A former federal prosecutor said Monday he will "let the process run its course" now that he has declared his innocence to charges he obstructed the investigation into the siege at the Branch Davidian compound in Waco, Texas.
Former Assistant U.S. Attorney William Johnston entered a not guilty plea Monday in federal court in St. Louis. U.S. Magistrate Judge Mary Ann Medler released Johnston on his promise to show up for scheduled court appearances.
Johnston has a trial date of Jan. 2. But his lawyer, Michael Kennedy of New York, said he will probably ask for a later one.
A federal indictment returned Wednesday in St. Louis accuses Johnston, 41, of hiding his notes about the FBI's use of incendiary tear gas rounds at Waco from the Justice Department and Congress. He also is accused of later lying about the notes to the grand jury and investigators for John C. Danforth, special counsel in the case.
Johnston is charged with two counts of obstruction of justice and three counts of lying to investigators and to the grand jury that returned the indictment.
Grand jurors returned the indictment the same day Danforth released his final report clearing the government of crimes in the siege of the Davidian compound.
Danforth, a former U.S. senator from Missouri, was not present at Johnston's arraignment. Representing the special counsel's office were former U.S. Attorney Edward L. Dowd Jr. and Assistant U.S. Attorney James G. Martin.
As he prepared to return to New York, Kennedy repeated his assertion that Johnston was singled out for prosecution because he was a whistle-blower in the Waco case.
Johnston helped draw up the search warrant that agents of the Treasury's Bureau of Alcohol, Tobacco and Firearms tried to serve on Feb. 28, 1993, at the Branch Davidian compound. The incident turned into a gunbattle in which four federal agents and six Davidians were killed.
The resulting 51-day standoff ended in a fire that destroyed the compound. Sect leader David Koresh and about 80 followers died. In 1994, Johnston helped convict nine Davidians of crimes.
In his preliminary report in July, Danforth absolved the government of blame in the fire. The report came out a week after an advisory jury in Texas reached the same conclusion in a $675 million wrongful-death suit brought by surviving cultists and victims' relatives.
Johnston left the U.S. attorney's office in February. He has admitted that he withheld several pages of notes from 1993 dealing with the FBI's use of pyrotechnic gas. He has said he did it for fear that hostile colleagues would use the notes to discredit him.
"My actions were foolish, regrettable and wrong, but they were not criminal," he said. Danforth's final report criticized others who had withheld information and evidence, but other than Johnston, no one is being prosecuted. The criminal case is the final development in a 14-month investigation that cost $17 million. The final report was the last of Danforth's findings.
ST. LOUIS – A former government prosecutor pleaded not guilty Monday to charges of obstructing the investigation into the 1993 siege at the Branch Davidian compound in Waco.
Former assistant U.S. Attorney Bill Johnston was charged with two counts of obstruction of justice and three counts of lying to investigators and a federal grand jury.
The indictment was returned last week as Waco special counsel John C. Danforth released his final report absolving the government of wrongdoing in the siege. The case was filed in St. Louis because Mr. Danforth, a former U.S. senator from Missouri, based his investigation out of his law office there.
At the hearing Monday, U.S. Magistrate Judge Mary Ann Medler set a trial date of Jan. 2. Mr. Johnston is free on personal recognizance bond.
He was present at the arraignment but did not speak other than to acknowledge that he understood the terms of the bond.
Attorney Michael Kennedy has acknowledged that Mr. Johnston made mistakes in his dealings with the special counsel. But he called the charges baseless and unfair.
Mr. Johnston helped draft the search warrant that the Bureau of Alcohol, Tobacco and Firearms tried to execute on Feb. 28, 1993, at the Waco compound. The botched raid turned into a gunfight in which four federal agents and six Branch Davidians were killed.
The shootout sparked the 51-day standoff that ended on April 19, 1993, with a fire that consumed the compound, killing sect leader David Koresh and about 80 followers inside.
Mr. Johnston in 1994 helped convict nine Branch Davidians during their criminal trial.
In 1999, federal Judge Walter S. Smith Jr. ordered the government to give him all records and evidence connected with the standoff. Mr. Johnston then complained publicly that the Justice Department was covering up evidence showing FBI agents had fired pyrotechnic tear gas at the compound.
Justice Department and FBI officials denied for years that the government had used anything capable of sparking fires when they employed tanks and tear gas to try to end the standoff.
The FBI's subsequent confirmation that some pyrotechnic tear gas was used prompted Attorney General Janet Reno to ask Mr. Danforth to investigate.
In July, Mr. Danforth, in a preliminary report, absolved the government of blame in the blaze. A week earlier, an advisory jury hearing a $675 million wrongful-death lawsuit brought by surviving cult members and the victims' families reached the same conclusion.
Mr. Johnston left the U.S. attorney's office in February. He admitted in July that he had withheld several pages of notes from 1993 dealing with the FBI's use of pyrotechnic gas.
"It's completely irrelevant and immaterial to the investigation," Mr. Kennedy, speaking of the withheld notes, said after the hearing.
A congressional report issued last week praised Mr. Johnston for helping reveal the use of pyrotechnics but condemned his failure to surrender the notes, which indicated he was told in 1993 that FBI agents fired several incendiary military tear gas grenades.
Mr. Johnston said he withheld the notes out of fear that hostile colleagues might try to use what he had written to discredit him. He added that he didn't reveal the notes to Mr. Danforth because his investigators "treated me with the same loathing and hostility that I had encountered from the Justice Department."
Former Waco federal prosecutor Bill Johnston, who was indicted Wednesday in St. Louis on perjury and obstruction of justice charges, will surrender to federal authorities in St. Louis on Monday.
Johnston, 41, said Thursday that he was issued a summons after his indictment that ordered him to report for a 12:30 p.m. arraignment before a U.S. magistrate in St. Louis.
Johnston said he hopes to be released on a personal recognizance bond and be back in Waco by Monday night.
"While I may not have a lot of respect for the prosecutors, I respect the process and we will handle the process," Johnston said. "At this point, we are very unhappy with the way things have been happening, and at this point, I would look for a trial."
Jim Martin, an attorney in Special Counsel John Danforth's office, said Wednesday that a trial of Johnston's case could be held as early as January in U.S. District Judge Charles Shaw's court in St. Louis.
Danforth, a former Missouri senator, was appointed special counsel last year after revelations that the FBI fired pyrotechnic tear-gas rounds April 19, 1993, at Mount Carmel four hours before the fire in which David Koresh and 75 followers died.
FBI officials had denied for years that tear-gas rounds that potentially could have sparked a fire were used on the final day of the 51-day siege.
Danforth announced Johnston's indictment Wednesday along with issuing his final report from his 14-month, $17 million investigation. Danforth concluded that the FBI did not start the fire or shoot into Mount Carmel.
Johnston is charged with five felony counts, including that he lied to the grand jury in May and July, lied to Danforth's attorneys and investigators and obstructed justice by withholding evidence.
Johnston has acknowledged that he failed to comply with orders to turn over his personal legal notes from a 1993 meeting in which the use of military-style tear gas was discussed.
He also has admitted that he "temporarily misled" the grand jury about the notes and his knowledge of pyrotechnic tear-gas rounds fired at Mount Carmel.
Johnston claims that he is being retaliated against as a whistle-blower for his efforts to alert Attorney General Janet Reno that she was being misled by Justice Department officials about the use of pyrotechnic devices on April 19, 1993.
He said he withheld his personal notes from the 1993 meeting despite a congressional subpoena and a federal judge's order last year to turn over all matters related to the Branch Davidian case because he felt that he was being falsely accused of wrongdoing by his Justice Department superiors, whom he said were waging a smear campaign against him. He also has said that he felt the same hostility from attorneys for the Office of Special Counsel.
Johnston turned over the missing notes to the grand jury, but not before he was confronted with evidence that there were missing pages on which he had written notes indicating that he was aware in 1993 that the FBI used pyrotechnic devices on the final day, the indictment alleges.
A former federal prosecutor who played a major role in the government's siege of the Branch Davidians was indicted by a federal grand jury in St. Louis on Wednesday on charges that he obstructed the investigation of special Waco counsel John Danforth.
William W. Johnston, a former U.S. attorney in Waco, Texas, was accused in a five-count indictment of concealing information about the government's use of pyrotechnic tear gas rounds during the siege.
The indictment was issued as Danforth released his final report on Waco. He said he would have preferred releasing the report without prosecuting anyone, but that the charges were too serious to be ignored.
Johnston is accused of hiding his notes about the use of incendiary tear gas rounds from the Justice Department and Congress. He is also accused of later lying about the notes to Danforth's investigators and to the grand jury.
"I couldn't just shrug it off," Danforth said.
The indictment was tinged with irony. Johnston had played a role in the disclosures about the pyrotechnic rounds that led to the appointment of Danforth to investigate Waco. Johnston, while admitting that he hid the notes, said in a prepared statement that he was now being prosecuted because he was a "whistle-blower."
"My actions were foolish, regrettable and wrong, but they were not criminal," Johnston said. "I can't confess to concealing the pyrotechnics when I was the government employee most responsible for disclosing them. And I can't take full blame when there is so much blame to be spread around."
Danforth's final report criticized others who had withheld information and evidence, but other than Johnston, no one else is being prosecuted.
The criminal case is the final development in a 14-month investigation that cost $17 million. The final report was the last of Danforth's findings. In July he said that government agents did not shoot Davidians or start the fire that killed many of them. He also found that the military acted properly.
While finding that there was no widespread government conspiracy to cover up the use of pyrotechnic tear gas, Danforth found that members of the Justice Department's prosecution team had failed to give information about the rounds to Davidian defense lawyers during a criminal trial in 1994. He also criticized two FBI evidence technicians who checked the crime scene.
Three pyrotechnic tear gas rounds were fired at a shelter near the Davidians' complex on April 19, 1993, several hours before the fatal fire that ended the siege. It has since been determined that the rounds had nothing to do with starting the fire.
The Justice Department and the FBI had denied for years that the government used anything that could have started the fire. But that story began to unravel in the summer of 1999 when a filmmaker found evidence that tear-gas rounds that could start fires had been used. Johnston had let the filmmaker inspect some of the evidence left over from Waco.
When Attorney General Janet Reno was forced to acknowledge that the pyrotechnic rounds had been used, she appointed Danforth to direct a special investigation. At the time, Johnston went public with complaints that Justice Department officials had covered up the evidence that showed FBI agents had fired some pyrotechnic rounds.
In his prepared statement Wednesday, Johnston said he hid his notes about the rounds to protect himself from enemies in the department.
"Certain people leaked a memo to the news media making it appear - falsely - that I attended a 1993 meeting at which the term 'pyrotechnic' was used," Johnston said. "In any event, when I uncovered the notes, only days after the memo was leaked, I panicked, because I had just been ordered to place all my trial material in the hands of the people behind the smear campaign.
"I should have turned those notes over anyway and suffered the consequences, but I didn't," Johnston said.
Johnston, a highly regarded prosecutor, was a member of the prosecution team that tried some Davidian survivors in 1994. Danforth's report said the team had information that the pyrotechnics had been used and should have told the defense team.
Danforth also said he believed that Ray and LeRoy Jahns of San Antonio, two other federal prosecutors on the team, knew about the rounds but did not disclose them.
"I don't believe they told us the truth," Danforth said in an interview. "But the evidence is less tangible. There is a difference between what I believe and conclude and what I can prove beyond a reasonable doubt."
The report also said that while the Jahnses' failure to disclose was an unethical and illegal violation, it was not a criminal act.
The Davidian crime scene should have yielded three spent casings from the pyrotechnic shells and three spent projectiles, but only one casing was entered into evidence. While the report said the missing evidence was troubling, there was no information to indicate it was criminal.
"The Office of Special Counsel cannot exclude the possibility that someone at the crime scene decided to remove the evidence in order to benefit the FBI," the report said.
The report singled out FBI agents Richard Crum and James Cadigan. It said Crum gave statements that were evasive and unbelievable. Cadigan was faulted for keeping notes about the crime scene investigation in his attic. The report said his actions were "highly suspicious."
But neither agent is being prosecuted.
Law Offices
Goldstein, Goldstein & Hilley
29th Floor Tower Life Building
310 S. St. Mary's Street
San Antonio, Texas 79205-3199
November 3, 2000
Mr. John C. Danforth
Office of Special Counsel
200 N. Broadway, 15th Floor
St. Louis, Mo. 63102
RE: Danforth Investigation
[Ray and LeRoy Jahn]
Dear Senator Danforth:
I am writing in response to the ``draft portions'' of ``Office of Special Counsel's Final Report'' provided by facsimile on November 1, 2000. Given the limited time your office has allowed for response, and the fact that neither my office nor my clients have been allowed to review the entire report, in context, my response may be incomplete. Nevertheless, I feel compelled to respond, at least to point out that I consider your treatment of my clients to be a cheap shot in which two fine life-long prosecutors have been made scapegoats of your office's inquisitorial process.
To even suggest that Ray and LeRoy Jahn failed to disclose or made false statements regarding the use of pyrotechnic devices at the Branch Davidian complex on April 19, 1993, is disingenuous when your own report acknowledges [See: pp. 47-52 of Draft Report] that it was the FBI who misled and made false statements to my clients, the trial team, the DOJ, Congress, the press and public-at-large.
Furthermore, it is improper for you to make an adverse inference from my client's exercise of their constitutional rights upon the advice of counsel. I declined to have my clients sign any certification regarding records maintained and provided by them to the Eastern District of Texas, after your office had advised both Ray and LeRoy Jahn that they were ``targets'' of your investigation and the Eastern District was dealing with them through their counsel. To hold such an effort by counsel to exercise his client's constitutionally protected rights against them is abhorrent to principles of due process and fundamental fairness.
To suggest in your draft report that Ray Jahn was ``deceptive'' in his polygraph interview is a violation of the Privacy Act [See: 5 U.S.C. 552] and the express provisions of the Department of Justice policy [See: 9 USAM 13.3000]. Moreover, after your office refused to make the polygraph reports available to Paul Minor, a widely recognized expert in the field, for a second opinion, after initially agreeing to do so and then claiming to have lost same in the mail, Special Counsel [in particular Edward Dowd] represented to me that you would take no adverse inference from such polygraph results. In this regard I would also remind you that our office renewed our willingness to submit to polygraph examination upon the condition that we be permitted to verify the accuracy and reliability of your examiner and equipment by our nationally recognized expert. An offer your office rejected. [See August 24, 2000 Letter of transmittal – and corrections attached as Exhibit 1.]
The Jahns, together and separately, conducted hundreds of witness interviews during the nine months of pretrial preparation. Under these circumstances no one would recall with precision the subject matter of every interview, particularly six years after the fact. They can and did tell you that they walked away from those interviews with the absolute belief in the FBI's representation that they had not used pyrotechnics. The only evidence you have that any current government attorney from the trial team had knowledge to the contrary is contained in the notes of John Lancaster. Without benefit of the entire report, I cannot comment upon why Lancaster failed to tell the court or his supervisors at the Department of Justice in Washington – the persons most able to inform the Attorney General – about his knowledge. I can say that your targeting of the Jahns, against whom you had no such evidence, and Lancaster's sudden departure on an eleven-month sabbatical to Southeast Asia making him unavailable for interview raises substantial questions about the fairness of the entire process. That same unfairness is evident when you characterize as obstructive innocent telephone conversations that the Jahns had with friends and colleagues before your appointment was even contemplated.
Of utmost importance is that your office chose to castigate two individuals whose lives have been an example of selfless devotion to their Government and their profession, despite your express findings that your office could not prove that the Jahns deliberately concealed documents or evidence from any investigation [See: p 77 of Draft Report.]
Sincerely,
Gerald H. Goldstein
For Goldstein, Goldstein & Hilley
By criminally charging, Bill Johnston, the whistle blower, Special Counsel Danforth has missed a singular opportunity to finally bring closure and some healing to the horrors of Waco. Instead Danforth seeks to destroy the messenger and whitewash the governmental excesses of Waco.
The Waco tragedy is lacking in heroes, and, God knows, there is enough blame of government operatives to fill volumes. Bill made some mistakes of his own. What distinguishes Bill Johnston's mistakes in fact and in judgment from all the other government employees' errors is that Bill embarrassed the government by forcing the disclosure of the use of pyrotechnic devices by the FBI against the Branch Davidians. For this act of public responsibility, Bill is condemned and his conduct is criminalized. While Bill's mistakes were harmless, the same cannot be said for so many other government employees, who today are merely chastised or ignored completely by Mr. Danforth.
This blatant act of discrimination and selective prosecution is bad enough in itself, but made even worse by the prosecutorial abuses that have led to Bill's indictment. Mr. Danforth has used the grand jury to harass Bill's supporters, and his prosecutors have made false promises and used other highly questionable tactics. Cases of this sort only foster more public cynicism and mistrust in our government. Instead of healing the many wounds of Waco, Special Counsel will reopen many old wounds and inflict more pain and doubt.
Mr. Johnston will promptly and voluntarily appear in St. Louis to answer Special Counsel's charges. He will plead not guilty and fight for himself, his family and for the truth of what happened in Waco. Attached is a statement of Bill Johnston that ran as a guest editorial in today's edition of the St. Louis Post-Dispatch.
Bill thanks all those who have helped him in this time of crisis. Bill knows that his mistakes, which he has acknowledged and taken personal responsibility for, are not criminal violations of law. Bill has spent 17 years of his professional life fighting crime. He is no criminal and will continue the good fight.
Michael Kennedy
Law Offices of Michael Kennedy
425 Park Avenue, 26th Floor
New York, NY 10022
STATEMENT OF WILLIAM JOHNSTON, November 8, 2000:
I have spent a lot of time in St. Louis this past year – not as a tourist, but as the unhappy guest of the Office of Special Counsel. The OSC was launched last year to investigate still-unanswered questions arising from the 1993 shoot-out and inferno at the Branch Davidian compound in my hometown of Waco, Texas, that left more than eighty dead. Former Senator John C. Danforth was appointed to create and run the OSC, and he chose to do so in St. Louis, a few blocks from his downtown law firm, rather than in Texas.
The OSC was created largely because of me. I became Waco's federal prosecutor in 1987, and I held that post until early this year. It was my practice to get out in the field and work with law-enforcement officers, and during the Davidian siege, I tried to give aid and comfort to wounded ATF agents and their families. After the siege, I was one of three people assigned to prosecute surviving Davidians who had fired upon those agents.
At the time, I didn't think there were any significant unanswered questions about the siege. Michael McNulty, a documentary filmmaker, though otherwise. He believed that government agents had acted improperly, perhaps even started the fire. Basically because I thought it would only heighten mistrust of government if McNulty was stonewalled, I paved the way for him to examine the evidence. He found two shell casings from grenades fired by the FBI that were pyrotechnic (capable of causing fire), though not incendiary (designed to cause fire). I remain certain that the grenades did not start the blaze, but McNulty's discovery was shocking, and in August of last year, I repeatedly passed the information up the chain of command. For a month, Attorney General Janet Reno continued to deny the use of pyrotechnics. Finally, I broke ranks with my superiors and wrote to her directly. A few days later, the news media learned about the grenades, and all hell broke loose. To answer criticism, Reno appointed Danforth.
Whistle blowers are seldom popular. I became a pariah within the Justice Department, and the target of reprisals – most of them petty, though one quite ominous and suggestive of a smear campaign. Certain people leaked a memo to the news media making it appear – falsely – that I attended a 1993 meeting at which the term "pyrotechnic" was used. I'm not sure I heard that term seven years ago when I was preparing for the Davidian trial. If I did, it could not have registered, because McNulty's discovery astonished me.
I must have heard the term "incendiary," however, because it appeared among three pages of notes I scribbled in a legal pad in 1993. That term, I have since learned, is a red herring – no incendiary device was fired at the compound. In any event, when I uncovered the notes, only days after the memo was leaded, I panicked, because I had just been ordered to place all my trial materials in the hands of the people behind the smear campaign. I should have turned over those notes over anyway and suffered the consequences. But I didn't. And for several months, I didn't give the notes to the OSC, either – quite frankly, because OSC investigators treated me with the same loathing and hostility I had encountered with the Justice Department. This past July, I finally acknowledged the existence of the notes to the grand jury convened by the OSC, and made them available. Along with the notes came an expression of regret to the grand jury for having temporarily misled them. I owe the American public an apology as well.
Unfortunately, Mr. Danforth and his prosecutors want a lot more than a public apology. They have threatened me with twenty-one months of incarceration.
Mr. Danforth is openly scornful of people who, in his view, make the public cynical about the federal government. Whistle blowers must rank high on his list. He says I can avoid the prospect of prison if I will plead to a felony and sign a confession taking full blame for the fact that the FBI's use of pyrotechnics was so long concealed.
I can't do that. My actions were foolish, regrettable, and wrong, but they were not criminal – unless fear of character assassination is a crime. I can't confess to concealing the pyrotechnics when I was the government employee most responsible for disclosing them. And I can't take full blame when where is so much blame to be spread around. A recent report on Waco from the House of Representatives points an accusing finger at a large number of people, including the FBI hostage team leader, who authorized the use of those pyrotechnics "in deviation from his express orders." Mr. Danforth has given no indication that he will ask the grand jury to indict any of these other people – and he has publicly given the hostage team leader a pass.
If the OSC grand jurors, who have shown me a lot more courtesy than the investigators, accept Mr. Danforth's recommendation to indict me, so be it. But perhaps Mr. Danforth should ask himself whether seeking to send a whistle blower to the penitentiary -to the exclusion of everybody else – is really the cure for public cynicism.
Waco, FBI and the Branch Davidians: Updates
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