Killing
the Messenger
John C. Danforth's Indictment of Whistleblower
Bill Johnston May Lead to a Nasty Courtroom Showdown
If
John C. Danforth was trying to bury his final report
on Waco, he could scarcely have picked a better time.
His report, which absolves the government of any
wrongdoing during the standoff, was quietly posted
on the Web at 11am on Nov. 8. Less than 10 hours
earlier, CNN had named George W. Bush our 43rd president.
Minutes later, the network took it all back and the
recount frenzy began.
By
releasing his report on the heaviest news day since
Mount Carmel burned to the ground in 1993, Danforth
was able to avoid scrutiny of his conclusions. He
told The New York Times that his report was largely
completed a month ago, but he decided to wait until
after the election to release it. Why wait? Because,
the former U.S. senator said, it had "zero political
content."
Danforth
may believe his report (available at www.osc-wago.org)
is apolitical. And given the ongoing furor over the
Florida recount, the report, which took 14 months
and $17 million to produce, is unlikely to get much
scrutiny. But Danforth's decision to prosecute Bill
Johnston, the former federal prosecutor from Waco
who was indicted by a federal grand jury shortly
before the report was released, could be as contentious
as a Palm Beach precinct meeting.
Johnston
was the first one to tip Attorney General Janet Reno
to the fact that government forces had used pyrotechnic
devices at the Davidian compound. Now he faces felony
prosecution for not divulging that information sooner.
The
grand jury, in its five-count indictment against
Johnston, alleged that he hid evidence about the
FBI's use of pyrotechnic tear gas during the 51-day
standoff between federal agents and Branch Davidians,
and lied to federal investigators and grand jurors
during the investigation of the standoff, which ended
with a fatal fire on April 19, 1993, killing some
80 Davidians.
By
indicting Johnston, Danforth appears to be heading
for a nasty showdown in court with the former prosecutor
and his allies. Sources close to the matter believe
that Johnston's lawyers will subpoena Danforth and
make him take the witness stand, where they will
ask him about the truthfulness of statements he made
to both Johnston and the media. It also appears likely
that Danforth's investigators could be forced to
take the stand to discuss threats they reportedly
made to Johnston and his lawyers.
One
source close to the matter said that when the two
men met earlier this year, Danforth told Johnston
that he was not planning to bring charges against
him. Danforth reportedly told Johnston that he could
have brought charges against FBI attorney Jacqueline
Brown, who, Danforth's preliminary report says, "lied
to the Office of Special Counsel during the course
of this investigation." Instead, he targeted
Johnston. Why? The source said that Danforth's investigators
repeatedly told Johnston that they were going after
him because "he's the one who blew the whistle." The
investigators have "admitted that they are going
after him out of vindictiveness," said the source.
The
threats by Danforth's people against Johnston were
confirmed earlier this year by Austin lawyer Roy
Minton. He said the investigators were insisting
that Johnston be charged with felony perjury. "That
was the reason they wanted to charge him with a felony,
because they wanted him to lose his law license," said
Minton.
Danforth
refused to comment on the indictment of Johnston,
who pleaded innocent during his arraignment in St.
Louis on Monday.
Johnston's
lawyer, Michael J. Kennedy of New York, said in a
prepared statement that by indicting his client,
Danforth "seeks to destroy the messenger and
whitewash the government excesses in Waco."
Danforth's
17-page indictment of Johnston, which includes two
counts of obstruction of justice and three counts
of lying to investigators and a federal grand jury,
focuses on what Johnston knew about the FBI's use
of pyrotechnic tear gas during its final assault
on the Davidians' home. In 1993, during preparation
for the criminal trial of several Davidians, Johnston
made some handwritten notes that included the word "incind" --
an apparent abbreviation of "incendiary." The
indictment alleges that when he made that notation,
Johnston knew that the FBI had used pyrotechnic tear
gas rounds against the Davidians, but had then hidden
that knowledge from investigators. The indictment
also charges that he knowingly hid information from
Danforth's grand jury and made false statements to
the Office of the Special Counsel.
Rumors
about a possible indictment of Johnston have been
swirling since July, when a $675 million civil lawsuit
brought by the Branch Davidians against the federal
government ended with a five-member jury acquitting
the government of any wrongdoing. On Sept. 20, U.S.
District Judge Walter Smith Jr. issued a final order
dismissing the case. The Davidians are planning an
appeal of the decision.
James
Brannon, one of the lawyers for the Davidians, said
that the indictment of Johnston "certainly smacks
of retaliation." He added that he hasn't been
impressed with any of Danforth's inquiry into the
Waco matter. "I have nothing good to say about
the Danforth bunch," he said.
Johnston
helped re-ignite controversy over the Waco standoff
in August of 1999, when he wrote to Janet Reno: "I
have formed the belief that facts may have been kept
from you and quite possibly are being kept from you
even now, by components of the department." Although
Johnston's letter helped convince Reno to appoint
Danforth to investigate the matter, it effectively
ended Johnston's career with the federal government.
In
addition to his indictment of Johnston, Danforth
has asked the Department of Justice to terminate
two assistant U.S. attorneys, Ray and LeRoy Jahn
of San Antonio. Like Johnston, the husband-and-wife
team of prosecutors helped send several Davidians
to jail after the standoff ended. Danforth said the
Jahns should be fired because they went to "great
lengths" to conceal their knowledge of the FBI's
use of pyrotechnic tear gas rounds.
While
there are mixed feelings among Waco experts about
the Jahns, many observers believe the indictment
of Johnston is wrongheaded. "I think they are
making Johnston the scapegoat," said Stuart
A. Wright, a sociology professor at Lamar University
in Beaumont who has written extensively about the
Waco controversy.
"The
public has a general perception that the government
did something wrong" at Waco, he said. By ignoring
apparent wrongdoing by FBI commanders Dick Rogers
and Jeff Jamar, as well as Bureau of Alcohol Tobacco
and Firearms commanders Phillip Chojnacki and Chuck
Sarabyn, Danforth missed an opportunity to deal with
the Waco tragedy, Wright said. Prosecuting Johnston,
Wright said, is not "going to alleviate the
grief a lot of us feel about Waco." (BY ROBERT
BRYCE Austin Chronicle November 17, 2000) ...BACK
TO TOP
Former
Waco federal prosecutor Bill Johnston indicted on charges
of obstructing investigation
Former
Waco federal prosecutor Bill Johnston, who helped
expose a six-year cover-up of government actions
in the Branch Davidian siege, was indicted Wednesday
on federal charges of obstructing the special counsel's
investigation that he helped set in motion.
The
indictment - including two counts of obstruction
of justice and three counts of lying to investigators
and a federal grand jury - was returned Wednesday
in St. Louis just before Waco special counsel John
C. Danforth released his final report absolving the
government of wrongdoing in the 1993 siege.
Although
it omitted any mention of Mr. Johnston because of
the pending prosecution, Mr. Danforth's 197-page
report includes harsh criticism of the husband-wife
federal prosecution team that directed the criminal
case against surviving Branch Davidians. It concludes
that they and two FBI agents each concealed key information
about the government's use of pyrotechnic tear gas
at the end of the Waco standoff.
The
report stated that Mr. Danforth will ask the Justice
Department to fire the two assistant U.S. attorneys,
Ray and LeRoy Jahn of San Antonio, because they went
to such "great lengths" to conceal their
knowledge of that information.
Mr.
Johnston's lawyer, Michael Kennedy of New York, said
the indictment is baseless and unfair. He said Mr.
Johnston has freely acknowledged that he made mistakes
in his dealings with the special counsel's office,
adding that the decision to target only his client
after a 14-month, $17 million investigation amounts
to "discrimination and selective prosecution."
"Danforth
seeks to destroy the messenger and whitewash the
governmental excesses of Waco," he said. "While
Bill's mistakes were harmless, the same cannot be
said for so many other government employees, who
today are merely chastised or ignored completely
by Mr. Danforth."
(The Dallas Morning News, November 9,2000)...BACK
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"Filmmakers'
tenacity brought the "dark questions" of
Waco tragedy into the mainstream".
Researcher
found spent pyrotechnic tear gas canisters in Texas
Ranger evidence locker. When John C. Danforth began
the special investigation into what happened at Waco,
one of the first sources his office contacted was
a documentary filmmaker. On Sept. 20, Danforth wrote
to Dan Gifford, the producer of the documentary "Waco:
The Rules of Engagement," to request a meeting.
Danforth wanted information about the use of the
U.S. armed forces, the names of witnesses and experts,
and the location of documents and other evidence
that bears on the case.
That
Danforth made a moviemaker one of his first stops
is a tribute to the impact that Gifford and his chief
researcher, Mike McNulty, have had in raising the "dark
questions" that Danforth is trying to answer.
Their film premiered at the 1997 Sundance Film Festival
in Utah. It later won an Emmy Award and was nominated
for an Oscar for best documentary. It took the suspicion
of the government's version of the event from the
realm of the ultra-right into the consciousness of
the middle class. And it was McNulty's work on a
sequel, "Waco: A New Revelation," that
prompted Attorney General Janet Reno to appoint a
special Waco investigator. While doing research for
the new movie, McNulty found spent pyrotechnic tear
gas canisters in a Texas Ranger evidence locker.
The discovery prompted the FBI and the Justice Department
to reverse years of denials and finally admit that
the canisters, which can cause fire, were used on
the last day of the siege.
Danforth
is trying to determine whether federal agents or
the military killed people on April 19, 1993. That's
when about 80 people died as fire consumedthe Branch
Davidians' Mount Carmel complex as the FBI attempted
to force the Davidians out with tear gas. From his
home in California, McNulty watched the live CNN
television coverage as the Davidians' complex went
up in flames. Ever since he has been trying to figure
out what happened. " He's pounded on the door," Gifford
said. "It shows what six years of work can do. "
A
Missouri massacre
McNulty,
a Mormon, said he had a "very bad feeling" about
the tragic end of the Branch Davidians. He said it
reminded him of an episode in his church's history:
the Haun's Mill massacre, in northwestern Missouri.
In October 1837, 17 Mormon men and boys were killed
by members of the Missouri militia. The militia was
reacting to an order issued by Gov. Lilburn Boggs,
who said all Mormons should either be driven out
of Missouri or exterminated.
Although
156 years separated Waco from the Haun's Mill incident,
McNulty saw a parallel between the government's tactics
in both cases. He began investigating Waco on his
own and got a copy of the FBI's infrared videotape
of the Branch Davidian complex, shot from an airplane
overhead. Some experts have concluded that the tape
shows government agents firing into the complex buildings.
FBI agents have denied firing any shots, and a new computer program used
to detect gunfire on infrared images upholds that contention.
McNulty approached Gifford, a former CNN reporter and now president of
SomFord Entertainment, with the idea of making a movie about Waco. Gifford
thought it was a news story and advised McNulty to take it to television
news departments.
" He was gone five months and came back and said no one was interested," Gifford
said. Gifford said that although he was skeptical, he agreed to take on the project.
Gifford said as he got deeper into the research he found that the official story
of what happened at Waco "came apart like wet paper bag at the seams."
Their
movie says government agents fired into the compound
and may have started the fire. Last month, the film
was shown to members of the Zenith Boosters Club,
an organization of conservatives and libertarians
in Kansas City. Gifford also spoke to the group." The
movie makes people wonder about what's going on and
who is giving us the full story," said Arlene
Krings, spokeswoman for the organization.
A
new film
In
March 1998, McNulty joined forces with MGA Studios
Film Divsiont to develop a new movie about Waco.
MGA, based in Fort Collins, Colo., was established
in 1996 to make family and children's films for television. " We
decided to make this documentary because there were
too many unanswered questions," said Rick Van
Vleet, MGA president. His son, Jason, is director
of the film. Van Vleet said the new movie, "Waco:
The New Revelation," will be advertised for
sale on television, in newspapers and magazines and
on the Internet. He said it will be shown in theaters
early next year. A private showing is planned for
Washington sometime next month, and Danforth will
be among those invited.
McNulty
said the new movie would contain more information
about the gunfight he says took place between the
Davidians and the authorities on the last day of
the siege. He said it would show the participants
and explain why it happened. He also said the movie
would show how the raid by the Bureau of Alcohol,
Tobacco and Firearms on Feb. 28, 1993 -- in which
four agents were killed -- turned into a gunfight. " The
first shots were fired by the BATF," McNulty
said. "The evidence shows that while the BATF
fired first, it wasn't at people." During the
1994 criminal trial of Branch Davidian survivors,
ATF agents testified that the Branch Davidians shot
at them first. But there was other testimony that
federal agents first shot and killed the Branch Davidians'
dogs as the agents approached the front of the complex.
Seven of 11 Branch Davidians on trial for murder
were convicted on lesser charges ranging from voluntary
manslaughter to weapons violations. Four were acquitted
on all charges.
Jason
Van Vleet said his office was cooperating with Danforth's
investigators. He is critical of the news media's
coverage of Waco.
" We have seen a one-sided story that focused on whatever the ATF or the
FBI wanted us to know and the news reported it," Van Vleet said.
" One-sided" is a criticism that some have leveled at "Waco: The
Rules of Engagement." There is little of the government's explanation for
what happened in the film, which is heavy with the Branch Davidians' interpretation
of events. And after McNulty spoke recently to college students in Colorado about
the new film, some of them said he sounded more like an infomercial trying to
make money by promoting the movie rather than a fact-finder trying to get at
the truth. " It's going to have to go a ways before it ever sees a profit," McNulty
said. Rick Van Vleet has said the film will cost about $1 million to produce.
McNulty,
53, is the father of five children and has three
grandchildren. A former commercial insurance broker,
he has also worked in public relations. He has no
journalistic background but worked in the campaigns
of Democratic candidates in California, including
one of Jerry Brown's campaigns for governor. He now
lives in Colorado and leads an organization called
Citizens Organization for Public Safety. He describes
it as a loose-knit group of people concerned about
public safety issues. He served in the Navy during
the Vietnam War and later came to oppose it. McNulty
said he had been a Democrat "many years ago
when I was young and passionate. I'm a Republican
now. Waco has been spun and played by both the Democrats
and Republicans as being right or left," McNulty
said. "It's not about right or left. It's about
right and wrong." by Terry Ganey ("St.
Louis Post-Dispatch ", October 17, 1999) ...BACK
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Federal
Court refused to quash sobpoenas
A federal court in St. Louis on Wednesday refused to quash subpoenas
forcing five supporters of former Waco prosecutor Bill Johnston to testify
before a federal grand jury investigating government actions in the 1993
Branch Davidian siege.
Houston attorney Dick DeGuerin, who filed a motion on behalf of the five
Waco men, said U.S. District Judge Stephen Limbaugh ruled after an hourlong
closed-door hearing that he lacked legal grounds to throw out the subpoenas.
They were issued late last week at the request of the Waco special counsel's
office.
Judge Limbaugh agreed to grant each of the five men immunity before they
are called on Thursday before the grand jury, Mr. DeGuerin said.
"He made it clear that he saw what was going on, but at this point, there
was not much he could do," Mr. DeGuerin said. "This is retaliation
and punishment of these guys for supporting Bill Johnston, as well as an effort
to chill any other potential support."
His motion on behalf of two deputy U.S. Marshals, a former Waco city
manager a Waco lawyer and a wealthy Waco businessman had alleged that
the subpoenas were part of an ongoing effort to intimidate them and Mr.
Johnston.
A spokesperson for the special counsel's office declined to comment.
Two months ago, Mr. Johnston was told that he was being targeted for
prosecution by the office of Waco special counsel John C. Danforth. Mr.
Johnston was among five federal prosecutors who helped try surviving
Davidians in a criminal trial arising from the siege. (The Dallas Morning
News, October 26, 2000)...BACK TO TOP
Plan
to appeal ruling that sect members responsible
for 1993 tragedy
Two
attorneys for the survivors of the Branch Davidian
siege and their relatives say they plan to appeal
a federal judge's ruling that the sect members and
not the government were responsible for the 1993
tragedy.
Former Attorney General Ramsey Clark, who represented most of the surviving
Davidians, said Thursday that he was saddened but unsurprised by the
ruling. He said he will appeal the decision, which he said was most notable
for the judge's undisguised disgust and anger toward members of the sect.
"It's not what you'd expect in a judicial opinion," he said. "The
thing that we should all comprehend is that a tragedy like this should never
happen again at the hands of our own government and its agents. You can almost
feel like a sense of celebration in the way the judge addressed the case.
"But there's nothing decent about celebrating this. It never should have
happened," he said. "What has happened with this case has also been
an enormous injustice from start to finish, and hopefully, for the good of the
country, will be firmly corrected."
In a 22-page judgment finalizing an advisory jury's recommendation, U.S.
District Judge Walter S. Smith Jr. ruled that surviving sect members
and their families who had sought $675 million in damages would "take
nothing" from the federal agencies involved in the deadly standoff.
Judge Smith's ruling also included a lengthy rebuke of lead plaintiffs'
lawyer Michael Caddell of Houston, saying he abused the judicial process.
The judge wrote that Mr. Caddell had attempted "for the past year
... to try their case in the media through the use of innuendo, distortions
and outright falsehoods, rather than honestly presenting the true facts
of the case."
Mr. Caddell issued a brief statement Thursday saying he also will appeal.
He renewed his criticism of Judge Smith, saying "it was clear that
soon after the trial commenced that Judge Smith had made up his mind
and he could have written his opinion then.
"The appearance of bias and prejudice on the part of Judge Smith is profound.
It is unfortunate that this case was not tried before an impartial fact-finder.
The American people deserved a process and tribunal that were above reproach.
Unfortunately, that did not occur," he said. (The Dallas Morning News, September
21, 2000)...BACK TO TOP
Branch
Davidians wrongful death suit ended
The Branch Davidians' long-running wrongful-death
lawsuit ended Wednesday with a federal judge's ruling
that they and not the government were responsible for
the 1993 tragedy.
In a 22-page judgment finalizing an advisory jury's recommendation, U.S.
District Judge Walter S. Smith Jr. ruled that surviving sect members and
their families who had sought $675 million in damages would "take
nothing" from the federal agencies involved in the deadly standoff
near Waco.
Judge Smith's ruling also included a lengthy rebuke of lead plaintiffs'
lawyer Michael Caddell of Houston, saying he abused the judicial process.
The judge wrote that Mr. Caddell had attempted "for the past year
... to try their case in the media through the use of innuendo, distortions
and outright falsehoods, rather than honestly presenting the true facts
of the case."
Mr. Caddell and other lawyers for the plaintiffs could not be reached Wednesday
evening.
The decision drew praise from Justice Department officials and FBI director
Louis Freeh, who termed it a "most gratifying" vindication of
federal law enforcement.
"No one in the FBI wanted anyone harmed. Everyone did their best under extraordinarily
difficult circumstances. In the end, no one fired a shot, the government did
not start the fires and the Davidians were found by the court to be solely responsible
for the unnecessary deaths that occurred," Mr. Freeh said.
The judge's decision came two months after an advisory jury concluded that
Branch Davidians alone instigated a Feb. 28, 1993, shootout with federal
agents and then ended a 51-day standoff by immolating themselves inside
their besieged building. (The Dallas Morning News, September 21, 2000)...BACK
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Former
Prosecuter being targeted by Waco special counsel
The former prosecutor who warned last year
of a possible cover-up of federal actions in the Branch
Davidian siege has been told he is being targeted for
prosecution by Waco special counsel John C. Danforth.
Friends and associates of former Assistant U.S. Attorney
Bill Johnston say he has been told that the charges
stem from his withholding of several pages of pretrial
notes from the 1994 federal prosecution of surviving
Branch Davidians. They say that Mr. Johnston's action
was a mistake driven by his concern that his notes
would be misused by others in the U.S. attorney's office
who were angry about his public criticism of the Justice
Department's handling of the Waco tragedy.
Michael Caddell, a Houston lawyer who led a recent wrongful-death lawsuit
against the government filed by surviving Davidians and their families,
said the threatened prosecution of Mr. Johnston raises serious questions
about the integrity of Mr. Danforth's Waco inquiry.
"Why single out Bill Johnston? He's not even in the government anymore.
He basically got recused from the case, got forced out of the Justice Department,
became a pariah," he said. "There are going to be a lot of people shaking
their heads.
"It says a lot about the misdirection of the Danforth investigation. It
ignores wrongdoing by government officials and whitewashes what even Danforth
admits was less than a truthful presentation of what happened at Mount Carmel,
and he seeks to go after the one person who tried to get the truth out." (The
Dallas Morning News, September 1, 2000)...BACK TO TOP
Special
counsel reinvestigating 1993 siege near Waco,
TX
The special counsel reinvestigating aspects
of the 1993 siege near Waco interviewed President Clinton
by telephone Wednesday, the White House said. In a
three-sentence statement, the White House press office
said the president and special counsel John Danforth
had a brief conversation that morning. "The president
voluntarily agreed to be interviewed and spoke with
Senator Danforth for about 15 minutes," the statement
said.
The president, in a transcript released last week by the White House,
said he made a "terrible mistake" in following the Justice
Department's recommendation to permit the FBI to go ahead with a final
assault designed to end the 51-day standoff with the Branch Davidians. "I
gave in to the people in the Justice Department who were pleading to
go in early, and I felt personally responsible for what had happened,
and I still do," Mr. Clinton said in comments made in April. "I
made a terrible mistake."
Asked her reaction to his comments, Ms. Reno said last week: "I
think everybody who has been touched by Waco would like to be able to
undo it." (The Dallas Morning News, August 4, 2000)...BACK
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More
senate investigation of the 1993 Branch Davidian seige
The appetite for more Senate investigation of
the government's conduct surrounding the 1993 Branch
Davidian siege may be waning, lawmakers acknowledged,
now that the special counsel has exonerated federal agents
of "bad acts."
John Danforth, the former Republican senator from Missouri, appeared Wednesday
before his one-time Senate colleagues to discuss an interim report he issued
last week concluding that federal agents neither fired on the barricaded
sect members nor contributed to the fire that ended the 51-day standoff
and killed about 80 Branch Davidians near Waco.
"The evidence is absolutely overwhelming," said Mr. Danforth, appointed
last year by Attorney General Janet Reno to examine lingering Waco questions. "The
government did not start a fire. The government did not direct gunfire at the
Branch Davidians. The government did not improperly use the military. And there
wasn't any broad cover-up."
Emerging from the hearing, several senators said the special counsel's
comprehensive findings and the respect he commands on Capitol Hill may
effectively mean the end of the Senate's inquiry. The House Government
Reform Committee has been conducting an investigation but has yet to decide
whether to hold hearings. (The Dallas Morning News, July 27, 2000)...BACK
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President
Clinton said he "made a terrible mistake" to
authorize the FBI assult in 1993
In language far stronger than he has publicly
used before, President Clinton said he "made a
terrible mistake" when he "gave in" to
the Justice Department and authorized the FBI assault
on the Branch Davidian compound in 1993 that resulted
in the loss of more than 80 lives.
"I gave in to the people in the Justice Department who were pleading to
go in early, and I felt personally responsible for what had happened, and I still
do," the president told investigators earlier this year. "I made a
terrible mistake." The statement, seemingly indicating disagreement with
a recommendation by Attorney General Janet Reno to proceed with the FBI operation,
differs from Mr. Clinton's earlier comments.
In the past, the president said he signed off on the tear-gas plan only
after questioning Ms. Reno about why the operation should proceed."I
was informed of the plan to end the siege," Mr. Clinton told reporters
at a Rose Garden news conference the day after the 51-day standoff's
tragic end. "I discussed it with Attorney General Reno. I asked
the questions I thought it was appropriate for me to ask. I then told
her to do what she thought was right, and I take full responsibility
for the implementation of the decision." He reiterated that view
in subsequent statements in 1993 and 1995. His latest statements, suggesting
that he was prodded into approving the operation, were made during an
interview last April with Justice Department investigators probing campaign
fund-raising controversies.
The transcript of the interview, released Monday by the White House,
comes as Waco special counsel John Danforth heads to Capitol Hill on
Wednesday to discuss his findings overwhelmingly exonerating the government
of misdeeds during the 1993 siege. (The Dallas Morning News, July 26,
2000)...BACK TO TOP
Waco
special counsel's report clears Attorney General Reno
The Waco special counsel's report emphatically
clears Attorney General Janet Reno of wrongdoing in the
Branch Davidian siege and its aftermath, but it doesn't
extend that finding to her Department of Justice. The
preliminary report released Friday by special counsel
John Danforth reserved some of its strongest criticism
for the Justice Department's actions in seven years of
inquiries that have followed the 1993 Waco tragedy. The
report details repeated instances of nondisclosure and
resistance to thorough examination of government actions
in Waco - a pattern that began with the agency's own
1993 post-siege review and continued in Mr. Danforth's
ongoing investigation.
"The only antidote to … public distrust is government openness and
candor," the former Missouri senator wrote in the preface to his interim
report. "Instead, and tragically, just the opposite occurred after Waco.
Even in their dealings with this investigation, some government officials have
struggled to keep a close hold on information." (The Dallas Morning News,
July 23, 2000)...BACK TO TOP
Special
counsel John D Danforth asked to appear before Senate
Judiciary subcommittee
Congress wants to hear
from the Waco special counsel who has emphatically cleared
the government of wrongdoing during the 1993 Branch Davidian
siege. Hours after he issued a report exonerating federal
law enforcement, special counsel John Danforth was asked
Friday to appear next week before a Senate Judiciary
subcommittee reinvestigating the government's conduct
at Waco. "We need to know obviously more than his
conclusions, but the details of the evidence and what
he has done," Mr. Specter said. "... There
is a responsibility on congressional oversight to make
an independent determination. The starting point is to
get the details as to what Danforth has done."
But in some circles, the report did little to quell the tenaciously held
belief that thegovernment committed wrongful acts and then covered them
up.
"We had received indications from Danforths' office that they intended to
tow the government line on every issue," said Michael Caddell, the lead
plaintiff's attorney in the civil suit. He said he was troubled by the fact that
the inquiry accepted the explanations of FBI commanders and other agents with
little criticism, even though "they've admitted that they lied for seven
years," about the pyrotechnic tear-gas grenades issues. He said the report
also failed to address criticisms that were raised in depositions of infrared
experts hired by Mr. Danforth and the federal court that is hearing the civil
case.
"There are a number of us, us being Waco critics, who are dumfounded by
his results," said Colorado filmmaker Michael McNulty, whose two Waco documentaries
popularized the theory that agents fired on the Davidians, trapping them inside
their burning retreat. "I'm afraid Danforth has not answered all of the
dark questions."
Branch Davidian Clive Doyle said the findings in Mr. Danforth's report
came as no surprise, especially after the jury's verdict last week. "It
takes somebody with a lot more courage, than probably most politicians
have got, to stick their neck out and buck the system," said Mr. Doyle,
who survived the fire that consumed the compound at the end of the siege
and who is a plaintiff in the suit. "His job is make Janet Reno look
good, make the government look good, because ... he is trying to get people
to trust the government again, so he's got to exonerate them. Otherwise,
you still got the problem." (The Dallas Morning News, July 22, 2000)...BACK
TO TOP
Exonerating
the government of "bad acts" in the Branch
Davidian siege
Exonerating the government of "bad acts" in
the Branch Davidian siege, Waco special counsel John
Danforth said Friday that his 10-month inquiry had found
that David Koresh and his followers were solely responsible
for the 1993 tragedy. Releasing a lengthy preliminary
report of his 10-month investigation, the former Missouri
senator said he found with "100 percent certainty" that
the government did not fire guns at the end of the 1993
siege or cause the fire that gutted the Branch Davidian
compound with about 80 sect members inside. Although
he said his inquiry focused only on "bad acts and
not bad judgments," the report released Friday made
a point of trying to discount criticisms of the government's
conduct during the incident. The report concluded that
any government wrongdoing in the incident or its aftermath
was limited to the failure of a few individuals to disclose
what they knew about the FBI's use of pyrotechnic tear
gas on the day the compound burned. (The Dallas Morning
News, July 22, 2000)...BACK
TO TOP
Jurors
hearing the wrongful-death lawsuit over
Jurors hearing the wrongful-death lawsuit over
the government's handling of the Branch Davidian siege
found in favor of the government Friday on all issues.
The findings in the $675 million case are advisory to
U.S. District Judge Walter Smith Jr. He is free to accept
or reject the jury's decision. Judge Smith said he tentatively
planned to issue his ruling on Aug. 2. The jurors reached
their decision after 2 & 1/2 hours of deliberations
on the same day they heard final arguments from both
sides about the botched raid and the standoff's fiery
conclusion. Government attorney Michael Bradford told
the jurors that the plaintiffs failed to prove the government
should bear responsibility for the deaths of sect members. "They
set this place on fire. They're responsible for the deaths
in there because they burned this place to the ground,
'' Bradford said, referring to the inferno that brought
the standoff to a deadly end. "This was one of the
most terrible and horrible events in our history and
they want to come into court and ask you to award them
a judgment,'' Bradford said. "That would be wrong.
It would not be supported by anything that would be just
and right.'' (The Dallas Morning News, July 14, 2000)...BACK
TO TOP
Federal
judge appeared to be "ignoring the law" and "engineer
a verdict "
A plaintiff's attorney complained Thursday that a
federal judge appeared to be "ignoring the law" and
trying to "engineer a verdict" favorable
to the government as both sides finished presenting
evidence in the Branch Davidian wrongful-death lawsuit.
Michael Caddell of Houston told reporters that the
judge's written instructions and questions for the
advisory jury unfairly lump the Davidians together
as a group instead of allowing separate consideration
of the death or injuries and actions or negligence
of each individual in the case. "I think the jury
may surprise the judge. I think that the judge would
like to engineer a verdict," Mr. Caddell said
on the steps of the federal courthouse in Waco. "I
think we can get a jury verdict anyway. But it's clear
that he doesn't want a verdict with respect to anyone
17 or older that will be inconsistent with what he
wants to do." (The Dallas Morning News, July 14,
2000)...BACK TO TOP
FBI
agent acknowledged he fired pyrotechnic tear-gas
An FBI agent acknowledged Wednesday that he fired
three pyrotechnic tear-gas rounds on the final day
of the Branch Davidian siege but said they didn't go
into the sect's building and were fired hours before
it burned. Agent David Corderman denied sending any
of the gas devices into the sect's kitchen, insisting
that the three rounds he shot into that area of the
building just after noon were all nonburning, plastic "ferret" gas
grenades. He and other agents involved in an April
19, 1993, tear-gas assault on the compound have testified
in the Branch Davidian wrongful-death trial that they
saw white smoke wafting out of the kitchen area just
after those rounds were fired. Agent Corderman acknowledged
Wednesday that pyrotechnic gas rounds expel white smoke
when fired, but he said the smoke he saw in the kitchen
was "white smoke from a fire." A government
fire expert also testified Wednesday that such devices
were "very unlikely" to have started any
of the three fires that leveled the Davidian compound
with more than 80 sect members inside on April 19.
(The Dallas Morning News, July 13, 2000)...BACK
TO TOP
Tank
ripped down rear of compound was trying to clear a path
for tear gas
The tank that ripped down the rear of the Branch Davidian compound wasn't
trying to demolish the building but was trying to clear a path to get tear
gas into the sect's hiding place, an FBI agent testified Tuesday. "We
didn't want to just recklessly move through the place," said agent
Gary Harris, who drove the 60-ton vehicle on the last day of the 1993 Davidian
siege near Waco. "It wasn't a haphazard, just run up and smash and
crash things. That's not the reason I was back there in my mind, and that's
not the orders I was given." (The Dallas Morning News, July 12, 2000)
...BACK TO TOP
Davidians
talked about fire in waco seige
Branch Davidians talked about fire in the days before the fatal end of
the Waco siege, at one point joking about becoming a "charcoal briquette" and
at another saying it was "God's will" to "take us up like
flames of fire." The FBI secretly recorded conversations among the
Davidians during the 1993 siege. Excerpts were played for a jury on Monday
in the Branch Davidians' wrongful death suit against the government. The
tapes included barely audible passages from the morning of the fire in
which Davidians passed orders to "spread the fuel," "pour
it," "pass the torch" and "light it." The government
is trying to prove that the Davidians set fire to the complex and are responsible
for the deaths of about 80 people on April 19, 1993. (The St. Louis Post-Dispatch,
July 11, 2000)...BACK TO TOP
David
Koresh grew militant a former Branch Davidian testified
David Koresh grew "militant" just before
his sect's bloody standoff with the government, ordering
followers to make grenades, silencers and machine guns
and predicting a shootout with authorities, a former
Branch Davidian testified Wednesday. In the months
before the 1993 siege, Donald Bunds said in deposition
testimony read to jurors, the self-proclaimed messiah
also taught followers to expect a violent end and his
death at the hands of outside enemies. "He was
almost constantly going through a scenario where the
enemy or the cops or the ATF . . . were going to come
down the driveway with rifles, and we were going to
have to shoot back," Mr. Bunds said. "It
was going to happen to him and his group, and they
were going to join him in his battle." (The Dallas
Morning News, July 6, 2000)...BACK
TO TOP
Governemt
lawyers wrapping up thier defense of Branch Davidian
siege
Government lawyers Thursday began wrapping up their
defense of federal actions in the gunfight that sparked
the Branch Davidian siege, meticulously detailing the
sect's firepower and its absolute devotion to self-proclaimed
messiah David Koresh. A succession of Texas Rangers
were called to testify Thursday about their role in
recovering more than 300 guns and hundreds of thousands
of rounds of ammunition from the charred wreckage of
the Davidian compound. The Texas lawmen detailed how
60 M-16 machine guns, 60 AK-47 assault rifles, about
30 AR-15 assault rifles, several .50-caliber sniper
rifles and dozens of pistols were discovered after
the compound burned April 19, 1993. They told jurors
in the Davidian wrongful-death suit how some weapons
were arrayed in what appeared to be firing positions,
and 133 were recovered from the concrete room where
bodies of most of the sect's women and all of its children
were discovered. (The Dallas Morning News, July 7,
2000)
...BACK TO TOP
Branch
Davidian Clive Doyle acknowledged sect members considered
Koresh as God
Branch Davidian Clive Doyle acknowledged Wednesday
that sect members considered David Koresh as God incarnate,
but he denied repeatedly that they fired the first
shots in a deadly standoff with the government or torched
their compound to end it. He wept as he told jurors
in the sect's wrongful-death trial about how his daughter,
Shari, died in the compound fire. But he acknowledged
never trying to find the 18-year-old or even seeing
her on the day that the FBI launched a tear gas assault
and the building burned. Ms. Doyle was among more than
80 sect members who died in the blaze. Lawyers for
surviving Davidians and the families of those who died
have alleged that FBI tanks started or contributed
to the fire and that FBI commanders were negligent
in failing to have firefighting equipment available
before launching a tank and tear gas assault. (The
Dallas Morning News, June 29, 2000)...BACK
TO TOP
Youngest
survivor of fire told jurors she noticed fire after a
tank ripped up the second story
The youngest survivor of the Branch Davidian fire
told jurors in a federal wrongful-death lawsuit Tuesday
that extensive tank damage on the final day of the
1993 siege buckled upper floors, blocked stairways
and nearly cut off her escape from the burning building. "I
tried to get out the hallway, but I couldn't go that
way. . . . That was the only way out," testified
24-year-old Misty Ferguson, describing her final minutes
in the smoke-filled, damaged building. "I didn't
want to be burned." Ms. Ferguson told jurors that
she noticed her hands were badly burned after leaping
from the second story of the building. She offered
mute evidence of her injuries as she took the witness
stand, raising a right arm to expose the stump of a
hand with no fingers. She also suffered severe facial
burns and lost the fingers on her left hand in the
fire that took the lives of 80 Branch Davidians on
April 19, 1993. Ms. Ferguson, a North Carolina resident
who was 17 at the time of the fire, appeared as the
final witness for plaintiffs represented by lead lawyer
Michael Caddell. Speaking in a quiet voice, Ms. Ferguson
testified that she noticed the fire "15 to 25
minutes" after a tank ripped up much of the second-story
bedroom where she had been waiting out the FBI's tear-gas
assault. (The Dallas Morning News, June 28, 2000)...BACK
TO TOP
Sect
argues government agents used excessive force
Day after day, Branch Davidian Sheila Martin sat
quietly in the back of a federal courtroom last week,
reliving the tragic events that brought her here. It
was the beginning of the long-awaited trial in the
sect's wrongful-death lawsuit. She has been joined
in court by other Branch Davidians and relatives of
the dead, some who say they came for truth and justice.
Her daily presence in court has been to show that "this
is very important to us and to the families that are
not with us," she said. The sect argues that government
agents used excessive force in their initial 1993 raid
on the group's rural compound and also helped cause
the tragic ending of the ensuing 51-day standoff. But
the government asserts that its agents acted properly
and should bear no responsibility for the final fire
that consumed the sect's home with more than 80 Branch
Davidians inside. (The Dallas Morning News, June 26,
2000)...BACK TO TOP
Six-member
jury to hear the civil case
A federal judge picked a six-member jury to advise
him as he hears a $675 million civil lawsuit brought
by Branch Davidians and their families charging that
federal agents caused the deathsof 80 cult members
in a fiery siege seven years ago. The jury, consisting
of four women and two men, plus one alternate, will
hear the case and advise Federal Judge Walter Smith
on his ruling. Smith will make the final decisions
in the civil case that claims government agents forced
the 51-day-long standoff with Branch Davidian leader
David Koresh and then caused the fires that destroyed
the compound. The judge ordered Monday that the names
of the jurors in the high profile case be kept confidential
and set opening statements in the case for Tuesday.
The jurors were picked from a pool of 60 and include
a social worker, a homemaker and an elementary school
teacher. (Reuters, June 20, 2000)...BACK
TO TOP
Jury
selection to begin in lawsuit by Branch Davidians
Jury selection was scheduled to begin on Monday in a lawsuit by Branch
Davidians and their families charging the U.S. government caused the deaths
of about 80 sect members in a siege of their central Texas compound seven
years ago. At issue is the question, still hotly debated in America, of
whether the FBI or Branch Davidians are responsible for the deaths of cult
leader David Koresh and many of his followers.
The plaintiffs, numbering around 100, are Branch Davidians who survived
the siege and relatives of those who died on April 19, 1993, when the rural
compound went up in flames as FBI agents using armored vehicles and tear
gas tried to end a 51-day standoff. The $675 million wrongful death lawsuit
alleges that federal agents triggered the standoff by using excessive force
in a raid aimed at arresting Koresh on weapons charges, caused the fires
that destroyed the compound and kept firefighters away. The government
denies all those allegations.(Reuters, June 19, 2000)...BACK
TO TOP
Smith's
court back in session
Six years ago, as lawyers were preparing to bring
the 1994 Branch Davidian federal criminal case to court,
San Antonio defense lawyer John Carroll made an unusual
request of Walter S. Smith Jr., the Waco judge who
heard the case.
All 11 of the San Antonio defendants had lost their
worldly possessions in the fire that consumed Mount
Carmel, and his client had no suit to wear to trial,
Carroll said. He asked if the court would authorize
a sum to buy the prisoner appropriate court attire.
"I'm not a tailor, and I'm not a retailer of
clothes," the judge quipped. In subsequent orders,
Smith noted, "There are some 16 male attorneys
representing the defendants in this case, all of various
sizes and shapes. It is probable that all of them have
spare clothing in their closets that could be lent
to the defendants." Their attorneys, he ruled,
should save the public the expense of dressing the
defendants for court.
This simple ruling showed the judge fully in the character
for which he is known best, by those who know him best,
the lawyers who appear before him at the bar. He is,
they say, tight-fisted and efficient — a guy
who makes the trains run cheaply and on time. In the
phrase most often used to describe him, he is "a
Republican judge." His credentials as a law-and-order
jurist will again be tested in the continuing Davidian
case when he opens the wrongful-death lawsuit this
week brought by survivors of the government's April
19, 1993, final assault at Mount Carmel, which killed
leader David Koresh and 73 of his followers.
The Republican tag may puzzle those convinced there
isn't much difference between the two big political
parties, but it was loaded with meaning for the criminal
defense attorneys in the San Antonio trial, who, like
most members of their trade, were mostly Democrats
and strong supporters of their party. In their mouths,
a "Republican judge" is a jurist who, in
gray areas of his craft, "won't give the little
guy a break."
Their sentiment is echoed, on the civil side of the
docket, by plaintiffs' attorneys who have argued cases
in his court. "If a bank is getting sued, he's
going to be on the bank's side," one of them said.
Smith's batting average as a judge is about in the
middle of the pack. Fifty-eight percent of Smith's
rulings were upheld on appeal to the 5th U.S. Circuit
Court in 1999. Four Western District judges of his
rank had higher rates of reversal; four had lower rates.
But perhaps because of his reputation for severity,
he led the district in the number of cases that the
5th Circuit reviewed — 12 — compared with
an average of nine.
Smith is indeed a Republican, and a Republican's Republican
at that. "He's always been a stalwart stalker
for the Republican Party," said Stanley Rentz,
a Waco defense attorney in the San Antonio criminal
trial. That Smith was a conservative judge seemed evident
at the end of the six-week 1994 San Antonio trial,
which ended in an unwieldy, contradictory verdict.
Though the jury returned a finding of manslaughter
against eight of the defendants, it did not find any
of them guilty of the principal charges — conspiracy
to murder federal lawmen, which was Count One of the
indictment, or the murder of federal agents, the indictment's
Count Two. The jury did find seven of the defendants
guilty of the indictment's Count Three, using a firearm
in the commission of a federal offense.
The verdict was contradictory because the firearms
charge was without its necessary companion, a guilty
finding on the Count One conspiracy charge. Smith's
immediate reaction, expressed at a bench conference,
was that the verdict of guilty on the gun charge would
have to be thrown out. "The guilty finding as
to Count Three will have to be set aside," he
said, "because of necessity, the jury could not
find the defendant guilty of that offense without first
having found that defendant guilty of the conspiracy
offense alleged in Count One. ... That portion of the
verdict simply cannot stand."
Defense attorneys were overjoyed. They held an impromptu
news conference with two of the defendants, who had
been immediately set free, then adjourned to Polo's
bar at the Fairmount Hotel, where they uncorked bottles
of champagne. But within two days, Smith changed his
mind. "The bottom line is that it didn't matter
what I said," he explained recently, "if
I was wrong." A brief hurriedly submitted by prosecutor
LeRoy Jahn persuaded him he could sentence the defendants,
and he did. Some observers were outraged. Jury forewoman
and San Antonio schoolteacher Sarah Bain is still appalled
by Smith's move. "I just thought he totally, totally
had gone beyond what the jury intended. I was really
upset," she said.
In sentencing the guilty defendants, Smith faced a
choice. He had to decide whether the guilty defendants
had used ordinary or "enhanced" weapons — grenades
and automatic rifles and such — in resisting
federal officers. The difference was great: Federal
guidelines prescribe a five-year sentence for use of
ordinary weapons and 30 years for weapons of an enhanced
kind. No testimony showed that five of the defendants
had used enhanced weapons, but Smith ruled they had
done so anyway. On June 5, the U.S. Supreme Court ruled
that the issue should have gone to a jury, and ordered
the 5th Circuit to reduce the sentences of those Davidians
who had appealed.
Smith's about-face
In the aftermath of the San Antonio trial, a new corps
of lawyers came onto the Davidian scene, plaintiffs'
attorneys who wanted to hold the government liable
for the deaths of Koresh's followers. Some of these
attorneys filed suit in Houston, not Waco, "because
we knew who the judge would be," one of them said.
Those who filed in Houston spent most of two years
trying to keep the case out of Smith's Waco court;
others were still trying to have him recused as late
as last fall. When those efforts failed, some began
to worry he would grant government motions to dismiss
their claims. But July 1, Smith stunned the plaintiffs'
attorneys and most Waco-watchers by ordering the case
to go forward.
Late last summer, "looking over his glasses at
the government because of a pattern of delay and abuse," former
federal prosecutor Bill Johnston said, Smith ordered
federal agencies to turn over all of their records
about the Mount Carmel raid and siege. On May 26, Smith
surprised Waco-watchers again by authorizing a jury
trial of the case, instead of using his discretion
to hear the case without a jury.
"I was very pleased by what I think was a very
wise decision by the judge," plaintiff's attorney
James Brannon said. During the criminal trial, defense
attorney Dan Cogdell of Houston said, "Smith was
very pro-government, very anti-Davidian — no
ifs, ands or buts about it." But recently, he
said, the judge "has impressed me with the fairness
of his rulings in the civil case."
All adjudication is local, Part I
Neighbors in Waco's legal community say they are not
wholly surprised by Smith's apparent shift in sympathy.
If all politics are local, as former U.S. House Speaker
Tip O'Neill said in hyperbole, it's possible that all
adjudication is local, too. And if that's the case,
the extrajudicial motives for Smith's seeming about-face
are to be found close to his home.
Smith was born and raised some 30 miles south of Waco,
across the McLennan/Falls county line in Marlin. The
son of a physician, he spent his college years at Baylor,
both as an undergraduate and as a law student. He finished
law school in 1966. Within a month, on the recommendation
of a Baylor dean, Smith said, he was offered a job
in a Waco firm. Waco's legal-and-law enforcement community
is more tight-knit than perhaps is true in more populous
jurisdictions.
Felipe Reyna, for example, is a former state district
attorney whose older brother, Filiberto, or "Bert," is
a former federal probation and parole officer. Felipe's
younger brother, Feligomio, or "Phil," supervises
the federal pretrial affairs office. Two brothers,
Parnell and Mike McNamara, are federal marshals. Their
father, T.P, served 37 years as a federal marshal himself.
At one time, the father and sons worked together in
the marshal's office. Smith fits the pattern, too:
His wife, Brenda, works in the magistrate's office.
But the togetherness of the courthouse community has
a judicial consequence, some lawyers say, although
not on the record. It is that a kind of in-group mentality
prevails. "Because he is a federal judge in a
small town, he really is a big fish in a small pond," one
of the Davidian defenders said. "There's sort
of a clique that develops in courthouses, and the federal
judge is usually the head of it. "
Group thinking
The influence of group opinion and standing became
evident in the Waco affair within hours after the 51-day
siege ended, in an incident involving the late Jack
Harwell, the McLennan County sheriff for a quarter-century
and perhaps the only beloved figure to emerge from
the Mount Carmel controversy.
The sheriff's deputies manned roadblocks throughout
the siege, and Harwell, who knew Koresh personally,
once went to the telephones to negotiate. As McLennan
County's chief and senior law enforcement officer — he
was then in his 60s — Harwell had done what he
could to aid the hundreds of federal agents who had
descended on his town.
On the afternoon of April 21, two days after Mount
Carmel became ashes, Harwell, a daughter and a son-in-law,
both of whom lived outside the area, were cruising
in the countryside. From a public road that ran some
300 yards in front of the ruin, Harwell took pictures
of Mount Carmel for his kin with a snapshot camera — which
already contained shots of family life.
A state trooper pulled up, warning that photography
was forbidden. But because he recognized the sheriff,
the trooper called federal authorities. He wanted to
be sure the prohibition applied to everyone. Leadership
in prosecuting the federal government's case against
the Davidian survivors had already been turned over
to LeRoy and Ray Jahn of San Antonio, who outranked
Johnston, the Waco assistant U.S. district attorney.
The trooper's call reached LeRoy Jahn, who ordered
that the trooper seize the sheriff's camera. The trooper
did as he was told.
Harwell, humiliated, expressed his outrage to a member
of the courthouse crowd, who carried the complaint
to Smith. As he had done in earlier disputes in prosecutorial
circles, Smith went to bat for the local interest.
He wrote a letter to the Jahns, scolding them for snubbing
Harwell. They returned the sheriff's camera and also
replied to Smith.
"They sent me a four-page bureaucratese letter
that must have taken six people to compose," Smith
said. "I don't know what it said." The Harwell
incident helped set the stage for the San Antonio trial,
in which Ray Jahn would play the leading role. Smith
was not pleased by the indictment that Jahn drew, which
sought to hold the defendants responsible for a whole
series of acts, including child molestation and arson,
when the formal charges against them — murder
and conspiracy — could have been proved, the
judge thought, largely on the basis of the ATF-Davidian
shootout on Feb. 28.
"He has many times expressed to me frustration
with the way the case was prosecuted," said Johnston,
who was assistant prosecutor during the trial. If there
was bad blood between the judge and the Jahns before
and during the San Antonio trial, harsh feelings weren't
mended when Ray Jahn testified at congressional hearings
on the Waco affair in 1995. Jahn used the occasion
to criticize Smith. "Isn't it true that the Davidians
stated that they were acting in self-defense?" Rep.
Bill Zeliff of New Hampshire asked Jahn.
"That was a charge that was given to the jury,
but there was no evidence to support that charge ...
The court bent over backward and gave them a self-defense
charge," Jahn said. His complaint was well founded,
however much it displeased the judge. When the 5th
Circuit Court reviewed the trial record in 1996, it
opined that, "The evidence did not require the
proposed self-defense instruction," and added
that, "even evidence that the ATF agents fired
the first shot would not have been sufficient by itself
to warrant the self-defense instruction."
But Smith is unfazed by the circuit court's finding. "I
didn't think for a moment that the law required that," he
said. The 5th Circuit did not review another contentious
decision of Smith's, in which he departed downward
from federal standards in setting prison terms for
two of the defendants, Graeme Craddock and Ruth Riddle.
Instead of sentencing them, like the others, to 30-year
terms on the gun charge, he sentenced Craddock to 10
years and Riddle — who is now free — to
five years, on all charges. There was no legal basis
for him to do so.
"It was a discretionary decision that could have
been appealed by the prosecutor," Smith said. "Sometimes
justice requires that one has to risk getting reversed
on appeal." The Jahns, who decline to comment
on the trial, did not appeal the downward departures.
All adjudication is local, Part II
Ill will between Waco's courthouse crowd and the Justice
Department has not dissipated since the 1994 trial.
Instead, it has acquired new dimensions. In 1998, Colorado
filmmaker Mike McNulty, as part of his effort to produce
a sequel to his 1997 documentary, "Waco: The Rules
of Engagement," decided to pry for access to physical
evidence from the Mount Carmel affair. The evidence
was stored in a locker at Department of Public Safety
headquarters in Austin.
But McNulty was trapped in a Catch-22. When he asked
the Rangers for permission to view the evidence, he
was told that only the Justice Department could grant
him access. When he asked the Justice Department, it
passed the buck to the Rangers. Johnston was assigned
to deal with the pesky filmmaker. Though he said he
believed that McNulty's first Waco film was "inaccurate,
if not irresponsible," he also felt that "to
stonewall McNulty tended to lend some credence to his
already-held belief that the government had something
to hide."
The Waco prosecutor received permission to grant McNulty
access to the Austin locker, and he accompanied him
on the filmmaker's first visit. Soon, Johnston said,
he found himself in hot water with his superiors. McNulty's
examinations of the artifacts had spurred the Rangers
to do some checking of their own, and last summer they
confirmed that, as McNulty charged, the locker contained
pyrotechnic rounds capable of having sparked the fatal
blaze at Mount Carmel. The Justice Department had long
denied using such rounds.
By summer's end, a feud was brewing between Johnston
and the Justice Department, and, Johnston said, especially
with his superiors — San Antonio U.S. Attorney
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