“I’m going to read for a few minutes.”
“What, the file?”
He nodded.
“Not too long,” she said, and rolled over.
He knew about the crime in general. What he didn’t know until he read the file were the specifics. He read over the incidentreports filed by the national park rangers, as well as clippingsfrom the
West Yellowstone News
, the
Idaho Falls Post-Register
, the
Bozeman Chronicle
, the
Billings Gazette
, the
Casper Star-Tribune
, and a long feature in the
Wall Street Journal
that summarized them all. It was the worst crime ever committedin Yellowstone National Park. But that was only half the story.
On July 21, a West Yellowstone lawyer named Clay McCann parked his car at the Bechler River Ranger Station in the extremesouthwest corner of the park, checked in with the ranger at the desk of the visitor center, and hiked in along the trail that followed, and eventually crossed, Boundary Creek. Later that morning, he returned to the center and confessed to shooting and killing four people in a backcountry campsite.
Investigating rangers confirmed the crime.
The victims were found near the bank of Robinson Lake, two miles from the ranger station. All were pronounced dead at the scene, although the bodies were airlifted out to the Idaho Falls hospital.
Jim McCaleb, twenty-six, was a waiter in the Old Faithful Inn and a five-year employee of the park’s concessionaire, Zephyr Corporation. Zephyr ran all the facilities and attractions in the park under contract to the government. McCaleb was shot four times in the torso and once in the back of the head with a large-caliber handgun. His body was found half-in and half-out of a dome tent.
Claudia Wade, twenty-four, managed the laundry facility near Lake Lodge. Wade’s body was in the same tent as Mc-Caleb’s. There were two shotgun blasts to her back, and she’d been shot once in the head with a handgun.
Caitlyn Williams, twenty-six, was a horse wrangler at Rooseveltfor Zephyr. Williams’s body was sprawled over the campfire pit with a shotgun blast to her back and a single large-caliberwound to her head.
Rick Hoening, twenty-five, was a desk clerk at the Old FaithfulInn. His body was located twenty yards from the others in the campsite, near the trail. Investigators speculated that he’d been the first to encounter the gunman and the first one killed. He’d been shot three times with a handgun, twice with a shotgun, and, like the others, had an additional single shot to the head.
Wade, Williams, and Hoening were also Zephyr Corp. employees.All four victims listed their original home addresses in St. Paul, Minnesota—the Gopher State—although they lived in Gardiner, Montana, or within the park at the time of their murders.The forensic pathologist in Idaho Falls noted that while each had sustained enough wounds to be fatal, the single shots to the head were likely administered after the initial confrontation.
They were the coup de grâce, fired close enough to leave powder burns and guarantee that no one survived the initial assault.
Joe thought,
The Gopher State Five
. But there were only four of them. He read on.
The scene was littered with .45 brass and fired twelve-gauge shotgun shells. The newspaper articles called the incident “overkill,” a “senseless slaughter” with “the fury of a crime of passion.” One of the rangers who found the bodies was quoted as saying, “He killed them and then he killed them again for good measure. He was a mad dog. There is nothing at the scene to suggest that the guy [McCann] didn’t just lose it out there.”
There was no question then, and no question now, who had killed them.
Clay McCann willingly handed over two SIG-Sauer P220 .45 ACP semiautomatic handguns and a Browning BT-99 Micro twelve-gauge shotgun to the park rangers. Then he shocked the rangers by asking for them back. They refused.
When asked why he did it, McCann made the statement that became infamous, the words that became the subhead of every story written about the slaughter at the time:
“I did it because they made fun of me, and because I could.”
At the time, no one imagined the possibility that Clay McCannwould be released from jail three months later to return to his home and law practice.
That he’d committed the perfect crime.
4
“Explain this to me again,” nate romanowski said to Joe over coffee in the small dining room of Alisha Whiteplume’s home on the Wind River Indian reservation.
“It’s about jurisdiction and venue, and what they call ‘vicinage,’” Joe said. “It’s a hidden loophole in the federal law. Or at least it was hidden until recently.”
A large-scale map of Yellowstone was spread out on the table between them with cups of coffee and the pot holding down the edges.
“Yellowstone was established as the first national park in the world in 1872 by an act of Congress. The boundaries were drawn before Wyoming, Idaho, and Montana were granted statehood,” Joe said, pointing at the strips of national park land that extended beyond the square border of Wyoming—which contained more than ninety-two percent of the park—north into Montana and west into Idaho. “About two hundred and sixty square miles of Yellowstone is in Montana, and about fifty in Idaho. The law in Yellowstone is federal law, not state law. If a crime is committed there, the perp is bound over under federal statutes and tried eitherinside the park at a courthouse in Mammoth Hot Springs, or sent to federal district court in Cheyenne. The states have no jurisdictionat all.”
Nate nodded while he traced the boundary of the park with his finger on the map. He was tall with wide shoulders and a blond ponytail bound with a falconer’s leather jess. He had clear ice-blue eyes and a knife-blade nose set between twin shelves of cheekbones. A long scar he received two years beforefrom a surgical knife ran down the side of his face from his scalp to his jawbone.
Joe continued. “Because Congress wanted to keep Yellowstoneall in one judicial district, it overlaps a little bit into two other states, these strips of Montana and Idaho. Got that?”
“Got it,” Nate said, a little impatiently.
“That’s where the problem comes in with Clay McCann and the murders,” Joe said. He’d read most of the file the night beforeand finished it before breakfast that morning before taking the girls to school and driving to the reservation. “Article Three of the Constitution says the accused is entitled to a ‘local trial,’ meaning a venue in the state, and a ‘jury trial’ but doesn’t say where the jury has to come from. The Sixth Amendment of the Constitution specifies a ‘local jury trial’—that’s the vicinage. That means the jury would have to come from the state— Idaho—and the district—Wyoming—where the crime took place.”
Nate stopped his finger on the thin strip of Idaho on the map. Boundary Creek separated Wyoming and Idaho within the park. “You mean the jury would have to come from here? Within these fifty miles?”
“Right. Except no one lives there. Not one person has a residencein that strip of the national park. So no jury can be drawn from a population of zero.”
“Shit,” Nate said.
“Clay McCann declined to be tried in Cheyenne, which was his right to decide. He demanded to be tried where the crime was committed, by a jury from the state and district, as the Constitutionstates. The federal prosecutors in charge of the case couldn’t get around the loophole in the law, and still can’t. It was never an issue before, and there is no precedent to bypass it. The only thing that can be done is to change the district or change the Constitution, and I guess there is going to be legislation to do that. But even if it’s passed . . .”
Nate finished for Joe, “Clay McCann still walks. Because they can’t create a law after the fact and then go back on the guy.”
Joe nodded.
“The son of a bitch got away with it,” Nate said. “Did he know what he was doing?”
Joe said, “That’s not clear. He claims the campers insulted him and he lost his cool. He said in the deposition he’d never seen or heard of the people he killed before he killed them.”
Nate shook his head slowly. “There has to be something to get him on. I mean, I couldn’t just grab you right now and drive you up to the Idaho part of the park and put a bullet in your head, can I?”
“You better not try,” Joe said, smiling. “And it wouldn’t work for you. That would be kidnapping and you could be tried and convicted of that in Wyoming because you planned and carriedout a major felony on your way to commit the murder.”
“So McCann’s defense is that he didn’t know the victims were there and hadn’t planned to kill them when he went on his little hike, so what happened . . . happened. He just went on a little day hike armed to the teeth?”
Joe said, “That’s what he claimed in his deposition. And that’s what he said to the court in Yellowstone, where he served as his own lawyer.”
“So the murder of four people isn’t a crime?” Nate asked with a mixture of disgust and, Joe noted, a hint of admiration.
Joe said, “Oh, it’s a crime. But it’s a crime that can’t be tried in any court because no one has the power to give him a proper trial. The only thing they can legitimately get him on is possessingfirearms in a national park, and they booked him for that and he was tried and convicted of it. But that’s just a Class B misdemeanor, no more than six months or a fine of five thousanddollars, or both. So there’s no jury trial and the Sixth Amendment doesn’t apply.”
“Jesus.”
“They even tried to get him on a federal statute called ProjectSafe Neighborhoods that was set up to really nail guys who have a gun on federal property. That would have at least sent him to prison for ten years. But to qualify for that”—Joe dug a sheet out of the file and read from it—“McCann had to be a felon, a drug user, an illegal alien, under a restraining order, a fugitive, dishonorably discharged, or committed to a mental institution.” Joe lowered the sheet and looked up at Nate. “McCann didn’t qualify for any of those. Hell, he’s a lawyer with no past criminal record at all.”
Nate drained his cup and leaned back in his chair.
“I have a feeling he knew about the loophole,” Nate said. “Maybe he just decided to go hunting.”
Joe shrugged. “Could be. Or maybe there’s some kind of connectionwith the victims, but nobody’s been able to establish one. I want to get more information on him, and I want to talk to him.”
Nate said, “I ought to just drive up there and blow his head off. Everybody would be happy. Hell, he’s a murderer
and
a lawyer.”
Joe smiled grimly. “That’s not why I’m here.”
“So, why are you here?” Nate asked, knowing the answer.
“I want to ask you if you’ll help me out with this one.”
“You didn’t even need to ask.”
Joe hesitated before he said, “I wanted to see if you were still on your game.”
“Meaning what?” Nate asked, offended.
Joe sat back and gestured around Alisha Whiteplume’s kitchen. “Meaning
this
.”
Nate was in love.
Alisha Whiteplume taught third grade and coached at the high school on the reservation. She had a master’s degree in electrical engineering and a minor in American history and had married a white golf pro she met in college. After working in Denver for six years and watching her marriage fade away as the golf pro toured and strayed, she divorced him and returned to the reservation to teach, saying she felt an obligation to give something back to her people. Nate met her while he was scoutingfor a lek of sage chickens for his falcons to hunt. When he first saw her she was on a long walk by herself through the knee-high sagebrush in the breaklands. She walked with purpose,talking to herself and gesticulating with her hands. She had no idea he was there. When he drove up she looked directly at him with surprise. Realizing how far she had come from the res, she asked him for a ride back to her house. He invited her to climb into his Jeep, and while he drove her home she told him she liked the idea of being back but was having trouble with reentry.
“How can you find balance in a place where the same boys who participate in a sundance where they seek a vision and pierce themselves are also obsessed with Grand Theft Auto on PlayStation Two?” she asked. Nate had no answer to that.
She said her struggle was made worse when her brother Bob intimated that he always knew she would come back since everybody did when they found out they couldn’t hack it on the outside. She told Nate that during the walk she had been arguingwith herself about returning, weighing the frustration of day-to-day life on the reservation and dealing with Bobby against her desire to teach the children of her friends, relatives, and tribal members. Later, Nate showed her his birds and invitedher on a hunt. She went along and said she appreciated the combination of grace and savagery of falconry, and saw the same elements in him. He took it as a compliment. They went back to her house that night. That was three months ago. Now he spent at least three nights a week there, and it was Alisha’s house where Joe located Nate.
Nate was still wanted for questioning by the FBI but thus far had eluded them. Apparently, the FBI had its hands full with more pressing matters. It had been months since Special Agent Tony Portenson had been in the area asking Joe if he’d seen his friend lately.
“What, you think I’ve been domesticated?” Nate asked, incredulous.“You think I’ve lost my edge?”
Joe didn’t answer. He had noticed how Nate’s middle had gone soft as a result of Alisha’s good cooking. Before Alisha, Nate had survived at his stone house on the banks of the river by hacking off cuts of antelope that hung in the meat cellar and grilling the steaks. Now, he sat down to real meals at least twice a day.
“I didn’t say that.”
“I’ll never go back on my word,” Nate said, in reference to the vow he’d made to help Joe when he asked or when he simplyneeded it whether or not he asked. Nate had made the promiseyears before when Joe proved his innocence after Nate had been charged with a murder he didn’t commit.