The Definitive Piece (So Far)
Are you sick of the same rehashes of what you already know? Dan Savage linked to it a few minutes ago, but I’m linking to it again: Tom Francis and Megan Seling’s moment-by-moment account of the party, beginning at 3:30 a.m. and going all the way up to the shootings, including room-by-room accounts of the shooter’s movements, where people hid, the music that was playing, etc. The piece is based on exclusive interviews. And toward the end is an incredible image of the survivors responding to the media cameras their intelligence and presence of mind, given the circumstances, is incredible.
Story with reference to attorney Gary Doran who is listed on police report as the attorney who held Ryan Huff's guns after Huff's Whitefish arrest for shooting up a moose sculpture.
Vol. 17 No. 12 Issue Date 3/23/2006
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Unlucky Seven
by Dan Laidman
Photos by Chad Harder
Tracy Brockway
As media attention subsides over Project Seven, what lessons can be learned from high-profile extremists?
Just when you thought Montana’s reputation had started to turn around, along came Project Seven.
Whitefish Police Chief Bill Dial just got back from a law enforcement conference in Colorado where he says he felt like a curiosity.
“People from New York and New Jersey were saying, ‘You live up there where all the militia guys are,’” Dial says.
Likewise, Flathead County Attorney Thomas Van Esch went to the National District Attorneys Association meeting in California last week and had a similar experience.
“People from all over the country had heard about the case,” Van Esch says. “They were concerned about my security.”
The case in question involves the arrest of Dave Burgert and the exposure of the “Project Seven” militia group. Van Esch’s colleagues were concerned because the prosecutor’s name was on a list of alleged Project Seven targets. The spectacular plot uncovered by authorities—a plan to assassinate local officials in order to draw in the U.S. military and spark a militia holy war—drew considerable national media attention. Cable news channels broadcast the story across the country and nearly every national newspaper ran a piece on Project Seven. In one day alone, Flathead County Sheriff Jim Dupont received more than 300 calls from media outlets.
In a flash it was like 1996 all over again. That was the year in which antigovernment misanthropes holed up on both sides of the state gave Montana an albatross to wear as a hotbed of violent extremists. In western Montana there was Ted Kaczynski’s cabin in the woods of Lincoln where for years he prepared lethal mail bombs. In eastern Montana was the ranch in Jordan where white supremacist, tax-protesting Freemen maintained one of the longest standoffs with federal agents in U.S. history.
The early ’90s had already given us Ruby Ridge and Waco, then the Oklahoma City bombing of 1995, which deflated any hopes among militant groups of gaining public sympathy as a populist movement. When the Unabomber arrest and the Freemen standoff took place at roughly the same time, it seemed to the rest of the nation that Montana had become the last refuge for radical fringe-dwellers.
Last month’s national media coverage of Project Seven reflected a perverse nostalgia for 1996, but one that treated Montana extremism like an anachronistic novelty. There was not the same sense of relevance and impending danger to this story that accompanied the media coverage of the Freemen and the Unabomber. So many of the Project Seven stories had an undertone of mock-apology. Out of the corner of their mouths they seemed to be saying, “Sorry we have to go through this with you again, Montana!”
Wink! An article in The New York Times even compared Project Seven’s plan to a Monty Python skit. Clearly, Sept. 11 had overshadowed the potential risks of home-grown terror to the point that the mere thought of it elicited quaint amusement.
Or maybe people just have short memories.
In any case, now that most of the national media attention has receded, only the case itself remains, as do the lingering effects of all the media coverage. For police and prosecutors alike, the challenge they now face is different from what their peers experienced in 1996. Montana’s local officials dealt with the early stages of the Unabomber and Freemen cases, but then those cases passed into the hands of the federal government. Although the FBI and the Bureau of Alcohol, Tobacco and Firearms (ATF) have been called in to work on the Project Seven case, and federal charges may still be filed, as the case goes through the courts most of the work will remain local. While the defense claims that the case has already been tried in the press, the prosecution will also have to deal with the nuts and bolts of a crime in which they themselves were the alleged targets.
Look beyond the cliché of Montana extremism and there is a complex story about one man’s struggles with authority that may have crossed the line into a lethal conspiracy. Sorting it out is now the task of a group of police, prosecutors, and defense attorneys, whose jobs have been complicated by both the publicity and Montana’s lingering image.
Winter of Discontent
There was friction between law enforcement and Dave Burgert ever since the 38-year-old manager of a sports rental business and former logger moved to Kalispell.
The bad blood allegedly began when Sheriff Dupont would not let Burgert join the county search-and-rescue team because of his past criminal record in other states.
“Mr. Burgert has a personal vendetta against us and against me,” says Dupont. “We’ve been dealing with the individual for years. He’s been a constant bother for us, but we didn’t suspect it would come to this point.”
In January of 2001, a friend of Burgert’s led police on a low-speed chase that ended at Burgert’s house. An altercation between Burgert and a sheriff’s deputy allegedly ensued and Burgert was charged with assault. While awaiting trial in that case, Burgert became involved in a November 2001 incident that set in motion the events leading up to his arrest in February.
On Nov. 27, officers came to the intersection of Sixth Street and Main in Kalispell and stopped a car containing two men: Missoula attorney Matthew Sisler and a process server from Kalispell named David Williams. Sisler and Williams had been following another car in an attempt to locate a woman and serve her papers for a lawsuit. Police had been called by the driver of the car, who said he was being followed and “stalked.”
While police sorted through the facts with Sisler and Williams, Burgert, who had been at the intersection in another vehicle, approached the scene. Sisler, who was Burgert’s attorney in his assault case, had apparently called Burgert in to help him serve the papers.
The police present recognized Burgert—one of them was Deputy Tom Snyder, the officer Burgert had been accused of assaulting in January—and told him to leave the scene.
Accounts of the ensuing confrontation differ, but Burgert ended up being pepper sprayed and arrested. Police claim he had obstructed an officer and resisted arrest.
Burgert’s supporters circulated on the Internet an account he wrote of his arrest claiming that police had assaulted and tortured him. The account was posted on some Web sites for militias and right-wing patriot groups, with whom Burgert has some tenuous connections. At a standoff over water access in Klamath Falls, Ore. last year that became a cause célèbre of the militia movement, Burgert identified himself in a media interview as a member of the Militia of Montana. Sisler, his former attorney who has since been disbarred for his conduct in another case, had also represented Militia of Montana leader John Trochmann.
In the account of his arrest, Burgert wrote that he was pepper sprayed without provocation and that any resistance was the result of being incapacitated by the chemical. He went on to dismiss the January assault case as bogus, saying his rights had been violated and a conspiracy existed between “out-of-control cops and judges.”
The case took another odd turn when, while awaiting a hearing on the charges, Burgert suddenly disappeared. His wife filed a missing person report on Jan. 9, saying that Burgert had gone fishing the previous day and she had not heard from him since. Sheriff’s deputies found Burgert’s abandoned Dodge pickup parked near the Presentine Bar fishing access in Kalispell.
While word traveled among Burgert’s friends and in some patriot circles that he had been killed by rogue cops, authorities began to suspect that he had faked his own death. Nearly a month later, police got a lead when they spoke with a teenaged associate of Burgert’s who came to them after claiming that Burgert had beaten him up.
According to court records, the boy told police that Burgert had not disappeared, but was staying at a campsite north of Whitefish and at the home of a lady friend, Tracy Brockway.
The teenager “was frightened for his life and feared retribution for talking with Law Enforcement,” court records reveal. “He stated that as one of Burgert’s group of associates he had taken an oath, concerning contact with Law Enforcement Officers. He said they were to deny any wrongdoing, refuse to say anything and accuse Law Enforcement of having committed a crime. He said the simple fact that he was speaking with Law Enforcement openly meant he would be considered guilty of an act of treason and he might be killed.”
It was the authorities’ first indication that Burgert might be in charge of some sort of organized group. The teenaged associate went on to describe Burgert’s large weapons cache and a plan to murder police and judges throughout the Flathead Valley. The plot allegedly involved importing militia members to Montana from all around the country.
Police started surveillance of Brockway’s house and soon located Burgert. On Feb. 8, after a day-long standoff in the woods west of Kalispell that involved almost 50 police officers, Dave Burgert and Tracy Brockway were both arrested. A search of Brockway’s house turned up an enormous collection of weapons, ammunition, survival gear, and lists of local officials. In addition to firearms, police seized a computer, gun manuals, a police scanner, two-way radios, first aid kits, camouflage clothes, military surplus food and blankets, a gas mask, a trip wire, smoke grenades, and numerous other items. Police also took some non-camouflage clothing, including a black shirt and a black jacket that had “Montana Militia” and the number “7” written in yellow.
According to police, Burgert had formed the group called Project Seven, so named after the code for Flathead County’s license plates. Although patriot groups in other counties had used the same style “Project” names, they were quick to distance themselves from Burgert.
Burgert was charged with bail jumping following the standoff. State and federal weapons, explosives, and conspiracy charges remain possible. Brockway, whom police say helped gather information on alleged targets through her job as a custodian at the Whitefish police department, was charged with felony obstruction of justice for harboring Burgert while he was a fugitive.
***“I don’t think they have any kind of evidence of a specific conspiracy to harm anyone, other than this young 17-year-old kid’s statements,” says Gary Doran***, Brockway’s lawyer. “A kid that got in a fight with Burgert and then ran off and made some statements that I assume were made in anger to the police officer, so I’m not sure how reliable that is.”
Doran acknowledges that Burgert may have had a vendetta against the police, but he doubts the evidence is there to connect it to any intent to kill.
“I think he felt that he was treated unfairly and he may have voiced his anger at the treatment he thought he was receiving,” Doran says. “But saying ‘I wish someone were dead’ and trying to kill them, those statements have a lot of difference in their import and how they were relayed by this young fellow to the police department may not be accurate.”
Brockway’s involvement is very limited, Doran says. Any illegal firearms were probably related to Burgert, he says, and as for her role in the alleged conspiracy, “This is an assumption that has been made simply because she cleaned the Whitefish police department. I don’t know of any evidence they have beyond this pure assumption. She has been interviewed by the FBI and she has denied that.”
The defense challenge
The potential conspiracy charges are the meat of the case. This is where the sensational charges of an assassination plot that drew in all the national media would be weighed by the courts. While the defense attorneys preemptively attack such charges as weak, University of Montana Law Professor Jeffrey Renz says that in general, they tend to be rather easy to prove.
“I think it’s particularly easy to convict on conspiracy,” Renz says. “That’s why the federal government loves the conspiracy charge. They typically do conspiracy to sell drugs instead of selling drugs. All you need for conspiracy is an agreement to commit a crime and one act in furtherance of the agreement.”
For example, he says, one man says to another that they should go knock over a grocery store and the other man agrees that would be a good idea. They “go to the local sporting goods store and buy a couple ski masks, and the crime is completed,” he says.
Burgert, who pleaded not guilty to the bail jumping charges two weeks ago (a trial has been set for July), has now been advised by his attorneys not to speak to the press. Last month, though, in an interview with the Daily Interlake in Kalispell, Burgert denied there was a plot to kill anyone. He did keep names of officials, he said, but for a legitimate purpose that he say will be revealed at trial. Project Seven only existed, Burgert told the Interlake, to help authorities in the event of a foreign invasion.
Don Vernay, one of Burgert’s attorneys, is no stranger to high profile Montana cases. He just returned to his home in the Flathead Valley after defending Nathaniel Bar-Jonah, the Great Falls man convicted of assaulting two young boys and accused of killing another. The Bar-Jonah case, with its sensational charges of murder, sexual abuse of children and cannibalism, also received a barrage of pre-trial media coverage. Vernay says the same thing has happened with the Burgert case.
“I went through the exact same deal with Bar-Jonah,” Vernay says. “Here I am again and lo and behold, it’s the same crap. Law enforcement is out there howling, and where are we going to find a jury for this kid?”
Mark Sullivan, the public defender who has been representing Burgert for his existing felony charges, fears the same problems. “The public has a right to know, but the press coverage at this level is going to make it really difficult to find a jury anywhere close to here,” Sullivan says.
Part of the problem, he says, is that law enforcement and defense attorneys have a different set of ethical obligations. Whereas police have a need to keep the public informed, defense attorneys are ethically bound to restrict information that could pollute a jury’s view of a case. In high profile cases, Sullivan says, the public ends up coming to its own conclusions based on a jumble of good and bad information.
“For example, in the O.J. case, the only 12 people who saw and heard all the evidence were the 12 jurors,” Sullivan says. “And they saw it differently than the press did.”
While Burgert is not quite the next O.J., the case is a microcosm of how difficult it can be balancing justice and the free flow of information.
“It’s been in The New York Times for God’s sake! Holy cow!” says Vernay.
Combine a legal system founded on the presumption of innocence and a society that values a free press and transparency in law enforcement and it makes for an inherent tension. It is something defense lawyers just have to deal with on a case-by-case basis, according to Professor Renz.
“The question isn’t whether there’s information about the case,” says Renz, who is the director of UM’s Criminal Defense Clinic. “The question is whether there’s been information about the case that’s been so widespread that it would affect the jury one way or another, either pro-prosecution or pro-defendant.”
One defense tactic for dealing with this include taking polls of a community, Renz says.
“Typically what the defense lawyer will do is do a survey of the population up there and ask the kinds of questions that would demonstrate bias across the population,” says Renz. The next step, if bias is found, would be to ask for a change of venue.
Vernay conducted such polls of the community prior to the Bar-Jonah trial.
“I don’t even know we’ll need to do the polling in this case,” Vernay says of the Burgert case. “I may be able to get a venue change without it. Those are all issues we’ll have to address.”
Sullivan and Vernay both decline to go into detail about their strategy or about the facts of the case, saying they have not examined all the evidence yet. Vernay will say, however, that he thinks the charges against Burgert have been overblown.
“My feeling is, half as an observer, obviously if he was going to shoot he would have shot that day at the cops.”
Dave Burgert
A milieu of extremism
At the Flathead County Sheriff’s office, Dupont says some Project Seven related work is still going on, but mostly the case has been moved up to the FBI and the ATF. Things have pretty much returned to normal, he says, except for the extra work created by a backlog of other cases. Still, he finds himself dealing with media inquiries, and says he is displeased with most of the news coverage.
“The national media has made it look like half of Flathead County is in the militia, and that’s just not true,” Dupont says. “It’s a bum rap for Montana. Very few people make us all who live here look like cronies.”
Although there are probably still some people involved in the plot who have yet to be charged, Dupont predicts it is probably a small number. Any anti-government radicals in Flathead County are vastly outnumbered by law-abiding citizens, he says.
Chief Dial in Whitefish says he dealt with extremist militia groups back in Illinois, where he worked before moving to Montana, which shows that antigovernment agitation is not a uniquely Montana phenomenon. Although some of his officers were among the list of alleged targets, Dial says the department is going about its business and Project Seven has not been an enduring concern.
“It’s something to be taken seriously, but we’re not spending a lot of time on it,” Dial says. “We’re always cautious of what we do, but we’re not putting any extra time into worrying about the militia. We know they’re there and if we have to we deal with it appropriately.” If the experience of Dupont and Dial’s peers—both veterans of the 1996 Montana media frenzy—is any indication, Project Seven may go away after all, becoming just one more in a long string of cases.
“Everything pretty well went back to normal around here,” says Charles Phipps, the Garfield County Sheriff who took part in the Freemen standoff. “It was just a lot of people around. We didn’t have any big problems with the press or anything. A lot of people rented out spare homes and lodges and things like that, they made a little money out of the deal.”
Sam McCormack, now the Lewis and Clark County Sheriff, was an investigator with his department during the Unabomber arrest.
That, too, was a case that came and went without having a profound effect on local law enforcement, he says. However, it did make officials more aware of the threats always lurking around them. “Each incident that occurs, especially in that fashion, makes us more aware,” McCormack says. “It puts us on more of an alert and makes us pay more day-to-day attention to what goes on around us. We weren’t even aware of this thing until it was going down.”
Ultimately, whatever might have happened with Project Seven, officials are glad things never had a chance to go down. Although Dupont suggests the case has been overblown in the media, he still insists that the group posed a real threat.
“I doubt seriously this plan would ever have been taken off,” he says. “Some people could have gotten hurt. I’m glad we popped it when we did to prevent that from happening.”
Van Esch says the whole affair is amazing because not a single shot was fired. While he, too, says it has been overblown and that Project Seven is far from a formidable outfit, Van Esch points out that even a small group can pose a danger and should be held accountable. He tells a story from the conference in California he just returned from. While discussing extremist groups, someone suggested that most of those individuals were all talk and no action. In response, a couple of the attorneys who were present got up and shared their personal experience of the damage a lone extremist can do. They were prosecutors from the Oklahoma City bombing.
“America has changed. There’s an uneasiness now,” Van Esch says. “Nobody, I think, wants to stifle dissent, no matter how weird it is. I’ll defend them in their weird beliefs. It’s my sworn duty to uphold the Constitution, but there’s a difference with espousing violence and organizing to do so.”
Recently, Flathead officials met to discuss security upgrades to the county courthouse and justice building.
“We were working on it before Sept. 11,” Van Esch says. “We worked harder after Sept. 11, and even harder after January.”
The threats are serious, Van Esch says. They just aren’t as sinister and interconnected as people make them out to be, especially when they go off about the Treasure State and its malcontents.
“All of this is put into a milieu of Montana extremism,” Van Esch says. At the conference people wanted to talk about Project Seven and connections to the Unabomber and the Freemen. “They somehow think all this stuff is related. They’re not that well organized, I can tell you that.”
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