LEXIS COUNSEL CONNECT
LEXIS COUNSEL CONNECT is a communications and information servicefor attorneys. LCC is managed by American Lawyer Media, L.P.
In February 1993, the Office of Professional Responsibility ("OPR") of the U.S. Department of Justice (the "Department") was informed of allegations made by defense counsel for Randall ("Randy") Weaver and Kevin Harris in thecriminal case of United States v. Weaver which was pending in the federal district court in Idaho. Defense counsel alleged that employees of several components of the Department had engaged in criminal and professional misconduct during the investigation, apprehension, and prosecution of Randy Weaver and Kevin Harris. The Department decided to defer action on thismatter until the criminal trial was completed.
In July 1993, a jury acquitted Weaver and Harris of charges stemming from the murder of a federal officer. Following the acquittal, numerous additional allegations wereraised by defense counsel an other sources against the Bureau ofAlcohol, Tobacco and Firearms ("BATF"), the U.S. MarshalsService ("Marshals Service") , the Federal Bureau of Investigation ("FBI" or "Bureau") and the U.S> Attorney's Office for the District of Idaho ("USAO"). Included among these allegations were claims that Department employees had unlawfully caused the deaths of Sammy and Vicki Weaver, had taken actionsthat had obstructed justice, had committed perjury and had engaged in other criminal and ethical misconduct. In late July 1993, attorneys from OPR and the Criminal Division of the Department, assisted by inspectors form the FBI, began an investigation of these allegations.
This report details the results of this investigation and traces chronologically the events that occurred in the Weaver matter. The early sections of the report focus on Weaver's sale of illegal firearms to a BATF informant, BATF's unsuccessful attempt to enlist Weaver as an informant, thesubsequent governmental delay in seeking an indictment on thefirearms violations, and Weaver's arrest on weapons charges followed by his subsequent failure to appear for trial on those charges. Another area of investigative inquiry focuses on the efforts of the Marshals Service to apprehend Weaver. These efforts culminated in the August 21, 1992 gun battle at Ruby Ridge which took the lives of Deputy Marshal William Degan andWeaver's son, Sammy Weaver. Next, the report contains adiscussion of the involvement of the FBI in the Weaver matter,including its initial intervention in the crisis, its responsibility for the death of Vicki Weaver and wounding of Kevin Harris on August 22, 1992, its handling of the crisis including its attempts to end the week-long standoff, its handling of the crime scene searches and its subsequentactivities in assisting the USAO in preparing the Weaver casefor trial. Finally, the last section of the report addressesthe handling by the USAO and the investigative agencies of theprosecution of Weaver and Harris including representation madeby the U.S. Attorney to the court prior to the beginning ofHarris' preliminary hearing, the conduct of the Assistant U.S.Attorney before the grand jury and the untimely disclosure ofcritical information to the defense.
We found that many of the allegations of misconduct were not supported by the evidence. However, we did find merit in some of the more serious charges. As a result, we have asked that the appropriate component of the Department examine for prosecutive merit the conduct of the FBI sniper/observer who fired the shots on August 22, 1992. In addition, because our investigation indicated that Assistant U.S. Attorney Ronald Howen took certain questionable actions during the investigation and prosecution of the Weaver case, we have recommended that the Executive Office for United States Attorneys examine our analysis of his conduct and take whatever administrative action it deems appropriate. Finally, we have formulated a series of recommendations that address the problems that we reviewed or uncovered during our investigation.
In October 1989, Randy Weaver sold illegal weapons to aBATF informant. When BATF agents later attempted to enlistWeaver as an informant in their investigation of the AryanNations, Weaver refused to cooperate. Seven months later, thegovernment indicted Weaver for the illegal weapons sales. Wehave found no evidence to support the claim that BATF targetedWeaver because of his religious or political beliefs. Similarly, we found insufficient evidence to sustain the chargethat Weaver was illegally entrapped into selling the weapons.
When Weaver was arraigned on the weapons charges inJanuary 1991, he was told that his trial would commence onFebruary 19, 1991. Two weeks later, the court clerk notifiedthe parties that the trial date had been changed to February 20,1991. Shortly thereafter, the U.S. Probation Office sent Weavera letter which incorrectly referenced his trial date as March20, 1991. After Weaver failed to appear for trial on February20, the court issued a bench warrant for his arrest. Threeweeks later, on March 14, a federal grand jury indicted Weaverfor his failure to appear for trial. We found that: thegovernment, especially the USAO, was unnecessarily rigid in itsapproach to the issues created by the erroneous letter; that theUSAO improvidently sought an indictment before March 20, 1991;
[G.J.]
From February 1991 through August 1992, the Marshals Service was involved in efforts to apprehend Weaver to stand trial for the weapons charges and for his failure to appear fortrial. These efforts included gathering information about Weaver and developing a plan to arrest him. Base on informationthat it collected, the Marshals Service learned that for manyyears Weaver had made statements about his intent to violentlyconfront federal law enforcement officials. As a result, theMarshals Service concluded that Weaver intended to resistviolently governmental attempts to arrest him. Thereafter, theMarshals Service investigated and carefully consideredalternatives that would enable it to arrest Weaver withoutendangering his family or law enforcement personnel. Itconcluded that an undercover operation would be the most prudent way to proceed.
In August 1992, six marshals travelled to an area in northern Idaho known as Ruby Ridge to conduct surveillance of the Weaver residence in preparation for the undercover operation. During the surveillance mission, the Weaver dog discovered the marshals and began to bark. The marshalsretreated with the dog, Harris, Randy Weaver and his son, SammyWeaver, and other family members in pursuit. At an area knownas the "Y," a gun battle occurred in which Deputy Marshal Deganand Sammy Weaver were killed.
We conclude that the marshals took a measured approach indeveloping a plan to apprehend Weaver. Throughout the 18 monthperiod that the marshals were responsible for apprehendingWeaver, they carefully devised a plan intended to pose the leastamount of risk to Weaver, his family, and the marshals. At notime did we find that it was the intent of the marshals to forcea confrontation with Weaver or his family. Although some mayquestion the expenditures of manpower and resources by theMarshals Service during this 18 month period, we believe thatinstitutional pressure created by the existence of a benchwarrant and an indictment, left the Marshals Service with littlechoice but to proceed as it did. Moreover, the USAO did littleto assist the Marshals Service in this matter. Indeed, duringthe first part of this process the USAO thwarted the efforts ofthe Director of the Marshals Service to focus the court on thedanger involved in making the arrest and incorrectly terminatedefforts by the Marshals Service to negotiate with Weaver throughintermediaries.
With regard to the responsibility for the deaths that occurred at the Y, the marshals assert that Harris initiated the fire fight when he shot Deputy Marsha Degan while Weaver and Harris claim that the marshals fired the first shots. After a thorough review of all of the evidence made available to us, wehave been unable to determine conclusively who fired the firstshot during the exchange of gunfire. Although there is evidencethat one of the marshals shot Sammy Weaver during the exchangeof gunfire, we found no proof that the shooting of the boy wasanything other than an accident. In fact, the evidence indicates that the marshals did not know that Sammy Weaver had been killed or wounded until his body was discovered by the FBI in a shed outside the Weaver cabin two days later. Nor did wediscover any evidence indicating that the marshals attempted to cover up their roles in the incident or that they exaggeratedthe events to cause a more drastic FBI response than was appropriate.
Soon after learning of the August 21 incident at Ruby Ridge, the FBI officials in Washington, D.C. evaluated the information made available to them and decided to deploy its Hostage Rescue Team ("HRT") to Idaho to deal with the crisis. HRT members assumed their position around the Weaver compound late in the afternoon of August 22, 1992 but before doing so they were instructed that their conduct was to be governed byspecially formulated Rules of Engagement ("Rules"). These Rulesinstructed the HRT snipers that before a surrender announcementwas made they could and should shoot all armed adult malesappearing outside the cabin. Operating under these Rules onAugust 22, an FBI sniper/observer fired two shots in quicksuccession. The first shot was at an armed adult male whom hebelieved was bout to fire at a HRT helicopter on an observationmission. The first shot wounded Randy Weaver while in front ofa building at the Weaver compound known as the birthing shed. The second shot was fired at Harris while Harris was retreatinginto the Weaver cabin. The second shot seriously wounded Harrisand killed Vicki Weaver who was behind the cabin door.
Following this shooting incident FBI officials spent thenext eight days attempting to convince Weaver and Harris tosurrender to federal authorities. Finally, due largely to theefforts of nongovernmental negotiators, Harris and Weaversurrendered on August 30 and August 31 respectively. Thereafter, the FBI completed its searches of the cabin andsurrounding areas. During the following month, the FBI alsoconducted an internal review of the shooting incident todetermine if the sniper had responded appropriately.
Our review found numerous problems with the conduct ofthe FBI at Ruby Ridge. Although we concluded that the decisionto deploy the HRT to Ruby Ridge was appropriate and consistentwith Department policy, we do not believe that the FBI's initialattempts at intelligence gathering at the scene weresufficiently thorough. We also found serious problems with theterms of the Rules of Engagement in force at Ruby Ridge. Certain portions of these Rules not only departed from the FBI'sstandard deadly force policy but also contravened theConstitution of the United States. In addition, we found theseRules to be imprecise and believe that they may have created anatmosphere that encouraged the use of deadly force therebyhaving the effect of contributing to an unintentional death.
With regard to the two shots fired on August 22, weconcluded that the first shot met the standard of "objectivereasonableness" the Constitution requires for the legal use ofdeadly force but that the second shot did not satisfy thatstandard. It is our conclusion that the sniper/observer whotook the second shot intended to shoot Kevin Harris butaccidentally killed Vicki Weaver whom he did not see behind thecurtained door. We also found the internal FBI review of theshooting incident has not been sufficiently thorough and reachedincorrect conclusions about the second shot.
Our examination of the command and control of the crisisby the FBI, found numerous shortcomings. These shortcomingsincluded initial inadequacies in utilizing negotiating personnel, communicating with FBI Headquarters, documenting decisions and securing the site.
During and after the crisis, the crime scenes were searched by many law enforcement officials under the direct supervision of the FBI. We found the FBI's handling of the crime scene searches to be inadequate including its failure to use basic crime scene techniques in collecting evidence. Furthermore, the general disorganization and inexperience ofsome of the participants coupled with inaccuracies in thesearches adversely affected the prosecution and contributed tothe negative impression of the government generated during thetrial. We found no evidence that these deficiencies wereintentional or that the FBI staged evidence for theprosecution's benefit.
Shortly after their arrest, separate preliminary hearingswere held for Weaver and Harris. While arguing the government'smotion requesting a continuance of the Harris preliminaryhearing, U.S. Attorney Ellsworth made statements indicating thatthe government would allow Harris to have a complete preliminaryhearing in return or consenting to the continuance. Thereafter,Harris consented to the continuance with the understanding thathe would have a full preliminary hearing. An indictment wasreturned against Harris while his preliminary hearing was inprogress. We have found that the U.S. Attorney did notintentionally misrepresent the government's position but that hefailed to appreciate the impact of his statements and that heneglected to pay sufficient attention to the information thatthe received concerning the probably length of the preliminaryhearing.
After the first indictments were returned against Weaverand Harris, the Assistant U.S. Attorney continued to presentevidence to the grand jury which led to the return of twosuperseding indictments, each containing a conspiracy count. Wefound these conspiracy counts to be overly broad and to containsome overt acts for which there was insufficient evidence.
[G.J.]
Later the USAO decided to seek the death penalty against Weaver and Harris even though the applicable federal appellate court had held that the offense charged could notconstitutionally support the imposition of a death sentence. Wehave concluded that the decision to seek the death penalty,although made in good faith, gave the appearance that thegovernment was overreaching.
From the moment that the USAO began to prepare the casefor trial, it met with resistance from the FBI. This resistancetook many forms, all of which served to make preparation of thecase more difficult. The FBI continuously opposed actions ofthe prosecutors requested to prepare the case for trial, rangingfrom having the case agents conduct out-of state interviews toenlisting agents from other agencies to help prepare the case. The FBI, which wanted to be the only agency or, at a minimum,the lead agency on the case, resisted working as a coequalmember of the prosecution team. Furthermore, when the USAOsought advice and assistance from the FBI Laboratory they metwith unjustified delays and resistance that created discordwithin the team and disrupted trial preparation. These problemscontributed to the USAO's decision to retain private forensicexperts.
In addition, the FBI unjustifiably delayed producingmaterials to the USAO that were needed for trial preparation andthat were clearly discoverable under federal law and thediscovery stipulation signed by the parties. This actionunreasonably delayed the availability of these materials fortrial preparation and for discovery. Particularly at theheadquarters level, we found that the FBI's efforts to locateand produce discoverable documents to be disorganized andincomplete. The late production during trial of materialsassociated with the FBI Shooting Incident Report negativelyaffected the court's and the jury's perception of the governmentand the government's case. In addition, the delays in discoverycaused by the disorganization of and mistakes committed by theFBI Laboratory contributed to the delay of the trial and to theperception that the government was uncooperative and not beingtotally forthcoming.
However, the FBI was not alone in failing to make timely disclosure of critical information to the defense. The USAO was also responsible for not promptly revealing certain important information to the defense. Although in some instances we found these tardy disclosures to be unjustified or negligent, we do not believe that they were improperly motivated or takenintentionally to obstruct the Weaver trial.
As the result of our investigation, we have made sevenbroad recommendations. First, we recommend that all federal lawenforcement officers be governed by a standard deadly forcepolicy and that the Department of Justice be responsible fordeveloping such a policy. in addition to specifying clearly thecircumstances in which deadly force may be used, the policyshould define the occasions in which special Rules of Engagementmay be implemented and the process by which such rules should be approved.
Second, we recommend that a crisis response team, including specially trained crisis managers, be available torespond to crises. In addition, we endorse the proposal toinclude specially trained prosecutors to provide legal supportto tactical teams when needed. We also propose periodic jointtraining exercises by the various federal and local lawenforcement agencies which are responsible for responding tocrisis situation.
Third, we recommend that a panel comprised of representatives from federal law enforcement agencies, including an attorney form the Department of Justice, be created to examine the internal reviews that law enforcement agencies conduct after shooting incidents occur. This examination wouldfocus on the thoroughness and prosecutive merit of the internalreview.
Fourth, we recommend that FBI field offices that do not have a team in place to recover evidence after majorhostage/barricade crises like Ruby Ridge request the assistanceof the Evidence Response Team at FBI Headquarters. We furtherrecommend that procedures be adopted to improve the coordinationbetween the FBI Laboratory and the federal prosecutors and that and examination be done of the FBI procedures regarding the memorializing of interviews.
Sixth, we recommend that all U.S. Attorneys' Officesinstitute a review process for indictments, at least forsignificant cases.
Finally, we recommend that our findings concerning theevents surrounding the shooting of Vicki Weaver on August 22,1992 be referred to the appropriate component of the Departmentof Justice to assess prosecutive merit. In addition, werecommend that our analysis of the conduct of Assistant U.S.Attorney Ronald Howen be referred to the Executive Office forUnited States Attorneys for whatever administrative action itdeems appropriate.
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LEXIS COUNSEL CONNECT
LEXIS COUNSEL CONNECT is a communications and information servicefor attorneys. LCC is managed by American Lawyer Media, L.P.