During the more than twenty months following the family's decision not to surrender, the Weavers settled in and prayerfully waited for the prophesied coming of Armageddon. They attacked no one. They threatened no one. Friends brought them their groceries and their mail, which was already being secretly intercepted and examined by the government. Vicki, pregnant with Elisheba, was not able to make her visit to the doctor and had become resolved to deliver the child without the aid of doctor or midwife. During this time the marshal's Special Operations Group (SOG) had established its automatic surveillance cameras and was carrying out its sneak-peek forays in and around the Weaver property preparing to capture this little man who had, by virtue of his audaciousness, become one of the United States Marshal Service's "Major Cases." In response to Randy's elevation to this rare group of murderers, traitors and thugs, the marshals had concocted elaborate plans for Randy's capture, one of which, after the Weavers had been holed up for more than sixteen months, included the kidnapping of Sara.
As the Weavers read the Scriptures, a practice common in early religions and many tribal cultures, the women were to be separated from the rest of the family during their menses. For this purpose the Weaver family had built a special shed which was to serve, as well, as a place where Vicki would endure her labor and deliver her child. The small frame shack was called "the birthing shed." With this in mind the marshals had been charting the dates when Sara was separated to the shed -- the same shed in which the corpse of Sammy was later to be lain. This thoroughly outrageous scheme was detailed in writing by the marshals and duly forwarded to Washington for its approval.
The marshals had planned to assemble a task force consisting of five teams including from two to seven marshals each. In addition there would be a command post with one supervisor, two spotters, two riflemen and one backup person. The task force would include two technicians operating the main video below, a command post high up on the mountain, one administrative person, a U.S. Army Medevac team, referred to as "Vulture" (to feast on the carrion?). The Medevac team consisting of two army pilots, one crew chief, and one medic, and there would be a "ruse vehicle" manned by two marshals.
With this force of thirty-three marshals and the other backup personnel, the marshals planned to forcibly take Sara who had committed no crime and for whom the government had no warrant. Indeed, the marshals had been quite observant. Their plan, boldly set out in writing, read, "Based on video surveillance we have determined that Sara begins her menstrual cycle around June 1, 1992. During this time Sara lives in the birthing house as, according to the Weaver beliefs, she is unclean and must remain away from the family until her cycle is over.
"Shortly after all teams are in position at the lower section of the eastern trail, Team 3 would [during the night] move up to the area of the birthing house. The team members would then enter the birthing house, remove Sara Weaver and take her to a secure area. She will be detained and turned over to Boundary County Sheriff, Bruce Whittaker. Team 3 would remain in the birthing house and detain anyone who came out to see Sara . . . By the time the ruse vehicle starts up the road, we should have Sara, Sam and Rachel detained and turned over to the county sheriff." After that the ruse vehicle would drive up, and when Weaver came out to investigate, the teams, fulfilling their various assignments, would subdue Weaver.
In the meantime at the trial, Assistant United States Attorney Howen continued his snail's-pace but relentless attack on the supposed beliefs of the Weavers. He called witnesses from the Weavers' hometown in Iowa to testify as to the religious arguments Randy had made. He subpoenaed their old friends to testify about how their sold their house and bought guns and how they had trekked to Idaho, like characters out of The Grapes of Wrath in preparation for the coming of Armageddon. Howen subpoenaed one of Randy's skinhead friends to the courtroom, and asked him hostile questions about how Weaver wore his hair, and how the witness and his son wore theirs. And because they were skinheads, it must surely follow that we must hate them, and because we hate them, all of them, Weaver should be convicted of murder.
From the earliest time in the case, Howen sought the death penalty against Randy, surely knowing that no federal law then existing could be stretched to bring about Weaver's execution. And we, Randy's lawyers, were required to petition the court to strike the death penalty request from the case. Sometimes at night I would awaken wondering what would happen if the judge ignored the law, and the jury convicted Randy? These days one cannot always rely on an appellate court to correct obvious wrongs, for the courts are being smothered with appeals by death-row inmates, and consequently, death penalty cases are often given short shrift. One can be kept sleepless when a single Assistant United States Attorney exercises his power to write those few abominable words on a page, words from which emerge terrible visions of the dangling noose, the dripping executioner's needs, the ready firing squad. One sees them mostly in the night. I never knew what Randy Weaver saw in the night in his small, cold cell, awaiting trial. I never asked him. In a trial, attorney and client most often must fight their own wars, and alone.
If there was a fact to be proven at the trial, Howen proved it, along with every insignificant detail remotely connected to the fact. It was as if in proving a box of corn flakes was indeed corn flakes, he would dump the whole box out on the table and then prove each flake, flake by flake, hour by hour. The trial dragged on. I thought the strategy was to fill the jury with so many facts, to dump on them so much hate, so much fear, so much detail that the jury, from such a mountain of corrupted evidence, would conclude that the prosecution had not only proved its case beyond a reasonable doubt, but that it had proven it ten times over.
But Howen was proving very little, if anything, of substance, and by the time he was required to establish what actually happened at the "Y" where Ol' Yella and little Sammy were killed, the prosecution's case began to crumble. Although Randy was charged with the murder of Degan at the "Y", Randy, as we have seen, was not there when the shots were fired. But what if the FBI produced, say, a certain bullet -- a bullet recovered at the "Y" from, say, a gun owned by Randy Weaver, one the FBI had seized at the Weaver house on the day Randy surrendered. What then?
Perhaps the FBI had forgotten that Randy Weaver and been carrying only a twelve-gauge shotgun and a holstered handgun on the day the shooting at the "Y" took place. The bullet that the FBI now produced had been fired from a .223. And how was the bullet found? The FBI claims it found it, a spent bullet, lying daintily on top of some leaves, not buried, not marred or scratched or bent or bruised or dented or otherwise blemished, except of course, for the rifling that happened to match the .223 rifle that the FBI had seized. But it was not Randy's rifle. It was a rifle belonging to Sara, and Sara had never left the house. Moreover, for the bullet to travel from the house to the "Y", it would have had to magically travel through more than half a mile of dense timber without touching, not once, a tree or a twig, and it would have had to land perfectly on top of the leaves, land in such a way as to appear it had been carefully laid there, which is not the known dynamic of bullets as they spend themselves.
Think of it! Another magic bullet, like in the Oswald case? We remembered that bullet, of course, the one the FBI seemingly produced out of nowhere during the assassination investigation. It had supposedly passed through flesh and bone and bone and flesh of both President Kennedy and Governor Connally, and having done so, it was conveniently found right there in the gurney, pristine and pretty and as utterly unmarked as the day it had been manufactured.
In Randy's trial, we challenged not only the bullet itself, but the means by which it had gotten to the "Y". Under my cross-examination, the FBI agent who recovered the bullet admitted that he had manufactured evidence that was to later illustrate its discovery. The agent claimed he found the bullet, picked it up and put it in his pocket. Then he claimed he later thought that he should take a photo of it to record how and where the bullet lay when he supposedly found it. So the agent took the bullet back to the place where he thought he found it, took it out of his pocket again, placed it on the ground and took a picture of it. One would wonder if he could even remember in the what direction the bullet had been pointing. The photo, of course, was posed. But it had not been offered as a posed picture. Government officers, our servants, ought not to attempt to put citizens in prison for life based on posed pictures of magic bullets. I thought once more of old Andy Sutka.
And, of course, we remember that Lon Horiuchi, who had taken the stand, had testified that, indeed, he had intended to kill Kevin Harris, who was running for his life, his back to the sniper. Yet the prosecution claimed that the sniper, who admittedly could see and hit a fly at two hundred yards with his ten-power scope, could not see the head of Vicki Weaver through the glass window of the open door. Instead, the prosecution attempted to make the jury believe that the curtains were closed. But from my own discussion with Randy that fact seemed in question, especially after the government failed to produce a crucial Horiuchi drawing of what the sniper had seen when fired.
From the drawing made by Horiuchi during an interview with the FBI at a hotel, on hotel stationery, he draws in no closed curtains at all. In the lower right-hand corner of the window we see two partial heads
as if people were squatting there. Indeed, Randy and Sara had dived into the house just ahead of Kevin Harris. And it was Harris, not Weaver, who presumably had killed a federal officer, and who Horiuchi himself was admittedly trying to kill, whether or not he was carrying out the unwritten law that seemed to doom the cop-killer. Be that as it may, the method of hitting a running target is for the shooter to place the "mildot" seen in the scope on the target -- harris in this case -- which places the crosshairs ahead of the target, thus leading the target, so the bullet and the target will arrive simultaneously. Shortly after the killing this is exactly as Horiuchi himself drew it for the FBI interrogator.
Horiuchi's drawing shows us that he must have known that human beings were behind the flimsy door. He had to know that someone, presumably Vicki or ten-year-old Rachel, was likely standing behind the door to hold it open. Moreover, the drawing proves he knew exactly where it did strike -- at the cross, as he shows it in the drawing. Vicki Weaver's head was behind the cross, that apocalyptic symbol, which served also as the point of aim for the killer.
When Howen confessed to the judge that the FBI had withheld this pivotal piece of evidence, Horiuchi's drawing, His Honor, Edward Lodge, was irate. A legal as well as a moral obligation demands that the government produce all of its exculpatory evidence in its possession, that is, all evidence that is favorable to the defendant. From the outset we had told the jury that the evidence would establish that Mrs. Weaver was intentionally shot by the federal agent. The Horiuchi exhibit, withheld from us by the FBI, supported the conclusion that, at a minimum, the sniper knew human beings were behind the door into which he was shooting, presumably Vicki. But perhaps the drawing, along with the killing of Vicki Weaver, implied more -- that Horiuchi could see where his bullet would strike, that with his high-powered scope he could plainly make out the most minute details of Vicki Weaver's head and frightened face.
What does a judge do with an omnipotent FBI that will violate the law as well as the rights of innocent citizens by withholding evidence that is crucial to freedom? I suspect that Judge Lodge believed this grave wrong was not the creation of a single person, but was the product of a conspiracy, of sorts, among several. If it was likely impossible for the judge to determine who, exactly, was responsible for withholding this evidence, well, he could hardly put the Bureau itself in jail, nor would the Bureau fit into any public stocks to there be flogged as was the punishment for miscreants in colonial days. And so the judge, attempting to do at least something, admittedly, not very much, sanctioned the Bureau for its misconduct by requiring it, the Bureau, to pay the defense attorneys one day's fees. I wondered whose budget in the Bureau this piddling sum would come from -- petty cash, the stamp fund, the party fund, in any. Since Kent, my son and I as well as Gary Gilman were representing Randy without fee, and since we wanted to accept nothing from the government for Randy's defense, not even sanction money, we made no effort to collect it, and, predictably the United States has made no effort to pay it. Nothing but a pretty fantasy supposes that a few thousand dollars in sanction money, which no agent must personally pay, will in the future deter the FBI from hiding critical evidence. Yet the court's order was a public slap in the face to the Bureau. A respected United States District Judge had officially found that the FBI will cheat to win a case. Once more I thought of old Andy Sutka.
The judge and the jury freed Randy Weaver of all charges, except for his failure to appear for his trial on the gun case. he was in jail for a month or so after the trial, but Judge Lodge gave him credit for the months he had remained in jail awaiting trial and for the nearly three months that the trial itself had taken. he was released before Christmas of 1993 when he returned to the place of his childhood, the long bleak winter farm country of Iowa.