October 8, 1995 in Nation/World

Prosecutor Pressed From All Sides As He Mulls Ruby Ridge Charges

By The Spokesman-Review
 

With his barrel chest, silver hair and tightly trimmed beard and mustache, Boundary County Prosecutor Randy Day could pass for Perry Mason.

But even the famed television attorney would be hard-pressed to crack Day’s Ruby Ridge dilemma during an hour episode.

Day’s burden is whether to pin state charges on federal agents - or Kevin Harris and Randy Weaver - for three killings in Boundary County.

It’s been three years and counting since Day said he was obligated to investigate the deaths stemming from Weaver’s standoff with federal agents.

A federal jury already exonerated Weaver and Harris in the killings. Some federal agents were demoted for their actions. A congressional committee mulled over much of the incident on national television.

Now Day, 45, stands alone in the cross hairs of public opinion.

Some say it’s his duty to dole out justice by prosecuting U.S. marshals and an FBI sniper for committing murder in Boundary County. An out-of-state group even threatened to recall Day if he doesn’t prosecute.

Other residents believe a trial would be impossible to win and too expensive to pursue.

“That’s why I said I’m damned if I do and damned if I don’t. A lot of people already have pre-formed opinions about what is the correct conclusion,” said Day, pacing his small lobby and sipping from a coffee mug.

“But it’s still my duty to determine if the deaths were an accident, justifiable or criminally wrong. This is not a popularity contest.”

On a mountainside in this county of 9,000, U.S. Marshal William Degan was shot and killed. So were Weaver’s 14-year-old son, Sam, and wife, Vicki.

Gonzaga University law professor Speedy Rice said Day’s chances of winning any case against federal agents - or Weaver and Harris - are nil.

A trial would be an “incredible waste of money,” he said.

Day would be better off pushing the federal government to indict those who approved changing the FBI’s deadly force rules at Ruby Ridge and those accused of shredding documents to cover it up, Rice said.

“If Day is just trying to keep the pressure on the feds to do something, my hat is off to him. If he is doing this just to stay in the limelight and get his name out there he’s an idiot.”

Even though his investigation has already taken three times as long the O.J. Simpson trial, Day insists he’s not dragging his feet.

Information has been hard to come by. Federal agencies won’t cooperate, agents refused to speak with him and congressional hearings won’t be over until the end of this month.

“It a horrendous task and Randy (Day) isn’t the type to go off half-cocked,” said former Boundary County Sheriff Bruce Whittaker, who was in office during the Weaver standoff.

Whittaker noted it took the U.S. Justice Department, with vast manpower and financial resources, a year to do its investigation, which turned up no criminal wrongdoing on the part of agents at Ruby Ridge.

“We have a prosecutor with a private practice, a secretary and sheriff all trying to do this on a county budget. Randy’s in a tough spot and people need to put it in perspective,” he said.

In this small town, residents don’t discuss Day’s dilemma publicly - fearing their statements will come back to haunt them.

Some have accused Day of milking the investigation to garner national attention and advance his own career.

Day chuckles at the thought.

“Career building is certainly not what motivates me,” he said. “I look at this more as a curse. It’s rotten luck, something that happened on my watch.”

When Day will make a decision is a mystery, even to him. He has a list of 30 FBI agents and marshals to interview in Washington, D.C. He’s betting a half-dozen won’t talk - some of the same ones that refused to testify at congressional hearings for fear of facing state charges.

The longer Day waits, the more complicated the decision. He’s up for election in November 1996, but hasn’t decided if he still wants the $44,306-a-year job. That means the Ruby Ridge investigation could fall into someone else’s lap.

But whose?

The county has only three attorneys. One works for the city and the other is Day’s assistant.

The other problem is cost. Any trial of federal agents likely would be moved out of the county to federal court. Day admits it would easily cost the county several hundred thousand dollars. The total county budget is only $6 million, with about $107,000 allotted to the prosecutor’s office.

“It could become so expensive we couldn’t do anything,” he said.

“It’s a stacked deck. We can’t win from a financial standpoint,” said County Commission Chairman Bob Graham. “When it becomes difficult to afford to do your duty you have two choices: either walk away from it or figure out a way to get it done.”

Those who know Day, a divorced man with four grown kids, expect the latter. Co-workers describe the Bonners Ferry-born attorney as arrogant, demanding, tough, but well-respected.

“He’s all of those things, but above all else he is genuinely concerned for doing, quote, what’s right,” said Darrell Kerby, a city councilman who grew up with Day.

Kerby said he knows the Weaver investigation is the last thing Day wanted. “Whatever he decides, there is no way Randy Day will make people happy. It’s not humanly possible. So, he’s got to do what he feels is right and within the law.”

Day has proved he doesn’t sway with popular opinion.

In 1993, he tried Patricia Gallagher for allegedly murdering her abusive husband while he slept. The jury deadlocked, voting 11-1 to acquit Gallagher. Some jurors and many residents urged Day to drop the case. He wouldn’t.

After another trial a jury set Gallagher free at a cost of about $100,000 to Boundary County taxpayers.

Months ago, Day ran into another hung jury while trying to prosecute a hunter for killing his partner. Day has already re-filed manslaughter charges against the man and will try the case again.

His persistence is admirable, say co-workers, but it’s not the kind of track record they can see pitted against high-powered federal attorneys or Randy Weaver’s savior, defense attorney Gerry Spence.

Commissioners may control the county purse stings, but Graham said they can’t and wouldn’t try to stop Day from filing charges.

“We can say there is no money to do it and go to court over that too, but the hope is to find a proper conclusion without breaking us.”

When the county allotted $100,000 for the Weaver case, resident Vernon Mace unsuccessfully challenged it. About $5,000 of that has been spent so far, including Day’s recent trip to Washington, D.C., to attend Senate hearings.

“We have no business doing this. Randy shouldn’t have to charge anyone, it should be the Justice Department that is responsible,” said Mace, 64, who uses Day as his personal attorney.

“Even if he filed charges against the sniper (who shot Vicki Weaver) he’s going after the wrong person. He was just a grunt doing what he was told. I could get up there, defend him and win. We should go to the superiors who screwed up, and that is not the state’s job.”

A group from California, the Weaver Justice Alliance, recently sent letters to all the county’s registered voters. The letter urged prosecution of the agents who killed Weaver’s family or said a recall of Day was in order.

The letter generated a response unlike Day has ever seen during his 11 years as prosecutor. Residents were angry at the outsiders butting into county business. Others agreed with it.

Several residents even offered to be Day’s bodyguard to protect him from the federal government if he filed charges.

“Most just want to get this behind us, along with the threat of extreme expense, the stress and unwanted notoriety,” Graham said.

“What happened on Ruby Ridge was a tragedy with no winners. People here would like nothing better than to see this case history.”

Day would love the federal government to step in and pursue the case against law enforcement agents.

“There are some valid questions that remain unanswered, and I believe the proper venue is at the federal level. I hope we find a result there,” Day said.

“I will do everything I can to encourage them to address it in a manner that will be accepted by the people here.”

, DataTimes ILLUSTRATION: Color Photo

MEMO: ID headline: “Prosecutor in a bind”

ID headline: “Prosecutor in a bind”


Thoughts and opinions on this story? Click here to comment >>

Get stories like this in a free daily email