FBI POST-FIRE DISINFORMATION
Jack Zimmermann laments, "Within 35 minutes, the Justice Department announced
from Washington that two `cultists' confessed to starting the fire.
That Monday night. . .the truth was released: No one had confessed to any
such thing. How many heard the retraction?"2/ And indeed this
was reported on CNN while the fire was still smoldering: "A spokesman for
Attorney General Janet Reno says that. . .two of those cult members have
admitted that they are the ones who started the fire." This was just
one of many examples of self-serving FBI and Justice Department disinformation
released immediately after the fire.
During SAC Bob Ricks' April 19th pre-fire press briefing and post-fire press conference and SAC Jeff Jamar's April 20th press conference the agents spewed forth some of the most outrageous disinformation. These included already described lies that Koresh never intended to write his book, Steve Schneider threw the phone outside the building, Davidians fired hundreds of rounds at tanks, the FBI was unable to fix the phones, agents watched Davidians start the fire, Davidians confessed to starting the fire, and Davidians shot those trying to escape.
Ricks also asserted that Koresh "wanted to have as many people killed as possible. That's why it was called Ranch Apocalypse." Ricks said Koresh "was demanding provocation to get in a fight with us. . .We believe they were preparing for another armed standoff." Ricks repeatedly speculated that "the children had been injected with some kind of poison to ease their pain."
Ricks also contradicted himself. During the morning briefing Ricks stated that Davidians worldwide, as well as those who had left Mount Carmel, assured the FBI there would be no suicide pact. Right after the fire Ricks revealed for the first time that Davidians had discussed a suicide pact on March 2nd.
Ricks claimed that Koresh had "lied" when he supposedly had told the FBI that the children were safe in bunkers. "His last act to America was yet another lie." But several minutes later Ricks stated the contrary, "They bunkered down the kids the best they could. . .we believed they were inside the cinder block room to protect themselves from the gas."
Ricks described the last big tank smashing deep into the building so that the FBI could put gas into the cinder block room: "We finally made entry into that area and gassed it." But just a few minutes later he denied this was any kind of "assault." "We never went in."
In his press conference Jeff Jamar claimed David Koresh was not writing his book, that three people observed Davidians starting the fire, that Koresh had had the children killed, that Davidans killed others trying to escape. Ricks and Jamar both falsely claimed that FBI agents saved escaping Davidians from suicide. They claimed Renos Avraam stayed on the roof until he caught fire and was saved by FBI agents--even though video footage clearly shows him jump off and walk away unharmed and and unaided. And they claimed that Ruth Riddle's attempt to escape FBI agents was a suicidal attempt to re-enter the burning building.
Ricks and Jamar sent their lies up the chain of command through then-Assistant Director of Criminal Investigation Larry Potts. FBI Director William Sessions repeated Ricks' and Jamars' disinformation in April 19 and 20th CNN, ABC-TV and other interviews. However, Sessions stressed that FBI experts and David Koresh himself had told the FBI "he did not intend to commit suicide," and the fire and the suicide were a "surprise."3/
During the 1993 House Judiciary Committee hearing FBI officials and agents continued the disinformation campaign, repeating these stories and others. At that time Ricks added the new charge that when a released child heard his father and Koresh were dead, he said, "I don't care. No more beatings." Ricks said the children had asked if their new home had a "beating room." However, social workers have not revealed any such child's statement.
While the FBI has forbidden its agents to speak to the press, in August, 1993 Bob Ricks charged at a private meeting that Steve Schneider had shot Koresh out of anger. "In the end, he probably realized he was dealing with a fraud. After [Koresh] had caused so much harm and destruction, he probably now wanted to come out, and Mr. Schneider could not tolerate that situation."4/ All this disinformation convinced the public the Davidians were the suicidal maniacs the FBI wanted Americans to believe they were.
On April 21, 1993 on "Larry King Live," Davidian David Thibodeau's attorney Gary Richardson criticized the FBI's disinformation campaign: "I've dealt with the FBI before, having been a former U.S. attorney. I've worked with them and I've worked against them, and the thing I do know. . .is that they are going to do everything they possibly can to try to convince the public that they are justified in their actions. . .They do things, and as a former U.S. Attorney I can tell you, they do things and then they sweep them under the carpet and try to come out looking lily white."
RENO/CLINTON DISINFORMATION AFTER THE FIRE
In the days after the fire, Attorney General Janet Reno, President Clinton and their representatives all emphasized "humanitarian" reasons for the assault, ones that presumably would play well with the public. However, they also blamed everything on David Koresh.
Janet Reno began a media blitz where she explained the prime reasons for the assault were the "fatigue" of the hostage rescue team and ongoing evidence that "babies were being beaten." However, in an April 20th briefing for reporters FBI Director William Sessions said his agency had "no contemporaneous evidence" of child abuse during the siege.5/ Reno quickly buckled under and confessed she had erred.
And she falsely claimed Davidians would not report on the childrens' welfare. On April 19th, on ABC's "Nightline," Janet Reno claimed that despite the FBI's sending in video tapes, "We did not receive verification that the children were okay." She refused to admit what the Justice Department concedes, such tapes were sent out on March 8 and March 28.
Reno repeatedly asserted in her press conference and on several television programs: "I approved the plan. I am responsible. The buck stops here." Dick DeGuerin told a reporter, "I'm very pleased that we have an Attorney General, finally, after 12 years, who will accept responsibility. But it's so refreshing, it's such a shock to have that, that when she grabbed the blame for herself, it deflected any other inquiry. . .[However, Reno] said, `I'll take the blame, but it's all Koresh's fault.' Well, that's not really taking the blame."6/
Janet Reno's public relations effort was extremely successful. Justice Department spokesperson Carl Stern asserted that while on April 19th the reaction from those who contacted the Justice Department was 10 to 1 against the assault, on April 20th, 8 out of 10 said they agreed with Janet Reno!7/ Two USA Today/CNN/Gallup polls taken right after the April 19th fire reflect the public reaction. In the first, only 13 percent of those responding objected to the February 28, 1993 BATF raid; 52 percent supported the raid.8/ And 93 percent of respondents backed the FBI's assault on the Branch Davidians, despite the fact that it ended in "an apparent mass suicide by fire."9/
The press and public's harshest criticism of Bill Clinton was his not taking responsibility as quickly and definitively as did Janet Reno. According to Elizabeth Drew in her book On the Edge: The Clinton Presidency, Clinton originally tried to give the impression that he had heard about and approved the gassing plan only the day before it occurred. In fact it was days earlier, Wednesday, April 13th when Nussbaum and Lindsey told Clinton about the plan, before Reno even had approved it.10/
During his April 20th press conference Clinton finally took responsibility, and like Reno, he emphasized, "It's because of the children. They have evidence that those children are still being abused, and that they're in increasingly unsafe conditions."11/ Of course, by the time Clinton made this statement, the children were all dead.
Clinton attacked Koresh. "The bureau's efforts were ultimately unavailing because the individual with whom they were dealing, David Koresh, was dangerous, irrational and probably insane. . .Mr. Koresh's response to the demands for his surrender by Federal agents was to destroy himself and murder the children who were his captives as well as all the other people there who did not survive."12/
During the press conference Clinton growled that Janet Reno should not have to resign "because some religious fanatics murdered themselves." At a press conference two days later he asserted, "I do not think the United States government is responsible for the fact that a bunch of fanatics decided to kill themselves." According to Elizabeth Drew, Clinton tried to intimidate the press from asking any more questions about the FBI's actions when he belligerently answered one reporter's question: "We know that David Koresh had sex with children. Does anybody dispute that? Does anybody dispute that? Where I come from, that's child abuse."13/
After the Oklahoma City bombing, Clinton again attacked Davidians, charging on the April 23, 1995 CBS-TV episode of "60 Minutes," "Before that raid was carried out, those people murdered a bunch of innocent law-enforcement officials who worked for the federal government. . .And when that [April 19th] raid occurred, it was the people who ran their cult compound at Waco who murdered their own children. Not the federal officials. They made the decision to destroy all those children that were there."
Justice Department outside expert Alan A. Stone, M.D. criticized Clinton's statement, saying, "President Clinton seemed to argue on '60 Minutes' that the ultimate fate of the Branch Davidians weeks later, during the final gas assault by the FBI, was somehow morally justified by what happened to the ATF agents who were killed in the botched initial surprise assault."14/
Why Have Reno and Clinton Supported the Coverup?
In its October 12, 1993 editorial, "The Waco Whitewash," the New York Times wrote, "the report is silent on the most glaring deficiency of the tragic episode: the lack of judgement at the top and the reasons for it." As the top law enforcement personnel in the nation, it is likely Clinton and Reno supported FBI officials' rationale--the maintenance of "law and order." Columnist Paul Craig Roberts commented, "If the Branch Davidians could hold out, others might get the same idea. Heavens, people might stop paying their taxes. There was too much rebellion in the defiance of authority."15/
Moreover, Clinton and Reno doubtless needed to cover up their own inexperience and incompetence in dealing with aggressive and devious FBI officials and agents. Former Black Panther Eldridge Cleaver writes: "The sin of Clinton and Reno is not that they conceived and perpetrated this dastardly carnage, but that their response to it was that of weak rulers who are captives of the power they are supposed to wield, as opposed to the masters of power, who would have pulled the plugs, kicked ass from Washington to Waco, and rolled bureaucratic heads for days. Clinton and Reno closed ranks with their culpable underlings, as is the wont of tyrants, even though these particular underlings were hangers-on from the Reagan/Bush regime. They sided with the power perpetrators against their weak and powerless victims."16/
Finally, we cannot discount the possibility BATF, and especially the FBI, intimidated both Clinton and Reno into covering up for their crimes. The FBI probably has a good deal of "dirt" on Bill Clinton and his friends. Treasury Department reviewer Henry S. Ruth, Jr., a former Watergate prosecutor, told a national television audience that the FBI has not been "held accountable, in the way other agencies have been held accountable. And part of this again goes back to the magic of J. Edgar Hoover and the mystique he created and the fear he created among the political apparatus in Washington."17/
FBI AND BATF CRIME SCENE COVERUP
The FBI's disregard for preserving the "crime scene" only increased after the April 19th fire. BATF was deeply involved in this coverup.
April 19th Destruction of Evidence
By now it seems clear that the FBI's gas and tank attacks themselves were a successful effort to cause massive destruction and destroy evidence. The FBI claims that once the fire started it held back the fire engines in order to protect fire personnel from Davidian gunfire. However, it is more likely that they wanted to ensure that Mount Carmel--and all its bullet-pocket walls and roofs--was completely burned and destroyed before allowing fire trucks near it.
Just to make sure no evidence survived, FBI tanks plowed it into the fire. CNN news footage shows tanks pushing the last standing two story wall into the fire. Network footage replayed in both "Waco, the Big Lie" videos clearly shows several tanks equipped with bulldozer blades repeatedly and systematically pushing the remaining debris into the flaming rubble.
Despite questions from the press and attorneys, the FBI has never bothered to give the American people an explanation for this systematic destruction of evidence. In response to a defense attorney's question at trial, R. J. Craig explained that at one point he was "dragging burning timber out of the area" of the buried bus in case anyone was trying to escape down into it.18/
FBI and BATF Really Controlled the Crime Scene
While Texas Rangers, who had been deputized as federal marshals by U.S. Attorneys, were technically in control of the "crime scene" after the fire, it is clear FBI agents were really in control. News footage shows FBI and BATF agents and other uniformed personnel all over the scene right after the fire. At trial Texas Ranger David Byrnes, who was in charge of the investigation, revealed that Rangers started taking over the scene "around 3:00 p.m.," two hours after the fire was over.19/
The Justice report admits the FBI provided substantial assistance to the Texas Rangers in combing through the crime scene and collecting evidence.20/ The Justice report reveals that one BATF firearms and explosives experts collected evidence after the fire; the Treasury report mentions several.21/
At trial Texas Ranger Fred Cummings acknowledged the BATF bomb squad was there on April 19th and 20th. Cummings also revealed FBI "laboratory" people helped him decide what evidence was significant enough to be collected, as opposed to being thrown in the big trash dumpster. Cummings revealed the trash was hauled off before defense attorneys had the opportunity to inspect it.22/ During CNN coverage of Bob Ricks' afternoon press conference, a live video feed from the site showed a large "U-Haul" truck pull up to the smoking ruins. At trial this was revealed to be an FBI-rented truck for removing evidence.23/ We only can wonder how much important evidence of BATF and FBI crimes ended up in the dumpster or the U-Haul truck.
Texas Rangers were not sufficiently careful in overseeing collection of evidence. As we have seen, some evidence, like half of the two front doors and the phone line, was never found. The small building next to the water tower was not checked for evidence until April 25th, six days after the fire--and after Graeme Craddock told authorities he had left a possibly live grenade there. Another allegedly live grenade was found in clothing left by Davidians an entire day after yet another allegedly live grenade was found in nearby clothing.
FBI or BATF agents even stole valuables from the ruins. Texas Ranger Johnny Waldrip confirmed that after the fire Rangers found an unopened church safe containing more than $50,000 in cash, gold coins, spools of platinum and personal valuables. Rangers turned the safe over to the FBI--but it never showed up on the FBI evidence list.24/
Defense attorney Dan Cogdell commented that it was mere "window dressing" to have the Texas Rangers put in charge of the criminal investigation. "It's stretching it to say they are bringing any kind of true independent judgement. They are in charge, but Federal agents are dissecting the crime scene and cross-checking all the evidence."25/
Whatever little separation there was between state and federal officials quickly ended. The New York Times reported that in "an apparent shift in policy" the evidence from Mount Carmel would be shipped to FBI laboratories. The Times noted that originally officials conducting the fire investigation "said that they were using private laboratories in an effort to avoid any appearance of conflict of interest that might arise from a Federal laboratory making conclusions about evidence in a case in which Federal agents' actions were being questioned." The Texas Ranger spokesperson told him "if you are concerned about a conflict of interest, you should talk to the U.S. Attorney's office." However, when he tried to do so, Justice Department spokesperson Carl Stern told him, "All the shifts in police (sic) I know of, are the ones you invented."26/ At trial, FBI weapons expert James Cadigan conceded that the Texas Rangers did in fact have facilities adequate to analyze all information.27/
May 12, 1993 Bulldozing of Remaining Evidence
Two weeks after the release of the "independent" fire investigators' report, but before Branch Davidian attorneys could send in their own fire investigators, bulldozers rolled across the burned rubble of Mount Carmel Center. SAC Jeff Jamar defended this action. "They're just filling holes so people won't fall in the pits. That's just part of taking care of the scene." Texas Rangers said bulldozing was necessary so the Texas Health and Water departments could begin work at the site. However, the Department did not do the work until the summer of 1994.
Bulldozers also smashed and crumbled the concrete room, destroying evidence that a roof cave-in killed several people, and moved around what little evidence remained. Attorney Jack Zimmermann said, "I guess what it does, it forever prevents any checking on the ATF's rendition that the fire was intentionally set."28/ Defense Attorney Jeff Kearney told reporters, "Government can say what they want now and there's little physical evidence to dispute it."29/
July, 1994 Clean Up of Property
The Texas Natural Resource Conservation Commission delayed cleaning up Mount Carmel, including removing several inches of topsoil allegedly contaminated with lead from bullets, until mid-1994. In the spring of 1994 KPOC-TV investigators discovered that the autopsy reports of forty-eight Davidians revealed lethal doses of cyanide. Noting that cyanide is a by-product of burning CS gas, Davidians obtained a court order allowing them to obtain soil samples from Mount Carmel just days before the soil--possible evidence of FBI crimes--was to be removed. Details of the findings were not available at publication.
FIRE INVESTIGATION COVERUP
The Justice report asserts that Texas Rangers assembled a team of "independent" fire investigators to determine the cause of the fire.30/ However, at trial Captain David Byrnes, head of the Texas Rangers investigation, testified that he himself did not put the fire investigation team together. Considering that he was deputized by and working for the U.S. Attorneys office, we must assume someone in that office actually chose the fire investigation team.31/
Head of Team Was BATF Sympathizer
The head of the supposedly independent fire investigation team was Paul C. Gray, Assistant Chief of the Houston Fire Department. However, Gray had close ties to BATF. He had served as a member of BATF's National Arson Response Team and taught classes for BATF agents. And his wife was a secretary in BATF's Houston office. Not surprisingly, BATF officials recommended him for the job.32/ At trial fire investigator Bill Cass stated he also had worked with BATF in previous fire investigations.33/
Attorney Jack Zimmermann revealed, "From 1982 to 1990, [Gray's] office was on Imperial Valley Drive, in the ATF office. . .He carried a card that identified himself as a special agent of ATF. He handed that card out to people when he interviewed witnesses."34/ Finally, Gray had socialized with BATF agent Steve Willis, who was killed February 28th, and attended his funeral.35/
Zimmermann writes that Paul Gray asked Zimmermann and Dick DeGuerin to aid in his investigation. The attorneys told Gray that because of his close ties to BATF they could not participate unless Texas Rangers asked them to do so. Otherwise, "Dick DeGuerin and I would not lend our credibility to the anticipated report." In response, Gray called an unscheduled press conference for that same day and announced that the fire was started by the "cultists."36/
Zimmermann immediately criticized Gray's conclusion that Davidians set the fires. "Until I see the evidence from an independent, impartial expert, I choose to believe the firsthand account of eyewitnesses who were in the center who said there was no fire started by the Branch Davidians."37/
Gray Withheld Evidence from Other Investigators
At trial Bill Cass, one of the three fire investigators called to the stand, revealed that Paul Gray actually had withheld from other members of the fire investigation team important evidence that a fire started in the gymnasium. Gray showed investigators infrared video taken only from noon on, evidently not showing them the 11:59:16 a.m. photograph which displays an obvious heat plume in the gymnasium. Cass acknowledged that he had not noticed--and Gray had not pointed out to other investigators--the 12:08:17 and 12:08:22 flashes in the window of the gymnasium's dog run. Gray also withheld from investigators the fact that the official FBI log entries revealed that FBI observers reported seeing fire at the back of Mount Carmel Center right after tanks collapsed the gymnasium.38/
Cass revealed that Gray, who took responsibility for investigating the flammability of CS gas, did not tell other investigators that manufacturers warn the gas is flammable. The Fire Report, based on Paul Gray's "research," repeatedly mis-identifies the gas used as the more toxic "CN" gas. And Gray asserts, "We are of the opinion that this fire was not caused by nor was it intensified by any chemicals present in the tear-gassing operation."39/
Cass confessed that he personally had not made a time study of the fire's start or progression and relied on Gray's interpretation.40/ Gray's withholding evidence suggests that the government believes it was the action of its tanks that started the fire in the gymnasium.
Under cross-examination fire investigator Andrew Armstrong conceded that he took Gray's word for it that clothing, wood, carpet and other samples he tested for flammables did in fact come from the area Gray claimed they did.41/ Finally, fire investigator James Quintiere confessed that while he met with other investigators right after the fire in Waco, he did not read any of their reports or use them to draw his conclusions about the spread of the fire. He did not reveal if this was because Gray withheld such information from him.42/
Gray never directed investigators to interview fire survivors, something done routinely in other fires. At trial fire investigator Bill Cass admitted he had not spoken to any survivors, including David Thibodeau or Derek Lovelock, two fire survivors who were not under indictment. However, he did speak to Davidian Donald Bunds who was cooperating with authorities, but was not at Mount Carmel during the siege or fire. When asked if he had spoken to survivors, investigator James Quintiere said, "absolutely not."43/
Fire Report Distorted Evidence
Despite the video footage of the damage to the building done by tanks and the extensive survivor testimony to their attorneys about people being trapped by falling debris, blocked stairways, caved-in walls, and rapidly spreading smoke and fire, the Fire Report concludes: "Considering the observable means of exit available, we must assume that many of the occupants were either denied escape from within or refused to leave until escape was not an option."44/
The Fire Report notes that fuel containers were found in the ruins, and flammble liquids were found on survivors shoes and clothes, without mentioning that Davidians were dependent on flammable fuel after the FBI turned off electricity and that it was spilled during the April 19th raid. It infers that any flammables found at the scene were present only for purposes of arson.45/
The Fire Report attempts to debunk what it calls "another theoretical explanation reported by the media," i.e., that tanks rupturing "a propane cylinder or flammable liquid container" started the fire. It does not reveal that survivors' blamed tanks knocking over lanterns. The Fire Report claims, "if this had happened, an immediate vapor air explosion or flash fire would have occurred involving the vehicle itself. It did not happen."46/ However, the report ignores the possibility that tanks smashing down walls and pushing around debris could knock over a lantern without coming into contact with any fire caused by the accident.
The report states, "This investigation establishes that these fires occurred in areas significantly distant from each other and in a time frame that precludes any assumption of a single ignition source or accidental cause."47/ In his April 26, 1993 press conference, Gray told reporters, "We believe it was intentionally set by persons inside the compound."48/
However, Gray and Fire Report deny the obvious: that a last barrage of tank attacks occurred in separate locations within the three minute period during which the fires began; that even one 50-ton tank smashing deep inside a rickety wooden building filled with dozens of lighted lanterns could start two or three fires in separated parts of a building; and that one fire could have raced around a flammable-laden building filled with natural flues. At trial fire investigator Bill Cass admitted he never before had to take into consideration the effect of several 50-ton tanks smashing repeatedly into a home within a five minute period.49/
During his press conference, Paul Gray claimed, "I do believe that a person could have survived the fire. I could speculate that there was ample room in the open pit area for everybody to have gotten into."50/ However, this statement directly contradicts what Gray put in his own report regarding the buried bus that served as a tunnel to the open pit or tornado shelter: "It is also possible that the escape route planned included the aforementioned tunnel system accessible through an opening in the floor at the west end of the building. A significant amount of structural debris was found in this area indicating that the breaching operations could have caused this route to be blocked."51/
JUSTICE DEPARTMENT COVERUP
Justice Department officials--especially Attorney General Janet Reno and Webster Hubbell--were involved much more deeply in the disastrous decisions at Waco than were their Treasury Department counterparts who approved the original BATF raid. And their actions resulted in far more deaths--76 people, 23 of them children. Moreover, President Clinton approved the April 19th assault "on the record" and may have had "off the record" communications with Webster Hubbell and others. Therefore, the Clinton White House and the Justice Department were motivated to conduct a much more systematic coverup of errors and crimes than was the Treasury Department.
Possible Coverup of Clinton's Role
As mentioned previously President Bill Clinton's close friends Assistant to the Attorney General Webster Hubbell, Deputy Secretary of the Treasury Roger Altman, White House Counsel Bernard Nussbaum and Deputy Counsel Vince Foster all were involved in Waco decision-making. Vince Foster committed suicide in July, 1993. The other three have resigned because of investigations into possible illegal Clinton fundraising and business dealings associated with the Madison Guaranty Savings and Loan Association and the Whitewater Development Corporation--the "Whitewater" affair.
Despite several indepth media investigations of Foster's death, it was not until May of 1995 an FBI interview was released in which Foster's widow admitted that the standoff in Waco had caused Foster "a great deal of stress," that he was "horrified" by the outcome and that he thought it was "his fault." This puts a new light on his claim that "the FBI lied in their report" to Janet Reno, since he may have been referring to their tricking her into approving their gassing plan. It also raises questions about whether any Waco-related files secretly were removed from Foster's office after his death.52/
In the summer of 1994 it was revealed that Roger Altman had alerted his close friend Bill Clinton to the status of "Whitewater" investigations as early as March, 1993--despite his earlier assertions to Congress that he knew nothing about efforts to alert Clinton until late 1993. Because so many believed Altman lied to Congress to cover up for his crony Clinton, he resigned his Treasury Department position in August, 1994. Clinton then gave Altman a low visibility White House job.53/
On December 6, 1994 Independent Counsel Kenneth Starr announced that Webster Hubbell had pled guilty to defrauding Rose law firm clients, including two government agencies, of $390,000 through "phony expenses and inflated fees." Facing up to 10 years in prison for his crimes, Hubbell cooperated with the Independent Counsel in the separate Whitewater investigation.
FBI background checks on Hubbell before his confirmation, which were ongoing during the siege at Waco, supposedly turned up nothing about the law firm's allegations against Hubbell--even though these were several months old. The FBI "will likely do an internal review" as to why the background check did not reveal this information. We must wonder if this is some of the "dirt" FBI agents or officials held back to bully Hubbell and Clinton into condoning and covering up for the massacre of the Davidians.54/
Presidential Advisor Bruce Lindsey, who also was involved in Waco decision-making, was a senior partner at a law firm which received hundreds of thousands of dollars in bond counsel fees from the Arkansas Development Finance Authority. Allegedly doing business with the Authority was a form of "payoff" for Clinton supporters. Whitewater Independent Counsel Kenneth Starr considered, but declined, to indict Lindsey for violating federal bank laws.55/
Many suspect that Clinton-Altman-Hubbell-Foster-Lindsay cronyism might extend to covering up errors or crimes related to the massacre of the Davidians, such as: whether Altman conveyed any secret messages from BATF raid leader Bill Buford to Clinton; whether Hubbell had some outside-the-chain-of-command contact with Clinton throughout the siege and on April 19th; whether Hubbell helped withhold David Koresh's April 14th promise-to-surrender letter from Reno; whether Hubbell, Foster and Lindsay had any improper role in Waco decision-making; whether Hubbell knew about possible Davidian plans to pursue a fiery defense against tanks; and whether Hubbell approved the decision to proceed with the demolition that led to the April 19th fire.
Justice Department Attempted to Forgo Full
President Clinton appointed Phillip B. Heymann, a Harvard Law School professor who had been nominated to be Deputy Attorney General, to lead the Justice Department investigation. However, in May, 1993 the New York Times reported that the not-yet-confirmed Heymann told an interviewer that investigators would not look at the decision to assault Mount Carmel with tanks and tear gas and that "Department officials have not yet decided whether even to pose questions to Ms. Reno." Heymann stated the report would not "be the ultimate truth about what happened." Other unnamed officials "concluded that nothing could be gained by looking more closely at her order to carry out the assault."56/
The day after the story appeared, and after several congressional representatives criticized this revelation, the Justice Department contended that Heymann "had erred" and that there would be a full investigation. The most revealing reason given was that Heymann's "remarks reflected a division within the Justice Department about how closely it should look at the events, with some high officials arguing forcefully that the inquiry should be more limited, to focus only on what should be done in future cases."57/
Review Team and Outside Expert Conflicts of
It is questionable whether Deputy Attorney General Heymann or Assistant to the Attorney General Richard Scruggs, working as they did under Attorney General Janet Reno, could do any independent investigation of errors in Justice Department or FBI decision-making or actions. The most noted conflict of interest was Heymann's appointing another former head of the Justice Department's Criminal Division, Edward S.G. Dennis, Jr., to be the chief reviewer of the government's procedures, decisions and actions in Waco. (Dennis also oversaw the investigation of the Philadelphia police department's bombing of MOVE in 1985.) This choice came under scathing attack by William Safire who noted that Dennis was in charge of the botched investigation of Banca Lavoro and its relation to Iraq-gate: "Ms. Reno's Criminal Division directed Atlanta prosecutors to shoot down the explosive case with a plea bargain, avoiding a public trial that would have exposed the machinations of the Bush-Thornburgh-Dennis crowd. How could Ed Dennis not be grateful? His judgment about the Waco fiasco: `there is no place in the evaluation for blame, and I find no fault.' One hand whitewashes the other."58/
No Testimony Taken Under Oath
Deputy Attorney General Phillip B. Heymann told reporters the review group did "not have the authority to issue subpoenas or grant immunity but could refer findings of wrongdoing for criminal prosecution."59/ Presumably, this means that agents and officials were not interviewed under oath. The Justice Department report makes no reference at all to these issues. Some of the FBI agents or officials who testified before congressional committees were not sworn in and still could be prosecuted were it proved they had lied to Congress.
Review Team Withheld Information from Outside
The Justice Department review team withheld damaging information from the Justice Department's panel of ten outside experts and even from its chief overseer, Edward Dennis. This included, of course, all and any previously mentioned missing physical evidence and withheld audio and video tapes. This also included information about CS gas, the early March memoranda prepared by FBI experts Smerick and Young advising the FBI not to harass the Branch Davidians, and David Koresh's April 14, 1993 promise-to-surrender letter.
Alan Stone complained to one reporter that when he asked for information on CS gas, the FBI provided him only "ambiguous and irrelevant material. . .even after the fact, the FBI and the Justice Department have never acknowledged the true import of the C.S. dangers."60/ On the May 15, 1995 "McNeil Lehrer News Hour," he spoke in stronger terms, charging: "I feel the FBI has stonewalled me. . .I believe they haven't been candid with me. . .I asked for material and I got nothing by gobblygook."
Only experts Nancy Ammerman and Alan Stone even mention the March, 1993 Smerick and Young memorandum. However, Nancy Ammerman learned of them from speaking personally with Peter Smerick. And Alan Stone, who withheld his report until he received all the information he requested, refers to the Justice Department originally withholding them from outside experts when he writes: "The evidence now available to me indicates that, contrary to my previous understanding and that of the other panelists, the FBI's Investigation Support Unit and trained negotiators possessed the psychological/behavioral science expertise they needed to deal with David Koresh and an unconventional group like the Branch Davidians. . .Panelists may have been misled, as I was, by FBI officials at the original briefings who conveyed the impression that they considered David Koresh a typical criminal mentality and dealt with him as such."61/
It is clear that Koresh's promise-to-surrender letter also was never shown to the outside experts. Only Nancy Ammerman refers to the letter.62/ However, she notes that she got her copy from Dr. James Tabor, not from the Justice Department.63/
In his report, Lawrence E. Sullivan, Director of Harvard's Center for the Study of World Religions, quotes at length from Koresh's April 9th and 10th letters to the FBI, trying to find evidence that Koresh would have come out--yet he never mentions the April 14th promise-to-surrender letter. He also quotes extensively from an earlier, defiant letter, which he was given at a Justice Department briefing of the experts. "In the briefing the letter seems to play the role of a last straw, measuring Koresh's intransigence and provoking the FBI to escalate their interventions."64/ If that letter was presented as the "last straw," doubtless it was also presented as the last letter.
The Justice Department evidently even withheld the letter from the review team's chief overseer, Edward Dennis. In his lengthy report Dennis refers only to the April 9th and 10th letters and Koresh's April 14th phone call.65/
Failure to Report to Congress on Tampering
with 9-1-1 Tapes
For the June 9, 1993 House Appropriations subcommittee hearing, an FBI agent gave a committee staff member an excerpted tape of the 9-1-1 calls between Lieutenant Larry Lynch and Davidians Wayne Martin, David Koresh and Steve Schneider.66/ The tapes had been edited into a 30 minute tape which Waco police said gave a "false impression of how the events occurred."67/
If one compares the transcript of the tape in the hearing record to the Treasury Department's minute-by-minute February 28th chronology, one finds the tapes actually have been re-sequenced. The section where Wayne Martin complains about helicopters shooting at him, at approximately 10:05 a.m., has been moved until after David Koresh calls 9-1-1 at 10:34 a.m.--after the helicopters withdrew from the scene. This might be evidence that someone wanted to discredit Martin's claims and cover up BATF's illegal shooting.
No Fault Finding for FBI or Justice Department
Errors or Crimes
At the October 8, 1993 press conference where the Justice Department released the report, chief reviewer Edward Dennis stated, "I find no fault in the performance of law enforcement during the standoff and the tear gas assault." He asserted "speculation regarding them coming out is irresponsible." Likewise, Deputy Attorney General Phillip Heymann said, "We can't come out with a scapegoat when there's no severe blame to be placed."68/
Reporters at the press conference asked Heymann if the Justice report was a "whitewash," especially compared to the Treasury Department report. Heymann answered that the Treasury report found "recklessness (in the initial raid) followed by a coverup." He asserted that in the FBI and Justice Department's handling of the Davidians, the "underlying facts are different," i.e., there was no recklessness and coverup.69/ Attorney General Janet Reno said: "I'm always concerned about the perception of a white-wash. But I don't go out to seek mea culpas and I don't go out to seek [a report that says] we didn't do anything wrong. I go out to seek the truth."70/
Outside expert Alan A. Stone disagreed, writing: "There is a view within the FBI and in the official reports that suggests the tragedy was unavoidable. This report is a dissenting opinion from that view."71/ Nevertheless, a number of newspapers, including the New York Times and the Washington Times labeled it a "whitewash."72/
Failure to Discipline or Prosecute Agents or
The Justice Department has taken no official action against agents or officials related to their actions at Waco. FBI Director Sessions was fired for other reasons in mid-1993. In late 1993 the FBI quietly replaced FBI Hostage Rescue Team commander Richard Rogers. Several other high officials have retired or been moved out of Washington as Freeh replaced them with his own team. However, while Freeh suspended Assistant FBI Director James Fox for violating repeated judicial admonitions to refrain from commenting on the World Trade Center bombing to the news media, he has taken no action against FBI agents involved in the deaths of 76 Davidian men, women and children.73/ It seems Freeh places a higher value on bureaucratic control than on human life.
Failure to Recommend Prosecutions in Weaver
There has been more press and congressional criticism of the FBI's handling of the Randy Weaver case for several reasons: there was less publicity surrounding the Weaver case and therefore less anti-Weaver government disinformation; there was no attorney general like Janet Reno to assume the blame, even as she effectively blamed the victims; there was no way to pin the killing of Vicki Weaver on Randy Weaver; and the FBI and Weaver prosecutors made sloppier mistakes in covering up evidence of federal agent crimes. Despite this criticism, the Justice Department and the FBI could not afford to prosecute, or even harshly discipline, the FBI agents and officials in charge of the Randy Weaver siege because these were the same individuals in charge at Waco: former FBI Director William Sessions, former FBI Deputy Director Floyd I. Clarke, Assistant Director for the Criminal Investigative Division Larry Potts, and HRT commander Richard M. Rogers.
In July, 1993 the Justice Department began an investigation into possible criminal misconduct on the part of FBI agents and officials. Some members of the Hostage Rescue Team, including Richard M. Rogers, refused to cooperate with investigators. Larry Potts, the senior FBI official who would have had to approve the new rules of engagement, told FBI investigators he did not remember giving Rogers a clear go-ahead to change them. However, in the Justice Department report Eugene Glenn, the FBI's on-site commander, swore to investigators that Mr. Potts did approve the rules of engagement, as did Richard Rogers.74/
Released in December, 1994 the 300 page report recommended criminal charges against the responsible agents, i.e., Richard Rogers and sniper Lon Horiuchi who shot Vicki Weaver. The report stated: "The rules of engagement not only departed from the FBI's standard deadly force policy, but also contradicted the Constitution of the United States." However, the Justice Department's Office of Professional Responsibility reviewed the report and concluded that the agents had not committed crimes and should face only disciplinary action. Janet Reno consulted the department's civil rights division which similarly concluded criminal prosecutions were not warranted. This was despite the fact that Idaho prosecutor Randall W. Day was considering prosecuting Potts, Rogers, Horiuchi and Federal Marshals Arthur Roderick and Lawrence Cooper for murder.75/
The Justice Department turned the matter over to Louis Freeh for consideration of disciplinary measures. On January 6, 1995 Freeh announced that 12 agents and officials would be disciplined with measures ranging from letters of censure to a maximum of 15 day suspensions. Larry Potts received a letter of censure for his "failure to provide proper oversight with regard to the rules of engagement." HRT commander Richard Rogers received a letter and 10 day suspension. Lon Horiuchi was not disciplined at all. It has been noted widely that the letters of censure are the same reprimand that Louis Freeh gave himself for losing his FBI cellular phone. Deputy Attorney General Jamie Gorelick approved Freeh's decision.76/
In May, 1995 FBI Director Freeh, with the approval of Janet Reno, promoted Potts to Deputy Director, the second highest position in the FBI. This disturbed many members of the public, press, Congress--and even of the FBI. Senator Larry Craig of Idaho said, "I expressed concern that to promote a person whose failure to act in a constitutionally appropriate way resulted in the loss of life. . .flew in the face of public sentiment. This relates to public concern about government agencies being responsible." And FBI Salt Lake City FBI chief Eugene Glenn, the Weaver site-commander, immediately wrote a letter to the Justice Department challenging the FBI's investigation and Pott's veracity. The Justice Department agreed to investigate further.77/ However, it remains unlikely that Janet Reno's Justice Department will prosecute for the Weaver murder those who are covering up the even more damning massacre of the Branch Davidians.
DAVIDIAN TRIAL CONTINUED THE COVERUP
The January- February 1994 trial of eleven Branch Davidians for conspiracy
to murder federal officers and weapon charges was yet another coverup of
federal crimes against the Davidians. The judge was under investigation
by the Justice Department for the first half of the trial. Federal
prosecutors, appointed by and under the ultimate control of Attorney General
Janet Reno and Associate Attorney General Webster Hubbell, repeatedly withheld
evidence from the defense, condoned BATF's and the FBI's tampering with
or destroying evidence and improperly influenced witnesses.
Despite the judge and prosecutors' best efforts to stifle the Davidians' ability to present an adequate defense, the jury found all Davidians completely innocent of the most serious charges, conspiracy to murder, and aiding and abetting murder of, federal officers. Three were found completely innocent and released. However, the judge's faulty instructions, faulty juror forms and juror error resulted in eight Davidians being convicted of crimes resulting in a total of 240 years imprisonment.78/ Davidians are appealing the verdicts and sentences.
Prejudiced Judge Frustrated Defense Efforts
U.S. District Judge Walter J. Smith, 54, presided over the trial. Smith has a reputation for being pro-prosecution and imposing the maximum sentence on defendants. Something sure to make Smith even more pro-government is that during the trial he was under investigation by the Justice Department for allegedly lying under oath during a civil suit trial. Smith had testified for the defendant, a newspaper and broadcasting company being sued for libel by a political opponent, former McClellan County District Attorney Vic Feazell. In July of 1993, Feazell filed a formal complaint against Smith for perjury because two "facts" to which Smith testified were proved to be false. These potentially career-ruining charges were hanging over Smith through the first half of the trial. In early February, 1994 the Justice Department "exonerated" Smith of the charges.79/ After this episode, Smith doubtless felt he was indebted to the Justice Department.
Defense attorneys charged that because Judge Smith allowed prosecutors to try defendants together, supposedly to save money, some defendants could not get a fair trial. Such "group trials" overwhelm the defense attorneys of usually indigent clients so they cannot present an adequate defense. Prosecutors swamp juries with "conspiracy facts" so they will not look at the paltry evidence against each defendant.
Judge Smith took the improper and possibly illegal step of restricting public access to the names of all potential jurors in the federal jury wheel for the Western District of Texas, a total of 16,000 individuals. He acknowledged his fear members of the Fully Informed Jury Association (FIJA) would send potential jurors their literature about jury rights--including the right of the jury to find defendants innocent if they disagree with the law or feel that the government acted improperly. Smith admitted he had heard "an organization" planned on distributing leaflets to potential jurors about "how they should ignore the law and follow their conscience."80/
Judge Smith took the unusual, but not improper, step of sending out questionnaires to 300 eligible jurors and then, based on their responses, choosing from those the 80 who would be subjected to questioning and challenge by attorneys.81/ Smith inquired about potential jurors' religious beliefs and asked: "Do you believe persons other than law enforcement officers should be permitted to own firearms?" Smith would not allow defense attorneys to see jurors' answers to this and other leading questions, telling them questionnaires would be bundled and could be reviewed only during appeals.82/
Declaring he would "not allow the government to be put on trial," Judge Smith forbid defense attorneys from mentioning self-defense, or asking questions, presenting evidence or calling witnesses who could prove self-defense. This was despite the fact the Davidians primary defense against all charges was that under statutory and common law BATF's excessive force on February 28, 1993, gave the Davidians the right to use armed force in self-defense. Only in closing arguments did Smith allow mention of self-defense. Jury forewoman Sarah Bain complained to a reporter about the withholding of evidence of self-defense, "I feel that we were improperly used."83/
Judge Smith repeatedly squashed defense efforts to introduce important evidence, including about the Davidians' legitimate fear of attack, their peaceful pre-occupations, BATF's flawed raid plan, Kathryn Schroeder's testimony that other Davidians told her they heard firing from helicopters, Jaime Castillo's statements to a Texas Ranger that he did not shoot on February 28th, portions of the 9-1-1 tape where Davidians refer to helicopter attacks and their right to defend themselves.84/
Judge Smith put up procedural roadblocks to prevent defense attorneys from calling the BATF and FBI agents most knowledgeable about and responsible for the aggressive BATF and FBI assaults on the Davidians. And he restricted David Koresh's gun dealer and business partner's testimony to a written statement "stipulated," i.e., approved, by prosecutors.85/
Defense attorneys declined to call their most important witnesses, the defendants themselves. They knew the judge would not allow them to answer questions about BATF's attack on them and their attempts to defend themselves, so the only answers they could have given would have been self-incriminating.
Prosecutors Helped Plan Assaults
Assistant U.S. Attorneys Bill Johnston, 34 and John Phinizy, 46, were prime motivators of the original BATF investigation. The Treasury Department report alleged Johnston insisted BATF use a paramilitary raid against the Davidians. The subject of whether he too should be a witness and whether his desire to cover up his own errors might lead to prosecutorial misconduct was a frequent subject of debate early in the trial.
Ray Jahn, 50, who was named lead prosecutor, was formerly a special counsel to, and had been good friends with, FBI Director William Sessions. The Justice Department had consulted with Jahn regarding their plans to gas Mount Carmel. Attorney Mike DeGeurin was so disturbed by this fact that he asked for Jahn to be dismissed as a prosecutor because he was a potential witness. The judge refused his request.86/
Prosecutors Withheld Important Evidence
In several motions for mistrial defense attorneys accused the government of repeatedly violating the Brady and Jencks rules, which require prosecutors to give defense attorneys adequate opportunity to inspect all evidence before it is presented in court. Prosecutors remained unfazed by evidence lost, destroyed or tampered with by BATF, the FBI or other government agencies. The most flagrant examples include:
* BATF and the FBI claimed they could not find one of the two steel double front doors which might have proved that BATF shot a first barrage of bullets at the unarmed David Koresh, critically wounding the unarmed Perry Jones.
* The medical examiner claimed that Perry Jones' only gunshot wound was to the mouth, despite Davidian claims--including those alluded to by prosecution witness Kathryn Schroeder--that the unarmed Jones was mortally wounded by BATF gunshots as he stood at the front door.
* Despite BATF officials' initial claim that BATF agents had taken video of the first minutes of the February 28th raid, prosecutors supported BATF's claim that in the first minutes of the raid BATF equipment both in the undercover house across the street and in the helicopters not been operated.
* Prosecutors did not tell the defense in advance that several BATF agents had changed their testimony from that first given defense attorneys, including regarding whether anyone had yelled search warrant, had seen David Koresh in the door or had shot dogs in the first minutes of the raid. Their new testimony was much more damaging to the Davidians.
* Prosecutors did not tell Livingstone Fagan's attorney in advance that two agents would testify that Fagan had shot at them. Only after BATF agent Evers testified that Livingstone Fagan had shot him did prosecutors turn over to Fagan's attorney evidence that cast doubt on that testimony--a copy of the photo lineup Texas Rangers had shown the agent in March of 1993. Next to the photo of Fagan, Evers had written, "unsure if identified from shooting or TV." Even Judge Smith criticized the prosecution for withholding this evidence.87/
* Prosecutors disclosed only on the morning of Kathryn Schroeder's testimony that Texas Rangers had a transcript of her original March, 1993 statement to them. Her statement clearly was different from testimony prosecutors gave defense attorneys. Schroeder then admitted on the stand that she had lied to authorities.
* Prosecutors would allow a defense attorney's weapons expert to inspect allegedly illegal machineguns only by looking at them through their plastic wrappings. The government has proved to no one outside of law enforcement that these weapons were illegal. This adds to suspicions that prosecutors and FBI weapons experts falsely claimed that some or all legal weapons were illegal ones--or that agents converted some legal weapons to illegal ones in BATF or FBI laboratories.
Prosecutors Intimidated and Influenced Witnesses
Prosecutors intimidated two Davidian women, Kathryn Schroeder and Marjorie Thomas, into testifying against other Davidians. They threatened to use the (often dubious) accusations of Davidian Victorine Hollingsworth, an elderly woman from England who turned against David Koresh after leaving Mount Carmel in March, 1993. Hollingsworth claimed Thomas, who was badly burned in the fire, carried a weapon during the siege. (No other Davidian facing only that accusation was prosecuted.)
Hollingsworth claimed that Schroeder carried a gun during the February 28th raid. Prosecutors also told Schroeder they had a BATF witness who would testify to seeing gunfire coming from her room. Fearful this evidence would lead to a life sentence, and separate her forever from her four children, Schroeder cooperated with prosecutors. At this point Hollingsworth and the agent withdrew their allegations against Schroeder.88/
Prosecutors obviously coached Hollingsworth at trial. She testified with confidence that she had seen various individuals carrying guns during or after the February raid. However, when one attorney read aloud her statement to Texas Rangers taken shortly after she left Mount Carmel in March, the transcript showed that Hollingsworth was very confused and unsure about who was carrying guns or of the difference between a handgun and a rifle.89/
Prosecutors may have influenced witness Bradley Rogans, a 23-year-old serving three eight-year sentences on drug-related charges. Rogans testified he befriended defendant Renos Avraam for almost a week at a Texas jail and that Avraam made incriminating statements about carrying and aiming an automatic weapon. Later it was revealed that Rogans had spent only one day at that facility and was paroled the next day.90/ During closing arguments Carroll inferred that Rogans had lied, calling him "an evidence-tampering, three-time felon, 23 years old, paroled the next day."91/
Defense attorneys accused prosecutors of coaching prosecution witnesses, in part to cover up their own misdeeds. Early in the trial FBI agent James Cadigan made the dramatic statement, "I have not seen that many firearms or that quantity of ammunition outside a firearms munitions plant." An angry defense attorney asserted that his testimony had been "rehearsed." Cadigan admitted, "I have discussed my testimony with the prosecution."92/ While prosecution witnesses all met at least once with prosecutors, twenty or more federal agents scheduled to testify attended a November, 1993, pre-trial meeting with prosecutors.93/ Doubtless they received more coaching, plus a subtle reminder that they must all hang together--or some might hang separately.
Paltry and Questionable Evidence Against Convicted
Most, but not all, of the Davidians identified as carrying a gun on February 28, 1993 were prosecuted. Those who only were accused of having carried a gun during the siege, including David Thibodeau, Rita Riddle and Derek Lovelock, were not prosecuted. Besides the not entirely credible evidence presented by the three Davidian prosecution witnesses, federal agents and a "jailhouse snitch," the most significant evidence against three defendants was their own truthful testimony to Texas Rangers after they left Mount Carmel. There was no credible testimony that any Davidian carried an illegal automatic weapon on February 28th or during the siege; Kathryn Schroeder did allege she herself carried one. What follows is listed the paltry and dubious evidence against eight Davidian prisoners, mostly related to self-defense against the 76 BATF agents who shot machineguns, threw dangerous flash-bang grenades and even fired from a helicopter on February 28, 1993.
Renos Avraam, 31, a British business-man of Greek heritage, joined the Davidians in 1991 and escaped the fire. Evidence presented against him was: Marjorie Thomas saw him with a gun during the siege; Kathryn Schroeder alleged Avraam told her he fired a gun February 28th and manned a .50 caliber gun during the siege; Bradley Rogans alleged Avraam confessed that he had a fully automatic weapon, that he was a good shot and that he had aimed his gun; an FBI agent testified he saw Avraam drop a pistol off the roof as he was escaping, but a Texas Ranger said he found no such pistol anywhere near where the gun would have fallen.94/
Brad Branch, 36, a Navy veteran and technician and frequent visitor to Mount Carmel, left during the siege. Evidence presented against him was: Marjorie Thomas said she saw him with a gun on February 28th and heard him claim he had shot someone; Victorine Hollingsworth said she heard Branch say "something like. . .One nearly got me and I got one," but that he was defending the women and children.95/
Jaime Castillo, 27, a California musician, joined the Davidians in 1988 and escaped the fire. Evidence presented against him was: Marjorie Thomas saw him with a gun February 28th; Kathryn Schroeder saw him with an AK-47 during the siege but did not know if it was automatic; Texas Ranger Gary de los Santos testified Castillo said he had three different guns on February 28th; a BATF agent testified Castillo kept a gun pointed on her and other armed agents as they helped a wounded agent in the court yard. (The judge would not allow jury to hear that Castillo also told the Ranger that he had hid on the floor during the gun battle, he had seen Winston Blake dead on the floor or that he did not point his gun at the female agent.)96/
Graeme Craddock, 34, an engineer from Australia, had been at Mount Carmel a year and escaped the fire. Evidence presented against him was: Kathryn Schroeder saw him with a gun on February 28th; Marjorie Thomas saw him with a gun during the siege; his testimony to a Texas Ranger and a grand jury that he had a gun on February 28th but did not fire it and that David Koresh gave Craddock what he said was a live grenade; his admission he left the grenade in the concrete building next to the water tower.97/
Livingstone Fagan, 37, a British minister and father of two, left during the siege to be spokesperson for the group. His wife Yvette and mother Doris died during the fire. Schroeder saw him with a gun February 28th; Hollingsworth claimed Fagan said he shot an agent who was shooting at him; two BATF agents gave questionable testimony Fagan had shot at them outside the building. However, Hollingsworth testified she saw another black man, now deceased, in the place where agents claim they saw Fagan; two defendants similarly could have testified that man was not Fagan, had it not been a group trial; a BATF agent said the black man shooting looked like a large man--Fagan is a small man.98/
Paul Fatta, 35, a Hawaiian business-man, father of one and long time Davidian, was at a gun show in Austin on February 28th. Evidence presented against him was: government allegation two guns Fatta purchased had been converted to illegal automatics; Kathryn Schroeder's testimony other Davidians--but not Fatta--later converted some guns to illegal machineguns.99/
Ruth Riddle, 31, a Canadian member for several years, who escaped the fire with David Koresh's first chapter of the Seven Seals. Her husband Jimmy Riddle died on April 19th. Thomas and Schroeder saw her with a gun February 28th; she admitted to authorities she gave her rifle to another Davidian during the shootout.100/
Kevin Whitecliff, 33, a father of two from Hawaii, had been at Mount Carmel a year and left during the siege. Evidence presented against him was: Marjorie Thomas said he claimed he said he had shot someone; Kathryn Schroeder alleged he told her he shot at helicopters which Davidians say were firing on the building.101/
Judge's Faulty Instructions Led to Convictions
Judge Smith gave the jurors a sixty-seven-page "Court's Instruction to the Jury" setting out the charges and the specific rules of law which they should use in determining innocence or guilt. Jury forewoman Sarah Bain complained after the trial that Judge Smith had never informed the jury that they might request relevant evidence that had not been presented. She said, "If I knew we could ask for missing evidence, I would've done so then." She particularly was concerned that prosecutors had presented only the search and arrest warrants at trial, and not the affidavits. She said jurors had looked for them among the "ton of paperwork," but never found them.102/
On February 26, 1994 jurors found all eleven Davidians innocent of the First Count of the indictment, conspiracy to murder federal agents, and of the Second Count, aiding and abetting murder of federal agents. Three Davidians were acquitted of all charges. Judge Smith did find sufficient evidence that Davidians had acted in self-defense to allow defense attorneys to bring it up in final arguments and to include self-defense as a defense against the charges of murder of federal agents. Jurors believed Davidians did in fact act in self defense. Jury forewoman Sarah Bain said the one hour 9-1-1 tape--which jurors specifically asked to hear again in the jury room--was the most impressive evidence to jurors that Davidians had acted in self-defense.103/ One juror told a reporter, "When we heard all that testimony, there was no way we could find them guilty of murder. We felt provocation was pretty evident."104/
Unfortunately, with the agreement of defense attorneys, Judge Smith had added a new charge to the Second Count--aiding and abetting voluntary manslaughter. (Most Davidian defendants did not find out about the new charge until just before verdicts were read and were angry about its being added.105/) Despite defense attorneys requests that he do so, Smith did not instruct the jury on any grounds by which defendants might be found innocent of this charge, i.e., self-defense. Sarah Bain admits that the lack of any defense instruction forced jurors to find five Davidians--Renos Avraam, Brad Branch, Jaime Castillo, Livingstone Fagan, and Kevin Whitecliff--guilty. She said jurors believed aiding and abetting voluntary manslaughter was a minor charge that would earn them little time beyond that served.106/ In fact, the maximum sentence is ten years.
In his instructions to the jury, Judge Smith twice explicitly tied Count Three, using or carrying a firearm during and in relation to the commission of a crime of violence, only to Count One, conspiring to murder federal agents. However, the jury did not read the instructions very carefully and the connection between the charges was not specified on the verdict form on which the jury relied. Confused jurors thought they were finding seven Davidians--Renos Avraam, Brad Branch, Jaime Castillo, Graeme Craddock, Livingstone Fagan, Ruth Riddle and Kevin Whitecliff--guilty of carrying a weapon during the crime of aiding and abetting voluntary manslaughter. Again, jurors thought this was a minor charge for which Davidians would receive short sentences.107/ In fact, the maximum sentence is 30 years. Sixty-nine-year-old juror Jeanette Felger told a reporter, "I would never have voted that way if I had known it was connected to Count One."108/
Smith admitted to defense attorneys this weapons verdict was inconsistent, but refused to send the jury back to reconcile the verdicts, insisting "that portion of the verdict simply cannot stand. . .So, the Court will set that finding aside." Prosecutors did not object.109/ Because Smith set the finding aside, defendants did not exercise their right to "poll" the jury and see if each one did in fact support the final verdict.
However, on February 28, 1994, prosecutors asked Smith to reinstate the weapons verdicts. On March 9, 1994, in his Memorandum Opinion and Order, Judge Smith did so, citing previous case law. Smith argued he only had spoken "prospectively in terms of a future written order" about setting the verdict aside, since he was unsure of the law in this area.
Jurors also found Graeme Craddock guilty of possession of an unregistered hand grenade despite the fact thate grenades was found six days after the fire. Despite the lack of any evidence that Paul Fatta was involved in illegaly converting weapons, jurors believed the government's testimony that the guns bought by Fatta had in fact been converted to illegal machineguns, and found him guilty of manufacturing and conspiring to manufacture machineguns. Afterwards jury forewoman Sarah Bain acknowledged that she herself was beginning to wonder if prosecutors and government weapons experts lied about the weapons.110/
Judge Imposed Maximum Sentences
Despite the jurors' belief Davidians should get little time for the "minor charges" on which they convicted them, and letters from two jurors requesting leniency, Judge Smith threw the book at the Davidians. Smith claimed that Davidians did indeed engage in a conspiracy to cause the death of federal agents, shot first at BATF and murdered other Davidians--effectively rejecting the jurors' finding that they were innocent of any such conspiracy.111/ Smith gave the five convicted Davidians the maximum sentence, 10 years.
Smith also agreed with prosecutors' arguments that the government can argue someone carried a machinegun, even if it was not part of the original indictment. They cited the "fortress theory"--that a defendant found in a place where a large number of weapons have been accumulated can be assumed to have had access to all those guns, legal and illegal. Until this time the fortress theory only had been used in drug cases. Judge Smith found that all defendants had "constructive possession" of automatic weapons and sentenced seven Davidians to a total of 170 years.112/
Final sentences were: Renos Avraam, 40 years; Brad Branch, 40 years; Jaime Castillo, 40 years; Graeme Craddock, 20 years; Livingstone Fagan, 40 years; Paul Fatta, 15 years; Ruth Riddle, 5 years; and Kevin Whitecliff, 40 years. Prosecution witness Kathryn Schroeder later received a three year sentence.
Davidian Appeals for Justice
Six Davidians, Renos Avraam, Brad Branch, Graeme Craddock, Jaime Castillo, Paul Fatta, and Kevin Whitecliff, immediately appealed the verdicts and sentences. All retained their original attorneys except Jaime Castillo who engaged weapons expert Stephen Halbrook. Halbrook helped win the June, 1994 Staples vs. the United States court case which protects gun owners who unwittingly come into possession of an illegal weapon. Ruth Riddle, who had received a reduced sentence of five years, did not appeal, fearing judges might comply with any prosecution request and increase her sentence. Livingstone Fagan, who faced a rigged trial with government witnesses who lied about him and a judge who effectively prevented witnesses from testifying on his behalf, expressed his contempt by refusing to appeal his 40 year sentence. (However, should other Davidians' appeals succeed, in part or in full, Riddle and Fagan would have avenues of legal recourse.)
Five Davidians are appealing for new trials or dismissal of verdicts for the aiding and abetting manslaughter charge based on: the judge's failure to instruct the jury as to any defense for the manslaughter charge; presentation of insufficient evidence to justify the verdicts. They are appealing for dismissal of the weapons charge based on: the fact that Title 18 924(c)(1) clearly specifies that the defendant must be "convicted" of the first crime (i.e., conspiracy to murder in the Davidians' case) before they can be convicted of using a firearm in relation to the crime; the fact Judge Smith stated he would "set aside" the charge and then reinstated it, a possible case of double jeopardy. If those arguments fail, they ask for reduced sentences based on: the fact that Davidians were not indicted for or convicted of possession or use of machineguns; the lack of evidence any Davidians carried illegal weapons; the sentences' inconsistency with the June, 1994 Staples vs. U.S. case which holds that the government must prove an individual knew he or she was in possession of an illegal weapon. Two Davidians are basing their call for dismissal of the grenade and automatic weapons charges against them on insufficient evidence.
After the verdicts were announced, jury forewoman Sarah Bain went on a number of radio talk shows to protest Judge Smith's actions in the case. Bain told one reporter, "The federal government was absolutely out of control there. We spoke in the jury room about the fact that the wrong people were on trial, that it should have been the ones that planned the raid and orchestrated it and insisted on carrying out this plan who should have been on trial."113/
Brad Branch interview, CNN, April 19, 1993.
2. Jack B. Zimmermann, Esq. paper, "The Legacy of Waco: The Demise of ATF and Justice Department Integrity," 1993.
3. William Sessions interview, CNN, April 19, 1993; ABC-TV Special "Waco: The Decision to Die," April 20, 1993.
4. "FBI Agent Suggests Koresh was killed by vengeful aide," Dallas Morning News, September 5, 1993.
5. Stephen Labaton, "U.S. Opens Up to Avoid Backlash on Cult Attack," New York Times, April 22, 1993, B13.
6. Steve McVicker, July 22, 1993.
7. Stephen Labaton, April 22, 1993, B13.
8. "Poll: Most supported first raid," USA Today, April 21, 1993, A3.
9. Mark Mayfield, "Poll: 93% blame Koresh," USA Today, April 21, 1993, A1.
10. Elizabeth Drew, On the Edge: The Clinton Presidency, (New York: Simon & Schuster), p. 131.
11. Stephen Labaton, "Officials Contradict One Another on Rationale for Assault on Cult," New York Times, April 21, 1993, A1.
12. Federal News Service transcription of April 20, 1993 press conference.
13. Elizabeth Drew, p. 133.
14. Jerry Seper, "Reviewer disputes Clinton on Waco," Washington Times, April 27, 1995.
15. Paul Craig Roberts, "Rallying Round Reno," Washington Times, May 7, 1993.
16. Eldridge Cleaver, "Waco: Bill Clinton's Bay of Pigs," in James R. Lewis, Editor, pgs. 235-36.
17. "American Justice" program, "Attack at Waco," August 3, 1994.
18. Trial transcript, p. 5539.
19. Ibid. p. 610.
20. Justice Department report, pgs. 308-09.
21. Ibid. p. 228; Treasury Department report, p. 128.
22. Trial transcript, pgs. 1080-81, 1087-88.
23. Ibid. p. 617.
24. James L. Pate, July, 1994, p. 49; trial transcript, p. 6847.
25. Michael deCourcy Hinds, "Arson Investigators Say Cult Members Started Fire," New York Times, April 27, 1993.
26. Michael deCourcy Hinds, April 28, 1993, A16.
27. Trial transcript, pgs. 1244-7.
28. "Cultist's lawyer calls bulldozing of site a cover-up," Washington Times, May 13, 1993.
29. Sue Anne Pressley and Mary Jordan, April 21, 1993.
30. Justice Department report, p. 329.
31. Trial transcript, pg. 602, 668.
32. J. Michael Kennedy, "Waco Cult Set Fire, Texas Officials
Say," Los Angeles Times, April 27, 1993, A7; Michael deCourcy
Hinds, April 27, 1993.
33. Trial transcript, pgs. 5852-55.
34. James L. Pate, October, 1993, p. 75.
35. James L. Pate, November, 1993, pgs. 74-75.
36. Jack B. Zimmermann, Esq. paper, 1993.
37. Associated Press wire story, April 27, 1993, 04:10 EDT.
38. Trial transcript, pgs. 5839-46.
39. Justice Department report, Fire report, p. 8.
40. Trial transcript, pgs. 5836-37, 5847, 5859-62, 5869.
41. Ibid. p. 5748.
42. Ibid. p. 5932.
43. Ibid. pgs. 5811, 5816, 5834, 5951.
44. Justice Department report, Fire report, p. 9.
45. Ibid. p. 3.
46. Ibid. p. 9.
47. Ibid. p. 3.
48. Hugh Aynesworth, "Koresh followers set fires," Washington Times, April 27, 1993.
49. Trial transcript, pgs. 5819-22.
50. "Cultists had tunnel to escape fire, arson prober says," Washington Times, May 1, 1993, A5.
51. Justice Department report, Fire report, p. 10.
52. Jerry Seper, "Foster felt Waco was 'his fault," Washington Times, May 23, 1995, A1, A13.
53. Frank J. Murray, "Altman gets close to the heat," Washington Times, March 3, 1994, A1, A10; Susan Schmidt, "Altman Testimony Disputed," Washington Post, July 24, 1994, A1; "Act 2," John McCaslin, Washington Times, September 23, 1994.
54. Jerry Seper, "Hubbell pleads guilty to fraud," Washington Times, December 7, 1994, A1, A16; Sharon LaFraniere and Pierre Thomas, "Surprised Colleagues Discover 'a Webb Hubbell nobody knew'," Washington Post, December 7, 1994; Susan Schmidt, "Hubbell Pleads Guilty to Fraud Charges," Washington Post, December 7, 1994, A1, A18.
55. Jerry Seper, "Whitewater probe grows to include state agency," and "State agency Major Source of funds for Clinton backers," Washington Times, January 24, 1994, A1, A9.
56. Stephen Labaton, "Inquiry Won't Look at Final Waco Raid," New York Times, May 16, 1993, A20.
57. Stephen Labaton, "Justice Inquiry Will Now Examine Assault on Cult," New York Times, May 18, 1993.
58. William Safire, "Waco, Reno, Iraq-gate," Washington Post, October 14, 1993.
59. Michael deCourcy Hinds, "Toll is Lowered for Sect Dead to Around 72," New York Times, April 30, 1993, A12.
60. Jerry Seper, "Reviewer disputes Clinton on Waco," Washington Times, April 27, 1995.
61. Alan A. Stone, M.D. report to Justice Department, 1993, p. 12.
62. Nancy Ammerman report to Justice Department, 1993, p. 8.
63. Nancy Ammerman, private communication, February, 1994.
64. Lawrence E. Sullivan report to Justice Department, October 8, 1993, p. 5-6.
65. Edward S. G. Dennis, Jr. report to Justice Department in Recommendations of Experts for Improvements in Federal Law Enforcement after Waco, October 8, 1993, p. 26.
66. June 9, 1993, House Appropriations subcommittee hearing, pgs. 99-129.
67. Associated Press story, "FBI tape of Waco talks probed," Washington Times, June 17, 1993.
68. Jerry Seper, "Tragedy Blamed on Cult: Reno Says Report is Not A Whitewash," Washington Times, October 9, 1993.
69. Michael Kirkland, "Justice Department rejects charges of Waco `whitewash,'" United Press International, October 14, 1993; "No sanctions expected in Waco raid," Washington Times, October 14, 1993.
70. Michael Isikoff, October 9, 1993, A10.
71. Alan A. Stone, M.D. report to the Justice Department, 1993, p. 46.
72. "The truth about Waco, still untold," Washington Times, October 13, 1993); "The Waco Whitewash," New York Times, October 12, 1993.
73. Kirk Lyons, private communication, June, 1994; Michael Isikoff, "FBI Director Suspends Head of New York Office," Washington Post, December 22, 1993.
74. David Johnston and Stephen Labaton, "F.B.I. Shaken by Inquiry into Idaho Siege," New York Times, November 25, 1993; "Senior FBI official disputes Potts over orders in Weaver shootout," Washington Times, March 6, 1995.
75. Jerry Seper, "Craig hits holdup on probe report," Washington Times, November 22, 1994, A3; Pierre Thomas, "FBI to Consider Disciplining Agents in '92 Idaho Shootout," Washington Post, December 1, 1994, A1, A24; Jerry Seper, "Five federal agents could face murder charges in Idaho raid," Washington Times, December 25, 1994, A3.
76. Jerry Seper, "FBI disciplines 12 in Weaver case," Washington Times, January 7, 1995, A5; Jerry Seper, "FBI official called unfit," Washington Times, April 14, 1995.
77. Jerry Seper, "Reno Promotes Censured FBI boss," Washington Post, May 3, 1995; Ruth Marcus, "FBI Chief Gets His Man for No. 2 Post," Washington Post, May 7, 1995, A6; Pierre Thomas, "Probe of FBI Siege Questioned," Washington Post, May 12, 1995.
78. This section is a condensation of a much longer, fully footnoted version and has been selectively footnoted.
79. Hugh Aynesworth, "Waco judge" `Smart' and `vindictive.'" Washington Times, January 30, 1994, A6; Hugh Aynesworth, "Waco judge cleared of lying in opponent's trial," Washington Times, February 6, 1994.
80. Lone Star FIJA Press Releases, January 3, 1994 and January 11, 1994.
81. Jack DeVault, p. 41; January 6, 1994 trial transcript, pgs. 5, 6, 13.
82. Jack DeVault, p. 43; Jack Devault, private communication, November, 1994; January 6, 1994 pre-trial transcript, pgs. 15-16.
83. January 6, 1994 trial transcript, pgs. 45-46; January 10, 1994 trial transcript, pgs. 4-5, 81-83; defense attorney Steven Rosen on CNN Court News, January 10, 1994; Egon Richard Tausch article, 1994; Benedict D. LaRosa, "The Branch Davidian Trial: An Interview with Sarah Bain, Forewoman," Fully Informed Jury Association News, June 24, 1994.
84. Transcript, pgs. 410-11, 457-58, 579, 3058-61 3269-70, 3379, 3396, 4115, 4628-29, 6359, 6359, 6362, 6479-85.
85. Trial transcript, pgs. 4826-28, 6841-44, 7262.
86. Ibid. p. 754.
87. Ibid. pgs. 1657-68.
88. Ibid. pgs. 4126-27, 4240; "Koresh Follower Pleads Guilty to Resisting Officer," New York Times, September 12, 1993.
89. Trial transcript, pgs. 4157-58.
90. Ibid. pgs. 6083-92.
91. Ibid. p. 7166.
92. Ibid. pgs. 1199-2001, 2768.
93. Ibid. pgs. 2503, 2988.
94. Majorie Thomas testimony, November 17-18, 1993, pgs. 56-57;
trial transcript, pgs. 4517, 4492, 5379-80, 5450-52, 6086-92, 7166.
95. Majorie Thomas testimony, November 17-18, 1993, pgs. 45, 48-51; trial transcript, pgs. 574, 579, 4099, 4153.
96. Majorie Thomas testimony, November 17-18, 1993, pgs. 45; trial transcript, pgs. 2972-77, 4500-01, 3058-60, 3096.
97. Majorie Thomas testimony, November 17-18, 1993, p. 46; trial transcript, pgs. 4502, 6076, 6352, 6375, 6390-92.
98. Trial transcript, pgs. 1541-42, 1590-92, 2641-42, 2548, 2683, 4129.
99. Trial transcript, pgs. 1170, 1179-82.
100. Majorie Thomas testimony, November 17-18, 1993, p. 45; trial transcript, pgs. 4387, 4496, 5507.
101. Majorie Thomas testimony, November 17-18, 1993, pgs. 48-51; trial transcript, p. 4515.
102. Benedict LaRosa, June 24, 1994.
103. Sarah Bain, private communication, June, 1994.
104. Dick Reavis, "Waco: Justice Takes a Holiday," Soldier of Fortune, October, 1994, p. 39.
105. Livingstone Fagan paper, August, 1994, p. 20; private communication with five Davidian prisoners, June 19, 1994; Jack DeVault, p. 182-83.
106. Associated Press, "Cult Jurors Rip Government's Action in Raid," Austin American Statesman, March 1, 1994, B3; Sarah Bain, private communication, June, 1994; Sarah Bain, June, 1994, letter to Judge Walter J. Smith.
107. Benedict D. LaRosa, June 24, 1994; Sarah Bain, private communication, June, 1994.
108. Dick Reavis, October, 1994, p. 39.
109. Trial transcript, pgs. 7409-10.
110. Benedict D. LaRosa, June 24, 1994; Sarah Bain, private communication, October, 1994.
111. June 17, 1994 trial transcript, pgs. 201-02.
112. Ibid. pgs. 205-19.
113. Dean M. Kelley, "Waco: A Massacre and Its Aftermath," First Things, May, 1995, p. 37.