Waco's unanswered questions

The trial is over, but both Branch Davidians and supporters of the government are disappointed that reports of lying and misconduct have been ignored.

By Robert Bryce
July 17, 2000 3:00PM (UTC)
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Last Friday's verdict in the Branch Davidians' $675 million lawsuit against the federal government is reminiscent of a photograph taken shortly after Mount Carmel burned to the ground. The widely published photo shows federal agents sorting through the charred rubble of the Davidians' home. A pair of bulldozers is on the left. On the right is a flagpole topped by the American flag. Below it is the Texas flag. And below the Texas flag flutters a blue banner emblazoned with the initials ATF.

The photo tells a great deal about the government's attitude toward the Davidians in the hours after the deadly fire. "All those people may be dead," the Bureau of Alcohol, Tobacco and Firearms flag seems to say, "but we won the battle."


By winning the civil trial, the government has prevailed again over the Davidians. But the trial and the verdict have left both sides disappointed. U.S. District Judge Walter Smith Jr. limited both sides to 40 hours of presentation, a ruling that kept mountains of evidence out of court and many pivotal witnesses off the stand. There remains much that the public doesn't know about the deadly standoff, which resulted in the deaths of 80 Branch Davidians -- including 18 children under age 10 -- and four ATF agents.

Supporters of the federal position are pleased their side prevailed, but some are angry that the Department of Justice hasn't prosecuted federal miscreants who lied about what happened at Mount Carmel. And both sides fear that supporters of the Davidians may express their anger by taking action against the federal government.

"This will be more salt in the wound of people who were hoping that this trial would provide some kind of redemption for the Davidians," said Stuart A. Wright, a sociology professor at Lamar University who has written extensively about Waco. "This trial pacified them for a while. Now I'm wondering if we won't see more militancy from the people on the far right."


Wright's fears are apparently shared by the U.S. Marshals Service, which provided tight security during the four-week trial. At least four marshals were inside the courtroom each day, and police cars were stationed adjacent to the courthouse. After the verdict, when government lawyers emerged from the courthouse to talk with reporters, nearly a dozen security officers scanned the area, watching for signs of trouble.

Shortly after noon on Friday, Smith instructed the five-member jury to answer four questions: Did the Bureau of Alcohol, Tobacco and Firearms use excessive force and fire indiscriminately during the initial raid? Did FBI agents act negligently, going beyond their orders, in their use of tanks during the final assault? Did those tanks cause the April 19, 1993, fire? And were FBI commanders negligent in deciding not to have firefighting equipment available on the scene?

By 2:45, the jury had sided with the government on all the charges.


Smith did not allow anyone to question the jurors about their verdict. In fact, the jurors had already gone home when Smith came into the courtroom with the verdict in hand. "They didn't want to talk to anybody," Smith told the courtroom. Then, as he turned to the jurors' answers, Smith said, "I can't read the name of the presiding juror."

Thus, after seven years of waiting for a trial to answer key questions relating to one of the bloodiest police conflicts in American history, the press was not allowed to ask questions of the jurors, nor even learn their names.


One wonders what the jurors (two white women, one white man, one black woman and one black man) thought about the questions they were not told to answer. For instance, why, instead of sending 76 heavily armed, body-armor-clad ATF agents to Mount Carmel, didn't federal officials arrest David Koresh when he was shopping for groceries in Waco?

Nor did the jury hear or see any evidence dealing with other questions raised by the government's actions at Mount Carmel. The absence of such evidence was due to Smith's broad interpretation of the "discretionary function exemption" law that exempts federal officials from liability for actions they make in good faith while working for the government.

Important issues -- such as the use of large amounts of tear gas, 700 tons' worth of tanks and psychological warfare against the Davidians -- were scarcely mentioned during the trial. The jury did not hear about training the ATF undertook at Fort Hood with Army Special Forces units in close-quarters combat in the days before the Feb. 28, 1993, raid on Mount Carmel. And it heard few details about the instruction Special Forces medics gave ATF agents on how to insert intravenous needles in the field and how to treat sucking chest wounds.


Smith delayed discussion of the forward-looking infared (FLIR) videotape, which was taken during the FBI's final assault. The tape allegedly shows government assassins firing into Mount Carmel on April 19, during the final minutes of the siege. A hearing on the tape has been scheduled for early next month.

What's more, there was an almost complete lack of drama in the trial. Not one decision maker for the government took the stand. Jeff Jamar and Dick Rogers, the two men who headed the FBI's force in Waco, had been expected to testify; during opening statements, government lawyers promised jurors they would appear. It's likely the fault of the lead lawyer for the Davidians, Michael Caddell, that the two men were not called. Caddell had them on his witness list but apparently changed his mind, hoping the two would be called by the government.

Nor were ATF commanders Phillip Chojnacki and Chuck Sarabyn called to the witness stand. The two decided to go ahead with the raid on Mount Carmel even though they knew the element of surprise had been lost, a fateful decision that, observers say, was responsible for the carnage that followed. According to the Treasury Department's own report, the two men later "lied to their superiors and investigators" about their actions.


The most powerful moment in the courtroom was the videotaped deposition of Attorney General Janet Reno. With shaking hands, she assured her questioners that whatever the FBI had decided to do at Mount Carmel was, in essence, OK with her. Reno (who famously told the public in 1993 that "the buck stops here") told the Davidians' lawyers that Rogers and Jamar were in "operational control" and that whatever decisions they made to demolish Mount Carmel with tanks "would have been in their discretion."

Davidians and their supporters had lost faith in Smith long before their civil suit went to trial, and now they are frustrated at having once again been defeated in Smith's courtroom. The staunch Republican judge has never hidden his disdain for the group, an offshoot of the Seventh-Day Adventists.

In 1994, Smith oversaw the criminal trial of several Davidians. Although the jury did not find any of them guilty of the main charges -- conspiracy and murder -- it found seven guilty of using a firearm in the commission of a federal offense. Smith initially said that the firearms charge would have to be set aside because it conflicted with the acquittal on the main charges. But two days later, he changed his mind and sentenced the Davidians to 40 years in prison for using automatic firearms, even though there was no proof that any of the accused had used that type of weapon during the shootout.

On June 5, the U.S. Supreme Court, in a unanimous decision, reversed Smith's ruling in that case, saying the firearms issue should have been submitted to a jury. The Davidians who were sentenced by Smith are likely to be resentenced to 15 years.


Lawyers for the Davidians tried many times to get the civil trial transferred out of Smith's courtroom, appealing the matter all the way to the Supreme Court, but to no avail.

Smith plans to reconvene the court on Aug. 2 to discuss and examine the FLIR tape. With the jury dismissed, the court will hear testimony from a few other witnesses, including David Oxlee, an expert from Vector Data Systems, a British firm that conducted a government-sponsored test of the the FLIR in March at Fort Hood. Caddell, lead attorney for the plaintiffs, is sufficiently disillusioned with Smith's court that he indicated he may not return to the courtroom again, even for the FLIR hearing. He had to "recognize that there will be no judgment against the government by Judge Smith," he said.

The end of the trial has not satisfied those who believe justice in the Waco matter requires further action. They want the Justice Department to investigate reports of misconduct by its employees.

Bill Johnston, a former high-profile federal prosecutor, believes Reno's agency has been lax when it comes to prosecuting the people who acted improperly at Waco. Johnston quit his job as an assistant U.S. attorney in the Waco case earlier this year after he blew the whistle on what he believed to be improper actions by his fellow employees. He wrote Reno a letter last year warning her that some of her employees were withholding information from her.


Johnston believes the agency should have prosecuted Sarabyn and Chojnacki for lying to federal investigators after the Mount Carmel tragedy. Treasury's report says the two lied when asked if they knew that the element of surprise had been lost and that Koresh and the Davidians were waiting for them. (Lying to federal investigators is a felony punishable by up to five years in prison.)

When it comes to Waco, Johnston says, the federal government has "a history of nonaccountability."

Like Wright, Johnston worries that the lack of accountability on the matter is creating hostility toward the government. "That's how you develop hatred to create an act like the one Tim McVeigh did by bombing the building in Oklahoma City," said Johnston. Prosecuting Sarabyn and Chojnacki "would have helped. It would have been the right thing. It would have let people see that the government process works. But the Justice Department doesn't do the right thing," he said. "They do what is easy."

Johnston is also angry that the government hasn't prosecuted Marshals Service employees who lied after the standoff. Shortly after the siege began, two marshals falsely accused two other Waco-based marshals, Parnell McNamara and his brother, Mike, of being the source of the leak that let Koresh know ATF was coming. The McNamaras, among the most famous lawmen in the Lone Star State, had to sue the agency to clear their names, and the marshals who lied about them were promoted. That matter, combined with Reno's decision not to prosecute the two ATF commanders, is what led Johnston to leave the DOJ. "I'd had a bellyful of all the silliness," said Johnston.


In the wake of the verdict, government lawyers expressed hope that Americans would forget about Waco. U.S. Attorney Michael Bradford, who led a team of eight Justice Department lawyers in the lawsuit, told reporters that it was "time we moved on from this matter." The jury's verdict, he said, "shows that the responsibility for this tragedy is with David Koresh and the Branch Davidians."

Ever since the ATF flag flew over the charred ruins of Mount Carmel, the government has laid all of the blame for the tragedy on Koresh and his followers. Now that the long-awaited trial is nearly over, only time will tell whether Americans can simply "move on" and let the government avoid shouldering some of that blame.

Robert Bryce

Robert Bryce is the managing editor of Energy Tribune. His latest book is Gusher of Lies: The Dangerous Delusions of "Energy Independence."

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