"What the Waco Jury Never Heard"

by Stuart Wright (July 15, 2000)

On Friday, July 14, an advisory jury of five persons answered interrogatories assessing no blame on the federal government for actions taken against the Branch Davidian sect in 1993. As might be expected in a high profile case where the defendant is the U.S. government, the trial became heavily politicized. Under the circumstances, the trial had little to do with such lofty virtues as finding truth or championing justice. With their already tarnished reputations on the line, the FBI, ATF and Justice officials marshaled an impressive array of resources to overwhelm the small town jury. The government also got a significant boost from court rulings restricting questions of liability. Michael Bradford, the lead co-counsel for the government boasted after the verdict: „What this shows is that the responsibility for the tragedy that happened at Waco is with David Koresh and the Branch Davidians.‰ „It's time to put this to rest and move on,‰ he added.
But few scholars and observers think this latest verdict will put the Waco incident to rest. There are too many disturbing questions about the civil trial. Consider the first interrogatory posed to the jury. The jurors were asked if the ATF used excessive force in executing the warrants in either of the following respects: 1) by firing at Mt. Carmel without provocation, and 2) by using indiscriminate gunfire at Mt. Carmel on February 28. Unanimously, the jury said no to both parts. But the response was largely a product of severely narrowed questions in the interrogatories and key evidence not heard. Judge Walter Smith granted „discretionary function‰ exemptions to federal officials, essentially giving them immunity for making bad decisions, and restricted evidence and arguments to the 51 day period between the failed ATF raid on February 28 and the final FBI assault on April 19.
The jury was not privy to the damning evidence that the ATF had ample opportunity to serve the warrants to Koresh when he was alone. Why was this important? Because by isolating Koresh, ATF could have avoided imperiling the lives of 130 other residents at Mt. Carmel in a dangerous, high-risk „dynamic entry.‰ Treasury Department officials and Congressional subcommittees reviewing the Waco debacle subsequently castigated ATF commanders for shoddy planning and a bungled surveillance operation that failed to apprehend Koresh away from the residence. Indeed, ATF initially claimed that Koresh never left the complex. But later investigations determined that this information was obtained second-hand from an unreliable source.
What else did the jury not hear? The jury did not hear evidence that the ATF manufactured claims about Davidian drug trafficking to the military in order to obtain Close Quarters Combat training at Ft. Hood, and secure aerial surveillance and support from the Texas National Guard. The ATF deliberately misled military officials assigned to JTF-6 and the Texas Governor's office in an effort to circumvent the Posse Comitatus Act. The law prohibits the use of the military to enforce domestic law, except in cases of drug trafficking.
The jury did not hear evidence that the ATF raid commanders were told to call off the raid if they lost the element of surprise. ATF undercover agent, Robert Rodriguez, was inside Mt. Carmel the morning of the raid and learned that the Davidians had been forewarned. Agent Rodriguez left the complex and informed his superiors that the element of surprise had been lost. The raid commanders ignored orders and proceeded anyway.
The jury did not hear evidence that the warrants were filled with numerous errors of fact and false statements.
The truth is that the entire incident on February 28 was avoidable. Had ATF agents served the warrants while Mr. Koresh was jogging down Double E ranch road or while Mr. Koresh was in town on other business, the raid would have been unnecessary. Other law enforcement, including members of the McClennan County Sheriff's Department and the Texas Rangers, have made the same observation. The Treasury Department report puzzled over this question, noting that those in charge ignored less lethal options, acting as if they were on a „pre-ordained road.‰ The final report on the Waco hearings by the joint House Committee on Government Oversight and Reform and the Senate Judiciary Committee was less kind: „The ATF's investigation of the Branch Davidians was grossly incompetent. It lacked the minimum professionalism expected of a major Federal law enforcement agency.
Was deadly lethal force, carried out in the form of a high risk, paramilitary assault and planned two months before surveillance, undercover and infiltration efforts were even begun, organized under the false pretenses of a drug nexus, targeting a residence housing infants, women and elderly persons, while ignoring opportunities to arrest the suspect alone, excessive? What jury would acquit the defendants if they had been allowed to hear all the evidence?

Stuart A. Wright is Associate Director of Graduate Studies and Professor of Sociology at Lamar University in Beaumont. He is editor of Armageddon in Waco (University of Chicago Press, 1995) and testified in the 1995 House hearings on Waco.