Free Fire

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.