Edge In Second Trial Hard To Predict But Defense Attorneys Not Involved In The Valley Bombing Case Say The Suspects Have An Even Better Chance For Acquittal

The same edgy, frightened victims will recall the horror of robberies at gunpoint.

The jagged shards of metal that once held together bombs will make an encore appearance.

Even the cryptic, religious missives about “Yahweh” and “Babylon” won’t change.

The same defendants. The same judge. Perhaps the same attorneys in possibly the same courtroom.

Much of the second trial of three Sandpoint white separatists accused of bombings and robberies in the Spokane Valley may feel like a television rerun of an unnerving movie thriller.

But like an old big-screen film that’s been adapted for home video, minor elements will change.

And that may be enough to alter the outcome in a second run of the bombing and robbery trial, attorneys and legal experts agree.

Impossible to predict, however, is which side will benefit most from the notso-instant replay.

“It’s like any kind of theatrical production,” said Frank Bowman, a Gonzaga University law professor. “The second time you do it, some of the zip goes out of it. Who that’s to the advantage of? It’s hard to say.”

A mistrial was declared Wednesday in the bombing and robbery trial of white separatists Charles Barbee, 45, Robert S. Berry, 43, and Verne Jay Merrell, 51.

Interviews with jurors revealed the 12-member panel hung 11-1 in favor of convicting the men.

The Sandpoint men had been charged with bombing Spokane Valley offices of The Spokesman-Review, Planned Parenthood and U.S. Bank, and twice robbing the bank, last April 1 and July 12.

Instead they were convicted of four lesser crimes they admitted committing in connection with their October arrest in Union Gap, Wash.

U.S. Attorney Jim Connelly announced Thursday that the case will be retried, probably sometime this summer.

Differences in a new trial may include a more detailed jury selection process, wilier pretrial investigation by defense attorneys, the addition of a fourth defendant and a slight alteration in charges.

Some defense attorneys not involved in the case suggest the new trial will give the suspects an even better shot at acquittal.

One reason: Federal courts allow prosecutors to withhold investigation details from defense attorneys until right before trial.

“When that happens, you end up breaking every rule you learn in law school - especially the one about never asking a question if you don’t already know the answer,” said Seattle defense attorney David Zuckerman.

During a second trial, defense attorneys can better predict testimony from forensic experts and law enforcement.

That could be especially helpful for attorneys representing Barbee, Berry and Merrell. That defense case was hampered in part because the trio refused to waive their rights to a speedy trial. That limited defense investigators’ ability for research.

Attorney Roger Peven, who represented Barbee, pointed out he was given 800 pages of prosecution documents the Friday before trial.

Next time, he said, he’ll know what to expect.

“We may have a chance to have experts look at things, find new witnesses, dig a little deeper,” Peven said.

But former prosecutors like Bowman contend neither side will hold a distinct advantage in trial No. 2.

Prosecutors, too, can massage their case, go over trial transcripts and learn what worked and what didn’t, he said.

Zuckerman said he wouldn’t be surprised, for example, if government attorneys decided against showing jurors so many of the weapons seized from the defendants’ homes.

“Seeing a big stack of legal guns, to some rural jurors, is not any evidence of guilt and perhaps makes it look like the government is over-reaching,” he said.

Zuckerman recently represented Washington State Militia member Gary Kuehnoel, who was tried with six other militia members in Seattle on federal conspiracy and firearms charges.

Kuehnoel was acquitted on charges he had illegally shortened the barrel on some of his guns.

“Prosecutors tried to make it sound like my client had stockpiled enough weapons for an army,” he said. “But he was a gun dealer and a collector and the jury didn’t buy it.”

Bowman said last week’s 11-1 hung jury in Spokane also might lead prosecutors here to change the way they approach jury selection.

“Prosecutors may be thinking that, by all rights, they should have won, and the most likely explanation for the fact that they didn’t is the idiosyncratic views of one juror,” Bowman said.

Rather than change the presentation of their case, prosecutors probably “will focus a good deal on why this particular juror hung,” he said.

Since regional federal court rules forbid attorneys from contacting jurors, the best way to accomplish that is to simply ask more probing questions during jury selection.

Prosecutors have decided to query potential jurors about familiarity with a common militia handbook.

But Bowman predicts the most intensive pretrial battles will come when the government decides exactly which charges to file and whether to try Barbee, Berry and Merrell with Brian Ratigan, a 38-year-old former Army sniper arrested during the trial.

Prosecutors contend Ratigan was the fourth man shown on bank surveillance footage carrying an AK-47 semiautomatic assault rifle during the July 12 robbery.

There’s no telling what kind of complications including Ratigan in the case might add, but defense attorneys are expected to fight the move.

And the U.S. Attorney’s Office still must decide whether to file a new and different conspiracy charge against the defendants.

Since Barbee, Berry and Merrell were convicted on one conspiracy count, defense attorneys likely will fight such a new charge.

But not filing one could give Peven and other defense attorneys leverage.

Witnesses typically aren’t allowed to testify to something another person said, but conspiracy charges provide an exception to that rule.

Without the charge, defense attorneys could argue that much of the prosecution’s evidence is no longer admissable.

“I’m sure I will make that argument,” Peven said. “I think some of the evidence only came in because there was a conspiracy.”

Bowman, however, suggested Peven would lose that argument. The government can contend there was a conspiracy without filing a formal charge, he said.

But the issue could still get sticky.

Zuckerman’s militia case hinged on conspiracy.

The most significant charge against his client was conspiracy to kill federal agents.

The case ended in February with mixed results: a single conviction, a few acquittals and a mistrial on the conspiracy charge.

A retrial in that case is scheduled to start in June.

But the government is taking a more conservative approach this time, Zuckerman said.

Some of the defendants, including Kuehnoel, have been offered plea bargains, he said.

And prosecutors are “moving away from this theory that these defendants really were plotting serious harm against the federal government.”

, DataTimes