Molon Labe! (6 page)

Lorner snaps off the TV. "Aww,
shit!
How'd
that
bitch hear about Russell?" turning to Assistant US Attorney (AUSA) Jack Krempler, whose office is in the Federal Building.

"Russell spread the word about his arrest to all of the gun-rights groups, and one of them must have called her," Krempler replies. "Their network has gotten pretty good these days. Our phones ring constantly."

"Yeah, thanks to the fuckin' Internet!" exclaims Lorner. "Whatever case we're working on, from Maine to Hawaii, it's as if it's happening right next door to some gun nut somewhere. Word breaks of a raid, and they're right there with their goddamned camcorders! Can't they be busted for interfering with federal officers in the performance of their duty?"

"Not unless they actually interfere. DEA got spanked pretty hard on this last year. A Circuit court ruled that since third-party recordings could be subpoenaed by the Government and defense alike they must be treated as evidence. To prevent an on-site recording is tampering with that evidence. If it happens during one of
your
raids, don't expect me to protect your dumb ass."

"Well that's great. Just fucking great."

"Watch yourself, Lorner. This case is a paper-thin beef already, and you know it. I didn't want this turd but Washington pissed and moaned that they haven't had a Wyoming ATF conviction in years and gave me the squeeze."

"Whaddaya mean 'turd'? It's a good case."

"Yeah, right. Flash suppressor, my
ass
. It's a muzzle brake."

"Hey, the law's the law, Krempler. If it
'significantly reduces'
muzzle flash, then it's a goddamn flash suppressor. Russell's probably some militia dirtbag; I mean, who else would carry an assault rifle around in their fucking
trunk
? We're the ATF and
we
don't even have .308s! Those things are only good for armed insurrection. An example's gotta be made of these anti-government nuts.
You're
the prosecutor —
you
make it stick."

"Yeah, well, easier said than done. I'll tell you right now that
voir dire
will make or break this case. Muzzle brake, flash suppressor — they look about the same to me, and they're sure as hell going to look the same to John Q. Wyoming."

"Hey, have you been
listening
to me?," Lorner demands. "It doesn't matter what the damned things
look
like, only what they
do
. I don't give a shit what they say in their
Shotgun News
ads! If they significantly reduce muzzle flash, then they're flash suppressors."

"Yeah, and the
'significantly'
part is real comforting. It's about as cutand-dried as
'reasonable.'
What is
'significantly'
? 10%? 25%? If I move to admit into evidence your nighttime firing video of his rifle with and without the device — and that's the
only
way this case can be won — Kramer will object on several excellent grounds."

"Well, that's
your
fucking problem. I catch 'em — you clean 'em. See ya in court, Krempler."

"Yes, and without that orange and brown tie this time. You looked like a carny. Stop by my office before court for a wardrobe check."

"Yeah, right. I'll wear one of my Armanis."
Asshole.

Man must be penetrated in order to shape such tendencies
[of obedience]
. He must be made to live in a certain psychological climate.

[Propaganda]
proceeds by psychological manipulations, by character modifications, by the creation of feelings or stereotypes useful when the time comes . . . . The two great routes that this propaganda takes are the conditioned reflex and the myth.
(at 31)

— Jacques Ellul

Propaganda: The Formation of Men's Attitudes
(1965)

It is not only the juror's right, but his duty to find the verdict according to his own understanding, judgment and conscience, though in direct opposition to the instruction of the court.

— John Adams, 1771

Casper, Wyoming
Federal District Court

September 1995

The concrete Richard Cheney Federal Building loomed over downtown Casper with the personality of a bomb-shelter. A gray, steady drizzle gave the four-story outpost of Occupation a particularly gloomy tone. Next week commences the trial of
The United States v. William Olsen Russell
. Middle names were apparently invented to let you know when you were thoroughly in trouble.

Some seventy jury summonses had been mailed out for the Russell trial, and 44 prospective jurors were being interviewed in what is called
voir dire
. A jury means 12 peers, and courts used to simply dragoon 12 random people off the street. One of whom could have been your mother, another a lifelong personal enemy. Twelve peers meant just that: twelve . . . peers.

Twelve seemingly average citizens.

Now Americans are no longer judged by their peers.
Voir dire
is a carefully crafted process which favors the Government by weeding out potentially sympathetic or independent-thinking jurors. Libertarian columnist Vin Suprynowicz bitterly referred to
voir dire
as "French for jury tampering." In income tax evasion cases, for example, the Government makes sure that every juror is a
"Yes, sir!"
Social Security card-carrying, Form 1040 filer who cannot fathom the proposition that the 16th Amendment was never duly ratified or that private-sector wages are not taxable
"income"
under Title 26 Internal Revenue Code.

ATF cases are notoriously weak in both law and in fact, and cannot withstand jurors who might be sympathetic, much less empathetic, to the accused. The ideal juror is one who has little or no experience with guns, viewing them as unnecessary — if not vaguely frightening — objects.

AUSA Krempler and the Honorable Henry T. Fleming spent the entire morning sifting through the lives of the 44 prospective jurors. Were they members of the NRA or any other gun-rights organization? Did they agree that the Second Amendment protected only the national guard? Had they or any of their friends or relatives ever been prosecuted for a federal firearms violation? Had they ever heard of FIJA
⁴
? Had they ever been a member of a militia? Did they own any firearms? If so, any "assault weapons"? Did they have any bumper stickers on their cars? Did they homeschool? What did they read at night?

At last it was Juliette Kramer's turn to question the jury pool. After thoroughly explaining the concept and history of "presumption of innocence" and "reasonable doubt" to 44 men and women, she notices a thin, nervous fellow who seemed distracted all morning.

"Mr. Urdang, if you had to render a verdict in this case right now, before trial, what would it be?" asks Juliette.

Thomas Urdang, a life insurance salesman, ventures an answer. "Uh, well, I couldn't really say. I haven't heard the evidence yet."

"But didn't you earlier agree that a defendant is innocent until proven guilty?"

"Uh, yes, I did."

"Well, if you
believe
that, then your verdict must be 'Not Guilty,' would it not?"

Urdang squirms in his seat, his face reddening. "Uh, yes, I guess it would."

"You
guess
it would?"

"Well, no — I mean
yes
. I, I mean if I
had
to, uh, render a verdict right now, it would have to be 'Not Guilty'."

"I see. Thank you, Mr. Urdang for coming downtown this morning," Juliette says evenly. "Your Honor?"

Judge Fleming nods to Urdang and says, "You're excused, sir. Please see the court clerk on the way out to receive your juror compensation. Thank you for your service today."

Thomas Urdang self-consciously rises and stiffly walks out.

Turning to the pool of jurors, Juliette carefully explains her point. "Ladies and gentlemen, you'll recall that I earlier mentioned the danger of platitudes. Platitudes are truths which have become familiar. Too familiar. That doesn't make them any less true — just less poignant. And so they pass through the mind undigested, like a pebble through a chicken. The vital truth to remember here is that in America, one is presumed innocent unless and
until
one is
proven
guilty beyond a reasonable doubt. Sadly, that truth called 'presumption of innocence' has become a platitude. It was a platitude for Mr. Urdang, else he wouldn't have answered the way he did.

Several members unconsciously nod at this.

"Now, I did not single out Mr. Urdang to embarrass him. On the contrary. I'd have preferred that he had said, 'Why, Not Guilty, of course!' I'd have
preferred
that 'presumption of innocence' was a living, breathing
truth
to him, as it must be with all of you. Ladies and gentlemen, we cannot 'go through the motions' here, floating on platitudes. An innocent man's
future
is at stake during this trial, and you hold it in your hands. So, I will ask you all, if you had to render a verdict right now, what would it be?"

"Not Guilty," the pool answers in unison.

Juliette scans the faces for any who somehow found this difficult. She has only a few peremptory strikes left and needs to use them wisely. "Thank you, ladies and gentlemen," she beams.

"Your Honor, I have no more questions for this panel," she says.

Jack Krempler leans over to whisper in his assistant's ear. "What'd I tell you? She got the entire panel to say 'Not Guilty' and there wasn't a damn thing I could do about it."

"Pretty shrewd," admits the assistant. "How's her trial work?"

"Very solid. Excellent prep, really good use of discovery — almost intuitive."

"Sounds pretty thorough."

"Yeah, she doesn't miss much during trial."

"Where's her weakness?"

"She doesn't like curveballs thrown at her. In
Feldman
we finally located a hostile witness and got him to testify on our last day, and it really threw her for a loop. Her cross was pretty weak."

"Oh, right!" recalls the assistant. " She still got him off, though."

"Yeah . . . she did," Krempler agrees.

"Any curveballs for her this time?"

"No, just a fastball," says Krempler with a wink.

US v. Russell

Day One

"Trooper Holgate, why did you search Mr. Russell's trunk?"

"Because the DEA K-9 unit alerted to the presence of drugs."

"Were any drugs found in Mr. Russell's trunk?" asks Juliette.

"No, ma'am."

"Were any drugs found in his car at all?"

"No."

"So, the DEA's drug-sniffing dog made a mistake?"

"It happens sometimes," Holgate allows.

"Yes, I'm sure it does," Juliette says, facing the jury. "So, if Mr. Russell had no drugs in his car, then why did you arrest him?"

"Because his rifle was listed in the NCIC database as 'stolen'."

"
Had
it been stolen?"

"Uh, no, ma'am. I made a mistake on the serial number when I radioed in for the NCIC check."

"Oh, so now
you
made a mistake. I see. Well, we're all human. The dog, too, I guess."

Hearty laughter circulates through the court, causing Holgate to frown. Juliette continues, "I'm curious though — what
other
mistakes did you make that afternoon?"

"Objection!" Krempler says.

Before Fleming can respond Juliette quickly interjects, "I withdraw the question, Your Honor."

Frowning, Fleming says, "Very well. Continue, Miss Kramer."

"Trooper Holgate, did you arrest the defendant for any
other
reason besides the alleged possession of stolen property?" Juliette asks.

"No, ma'am."

"So, you did not arrest Mr. Russell for violation of federal gun laws?"

"No."

"Then — aside from your mistake on the serial number — to the best of your knowledge on the afternoon of 24 May, his rifle was perfectly
legal
, was it not?"

"To the best of my knowledge, yes," he says, shifting uncomfortably. "So, if you
had
radioed in the
correct
serial number and properly ascertained that Mr. Russell's rifle was
not
stolen, then he wouldn't have been arrested at
all
, is that not true, Trooper Holgate?"

The young officer nervously glances at Krempler, who barely shakes his head. "Uh, that's right."

" . . . and none of us would be here today," Juliette concludes. "I've no further questions, Your Honor."

"Redirect, Mr. Krempler?" asks Fleming.

"No, Your Honor."

"Trooper Holgate, you may step down. You're excused, sir."

By the afternoon, however, things turn poorly for the defense.

Despite Juliette Kramer's objections over the video of Russell's rifle being test fired, it was shown in open court. A Technical Branch ATF agent had been flown in from Washington to explain the footage. The courtroom was darkened, and a TV/VCR was turned on. In a split screen, the rifle was fired simultaneously without and with the muzzle brake. The muzzle braked rifle had a much smaller flash plume, about half the size of the bare barrel plume. It was clearly a
"significant reduction"
of flash. When the lights came back on, Agent Lorner was wearing a very satisfied smirk.

Juliette Kramer, for the first time, looked worried.