With the May 7 trial date of Fairbanks militia leader Schaeffer Cox and a handful of his associates drawing near, one of the defense attorneys has hinted he may unleash a secret weapon to help defeat some of the weapons charges lodged against his client.
FBI whistle blower Fred Whitehurst may come to the aid of Coleman Barney, a Fairbanks contractor and electrician who is part of the inner circle of Cox's Alaska Peacemaker Militia. Whitehurst worked for the FBI for more than a decade as an explosives expert in the agency's crime lab. His career with the agency came to an end in 1998 on the heels of a report published by the Justice Department validating some of Whitehurst's claims that bad work and bad court testimony had come out of the FBI crime lab, including on major cases like the Oklahoma City and World Trade Center bombings.
The findings ultimately forced an overhaul at the crime lab.
Injecting an expert witness like Whitehurst into the case will play on anti-government emotions already raw in Alaska. It goes without saying that the sovereign citizens who are defending themselves against murder conspiracy and weapons charges will be apt to declare they are being railroaded by a corrupt system intent on shutting them up at any cost.
Outside the courtroom, in coffee houses, business offices, and home dinner tables, tempers remain agitated over the way federal prosecutors and FBI agents handled their failed corruption case against the late U.S. Sen. Ted Stevens, a huge embarrassment for the Justice Department and a source of ongoing consternation. The implosion of the high-profile case served to further galvanize those who are distrustful of and disappointed in the justice system, including U.S Sen. Lisa Murkowski. Recent findings by a special prosecutor assigned to get to the bottom of what went wrong chronicled sustained mishandling of evidence and failure to comply with trial rules, a conclusion that further inflamed unhappy public sentiment.
According to recently-filed court documents, Tim Dooley, Barney's attorney, has apparently given notice to prosecutors that he may call on Whitehurst, depending on whether prosecutors hand over evidence Dooley has previously asked for. A defense attorney demanding evidence is not enough to require prosecutors to hand it over, and prosecutors in this case have fought to keep what they believe is either irrelevant or overly sensitive information private (like the secret devices used to record audio and video).
Dooley has said that Whitehurst would be used to refute the government's assertion that grenade shells, gun powder and a welding compound can be combined to form a destructive device.
With just two weeks before trial, prosecutors are displeased to only now learn of Whitehurst's potential involvement in the case. In fact, they have said they may move to block his ability to jump in, citing federal court rules that prevent an attorney from breaking the rules -- in this case, following a timeline to give notice about witnesses -- simply to gain a tactical advantage.
Meanwhile, prosecutors have voluntarily come forward to alert the court to a potential snag with secret audio and video recordings gathered during the investigation.
Militia infiltrator and government witness Gerald Olson was a well-wired man. He wore hidden cameras and microphones on his person, and allowed the government to also hide them in his car.
But the government has discovered that in two very brief moments, recordings were made while Olson was out of range, a potential problem since the recording equipment would then be "spying" on people who may have thought they could speak in confidence if Olson was out of ear shot.
Olson spent time driving militia members around in his truck. On the day of the arrests, he stepped out of his truck to go get weapons -- pistols, silencers and grenades -- various militia members, including Cox and Barney, had agreed to purchase. All of the defendants made statements captured by investigators in the 30 or 40 seconds Olson was outside the vehicle.
On Monday, prosecutors told the court they will take out the portion of audio captured while Olson was outside. But -- they want to keep the companion video, taken simultaneously, in. The defendants, who were sitting inside someone else's vehicle and who were there to conduct illegal arms sales did not have a reasonable expectation of privacy, prosecutor Steven Skrocki wrote to the court in his motion about the recordings.
The trial against Schaeffer Cox, Coleman Barney and Lonnie Vernon begins in two weeks.
Contact Jill Burke at jill(at)alaskadispatch.com