THE INCIDENT AT RUBY RIDGE
PART FOUR – THE CLOSING ARGUMENT OF GERRY SPENCE ON BEHALF OF RANDY WEAVER (as transcribed June 15, 1993)
*(This is long, but worth it.)
Thank you, Your Honor. If it may please the court, please counsel, ladies and gentlemen of the jury. I have been at this for forty years, over forty years, and I never begin a closing argument in an important case, in any case, until I feel like I feel now. And I should tell you that since my argument starts with me, that maybe I ought to tell you how I feel. I think to myself, can I do what I need to do? I feel afraid. I feel inadequate. I wish instead of doing this for forty years, I had done it a lot more and was a much better lawyer than I am right now.
It is my great honor to talk to you, it is an honor for any lawyer to talk to an American jury, but it is a special honor to talk to this jury. You may be the most important jury that has come along for many a decade. It is an experience that you will never forget, and your efforts and determination and your thoughts may change the history of this country. This is a watershed case. Sometimes you feel like I feel, maybe I’m not up to that either, but the law understands that a jury that has twelve people with an average age, let’s say-well, would I insult you if I said forty years?-average age of forty years. That is forty times twelve, that is how much? Four hundred and eighty of knowledge, and just like I don’t know everything that happens in a case and I depend upon my colleagues to help me, it comes as a result of the collective thoughts of many people, so the law gives that to our juries and they become very insightful. I have never tried a case yet but what a jury saw things in a case that I didn’t and had a perspective that I didn’t have.
I want to say something to you, and then I’m going to quit flattering you and talk about the case, but you are entitled to some flattery. I want you to realize that few of us, me included, ever really know how important we are or where we stand in history. Go back to 1775 and the Constitutional Congress. Do you think they thought they were important? They were just local guys doing their job, like you are local people doing your job, but as we look back on history, they did something permanent and magnificent and lasting, and that is what you will do with your verdict in this case, something permanent, magnificent, and lasting. Now one of those fellows, Tom, made a statement. He said, “Eternal vigilance is the price of liberty.” You know who Tom is that I’m talking about, of course it’s Thomas Jefferson. “Eternal vigilance is the price of liberty.”
So I have to ask you, and you must ask yourselves, why are we here? Why are we chosen? How did I get chosen for this job? There are many other jurors here. Why was I left? Why? And the question is, is there something more her than finding the answer to some charges that have been leveled by the government? Is there something more than just watching lawyers play their games? You’ve seen the games that go on between lawyers. You’ll see it before the case is over, again. And your purpose here isn’t just to find who wins the case. It seems to me that you have a larger function here, a more noble function.
Can I start with the basic proposition that I think we would all agree with, and that is that government agents are bound by the law, the same as the rest of us. They’re bound by morals and by justice and by decency, the same as we.
And government agents can’t lie and say it’s right because they’re officers. And they can’t come into court and play hide-and-seek with the facts and say that’s all right because they are federal employees. And they can’t persecute people, and they can’t entrap people, and they can’t state the wrong law, and they can’t use their huge forces and their power because they are federal officers. And they can’t turn a piddly little two-bit case into a major case and expend millions of taxpayers’ money because they are federal officers. And they can’t refuse to negotiate with citizens, as Howen refused to negotiate with Randy Weaver, because they have power, they can’t attack us because of our religious or our political beliefs, simply because they have power; they can’t come into Idaho from Washington D.C., and claim that Idaho law is null and void, like Rogers did and say. “I am the law.” simply because they are officers.
Now, ladies and gentlemen of the jury, there is something wrong here. Let me tell you what the very beginning of what my worry is, why my heart pounds and my heart skips beats. I’ve been feeling it; it is skipping beats. And I’ve been wondering what that’s about.
We have a task here of defending Randy Weaver on eight counts with a bunch of sub counts contained in the murder charge. My goal is, when we leave here, for all of us to walk out together. This is what I am trying to do, this is the purpose of my final argument, to ask you to free Randy Weaver, and to free that boy and let us all walk out together in this case.
When the foreman comes in and hands your verdict to the clerk and to the judge and it is read, I want that verdict to be so that Randy Weaver can step right up and never have to put a shackle on again as long as he lives, never have to be taken to prison and put in a cell. I want him to walk out and be free with his little children. I want you to-stand up please. Thank you. Sara and Rachel. I want them to walk out together, this is what my goal is.
So my task is to get a not-guilty verdict on all charges, and how can I do that? That’s why I’m afraid. That’s the task that I face on behalf of Randy Weaver. And when I began to think about that, I think to myself, there is something wrong here.
I mean, what is going on in this case? I mean, we have a boy charged with murder, Kevin. And we have Randy charged as an aider and abettor with murder. And we have both of these people charged with multiple charges, and we have three people dead, we have Sammy Weaver shot in the back, a little boy whose voice hadn’t ever changed, shot in the back, and nobody says anything about it. Mr. Lindquist says nothing about it.
It’s like putting on your pants in the morning. Nobody seems to be concerned that Sammy Weaver was shot in the back and murdered. No excuses. No investigation. Nobody charged. What’s going on here?
We have Vicki Weaver shot in the head. Nobody seems to care. It’s like putting your shirt on in the morning. Nobody’s charged. No investigation. Nobody seems to care. Now, what is this all about?
We have Kevin Harris shot. We have Randy Weaver shot. And you say, what is this all about, what is happening here in this case?
That’s where I want to start my argument with you. I want to show you what’s happening in this case. You are, let us say, the federal marshals and you wake up on August twenty-second in the morning, and you realize that you’ve done something that you shouldn’t have done. You weren’t to have a confrontation in the first place, particularly not with a little boy.
Now, a little boy, a sweet little boy, a bright little boy, who could tell you the facts in the encyclopedia, who could read as fast as the judge himself, is dead, shot in the back, and the marshals are not supposed to shoot little boys in the back. He was shot running home. And we have his dog lying there shot in the back. And we’ve got Marshal Degan shot under circumstances that are extremely suspicious, and people are in trouble.
They bring in the Hostage Rescue Team that day, the twenty-second, and they surround this place, and they murder another woman intentionally, as I think the facts have shown. Killed a woman because she was supposed to have been a witness to what happened at the Y, and when they found out she wasn’t a witness, they changed the rules of engagement, but it was too late.
And so if you are the federal government, what do you do? Do you come up to His Honor and say, “Sir, we’re sorry, we killed Vicki Weaver and we shouldn’t have,” and go over here to the judge again and say. “We’re sorry we killed Sammy, shot him in the back, and we shouldn’t have”?
What do you do? Well you bring the shotgun, and you charge Randy Weaver with everything you can find to charge him with. Then not only that, but you charge him with a conspiracy to do all of those things on top of that. And then you send the FBI out to find out what you can about the man, and you bring back evidence that starts back in 1983 and you try to do what psychologists call demonize him.
If you can make people of the state of Idaho hate Randy Weaver. If you can make the people of the state of Idaho despise him because of his religious beliefs or his political position. If you can demonize him in the press so that when the jury is brought together such as this one, every one of you has read something about him and start with a position of distrust and hatred because he’s been called a Nazi a member of the Aryan Nation and a far-right kook and cultist. If you charge him with murder of a federal officer and charge him with all of the other charges and counts, then maybe we won’t have to answer why Sammy Weaver was shot in the back and Vicki Weaver was shot in the face.
Now you saw that happen in the courtroom not more than a few hours ago. You saw Mr. Lindquist put up a chart. By the way Mr. Lindquist, I understand you don’t have the chart anymore, is that correct?
Lindquist: I have it.
Spence: You have it?
Lindquist: I do.
Spence: May I have it, please?
Lindquist: I’m going to use it when I rebut this, as you well know.
Spence: I have a right to use the chart to rebut. He’s put things up here in front of the jury, I couldn’t see what they were, I’m sitting back here; I have a right to see the chart, and I would like to have you bring it up here so I can answer it.
The Court: The chart should be produced, but you should not write on it. It is Mr. Lindquist’s product.
Spence: May I have it, Please?
Lindquist: Sure.
Spence: What you do, and you’ll see it soon in Mr. Lindquist’s chart, is you tell the jury that Mr. Weaver’s political and religious beliefs are protected by the Constitution. And that it’s all right for them to have them. But by the time you finish telling the jury all of the things that you think he has done and all of the things that you think he has thought, and all are put down on a chart and all of the rest, the net result is that this is a man that we don’t like, this is a man that believes different than me, this is man that we can’t trust, this is a man we don’t care what happens to; that’s the point, ultimately; of the demonization.
If we’ve demonized the man, then we can find him guilty, and if we find him guilty, it covers up the murders, and then we are all okay, and everybody’s happy, and so that’s what happened in this case.
What is the relevance of whether somebody has an Aryan Nation belt buckle? What is the relevance about a child whose head is shaved? What is the relevance, ladies and gentlemen of the jury, hauling in the ammunition, piles of it, but they don’t bring in the honey and the wheat and the canned goods and the supplies and the clothing?
I mean what is the relevance of telling about the guns when they are all legal, and they had fourteen of them? I bet there are people on this jury who own fourteen guns, or who have in their past. I’d hate to have the ATF come look in all my closets. I’ve got guns I don’t even know where they are. But if they hauled them out in the courtroom and laid them out here, it would make you distrust me.
What’s the relevance of talking about them being satanic but to say that’s okay for them to believe that? What’s the purpose of talking about their religious beliefs and all the rest? Why? because he isn’t the sweetest-looking guy I’ve ever seen; I mean excuse me, Randy, but I mean, I’ve seen more innocent-looking fellows than Randy Weaver.
But if all of you saw was all of the things they bring in, let’s just think about what happens if they did that to us-supposing they brought in all your kitchen knives and laid them down-paring knife, cleaver, butcher knife, other knives-across the floor, some your kids gave you, some are dull and you can’t use, some you use every day, but then they didn’t bring out anything else.
And then they began to tell the world about your witchery, your crazy beliefs, “But don’t hold it against them, don’t hold their beliefs against them, you know you mustn’t do that, but we want to tell you about them anyway.” And they did. They sat on the stand, and you heard me object, and I cried about it, and I pounded the table about it, and they continued to say, “We’ll tie it in, it’s inextricably entwined.” You heard that until you must have come home, you say to your spouse, “Darling, you and I are inextricably entwined.”
But I will tell you this: if all of these things happened to you, they put an evil twist on everything, as they did in the argument, everything he did was because he hated the government. You heard the argument, there wasn’t a thing that Randy Weaver did that was good and solid and decent and right, not one thing.
And when they started out, they began to tell you about all of the people in the Aryan Nation that he knew. No evidence came in on that, but they told you about it. They showed you Mrs. Weaver’s little letters, which I thought were pretty gutsy. I would like to know her. If she was standing here today I would put my arms around her and I would squeeze her and I’d tell her how much I loved her. I think that this world could use people that are no longer afraid of the government.
So, ladies and gentlemen, the theme in this case is not the hatred of the government. To resist the law and to resist enforcement and to defy the law. That isn’t the theme. Lindquist told you about themes. Well it sounds to me like he has read a lot of Shakespeare and he has read a lot of Hamlet and he has read a lot of fiction, and you know you can take facts and make them sound, turn facts into fiction; its called verisimilitude, every novelist does it. The theme of this case, if you have to have a theme, counsel [turning to the prosecutor], the theme is, charge Randy Weaver and demonize him and make him into an ugly, hateful, spiteful person so that you can cover the murder of a little boy shot in the back and the murder of a woman shot in the head. That is the theme.
Now, somebody has to say “No!” to this, and guess who that is? I can’t do it. The only thing I can do is ask you to do it. Somebody has to say, “No, you can’t do this; that’s clever tactics, but we are going to say, no, you can’t do this federal government, to one of our citizens,” because a jury has that power. Stop and think about it. You have more power than His Honor, and I don’t know many people that has more power than His Honor. You’ve got more power than Mr. Lindquist and Mr. Howen. You’ve got a lot more power than the Federal Bureau of Investigation and the ATF, you’ve got more power than the marshals. You’ve got more power than anybody because you can say no. And not only that, but every one of you has that power-not collectively, each of you individually-because the verdict has to be unanimous, so you can say no, and that’s the end of it.
When you heard counsel, Nevin, talk about George Washington and his desire to set up a federal government so you wouldn’t have to be afraid of it, that’s why they gave you that power, and that’s why you are so special.
Now, after you kill a little boy at the Y, after you do that, how do you arrange to cover this up? How would you do it if you were of the mind, which I know you are not? You would do just what they did. You would tell the Hostage Rescue Team half a story. You’d say, well, you would first start out, “This was a radical, Aryan Nation white-supremacist cult,” that’s what you were told. Do you remember that? I asked Mr. Rogers, were you told about them being an Aryan Nation white-supremacist cult? Yes. And that they killed a U.S. Marshal? Yes. And that they fired indiscriminately? Yes. And they were heavily armed? Yes. And highly dangerous? Yes. And the place was full of-remember?-booby traps, and all the rest. There weren’t any booby traps, and the marshals knew it, but the HRT was told that anyway.
We saw their tapes didn’t we? Hours of them, with little kids flying around on their bicycles and the old dog wagging its tail and the people walking and living all over that little place up there, and yet, when the HRT was told what was involved, they were told there were booby traps.
What is the HRT doing with this kind of input? They’re getting excited, because they’ve got a war, they can bring in their airplanes, and they can bring in their helicopters, and they can bring in their snipers and their assaulters, and they can have themselves a big war up in Idaho. In August. Get out of that hot Washington, D.C., and have themselves a ball.
They were told that this man was a Green Beret and he had explosives training, and that his wife, Vicki Weaver, was crazy-do you remember?-that she would kill her children, do you remember that, she would kill her children? That’s what they told them, that she would kill her children. Likely was the word, and Randy Weaver wouldn’t surrender as long as Vicki Weaver was in control.
So did they tell them the truth? I mean, did they say these marshals shot the dog then shot the boy in the back? Degan was shot by somebody, and I’m not sure who shot Degan yet. And the boys were just walking down the trial, the boys weren’t wanted for anything, they committed no crime, they’d done nothing. The marshals were hiding, and the marshals were in camouflage, and they said no-they said the marshals were ambushed. That’s what they were told-you remember that testimony-that the marshals were ambushed by Randy Weaver and Kevin Harris.
They didn’t say that Randy Weaver wasn’t there, he wasn’t even around when that shooting took place, that as soon as they said, “Back off, federal marshals,” he took off running like he was supposed to. So they give the Hostage Rescue Team-I mean, who were hostages up there after all? That’s funny-that’s what they call themselves, Hostage Rescue Team, which is a euphemism, a nice word for expert killers, trained killers.
So some ROEs were formed, some “rules of engagement.” Now, I’m getting ready to talk about that. Could you find me that instruction on the rules of engagement that the judge gave, it’s in your instructions there someplace, and I want to read it to the ladies and gentlemen of the jury.
What you’re going to hear from is the court, when I read the court’s instruction to you. Remember what they said, that federal law supersedes state law, takes away state law, sits on top of state law, is wrong. I said, “Well, now what federal law are you referring to that supersedes state law?” Remember that question? What did he say? “The whole code,” he said, “the whole federal code.” remember that? I said, “Well, what federal code gives you that?” Let’s see what the judge said.
[To Co-counsel} Hurry up, because I ain’t got too much time.
Then we put Horiuchi on the stand-and remember-he said, the determination of the issue of danger or-what was the word he used?
[To Co-counsel] haven’t you found it yet? I can’t stall much longer.
Horiuchi gets up there and says all of the decisions had already been made for him, about whether there was danger or not, it had already been made by the rules of engagement, and the standard rules of engagement are that you shoot somebody only if a reasonable person believes they are in danger, That’s the standard rules for the marshals, that’s the standard rules for the FBI, it’s the standard rules for every state in the United States of America.
[To Co-counsel] Did you find it? Thank you.
Instruction No. 40: “Federal law governs the conduct of federal officers, so far as the law of self-defense is concerned, does not supersede the law of the state of Idaho.” Isn’t that interesting? I mean, I guess Mr. Rogers didn’t know what he was saying when he established rules of engagement that were contrary to the laws of the state of Idaho, and when he established rules of engagement that would guarantee the death and the killing of the adults that were remaining up there as witnesses to what took place at the Y.
I’m talking about a situation where there was a killing at the Y of Sammy Weaver, and those people want you to believe that they don’t know they killed Sammy, and they want you to believe that they didn’t see Mr. and Mrs. Weaver coming down, wailing, crying, taking their son back up and putting him in the birthing shed. They was you to believe that it was a big surprise to them how that child turned up in that birthing shed. So they have a rule of engagement that will allow them to kill the other persons they thought were there.
And who else did they think were there? They thought Kevin Harris was a witness to Sammy’s death, to his killing, and they were right. And they thought that Randy Weaver was a witness to the killing, which he wasn’t, and they thought that Vicki Weaver was a witness to the killing, which she wasn’t.
They decided that the way they were going to do this was to set up rules of engagement that don’t comply with the law. A man who comes in as a federal officer in charge of the Hostage Rescue Team-these are the Waco boys-that come in here and tell this court and this jury and the legislatures of Idaho, and the people of Idaho, what the laws of Idaho are and are not. “They are nothing; my rules of engagement apply,” he said. Any adult that comes out of that door with a gun could or should be killed.
Now, did you ever-I can’t swim backwards, I can hardly swim at all-but I never saw a man trying to swim backwards so fast in my life. I mean could and should are words that we use every day. When my daddy tells me what I should do, I’d better do it. When the court tells me what I should do, I’d better do it. And I know what I should do.
When they tell Horiuchi that any adult that comes out with a gun could and should be killed, anyway, you know what they meant. You ought to see them try and play monkey with those words. The whole defense of this case, every time we’ve got a problem, it’s monkeying with the words.
Well, you see, that’s why we have juries, because juries won’t monkey with the words. You know what the words mean, you know the plain meaning of those words and you apply it.
And so, when it comes out that Kevin has a gun as usual-they know he’s going to have a gun, he always has a gun, you saw the tapes, did he ever come out of the house without the gun? They knew it; they’d seen it, a hundred hours of tapes with the kids coming out with the guns, and so it was a tailor-made rule of engagement. Tailor-made to kill that man, right there, that nice young man, tailor-made to kill Randy Weaver, and tailor-made to kill the mother of those two girls. When they walked out, they could and should be killed.
What does it say? “In attempting to effect an arrest, to execute a federal arrest, to execute a federal warrant in accordance with Idaho law, deadly force may be used if a federal agent reasonably believes that a person poses a significant threat of death or serious bodily injury to the agent.” So they can only use deadly force if they believe that somebody is in significant danger, bodily harm or death. It’s the standard rule everywhere. That wasn’t the rule when these people came out.
Now, the thing that was bloodcurdling to me, I mean, I don’t know how you felt, but how did it feel when you heard Horiuchi say, Yes, we were waiting till they all got out, and then we were going to shoot them all.”? Then we hear Mr. Lindquist sat, “Oh, that’s just because we didn’t want to give away our position. We were going to shoot then all.” And he tried to shoot them all. And he hit, with two shots, three people.
That ain’t too bad shooting, is it? I mean, I’ve shot a few doubles in my day, but not people; I shoot on the trap range. This guy was shooting doubles, he was capable of it. And you think he didn’t know who was there?
Did you see the attempt to hide this document [the drawing Horiuchi made that showed two heads behind the window before he shot], and the court made him come back-remember that? There’s the head. Do you see the head? Do you know who was there? See the crosshairs? He knew where the bullet was going to hit. Do you think he couldn’t see Vicki there?
Well, the curtain when it’s drawn back-you can play with it when you get it in the jury room-pull that back where the bullet holes lines up with that curtain, the rest of the bullet hole. And the other curtain was pulled back, and there’s six, eight inches of open space there, and he’s got a ten-power scope, and he can shoot a quarter-inch target from a ways. As a matter of fact, he testified that the scope was so good that he saw the bullet enter the birthing house. Do you remember that testimony? He saw the bullet enter the birthing house when he shot Randy.
So here’s what we’ve got, we are going to get rid of the witnesses.
We’ve got Randy going to say his last good-byes to Sammy, who is lying in state in the birthing shed. They cleaned his body, and by the way they cleaned his body while this so-called firefight was going on. The officers were saying there was this terrible firefight, everybody continued to shoot their weapons, there were hundreds of rounds fired, you know, and the firefight was happening as Randy and Kevin and Vicki were cleaning up the body of their dead son and brother. That’s the firefight they were having.
Randy goes on the twenty-second, the evening, to open the latch of the door-remember the picture-they shoot him. It’s supposed to be Kevin Harris, he says; he thought it was Kevin Harris. We had the two of them stand up. I would like you guys to stand up again so we can see how much you look alike-I mean, really that’s the similarity that you’ve got. [Weaver and Harris stand] Thank you. He thought he was shooting Kevin Harris and he shot Randy Weaver, so that’s his first mistake, right?
No, the first mistake was they shot Sammy, either intended to kill him or not, never heard anybody say, I guess maybe they intended to kill that little kid. Either that or it was a mistake. They shot at him, they’re good shots, they must have intended to kill him. Nobody seems to criticize that, that’s okay, it’s just another-it’s like the dog. I mean, there’s this dog out there, they killed the dog. How do you kill the dog? I mean, it’s just a dog, we have a right to kill the dog; you see an instruction in here by the court that says that-“Instruction No. 41: You are instructed under the law, a person may use reasonable force to protect his property.” The dog was property, and Sammy had the right to shoot and try and scare the marshals away, or maybe they were shooting at him already when he shot. He didn’t hit anybody. So we’ve got a mistake or an intentional killing, one or the other, with Sammy.
Then we got a mistake or an intentional killing when they were shooting at Kevin Harris and hit Randy at the birthing house. They thought it was Kevin Harris.
Then we have a mistake with Vicki and then, just by mistake hit Kevin, so everybody that was up there was either intentionally shot or shot by mistake and nobody’s told us, nobody seems to care, nobody’s investigated, nobody’s charged with anything, all they want you to do is to forget this, put it aside, wash it under the carpet, and do away with this man.
You want to know what a conspiracy is? That would be to ask you to help them cover up their crimes by finding him and this young man guilty of something, if you can just find them guilty of something.
I will tell you what Randy is guilty of. Randy, you are guilty of being one stubborn mother. I will tell you that. He was guilty of being afraid. And aren’t we all guilty of that? Aren’t we all afraid? Wouldn’t all of you, under the circumstances that existed in this case, be afraid? He is guilty of standing up to authority. Maybe he’s even guilty of using poor judgment. Probably there isn’t one of you on this jury that would have done what he did. That doesn’t make him a criminal.
You’re going to judge another human being. And you may not have done it in that way; you may not have thought the way he thought, believed what he believed, or done what he did, but it doesn’t make him a criminal for having poor judgment; it only makes him a criminal if he violates the law.
We are all guilty of using poor judgment. When I get through here, Imogene-this is my wife Imogene, over here, this one that smiled at me. Would you just stand up, Imogene? I want the jury to see her. When I get home, she’s going to say to me, “You used poor judgment. You shouldn’t have made me stand up like that,” and she’s going to say a lot of other things. But it does not mean I’m a criminal, except in her eyes.
He may be guilty of being a human being, of caring a lot; he may be guilty of having wrong ideas, he certainly has ideas that are different than mine. He may be guilty of loving his family too much and being a parent, and he may be guilty of fearing the federal government. But that doesn’t make him guilty of any one of the crimes.
Now, why didn’t I call Mr. Weaver to the stand? When I said I rested, I saw some of you jurors look disappointed, because the jurors wanted to hear his story. I mean, we’ve been sitting here for two months, we want to hear his story. But there is a price I have to pay for letting you hear his story. The price I have to pay is putting this simple man against him [pointing at Lindquist]. What would you think if I represented you and turned you over to him? How would you like that?
I mean, a lawyer is always faced with this dilemma in every case. I mean, if you put your witness on the stand, people say, “Well, he’ll have to prove him guilty of ever charge beyond a reasonable doubt.” He can’t defend himself, nobody can defend himself against this sort of thing. But I can defend him because I have cross-examined, along with my co-counsel, fifty-six witnesses in this case, and after fifty-six witnesses-we put on no defense, not called a single witness-you would think that the testimony would be overwhelming, that somewhere it is beyond any reasonable doubt of any kind, that this is a criminal of the worst kind, and that isn’t what the evidence is. The evidence is that this is a man who has been the victim of a smear, who has had his wife and his child murdered. And I can say he has been hurt enough and smeared enough and I don’t want anymore of it. Your decision may have been different, but I don’t think you would want me to do that. He has been shamed, belittled.
And what did the court say? This is a constitutional case, I told you, this is a watershed case, this is a case that kids in law school are going to read about and your grandchildren and your great-grandchildren are going to be a part of. It’s a constitutional case, ladies and gentlemen.
A defendant has the right to remain silent and never has to prove innocence. Now, isn’t that a blessing in our country today, that we don’t have to prove our innocence? How could we ever prove our innocence?
In Nazi Germany you had to prove your innocence; nobody would listen to you, you couldn’t prove your innocence. A defendant has the right to remain silent and never has to prove innocence or present any evidence; that a defendant may not testify is not to be held against a defendant.
Do you think we put on any evidence? I’d call it witnesses. Do you think we’ve put on any evidence? How about our cross-examination? Do you think our cross-examination helped you understand the truth of this case? Would you have liked to decide this case unless we cross-examined and brought out the other side? You wouldn’t want to do that, would you? Any of you wish that we’d never gotten up?
I think there are times when you said you wished that Spence would be quiet, we’ve had enough of him. But I don’t think you would ever want to decide this case without cross-examination. How would you like to decide it without cross-examination of Marshals Cooper and Roderick? You couldn’t decide the case, could you? You couldn’t have. The right of cross-examination is absolutely essential, and it’s guaranteed by the Constitution.
Ladies and gentlemen of the jury, this is a murder case. But the people who committed the murder have not been charged, the people who committed the murder are not here in court.
The question is, how did all of this get started, and why did there have to be murders committed here? Well, let’s ask how did it start. Let’s ask [BATF Special Agent] Byerly? Did Randy Weaver come up to you or your agent and say, “I want to get involved in undercover,” or “I want to get involved in illegal shotgun operations”? Did he approach you? Mr. Byerly knows the answer. I mean, Mr. Byerly represents a new twist in America today, it’s called Big Brother. Big Brother has come.
The worst of our fears is here. And thank God, I’m in a courtroom where I can say this with protection. I can point my finger at a government agent in America and say, “This man and that agency are the new gestapo in this country.” Only in an America could I do that, and do you know why? Because it’s protected, my speech is protected under the Constitution.
What does he do? Let me tell you what you’d better not do, don’t you ever go anyplace where the ATF or the FBI is surveilling, don’t you go anyplace where you think there might be agents, because you will be seen there.
How would you like to live in a country like that-do you want to say no to that? I mean, don’t you dare go to a meeting, a political meeting of some other kind than what the government’s interested in, because they’ll take your license number down, just like they took the license numbers of Randy Weaver. And they’ll watch, and they did watch, and their undercover agents are there, and they make files on us, and they set us up, and then they send their Big Brother undercover agents to us who are bounty hunters.
You know, we’re talking about the big shots of this case; the top dogs in the ATF were here testifying, the top dogs in the marshals, the big shot from the FBI-these are the top government people that you verdict is going to talk to, and it’s going to say either yes or no.
They can spy on us with video cameras. You know, I go home and I say to Imogene, “My God, honey, they have cameras up on the hill that are run by the sun-what do you call those things? Solar power-and they have pen registers on the phones, on public phones.” Go to a public phone, they have a pen register on it to see who you call, and they have surveillance teams with airplanes up there, flying over while what you say to somebody is broadcast to the airplane, and they have undercover agents lying and sneaking and peering and recording, and they purchase witnesses like Fadeley, and they put bugs in cars, in your cars, and they have a mail cover so they know exactly who you get your mail from. Are you telling me this isn’t Big Brotherism? I mean, they have infrared spots and night-vision equipment and aerial photos and listening devices, to the point that they even know when that little girl was going to have her period. They even know that.
These are government officials who don’t have anything better to do. You know, our streets are covered with crimes and dopers and all kinds of people. We’ve got a man here who was curious about what was going on, was looking for religious truth. I commend him for that. I’ve spent a lifetime wondering and wondering, and looking and looking. Why can’t a citizen look, hear, and wonder and go and inquire. Why can’t he do that?
Well, I will tell you an old story my mother told me, it’s about the crows and the swan. She says, “Gerry, there was a farmer who set out his nets to catch crows. And there was a swan who played with the crows. And so the farmer caught the swan with the crows. And when it came time to kill the crows, the swan said, ‘Please, Mr. Farmer, you can see very, very, very plainly that I am not a crow, I am a swan.’ And the farmer said, ‘You must be a crow, I caught you in my net with the other crows.’”
Now, how many days did you hear these people over here try to make this man a member of the Aryan Nation church when he was plainly not, and try to connect his in some way or another to their beliefs?
And you heard horrid things that turn my stomach that he does not subscribe to at all. You heard witnesses say he is not a racist, he is not a white supremacist, he believes people of different races should live separately, that’s separatism not supremacy. And he did not subscribe to any of the theories of the Aryan Nation. As a matter of fact, that’s why he didn’t coin the church, because he didn’t believe in it, and you heard testimony to that effect.
But he was caught up there-they took his license number. These ATF who are supposed to be taking care of crimes, and their excuse is, “Well, we were checking out the Aryan Nation because they might have had some guns.”
Well, everybody has guns. I mean, this was their excuse for an invasion of that group of people, who, as repugnant as they are to us, to me at least, I can’t speak for you, nevertheless have right and the Constitution to protect them. And so, Randy Weaver made a mistake-he should never have gone up there. That’s the mistake he made. That’s the first crimes, that he went to a public gathering that was being infiltrated by the ATF, and Randy Weaver’s crime, and I want you to hear me say this, Randy Weaver’s crime was not that he sawed off a shotgun; Randy Weaver’s crime was that he wouldn’t snitch for Herb Byerly. And you know that, and I know that. Herb Byerly was perfectly willing to kiss him on both cheeks once he caught him and entrapped him, if he would just go snitch, and I heard Mr. Lindquist say that that was honorable-remember he, he said in his statement-that’s honorable, to snitch and betray and to lie.
To be a snitch you have to hold yourself out to somebody and not be who you are, and to encourage them and to make friends with them. And then, after you made friends with them, to lie to them, and to tell them things about yourself and your family that aren’t true, and to try to get them to do things that are wrong, and to be wired so that you can do all that, and Randy Weaver said, “I’m not going to do that.” That was his crime.
Sawing off the shotguns-they hold these awful looking shotguns out, and they’re enough to scare anybody. I mean, when he hold them up, I think, “Oh, God, how can I ever deal with that with the ladies and gentlemen of the jury.” But it’s hardly more than a misdemeanor, hardly more. It’s a two hundred-dollar license tax, you fill out some papers.
And poor Randy Weaver, Randy isn’t too smart. You ought to be able to understand that somebody, anybody, can cut off a shotgun, why do they Randy to cut them off? Did you ever think of that? I mean, anybody that had thought about it very much would have known that this is an undercover agent setting him up. Randy Weaver’s just a simple guy, ordinary guy that needed the money, and he been kind of sucked into this. You know, he had no propensity to do that before; he was going to find out how that was and Byerly was telling how much money he was making, and how big a business it was.
And Randy kept saying, “I’d sure like to meet your family,” because, you know, he thought that was the way you judged people, and I think he’s right. You know how I could judge you better than any way in the world is to meet your family. Do you know how you can judge Randy Weaver? Judge him by those kids and see the kind of person Randy Weaver is: that’s Sara and that’s Rachel.
And so they got him to do this. Then they came to him and said, “Snitch!” and he said, “No,” and they let him go. I mean, if it was such a terrible crime, you would think they would have arrested him immediately or something.
Snitch. No. They let him go.
And it was between October of 1989 until January of 1991, until he was arrested, that’s fifteen months-big deal, right? Nobody was concerned about that. Then they go fifteen months, and then one day they didn’t have anything better to do, and so they put the truck across the road and they put this decoy out there, this poor woman, looking like she was having trouble, and they arrested him.
The entrapment instruction says the prosecution has to prove he had the propensity to commit the crime before you induced him to do it. In other words, it’s sort of like a virgin soul; if you have a virgin soul-that is, you haven’t done these crimes before-and the government induces to commit a crime, you’ve been entrapped. In other words, that makes a criminal out of you.
The law tries to fair. We’ve got enough criminals in this world without having our government agents out there making criminals out of our citizens. So, if a citizen has no propensity-that means that you wouldn’t have done it otherwise-if you’ve had no propensity to commit crimes in your life and the government goes out and induces you to commit a crime, it’s entrapment. And the government has to prove that you had a propensity to commit crimes; that you were a criminal to begin with.
I mean, if you’re already a criminal, it’s okay to induce you. You see it most often in dope cases, which I don’t happen to represent, but I see it all the time with other lawyers in dope cases that are claiming entrapment, but they’ve been selling dope all along, how can they claim they were entrapped? I mean, they were already criminals. But Randy Weaver was not a criminal. He had no propensity to commit crimes.
You have heard the testimony; they looked as hard as they could, and you know they looked. You know they looked to the bottom of the well for everything they could find against Randy Weaver. There isn’t a thing that he ever did in his life that they didn’t look up and try and smear him. If they would have found a crime, they would have brought it to your attention.
And this is a man who never had even a traffic ticket. Never been charged with a crime of any kind, and honorably served his country. Had no history of any kind of any criminal record. He had no propensity.
The judge will tell you, “The prosecution must prove beyond a reasonable doubt that the defendant was predisposed to commit the criminal act prior to first being approached by government agents.”
Predisposed. Predisposed. That means he was a criminal beforehand, in effect. The person is entrapped when a person has no previous intention to violate the law and is persuaded to commit a crime by government agents.
On the other hand, where a person is already willing to commit a crime, the guy that’s been selling dope, as an example, it is not entrapment if the government agents merely provide an opportunity to commit a crime.
Now, his failure to appear. He is first told by the judge something that was not true. He was told by the judge that if he lost the case, the money would have to be used, not because he didn’t appear-remember that’s contrary to what counsel said. Anyway if you lose the case, you may lose your house to pay attorney’s fees, the court appointed attorney.
Now, what does that tell Randy? “If I lose, I’ll lose my house.” Now, if a judge makes a misstatement of the law, it’s okay, it’s just a mistake. If a judge makes a mistake, it’s just a mistake.
No offense, Judge, I’m not talking about you. I’m talking about another judge. But if Randy Weaver makes a mistake, he’s a criminal, right? And he gets charged. Now, when Richins [Weaver’s parole officer from the original weapons charge] makes a mistake and sends him a letter that says you don’t have to appear until the twentieth of March, it’s just a mistake, right? Well, when Randy doesn’t show up on the nineteenth or twentieth of February, he’s guilty of a crime, right? And he gets indicted on the fourteenth of March, not the twentieth of March, six days before the twentieth even rolls around.
They all knew abbot the mistake. They indicted him. They can’t wait to indict him. They’d love to indict him. Let’s hope he doesn’t show appear, then the indictment will stand up.
I don’t think I would ever quite get over this situation. They’re going to try to get Randy Weaver down-they left him up there for a long time, almost eighteen months, wasn’t it? Never bothered him. He wasn’t bothering anybody else either. And they knew the charge they had against him was no good, and he told the marshals, “When you arrest him and bring him in, I will probably have to dismiss it.”
Now, you’ve got a no-good charge that you know you’re going to have to dismiss, and it becomes the basis of a major case that results in the death of Sammy and Mrs. Weaver and Bill Degan. And brings in the whole Hostage Rescue Team and all the rest. On a charge they knew was no good in the first place.
Now, what are we going to teach? Are we going to send you off? We are going to tell the whole world something here by our verdict here of justice. Are we going to approve the prosecution doing this when they know their case isn’t any good?
Mr. Howen never came into court and told us why he continued to force that thing. I mean, this is a two-bit, no-good charge, and all Weaver is saying is “Don’t’ take my kids away from me and I will come down. Don’t take my house away from me, don’t leave my children homeless.” This isn’t a welfare recipient. This is a guy that’s making his living, making his way. Taking care of himself, taking care of his family, and he says “Don’t take my home; don’t take my kids.” You know how long it would have taken me to get him off that hill? About five minutes. Just walk up there and say, “Randy, we’re not going to take this house and we’re not going to take these lovely kids. And if you want to work something so you can have a fair trial, I will do the best I can to guarantee you that. Because I am a United States attorney, and you know what I do as the United States attorney? It is my job to see that you get a fair trial. It is not my job to set you up. It isn’t my job to do something unfair. I will do it, I will take care of it.”
What do we get from Mr. Howen? “Pursuant to our phone conversation of October fifteenth, 1991, concerning the proposed negotiated surrender of Randall Weaver. I cannot authorize further negotiations or discussions along these lines with the defendant or his agents for two reasons. First is that the defendant is represented by Hoffmeister [Weaver’s attorney for the original weapons charge].
Now we’re talking about a big deal’ well you can take Hoffmeister up there. Come on, pal, you’re both members of the board, let’s go up there together. Secondly, “That the areas proposed are either not within my power to grant or bind the government in the broad scope of the type of matters properly addressed in a plea agreement.” That means after you’ve pled guilty. So what he’s saying to him is “Plead guilty and I won’t take your kids from you. Plead guilty and I won’t take your home from you.”
This is a two-and-a-half month trial, do you think that is right? I think after you sat here as a juror you realize how important this right is, not to have to plead guilty to crimes that you haven’t committed and that you’ve been set up for and have good defenses to.
You’ve heard the witnesses give their defenses and you know they’re just and you know they’re honest. And why shouldn’t he have the right to present those defenses? And Mr. Howen says, “No, not until you plead guilty.”
They could have set another trial date. Hoffmeister said that Randy would come down, but the government agents demanded to know exactly when, so they could get the credit for the arrest.
Imagine that. You remember that testimony that came from the cross-examination of one of the witnesses. Mr. Willey said Randy was afraid they were going to kill him. I mean, it just makes me sad. The government will use all the power they have. They don’t realize that this is a human being.
They saw him at an Aryan Nation conference and they’re going to get him. And then they make a major case out of this. A major case out of a case where the underlying indictment would have to be set aside if it ever came to trial. Make a major case out of it-it’s the only case they had. I mean, it’s just sad. And I know that you feel sad about it and I know that you don’t want to put your stamp of approval on it.
You know much has been made of trying to demonize this man. But when finally the facts get laid out and they called Mr. Willey to the stand-I don’t know if you were touched, but I saw a man up there who felt sad, too, about this.
“You had known Randy Weaver and you like him?”
“That’s true.”
“Known his family and you liked and admired him?”
“Yes.”