Waco

by David Thibodeau

  We few survivors gathered in the lobby of the Brittany, getting together for the first time since April. The mood was subdued but hopeful. “What can they do to us that they haven’t already done?” someone said, and that seemed to sum things up.

  On the morning of the taping we were awakened early and then bused out to the studio. As soon as we arrived we had the first indication that we were about to be screwed. The deal had been that the nonparticipants among our group (those who weren’t sitting for interviews) would sit in the front row, forming a bloc of support for Mark and Balenda; instead, we were deliberately split up and scattered throughout the audience. Another bad sign was the glimpse I had of Marc Breault going over a script of the show with one of Povich’s people. The smell of collusion was in the air.

  And, oh, that audience—the very faces in my nightmares.

  With my long hair tied in a ponytail, I felt naked amongst that shirt-sleeved, sprayed-hair brigade, sure the knives would soon come out and I and my friends would be cut to ribbons by the crowd’s rampant righteousness. Its mood was cheerfully expectant, like a horde in the Colosseum waiting for the Christians to be thrown to the lions. They didn’t lick their chops openly, but a sort of obscene glee was plain to see.

  The situation turned surreal when a comedian came out to warm us up. Though this is a standard in all TV shows, I thought it was totally inappropriate, given the gravity of the topic. But the people in the audience chortled their heads off.

  Amid all this an elderly woman came up and asked for my autograph. “Why?” I asked, taking her program to sign. “You’re a celebrity,” she said, surprised by my query, and walked off with her prize. Some celebrity, I thought, watching her go. Looking around, I noticed Mark Spoons, our former neighbor at Mount Carmel, the man who’d rented the house by our gate to Robert Rodriguez and his team.

  Povich bounced onto the stage, provoking an outburst of applause. His gaunt preacher’s face seemed at odds with his blow-dried coiffure and glib tongue—Abraham Lincoln as snake-oil pitchman. His voice was solemn yet salacious as he introduced the topic and the panelists, relishing a juicy show.

  The juice came early, when poor old Stan Sylvia started sobbing. His seven-year-old son, Joshua, had been placed by the authorities with a family in Massachusetts, and he was fighting to get the boy back. A New Englander like me, Stan had long been a loyal follower of David’s at Mount Carmel and Palestine. His wife, Rachel, had died in the fire, along with her two-year-old daughter, Hollywood, one of David’s children. Stan refused to believe that David was Hollywood’s father, however, and he’d kind of kept his distance from the rest of us. During the siege Stan was in Pomona. Now his short, stocky body heaved with grief at his multiple losses.*

  “Why didn’t they just let the children go?” shouted a redhead sitting right behind me, and the audience cheered her roundly. This person, who pretended to be an audience member, was actually an attendant on Povich’s flight to Waco. She, too, had been seen backstage consulting over a script, and all through the taping she leaped to her feet with the same shout—“What about the kids?” Every time Balenda and Mark tried to turn the focus back to the government’s actions, the audience started screaming about the children.

  “Why didn’t you guys come out with a kid under each arm?” Mark Spoons demanded.

  “No one wanted to leave,” Catherine Matteson explained, but she was hooted down.

  Balenda fought like a tigress against the rising tide of malice, refusing to shut up at Povich’s command. “Balenda, this is not your show, this is my show,” the famous host said testily. She was often booed and rarely applauded by the studio crowd. When Mark tried to say that we should put our raw emotions aside for a moment and dispassionately consider the facts, the audience hissed him into silence. “It was like being eaten alive on television,” Balenda said afterward, tears of frustration in her eyes.

  During a break, before Marc Breault was introduced, a production assistant told me I should get up and challenge him. She wanted me to ask Marc if he felt responsible for all the deaths. “Get outta my face,” I said, shoving her aside. “I’m not going to be part of your damn circus!”

  Marc’s appearance on the platform was the very first time I’d seen him in the flesh. His lean frame was clothed in black, giving him the look of a shifty undertaker, except for his elaborate, greasy, Elvis-style coif. I remembered David’s deep grief over Marc’s defection, his frequent tears and occasional fury. Onstage Marc clearly felt ill at ease. His answers were mumbled and unclear, and he was obviously aware of our hostility. I’m sure, too, that he wasn’t happy about what had happened. In his book he insisted that Mount Carmel was one of the most truly religious communities he’d ever encountered.

  For me, the truly shattering moment was the testimony of Dr. Crow, who was clearly still very distressed by what he’d seen on his autopsy table. But the good doctor’s testimony was lost in the carnival atmosphere, and when the county coroner finished speaking Povich insisted—ignoring Crow’s evidence—that the people in Mount Carmel had carried out a mass suicide, echoing President Clinton’s declaration that we were a bunch of religious fanatics who’d killed ourselves.

  I was furious with the way Povich’s show turned out, but I was also glad to have come so nakedly face to face with such hostility. In truth, the experience was bracing. It allowed me to regard the mountain of prejudice in the light of reality. It was a formidable climb no doubt, but I could begin to imagine myself finding a foothold or two on its slopes.

  * Fifteen children had been taken into state custody during the siege. Ten had been placed in the Waco Methodist Home before going into foster care. “What we have here is a beautiful bunch of kids,” the Methodist Home president said at the time. “They’re bright. They’re doggone bright. You can see the wheels turning round and round with every new concept.” He also reported that the children while in his custody had many nightmares, panic attacks, and frightening flashbacks of the initial attack.

  18

  CLIMBING THE MOUNTAIN

  The trial of eleven members of the Mount Carmel community—charged with conspiracy to murder federal officers, murdering federal officers, and various firearm offenses—commenced in San Antonio in early January 1994. The accused included Norman Allison, Renos Avraam, Brad Branch, Jaime Castillo, Graeme Craddock, Clive Doyle, Livingston Fagan, Paul Fatta, Bob Kendrick, Ruth Riddle, and Kevin Whitecliff. They were represented by thirteen lawyers, including Dick DeGuerin’s brother, Mike. I went to San Antonio as a witness for the defense and to show my support for my friends. The trial lasted until February 26, two days short of the first anniversary of the ATF’s attack.

  Though the trial had been moved from Waco, I was shocked to discover that the judge, Walter Smith Jr., was the same federal magistrate who’d denied David Koresh’s right to counsel during the siege. Seeing him up there on the bench made my heart sink. Declaring that “the government is not on trial,” Smith had refused defense motions to sever the cases and would not allow defense attorneys to subpoena federal officials who’d helped plan the raid. He arbitrarily cut the jury pool in half before prospective jurors could be questioned, placed the attorneys and jurors under a gag order, and had the jurors escorted into court by armed guards.

  I was also appalled to learn that Ray Jahn, the leader of the six U.S. Attorneys assigned to prosecute the case, had been hired as a special counsel to FBI Director William Sessions. Jahn had been involved in planning the use of CS gas to force us out of Mount Carmel, and another prosecutor, Bill Johnston, was one of the people who had organized the ATF’s raid.

  Johnston’s role in the Mount Carmel story was particularly sly. He’d previously tried to suppress a damning Treasury Department internal memo revealing that the ATF had initiated a shooting review on March 1 and had “immediately determined that these stories [of agents who took part in the February 28 raid] did not add up.” When he got wind of this, Johnston, in his role as a Justice Department
attorney, advised ATF Supervisor Dan Hartnett to stop the review for fear that the ATF was creating evidence that would contradict the prosecution’s case.

  To cap it all, there was Davy Aguilera, the ATF agent who had authored the original affidavit, seated among the prosecutors. It seemed clear to me that the deck was well and truly stacked.

  The Mount Carmel Eleven seemed dazed by the buzz of the attorneys and court officials, the hostile curiosity of the crowd, and the abstractions of the procedure. Jaime caught my eye and smiled, but he looked totally disoriented. He was shuffling, his gaze darting this way and that, as if searching for an escape hatch. I felt so bad that he was up there and I was down among the spectators.

  Despite the presumption of innocence guaranteed by the U.S. Constitution, I knew from my grand jury experience that the simple act of entering a courtroom can make one feel guilty, and I imagined how these defendants must have felt. I wasn’t allowed to visit Jaime in custody, and the defendants were escorted to and from the court by a motorcade complete with outriders and three police cars in front and behind the prisoners’ vans, sirens screaming.

  Ray Jahn set the tone with his statement that “the evidence will show that David Koresh’s theology was the theology of death.” The defendants were accused of being members in a “revolutionary organization,” whose core unit was the “Mighty Men.” The phrase “the House of David” was given a sinister twist, as if it were a terrorist organization aiming at the violent overthrow of authority.

  These accusations reflected the gross distortion of Mount Carmel’s image in the mirror of the public mind.

  As it turned out, the evidence prosecutors presented was either weakly circumstantial, self-incriminatory, or the testimony of people like Kathy Schroeder, who’d been offered a plea bargain in exchange for testimony. Jaime’s attorney, Jeff Kearney, grilled Kathy, but she insisted on identifying eight men with guns, claiming it was her role to hand out the ammunition. She said that Renos Avraam had a .50-caliber machine gun nicknamed the “Bear” and that he’d told her he’d fired shots at the ATF on February 28. (As I mentioned earlier, no such machine gun turned up among the weapons the feds displayed and alleged to have found after April 19.)

  In Brad Branch’s case, for instance, there was Victorine Hollingsworth’s statement that she’d heard Brad say “I got one!” and a contrived argument based on the relative position between Brad and an ATF agent who was killed on February 28. There were no eyewitnesses, and ballistic tests of the bullets in the agent’s body did not match any of the guns found in Mount Carmel. Paul Fatta was charged with aiding and abetting the conspiracy, though there was absolutely no evidence that Paul himself had ever converted AR-15s from semiautomatic to automatic. Ruth Riddle was also accused of aiding and abetting because she was supposed to have handed her gun to someone else. Clive Doyle, Jaime, and Graeme Craddock were accused of starting the fire.

  Remarking the tenuous nature of such evidence and of the whole case in general, Gerry Morris, Bob Kendrick’s attorney, told the jury that the prosecution “made it sound like getting involved in a conspiracy is about like catching a cold.”

  As the trial wore on it was obvious that the defense team was outmatched by the prosecution team of top Justice Department lawyers. Most of the defense attorneys were acting pro bono, and it showed. They failed to nail down crucial points and let off lightly scores of prosecution witnesses. They also seemed unable to find a common voice. The only one who struck me as competent was Clive Doyle’s attorney, Dan Cogdell. In preparing for my testimony he grilled me till I sweated. No prosecutor could break me after that, I felt. However, I wasn’t called to the witness stand. The defense, led by Corpus Christi attorney Douglas Tinker, called few witnesses and rested early. On the advice of their attorneys, none of the defendants took the stand.

  To me, the defendants’ failure to testify was a bad mistake. It didn’t give the jurors a chance to see how essentially harmless most of the people on trial were—goofy, maybe, to conventional eyes, but innocuous nonetheless. It also left the prosecution with all the cards, including that massive display of weaponry. Yet the defense team did not sufficiently challenge the fact that the government never allowed an independent inspection of these weapons to verify whether they had, in fact, been collected from among the ruins of Mount Carmel.

  I called lead attorney Douglas Tinker to ask him whether he thought that resting the defense case early was wise, but he rudely hung up on me. I called back a second time to make sure we didn’t just get disconnected and he swore at me and then hung up again.

  At the close of the trial Judge Smith gave the jury sixty-seven pages of instructions on how to render a verdict, most of them favoring the prosecution. However, he did allow an important instruction offered by the defense: “If a defendant was not an aggressor, and had reasonable grounds to believe he was in imminent danger of death or serious bodily harm from which he could save himself only by using deadly force against his assailants, he had the right to employ deadly force in order to defend himself.”

  The jury was a mixed bag, and though I searched the faces long and hard, I didn’t quite know what to make of it. Among the eight men and four women were housewives, school teachers, civil servants, and a retired banker. When they left the courtroom to deliberate on the verdict I felt my friends were likely damned.

  But we were all surprised. Four days later the jury found all eleven defendants not guilty on the murder and conspiracy charges; Doyle, Allison, and Kendrick were found not guilty on all counts. Seven were found guilty of aiding and abetting in the voluntary manslaughter of federal officials; five of these were also found guilty of carrying a firearm during the commission of a crime of violence. Paul Fatta and Graeme Craddock were also found guilty of other weapons violations.

  The jury’s comments were interesting. The verdict was a compromise, a few members declared. “Some thought it was outright murder on the part of the Branch Davidians,” one juror said. “And some thought it was outrageous murder on the part of the federal government.” Another commented that “there were a lot of dirty hands out there that day [February 28], on both sides.” Another juror remarked that after seven weeks of testimony, 120 witnesses, and well over a thousand pieces of evidence, “No one had a clue about who had fired the first shot that day.” However, they all agreed that none of the defendants deserved life in prison. “When we heard all that testimony, there was no way we could find them guilty of murder,” declared one juror. “We felt provocation was pretty evident.”

  “When I first heard that there was going to be a Branch Davidian trial,” jury forewoman Sarah Bain later said, “my first thought was that it was going to be actually a trial of the FBI, or trying to bring some of the FBI people to justice. And I was actually quite amazed to find out that the Branch Davidians were on trial for murdering four ATF agents on February 28.”

  Bain felt that the jury did not get the complete, truthful picture of the events that occurred during the ATF’s initial attack on Mount Carmel. “For example, the question of whether or not the helicopters were firing down on Mount Carmel was a major part of the testimony we received,” she declared. “There was so much evidence that there could have been no firing coming from the helicopters, that we pretty much felt forced to believe it. Had we known, as we know now, that there was gunfire from the helicopters, it would have made a strong impression on the jury, and we would have given more consideration to the self-defense argument.”

  According to Bain, the jury also made a crucial technical error, one that impacted the sentences subsequently handed out by the judge. “Though we found the defendants not guilty of the charges of murder or attempted murder or conspiracy to murder,” she explained, “we mistakenly found several of them guilty of the linked charge of using firearms during the commission of a crime—a crime of which they were innocent. That was a totally inconsistent verdict. After the trial was over, Judge Smith came into the jury room and told us that he had no
choice but to throw out the firearms conviction on the basis of that inconsistency. However, the prosecution then argued from legal precedent that an inconsistent jury verdict did not necessarily negate that verdict. The judge then reinstated the firearms convictions, and handed out his harsh sentences.”

  Immediately after the trial Bain wrote to Judge Smith that the defendants, in her view, had indeed fired guns on February 28, but “their actions were rash rather than of murderous intent.” Considering time served, none of them should be “facing severe penalties,” Bain wrote. “Even five years is too severe a penalty for what we believed to be a minor charge.” Most of the defendants, she later said, should be given probation. “If we were to have the trial today, and if I were again the foreman of the jury, with all of the information that has come to light since then, I think the outcome would be very different. Even back then we all felt a little bit blue about our verdicts, which the evidence presented had compelled us to render. We consoled ourselves by saying that the trial of the Davidians was just the first shoe dropping, that the ATF officials who’d formulated the fatal February 28 raid would also be made to face a trial. To me, it’s a disappointment and a disgrace that the second shoe has never dropped.”

  Clive Doyle and Bob Kendrick were immediately set free. Two foreigners, Canadian Ruth Riddle and Briton Norm Allison, were turned over to the INS because they had overstayed their temporary visas. Ruth, however, was rearrested, on Judge Smith’s order, on a legal technicality presented by a prosecutor.

  The press crowded around us on the courthouse steps as Clive and Bob emerged. Both men shed tears of sheer relief at their release; they also wept for those who were still detained. I gave a few interviews myself, trying to counter the accusations disguised as questions that the reporters flung at me. It was hard to figure out how to reduce all the complex issues to a series of soundbites that would cut through the fog of misconceptions.