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Austin Chronicle Trial and Error

Was Justice Denied in Waco?

By Robert Bryce

AUGUST 21, 2000:  The verdict came too fast for it to be anything but an acquittal. The five jurors left the courtroom about 12:30pm. Little more than two hours later, they had a decision. And while the verdict itself -- which found the federal government innocent of wrongdoing in the Branch Davidians' $675 million civil suit -- was not surprising, the manner in which it was delivered was emblematic of the four-week trial that ended last month.

Customarily, jurors file into the courtroom, the judge asks for their finding, and the presiding juror reads the verdict. But after days of testimony, hundreds of exhibits, and numerous witnesses, the jury didn't bother to come back into the courtroom. Instead, they went home. "The jurors have informed me that it is their unanimous decision that they have no desire to talk to anyone, attorneys or news media," said U.S. District Judge Walter Smith Jr. "They have already left the building and won't be available." Smith squinted at the paper in front of him and several seconds ticked past before he broke the silence: "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 the bloodiest police conflict in American history, the public and the press were forbidden to question the jurors or even learn their names. Smith wasn't required to bring the jury into the courtroom -- in fact, he had empaneled them only as an advisory body, meaning he could have disregarded its finding. But the disappearance of the jury at the end of the hotly contested civil case added yet another measure of ambiguity to the Waco controversy. It hardly needs any more.

Federal officials savored the verdict. "This terrible tragedy was the responsibility of David Koresh and the Branch Davidians, not the federal government," the Justice Department said in a statement. "We are pleased the jury affirmed that view." FBI Director Louis Freeh said, "The significance of the jury's findings to the courageous federal law enforcement officers who have had to absorb unproven allegations and public criticisms for all those years cannot be overstated. An enormous burden has been lifted from them and their families."

While the government reveled, the plaintiffs grumbled. "The biggest outrage is, we had experts from everywhere, and Judge Smith wouldn't let us put them on," said David Thibodeau, one of just nine Davidians who escaped from the burning ruins of Mount Carmel. Nor could his lawyer, former attorney general Ramsey Clark, put on many of the witnesses or evidence that he and his investigators spent years developing. "We had seven years of investigation on this case and spent millions of dollars on it and we couldn't present a case," said Thibodeau. Like many other Davidians, Thibodeau never believed they were going to get a fair hearing in front of Judge Smith. After the trial, those feelings have only grown stronger.

The Davidians point out that they were not allowed to present evidence regarding:

  • The government's failure to prosecute officials who lied about their actions at Waco or covered up evidence.

  • Proof that the Bureau of Alcohol Tobacco and Firearms lied when it obtained a search warrant for Mount Carmel.

  • The type and extent of training given to the ATF by Army Special Forces at Fort Hood.

  • Why the ATF felt it needed to be trained in close quarters combat by the Special Forces.

  • The FBI's use of CS tear gas, which has been banned by international treaty. (See the July 7 issue of the Chronicle.)

  • And finally, the FBI's failure to follow its own hostage negotiation guidelines during the 51-day standoff.

In addition, Smith excluded much of evidence and testimony regarding the missing front door from Mount Carmel. Other matters still loom, including disposition of all the evidence collected from Mount Carmel and the investigation of the FLIR tape.

The trial and the release of a special report by John Danforth, the former senator who was appointed by Attorney General Janet Reno to investigate the "bad acts" at Waco, both absolved the government of any malfeasance. Many Davidians now conclude that they will never get justice inside a federal courtroom -- and will have to try their case in the court of public opinion.

To bolster their argument, they point to two other tragedies that continue to reverberate in American history: the Kennedy assassination and Wounded Knee. "One hundred years from now we will still be talking about Waco like we do Wounded Knee," said Jim Brannon, a Houston-based lawyer who represented three of David Koresh's dead children in the civil suit.

It's an interesting comparison. Waco and the Kennedy killing both involve controversial video segments which suggest a conspiracy to kill the subjects. All three tragedies involved guns and allegations of improper actions by the military or FBI, and the investigations that followed each event all absolved the government of wrongdoing. Each event has contributed to the belief that our government may have committed shameful acts. Finally, each event won't go away. They have become part of our collective consciousness as Americans, and have helped form our views toward our government.

Right after the Waco verdict was announced, Michael Bradford, the U.S. attorney who served as the government's lead lawyer on the case, said he hoped the finding would "put this matter to rest and we can move forward." But Clark insists that the fight over Waco must continue. "If we hope to prevent recurrences like this, then we have to recognize how wrong it was; otherwise it will be done again and again," he said.


Why the Davidians Lost

While the philosophical and historical aspects of Waco are important, it's worth discussing why the Davidians didn't win the civil suit. Perhaps the simplest explanation is that all of the blame for the tragedy lies on David Koresh. That has been the government's line ever since the fire destroyed Mount Carmel, and there is much to support it. Koresh was a gun nut who had converted some of his weapons into fully automatic rifles. He didn't submit to the ATF's search warrant. He didn't submit to the FBI's demands that he and the other Davidians leave Mount Carmel. And he prophesied death for himself and his followers.

Koresh clearly bears a substantial burden of the blame for what happened at Waco. But there are other reasons why the Davidians lost their civil suit against the government: Smith sharply limited the Davidians' case by excluding many issues. He also ruled that a provision of the Federal Tort Claims Act under which the plaintiffs were suing the government gave federal police broad discretion in how much force they were allowed to use against the Davidians. The feds also brought a much more focused and disciplined team of lawyers to the courtroom than did the plaintiffs. The Department of Justice used a team of eight lawyers for the trial, and each one of them had specific witnesses and areas that they were responsible for handling.

The plaintiffs' lawyers were hamstrung by a lack of communication and trust. There was so much discord that Michael Caddell, the lead lawyer for the Davidians, barely spoke to co-counsel Clark for much of the trial.

And while the Davidians had plenty of faith in God, they had no faith in Judge Smith. Indeed, the Judge's enmity toward the Davidians is long and deep. Caddell and the other 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, to no avail. The lawyers had plenty of reasons to avoid Smith if they could. 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 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 five of the Davidians to 40 years in prison for using automatic firearms, even though there was scant 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 are likely be re-sentenced to 15 years.

Once in Smith's courtroom, Caddell worked to ingratiate himself with the judge. Caddell refused to argue with the judge and did all he could to curry his favor. As part of his strategy, Caddell offered to limit the plaintiffs' testimony to 40 hours. It was a gamble, apparently designed to prevent his co-counsels, including Clark, from having enough time to present their case. About a week after the trial began, in a surprise move, Smith granted Caddell's motion, leaving Clark time to call only two witnesses to the stand.

Clark's case was based on his belief that his clients were denied their rights under the First, Second, and Fourth Amendments. Caddell, a wealthy trial lawyer from Houston, based his case on the premise that the government should be held liable for the deaths of the women and children because they did not hold a gun or fire any shots at the ATF or FBI. Because of that, Caddell argued, they were innocent of any wrongdoing and their heirs should be compensated. In addition, Caddell asserted that the government had done too little to prepare for the possibility of a fire at Mount Carmel and should have known that fire was a real possibility. Finally, he argued that FBI commanders at Mount Carmel had deviated from the plan approved by Attorney General Janet Reno and had prematurely allowed tanks to begin tearing down the building.

There were many other differences. Where Caddell wore expensive handmade suits, Clark wore cheap, tan sport coats, skinny neckties, and $15 Levis. Where Caddell wore spiffy cowboy boots, Clark wore plain brown walking shoes. Where Caddell brandished an expensive, gold-tipped fountain pen, Clark wrote with Bic Stics that cost a dime apiece. Where Caddell relied on high tech machinery and exhibits in the courtroom, Clark relied on his witnesses to tell jurors what life was like for the residents of Mount Carmel, what they believed, and how they felt about losing their loved ones.

In the end, Caddell may have promised too much and delivered too little. In January and February, he was telling the media that much of his case would be based on the controversial FLIR tape, the forward-looking infrared footage which allegedly shows government assassins firing into Mount Carmel on April 19, 1993. And despite opposition from Clark and the government, Caddell pushed for a test at Fort Hood to prove that the FLIR could pick up gunfire. In early March, Caddell said he was confident "that this test is going to show gunfire." But the government-sponsored test on March 19 allegedly found that the FLIR could not pick up gunfire, and Caddell was forced to re-focus on the claims regarding the women and children.

Halfway through the trial, it appeared that Caddell became disheartened and lost his lust for the fight. He failed to ask the easy questions that would have bolstered his negligence theory. For instance, he failed to ask any of the ATF agents who took the stand why they didn't pick up Koresh while he was jogging on the roads near Mount Carmel or shopping in Waco. Nor did he ask David Corderman, the FBI agent who fired the pyrotechnic tear gas rounds at Mount Carmel, if he might have fired more than the three rounds that he recalled firing.

Most importantly, Caddell failed to call the two men who were the crux of his whole case: Jeff Jamar and Dick Rogers, the FBI commanders who decided to send the Army tanks crashing into Mount Carmel. Throughout the trial, Caddell made the two men out to be the bad guys, saying that they had deviated from the approved plan that called for the tear gas assault to last 48 hours before any attempts would be made to dismantle the building.

When asked why he didn't call them to the witness stand, Caddell promised that he would show their testimony on videotape. But he never got to play what he thought was his trump card. In the closing hours of the trial, government attorneys asked Smith to prevent Caddell from using Jamar and Rogers' videotaped depositions -- because they did not have similar video depositions of their own -- and the judge granted the government's request.

It's easy, perhaps too easy, to blame Caddell. He was the highest-profile of all the lawyers who represented the Davidians. He spent $1 million of his own money on the case, betting that he could recover a judgment against the government. But to many observers, his performance was a disappointment. Rather than consulting with Clark and the other lawyers on strategy, Caddell often shut them out, refusing to talk to them. On two occasions, he even objected to questions being posed by lawyers representing other Davidians.

While several people criticized Caddell's attitude during the trial, many were astounded by his attitude afterward, even those who were rooting for the government. After the jury verdict, Caddell told reporters that he wouldn't return to Smith's courtroom and that he doubted he would appeal the case because he didn't believe in "lost causes." He added that "As a practical matter, when you get a verdict, it's over."

Meanwhile, Clark, co-counsel Kirk Lyons, and the other attorneys who represented the Davidians were pledging to appeal as soon as Smith's final ruling is handed down.


Negotiations Questioned

In 1995, Temple University criminal justice professor James J. Fyfe told the Senate Judiciary Committee that the tragedy at Waco occurred because "well-known and well-established arrest, hostage, and barricade protocols were ignored."

Yet neither the civil trial nor the Danforth report truly addresses the FBI's actions at Waco. Smith ruled that details of the negotiations between the FBI and the Davidians could not be included in the trial. Danforth was not asked to address them. Yet a study of the agency's actions during the 51-day standoff by Lamar University sociologist Stuart A. Wright found numerous problems with the FBI's work. In an essay published last year in the journal Terrorism and Political Violence, Wright found that the FBI violated 16 well-established standards of hostage negotiations during the standoff. He wrote that the result of the work by the FBI's Hostage Rescue Team is "a striking chronicle of reckless disregard for basic principles of crisis negotiations." Given the long history of the FBI's work in hostage negotiations, says Wright, it is "inconceivable that so many rudimentary violations could have occurred."

Wright's article, "Anatomy of a Government Massacre: Abuses of Hostage-Barricade Protocols during the Waco Standoff," faults the FBI for its lack of patience and argues that there was no reason to use force on April 19.

The critical question of patience and time dedicated to negotiations was raised during the civil trial. Testimony by Branch Davidians at the civil trial showed that the sect was nearly out of drinking water and would likely have had to leave Mount Carmel due to thirst within a few days. The Davidians were so short of water they were fully dependent on rain water and each adult was rationed to about a cup of water per day.

Wright -- citing the published work of veteran negotiators Michael McMains and Wayman Mullins -- observed that hostage negotiation protocols mandate that no deadlines should be set for the resolution incidents. Yet on March 25, 1993, Wright observed, FBI negotiators demanded that "10 to 20 people surrender by 4pm. When the Davidians refused to respond, armored vehicles moved in and crushed a number of motorcycles and go-carts." The following day, after another deadline passed, "armored vehicles moved toward the compound and destroyed eight of the Davidians' cars."

Wright points out that negotiation manuals warn that negotiators should "resist pressure from tactical team to resolve the conflict." At Waco, it was clear that hostage negotiators were in continuing conflict with tactical types who wanted to use force against the Davidians, and do so quickly. During the civil trial, lawyers for the plaintiffs introduced several memos from FBI leaders and psychiatrists who warned that the commanders at Waco, particularly Dick Rogers, needed to quit discussing an assault on Mount Carmel. One memo, written during the siege by FBI Assistant Director Danny Coulson, said Rogers "needs to be told that we are not going to assault that compound in any fashion, including gas. If he can't accommodate this objective, he should be brought back to [Washington,] D.C."

Perhaps the most significant facet of the negotiation manual that Wright found was one that said CS tear gas is "unreliable and dangerous and should only be used under very specific conditions." The manual by McMains and Mullins says that CS "may produce illness or death in the hostages or hostage-taker." The two authors also warn about the risk of fire, saying that in one of three incidents in which they used CS, a gas cannister "landed on a sofa and burned down the entire structure."

"You have to realize it's awfully easy to sit back seven years later and second guess the efforts of the negotiators," said Byron Sage, one of the lead FBI investigators at Waco. Sage, who argued that Wright's analysis is flawed, defended the agency. "We didn't do everything absolutely right, but there was an extraordinary effort to do everything right, and I am extraordinarily proud of what we did."

Sage candidly discussed the conflict between negotiators and tactical types like Rogers who wanted to use force to bring the Davidians out. "We had to cope with, and compete with, decisions on the use of force," said Sage. And he says those discussions became heated. But he says the disclosure of internal memos and recommendations -- including those by FBI negotiator Gary Noesner, who warned the agency against using force against the Davidians -- have been "grossly overblown."

Documents produced before and during the trial showed that Noesner warned the agency during the siege that "any negotiator would have told them that dismantling the building would provoke a violent response. Anyone would have seen the risk. What was the rush?"

But Sage says the negotiating team worked as hard as it could to resolve the situation peacefully. It failed, he believes, because of David Koresh. "We did our best to bring them out every single day," said Sage, "and that's what the general public needs to understand."


What Becomes of the Evidence?

Last summer, amidst growing evidence that the FBI had used pyrotechnic tear gas rounds during its final assault on Mount Carmel, the Texas Dept. of Public Safety asked Smith to take control of several tons of evidence that it had been storing since 1993. The agency was in charge of the evidence, which was being kept in a storage locker at its headquarters on North Lamar, and found itself caught between the demands of the state's open records laws and officials from the U.S. Dept. of Justice, who wanted the evidence kept away from the public.

Last September, Judge Smith decided that the DPS was right, and ordered the Dept. of Justice to release the evidence to him. "The court's purpose is to secure the evidence so that neither the parties to the pending civil litigation, the media, or the public will perceive that the government may have the opportunity to conceal, alter, or fail to reveal evidence," Smith wrote in his order.

Federal marshals loaded up the evidence and took it back to Waco, where much of it is now stored in the basement of the federal courthouse. But now that the civil trial is essentially over, that hotly disputed evidence lies in a legal no-man's land similar to the one that existed when the DPS held the evidence. "We don't know what is supposed to happen to it now," said one federal official close to the matter.

Under federal law, Smith is not bound by the Freedom of Information Act. Nor is there any precedent under which he could release the evidence. "I don't know that anyone has an answer to that question," says James Brannon. Judge Smith "may just give it all back to the government," Brannon says.

As long as Smith keeps the evidence, there will be no discussion of the shooting of Michael Schroeder, a Davidian who was killed outside the compound by ATF agents on Feb. 28, 1993, several hours after the primary gun battle ended. Schroeder's corpse lay where it fell for four days before it was examined by Texas Rangers. Ballistics tests on the guns used by the ATF agents who shot him have never been released. Nor have the interviews the Rangers did with the ATF agents. In addition, ATF agents have testified that they shot Schroeder at a distance of 100 yards with pistols. If that's true, why did Schroeder's corpse have two bullet holes in its head? The evidence now controlled by Smith includes a cap and hood that Schroeder was wearing when he died. Schroeder's mother, Sandy Connizzo, wants to have the cap examined by forensic experts to see if there is any powder residue on it. Schroeder, she says, "has been overlooked in this whole brouhaha of the investigations. He was just as much a part of Waco as any of the rest."


'Liars' Go Unpunished

Indeed, the end of the trial has left many people dissatisfied with the Dept. of Justice for its failure to prosecute ATF commanders Phillip Chojnacki and Chuck Sarabyn for lying about what happened at Mount Carmel. They're the ones who decided to go ahead with the initial raid on Mount Carmel even though they knew the element of surprise had been lost -- a fateful, pivotal decision that lead to 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. In particular, they denied that ATF agent Robert Rodriguez told them that Koresh had been tipped about the impending raid. During the trial, several ATF agents confirmed from the witness stand that their commanders had warned them that Koresh and the Davidians knew that they were coming.

Bill Johnston, a former federal prosecutor in Waco, believes the agency should have prosecuted Sarabyn and Chojnacki for lying to federal investigators after the Mount Carmel tragedy. The Treasury 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 non-accountability." Prosecuting the two officials "would have been the right thing. It would have let people see that the government process works. But the Justice Dept. doesn't do the right thing," Johnston adds. "They do what is easy."

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. And last August, he wrote Janet Reno a letter, warning her that some of her employees were withholding information from her. 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.

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 -- brothers Parnell and Mike McNamara -- of being the source of the leak that let Koresh know the ATF was coming. The McNamaras, among the most famous lawmen in the Lone Star State, had to sue the agency to clear their names, yet 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," he says.

The ATF doesn't want to talk about Sarabyn and Chojnacki. In fact, agency spokesperson Franceska Perot refused to even say if the two men are still working for the agency. "We are not allowed to release, for security reasons, the current status of any employee," she said. Is that to imply they still work for ATF? "No," Perot replied.

Adding further intrigue is the claim by Sarabyn's lawyer that the Dept. of Justice promised him in 1995 that Sarabyn and Chojnacki would not be prosecuted for any wrongdoing. Steve Gardner, a Dallas-based lawyer, told the Chronicle that he struck a deal with the DOJ not to prosecute his client or Chojnacki. They also made a deal that allowed the men to go back to work at the ATF, and the agency agreed, according to Gardner, "not to keep these guys under a cloud of suspicion."

Gardner dismisses the Treasury report, saying it "was fabricated at best ... The Treasury report was a cover-your-ass political report by a brand-new Democratic administration that didn't want to take responsibility," he said, adding that he finds it "frustrating that we are still looking for scapegoats" when it comes to Waco. "I don't want compounds full of religious fanatics running around with automatic weapons," he says.


Wounded Knee to Waco

At first glance, the events at Waco may seem far distant from the massacre at Wounded Knee more than a hundred years ago. But there are, in fact, several parallels. Waco and Wounded Knee were both clashes of disparate cultures involving charismatic leaders, religion, and guns. The bloodshed at Wounded Knee grew out of Native American tribes' rapid acceptance of the Ghost Dance, a religion first experienced in the form of a vision by a Paiute named Wavoka. The Ghost Dance religion held that a giant flood would someday wipe out all white people, leaving only Native Americans and wild game. Wavoka also predicted that the Messiah would return as an Indian. The Ghost Dance flourished on reservations throughout the American West. By the fall of 1890, Sioux warriors had learned the dance and began performing it among the Sioux headed by their charismatic chief, Sitting Bull.

But the Ghost Dance caused an immediate uproar among agents from the Bureau of Indian Affairs and the press, which dubbed the movement the "Messiah craze." The press accounts and the fear they engendered are similar to the responses that occurred 103 years later in Waco. The day before the raid on Mount Carmel, the Waco Tribune-Herald began running a piece attacking Koresh, called "Sinful Messiah." It was accompanied by an editorial scolding local lawmen for ignoring the activities at Mount Carmel.

The media's treatment of the Sioux and the Davidians are part of a broader set of parallels. (Although for the FBI, Wounded Knee has little to do with the battle that occurred in 1890 and more to do with the gun battle that occurred there in 1975 that ended with the deaths of FBI agents Ronald A. Williams and Jack R. Coler. In 1977, Leonard Peltier was convicted of murdering the two agents and was sentenced to two life terms. Numerous appeals have been filed in an effort to win his release, including repeated efforts by Ramsey Clark, but Peltier remains in federal prison in Leavenworth, Kansas.)

On Dec. 29, 1890, several hundred heavily armed troops from the Seventh Cavalry were charged with arresting the Sioux leader, Big Foot, and disarming his followers. (Sitting Bull had been assassinated several days before.) At Waco, 76 heavily armed ATF agents were charged with arresting David Koresh and confiscating the automatic weapons possessed by him and his followers.

In both clashes, there is an argument about which side fired first. At Waco, it's likely that the gun fight with the ATF started after the federal agents shot and killed some of the Davidians' dogs. It is likely that the melee at Wounded Knee started when a rifle discharged while soldiers were trying to disarm a deaf member of the Sioux tribe. At Waco, 53 of the 74 Davidians who were killed on April 19, 1993, were women and children; at Wounded Knee about 200 of the 300 casualties were women and children.

Just as FBI commanders Jamar and Rogers nominated some of their men for medals, two dozen Army soldiers were nominated for the Congressional Medal of Honor after Wounded Knee.

After Waco, several government-sponsored investigations and a civil trial were conducted to determine if government forces were to be blamed. Each exonerated the government. After Wounded Knee, charges were brought against Colonel James Forsyth, who commanded the troops involved in the incident. He, too, was exonerated.

Like Wounded Knee, Mount Carmel has become one of the country's tragic roadside attractions. On a scalding July afternoon, one or two cars at a time eased along the gravel driveway of the Davidians' home. A family in a van with Maine license plates stopped and looked. Two young men in a car with Texas plates sat silently reading signs erected at the entrance. The desolation of the site, combined with the historical markers, the newly built chapel, the rows of crape myrtle trees -- one for each of the Davidians who died -- give it a spooky feeling. It reminds you of author Dee Brown's description of the battlefield at Wounded Knee, in the preface to a recent edition of his book Bury My Heart at Wounded Knee. "That ghost-haunted place itself," Brown wrote, "windswept and lonely, has become a modern symbol of unrequited wrongs."

Those same words could have been written about Waco.


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