Raising Cubby (39 page)

Well, if she wanted to fight, we’d fight.

Outside her office, the clamor about the raid had subsided pretty quickly. A week after the raid, the South Hadley police chief told the local paper he didn’t think Cubby would be charged with anything at all.
If only he knew
, I thought. Many of the first responders—the cops, firemen, and others on the scene—had become sympathetic to Cubby’s plight. They told him they’d experimented with explosives as kids too, but times are different today. Once they realized he wasn’t a dangerous criminal, most everyone was on his side.

Everyone but the people in the DA’s office, that is. When Hoose questioned her, Perry just said, “David, you don’t realize how serious this is!” She talked to him like he was a child.

To me, it was obvious why they didn’t let go. A Google search on Scheibel’s office brought up a ton of bad press and very little praise. Their reputation had tanked, and they needed a slam-dunk, high-profile case to redeem it. Throughout the past year, their office had been under siege following one misjudgment after another. First there was what the media gleefully referred to as “Pottygate,” in which the DA convened a grand jury to investigate a court clerk’s alleged theft of the prosecutors’ private bathroom key. Her actions earned Scheibel a stinging rebuke from superior court judge John Agostini and ridicule in the
Boston Globe
. Then there was the case of Jason Vassell, a student at UMass Amherst. One night, two belligerent drunks invaded his dorm, threatening him with racist
slurs, and he stabbed them in self-defense. The result? The invaders were free, and Vassell was facing felony prosecution. The community was outraged, and many believed that Vassell was only charged because he is black.

With Vassell sympathizers calling the DA a racist and Pottygate making them look like wastrels, the prospect of being hailed for saving Amherst from a crazed bomb maker must have been a powerful temptation. A high-profile court victory could be a step toward higher elected office. That was my biggest worry—that my son would end up as a stepping-stone toward someone else’s desire to advance her career.

Cubby’s mom worried even more than me. It was, after all, her home that had been trashed by raiders. She began having panic attacks and grinding her teeth, and waking up with nightmares and sweats.

Meanwhile, Cubby was gaining more and more supporters. When people first saw the army that descended on his mom’s house, they thought he must have a ton of high explosive in there. But when they realized that ATF and the state had sent fifty-plus people and dozens of cars and trucks to remove a couple of pounds of homemade explosive, they were as flabbergasted as me. Chemists from both the University of Massachusetts and Mount Holyoke College wrote to express sympathy over his plight. The Mount Holyoke chemist told Cubby about his own experiments with explosives fifty years earlier. “All chemists try that stuff,” he said. The UMass professor invited my son to come check out the chemistry program at his labs in Amherst.

It took some people longer to come around. During the raid, a few of Little Bear’s neighbors became agitated, thinking she had put their lives in danger. However, most soon realized that was not the case, at which point they focused their annoyance on the authorities for the size of their response to a kid’s chemistry lab. They were understandably upset that the neighborhood was invaded in
midwinter for what was essentially a huge training exercise. In fact, that’s exactly how the hazmat guys had described it as they packed up to leave.

So what would the DA do? The prosecutor’s behavior implied that she was trying to build a criminal case against my son. But it was not obvious to either our attorney or us what they might charge him with. A month and a half passed, with no word. By then, the story had vanished from the news and Little Bear’s street was totally back to normal.

Then, in late March, Cubby got a phone call. His friend and high school classmate Alex had been summoned to appear before the grand jury on April 1. Alex was scared, and so was Cubby. A call from the lawyer confirmed Alex was not the target of the grand jury, but that was scant reassurance, because he already knew they were after my son. He’d never been called before a grand jury—none of us had—but we knew they only investigated serious crimes. For Cubby and me, that was a chilling thought. I felt like we should be doing something to prepare to defend ourselves, but we could not attend the grand jury session or speak to the jurors, and its proceedings were secret. It was a horrible, stressful time.

I spent some of the time educating myself about the Massachusetts legal system and what might lie in store for us. The first thing I learned was that grand juries aren’t “grand” at all. Like many people, I assumed a “grand jury” would consist of leading figures in the community, people who wanted to get involved and provide the prosecutor useful guidance. Nothing could be further from the truth, at least where I live. Grand jurors are just ordinary people, selected at random from the voter rolls. Their principal qualification to serve: the ability to take time to appear in court, over a period of months, to hear a procession of cases presented by prosecutors. By state law, grand juries must approve all felony indictments, which are then tried in superior court. Of all the places Cubby might have ended up, that was by far the scariest. District court sends drunk
drivers to county jail for six months. Superior court sends murderers and rapists to state prison for life.

We trusted Alex, and we knew he’d try to present Cubby in a positive light. But we didn’t know if that would matter. We had no idea what other witnesses they had called. We didn’t even know what charges were contemplated. All we knew was, Cubby had offered to meet them himself and they refused. No DA who wanted truth or fairness would have done that.

As I said, we could not attend the grand jury session, but we did get a complete transcript a few months later. I was able to review the record, and it just made me furious, the way the prosecutor presented a totally one-sided picture to a group of people, leading them to do her bidding, and return criminal indictments. The word
jury
implies people who consider all sides and render a decision, but our grand jury did nothing of the sort. The first witness called was Trooper Perwak, who told the jurors how Cubby first came to the attention of the police. To my surprise, Perwak said it was an informer. The person who turned Cubby in to the cops was Kevin Goyette, a surplus and salvage huckster Cubby had encountered on eBay. Cubby ordered glassware from him, and when he did, he revealed his name, e-mail address, and home address. That information was his undoing.

Goyette Googled Cubby and found his online discussion forums and the videos of his explosions on YouTube. I never understood why a glassware merchant would investigate a customer, but whatever his motives, he called the South Hadley police and told them about Cubby. The South Hadley cops looked at Cubby’s videos, but they did not have any expertise in explosives. They turned to the state police, which was how Gerry Perwak became involved in the case.

Perwak proceeded to show the jurors fifteen videos Cubby had made the year before. Most of them showed small amounts of explosive being detonated on the ground. Some of the experiments didn’t
even work; all they did was fizzle and smoke. A few were more dramatic, as Cubby set off blasts underwater and geysers erupted ten or twenty feet into the air.

Perwak related all that in a very matter-of-fact way, without any embellishment. He had a reputation as a tough but fair cop, and it showed. If he thought Cubby belonged in jail, he would have said so. In fact, he did not say one word about malice, criminal intent, or property damage. To convict Cubby of any serious charges, the prosecutor would have to prove all those things.

As I read the transcript, I was deeply troubled by the prosecutor’s distorted presentation of the evidence. Grand juries are supposed to govern themselves. A prosecutor may bring in and question a witness, but a juror has the right to decide what additional questions to ask him or her. Cubby’s prosecutor ignored that rule. At one point, Perwak read some of the comments on Cubby’s videos, and a juror asked whether any of the people who discussed explosives with my son had been investigated. It was a reasonable question, but the prosecutor cut it off, dismissing the juror out of hand.

No one gave the jurors any perspective on what they were seeing and hearing. No one pointed out that any Massachusetts resident could drive over the line into New Hampshire, where fireworks are legal, and buy far more explosives than Cubby was accused of making. Thousands of people do that every Fourth of July. They return home, crack open a cold beer, and start lighting ’em up. They drop fireworks in the water and toss them on the ground. Some folks even throw them at people, and blow up whatever they can find. Yet those individuals don’t become the subject of grand jury investigations.

Even today, a YouTube search for explosion videos produces half a million hits. Cubby is far from alone in his interest. But no one told the jurors that. His handful of homemade videos were presented as if they were unique in the world.

After Perwak stepped down, Alex took the stand. He told the
jurors about making one of the videos Perwak had just shown them. “We had walked out behind Jack’s father’s house … through a patch of woods next to the landfill, no other houses nearby. Jack had this little thing, probably about that big.” With his hand, he indicated that it was about the size of a golf ball. “It was for a fuel air experiment. He had taped it to a tree and set it off. It smoked and didn’t really work, as you can see in the video.”

The prosecutor then asked Alex about Cubby’s lab, and he said, “Yes, I knew about the lab he had in his mother’s basement. He was willing to try a few things out and he, of course, now regrets it being that he is in so much trouble, but this was simply just a test of chemistry.” Alex was nervous and a little rambling, but he stood by Cubby with every word.

Perry got a more useful witness in the form of Frank Hart, another state police detective. He eagerly described the chemicals in Cubby’s lab. Unlike Perwak, who stuck to the facts, Hart happily supplied a terrorist purpose for every substance he mentioned. Ammonium nitrate was no longer just fertilizer. It became the material that “wiped out” the Alfred Murrah Federal Building and “killed 168 and injured 800 people.” Triacetone peroxide, or TATP, became “the weapon du jour of terrorists,” as well as “Mother of Satan, the type of device that Richard Reid, the Shoe Bomber, was trying to ignite on an airplane.”

By analogy, if Hart had discovered a jug of gasoline in someone’s garage, he would have said that it’s known far and wide as the principal ingredient in Molotov cocktails. That might be true, but it’s an awfully misleading way to describe unleaded premium.

When Hart told the jurors about Cubby’s ammonium nitrate fertilizer, he forgot to tell them it was still in its original packaging, the very same bags in which it’s sold to gardeners all over the world.

“Fifty pounds of ammonium nitrate” sounds a lot scarier than “a sack of 34–0-0 lawn and garden plant food.”

Then Hart focused on the hazards in Cubby’s lab. With great relish,
he told jurors how his technicians put on Kevlar bomb suits and “walked very slowly” to carry Cubby’s TATP out of his basement lab. He told them how they carefully loaded it into a “huge total containment vessel” and carried it to the landfill for destruction. He said, “We had to put people in there at the risk of life or limb to remove this stuff,” which sounds very brave. He didn’t say that my teenage son had offered to carry it out for them, but the bomb techs declined because they preferred to “handle the situation with standard procedures.”

The small amount of TATP Cubby had could have been detonated right on the basement floor with no hazard, but Hart didn’t say that either. At first I thought he was being deliberately deceptive, but I concluded he just didn’t know. He was a lawman, not a scientist. He had no idea how powerful the explosives were, so he put on a bomb suit and hauled them away in a two-ton containment vessel. That’s a lot of special handling for the explosive power of a pack of firecrackers.

Perry pressed Hart about property damage—a necessary thing for serious criminal charges. She said, “Based on your training and experience, would the explosions that you witnessed cause property damage or damage?”

Hart hadn’t witnessed any explosions, he’d just watched the online videos. But with no defense attorney to object to his speculation, Hart said, “Oh, yeah, without a doubt.”

Later in the testimony, an inquisitive juror asked, “You said that the explosions that you saw in the same videos that we saw, that they did do property damage?”

“Mm-hmm,” Hart said.

“What was the damage?” I found myself liking this juror.

Hart stumbled a moment and said, “Well, the woodlands and who knows what, you know, that water system, that water supply system what, you know, the contamination from those chemicals and so on and so forth. If you were an amphibian in that water I would think you’d say it was definitely property.”

Clearly, at least one juror was dubious of the property damage claim. But there were twenty-three of them, and they did not need to be unanimous in their opinion. They began their deliberations, and a short while later, the jury foreman gave the prosecutor what she wanted: the go-ahead to indict my son.

Our lawyer had asked to be notified as soon as the DA’s office made a decision. That seems like the courteous thing to do. Nevertheless, on April 2, Perry called a press conference, at which she charged Cubby with three counts of malicious explosion, without so much as a heads-up to our attorney.

Federal agents had concluded he was just a smart kid who wasn’t a threat to anyone. The ranking state trooper at the scene had not seen fit to arrest him. But the district attorney—who was never at the scene, and never met my son—had decided to go for the big score.