BHIGR Trial Update
by Bob Newland (Summer 1995)
The calls went out the morning of March 14. "Jury's in!" Court was convened at 1:15 for the reading of the verdict. The courtroom was packed as the jury took its seats in the all-too-familiar procession we'd watched several times daily for seven weeks of the trial.which had begun on January 10. The jurors had deliberated for ten days to determine the guilt or innocence of Pete and Neal Larson and Bob Farrar, the principals of the Black Hills Institute of Geological Research; the Institute itself; Terry Wentz, an employee; and Ed Cole, an amateur paleontologist who had been caught up in this bizarre bazaar because he had been in the wrong place at the wrong time.
The circus began somewhere around 1990, when the Black Hills Institute, acknowledged to be one of the most respected paleontological institutions in the world, announced it had discovered the largest and most complete Tyrannosaurus rex fossil ever, near Faith, South Dakota.
In May, 1992, after BHI had excavated "Sue" (named for Susan Hendrickson, the fossil's finder) and had partially curated the fossil, federal agents, illegally assisted by South Dakota National Guard troops, assaulted the Black Hills Institute and seized Sue and several other fossils and a great deal of the Institute's records.
In June, 1992, having combed the seized records, the feds came back and seized a bunch more records. Finally, in January, 1993, they returned again, looting and pillaging virtually all of the Institute's 20 years of records, and several more fossils.
In December of 1993, BHI's three principals, along with Wentz and Cole and the Institute itself, were charged with various combinations of 39 federal counts, felonies and misdemeanors. Altogether, there were 153 charges of crimes spread among the defendants. On their face, the charges were mostly related to what then-SD US Attorney Kevin Schieffer (later Asst. US Attorneys Bob Mandel and David Zuercher) called theft of federal property--excavation of fossils from federal lands.
A reading of the 34-page indictment exposes that the "crimes" were mostly made up from whole cloth. Since theft of fossils from federal land was, at the most, a misdemeanor, and, at the least, no crime at all, the feds had to use a different tack to justify their thuggish tactics in seizing records and property. So they cooked up a weird conspiracy, invoking the RICO act ("ongoing criminal enterprise"), then used lies and intimidation to elicit testimony from some folks, while spending massive amounts of public money in the course of attempting to destroy the Institute's business and reputation world-wide.
The indictment claims that the very founding of the Black Hills Institute of Geological Research 20 years ago was part of a conspiracy to defraud the people of the United States. That Pete, Neal and Bob had, among other things, learned to read maps (so they could feign ignorance of boundaries) as part of the conspiracy, that they had "emphasized the importance of the scientific value" of fossil finds as part of the conspiracy, that they had "cloaked themselves in an aura of scientific legitimacy" as part of the conspiracy. The feds charged that "no serious scientific work" was done at BHI, that the only motive was profit, and that, essentially, the entire drift of the Institute's work was aimed at stealing stuff from you and me so they could sell it to the highest bidder. Then, the final insult. That BHI and its principals "obstructed justice" by not owning up to things they didn't do.
All this was, of course, patent bullshit. The Black Hills Institute has, since its inception in 1974, established itself as one of the, if not the, finest private paleontological research institutions in the world. Its principals have been asked by governments all over the world to explore for and excavate fossils. Public and private entities all over the world have purchased both their expertise and their finds.The question remains. Why, then? Why did the government of the most powerful nation on earth set out to destroy a business which has probably done more to fuel the current dinosaur craze than has any other single institution?
Part of the answer lies in ignorance and stupidity. About three or four years ago, someone suggested to an idiot US Attorney that BHI was doing something wrong. In a publicity-motivated move, Kevin Schieffer raided a small-town business with an army of federal agents. Schieffer himself showed up wearing make-up, all ready for the TV cameras. Having thus committed themselves under the color of authority, and knowing that they had no accountability for their actions, and that the worst that could happen to them would be an admission of a mistake, federal bureaucrats, including US Attorneys, the Adjutant-General of the South Dakota National Guard, a federal judge, the justices on the Eighth Circuit Court of Appeals, FBI agents, US Forest Service personnel, BIA agents, members of the Society of Vertebrate Paleontologists, and people from a shadow world we don't know about yet conspired to commit innumerable wrongs in the hope they could get the total to add up to a right.
In other words, they told lies, they told them big, and they told them often.All this to cover up what was a mistake to begin with. More than $8 million of your money spent for nothing.Part of the "why" also lies in jealousy. It was no accident that 14 of the witnesses against the Institute were members of committees of or the board of directors of the Society of Vertebrate Paleontologists, a group of mostly academics who work for various publicly-funded schools and museums. Two of these folks said, "You can't do serious scientific work unless you're a Ph.D." The Black Hills Institute, during the past 20 years, has found, excavated, and curated more "significant" (an admittedly subjective characterization) fossils than all the academic paleontologists in this nation combined. They had to, to make a living. The academics, sucking the public tit, didn't have to do much, so they didn't. But their reputations seemed endangered by BHI's aggressive work, so, instead of doing something constructive, they asked the government to put the hurt on BHI. Feds, being feds, were only too happy to oblige.
Finally, in the course of their pursuit of an ill-advised prosecution, the feds found something in this for themselves. They found a way to extend the boundaries of federal power. Feds, being feds, were only too happy to follow this avenue. Law was made with no legislative action. Judge Battey, the federal judge who presided over the case, determined that fossils are real property. Yes, fossils are now the same thing as real estate. The Eighth Circuit Appeals Court concurred, and the US Supreme Court refused to hear the case on that issue.
Caught in this melee of bureaucratic power-grabbing and ass-covering were friends of mine. Pete and Neal Larson were raised on a small ranch in south-central South Dakota. All they ever wanted to be was rockhounds. They conspired from their days in grade school to own a museum and stock it with rocks and bones. Bob Farrar was a classmate of theirs at the SD School of Mines in Rapid City. Terry Wentz met them when he came from Wisconsin one summer as a student to help on a dig. Ed Cole educated himself in paleontology and made a number of significant finds, including a previously unknown dinosaur.
Their reward for working hard was to be forced to pay over a million dollars in legal fees to defend themselves against a litany of federal charges that should have been the theme of a feature-length satire on federal bungling. Pete was charged with 36 counts. He was found guilty of two felonies and two misdemeanors. The jury hung on 17 counts.Neal was charged with 38 counts; found guilty of one misdemeanor; jury hung on 15 counts. Farrar, charged 36 times, was found guilty of of two felonies; jury hung on 12 counts.Wentz was charged five times; found not guilty on all. Cole's two charges resulted in a hung jury. BHI itself was charged on 36 counts. It was found guilty on five; the jury hung on 22. None of the felony convictions had anything to do with theft of government property. They had to do with arcane and insane laws dealing with reporting and transport of monetary transactions--not with crimes in any sensible definition of the word. Some of the misdemeanor convictions were for theft of government property.
Bob Mandel and David Zuercher, the US Attorneys who prosecuted the case, have yet to announce their intentions concerning the hung jury counts. Judge Battey has yet to announce sentences on the guilty verdicts.We learned shortly after the verdict reading that, on the counts where the jury deadlocked, the vote was 11-1 for acquittal. The two alternate jurors who were dismissed when deliberations began also said that they would have acquitted. The defense moved for Judge Battey to acquit on the hung counts. He denied the motion, saying, "The bottom line is that a reasonable jury could have found the defendants guilty on all charges." Mandel, in a plea to the judge not to direct acquittals, said, "Sufficient evidence was presented to allow a reasonable jury to convict." In an amazingly arrogant statement, he also said, "The jury reached its verdict, and I have to live with it."
These statements led seven of the fourteen jurors who heard all the evidence to hold a press conference six weeks after the trial's end. They claimed to speak for six others who could not attend. They were angry and apologetic and contrite, so some extent. Juror LaNice Archer said, "We've been asked why we decided to come forward. Somebody prompted us to: Bob Mandel. His statements about our not being reasonable. We're here in apology to the defendants, and to attempt to cleanse ourselves a little." Jo Yates added, "Judge Battey said we were not a reasonable jury. That's why I'm here." Cindi Fortin chimed in, "Mandel's motion .... Then the judge called us unreasonable. We're the government. But we didn't give him what he wanted, so we're unreasonable." Fortin went on, "The Black Hills Institute was not fraudulent. They're a good bunch of guys. There was no intent, they were just making a living."
Several of the jurors had visited the Institute after the trial at the invitation of Pete, Neal and Bob. They were greeted with hugs. LaNice Archer said, after meeting Neal Larson, she was convinced he never intended to break the law. "This is the guy who invented Flubber, the absent-minded professor. ' They don't have a Ph.D.' How many times did we hear that?"
The jurors' press conference reminded me of jurors' statements after the trial of the Waco survivors, wherein jurors said they were not aware of the severity of the charges on which they convicted (the defendants were sentenced to up to 40 years on weapons charges, but acquitted on the murder charges). That case and the BHI case are the only trials of which I'm aware where, after the trial, a significant number of jurors indicted the government for misconduct. Cindi Fortin: "They've used millions of dollars of our money. They're gonna use millions more."Archer: "My integrity's been challenged. My intelligence has been insulted. Does Judge Battey need to save face? The government's job is to protect us. Here it set out to destroy. Not one witness said these guys intentionally broke the law. Where is the victim here?""It's important that we let you know how strongly we feel," said Phyllis Parkhurst. "We waited for the prosecutors to expose something of importance. We waited to hear what they had done wrong. 'Give me some doubt about their innocence,' I said. It never came. Most of us thought Battey was a fair man. Now, I've changed my mind"Archer: "What impelled the government to go to this length? I was skeptical of the Institute through the trial. Now, I'm outraged at the government. I'm questioning Battey's integrity now."
"The prosecution jumped around, intentionally made it as difficult as possible to understand," said Melinda Wyatt, who was dismissed before deliberations. "Mandel told me I made him feel terribly uncomfortable by looking at him." In jury- instructions deliberations, at the time it was decided who would deliberate, Mandel charged that Wyatt's husband had consorted with a private investigator for one of the defense attorneys during the trial. The charge was a lie, designed to secure the dismissal of a juror Mandel didn't like."The jury instructions were not accurate," said Parkhurst. How so? "The judge instructed us we had to find a certain way if we believed that the defendants had done certain things. I've learned since the trial that that is not true. We did fail, in one sense. We should have acquitted."
All jurors had seen Fully-Informed Jury information since the trial. Roxie Finck, who had travelled a couple hundred miles to be at the press conference, said, "If I'd known about fully-informed juries, I'd have found not-guilty on everything. It's too bad we had to learn all this at the expense of these men."So why the convictions on some counts? Parkhurst said, and was joined with nods by the others, "We felt that if we gave a little on a count or two, we could get not-guilty's on the rest. We thought the guilty's were all misdemeanors. We weren't aware of the seriousness of the penalties."
I know, have done busines with, the holdout juror. When I found out who it was, I was surprised, since I'd been pleased to see that person on the jury. I thought he/she (I won't identify her/him because I think that no matter how stupid or wrong someone has been, there's always room for amends) had enough life experience to see what was going on, what the government's agenda was. I was wrong. So Mandel's and Zuercher's ploy of throwing 153 charges in various combinations at six defendants, then bringing witnesses on in confusing order worked. By pretending there was smoke, they convinced the jury there was at least a little fire.
Battey's shameful prejudice also worked to their advantage, of course.There was an interesting vignette close to trial's end. It had been standard practice through the trial for the prosecutors to make objections while seated, and for the defense attorneys to stand when objecting. It's a matter of courtesy to the court for any attorney to stand when objecting. At one prosecution question, defense attorney Ron Banks, wanting to object quickly before an answer was given, objected while rising. Judge Battey harangued him for several minutes about his lack of courtesy.Within ten minutes of that scene, Mandel objected six times without rising. Once, he simply raised his pen, and Battey said "Sustained." It's difficult to win a case when the judge is part of the prosecution team.
And so it went, and so it goes. Five men, guilty of nothing but success and love of their work, await decisions of people they don't know and who don't know the meaning of honest labor--people who will decide whether or not these five men will go to jail, who will whether or not they can continue their professions of service to the scientific community and to us.There has been much talk of terrorism lately. What is terrorism if not the act of striking unpredictably and whimsically, destroying the lives of innocent people in quest of a political goal? Read The Trial, by Franz Kafka. Rent the movie at Blockbuster.
-Bob Newland