Double jeopardy, blindolded justice system.


Kevin Harris Charged with Murder

    Once the intense focus of a siege by federal agents that riveted the nation's attention, the small mountain cabin, situated on Ruby Ridge in Northern Idaho, lies crushed from last winter's heavy snowpack. No one was present to maintain the structure near the small town of Naples -- the scene of an incident that has become an historical way-mark in the growing schism between the government of the United States and its citizens.

    Five years after the siege that galvanized numerous right wing, separatist and militia factions into a torrent of rhetoric and blistering accusations of government fascism; a siege which resulted in the deaths of a federal marshal and two members of the Randy Weaver family occupying the cabin--the saga is not yet ended. On August 21, 1997, Chief Boundary County Prosecutor, Denise Woodbury, filed a first degree murder charge against Kevin Harris for the killing of Deputy U.S. Marshal, William Degan, and a charge of involuntary manslaughter against Lon Horiuchi, the FBI sniper who killed Vicki Weaver during the ordeal.

    At issue in this historical case is primarily its challenge to Idaho's counterpart to the U.S. Constitution's fifth amendment. The U.S. document states that there shall no "person be subject for the same offense to be twice put in jeopardy of life or limb...." In this challenge to that "double jeopardy" clause, Attorney Woodbury has chosen to prosecute Harris who has already been acquitted of the charges of murdering the federal marshal.

    Woodbury, who claims that she did not have access to privileged information concerning the case until she was given the position of chief prosecutor, says that, "one of the elements that must be present for an action to be considered double jeopardy is that the action must be brought by the same sovereign against the individual. The previous charges," she stated in her official press release, "were filed under federal law and prosecuted by the federal government which is a sovereignty separate from the State of Idaho which is pressing charges under Idaho State Law."

    Harris' defense attorney, David Nevin, has filed for dismissal of charges based on his claim that a 133 year-old Idaho statute protects an individual from being prosecuted for a crime that has previously been adjudicated under another jurisdiction.

    'I believe," Nevin told The WINDS, "we're absolutely correct on the law that this prosecution violates the Idaho statute and the Idaho constitution which also has a double-jeopardy clause."

    "The fact," Nevin continued referring to the Idaho law, "that this statute was in existence at the time that the Idaho constitution was enacted is a very strong indication that the drafters of the constitution did not intend for there to be successive federal and state prosecutions. They didn't buy the dual sovereignty argument."

    That Idaho statute (Title 19, Section 315) consists of a single sentence that appears, on the surface, to be difficult to misunderstand. It states:

"When an act charged as a public offense, is within the venue of another state, territory, or country, as well as of this state, a conviction or acquittal thereof in the former is a bar to the prosecution or indictment therefore in this state."

    With such unambiguous wording it would seem that a county's chief prosecutor would clearly observe its apparent direct application to this issue. The fact that Ms. Woodbury is challenging both the U.S. and Idaho State constitutions seems to leave considerable room for speculation as to what the real motives may be for this puzzling action on the part of Boundary County.

Blindolded justice system and balance scales.

    Considering the seemingly obvious no-win disposition of this case, in light of state and U.S. constitutions and statutory law, The WINDS asked defense attorney Nevin (the same who successfully defended Harris in the federal action) why he thought Woodbury would engage in such an apparently misguided quixotic endeavor. "I cannot, for the life of me, imagine," Nevin said, "why anyone would decide to prosecute Kevin Harris....It does not make any sense to me at all." He claims to have no "solid indication of what her real purpose is."

    When asked why the attempt to prosecute Kevin Harris for the same crime twice, Woodbury's office claimed that, "Her contention is that it is not the same charge, even though we recognize these are the same events and the people who are dead are equally dead no matter what you call it."

    As much or more at issue than the apparent challenge to the fifth amendment and the Idaho constitution is the inconsistency in the charges leveled at Harris and Horiuchi. Kevin Harris is accused of first degree murder, a crime which requires proof of two concurrent purposes in the mind of the perpetrator: malace aforethought and premeditation. Neither one of these qualifiers appeared to have been present in the Ruby Ridge fire fight.

    For the purpose of illustrating the foolishness of a first degree murder charge, Nevin described in detail to this reporter the incidents at Ruby Ridge and the presentation of his initial defense of Kevin Harris. The following is that narrative:

They [the federal agents] were in camouflage, head-to-toe, including camouflage masks with slits cut for the eyes. We dressed one of them up in camouflage gear in the courtroom and he looked for all the world like a Black September terrorist. They had no identifying [marks on them.

There were six of them [in the assault team] that went up there and split up into two, three-man teams--one a surveillance team. The other three split off and prowled close to the house. They're the ones who got into the fire fight.

One of the guys at the surveillance point testified that the first thing he heard was the distinctive sound of a two-two-three [the M-16 cartridge used by the federal agents]. The 223 makes a sharp, cracking sound. A thirty-ought-six [the rifle carried by Kevin Harris] makes a loud BOOM!

Referring to the agents' failure to verbally identify themselves:

Voices are quite audible out there and he [the surveillance team agent] did not report hearing anybody shouting anything. He reported that the first noise he heard was the 223.

They [the federal agents] deny that they shot first. Those two statements are in conflict.

Kevin and Sam were walking down a path and see their dog stop and don't know what he's stopped for and suddenly there's a motion and they see that there's a man there. The camouflage was sufficiently effective that even though they were probably twenty feet from the person when they first saw him, prior to him moving they weren't able to see him. They had no idea who these people were.

I had the guy in the camouflage in the courtroom and I said, 'Suppose, Sir, that you're walking along in the woods. There appears a guy dressed just like you are, right now, with that gun you have in your hand. How would that make you feel?' He said, 'I wouldn't see anything unusual about it.' Then I said, 'Suppose right in front of you the guy shoots your dog?' Then I went BANG! really loud. 'Do you think that would really surprise you?' Everybody in the courtroom jumped and he said, 'No, it wouldn't.'

It was absolutely electrifying to see these people in the woods dressed this way, and then they shoot the dog and the boy is standing within twenty or thirty degrees off the muzzle blast; the noise and [the] dog shot in the back, spins around and is yelping and dies.

That happens right after you've seen these frightening people and you have a second or two to make up your mind.

This is premeditated murder? Give me a break!"

    Here is a situation involving law enforcement officers who were not in uniform, had not identified themselves and who, by evidence of their own conflicting testimony, fired the first shot in the incident when they killed the Weaver's dog and, in the ensuing fire fight, Randy Weaver's 14 year-old son, Samuel. This would not even seem to qualify under "heat of passion" for second-degree murder when it appears that surprise and extreme fear were the only motivating factors.

    A bake sale was held in Republic, Washington, the town where Harris currently resides, in order to raise funds for his defense. Nevin said that $750 was donated from that sale but that Harris' legal defense may run to half a million dollars. Because of this, a special fund has been set up with the SeaFirst Bank in Republic. In contrast, Lon Horiuchi will, according to FBI officials, receive the full support of the federal government for his defense.

    In severe contrast to the charge of first degree murder against Kevin Harris, agent Horiuchi, who was experiencing no "clear and present danger" to himself or fellow officers, willfully and purposefully placed members of the Weaver family under deadly force, shooting Vicki Weaver in the head while she held their infant daughter. The "threat" the Weavers were presenting at the moment of Horiuchi's attack was no more than attempting to enter their home. If there were premeditation and malice aforethought involved in any of the killings at Ruby Ridge, would it not seem logical that the FBI sniper, in violation of established "Rules of Engagement", would qualify? Horiuchi, being charged with "involuntary" manslaughter, seems to infer that he "involuntarily" raised his rifle to his shoulder, "involuntarily" drew a bead on Vicki Weaver and "involuntarily" pulled the trigger leaving the Weaver family "involuntarily" without a mother and wife.

    According to a Senate subcommittee investigating the actions of government agents at Ruby Ridge, the FBI issued rules of engagement that essentially violated the constitution, while some agents actually violated orders.

    Does not this situation present itself as logically and judicially inverted? Should not agent Horiuchi be charged with first degree murder and, if the constitution and Idaho law is ignored completely, Kevin Harris at most be accused of manslaughter?

    Prosecutor Woodbury's official press release states, "Degan was killed by a single shot to the chest...while in retreat." Fourteen-year-old Samuel Weaver "was...killed during fight. He was struck by two bullets, one which grazed his right arm, and one which entered in the right side of his back, exiting in his upper left chest....This death has been determined to be a justified homicide based on self defense." (emphasis supplied).

    To receive a gunshot shot to the chest "while in retreat", was Marshal Degan running backward? For the death of the Weaver boy to be ruled "self-defense" after having been shot in the back, was Samuel laying down a deadly volley of gunfire backward over his shoulder?

    Does this scenario beg a talented imagination?

    While it is true that many of the circumstances are subject to hindsight analysis, there comes a point in any presentation of logical questions where one must assume that a sufficient quantity of smoke most likely indicates a fire--and there is certainly an abundance of smoke in this case, whether it speaks of a fire or merely a screen.

    "Every American citizen should be treated equally under the law," says U.S. Rep. Helen Chenoweth (R-Idaho), "no matter who they are, yet it doesn't appear that the county's very different charges against Lon Horiuchi and Kevin Harris reflect that.

    "Our system of justice," Chenoweth continues, "has found Kevin Harris innocent...and I don't see why he's being tried again. Mr. Harris has already been tried for first degree murder, and after a very long and exhaustive investigation and trial, was found innocent of that crime. A federal jury made up of Idaho citizens has already said that Kevin Harris is an innocent man."

    Under the purported "Rules of Engagement" would it be to far-reaching to think that FBI Agent, Lon Horiuchi became the modern embodiment of the Nazi war criminal's plea, "I was only following orders"?

    The "Justice Department report," Congresswoman Chenoweth commented, "says that because the officers were following illegal rules of engagement, they should not be prosecuted as criminals for shooting a woman with a baby in her arms. We heard that excuse at Nuremberg and it still doesn't hold water."

    From all of this, it would appear that the United States Constitution has been so microscopically analyzed and dissected through the years that the "original intent" of the framers of the document has been completely lost sight of.

    James Madison once said, "Do not separate text from historical background. If you do, you will have perverted and subverted the constitution, which can only end in a distorted, bastardized form of illegitimate government."

Judge and gavel.

   Of what does it speak concerning the present condition of this nation when the full force of government is vented upon a private citizen who has already been exonerated of guilt? What message is sent when the full financial support of that same government is placed in support of one of its own employees whose actions have been condemned by that very government as illegal and unconstitutional?

    Does it not speak of things more ominous and more appalling yet to come?

Written 8/29/97


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