Date: Fri, 4 Apr 1997 06:09:21 -0500 (EST)
Subject: piml] "Never Again"

As the nineteenth approaches, I look back......

July 1994, from Egon Richard Tausch (court observer):

The surviving Branch Davidians had to overcome crippling handicaps in their murder and conspiracy trial, one year after the bloody attack, siege, and final assault on their communal home.

At the last, they prevailed. The result was anything but foreordained. The trial, however, seemed to be over before it started. In a virtually unprecedented move, U.S. District Judge Walter Smith decided to choose an initial jury panel of 84, which he personally selected out of an original "jury wheel" of 300, basing his selections entirely on answers supplied by the potential jurors to a lengthy questionnaire concerning their attitudes toward gun control, religion, government, and federal agencies.

Judge Smith overruled separate trials for several defendants, increasing the chance of conflicting, and therefore ineffectual, defenses.

Almost half of the subpoenas for witnesses requested by the defense were refused by the court, some on the flimsiest grounds or no grounds at all.

Finally, throughout the evidentiary portion of the trial, the court refused to permit any direct or indirect hint of the issue of self-defense on the Davidians' part -- neither in cross- examination of prosecution witnesses, nor in testimony or other evidence put on by the defense.

The judge regularly sustained prosecution objections whenever defense questions could be interpreted as leading toward governmental misconduct.

This broad prohibition ruled out issues about the sufficiency of the notorious affidavit "supporting" the ATF warrants; the legality of the warrants themselves; the requirements for service and execution of a warrant; the use of the words "assault" or "attack" in reference to ATF actions; discussion of the Davidians killed by the ATF agents; or any use of the Treasury or FBI reports.

It also made putting any of the defendants themselves on the witness stand a futile and dangerous exercise. The only questions they could have been asked, after giving up their right to silence, hostile ones.

That appeared to leave only two possible defenses: The four dead ATF agents were actually not killed by anyone but died of natural causes, or the Davidians weren't there at the time.

For that matter, the latter defense wouldn't have been much good, either; the second-most serious charge was "conspiracy to commit murder," which charge didn't require the defendants' presence at Mt. Carmel. Nor did the lesser charges. In fact, four of the eleven defendants were elsewhere, during the bloody battle in which six Davidians and four ATF agents died.

All of these matters were decided, as legal issues routinely are, outside the hearing of the jury.

The defense did win a few. Prosecution witnesses avoided using the prejudicial words "cult" and "compound" -- the latter a military-sounding term never used by the inhabitants of Mt. Carmel -- for almost half of the trial.

As for, the "sniper tower," or "watch tower," at Mt. Carmel, which the ATF and FBI had repeatedly labeled and pointed out to America's television viewers, the court instructed that it be identified as the only thing it had ever been used for: a huge water-storage tank on which the 100-200 inhabitants relied for drinking and sanitation.

And the defense did have one major legal break which no court or ruling could seem to get around: The presumption of innocence. Therefore the Government had the burden of putting on at least some evidence. This disadvantage proved to be the prosecution's undoing.

Emotional or inattentive jurors certainly observed an impressive government case: weapons parts found in the ashes of the burned Davidian center; clean-cut, articulate agents describing their "attempt to execute a warrant" and grieving over fallen comrades; one ATF medic's courage; a horrific account of a grievously wounded agent who lay conscious but unattended for two hours. Kathy Schroeder's chilling description of David Koresh's on- again-off-again ideas for a mass suicide after the battle. The early testimony by Texas Rangers about the weapons and weapons-parts found in the ashes of Mt. Carmel apparently had a strong effect on the out-of-state media. The prosecutors obligingly posted pre-printed lists all over the press room, to horrified comments by Eastern reporters who weren't sure of the difference between a bolt-action .22 rifle and a fully-automatic AK-47, but were sure they were all utterly evil and must be illegal, and what more would jurors need to know for guilty verdicts on all counts?

The U. S. Attorneys, however, had to take a Texas jury into account, and soon gave up trying for shock value in the courtroom, especially since the Ranger witnesses were visibly uncomfortable testifying as involuntary federal "deputies." Of course, due to the pre-trial rules, the Rangers were no more free to be questioned about ATF actions than they had been free to investigate them independently at the time. They were deputized by the feds, probably illegally, at the very beginning of their investigation during the siege of Mt. Carmel. Unfortunately for the prosecution, their case could not be presented without multitudes of still and videotaped scenes of the February 28, 1993, ATF approach and massive assault on Mt. Carmel.

For no readily discernable reason, the lengthy last part of the prosecution's case concerned the final, fiery attack by the FBI on April 19. This was irrelevant to the murder charges and could not only have the most tenuous connection with the conspiracy or other charges. It could have swayed jury sympathy in either direction.

Despite many attempts, the prosecution failed to establish conclusively which side started the fire -- Davidians or FBI tanks smashing through kerosene lamps, candles, and large quantities of fuel during a windstorm.

The jury listened to edited parts of a tape-recording from hidden microphones inside Mt. Carmel during the final attack and fire of April 19. These consisted of sounds of static during which one could faintly hear a voice or saying "fire." A government expert testified that through electronic enhancement, he reconstructed some clearly incriminating comments, even if the jury couldn't hear them. There was no mention of when, how, by whom, or under what authority the Davidians' home had been so extensively bugged before the raid.

The prosecution failed also to establish which side fired its weapons first during the ATF raid on February 28. Indeed, it seemed to be afraid of the issue. All of Mt. Carmel's windows were shut at the moment of the ATF's arrival, and none of the people glimpsed inside or outside was visibly armed.

The position that the ATF was "attempting to serve a warrant" fell apart when, during cross-examination, agent after agent denied that he had a warrant, or knew of anyone who had one, or ever announced one, or heard anyone else announce one, or ever had any orders to do anything but shoot at windows, walls, and people, scale ladders and smash into rooms, throw concussion grenades, or other warlike activities.

The prosecution did not choose to call the ATF leaders, on the stand, and the defense was prohibited from doing so.

Only Roland Ballesteros, the first agent to testify, claimed he shouted out that the raiders were ATF and that they had a war- rant. He stated he made this announcement before any shooting started, while he ran, weapon pointed, toward David Koresh, who was standing unarmed at the front doors with two other unarmed Davidians behind him. "He responded, 'What's going on?'"

Ballesteros then added that Koresh closed the doors with a "smirk" and fired at him through them. Since this was at the time of Koresh's wounding, Ballesteros was asked how he know it was Koresh firing out, not agents firing in. The Agent replied that he could see the "wood or plywood" chips flying away from the bullet-holes.

In cross examination, the defense attorney mildly pointed out that the doors were made entirely of thin metal. The agent reluctantly admitted this. (The bullet-scarred door in question had mysteriously disappeared after the initial investigation.) Almost as an afterthought, the defense elicited agent Ballesteros' admission that in the several previous official statements he had made since that bloody day he had confessed to lying in a shallow ditch at the time. Never before had he mentioned shouting anything or seeing anything, other than a dog killed at the edge of the ditch, in the first shots he heard, which came from the ATF "dog team." The prosecutors promptly got Ballesteros off the stand and replaced him with more credible agents.)

Most telling was the ATF agents' descriptions, under cross- examination, of their intensive training for the raid, coached by Green Berets at Fort Hood. They admitted that they staged "about 15 or 20" practice raids on a mock Mt. Carmel, and that in each raid the orders and outcome were the same: a military assault from several directions at once, constant firing, scaling of ladders, smashing of windows with crowbars, throwing concussion grenades in them, then "securing" the rooms by killing or capturing the inhabitants.

None of the practice-sessions involved the required policy of "Knock and Announce."

Neither then nor in the raid itself did any agent witness ever learn who was to have or announce warrants, or approach the front doors, or who or how many Davidians were to be arrested, or what items were to be searched for. These details did not seem of much interest to them, and they were unprepared for such questions. As one team-leader, Agent Kenny King, testified, his team's orders were to scale his ladder and smash into the building, and his orders had never called for any announcement of identity or purpose, or allowed any discretion or change, whatever happened elsewhere -- "even if the Davidians had all greeted the agents outside, with their hands up and a big sign reading, 'Welcome ATF'."

In order to implicate three defendants in having said they shot agents, the prosecutors put on the videotaped deposition of Davidian Marjorie Thomas, who had been given immunity from prosecution. She nevertheless repeatedly told U.S. Attorney Ray Jahn that there was no conspiracy to kill agents. At Jahn's question as to what would have happened had the agents just come to the door and walked in, she said, "We wouldn't do anything." This seems to have been a case of the prosecutor's asking his own witness a few too many questions.

When Kathy Schroeder took the stand, as the government's long anticipated "star witness," her obvious continued affection for the defendants, and her statement that "our conspiracy was only to defend ourselves when attacked" did little to help the prosecution's case.

After the prosecution rested and the jury was sent out, the defense again requested that it be permitted to try to establish self-defense.

The defendant's motion was again denied.

This left defense counsel with few witnesses and little evidence of their own. The defense first put on part of a tape of the 911 phone call made by Davidian Wayne Martin during the first few minutes of the ATF attack. He frantically reported that ATF agents were shooting at men, women, and children, and pleaded, "Call it off!" Several other desperate 911 calls were placed from Mt. Carmel, but Judge Smith ruled that "90 per cent" of the taped pleas were "irrelevant" and inadmissible.

Retired Colonel and Vietnam veteran Jack Zimmerman, now a lawyer, had been at Mt. Carmel for a time during the siege, to represent some of the Davidians, and had entered and examined the building on two occasions. He testified as to bullet-holes in the highest part of the roof, coming into the building. He added that they could not have been fired from the water tower or from anywhere but the sky, contrary to the testimony of helicopter pilots who had, during the government's case, denied any firing at all (but could not satisfactorily explain why the helicopters were each carrying "eight or ten" ATF agents each throughout their mission over Mt. Carmel).

Col. Zimmerman also explained to the jury that it was not "tear gas" which was used in the FBI attack, but CS gas, a mucous, tissue and lung agent with far more serious an lasting effects, and outlawed for use in combat.

The prosecution attempted to portray Col. Zimmerman as an ardent admirer of the Davidians' religious beliefs, which he denied. After repeated forays, the prosecutor demanded to know what his religion was. Zimmerman answered that he was Jewish, and that his spoken defense of the Davidians' faith was at the invitation of his synagogue.

Col. Zimmerman's testimony might have caused the jurors to notice, if they hadn't before, the wide diversity among the defendants. Anglo-Saxon males, blacks, Mexican-Americans, an Italian American, British subjects, Australian citizens, a woman, elderly people and young people. Mt. Carmel was apparently a multiculturalist's dream, with all races, nationalities, and ages living in harmony. Of course, they were religious and owned guns, which made them a PC nightmare, instead.

Although the press had listened quietly and almost reverentially to the prosecution's witnesses, the defense witnesses were drowned out by boos, hoots, and derisive laughter. The large room took on the appearance of an ill-natured high school pep-rally, with applause reserved for the judge whenever he sustained a prosecutor's objection.

There were, to be sure, a few reporters whose sympathies were with the defense. Rod Norberg, representing an obscure constitutionalist publication, was quietly ordered out of the courtroom, handcuffed in the hall, and taken to jail on a traffic warrant for a ticket which was on appeal, the only instance of such a warrant provoking a manhunt in San Antonio. A local lady from the Libertarian Party was removed from the courtroom and ordered never to return due to alleged "sleepiness." Apparently strict coat-and-tie rules among spectators did not keep out all the riff-raff.

Then the defense attorneys rested after only a day and a half of presenting their case. Both sides closed.

The major surprise was that in his 60-page charge to the jury Judge Smith finally permitted the defendants to argue self- defense, now that it was too late to present witnesses or evidence, or to cross-examine or re-call prosecution witnesses. The consensus of the rumor mill was that the judge was, at the tail-end of the trial, persuaded of the defendants' innocence. U.S. Attorney Bill Johnston spent his two hours in what could most charitably be described as avoiding mention of any evidence whatsoever. He alternated between calling the defendants and all Davidians "cowards" and "snivelling cowards," even when describing deeds that, if done by people of whom he approved, would have been recognized at once as heroic.

Johnston's greatest fury was reserved for the defense attorneys, some of whom were court-appointed, none of whom had been paid, and some of whom were supporting defendants and their families by supplying their clothing and upkeep -- including housing them in their own homes -- as "hyenas."

Perhaps this last epithet was his worst mistake, because the defense attorneys, each in turn, came forward with some of the angriest (yet well-reasoned and spoken) closing arguments on record. Most referred to the U.S. attorney's "hyenas" remark, responding in a variations of "We have to consider the source." Rocket Rosen patiently recounted each witness and piece of evidence, on each charge, concluding that none proved the charges, and most proved self-defense from a government agency dangerously out of control. "A conspiracy to defend oneself from unlawful attack is not a criminal conspiracy."

Mike DeGuerin gave a rousing patriotic speech centered on the idea that this trial was about "respect," and whether the federal government still had any for individual rights, the American people, or the U.S. Constitution.

Dan Cogdell gave the most memorable closing arguments, with his Amarillo English and down-home phrases. Were the Davidians "cowards"? Looking down the barrel of a hostile tank "would scare the gorilla snot" out of anyone. He reminded the jury that the Davidians were attacked in their home and their church, not a "compound."

He also contrasted the methods of the federal ATF and the Texas Rangers with the famed remark by one of the latter when he arrived alone to quell a massive disturbance: "One riot, one Ranger".

As his finale, Cogdell listed each of the euphemisms used by the prosecution. They were not ATF concussion grenades, but "diversionary devices", not tank-tracks but "ground disturbances;" not ATF snipers, but "forward observers;" not tanks but "armored mobile units;" not an attack, but a "dynamic entry;" not the bloodiest assault on American civilians in history, but the "execution of a warrant."

The prosecution's final two-hour close would have been an anticlimax but for a disastrous mistake by U.S. Attorney Ray Jahn, when, trying again to lessen the importance to the jury of the concussion grenades, he implied that the defense witness who had her arm blown off by one was faking the seriousness of the injury, adding that she could still hold the microphone in the courtroom. From that point the jury refused to look in his direction.

After only 18 hours of deliberations (including the several hours necessary to study the judge's charge to the jury), following a six-week trial, the jury came back with "not guilty" verdicts for all 11 defendants on the murder and conspiracy to murder charges, convictions of five defendants for voluntary manslaughter, a few convictions for using firearms in the commission of a violent crime (which convictions were dismissed by the judge because those defendants had not been found guilty of any violent crimes) and seven weapons possession convictions.

One juror stated to the San Antonio Express-News, "When we heard all that testimony, there was no way we could find them guilty of murder." He added that "We felt provocation was pretty evident. When the firestorm started, everybody was trying to cover their behinds...I thought two agents in plain clothes should have gone in there and knocked on the door (to issue warrants)".

Long after the verdict, the national media were still referring to the government's "bungled attempt to serve a warrant." If anything at all was proven during this trial, and proven beyond a reasonable or unreasonable doubt, it is that there was no attempt to serve a warrant. There was a thoroughly planned and rehearsed military assault and campaign against a group of civilians, some of whom were suspected of secretly possessing illegal weapons parts, which campaign was efficient enough to rack up a kill-ratio which would be envied by any army in history.

Did the government's trial fail because of incompetent prosecutors, brilliant defense attorneys, legal technicalities, strange Texas jurors, insufficient investigation, bad luck? Or because of lack of merit in the charges? Probably the latter.

But a major problem evident to the jurors and spectators throughout the prosecutors' case was the shocking arrogance of the federal government and its contempt for the American people. This contempt was clear to many citizens during the events a year ago and the blatant lying at the time and since; it was clear in the surprise the government felt at civilian self-defense or resistance of any sort; it was clear in the prosecutors' choices of defendants and charges; it was clear in the conduct of the trial; it was clear in the prosecutors' belief that the jury would swallow anything and was incapable of coherent, logical thought. And it is clearer, after the trial, in the vindictive actions and remarks of outraged federal officials.

The site of Mt. Carmel near Waco is quickly becoming a major tourist attraction. Russian engineer Ilias Abdonlline told the Express-News reporter in Waco that he had come directly from Moscow just to see the site. "Everyone in the world was amazed when this thing happened, but especially when it happened in America," he said. "We have a terrible history with Stalin in Russia, and I have a memory with that. When I saw this on television, I was shocked. How could it happen in the U.S.? The U.S. is a democracy."

Was the jury verdict at the Davidian trial a victory for freedom from a centralized and oppressive police power, for freedom of religion and the right to keep and bear arms, for the Constitution of the United States?

One would think so from the spontaneous San Antonio victory celebrations and parties, attended not just by Constitutionalists and Davidian supporters but by throngs of locals. The minority who had not seemed convinced of the wrongfulness of the Waco Massacre before, now claimed to have been champions of freedom all along. Bumper-stickers of the Texas flag with SECEDE! written on them were circulated in at least one party.

For those who suffered through a terrifying attack, an oppressive siege, a raging fire, and the sight of their children, spouses, and friends dying, followed by a year in jail, then to find themselves tried in court facing life-imprisonment, and now facing imprisonment for lesser offenses, perhaps the victory is not so satisfying.

Similarly for those now-acquitted foreign defendants whom the spite of disappointed prosecutors is chasing through the labyrinths of the INS in the hope of preventing voluntary return to their homelands and forcing deportation instead.

Also those citizens who are currently being hunted down for attempting to inform the jury of their rights and obligations. For those of us who know that there will be no indictment or prosecution of the ATF leaders and Janet Reno, who together violated the Constitution they were sworn to uphold, and cost almost a hundred people their lives, there is little cause to hope, "Never again!"