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Prosecution Scrambles to Retake Initiative

May 26, 1993

BOISE, Idaho (AP) _ For weeks, prosecutors have proceeded meticulously, even tediously, in the trial of two extremists accused of killing a deputy U.S. marshal in a deadly shootout at a mountaintop cabin.

They have been dogged with difficulties from the start and, lately, the problems seem to have gotten even bigger.

Prosecutor Ronald Howen apologized in court Wednesday after admitting he was told in early April that investigators fabricated photographs of evidence from the deadly gunfight Aug. 21.

On Friday, the judge abruptly adjourned the trial of white separatist Randy Weaver, 45, and Kevin Harris, 25, on murder-conspiracy charges after the defense said prosecutors failed to share information that marshals fired first.

The defense was given the day off to interview a state police captain who made the assertion. Prosecutors had said Harris fired the first shot. The captain is likely to be a defense witness later in the trial.

On two occasions, U.S. District Judge Edward Lodge made a point of saying that prosecutors were far from proving their case.

Howen spent hours presenting dozens of pieces of evidence that the defense, led by the formidably glib Wyoming lawyer Garry Spence, did not dispute.

But some legal observers had their own questions as the trial in the murder of Deputy U.S. Marshal William Degan moved through its sixth week. Weaver’s teen-age son died in the gunfight. His wife was killed the next day by a federal sniper. Weaver and Harris surrendered 10 days later.

″Unless the jury gets a real clear sense of how simple this case is, they could get too confused, and what happens with confusion is that it tends to be to the advantage of the defense because there’s a possibility of reasonable doubt,″ University of Idaho law professor Myron Schreck said.

Prosecutors have spent 24 days outlining for jurors their elaborate conspiracy theory in which Weaver and his family plotted for a decade to provoke a bloody confrontation with agents of a government they loathed.

But the defense has repeatedly pointed out inconsistencies and contradictions in the prosecution case.

Spence, who won Imelda Marcos’ acquittal on criminal charges in New York, claims the Weavers and Harris just wanted to be left alone at their northern Idaho cabin to practice their unorthodox religion, based on racial separatism. He contends the bungling of vindictive federal agents forced them to defend themselves.

″There’s no way for outsiders to assess the comparative strengths of the parties or the outcome of the trial,″ said David Leroy, a former Idaho attorney general and county prosecutor.

In fact, jurors were out of the courtroom and remain unaware of the biggest problems the defense has exposed. They include the withholding of evidence from government agents’ notes, the police captain’s assertion that a marshal shot first, and Tuesday’s admission that photographs of evidence from the shootout were staged.

Howen said pictures provided to the defense were reconstructed - taken after FBI agents removed evidence and then put it back where they thought it came from.

″Prosecutors have been trying too hard to make a case, trying too hard to craft a theory, trying too hard to make the jury hate and detest the defendants,″ said Keith Roarke, a former county prosecutor who beat the same federal team last year in defending a sheriff facing drug and robbery charges.

″When that happens, it is too easy to lose control of your case. You build an elaborate house of cards.″

The trial has been marked by occasionally angry confrontations between attorneys. At one point, the judge rebuked both sides for acting unprofessionally.

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