Judge Allows Jurors To See Militia Book Publication Offers Advice On How To Undermine Trials

Jurors in Spokane’s bombing trial will get to read a handbook that coaches them on how to hang a jury.

Suspect Robert Berry won’t get to personally cross-examine his own brother.

And prosecutors better not try to unearth Sandpoint militia member Del Hathaway’s buried money.

While much of the second trial of Berry, Charles Barbee and Verne Jay Merrell has been a sedate refrain, Tuesday was a day for exposed eccentricities, peculiar requests and irreverent outbursts.

Berry, 43, Barbee, 45, and Merrell, 51, are on trial for the second time on charges of bombing Valley offices of The Spokesman-Review, Planned Parenthood and U.S. Bank and twice robbing the bank last year.

The Sandpoint white separatists’ first trial ended in a hung jury in April, when a single juror refused to convict on the most serious charges.

At the beginning of the second trial, Judge Frem Nielsen asked if any juror had read the Citizens Rule Book, a handbook popular with militia groups.

The pamphlet contains copies of the U.S. Constitution, the Bill of Rights, the Ten Commandments and the Communist Manifesto, accompanied by political commentary on the dangers of government. It encourages jurors to ignore judges’ instructions and determine the law for themselves.

“If you hold those feelings or beliefs, you wouldn’t be qualified to serve as a juror on this case,” Nielsen said at the time. No one responded.

Tuesday, defense attorneys offered one of the slim pamphlets - seized from Barbee’s home by FBI agents - as evidence.

Prosecutors objected, calling the guide “prejudicial.” Nielsen over-ruled, but warned jurors not to take the pamphlet to heart. Barbee whispered to his lawyer, who shook his head. Barbee then snapped to his feet.

“I have a question and my attorney won’t ask it!” he told the judge.

Defense attorney Roger Peven interjected “I’ll ask the question,” then proceed to ask an FBI evidence custodian why prosecutors wanted to hide the pamphlet.

Looking confused, the agent said it wasn’t her area of expertise.

Asked later if the handbook would actually help his client’s case, Peven said, “If it’s a victory, it’s a small one.”

But he added that jurors are more likely to read the book after so much attention was drawn to it.

For much of the day, the normally sober courtroom wasn’t so.

During a morning break, Barbee accused prosecutors of coercing his wife into testifying before the grand jury.

In the afternoon, Berry asked to stand in for his attorney and cross-examine his brother Loren - a prosecution witness - when he later testifies for the defense. The judge said no.

Perhaps most bizarre was the testimony of Del Hathaway, a polite but obstinate Sandpoint barber photographed with Berry and Merrell for a 1995 newspaper story about militias.

Hathaway refused to swear an oath, told the court it violated the Fifth Amendment and only testified after the judge ordered him to take the stand.

There, he spoke reverently about Merrell’s hair length, which he said used to vary with the seasons, at one point recalling a particularly flattering springtime flat top.

Hathaway also told jurors that members of his militia group referred to one another by number during the newspaper photo session. The militiamen spoke seldom that day, he said - in part because they couldn’t keep their numbers straight.

Although he answered similar questions during the first trial, Hathaway wasn’t always forthright Tuesday - with either side.

Asked by prosecutors if a bearded man photographed wearing militia garb was Merrell, Hathaway deadpanned, “Actually, it looks like one of the judges’ pictures I saw in the hallway.”

Asked by defense attorneys for an estimate of how many Inland Northwest residents shared his beliefs, Hathaway said, “I could probably give you one, but I don’t care to.”

Hathaway also testified that “usury” - the lending of money - is a crime punishable by death, and said he, like Merrell, doesn’t bother with banks.

“I deal in cash and I bury my savings in the ground,” Hathaway said.

Prosecutors then asked if anyone could find the money by digging around on his property.

“You might be able to,” Hathaway said, then added ominously, “but you wouldn’t have it very long.”

Barbee, Berry and Merrell are charged with eight felonies and could face life in prison if convicted.

After three weeks of testimony, prosecutors hope to rest their case today or Thursday. The defense case is expected to take about a week.

, DataTimes