.
Government witnesses told a less concrete story: Degan rises on one knee, identifies himself, and tells Sammy and Kevin to freeze. Kevin wheels and kills Degan. Nearby, Roderick shoots the dog. Cooper sees Degan go down, fires at Kevin, and mistakenly thinks he hits him. Degan fires seven shots after he’s hit, one of which hits Sammy in the arm. Then, somehow, Sammy is shot and killed as he runs away. Ballistics evidence clearly pointed to Cooper, but he claimed to have seen Sammy running away after he finished shooting. Since the bullet passed through Sammy and was never found, it was impossible to say for certain.
Dr. Martin Fackler, a surgeon and wound ballistics expert, bolstered the government’s version of the gunfight, testifying that Degan could have fired his gun seven times even after being hit in the chest by the bullet that eventually killed him. He said Degan probably could continue fighting for three full minutes. “Even if the blood had stopped to the heart,” Fackler said, “he still could have emptied a whole magazine of ammunition.” Since Degan was a trained marksman, and only one of his shots had hit Samuel Weaver (in the arm) from fairly close range, Fackler concluded that Degan was probably injured before he fired the seven shots. After two months of claiming Harris shot first, the prosecution was finally explaining how it could be possible.
It was a ridiculous theory, defense attorneys said, assuming that because Degan had missed, he’d already been shot. Peterson asked why Fackler hadn’t interviewed Cooper or talked to the pathologist in the case or even visited the scene of the shoot-out. He implied Fackler was a hired gun, an expert called in to simply agree with the prosecution’s version of events.
During one of the breaks, Kent Spence had been turning Degan’s backpack over in his hands when he discovered what looked like another bullet hole that government experts had missed, a shot that appeared to have come from behind Degan and went clean through the backpack without hitting him. The defense attorneys suggested that it was friendly fire and that it called into question the shot that killed Degan, too. Maybe, they surmised, Kevin only thought he killed Degan. The jury didn’t buy that, but the new bullet hole added to the picture of government bungling and couldn’t hurt in the reasonable doubt department.
Fackler also testified that the shot that killed Degan severed his axial nerve, which would paralyze the upper left side of his body. Peterson began a series of demonstrations, with Fackler assuming Degan’s position on the floor and Peterson strapping on Degan’s backpack and walking around with a pointer coming out of the bullet hole. They talked about directionality, cavitation, and bullet trajectory, a technical blur of information that led to one point: How could Degan squeeze off seven shots, one at a time, traveling over a distance of twenty-two feet, after being shot in the chest and having his upper left arm deadened? After all, his body had been found with his left arm still in the gun strap, defense attorneys reminded, so he couldn’t have held the gun up with just his right hand.
Peterson asked if it was possible Degan fired one shot before he was hit. Two? Three? Four? Seven? Each time Fackler said it was possible.
Fackler’s testimony contradicted Larry Cooper’s version of events. Cooper insisted he saw Sammy running away after he had fired his last shot. Yet Fackler testified that ballistics evidence pointed to Cooper’s bullet as being the one that tore through Sammy’s back and killed him.
Defense attorneys especially attacked Fackler’s contention that Degan must have been wounded before he fired a shot, since he missed Samuel. After all, how did Fackler know who Degan was firing at? If Degan was shot by Kevin Harris, why didn’t he shoot at Harris instead of turning his gun on a fourteen-year-old boy? Couldn’t he have just been firing into the woods to cover his colleagues?
“Have you been told that Mr. Cooper claims he fired point-blank … at Kevin Harris?” Nevin asked.
“No,” Fackler admitted. “I have not been told that.”
When Cooper fired at Harris, he was closer than Degan was to Samuel Weaver. And yet Cooper missed with three shots. “Would that change your opinion as to whether or not that was an easy shot by Mr. Degan?”
Lindquist objected. But the point was made. In northern Idaho that weekend, Cooper missed at least three times, and Horiuchi missed twice, and the government claimed the two people it did kill were by accident. Defense attorneys proposed that missing with six shots wasn’t anything special for a government agent on Ruby Ridge.
After two days of complex, medical testimony, Fackler’s opinion seemed to boil down to this: It could have happened this way; it could have happened that way.
The next witness, a private ballistics expert named Lucien Haag, told the same story. Again, his testimony in some respects contradicted Cooper’s, the government’s only witness to the shoot-out. Haag concluded that according to the ballistics evidence, the government’s version of the gunfight was only the most likely of several possible scenarios.
And that was it. After thirty-six days of testimony by fifty-four witnesses, Ron Howen stood and said the government’s case was finished.
THE ATTORNEYS GATHERED in a scrum around Judge Lodge’s desk. “Your Honor,” Spence said, “we’re not gonna put a case on. We want to go ahead and rest right now, and then we can argue our motions later.”
Lodge didn’t seem surprised. In the back of the huddle of lawyers, Nevin cleared his throat. Perhaps he’d known all along that he wouldn’t put Kevin on the stand. Now his mind games about Spence seemed pretty silly, and he realized that if they won this case, it would be because they all hung together, refusing to allow the case to be defined by the prosecution, redefining it themselves, creating one ethic, and presenting it to the jury; they were a team in the sense that attorneys rarely get to experience. The government hadn’t proved a damn thing. Spence had rested cases before, most notably during his defense of Imelda Marcos. Nevin had never done it before, but now he was ready. He reasoned that if he did put on a case, the jury would just choose between the two cases—who had done a better job, him or the prosecutors? But if he simply rested, the jury would be forced to consider whether or not the government had proved the charges beyond a reasonable doubt. Nevin believed strongly that was the
most important principle in our legal system, and so he felt confident when he said, “We’re not gonna put on a case either.”
Lodge looked incredulously at Nevin. “You’re not putting on a case either?”
Nevin’s mouth went dry. Oh my God, he thought, what have I done? Even the judge thinks I should put on a case.
Back at the defense table, Nevin tried to smile at Kevin Harris. The judge asked for the defense to begin its case, and Nevin stood. “In view of the evidence that has been presented, Mr. Harris waives his right to present evidence.” It was dead quiet in that courtroom. And then there was this buzz, as people in the gallery behind him whispered. Out of the corner of his eye, Nevin saw a juror’s mouth fall open and saw others stare at him, confused. In the gallery, Kevin Harris’s mother and girlfriend began crying. That’s it, Nevin thought, I’ve killed this poor kid.
Spence allowed just the right pause before standing up. In his deep voice, the words sounded like an official proclamation. “In view of the evidence that has been presented and the evidence that has not been presented, the defendant Mr. Weaver also waives his right to present any defense and rests at this time.”
KIM LINDQUIST HAD TAKEN on as much of the responsibility for the case as he could, and still Howen was working himself to the point of exhaustion. He’d labored for ten months nonstop on preparation and on the trial itself. He was pulled apart by what Lindquist saw as the defense team’s unrealistic discovery requests and the FBI’s reluctance to turn over documents. Howen wasn’t eating well and had stopped working out at the gym. Earlier in the case, he was getting by on just a few hours of sleep each night, and now it seemed as if he never slept. It was no secret around the U.S. Attorneys Office that all the time he’d devoted to the Weaver case had caused problems with his family life, too. There was concern about the effect of the stress on Howen. Lindquist hated seeing such a good, strong prosecutor undone by the pressure in this case.