September 02, 2010 News » Cover Story

A nagging mystery 

A war hero and best-selling author zeroes in on a missing-man case in Fremont County

CAÑON CITY — The sun beats down, but to the west, storm clouds threaten the rugged hills. The homes scattered among them seem farther from town than the actual 30-mile drive, and at least a mile separates them from one another — far enough that neighbors might be hard-pressed to hear a gun go off.

This is where Lynn Fish lives, six years after her husband Gene disappeared at age 54. A handsome, if somewhat arrogant, retired federal agent who stayed in contact with family and friends, Gene may have been looking to divorce his wife of seven years.

But suddenly he vanished.

Lynn says he simply drove away, never to be seen or heard from again. That was in June 2004. For three years, Gene's parents bankrolled a private investigation, but they've since died. Interest in the case has faded, and a Fremont County sheriff's investigation hasn't produced any breakthroughs.

Now, the case has reeled in a new curiosity-seeker who's not your average armchair detective. In his living room north of this prison town, Anthony Herbert has taken to methodically scouring the strange story of Gene Fish. Herbert's not looking for fame or fortune. He's had both during his 80 years: most decorated Korean War soldier, forensic psychologist, bestselling author, winner of a landmark Supreme Court case against CBS' 60 Minutes.

Those credentials underscore life's doctrine according to Herbert, which is to do what's right and never give up — lessons he learned from his coal-miner father.

Still, citizen detectives don't often solve cases. Danny Smith, a private eye in Boise, Idaho, who spent 21 years as a Los Angeles County Sheriff's Department homicide detective, says he's never known it to happen. Even retired police investigators who work on cold-case squads can have trouble getting their findings into to court.

The Gene Fish files could very well wind up among the dusty stacks of other unsolved cases. But first, they were destined to bait at least one imagination. Who, after all, could resist delving into a mystery complete with unnamed illegitimate children, "possible clandestine grave[s]" and no eyewitnesses, except the abandoned wife?

Intrigue lingers

Several news outlets have reported on Gene Fish's disappearance. I first wrote about it in mid-2005 at the behest of seasoned homicide investigators Dave Spencer and the late Lou Smit of Colorado Springs. They'd been hired by Gene's father, Bill Fish, of Fultonville, N.Y., after he became frustrated that local authorities were ignoring the case.

Spencer and Smit wanted to stir up new information, if it was out there, and force the Fremont County Sheriff's Office to take the matter seriously. Spencer chased potential witnesses to North Carolina and interviewed people from Florida to Utah.

"Bill and I spoke almost every day," Spencer says. "He didn't trust the Internet. It was easier for him to type out a letter and fax it to me. It was daily. He would write long letters."

He estimates Bill Fish spent upwards of $100,000 on the case. Bill and his wife, Agnes, Gene's mother, even filed a wrongful death lawsuit in May 2007 against Lynn Fish and a former neighbor, Johnnie Ray Florez, alleging Lynn killed Gene and Florez helped her bury the body. Florez, who the lawsuit said had worked for Lynn at Gene's house, made statements while working in North Carolina and Virginia that he could bury a body with a backhoe "and no one would ever find it," the lawsuit states.

"I really do feel he played some part," Spencer says of Florez.

But the lawsuit was dismissed after Bill died on May 19, 2007. His wife, who suffered from dementia, passed away Oct. 8, 2009. And that seemed to be the end of the search for Gene Fish.

Then, in January 2010, Herbert heard about it in idle conversation with a former co-worker at a prison in Cañon City. He instantly felt an affinity with Gene, a fellow Easterner and military member who, like him, had been living on a government pension.

After reading news articles about the case, Herbert started poking around. One thing led to another, and he was hooked. He says he spends 20 hours a week investigating Fish's disappearance and has interviewed about 40 people nationwide, including Gene's former boss at a government agency.

Herbert also discovered the case hasn't been shelved, as he first thought, because people he interviewed said they'd talked with authorities within the last year or two.

Fremont County Sheriff Jim Beicker won't discuss the case but says in an e-mail, "We will continue to work the Fish case until we have resolution to his disappearance." Eleventh Judicial District prosecutor Thom LeDoux says he knows about the case but hasn't been brought any paperwork by the Sheriff's Office that might lead to a charge.

Regardless, the facts have led Herbert to the same conclusion reached by Smit, Spencer and, apparently, the sheriff's investigators: Lynn Fish's story just doesn't add up.

Suspicions arise

To understand why it's hard to believe that he simply fled to a new, unfettered life, one must understand a few things about Gene Fish.

An only child, he graduated from Siena College in New York, served in the Air Force and later with the Naval Criminal Investigative Service and the Nuclear Regulatory Commission before retiring in 2002 or 2003. He called his mother every Sunday. His relationship with his father was at times rocky, his friends and relatives say, but he had no trouble accepting thousands of dollars from his father, and he stood to inherit a small fortune.

Friends and co-workers describe Gene as something of a ladies' man who lived with several women over the course of his life, including one with whom he fathered, but never supported, a daughter. Herbert says Gene might also have a son he never acknowledged.

Gene married Lynn on Feb. 18, 1997, in Las Vegas, after four years together. The couple moved around the country for Gene's job, buying and selling homes along the way, before settling in 2003 on 35 acres west of Cañon City in the remote Tallahassee area. The property, with a modular home, lies at the end of County Road 21, off Colorado Highway 9, miles from a gated entrance.

Events leading up to Gene's disappearance are spelled out in a 13-page search warrant affidavit filed in September 2006 by Fremont County sheriff's detective Robert Dodd. The affidavit notes several discrepancies in Lynn's version of what happened.

The affidavit says that in mid-2003, when the modular house was being erected, Gene complained constantly to work crews, was arrogant and obnoxious and threatened physical violence if the work wasn't done to his satisfaction, according to Terry Napolitan, a worker at the site. Several workers threatened to leave the job because of Gene, he said.

In late 2003, Lynn called Napolitan crying and saying Gene beat her up and knocked out a tooth. She didn't call the sheriff, she told him, because she didn't want to be stuck with the house if Gene was arrested. In January 2004, Lynn called the sheriff's office to report a shoving incident between her and Gene, but didn't file a report. When officers spoke with Gene, he said, "The problems were taken care of." In sworn statements later, cited in the affidavit, Lynn said Gene never harmed her, though she had previously reported abuse to others, including Bill Fish.

During early June, Gene told Lynn he would finish work on the basement rooms and then leave for Mexico or South America, she explained to detectives. He would go there, she said, because he had worked there as a federal agent and had told her he "had been trained how to disappear." She also said Gene wasn't happy and "often" talked of leaving her, saying she would "end up like the rest," referring to other women he'd left.

On June 20, 2004, Father's Day, Gene called his dad. On June 29, according to the affidavit, Bill Fish got another call, this time from Lynn, who said Gene had taken off on June 20 with plans to leave the country. She said Gene told her he'd send his red Ford F-150 pickup truck back to her, and that the truck had reappeared in the driveway a couple of days later.

"The claim that the truck left and returned to the property at all is suspicious," Dodd wrote in the affidavit. "If Gene Fish returned the truck to the property, he would had to have had another person assist him by driving him away, or he would have had to walk out of the remote T-Bar Ranch subdivision."

The affidavit says Lynn told Bill Fish on July 2, 2004, that the truck's CB radio had been smashed. Sheriff's detectives, during their Sept. 2, 2004, visit, observed the truck had an exterior CB antenna, but Lynn told them the truck never contained a CB radio.

She also told detectives that day that the truck had only the ignition key inside when it reappeared; other keys were missing. During a June 16, 2005, interview with sheriff's investigators, says the affidavit, she "related there were no keys at all inside," and that she'd moved the truck with a spare key.

When Lynn called Bill Fish on July 2, she said Gene left June 21, not June 20, the affidavit says. She also gave varying accounts regarding how much money Gene took with him, from $8,500 to $20,000.

Lynn claimed Gene smashed his computer, cut up his credit cards and left his cell phone behind. She said she disposed of the computer in the community dumpster, but trash hauler Dan Ogden "did not recall ever seeing a computer in the trash," the affidavit says.

Ogden did recall finding a canvas bag in the dumpster after Gene disappeared containing several handgun holsters and a pair of ear guards. When Lynn was asked about the bag, she told investigators she didn't know it existed, the affidavit says. She told a neighbor, Tony Revak, she was "scared to touch" Gene's guns.

But Gene had previously told his father that he bought Lynn a gun and taught her how to shoot. When Bill Fish asked Lynn about that gun after Gene disappeared, Lynn said she didn't remember it, the affidavit says.

When Dan Ainsworth delivered gravel and road base to the Fish property July 28 and Aug. 5, 2004, Lynn Fish told him Gene had gone back to New York. She also told Revak the same story, but a week later told him he had left her "to start over somewhere else," adding that she'd been embarrassed to tell Revak the truth.

'100 percent cooperative'

In late July, Bill Fish became suspicious and contacted Gene's friend, New York State Police Detective Chuck Deluca, the affidavit says. Deluca then called Gene's house, leaving several messages about an annual golf tournament in New York they both often attended. Several days later, Lynn returned his call, sounding nervous. "We are working putting up a stone wall and Gene will not be able to attend the golf tournament," Lynn told Deluca. "He is off on a trip." To Mexico, she believed, the affidavit says.

Within a week of Gene's disappearance, Lynn switched one bank account into her name; by August, she'd changed them all. On July 6, she purchased a mattress but no boxspring at a Cañon City store. Employees told detectives they recalled the delivery but don't remember taking away an old mattress. Ogden, the trash hauler, doesn't remember seeing a mattress.

On Sept. 2, 2004, sheriff's investigators surprised Lynn with a visit at home, where Lynn seemed "very nervous and apprehensive about the investigators being there," the affidavit states. The detectives walked the property but seized no evidence. Later, on Sept. 8, they asked her to undergo a polygraph examination, and she agreed. But six days later, her attorney, Michael Gillick, wrote the sheriff's office a letter canceling the polygraph.

The affidavit also notes that nine months later, on June 16, 2005, detectives again visited the property, this time with her lawyer present. Lynn pointed out several landscaped areas with large rocks and gravel that she called "meditation spots." Dodd says in the affidavit that two of the spots "were large enough to cover a possible clandestine grave," but Lynn told him she had buried a couple dogs that had died. Dodd later checked with Lynn's vet and learned one dog died in December 2004, and Lynn took possession of the cremated remains. Dodd couldn't verify the death of any other dogs.

Deluca told detectives he talked with Gene on a "somewhat regular basis" and he never mentioned moving. Gene's passport has never been used, nor have his credit cards. Before Lynn switched the bank accounts, he never tried to access them, or to change the automatic deposit of his monthly $4,500 pension into one of the accounts.

Although Lynn claimed in a May 2007 letter to the Gazette that she had been "100 percent cooperative with Fremont County and state officials," she hired an attorney, refused the polygraph, and resisted efforts to search the couple's property, Dodd notes in the affidavit. Lynn told investigators she tried to report him missing to the Sheriff's Office in early August 2004 but that a deputy told her it sounded from her account as if he left on his own accord and wouldn't be considered missing. Dodd confirmed this to be the case with the deputy.

During the Sept. 20, 2006, search, investigators collected documents, notes, four knives, Lynn Fish's will, three blood samples from the east rock wall, a computer hard drive and a box containing money, letters, a birth certificate and passport.

Growing up poor

Anthony Herbert, who today lives in a comfortable middle-class home with air conditioning and a clock that chimes the hour, learned as a 7-year-old to shoot moose and deer — for food.

He grew up in Herminie, Pa., where his father worked for $1 a week in the coal mines, lived in a company house, and traded at the company store. While they hunted in the freezing winter woods, his father's bare hands would almost blister. "I'd take my gloves off and put them in my pocket and see if I could do that," he says. "I couldn't. I had to put them back on."

While in the Army, he was shot 10 times, stabbed with a bayonet three times and wounded by white phosphorus. Pieces of shrapnel still emerge from his body occasionally.

He received three Silver Stars and three Bronze Stars for his service in Korea — more than any other soldier — and was awarded Turkey's highest military honor for his side-by-side combat with the Turks against China. The Truman administration recognized him for his heroism with a tour of Europe.

For his service in Vietnam, he was awarded one Silver Star and one Bronze Star, along with other honors, and commanded "one of the most highly rated combat battalions in the war, leading its brigade in contacts with the enemy, captured weapons and enemy prisoners taken, as well as the highest reenlistment rate and fewest AWOLs," according to author Joe Bageant.

One soldier recalls in a letter first published in the Los Angeles Free Press that his unit was stranded in a valley with an injured man when the helicopter pilot radioed he couldn't make it there, due to fog and rain. A short time later, the soldiers heard the flap of the blades as the helicopter approached.

"The bird couldn't get any lower and it still wasn't low enough," the soldier wrote. "Col. Herbert was hanging out of the bird below the skids while someone inside held his belt. Finally, after several tries someone managed to push the man's bicep just right and the colonel caught his wrist and hauled him up like a piece of rope ... We heard that Col. Herbert climbed aboard and told the pilot to get his ship in the air and came looking for us."

After returning from Vietnam, Herbert did the unthinkable. He accused the military of war crimes, then told his commanders if they didn't sanction the charges, he'd go over their heads.

"The next day they relieved me of my command, and I think they thought that was the end of it. I said, 'I don't think you have any idea of my background in the military.' They said, 'Don't make waves and your career will go on and you'll be a general someday.' I said, 'I don't want to be a general. But I don't want to be a war criminal, either.'"

A 60 Minutes piece about Herbert in 1973 questioned his war-crimes reports and implied that Herbert himself was guilty of atrocities. Herbert requested access to outtakes he believed would show the report was intentionally slanted against him. CBS refused. He sued.

In 1979, in Herbert vs. Lando, the Supreme Court ruled that the media must allow plaintiffs access to materials that demonstrate the state of mind of reporters and editors if the plaintiff's goal is to prove malice, which is required in libel cases filed by public figures and public officials. It was a groundbreaking case that helped put him on the lecture circuit. (The 38 boxes of his papers from the case will be housed at the University of Georgia in a special collections library now under construction.)

But it took another 27 years to prove he was right about the war crimes. In 2006, Deborah Nelson and Nick Turse reported in the Los Angeles Times that records declassified in 1994 but later shielded from disclosure under the Freedom of Information Act showed that even as the Army worked to discredit Herbert, military investigators found that instances of torture and mistreatment were worse than he had reported.

"The murders, the cutting of the women's throats, the suffocating of the children, everything I said turned out to be true, and the Army knew it," Herbert tells me.

After running an anti-terrorism equipment and training company, working as an investigator in South Carolina, and getting his doctoral degree in forensic psychology from Georgia University, Herbert moved to Cañon City in 1987. There, he helped set up the Colorado Department of Corrections Special Operations Response Team before retiring in the '90s.

The hypothesis

Herbert has whiled his otherwise uneventful days building what he calls a hypothesis that prosecutors could present in a courtroom. "OK, this is what we say occurred," he imagines the lawyer saying. "Prove it wrong."

"She said this. It's in writing. She wrote it. She said it, and here it is. She wrote a letter that said, 'I have cooperated 100 percent.' She refused the blood test. She refused to take a polygraph. She refused to let people on her property to search until ordered by the court. 'Will you take a polygraph now?' Again, the answer would be no. That's the beauty of a jury. People aren't stupid in this country."

Lynn, with only a high school diploma, is ill-equipped to provide for herself, Herbert says. She was a stable hand in New York from 1991 to 1993, he says. Her other job was as a part-time clerk in a Utah convenience store, according to her testimony in a deposition given as she sought conservatorship of Gene's property in 2005. Lynn told investigators and testified that she didn't work because "Gene didn't want me to." Since his disappearance, she's taken on some housekeeping for neighbors.

Lynn has told friends that Gene was a spy, but that's not true, Herbert says, based on Herbert's interview with Gene's former boss. Moreover, he adds, Gene had no foreign language skills and never worked in Mexico or South America.

Herbert notes the Fish residence could be considered the perfect crime scene, because it's remote and lies behind a locked gate — "where the sound of a gunshot is routine and not a concern for investigation or later recalled by anyone." The day at issue, Herbert says, was a Sunday, when no garbage trucks, mail carriers or visitors were around. Gene's heavy drinking probably reduced his state of awareness, Herbert supposes.

While unusual, it's not impossible to pursue a murder investigation when a body has never been found. But moving the Fremont County investigation from a missing person to a homicide requires that Gene be declared dead, Herbert says. Spencer disagrees, saying the DA could present the facts to a grand jury tomorrow, if he chose, adding he believes there's enough evidence for a grand jury to return an indictment.

If a death certificate is required, it's unclear how one would come to be issued. State statute says a person who's been absent for five years during which he hasn't been heard from and whose absence hasn't been satisfactorily explained after diligent search is presumed dead.

But Rick Ranson, an attorney in Colorado Springs who worked for Bill Fish, says he thinks only Lynn could petition for a death declaration. "The problem you have is, [the statute] can only be used if an interested person has not already acted," Ranson says, adding, "Lynn Fish is an interested person, and I think she acted" when she persuaded a District Court judge in 2005 to name her as conservator of her husband's estate.

Spencer suggests that Gene's daughter might have standing to seek a death declaration or to reopen the case in civil court, as Bill Fish attempted to do. Herbert has talked with her, but he's protective of what was said. He adds that the federal government also has a stake, because if he's declared dead, his pension is cut by 40 percent.

Rifling through a beat-up leather valise containing ruled notebooks and a long box of index cards bearing pieces of the puzzle, Herbert is convinced it all makes sense. He's already delivered his hypothesis and timeline to the Sheriff's Office. And he says he's confident Lynn's neighbors — who first told investigators that Lynn "was incapable of causing harm" — would think twice if confronted with being potentially regarded as co-conspirators after the fact.

"Relationships change," he says coyly. "A lot of people who have lied for her before have realized since then it's no longer worth it to lie."

Although Herbert says he's interviewed many people, including Gene's daughter, he won't reveal much. He gives this interview, he says, to renew interest in the case.

Herbert's snooping got one person's attention. In early August, he got a call from Dick Tegtmeier, a Colorado Springs attorney Lynn hired in 2007 to represent her in the wrongful death civil suit. Tegtmeier, known for his criminal defense work, particularly in homicide cases, wanted to know whom Herbert was working for and who was paying him.

After not getting a response to our call to Lynn, I called Tegtmeier. At first he pretended to not know about Herbert. When confronted about his call to him, he said, "I am not going to comment in reference to something I know nothing about, some private citizen who's conducting some investigation apart from law enforcement.

"This case has been investigated very thoroughly by law enforcement officers for months and months, and they've made the decisions that they've made, so I'm not going to comment further about some private citizen's so-called investigation."

Philosophical differences

Despite never having seen a citizen solve a case, Smith, the former LAPD detective, says a citizen certainly can break one.

"Any person with a lot of common sense, intelligence and instinct, if they committed themselves to a project, can have an impact that would surprise the professionals," Smith says.

And of course, Herbert isn't just any person. For one thing, he says he didn't pursue the case to gain notoriety or write a book. He's already written a half-dozen, including at least one best-seller, Soldier, and others that are well-known, such as Conquest to Nowhere. He even refuses to let me take his picture, saying he doesn't want people in Cañon City to know who he is.

Herbert got involved, he says, because of that doctrine: You do what's right, and never give up. And it's time the case got solved.

Nearly four years ago, on Sept. 15, 2006, investigator Dodd's affidavit suggests the investigation had zeroed in on Lynn, because there's no hard evidence Gene ever left his home, and she was the last person to see him alive. Stymied, he told the judge he had "exhausted every investigative lead possible." Since Dodd seized a variety of items during his search but nothing has happened as a result, one can assume those were dead-ends as well.

If money is an issue — murder cases can be expensive, and Fremont County's budget woes are well-documented — officials could ask for help from the Colorado Attorney General's Homicide Assistance Unit, which could provide personnel but no expenses, an AG's spokesman says. But there's no indication a request has been made.

Herbert feels the key figure in whatever happens next would be the current district attorney.

Thom LeDoux grew up in Cañon City and worked as a prosecutor in Pueblo before 11th Judicial District Attorney Molly Chilson hired him in 2006. Spencer says he, Lou Smit and Rick Ranson "all felt threatened" by Chilson, who warned them against interfering in an investigation and told them there was no probable cause for a search warrant. When Chilson didn't run for re-election in 2008, LeDoux did, and now he's the boss.

Herbert notes that LeDoux earned a bachelor's degree in philosophy, meaning he would have studied Cicero, Justinian and other philosophers who preached if you don't do the right thing, you lose your soul.

"He has an opportunity right now that only men who've been in combat have," Herbert says. "You have a deciding point in your life where you make your mark of who you are and who you aren't, and this is his point. He's a young man. He could make that point right now if he takes this to trial. If she comes out innocent, she comes out innocent. If she comes out guilty, she comes out guilty. But either way, he had the courage to do it when his predecessor didn't, and nobody else has had.

"But if he doesn't get that reputation, it will come back to haunt him later on. He will have wasted four years at the university, four years of his life, because he hasn't learned a damn thing in philosophy."

Outside, the air is still hot and stifling. Clouds hang over the mountains as thunder rumbles a distant warning. But it's hard to say whether the storm will make it to town or drift away as evening sets in.


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