By Ben Olson
Editor’s Note: This is the fourth of a five-part series on the stand-off at Ruby Ridge, which happened 25 years ago in North Idaho. In this installment, we’ll cover the trial of Randy Weaver and Kevin Harris. Readers who may have missed any of the previous articles can access the online Reader flip-page feature at www.SandpointReader.com.
An Interesting Case
The federal courthouse in Boise was a bustling place on the morning of April 12, 1993. It would be another two years until the trial of O.J. Simpson set a new standard for media coverage, but the trial for Randy Weaver and Kevin Harris attracted reporting teams from all over the Northwest assigned full-time to the trial.
Gerry Spence and Chuck Peterson represented Randy Weaver. David Nevin represented Kevin Harris. Ron Howen served as the federal prosecutor for the federal government and was assisted by Kim Lindquist. U.S. District Judge Edward J. Lodge presided over the case.
The jury was selected on April 13. Of the seven women and five men, all were white and all had raised their hands when asked if they or their families owned guns.
“This will probably be one of the most interesting cases you could be asked to sit on as jurors,” Judge Lodge told the newly selected jurors.
Lead prosecutor Ron Howen presented a four-hour opening statement laced with efforts to prove conspiracy charges against Randy Weaver.
“We need to go back to Iowa 1982, when the Weavers began believing in Christian Identity,” Howen told the court, before building a narrative that the “hate-filled” beliefs of the Weavers provoked a confrontation with government agents in order to validate those beliefs.
Weaver’s attorney Gerry Spence argued the opposite point: that it wasn’t Randy Weaver who provoked the confrontation but the federal government. Spence claimed that Weaver broke no laws until he was entrapped into sawing off shotguns by an undercover informant.
Spence also accused Howen of pushing too hard for the arrest of Weaver when they both knew the firearms charge against Weaver probably wouldn’t hold up in court.
Nevin argued that his client, Kevin Harris, shot Marshal William Degan in self-defense after having been “ambushed and provoked” into a response after the killing of 14-year-old Sammy Weaver and the family dog Striker.
The initial style and personalities of Howen and Spence set the stage for what would be one of the most interesting trials of both of their careers. While Spence wore fringed suede jackets, cowboy boots and hat, Howen wore dark suits and dress shoes. Howen was focused, sometimes impatient. When emotions came into play, Howen often cut them off at the onset, even from his own witnesses. Spence rarely missed an opportunity to solicit an emotion from a witness. He even made himself the butt of jokes on occasion to score points with the jury
Spence’s co-counsel, Chuck Peterson, often riddled hostile witnesses with barrages of questions, rolling his eyes or smirking at the jury to let them know just what he thought of the testimony.
David Nevin, an experienced murder defense attorney, was a marked contrast to the flamboyant styles of Spence and Howen. As most of the attention was on Weaver, Nevin played a quieter role, persistently probing witnesses for inconsistencies.
The prosecution’s first witness of Day Two was U.S. Marshall Larry Cooper, who (at the request of the defense and agreed to by the prosecution) testified wearing the full camouflage outfit including black ski mask that he had worn the day Sammy Weaver had been killed. He also carried a silenced weapon, claiming, “There was no specific reason we carried it; it was just there.”
When asked about the incident at the “Y,” Marshal Cooper testified that the dog Striker came up to him, sniffed him and walked around him but did not attack as some versions of the story had claimed. Cooper testified that he had identified himself as a federal agent, whereupon Harris shot first and immediately killed Marshal Degan. Cooper testified that Harris and Sammy were standing side by side when he fired a three-shot burst from his weapon, and Harris, “dropped like a sack of potatoes.” Cooper said he didn’t shoot at Sammy because he could see he was a kid.
Days Three, Four and Five
Upon cross examination, Cooper admitted that FBI special agent Greg Rampton had revealed during the grand jury hearing that Cooper was carrying the silenced weapon because Cooper had orders to lure the dogs and shoot them so the marshals could sneak up on the Weaver cabin.
Cooper was also unable to explain how, if Kevin Harris fired the first shot killing Marshal Degan, there were seven spent shell casings from Degan’s gun next to Degan’s body.
The next witness called was Rampton, who was one of the first agents on the scene after the initial shootout. Under cross-examination, Rampton reaffirmed what he had already claimed in grand jury testimony; that there was a plan for Cooper to lure the dogs toward him and shoot them. He also testified that after Striker was shot, he was left lying in the road and was run over repeatedly by passing vehicles. Photographs of Striker’s body were displayed for the jury, showing clearly that tire tracks had passed over him.
The next witness called was a Bureau of Alcohol, Tobacco and Firearms (BATF) special agent named Herby Byerly, who had hired an undercover informant named Kenneth Fadeley to infiltrate the Aryan Nations and convert Randy Weaver into an informant.
When court was about to adjourn for the day, Judge Lodge instructed the jury not to watch or listen to the news coverage of the day’s news, which was dominated by the burning of a compound owned by the Branch Davidians in Waco, Texas, in which 80 people were killed. As it turned out, several of the federal officers at Waco had also been at Ruby Ridge.
Kenneth Fadeley testified that he had told Randy Weaver his name was “Gus Magisono,” and that he was a biker who dealt in illegal weapons. Fadeley testified that it had been difficult to convince Weaver to do anything illegal. He also testified he was promised a bonus if Weaver was convicted – a point that caused Spence to move for a mistrial, also arguing that Fadeley would in essence be a “contingency witness” because he had a personal interested in the outcome of the case.
Spence’s request for a mistrial was based on the belief that the prosecution’s extensive questions of most of its witnesses asked about Randy Weaver’s political and religious beliefs. Judge Lodge denied the motions.
The Second Week and Recess
The prosecution called BATF agent Byerly to the stand again to contradict Fadeley’s testimony that he had been promised a bonus if Weaver was found guilty. But, Byerly admitted that Howen had indirectly referred to a bonus in conversations with Fadeley. Byerly also acknowledged that in the government’s transcripts of a tape recording that captured Weaver talking with Fadeley, a section had been omitted where Randy had said, “You approached me and offered me a deal.” Spence claimed this was proof of entrapment, but Byerly said the omission was an error.
Over the next few days, the prosecution centered their efforts on the actions involving Weaver’s initial arrest and failure to appear after his release on bail for the original firearms charge.
Boundary County probation officer Karl Richins testified he Weaver had been sent a notice to appear that had the wrong date on it. When explaining this to Howen, Richins testified he was told by Howen to forget about it.
After a short recess, U.S. Marshal Dave Hunt took the stand. Hunt was handed the Weaver case by Byerly after Weaver failed to appear in court for the initial firearms charge. Hunt explained the detailed 13-month surveillance effort that took place before the stand-off.
Hunt was also asked about a controversial threat profile he prepared on the Weavers in which he asserted that the Weavers were in cahoots with racist, right-wing groups such as the Aryan Nations and The Order. Spence objected repeatedly that Weaver was never a member of any such group and efforts to prove otherwise were an attempt to demonize his client.
May 3 saw the first major setback for the prosecution. Judge Lodge noted that the prosecution had not yet shown that a conspiracy existed among the Weavers and that evidence of Kevin Harris’ role in the so-called conspiracy was especially slim. Howen considered the conspiracy charge vital in his ten-count indictment.
Marshal Roderick’s Testimony
Marshal Art Roderick, who was stationed on the forward surveillance team with Marshals Degan and Cooper, took the stand and explained details about the surveillance effort.
Nevin questioned Roderick about his constant use of the term “compound,” when referring to the Weaver cabin.
On Day 19 of the trial, Michael Weland, a reporter from the Bonner County Daily Bee, took the stand. Weland had been the only media representative to interview Weaver prior to the stand-off. During his interview, conducted in May 1992, Weland talked with Randy Weaver about his political and religious beliefs. After the interview, Weland said he contacted the psychological profile division of the FBI and informed them that in his judgment, Vicki was a probable reason that Randy would refuse to come down, as Randy would never want to have been separated from her.
The next day, the prosecution called Randy Weaver’s neighbor Terry Kinnison. Spence argued that there was “bad blood” between Randy and Kinnison, and sure enough, during his testimony, Kinnison said that Randy had sued him frivolously and cost him a lot of money.
The prosecution then presented the 14 guns that had been seized from the Weaver cabin. Also seized were about 4,000 rounds of ammunition, most of it .22 caliber.
Spence was concerned that by “parading” these guns in front of the jury, the prosecution was furthering their false narrative of the Weavers as violent people. Spence asked Agent Rampton if he also found the food that was stored under the cabin while searching for all the weapons. Spence then listed all the food: 60 cans of wheat, a bin of dried peas, 800 tins of dried food, 50 gallons of salt, 150 gallons of honey, 500 pound of flour and 1,200 tins of canned food. Spence argued that a large amount of ammunition was consistent with the family pattern of accumulating large quantities of supplies of all kinds.
New Evidence Comes to Light
Judge Lodge suspended the trial on May 21 after defense lawyers learned the night before about testimony from Idaho State Police captain David Neal. Neal had arrived on the scene after the initial shootout and helped bring Cooper, Roderick and the body of Marshal Degan off the hill. In a preliminary interview, Roderick told Neal that he (Roderick) had fired the first shot, not Kevin Harris as Cooper and Roderick had both testified in court.
Howen also told Judge Lodge some notes from an interview with Cooper on Aug. 25 after the shooting had gone missing. Howen said when he found the notes, he had put them on his desk and forgot about them until that Friday, when he gave a copy to the defense lawyers.
In those notes, Calley wrote: “Next Cooper fired his second three-round burst during which time he saw Kevin Harris going up the trail toward the Weaver residence.” Calley’s notes contradicted Cooper’s testimony that Harris had “dropped like a sack of potatoes.”
The question of who fired the first shot was the “watershed moment of the case,” according to Spence and Nevin. The defense lawyers accused Howen of purposely hiding evidence that would shore up the government’s case.
Judge Lodge agreed to suspend the trial until the following Monday to give the defense a chance to review the new evidence.
“We are being ambushed,” said Spence to the Judge. “We may have further motions to dismiss based on prosecutorial misconduct.”
After the recess, Roderick took the stand again and was grilled through an exact re-telling of the incident at the “Y.” Roderick insisted Harris shot first, killing Marshal Degan, and that Roderick then shot the dog.
Spence brought up inconsistencies with Roderick’s testimony, namely that Roderick first testified he had shot the dog as it was running toward him, then later testifying he shot it in the “butt end,” which the autopsy confirmed was the case.
The next FBI witnesses testified to various points about evidence handling and gathering. One such “magic bullet” as Spence said, appeared in various photographs facing one direction, in another photograph facing the other way, then it was removed, then brought back later and dropped in approximate locations when it had been found.
Spence fumed at the court, saying, “I have been raising all kinds of unappreciated Cain in this case about the magic bullet. Today we are told that the photos we were given were reconstructed photos.”
When FBI special agent Larry Wages confirmed that he, in fact, found the “magic bullet,” on Aug. 31. The moment he found the bullet, Wages said he was ordered out of the area as Randy and the girls were leaving the cabin, and that he didn’t have a photographer with him. Wages testified he picked up the bullet, put it in an evidence bag and carried it in his pocket for several hours before returning it to the scene where it had been found. Because he couldn’t remember which direction the bullet faced, he had it photographed at various angles.
Howen was forced to acknowledge that he had known previously that some of the evidence collected had been reconstructed, but he reassured the court it had never been his intention to use the material as evidence.
Rules of Engagement
On May 28, Duke Smith, associate director of the U.S. Marshals Service, testified extensively about the Rules of Engagement (ROE) for Aug. 22, the day Vicki Weaver was shot and killed.
Smith testified that he and Richard Rogers had drafted the ROE while flying from Washington, D.C. to Idaho after a brief telephone conversation with a deputy who had not witnessed the incident at the “Y.”
“We decided jointly at that point that the Rules of Engagement would be that any adult who was seen with a weapon would be considered subject to deadly force,” Smith told the court. “They had already demonstrated a willingness to kill one of our people.”
Under cross-examination, Smith said he did not know Sammy Weaver had been killed prior to writing the ROE, nor had he talked to any of the marshals involved in the shootout. Smith also testified that he and three FBI agents had taken a helicopter up and circled near the Weaver’s neighbor’s house to familiarize themselves with the area.
During previous grand jury hearings, FBI sniper Lon Horiuchi testified that he had fired the shots that killed Vicki Weaver and wounded Randy Weaver and Kevin Harris to protect the helicopter in which Smith was riding. However, Smith testified that the helicopter never actually flew north of the Weaver cabin, where Horiuchi said it had flown.
On June 2, tactical EMT Frank Norris, who was with the Marshals on the first day of the conflict, testified the first shot sounded like a quieter report than Kevin Harris’ .30-06 hunting rifle. This contradicted Cooper’s and Roderick’s testimony that Harris had fired first. Norris’ testimony largely squared with the series of events that Roderick fired first, killing the dog, followed by Sammy Weaver’s retaliatory shots.
Then, Richard Rogers, the commander of the FBI Hostage Rescue Team, testified that Randy Weaver had joined Kevin Harris in chasing the Marshals through the woods near the “Y,” though no marshals involved said Weaver had chased them.
Rogers also testified that he had been in the helicopter just before Vicki was shot. His version of the helicopter ride more resembled the sniper Horiuchi’s testimony, that it was north of the cabin where those in the cabin or yard could have conceivably shot at it.
When asked about whether there was any attempt to communicate with the Weavers to surrender, Rogers testified that Horiuchi fired the shots before such an attempt was made. After Sammy and Vicki had been killed and Randy and Kevin had been wounded, Rogers testified that a hostage negotiator approached the Weaver cabin with a bullhorn and told the occupants inside that they were “not here to harm you.”
The next witness was the sniper, Lon Horiuchi, who was escorted into court under armed guard. Spokesman-Review reporter Dean Miller described Horiuchi as, “a real piece of work.” Miller said Horiuchi was cold, unemotional and that his expression never changed during testimony.
Horiuchi testified the ROE for this incident were unique, but he accepted them because, “The decision that we were in danger had already been made for us, prior to going up the hill.”
Horiuchi then testified that after he was in position about 200 yards from the Weaver cabin, he observed two men, one armed with a rifle. He claimed the men were peering at the sky, “looking for the helicopter.”
Horiuchi said he perceived either Kevin Harris or Randy Weaver positioning themselves for a shot at the helicopter. The individual then made a sudden movement the moment Horiuchi pulled the trigger. He thought he had wounded the target, but couldn’t say for sure.
He then saw, a few seconds later, a girl and two men running for the cabin. He led Kevin Harris by nine inches and squeezed the trigger just as the man crossed the front porch. Horiuchi acknowledged that he wasn’t supposed to fire into the cabin, but that he figured that shot would go off into the woods if he missed.
“He was reaching with his left hand, trying to open the door or move someone out of the way when I took the shot,” Horiuchi said. “He appeared to flinch as soon as I pulled the trigger and then he disappeared inside the doorway. Immediately after that, I heard a female screaming for approximately 30 seconds, maybe longer… I was assuming she was screaming because Mr. Harris was hit.”
Horiuchi testified that he didn’t know he missed Harris and struck Vicki with the bullet instead.
The Fourth-Class Mailing
After Horiuchi left the court under armed guard, Howen turned over an inch-thick stack of documents to the defense. The documents were background materials on Horiuchi, including notes about his debriefings after the shootings of Vicki and Kevin. A month before, Judge Lodge had ordered the prosecution to find this material that had been gathered at FBI headquarters and turn it over to the defense, but agents in D.C. had sent the documents by fourth-class mail instead of overnight or even first class.
“I have no explanation why these were not overnighted,” a red-faced Howen told the Judge.
Spence pounced on the mistake, arguing to Judge Lodge that this was yet another instance of prosecutorial misconduct, bringing up the recreated photographs and evidence that was found by the prosecution and presented to the defense when the trial was almost half over.
Judge Lodge agreed that the FBI’s response to the court order to produce the documents was “totally inexcusable and extremely poor judgment. The court is very upset about these things happening. It does appear it is somewhat of a pattern on the part of agencies outside the district of Idaho.”
On Day 34 of the trial, in answer to charges of prosecutorial misconduct involving the fourth-class mailing of evidence, Judge Lodge made an unusual decision. As formal punishment for the delay in sending the background information late, the court required the government to pay an amount equal to the cost of the Weaver and Harris defense attorneys for one day – an amount of approximately $3,000.
“I should have told Judge Lodge, Jerry Spence, Chuck Peterson, David Nevin and Ellie Matthews in January 1993 at one of our pre-trial conferences that I suspected that the FBI was intentionally withholding documents/reports relevant to the trial and had been doing so for the past six months,” Howen said in a later Reader interview. “I was persuaded not to. I regret to this day not having the courage of my convictions to do so.
“The Fourth Class Mailing was ‘the straw [that] broke my back’,” Howen continued. “It was clear that someone was directly trying to sabotage the case (and my career). I had to publicly disclose the documents in the Fourth Class Mailing and deliver them to Judge Lodge and defense counsel. … I had to sit there and take it from defense counsel in open court. It was not the time or the place to blame someone else. It was my responsibility. You know, ‘the captain goes down with the ship.’ Even though Judge Lodge’s comments and rulings on the motion to dismiss motions during the trial did not hold me personally responsible, my reputation as an honest, ethical and professional prosecutor for 20 years was publicly gone.”
After hearing from ballistics experts on the stand in regards to Marshal Degan’s killing, Howen announced the government’s case was complete. The defense attorneys huddled at the judge’s bench for a moment before Harris’ attorney Nevin proclaimed, “In view of the evidence that has been presented, Mr. Harris waives his right to present evidence.” According to one courtroom reporter, one of the juror’s jaws dropped in surprise.
Gerry Spence then stood and said, “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 evidence and rests at this time.”
Spence used the same tactic a year earlier when he had successfully defended former Phillippine first lady Imedla Marcos against fraud charges.
Amid the audible buzz of the courtroom, Judge Lodge dismissed the jury and announced that closing arguments would take place after the weekend.
For over a month, the prosecution had called witness after witness, but the defense would rest their case without calling a single person to the stand.
Spence said later in an interview, “It’s occasionally done when there seems to be a gross absence of proof.”
Stay tuned next week for the final installment of the Stand-Off at Ruby Ridge: 25 Years Later, when we learn of the verdict, the aftermath and the effect this case has had on the country. The majority of the information gathered for these articles came from court documents, books and newspaper articles written during the trial. One especially informative book was “Ambush at Ruby Ridge” by Alan W. Bock. Special thanks to the reporters who covered it so extensively, including those from the Spokesman-Review and the Bonner County Daily Bee.