Waco Stand-Off: David Koresh and the Branch Davidians (Part IV)

Trial and imprisonments of Branch Davidians

The events at Mount Carmel spurred both criminal prosecution and civil litigation. On August 3, 1993, a federal grand jury returned a superseding ten-count indictment against 12 of the surviving Branch Davidians. The grand jury charged, among other things, that the Branch Davidians had conspired to, and aided and abetted in, murder of federal officers, and had unlawfully possessed and used various firearms. The government dismissed the charges against one of the 12 Branch Davidians pursuant to a plea bargain.

After a jury trial lasting nearly two months, the jury acquitted four of the Branch Davidians on all charges. Additionally, the jury acquitted all of the Branch Davidians on the murder-related charges but convicted five of them on lesser charges, including aiding and abetting the voluntary manslaughter of federal agents.  Eight Branch Davidians were convicted on firearms charges.

The convicted Branch Davidians, who received sentences of up to 40 years, were:

·         Kevin A. Whitecliff—convicted of voluntary manslaughter and using a firearm during a crime.

·         Jaime Castillo—convicted of voluntary manslaughter and using a firearm during a crime.

·         Paul Gordon Fatta—convicted of conspiracy to possess machine guns and aiding Branch Davidian leader David Koresh in possessing machine guns.

·         Renos Lenny Avraam (British national)—convicted of voluntary manslaughter and using a firearm during a crime.

·         Graeme Leonard Craddock (Australian national)—convicted of possessing a grenade and using or possessing a firearm during a crime.

·         Brad Eugene Branch—convicted of voluntary manslaughter and using a firearm during a crime.

·         Livingstone Fagan (British national)—convicted of voluntary manslaughter and using a firearm during a crime.

·         Ruth Riddle (Canadian national)—convicted of using or carrying a weapon during a crime.

·         Kathryn Schroeder—sentenced to three years after pleading guilty to a reduced charge of forcibly resisting arrest.

Six of the eight Branch Davidians appealed both their sentences and their convictions. They raised a host of issues, challenging the constitutionality of the prohibition on possession of machine guns, the jury instructions, the district court's conduct of the trial, the sufficiency of the evidence, and the sentences imposed. The United States Court of Appeals for the Fifth Circuit vacated the defendants' sentences for use of machine guns, determining that the district court had made no finding that they had "actively employed" the weapons, but left the verdicts undisturbed in all other respects, in United States v. Branch, 91 F.3d 699 (5th Cir. 1996), cert. denied (1997).

On remand, the district court found that the defendants had actively employed machine guns and re-sentenced five of them to substantial prison terms. The defendants again appealed. The Fifth Circuit Court of Appeals affirmed.  The Branch Davidians pressed this issue before the United States Supreme Court. The Supreme Court reversed, holding that the term "machine gun" in the relevant statute created an element of the offense to be determined by a jury, rather than a sentencing factor to be determined by a judge, as had happened in the trial court.  On September 19, 2000, Judge Walter Smith followed the Supreme Court's instructions and cut 25 years from the sentences of five convicted Branch Davidians, and five years from the sentence of another.   All Branch Davidians have been released from prison as of July 2007.

Thirty-three British citizens were among the members of the Branch Davidians during the siege. Twenty-four of them were among the 80 Branch Davidian fatalities (in the raid of February 28 and the assault of April 19), including at least one child.  Two more British nationals who survived the siege were immediately arrested as "material witnesses" and imprisoned without trial for months.  Derek Lovelock was held in McLennan County Jail for seven months, often in solitary confinement.  Livingstone Fagan, another British citizen, who was among those convicted and imprisoned, says he received multiple beatings at the hands of correctional officers, particularly at Leavenworth. There, Fagan claims to have been doused inside his cell with cold water from a high-pressure hose, after which an industrial fan was placed outside the cell, blasting him with cold air. Fagan was repeatedly moved between at least nine different facilities. He was strip-searched every time he took exercise, so he refused exercise. Released and deported back to the UK in July 2007, he still held on to his religious beliefs.

Civil suits by Branch Davidians

Several of the surviving Branch Davidians, as well as more than a hundred family members of those who had died or were injured in the confrontation, brought civil suits against the United States government, numerous federal officials, the former governor of Texas Ann Richards, and members of the Texas Army National Guard. They sought monetary damages under the Federal Tort Claims Act, civil rights statutes, the Racketeer Influenced and Corrupt Organizations Act, and Texas state law. The bulk of these claims were dismissed because they were insufficient as a matter of law or because the plaintiffs could advance no material evidence in support of them.

The court, after a month-long trial, rejected the Branch Davidians' case. The court found that, on February 28, 1993, the Branch Davidians initiated a gun battle when they fired at federal officers who were attempting to serve lawful warrants.  ATF agents returned gunfire to the building, the court ruled, in order to protect themselves and other agents from death or serious bodily harm. The court found that the government's planning of the siege—i.e., the decisions to use tear gas against the Branch Davidians; to insert the tear gas by means of military vehicles; to omit specific planning for the possibility that a fire would erupt—was a discretionary function for which the government could not be sued. The court also found that the use of tear gas was not negligent. Further, even if the United States government were negligent by causing damage to the buildings before the fires broke out, thus either blocking escape routes or enabling the fires to spread faster, that negligence did not legally cause the plaintiffs' injuries because of the Branch Davidians started the fires.

The Branch Davidians appealed. Their contention was that the trial court judge, Walter S. Smith, Jr., should have recused himself from hearing their claims on account of his relationships with defendants, defense counsel, and court staff; prior judicial determinations; and comments during trial. The Fifth Circuit concluded that these allegations did not reflect conduct that would cause a reasonable observer to question Judge Smith's impartiality, and it affirmed the take-nothing judgment, in Andrade v. Chojnacki, 338 F.3d 448 (5th Cir. 2003), cert. denied (2004).

Controversies

Roland Ballesteros, one of the agents assigned to the ATF door team that assaulted the front door, told Texas Rangers and Waco police that he thought the first shots came from the ATF dog team assigned to neutralize the Branch Davidians' dogs, but later at the trial, he insisted that the Branch Davidians had shot first.  The Branch Davidians claimed that the ATF door team then opened fire at the door, and they returned fire in self-defense. An Austin Chronicle article noted, "Long before the fire, the Davidians were discussing the evidence contained in the doors. During the siege, in a phone conversation with the FBI, Steve Schneider, one of Koresh's main confidants, told FBI agents that 'the evidence from the front door will clearly show how many bullets and what happened'."  Houston attorney Dick DeGuerin, who went inside Mount Carmel during the siege, testified at the trial that protruding metal on the inside of the right-hand entry door made it clear that the bullet holes were made by incoming rounds. DeGuerin also testified that only the right-hand entry door had bullet holes, while the left-hand entry door was intact. The government presented the left-hand entry door at the trial, claiming that the right-hand entry door had been lost. The left-hand door contained numerous bullet holes made by both outgoing and incoming rounds. Texas Trooper Sgt. David Keys testified that he witnessed two men loading what could have been the missing door into a U-Haul van shortly after the siege had ended, but he did not see the object itself.  Michael Caddell, the lead attorney for the Branch Davidians' wrongful death lawsuit explained, "The fact that the left-hand door is in the condition it's in tells you that the right-hand door was not consumed by the fire. It was lost on purpose by somebody." Caddell offered no evidence to support this allegation, which has never been proved. However, fire investigators stated that it was "extremely unlikely" that the steel right door could have suffered damage in the fire much greater than did the steel left door, and both doors would have been found together. The right door remains missing, and the entire site was under close supervision by law enforcement officials until the debris—including both doors—had been removed.

Helicopters had been obtained from the Alabama and Texas National Guard on the false pretext that there was a drug laboratory at Mount Carmel.  There were, in fact, no drug-related charges on the arrest warrant served on the morning of February 28, 1993.  The official version of events has always stated that the helicopters were merely used as a diversion, that the crew only had 9-millimeter sidearms, and that no shots were made from them.

In the weeks preceding the raid, Rick Ross, a self-described cult expert and deprogrammer affiliated with the Cult Awareness Network, appeared on major networks such as NBC and CBS in regard to Koresh. Ross later described his role in advising authorities about the Davidians and Koresh, and what actions should be taken to end the siege. He was quoted as saying that he was consulted by the ATF and he contacted the FBI on the March 4, 1993, requesting "that he be interviewed regarding his knowledge of cults in general and the Branch Davidians in particular." The FBI reports that it did not rely on Ross for advice whatsoever during the standoff, but that it did the interview and received input from him. Ross also telephoned the FBI on March 27 and March 28, offering advice about negotiation strategies, suggesting that the FBI "attempt to embarrass Koresh by informing other members of the compound about Koresh's faults and failures in life, in order to convince them that Koresh was not the prophet they had been led to believe.”  The ATF also contacted Ross in January 1993 for information about Koresh.  Several writers have documented the Cult Awareness Network's role in relation to the government's decision-making concerning Waco.  Mark MacWilliams notes that several studies have shown how "self-styled cult experts like Ross, anticult organizations like the Cult Awareness Network (CAN), and disaffected Branch Davidian defectors like Breault played important roles in popularizing a harshly negative image of Koresh as a dangerous cult leader. Portrayed as "self-obsessed, egomaniacal, sociopathic and heartless", Koresh was frequently characterized as either a religious lunatic who doomed his followers to mass suicide or a con man who manipulated religion for his own bizarre personal advantage."  According to religious scholars Phillip Arnold and James Tabor who made an effort to help resolve the conflict, "the crisis need not have ended tragically if only the FBI had been more open to Religious Studies and better able to distinguish between the dubious ideas of Ross and the scholarly expertise."

In a New Yorker article in 2014, Malcolm Gladwell wrote that Arnold and Tabor told the FBI that Koresh needed to be persuaded of an alternative interpretation of the Book of Revelation, one that does not necessarily involve a violent end. They made an audiotape which was played for Koresh, and seemed to convince him. However, the FBI waited only three days before beginning the assault, instead of an estimated two weeks for Koresh to complete a manuscript sparked by this alternative interpretation, and then come out peacefully.  An article by Stuart A. Wright published in Nova Religio discussed how the FBI mishandled the siege, stating that "there is no greater example of misfeasance than the failure of the Federal Bureau of Investigation (FBI) to bring about a bloodless resolution to the 51-day standoff."  Some of Wright's major concerns about the operation include that the FBI officials, especially Dick Rogers, behaved increasingly aggressively and impatiently, when the conflict could have been resolved by more peaceful negotiation. He mentions that Rogers said in an interview with the FBI that "when we started depriving them, [we were] really driving people closer to him [Koresh] because of their devotion to him," which was different from what he said in the Department of Justice report.

Critics suggest that, during the final raid, the CS gas was injected into the building by armored vehicles in an unsafe manner, which could have started a fire. While two of the three fires were started well inside the building, away from where the CS gas was pumped in, survivor David Thibodeau claimed in a 1999 interview with the Reason that damage to the building allowed the gas to spread, stating, "They started to break the walls, break the windows down, and spread the CS gas out."  Further controversy involves the use of gas grenades. Attorney General Reno had specifically directed that no pyrotechnic devices be used in the assault. Between 1993 and 1999, FBI spokesmen denied (even under oath) the use of any sort of pyrotechnic devices during the assault; however, pyrotechnic Flite-Rite CS gas grenades had been found in the rubble immediately following the fire. In 1999, FBI spokesmen were forced to admit that they had used the grenades; however, they claimed that these devices—which dispense CS gas through an internal burning process—had been used during an early morning attempt to penetrate a covered, water-filled construction pit 40 yards (35 m) away and were not fired into the building.  According to FBI claims, the fires started approximately three hours after the grenades had been fired. When the FBI's documents were turned over to Congress for an investigation in 1994, the page listing the use of the pyrotechnic devices was missing. The failure for six years to disclose the use of pyrotechnics despite her specific directive led Reno to demand an investigation. A senior FBI official told Newsweek that as many as 100 FBI agents had known about the use of pyrotechnics, but no one spoke up until 1999.  On May 12, less than a month after the incident, Texas state authorities bulldozed the site, rendering further gathering of forensic evidence impossible.

The FBI had planted surveillance devices in the walls of the building, which captured a number of conversations that the government claims are evidence that the Davidians started the fire.  The recordings were imperfect and many times difficult to understand, and the two transcriptions that were made had differences at many points.   According to reporter Diana Fuentes, when the FBI's April 19 tapes were played in court during the Branch Davidian trials, few people heard what the FBI audio expert claimed to hear; the tapes "were filled with noise, and voices only occasionally were discernible. ... The words were faint; some courtroom observers said they heard it, some didn't."  The Branch Davidians had given ominous warnings involving a fire on several occasions.  This may or may not have been indicative of the Branch Davidians' future actions, but was the basis for the conclusion of Congress that the fire was started by the Branch Davidians, "absent any other potential source of ignition." This was prior to the FBI admission that pyrotechnics were used, but a yearlong investigation by the Office of the Special Counsel after that admission nonetheless reached the same conclusion, and no further congressional investigations followed. During a 1999 deposition for civil suits by Branch Davidian survivors, fire survivor Graeme Craddock was interviewed. He stated that he saw some Branch Davidians moving about a dozen one gallon (3.8 L) cans of fuel so they would not be run over by armored vehicles, heard talk of pouring fuel outside the building, and, after the fire had started, something that sounded like "light the fire" from another individual.  Professor Kenneth Newport's book The Branch Davidians of Waco attempts to prove that starting the fire themselves was pre-planned and consistent with the Branch Davidians' theology. He cites as evidence conversations the FBI recorded during the siege, testimonials of survivors Clive Doyle and Graeme Craddock, and the buying of diesel fuel one month before the start of the siege.

The FBI received contradictory reports on the possibility of Koresh's suicide and was not sure about whether he would commit suicide. The evidence made them believe that there was no possibility of mass suicide, with Koresh and Schneider repeatedly denying to the negotiators that they had plans to commit mass suicide, and people leaving the compound saying that they had seen no preparations for such a thing.  There was a possibility that some of his followers would follow Koresh if he committed suicide.  According to Alan A. Stone's report, during the siege, the FBI used an incorrect psychiatric perspective to evaluate Branch Davidians' responses, which caused them to over-rely on Koresh's statements that they would not commit suicide. According to Stone, this incorrect evaluation caused the FBI to not ask pertinent questions to Koresh and to others on the compound about whether they were planning a mass suicide. A more pertinent question would have been, "What will you do if we tighten the noose around the compound in a show of overwhelming power, and using CS gas, force you to come out?"  Stone wrote:

The tactical arm of federal law enforcement may conventionally think of the other side as a band of criminals or as a military force or, generically, as the aggressor. But the Branch Davidians were an unconventional group in an exalted, disturbed and desperate state of mind. They were devoted to David Koresh as the Lamb of God. They were willing to die defending themselves in an apocalyptic ending and, in the alternative, to kill themselves and their children. However, these were neither psychiatrically depressed, suicidal people nor cold-blooded killers. They were ready to risk death as a test of their faith. The psychology of such behavior—together with its religious significance for the Branch Davidians—was mistakenly evaluated, if not simply ignored, by those responsible for the FBI strategy of "tightening the noose". The overwhelming show of force was not working in the way the tacticians supposed. It did not provoke the Branch Davidians to surrender, but it may have provoked David Koresh to order the mass-suicide.