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Burden of Proof

1993 Waco Siege: Branch Davidian Survivors Suing Federal Government

Aired March 6, 2000 - 12:30 p.m. ET


ROGER COSSACK, CNN ANCHOR: Today on BURDEN OF PROOF: Branch Davidian survivors are making their case in a Texas courtroom, but haunting questions surround the final days of the Waco standoff. Did federal agents fend off plans to extinguish potential fire days before the compound was ignited? And did the FBI mislead the attorney general to gain her approval to use tear gas at Mount Carmel?

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

COSSACK: Hello and welcome to BURDEN OF PROOF. Greta is off today.

There's a verdict in the Abner Louima obstruction of justice case. We will bring it to you as soon as we are able.

But more than seven years ago, ATF agents raided a religious compound in Waco, Texas, but were fended off by the firepower of the people within that community. Their standoff with federal agents lasted 51 days and ended in tragedy. About 80 members of the sect died on April 19, 1993, including their leader, David Koresh.

Today, Branch Davidian survivors are suing the federal government. Joining us today from Houston is the plaintiff's attorney Mike Caddell. In Dallas, we're joined by Bill Johnston, who criminally prosecuted Branch Davidian survivors after the siege ended. Joining us here in Washington: Brian Jones, former FBI agent Clint Van Zandt and Justin Perillo (ph). In the back, Angela Glenn (ph) and Teena Tate (ph).

And joining us from Dallas is reporter Lee Hancock of "The Dallas Morning News." Her article in today's paper uncovers new communications between the FBI and the attorney general from confidential documents.

Lee, you have written today about these new documents that you have seen. Tell us about it.

LEE HANCOCK, "DALLAS MORNING NEWS": In 1995, one of the behavioral specialists, the behavioral analysts, named Pete Smerick, who was involved in the early part of the Branch Davidian standoff, came to FBI headquarters and gave a confidential interview to FBI lawyers. There was a document that memorialized that interview in which Mr. Smerick, a now-retired agent, among other things said that it was his belief, after reviewing the briefing book for the documents that the FBI brought to the attorney general when they began trying to convince her on April 12, 1993, to use tear gas that that was the only option for a peaceful resolution to this stand-off. He, in reviewing those, said that it was his opinion that that was slanted towards those who wanted a tactical resolution, that misled the attorney general, that the FBI's officials who presented it to her misled her into believing that gas was needed, and was the only option.

COSSACK: Now, Lee, there were reasons that Smerick gave about why, in fact, he -- that he believed that Reno was misled, and in fact, that his theories about using nonviolence, rather than violence, were disregarded. Why did he believe that?

HANCOCK: Well, in those briefing materials -- in the briefing paper, in the briefing book that was given to the attorney general, and then later in a formal document that the attorney general asked to be drafted, as she was wrestling with this decision towards the very end of the siege, there was no mention of a series of very pointed memos of behavioral analyses that Mr. Smerick and other FBI specialists had given, which warned that if force were used against this sect, if tanks went in, that it would almost certainly lead to violence and death.

And according to this document, again, I have not talked to Mr. Smerick about this, but according to this document, it quotes him as having said that because that kind of information was not presented when she was making her decision on what to do, he felt like she was not given a full picture of the situation in Waco, as she was asked to make this decision.

COSSACK: Lee, but didn't Smerick say that he believe that one of the reasons that Reno wasn't given this full picture was because that other parts of the FBI felt embarrassed by the fact that they had been held off so long by Koresh, and that they believe that the only way for them to assert themselves was to go in with the plan that they had rather than a non-violent plan.

HANCOCK: Well, specifically -- Well, one thing I should say is that they would argue that this was, in itself, a nonviolent plan, it was a very aggressive plan, but it was one that was going to try to use tear gas to force them out, but it was a tactical option.

What he said, actually, was that he and one of the negotiators who was the supervisors of negotiations during the first half of the siege, actually consult -- conferred back and forth after both of them had left in the first part of the standoff, and both of them agree, and he indicated that other negotiate essentially agreed, many of the other negotiators that containment might, in fact, be the best strategy, put a fence around them, declare it a federal prison, tell them they were in federal custody, and back off until they were ready to come out.

Now, it was his opinion, again, that he stated and it was voiced in this document that the FBI could not consider containment as an option, he said he felt that this would have been something that would have made the FBI lose face, that they needed a more aggressive, a tactical option, some way of bringing this thing to a resolution and a close.

COSSACK: All right, Clint Van Zandt, you were a negotiator at Waco. How can you argue, if you do, against the option of saying: You know what, we are not going to bring a tank, we are not going to put any tear gas, we are not going to fire a bullet because we think this could lead to a loss of life. Let's just put a big chain-link fence around there, and let them know, when you want to come out, let us know, because we are ready for you.

CLINT VAN ZANDT, FORMER FBI CHIEF NEGOTIATOR: Well, in fact, that was one of the things I suggested, maybe other people had picked it up, too, is, instead of treating the Davidians like a sphere of nuclear material and a nuclear bomb where we compress, compress, compress, and it blows up, let's back off, let's give them some space, let's give them some time, and we did. At Waco, we had this constant head-butting that took place, Roger, between the negotiators on one hand, and the tactical team on the other because they both thought they had the resolution. One was the velvet-covered fist, what the negotiators brought to it, and what HRT brought to it was a tactical resolution.

The tactical resolution carried through partially because it had gone on so long. As you know, the negotiators, 900 times, we asked the Davidians to come out, 900 times they turned us down. I think the tactical team and others on scene looked at that as to say: Well, you guys aren't going to make it happen.

COSSACK: But isn't that an argument of erecting the chain-link fence. I mean, if, in fact, 900 times you asked them to come out and they had already shot and killed ATF agents, isn't that an advertisement saying, you know, we are not coming out peacefully, if you come in violently. And so, what could ever be wrong with erecting this fence, and saying: There is one way out. We are shutting off the power. You are not getting any food. You are not getting water. And when you want to come out, let us know.

VAN ZANDT: Well, what you would have ran into, Roger, and I -- number one, I subscribed to that...

COSSACK: I know there's a lot of Monday morning quarterbacking here, but...

VAN ZANDT: What you would have run into is, about a month into that situation, you would have David Koresh with this little emaciated baby, and he would have held it up to the fence. He would say: See, FBI, the babies are dying, but God is going to take care of him, so don't give us food, don't give us water, and the babies are all going to die in here. And the American public who have been screaming: FBI get in there, blow those doors off, and save those babies. One way or the other, we would have had a tough situation. I would have rather have the American public demand that we go in, than do what we did that fateful day.

COSSACK: At least you would have had 30 more days with no one getting shot and no one getting killed on either side, to at least find out whether or not his resolve might have broken in that time.

VAN ZANDT: For negotiators, when nothing is happening, that's good. For the action imperative, on the tactical side, when nothing is happening, the theme sometimes is: Let's make something happen; two different schools of thought.

COSSACK: All right, let's take a break. When we come back, a look at the criminal trials of Branch Davidian survivors. In light of new information trickling out of the Justice Department, should prosecutors review the criminal convictions of David Koresh's followers? Stay with us.


Supreme Court justices earn $173,600 per year. Supreme Court clerks earn less than $50,000, but when they leave the court can earn up to $175,000 annually plus a $50,000 signing bonus.



COSSACK: Fifty-one days before the Branch Davidian compound burned, ATF agents exchanged gunfire with David Koresh's followers. The battle claimed the lives of four federal agents and six Branch Davidians. After the siege ended, five survivors from the sect were prosecuted as a result of those deaths. Four defendants were convicted of voluntary manslaughter, and one was convicted of a firearms charge.

Well, Bill Johnston, in light of the fact that there has been new information that has been leaking out in this case that perhaps indicates that the FBI or agents did fire into that compound, and we don't know that for sure yet, and I want to stress that, but in light of that information, do you feel that perhaps these convictions of these -- of Koresh's followers should be reviewed?

BILL JOHNSTON, FORMER FEDERAL PROSECUTOR: Well, I think there's no question that there's going to be some review of the convictions because of the Brady material and other matters that are coming to light and have for the last six or seven months. I think there will be some review of that. And, not to correct you, but there were 11 Davidians that actually went to trial, 12 that were prosecuted in total. And of those 11, I believe eight were convicted. But I think there will be a review of some sort based on a writ or some other filing.

COSSACK: Now, I want to explain to our viewers that a Brady material has to do with the government's obligation to turn over all material that may prove the defendants' innocence, and that is a requirement by the United States Supreme Court.

So Bill, when you say that a writ on behalf of Brady material, what you're suggesting is that perhaps the government did not turn over all of the material that would prove the defendants' innocence and claims in this case, is that what you're saying? JOHNSTON: Well, I'm saying there's at least some material that may have been helpful to the defense. Whether or not it was material to their defense and would have made a difference, that's for the court to decide. But for instance, the issue of the pyrotechnic tear gas rounds, that is an issue that, you know, defense attorneys would have like to have understood. It may have been available to them, but if it was in the bulk of the 24,000 pounds of evidence, it's unlikely they were able to focused on it. And there are a number of other issues, you've mentioned some, that are coming to light now that may have had a bearing on the jury's decision, but that's -- that's a question for the judge.

COSSACK: Bill, the defense, as I understand it, of many of the Koresh followers was the -- was self-defense, was it not?

JOHNSTON: It was part of their defense, that they anticipated being fired upon by someone they thought was unreasonable, you know, unreasonable amount of force, and they were going to defend that. The judge did give an instruction in that regard, although the 5th Circuit Court of Appeals said that was an unnecessary instruction, actually.

COSSACK: And was, but did the government at trial deny the fact that they were fired upon?

JOHNSTON: Well, at trial the evidence showed that -- and the 5th Circuit has found in their opinion that the Davidians actually fired first. That's been the subject of a lot of debate over the years, but it was -- it was probably, at least the evidence showed at trial, the Davidians fired and very -- almost immediately the ATF fired back. There was plenty of bullet scores on both sides.

COSSACK: Bill, you have had your own conflict with ATF in that you have called for an investigation of some ATF agents for what you consider to be supposedly the botched attack on the initial attack on Mount Carmel. Tell us about that.

JOHNSTON: Well, my argument really isn't so much with ATF, it's been with the Justice Department. You may know that I asked the Texas Rangers to investigate this case early on, while the siege was under way, and that pretty quickly it was determined that some ATF supervisors, even though they knew the element of surprise was lost, they ordered the raid anyway. And a couple of Texas Rangers worked diligently to determine why and who knew what when, and it was their conclusion that these ATF bosses lied to. And we had asked that the Rangers be sworn in as special deputy U.S. marshals before their investigation, which gave us the horsepower of Title 18-USC-1001, which is a false statement law. And so we felt like the rangers have been lied to and the Justice Department should have pursued those two ATF supervisors for, in effect, perjury or it's for false statement, and that wasn't done. That's one of a number of things I think should have been done early on, and it would have gained some credibility back for the United States.

COSSACK: Bill, you -- as you know, there is a civil lawsuit going on that one of our guests, Mike Caddell, is representing the plaintiffs. You have been criticized for allowing the documentary- maker into the evidence room to find some evidence. What's -- what's happened with that?

JOHNSTON: Well, that documentary-maker was very persistent in his requests and both to me and the Justice Department, and at the end of the day I thought he should be allowed in, that was my argument. The Justice Department public affairs director agreed and gave me permission to do that. I don't regret that at all. I'm glad Mike McNulty got to see the evidence. We wouldn't be here today, although it's obviously a very bad controversy, but we wouldn't be with as much evidence today if he hadn't have been allowed in and found what he did.

COSSACK: All right, Mike Caddell, let's talk a little bit about your civil lawsuit. Recently you were in Washington to take some depositions. Who did you take the deposition of, and what you can tell us?

MIKE CADDELL, LEAD ATTY. IN CIVIL LAWSUIT: Well, we deposed several FBI agents, including Dick Rogers (ph), head of the HRT at Mount Carmel. And I think we can tell you that those depositions continued to demonstrate that there was a series of bad decisions, and I think that's the best you can say about it, is bad decisions -- there may in fact be something more sinister about some of the decisions that were made -- and there, after that. there has been a persistent pattern of coverup, whitewash primarily by the Justice Department and people within the FBI.

COSSACK: Now, there is going to be a recreation of the -- of that day when the tank went into Mount Carmel and the fire began. Tell us about that recreation. I know it's going to be some time in May. What has the -- what are the ground rules?

CADDELL: Well, last October we asked for a demonstration of the infrared camera that was circling overhead, which has recorded flashes that our experts and many, many independent experts have concluded were gunfire from government positions. And as you know, for seven years the federal government has absolutely denied that any agent ever fired a shot. We proposed a demonstration in October, the government rejected that, laughed at us. Finally, the -- Senator Danforth's investigation requested that the court order it, and we're now about two weeks away from having this demonstration. It will be conducted at Fort Hood. It will involve not only the FBI's infrared camera but also a Royal Navy helicopter which will also have an infrared camera on it, and we will have -- we will fire various weapons, we'll have tanks and Bradleys, and it will -- it will recreate many of the events of April 19th to see how those show up on the infrared film.

COSSACK: Now, tell us exactly -- you said that Dick Rogers was the head of the HRT. What does that stand for?

CADDELL: The hostage rescue team. And that...

COSSACK: And Rogers was the one that was pushing, for example, the more -- the more aggressive end to this stand-off, isn't he?

CADDELL: I think that the notes of some of the hostage negotiators put it better than I could. They said that Rogers wanted to intimidate and to harass the Davidians, and that he felt that by intimidating them or bullying them he could force them to come out. And the negotiators said that that was exactly the wrong tactic to use with people or a person like David Koresh.

COSSACK: All right, we have a negotiator right here with us who actually negotiated with David Koresh. Is that a fair description of what the dispute was?

VAN ZANDT: I think it's fair, and I think his characterization was correct, too. I think what we're going to find out is that you had some very bad decisions that were made. I don't think there was anyone there from the FBI that was trying to bring about the demise, the death of the Branch Davidians. I think there were some bad decisions made, I think they were made kind of in a vacuum that centered around a tactical...


... against those decision. Most, if not all the negotiators and the behavioralists were, of course, like you say, Monday morning quarterbacking. But the bottom line, again, is that any time during those 51 days, David Koresh and the Davidians could have said, OK, let's resolve this in court. We think that's where this should be done. They refused to do it all the way up until the en, then the FBI, I think, exacerbated a bad situation by the way they tried to resolve it tactically.

COSSACK: All right, let's take a break. Up next, a look at the special counsel's probe into the Waco confrontation. And we'll talk more about the recreation of the battle of Mount Carmel. Stay with us.


Q: Why are investigators from Boulder, Colorado travelling to California this week as part of the JonBenet Ramsey investigation?

A: They are meeting with the therapist of a 37-year-old sexual assault victim who thinks her client may have important information about widespread sex rings that exploit children. Detectives have already interviewed the client and have found some inconsistencies in her statements.



COSSACK: There is a verdict in the Abner Louima case. We will bring it to you as soon as it is ready for us on CNN.

For now, though, former U.S. Senator John Danforth continues his investigation of the federal government's siege of the Branch Davidian compound. This month, investigators plan to recreate the events surrounding the 1993 confrontation.

Bill, I want to talk to you about the crime scene. You have indicated that because of what occurred there, the crime scene was pretty well destroyed by the events. Tell us about that.

JOHNSTON: Well, even before the fire, we had lost a great deal of the important evidence at the crime scene. And this was something that was a constant source of frustration for the Texas Rangers and me. You know, having dragged them into this, I thought I owed them the best crime scene possible, and I was an advocate for preserving the crime scene.

For instance, there were just a number of vehicles that were in front of the compound, like a green and white van. That van several ATF agents hid behind and returned fire from behind that van. The van was hit numerous times and agents, including a young man named Steve Willis (ph) of Houston, Texas was hit and he was killed behind that van. That would have been critical trajectory evidence that could have been gained from that van itself, for instance.

But even though the rangers and I would go to the FBI and encourage them to not move vehicles from the compound, they did over and over until before the -- as you can tell from pictures you may have seen -- before the tear gas insertion day, the vehicles were all gone. I mean, that evidence was gone. So that was a constant source of frustration. I think that plays into what your guest negotiator mentioned about the intimidation and harassment. And the problem with that was, not only did it not help in the negotiations, but it just tore the crime scene to pieces.

COSSACK: Mike Caddell, in light of what, you know, Bill tells us, how does that play into the fact that you are trying to gather all the evidence you can for your case?

CADDELL: Well, what's interesting is, seven years later, the key evidence is missing. And Bill's alluded to the automobiles, but there's also -- we're also missing the front door. You know, there was a lot of controversy about the Davidians shooting through the front door at the ATF agents. We can't find the front door. That's a critical piece of evidence that's missing now.

The tapes from April 19 that are supposed to be critical, the overhear tapes, are not originals. They've been tapered with, they're doctored. The videotapes are not originals. In fact, the FBI admits that most of the critical fleer videotapes are not originals, or at least they can't say that they are originals.

COSSACK: All right, Mike, I hate to interrupt you, because that's all the time -- I have to because that's all the time we have today. Thanks to our guests and thank you for watching.

On the eve of Super Tuesday, cast your vote in the presidential election today on "TALKBACK LIVE. That's at 3:00 p.m. Eastern time, noon Pacific. And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.


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