Militia Trial – The Verdicts are In

Schaeffer Cox in Fairbanks (2011)

After six weeks of listening to testimony, and weighing the evidence, the jury in the case of the United States v. Schaeffer Cox, Coleman Barney, and Lonnie Vernon has reached a decision in all but one of the charges against the three.

I entered the courtroom, after almost two weeks out of state. I’d been following the reports of the trial closely, and was glad to be able to be here for this important day. Schaeffer Cox looks ashen, and is wearing a charcoal grey suit jacket and white shirt, open at the collar. Coleman Barney’s brow is deeply furrowed, and he looks very nervous. Lonnie Vernon has a hang-dog look, and rests his head on his hand.

It is strange sitting in my seat and watching this moment. Other days in court have seemed either routine, or exciting. There were cases to be made, arguments, evidence… People had things to do. But today it is only the jury that has something to do. The rest of the court room just waits.

“It is Mr. Cox’s preference that the jury continues to deliberate,” says Nelson Traverso, Cox’s attorney. The jury had a question for the judge – saying that they were deadlocked on one charge, and didn’t know what to do.

Lonnie Vernon is still looking down, head in hand and somber. MJ Haden, his attorney is in the exact same position with the same expression, I notice.

Tim Dooley is leaning back in his chair. He looks tired. Much of Coleman Barney’s family is absent, but his parents are there.

After Traverso’s request that the jury continue to deliberate, there is a very long period of silence, lasting longer than a minute. Finally, Judge Robert Bryan speaks in his usual slow, thoughtful, gravelly tone.

“Well, it’s perhaps an art form to know when a jury is deadlocked. This jury has been out for basically 2 full days, and a little more. I have commented to people that this jury has been one of the most engaged, in a complex trial, that I’ve seen. They appear to have taken their job seriously and have worked hard during the trial. They have worked hard to understand the instructions, and the evidence. They appeared to me in the answers given in our short court appearance to be pretty firm in their conclusion that further deliberations would not be productive, and they appear to have only one charge that they have not agreed on. I have indicated privately to staff that it would not surprise me if they were hung on some counts, and it appears that is the case. It doesn’t come as a big surprise to me, in light of the events of the trial…

“I believe the best practice at this point, based on those considerations is to accept the verdicts that they have reached, and declare a mistrial on whatever it is they can’t agree on. That is my judgment.”

Then he asks that the jury be instructed to complete the verdict form as far as they are able. Until then, we will take a recess. The judge leaves the courtroom. The three defendants stay, as do most of those there to observe.

Coleman Barney looks at Schaeffer Cox, his lips pressed together, and raises his eyebrows, as if to say, “Well, this is it.” They talk quietly back and forth for a few moments.

There are lots of people here I don’t know. As the minutes wear on, the court room gets more and more full. Groups are chatting amongst themselves – some in serious tones, some in light-hearted chatter. All the while, the area behind the bar was solemn.

I realize how long I’ve been gone because in the almost two weeks I wasn’t here, all the attorneys, and most of the regulars all look like they have gotten some sun.

Cox sits looking down, the fingertips of one hand pressed against his forehead. His wife has just entered the room and stands in the second row, but he doesn’t know she is there. She speaks to someone, and he recognizes the sound of her voice and looks up. He looks glassy-eyed and they meet each others gaze. He smiles a sad, grateful smile at her, and she sends one back. They hold each others’ gaze for a long time.

Finally, the judge returns. And the jury files in. Normally, they look fairly happy and relaxed when they come back in to the court room, but today many of them look stoic, or downright sullen. Only a couple seem in good spirits.

The judge asks if he understands correctly that they have reached a verdict on all except one charge.

“Yes, Your Honor.”

“Will you hand the verdict form to the bailiff, please?”

A paper is handed to the bailiff, who in turn hands it to the judge.

Cox continues to stare at his wife.

“There are 21 verdicts here,” he announced, and proceeded to read through them one by one. Always the same tone and inflection – over and over.

“We the jury find Francis Schaeffer Cox guilty of conspiracy to possess unregistered silencers and/or destructive devices.”

“We the jury find Coleman Barney guilty of conspiracy to possess unregistered silencers and/or destructive devices.”

“We the jury find Lonnie Vernon guilty of conspiracy to possess unregistered silencers and/or destructive devices.”

And on he went.

Cox was found guilty of possession of unregistered destructive devices, but Coleman Barney was found not guilty of that charge.

Cox was found guilty on a string of charges that followed – possession of an unregistered silencer, possession of an unregistered machine gun, illegal possession of a machine gun, and making a silencer.

Cox and Barney were then found not guilty of carrying firearms during a crime of violence.

Then the same two were found guilty of possession of unregistered destructive devices in the form of a hornet’s nest round (rubber pellets) in conjunction with a 37mm launcher. Barney alone was found not guilty of another similar charge involving hornets’ nest rounds and 37mm launchers.

Then, the big one.

“We the jury find Francis Schaeffer Cox guilty of conspiracy to commit murder.”

In the passage of an instant, Cox went from ashen grey to fire engine red. His eyes grew wide, his chin went slack, and he began breathing shallow and fast. He looked completely stunned and bewildered. His eyes began frantically darting around the room as if expecting some kind of explanation, or answer for what had just been said to appear somewhere. He didn’t snap out of it for some time, and began to look more and more distraught.

Judge Bryan had continued on. Coleman Barney’s charge of conspiracy to commit murder was the charge that the jury could not decide. Lonnie Vernon was charged with the same, and found guilty.

The rest of the charges were read, but the room was busy absorbing the gravity and surprise of what had just happened. During the trial, it was noted by many in attendance that conspiracy law is “muddy” or “squishy” – that there was a lot of room for interpretation, that it was hard to convict. And yet, two of the three were charged with just that.

Then all three were found not guilty of carrying firearms during a crime of violence (conspiracy to commit murder).

And finally Cox was found guilty of solicitation to commit a crime of violence – the murder of an officer of the United States. This one hit him hard as well, although he had not even recovered from the previous news. He looks at his wife, and appears panicked and trapped – almost like someone who is about to run. He looks from face to face at each of the jurors with laser focus, and a look demanding some kind of answer.

Then the judge polls the jury one by one, asking them if what he has just read represents their findings, and if it represents the finding of the jury as a whole. He asks each one, and in turn they respond in the affirmative – some with confidence, some dispassionate, some who were obviously choked up with wet eyes. Cox licks his lips, and swallows hard staring at the jurors. None of them meet his gaze.

Lonnie Vernon is pushed back in his chair all the way against the wall, lips tight. Throughout the trial, he has been the most fatalistic about how his story would end. He looks sad, and the gravity of what has happened washes over him, but he is not shocked.

Cox still looks like he can’t believe this is happening. He pulls the microphone down to his mouth. A few seconds go by, and then he addresses the jury, “The prosecutors withheld evidence from you guys.” He sounds defeated, but like he wants to just say something.

“Mr. Cox… please,” the Judge said. And Cox never spoke again.

The judge then went on to talk about setting a day for sentencing, and Cox pressed his fingertips together and looked almost like he was in prayer. His wife in the gallery had made a hand gesture with elbows almost touching and palms pointed upward and out with fingers cupped.

It must wait 90 days, the judge explained, so sentencing was set for September 14.

Then Judge Bryan addresses the jury. “I’ve been at this a long time, as you know, and I communicated this to counsel. I do not recall a jury in a complicated case like this as engaged and involved, and paying attention, and trying to understand everything as the evidence came in. I have the highest regard for American juries and I want you to know that you have done your duties, and have done them well. Jury duty is one of the highest forms of citizenship, and you have served your country well by doing this job over the past many weeks.”

Cox listens to the judge, and continues to go through waves of disbelief, his chin quivering, his mouth contorted, and eyes getting red. At one point he looks pleadingly at his wife, and appears to mouth the words, “I don’t know.” He takes a Kleenex. Coleman Barney gives his attorney Tim Dooley a hug. The jury leaves the room for the final time, and three times the metallic zip of handcuffs is heard as the defendants are escorted from the courtroom.

After they are gone, Scheaffer Cox’s wife Marti, hugs Mae Barney, Coleman’s mother. They hug for a long time, each woman crying and wiping tears away.

I meander out of the courtroom, after all but a small group including Marti Cox, and Coleman Barney’s parents had gone.

A tired and somewhat dejected Tim Dooley stops ton talk to a small group of reporters. He is surprised that the conspiracy to commit murder charges stuck for two of the three defendants. “I didn’t see that winning,” he said. “It was a last-minute charge. They did it after we refused to take a deal. And they can do that… the state guys can’t do that.” All state charges against the defendants had been dropped due to the privacy clause in the Alaska Constitution. The methods used in surveillance and evidence collection were permitted under federal law, but not under state law.

The government had offered Barney a plea deal of 5-10 years to be decided by a judge, or a straight 7 years. He refused the deal, and only after that did the government levy the conspiracy to commit murder charge, which carries a maximum sentence of life in prison. Dooley says he doesn’t regret the decision to reject the plea. He also said that he will be appealing the charge that Barney was found guilty of possession of unregistered destructive devices in the form of a hornet’s nest round (rubber pellets) in conjunction with a 37mm launcher. “That’s for sure,” he said, “but I can’t say anything else.” That charge carries a sentence of up to 10 years.

The combination of the 37mm launcher and a hornets’ nest are illegal, though each is legal separately. Dooley pointed out that the primary customers for those items in combination are the Department of Fish & Game, and the prison system. “They aren’t convicting them for that,” he said. “And they are not exempt, so they should be prosecuting every one of those guys.”

He indicated that he thought both Lonnie Vernon’s counsel and he himself had done as much as they could do. He was glad Barney took the stand in his own defense, and called him an “impressive witness.” The verdicts had left him “pretty devastated,” Dooley went on. “He thinks about letting other people down, not about himself.”

Rachel Barney, Coleman’s wife who was not in court today is in Fairbanks taking care of the kids, Dooley explained. The attorneys will also request that the three be sent back to Fairbanks while they await sentencing. All three have been in Anchorage since Christmas.

“I don’t think I’ve ever been as blue about a verdict as I am about this one,” Dooley said quietly.

Barney didn’t know what was going on with Mr. Cox, he told the reporters. Much of what Cox was up to, Barney only learned about when they were both in jail. “You never really know who you’re friends with. Think of your own kids – you think you know them.”

Much of the case is just accusations, he asserted, and many of the things that were said, like wanting judges to be hanged, came from Bill Fulton, the FBI informant. JR Olson, the other informant didn’t escape Dooley’s consternation either. Both of them made claims that were unsubstantiated, and made accusations that weren’t proved, he said.

A reporter asked Dooley, in light of the way this case went, if you are someone like the defendants, how do you keep from getting in trouble? Dooley thought for a moment. “Shut up and don’t express your opinion. About anything. Ever… In some ways, these guys are right. The government has gone too far… If this is what we’re doing, we’ve got a lot of people to lock up in Alaska.”

Federal Prosecutor Steve Skrocki came around the corner. Dooley had picked up his papers and looked ready to move on. “We’ll have to chat about our next trial,” he said good-naturedly as he handed the reporters over to the prosecution.

He was asked in a few different ways if he was happy with the decision, and paused an equal number of times before explaining that he didn’t feel that was the way to look at it. He was measured, and took the whole thing seriously. It didn’t appear to be a high-five moment of victory. “The jury had 900 exhibits, and 75 witnesses, and 6 weeks of trial. And they returned a verdict that, to them, fit the evidence,” he said. “We certainly accept their verdict.”

When asked about the two semi-notorious informants, and how they were used, he explained, “That’s been part of the investigative process for a long time, but in an investigation setting like this, you never just walk someone in without triangulating, and firmly asserting the things they say are true.” The informants’ testimony was backed up by audio, video, or witness corroboration, he said.

On the issue of whether informant Bill Fulton will get paid (which was a complaint of his when he took the witness stand), Skrocki said, “You’ll have to ask the FBI.”

It was a fairly universal opinion that the prosecution had done a good job in their presentation. The convictions certainly supported the assessment. “You do have to give the jury an idea of the context about what they’re talking about,” Skrocki said. You’ve got to take a step back and look at it from a juror’s perspective. It’s one thing to have a machine gun, but why? It’s one thing to have a bunch of people show up at KJNP, but another to ask why.”

Will Coleman Barney be retried on conspiracy to commit murder, since this jury was unable to reach a decision? The US Attorney will be looking at that, along with the management staff over the next couple of days, Skrocki said.

And although Barney was a strong witness in his own defense, his character witnesses spoke well of him, and he has a reputation in his community as a good businessman, a church goer, a father, and husband, “the double life aspect comes into play,” said Skrocki.

Marti Cox, with Bill and Mae Barney finally come out of the courtroom and walk past the reporters. They didn’t want to talk. “Not now,” said Bill Barney. It was still too new.

Schaeffer Cox is different than your typical Fairbanks survivalist, libertarian type because of his political beliefs, and the very clear pressure Cox was putting on the judicial system in Fairbanks, Skrocki explained. He was seeking an upwelling of support, and it was not a question of IF something was going to happen, but rather when the militia would be strong enough to make it happen. “We’re not ready to do this, but when we are… we will,” he characterized the militia’s plan.

“I don’t think strong anti-government beliefs are a new comment on the radar screen,” he went on, talking about the militia’s take on events. “But the concern of a collapse of government is something that is also not new – The Great Depression, the dust bowl, Viet Nam. Right now there seems to be an uptake in that sentiment.”

So what’s the point at which the government begins to investigate? Skrocki said he can’t comment on future investigations.

“People think of it as a first amendment issue,” Skrocki said, reflecting the feelings of Dooley just a few minutes before. “But it’s deterrence. That’s of primary importance, so nobody gets killed. The Vernons wrote goodbye letters.”

And so there will be at least one appeal, and the sentencing has yet to happen. But, for the most part, the trial has come to an end. It leaves us to wonder many things. When does a first amendment right cross the line, and become a legitimate threat? When does bluster and bravado become a predictor of things to come? When is a plan really a plan?

And what of the role of government informants? When are they a legitimate resource by which future criminals are coaxed out from the shadows and stopped before they can do real harm, and when are the informants themselves the cause of the problem? When do they not only fan the flames, but actually create the spark? How long do we wait before intervening, and when is premature intervention no more than prosecuting someone for a crime we believe they will commit some time in the future?

As easy and appealing as it is to see this (or any) case in black and white terms, the reality is that it can’t be done. Time and place, for instance, factor heavily in how we treat these cases. Our founding fathers took up arms against their own government because they believed it to be tyrannical. They risked life and limb, and their families’ safety for an ideal that was no more than a vision in their own minds, regardless of how unlikely it seemed that it could be brought to fruition. If Schaeffer Cox did not live in 21st Century Alaska, but in 18th Century Pennsylvania, or Massachussetts, he might have fit right in. And if Samuel Adams were plucked from those days and put in North Pole, Alaska in 2012, he might be looking at life in prison right about now.

Charismatic leaders are not like the rest of us, and their brains operate in a different way – a dash of narcissism perhaps, some delusions of grandeur, paranoia… It’s all a pattern we’ve seen before if we study history. Many people glibly say they’re “whack jobs.” Others call them visionaries. Still others see things in shades of grey, in terms of time, place, culture, politics, philosophy, and how ripe and ready a society is to take a leap from their comfort zone, and risk safety and personal security for something different.

For these three men, those factors converged in what we saw today. A jury of their peers didn’t see the world the way they did, and after weighing their words and actions, came to the conclusion that deterrence was better than the risk of letting them go.

I wonder to myself what these three will think about all this while they are in prison.  They will certainly be surrounded by many people who have a bone to pick with the government. And I wonder how many sovereign citizens will emerge from the walls in which Schaeffer Cox is housed.

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