Houteff died in 1955 without seeing the coming of the millennium that he had preached. His wife, Florence-succeeding him as leader of the group, which called itself the "Davidian Seventh-day Adventists"-announced that the new era would begin on April 22, 1959. About nine hundred people across the country sold their homes and moved to Mt. Carmel near Waco to await the end (throwing a considerable burden on the public welfare program of McClennan County). When the date came and went and nothing happened, most of the disappointed adherents drifted away. About fifty remained, however, and moved to a New Mt. Carmel about ten miles from Waco.
The next year leadership devolved on Ben Roden, who called his following "Branch Davidians" to distinguish it from another group that continued the plain "Davidian" strand. After his death, his wife Lois led the group, traveling and meeting with foreign heads of state in the effort to spread the message. After her death a struggle took place between her son, George, and a relative newcomer to the group, Vernon Howell. She actually had favored Vernon as her successor, but George remained in control of the colony, so Vernon moved to Palestine (Texas), taking with him those among the faithful who accepted him rather than George as their prophet.
George challenged Vernon to a duel in 1987 to prove which was the True Prophet. The form of the duel was to see who could bring back to life a long-dead Davidian whose casket was exhumed by Roden. Howell declined the challenge and complained to authorities about the exhumation. When they demanded proof, Howell and seven armed followers stole into the Mt. Carmel premises to photograph the coffin. Roden caught them, and a gunfight broke out. All eight of the Branch Davidians were tried for attempted murder. Seven were acquitted, and Howell's trial ended in a hung jury. He was never retried.
George Roden did not prosper at Mt. Carmel. He lost most of his followers, went into debt, and rented out some of the ramshackle buildings to non-Davidian tenants, including two drug traffickers. Roden was jailed for six months for writing threatening letters to a judge, and during that time Howell gained title to Mt. Carmel by paying off sixteen years of delinquent taxes. In 1989 Roden murdered a man with an axe and was committed to a mental institution, where he remains-though he did escape briefly in 1993-and Howell's followers, in apprehension that Roden would return to attack them, maintained an armed vigilance against that threat (and others).
So persuasive was his message that he drew converts (mostly Seventh-day Adventists) from many states and foreign countries. He also showed himself an able organizer, rebuilding New Mt. Carmel from a scattering of shacks into a rambling frame structure of several floors combining chapel, residence, gymnasium, water and watch towers, tornado shelter, swimming pool, and utility space. He led in developing several commercial ventures for the financing of the community, including repairing and retooling automobiles and selling guns, ammunition vests, hunting camouflage, and ornamental (empty) hand grenades at gun shows around the state.
David Koresh inherited a millennial view from Houteff and the Rodens, along with their authoritarian style of leadership. His message focused on the decoding of cryptic apocalyptic passages (such as the Seven Seals of the Book of Revelation) that he understood to refer to the present: the inbreaking of God's will into human history was about to occur, with a cosmic struggle between good and evil; the forces of evil would be concentrated in the present center of earthly power, the government of the United States, whose Babylonian might would be brought to bear against the Lamb and his Elect.
But the Lamb was not going to submit meekly to the Babylonians. The Battle of Armageddon must be waged with maximum effort by the faithful to draw down the heavenly host and bring in the City of God. To that end Howell accumulated arms for his followers, possibly even beyond the generous norms of gun ownership in Texas or the needs of the gun trade. He was stimulated in that endeavor by a curious and seemingly unrelated event, described in the chronology of a postmortem report by the U.S. Treasury Department as follows:
March 5-9, 1992 - Local law enforcement conduct SWAT training near [Mt. Carmel]. David Koresh . . . reacts by: 1) bringing back members from California and England; 2) making large purchases of weapon parts; 3) acquiring chemicals which can be used to make explosives; 4) purchasing night vision scopes and sensors; and 5) accumulating large supplies of ammunition.In other words, Koresh saw this three-day episode of noisy police maneuvers within ear-range of Mt. Carmel as brazen intimidation by the Babylonians, and he responded with strong defensive measures. These very measures, in turn, brought him to the attention of federal authorities, who might otherwise not have been much interested in an obscure little sect out on the plains of Texas.
One other feature of the teaching of Koresh was pertinent to the unfolding of events. He discerned in several scriptural passages, especially the Forty-fifth Psalm, the implication that the Lamb should be united with the "king's daughters," "honourable women," "virgins," to beget "children, whom thou mayest make princes in all the earth." His understanding (which came to be shared by his followers) was that only the seed of the Lamb was pure and that the Lamb alone should beget the children who would rule the world in the coming age. To that end, Koresh was accorded exclusive marital rights to all of the women in the community, and their husbands (if they were married) relinquished such rights to Koresh because of their belief that he correctly understood the divine will. As a result, by 1993 Koresh was the father of more than a dozen young children by several women in addition to his legal wife, Rachel Jones (daughter of a long-time Davidian, Perry Jones).
Perhaps understandably, this led to some criticism from outsiders, inspired by disaffected ex-members who complained to the authorities about "child abuse." A nine-week investigation in 1992 by the Texas Bureau of Child Protective Services, however, found no evidence of such abuse. Discipline of children does appear to have been strict at Mt. Carmel, and Koresh sometimes paddled young children severely for infractions. But the children who were examined by Texas authorities were found to be healthy, well-adjusted, and non-traumatized. Those pictured on a videotape with Koresh made during the siege seemed fond of him and unapprehensive.
New religious movements often have unconventional marital arrangements- as, for instance, the "complex marriage" of the nineteenth-century Oneida Community, in which all the women were married to all the men, but had to have the approval of John Humphrey Noyes to consummate conjugal relations. (If any couple became too attached, he would send one or the other off to an outpost in Wallingford, Connecticut, to get over it.) Whatever the arrangements were at Mt. Carmel, they were part of a project of "soteriological procreation" (the term used by Lawrence Sullivan of Harvard, one of the government's chosen commentators on the federal reports about Waco), and it was a collective project-one joined in by the religious community as an undertaking to treasure, husband, and disseminate the pure seed of the prophet as a precious resource for raising up the heirs of the new Kingdom. It did not necessarily seem to be "abuse" to those who experienced it. One account appearing in Newsweek put it this way:
To many girls being chosen by Koresh was an honor they eagerly sought. Koresh "wouldn't do it unless you wanted it," says Jeanine Bunds, 51. . . . "It wasn't about sex, but he was a very appealing, sexual person. . . ." He just loved the idea of womanhood . . . and he made you feel special. . . . A union with Koresh was spiritual, says Robyn Bunds, who met with Koresh when she was fourteen and slept with him when she was seventeen. . . . "He's perfect, and he's going to father your children. What more can you ask for?"
The agency's interest lagged in mid-1992 until a television program on sexual harassment within ATF threatened to impair the agency's prospects at Congressional budget hearings in March 1993. Perhaps in search of good press, the agency began in December to plan a major raid on the Branch Davidians. A warrant for the arrest of Vernon Howell and a warrant for the search of his property at Mt. Carmel for illegal firearms were obtained (both based on an affidavit hastily put together by Aguilera). After assembling a large number of agents and rehearsing for several days, the ATF launched its raid on a Sunday morning, February 28, 1993, in what it described as a "dynamic entry."
The "dynamic" part of the entry was impaired, however, by the loss of the element of surprise. On the morning of the raid, several converging lines moved toward closure. A mile-long convoy of eighty government vehicles with their headlights on, including two covered cattle trailers containing over seventy ATF agents in full SWAT gear, reached the staging area at Bellmead on the edge of Waco at 7:30 a.m. Two helicopters supplied by the Texas National Guard warmed up at the command center at the Texas State Technical College airport twelve miles away. Robert Rodriguez, an undercover ATF agent who had "infiltrated" the Davidians (but was suspected by them of being a plant), entered the residence to join the morning Bible study.
The media also began to circle around. The day before, a cameraman for a Waco television station had been told by an ambulance dispatcher that the ATF had asked them to have three ambulances on standby for Sunday morning. A paramedic had also told him that "something big" was going to happen over the weekend. Editors from the Waco Tribune Herald drove by the TSTC airport and saw military aircraft clustered there. By Sunday morning nine reporters had been assigned to scout the scene around Mt. Carmel. One of them got lost and asked directions from a local mailman, to whom he confided that some kind of law enforcement action was about to take place at Mt. Carmel. After they parted, the mailman-David Jones, who happened to be David Koresh's brother-in-law- headed for the residence to give the alarm. His father, Perry Jones, called Koresh out of the Bible study to tell him what David Jones had learned.
When he returned to the Bible study group, David Koresh was visibly upset. He exclaimed to Rodriguez, "Neither the ATF nor the National Guard will ever get me. They got me once, and they'll never get me again." He walked to the window and looked out, saying, "They're coming, Robert. The time has come." Rodriguez, afraid that the raid was about to begin while he was still on the premises, made the excuse that he had to leave for a breakfast appointment. Koresh shook hands with him and said, "Good luck, Robert." Rodriguez hurried to notify the raid commanders that Koresh knew they were coming. They asked if he had seen any signs of alarm or guns being distributed, and he said no. They decided that if they rushed to Mt. Carmel, they could still make the attack before the residents were mobilized.
That was about 9:00 a.m. The convoy got under way and arrived about a half hour later. Meanwhile, the helicopters that were scheduled to create a diversion in the rear of the residence so the approach of the cattle trailers filled with agents would not be noticed were late in arriving. They did not come by, the Treasury report asserted, until the cattle trucks were pulling into the yard, too late to create a diversion or for the raid to be aborted. In any event, the raid commanders were out of radio contact at the time and not available to change the plans.
So events unfolded. The two unmarked cattle trailers drew up in front of the buildings at Mt. Carmel and disgorged more than seventy agents dressed in dark commando costumes (complete with ski masks) and carrying guns, who raced toward the buildings in several groups, shouting and-at some point-shooting. David Koresh, unarmed, opened the front door before they reached it and called, "What do you want? There's women and children in here!" The lead agent claimed to have yelled, "Police! Get down!" or some such cry, and Koresh closed the door. Shortly thereafter heavy firing broke out from both sides. (Who fired first, and at what, remains a matter of sharp dispute.) Two teams of ATF agents with ladders mounted to the roof of the first floor and broke into windows of the second floor where they believed the weapons were stored. They met with heavy fire, which resulted in several casualties. One team did not make an entry, but the other did. Its members were not able to advance, however, and the effort failed. Firing continued from both sides for some time, with the agents pinned down behind their vehicles and other cover until a cease-fire was negotiated.
A few minutes after the raid began, one of the Davidians, Wayne Martin, a Harvard-trained lawyer well-regarded in Waco, called the emergency number 911 and reached the sheriff's office in Waco, where he was heard (and recorded) to cry out, "There are seventy-five men around our building and they're shooting at us! Tell 'em there are children and women in here and to call it off!" This message and variants thereof were repeated off and on for an hour as the sheriff's office tried to reach the ATF and put them in touch with Martin. Eventually a cease-fire was arranged, and the ATF recovered the bodies of four killed and a number of wounded agents and withdrew to a safe distance to regroup. They milled around in confusion because they had no fall-back plan for such contingencies as failure.
The Branch Davidians had suffered casualties as well. Perry Jones, David Koresh's father-in-law, who was standing behind him in the foyer when he opened the door, was shot. Koresh was hit in the hand and side. Winston Blake was killed at one end of the building while Jaydean Wendel was killed at the other, just as she finished nursing her baby. Peter Gent was shot and killed on the water tower. Peter Hipsman was hit inside the house. (It may be that one of the Branch Davidians-presumably with Koresh's permission-killed Perry Jones and Peter Hipsman to put them out of their pain.) Several Davidians hurrying to Mt. Carmel from a warehouse called the Mag Bag several miles away were intercepted by ATF agents. One was killed-Michael Schroeder-and one was captured, while one got away.
After a week or so of this exercise in what the federal participants began to refer to as "Bible babble," the FBI leadership on the scene grew impatient and began to use pressure tactics that tended to undercut the negotiators' efforts. During the first week of the siege twenty-one children and two elderly women did come out. (The two women were immediately handcuffed, shackled, and charged with murder. Negotiators persuaded the prosecutors to back off a bit, and the charges were withdrawn, but the women were held as "material witnesses" anyway.) In the ensuing two weeks twelve additional adults came out ("exited the compound," as the federal jargon put it), but each such departure seemed to be punished by an increase in pressure tactics. First the electricity was turned off overnight by the FBI for several days and then turned off permanently. After several adults had come out on March 21, the FBI announced that it would clear the ground around the buildings, bulldozing automobiles, go-carts, propane tanks, and other "obstacles" that stood in the way. That evening the FBI began playing very loud music over the public address system. Several times the Davidians asked over the phone that it be turned off. About midnight Koresh announced angrily that because of the loud music no one else would come out.
A few nights later huge floodlights were turned on the buildings and recordings of Tibetan chants, Christmas music, the cries of rabbits being slaughtered, and other engaging sounds were dinned into the residence, designed to make sleep impossible for those within. Beginning March 29, two attorneys retained by relatives of Koresh and his lieutenant, Steve Schneider, were permitted to meet with them at the door of Mt. Carmel. Later they were allowed to consult with them indoors for several hours and to talk with them by phone without federal monitoring. During the first week of April the Branch Davidians were observing Passover, and negotiations were at a standstill. Starting on April 10, the FBI began laying large coils of razor-sharp concertina wire around the buildings to close the perimeter more securely (two men- "adult males" in federalese-had "snuck"-also federalese-into the buildings during the preceding period). They also fired "flash-bangs" (distraction grenades) at anyone who came out of the buildings for any purpose other than surrender.
Throughout the siege, the FBI approached the buildings only in armored vehicles-nine Bradley fighting vehicles, five combat engineering vehicles, one tank retrieval vehicle, and two Abrams tanks. During the fifty-one days of the siege, the Branch Davidians made forty-one requests of the FBI (for milk, typewriter ribbon, batteries, etc.), of which twenty-five were granted. With the milk cartons and other deliveries, the FBI slipped in electronic listening devices that gave them a partial understanding of what was going on inside. Toward the end of March the FBI began to consider the possibility of "inserting tear gas" into the buildings to force the residents to come out if other methods did not succeed. This expedient was eventually presented to the Attorney General, Janet Reno, and after consideration and consultation with the President, she approved it.
Ironically, just as the federal government was abandoning hope of a peaceful solution, there opened up the possibility of such an outcome. Early in the siege, Koresh had promised to come out if his message could be aired on national media; he prepared an hour-long audiotape that was broadcast locally, but not (he claimed) nationally. Two scholars of apocalyptic religion, Phil Arnold, of the Reunion Institute in Houston, and James Tabor, of the University of North Carolina, studied the broadcast and believed Koresh could be reasoned with if approached within his own frame of reference. After several futile efforts to persuade the FBI to let them try, they arranged with Ron Engleman, host of a radio talk show on KGBS (to which the Davidians regularly listened), for a half-hour's uninterrupted plea to David Koresh to rethink his understanding of the Fifth Seal (Revelation 6:9-11), which he believed to be unfolding at Mt. Carmel.
In the text, the souls of the faithful who have been slain for the word of God cry out to God, "How long before thou wilt . . . avenge our blood?" They are given white robes and told to "rest for a little season" until the number of their fellow servants who have been killed as they have been should be complete. The Sixth Seal that follows brings about the destruction of humankind. Arnold and Tabor in their radio colloquy sought to persuade Koresh that the term translated "a little season" meant in the original Greek (chronos) a period of as much as a year, leaving time for Koresh to complete his work before the Sixth Seal supervened. Koresh apparently accepted this idea, for on the day after Passover he sent out a letter via his lawyer saying that God had permitted him to explain "in structured form the decoded messages of the Seven Seals," and that upon completion of that task he would surrender.
The FBI saw this as just another in a long series of delaying tactics and went ahead with their plans to use tear gas. They did send in writing materials, however, on Sunday, April 18, and Koresh worked most of that night dictating to Ruth Riddle, who typed his words on a battery-powered word processor. He completed a five-page introduction to the Seven Seals, a poem of thirteen quatrains, and a seven-page exposition of the First Seal. At that rate, Arnold and Tabor have estimated, he should have completed the task in two or three weeks.
But he did not get the chance. The next morning the FBI gas assault began, and David Koresh must have concluded that his original scenario of imminent destruction was correct. Ruth Riddle barely escaped the ensuing fire with her life-and a small computer disk in her pocket. Late in 1993 her attorney was able to recover that disk from the FBI and turned it over to Arnold and Tabor, who with her help carefully transcribed it. It is a systematic explanation of Koresh's apocalyptic vision, ending with an intimation of a readiness to "come out" of seclusion adapted from words of the prophet Joel (2:16).
"Let the bridegroom go forth from his chamber, and the bride out of her closet." Yes, the bride is definitely to be revealed for we know that Christ is in the Heavenly Sanctuary anticipating His Marriage of which God has spoken. Should we not eagerly ourselves be ready to accept this truth and come out of our closet and be revealed to the world as those who love Christ in truth and righteousness?Arnold and Tabor point out that this writing-tragically truncated as it is-made clear that Koresh did not consider himself to be Jesus Christ or God as some have supposed. The term "Christ" is the Greek rendering of the Hebrew word for "messiah," meaning "anointed," as high priests and kings were anointed for their office. Later the prophets spoke of a specific and ideal messiah-one who would be a "Branch of David"-who would bring peace to the nations. Koresh believed that Jesus of Nazareth was that Christ, but that another "Christ" would appear at the end of time and open the Seven Seals, and that he was that latter Christ.
On April 19, 1994, the FBI began at 6:00 a.m. to spray a riot-control agent, CS, into the buildings of Mt. Carmel by means of two heavy Combat Engineering Vehicles (CEVs) equipped with long booms ending in spray nozzles. In order to inject this substance into the living quarters, the tanks broke into the frame walls at several points. The original plan was to continue slow spraying over forty-eight hours unless the residents "compromised" the process by resisting. As the tanks approached, the FBI insisted, "This is not an assault! No one will enter the Compound. Do not fire weapons!" Nevertheless, the residents did not meekly submit to this treatment, but fired back at the tanks (without effect on their heavy armor). This temerity caused the FBI to shift to Plan B, which involved the immediate spray of all the gas as fast as possible. No one came out, however.
Around noon, fire broke out at several points and-in the brisk thirty- mile-an-hour wind-quickly enveloped the frame "fortress." At 12:13 the FBI called the fire department. Fire trucks arrived at 12:34 p.m., but were held at the FBI checkpoint "because of the danger of gunfire." By the time they reached the fire at 12:41 p.m., there was little to be salvaged. Nine residents left the buildings during the fire, some suffering serious burns. They were arrested, manacled, and held for trial.
After the ruins had cooled, the forces of law enforcement combed the site for evidence and subsequently bulldozed the grounds "for health reasons." Remains of some seventy-five bodies were recovered and examined by the Tarrant County Medical Examiner's Office in Fort Worth. The magnitude of the disaster and the obscurity of its causes and its handling by the federal agencies led to demands for investigation and explanation. Congressional hearings were held, and President Clinton took the unusual step of directing the two Cabinet officers responsible to investigate and report what had happened.
For seven weeks the public had been absorbed by daily accounts of what was going on in Texas. Several hundred reporters from across the country and around the world gathered in Waco and were kept by law enforcement officers at a "safe" distance of about two miles from the scene of action. The main source of information was a daily briefing by official spokesmen of the federal agencies at the convention center near the Hilton Hotel in town. Most of the mainstream media contented themselves with uncritically relaying these government handouts to their readers and viewers. A few representatives of the "alternate" press tried to do a little independent investigating, but their voices were not widely heard, and several were excluded from the daily FBI briefings after asking impertinent questions about the official version of events.
The definition-of-the-situation for government agencies and the media alike was strongly colored by negative stereotypes about "cults" that had become endemic over the past decades because of news features and talk shows focusing on Jonestown, the followers of Rev. Moon, "Krishnas," and Scientologists. An organized and articulate corps of cult critics had grown up during this period, purporting to know what "cults" are all about (though actually knowing very little about the history or dynamics of religion). At Waco the anti-cult movement was much in evidence, uttering sharp cries about "mind control" and "child abuse" to all who would listen (who were many because of the lack of other sources of information). One of the most active, a deprogrammer named Rick Ross, claimed to have been advising the government about the Branch Davidians because he had deprogrammed one of them. He had put the investigating ATF agent in contact with ex-members in 1992, who contributed some of the questionable information on which the original affidavit was based.
The gist of this definition-of-the-situation was that the cult leader (Koresh) was a manipulator who had tricked or entranced a bunch of vulnerable people into mental captivity where they fed his lust for money, women, and power, and that these victims should be rescued from their captivity-which fit well with the FBI belief that they faced a typical hostage-rescue situation in which a clever con-man was holding innocent victims as shields. These characterizations matched poorly the reality of a band of adults voluntarily and devotedly following a visionary they thought touched by the finger of God.
But the Treasury report insisted that, though mistakes had been made, the ATF was correct in its effort to apprehend violaters of federal firearms laws and in its choice of a "dynamic entry" as the best way to do so. Three other options were considered, the report stated. The first was to avoid the use of violence and serve the warrants in a simple visit to Mt. Carmel. This was rejected, the report said, because of Koresh's (supposed) history of hatred for law enforcement and propensity to violence. Another possibility was to seize Koresh while he was away from Mt. Carmel. The ATF planners were under the (mistaken) impression that he seldom left the center, and the report faulted them for not obtaining fuller intelligence, but concluded that even with better data that plan might not have worked. The third option was a siege of Mt. Carmel, but this was rejected because of the possibility that evidence of illegal weapons could be destroyed and that the siege might end in mass suicide.
The Treasury report explained that the ATF was aware that Mt. Carmel was a religious community, but that that fact neither attracted federal interest nor immunized the group from enforcement of the law. This commendable stance of neutrality was belied a few pages later by the explanation that Koresh and his followers were deemed especially dangerous because of their religious beliefs.
The extraordinary discipline that Koresh imposed on his followers . . . made him far more threatening than a lone individual who had a liking for illegal weapons. The Compound became a rural fortress, often patrolled by armed guards, in which Koresh's word-or the word that [he] purported to extrapolate from the Scripture-was the only law. . . . Were [he] to decide to turn his weapons on society, he would have devotees to follow him, and they would be equipped with weapons that could inflict serious damage.The tone of the Treasury report, despite its criticism of tactical errors, was conveyed by its first page, a black-bordered dedicatory panel bearing the words "In Memory of" and listing the names of the four agents killed in the assault. (There was no black-bordered page bearing the names of the six members of the religious group killed on the same occasion.) The report repeatedly asserted that David Koresh and his followers "ambushed" the federal agents. "On February 28, [they] knew that ATF agents were coming and decided to kill them." A more accurate statement, however, might be that they decided to fend them off.
The main burden of the Treasury report was to justify the raid that started it all. The reason for the raid was to serve arrest and search warrants directed against illegal weaponry. The Fourth Amendment of the Constitution states that searches and seizures shall be based upon warrants, and that warrants shall not issue except upon "probable cause" (to believe that a crime has been, or is about to be, committed). It was important to nail down the validity of those warrants (which were sealed by court order throughout the siege and unsealed only in June 1993, so they were unavailable for public scrutiny until well after the event). The Treasury report included analyses from two firearms experts, both employed by Tioga Engineering Co., who reviewed the evidence available to the ATF and submitted by it to obtain the warrants. After checking the UPS inventories of weapons and parts delivered to Mt. Carmel, both engineers came to the conclusion that there were no illegal weapons on the list.
But they labored manfully onward to reach the desired and necessary conclusion by way of a concatenation of conjectures: if the Branch Davidians had the necessary milling machine and metal lathe, and if they had "appropriate tooling" for them, and if there was someone able and willing to use them, and if they had a sample "drop-in automatic sear" to clone, then it was "highly probable" that they could convert the legal semi-automatic weapons they were known to have had into illegal automatic weapons, and it was "possible" that they had done so. Therefore, concluded the experts, the warrants were valid and sufficient.
This unsurprising conclusion has since been highly controverted. Suffice it here to note the comment of a retired FBI agent:
There was not even one fact in the probable cause affidavit . . . stating that a violation had or was taking place at Mt. Carmel. The rationale by the ATF was that if two or more legitimate objects exist in a location, then at some unknown time they might be used to produce an illegal object, and that would be reason to obtain a search warrant. For example, probably half the homes in America contain a long- barreled gun and hacksaw. The hacksaw, at some time or other, might be used to saw off enough of the barrel to make it illegal. Based on this rationale, the ATF could search half the homes in the United States.Others have pointed out that there was no fact in the affidavit less than eight months old, meaning the information was quite stale for purposes of a warrant. Still others contend that the ATF agent who wrote the affidavit to obtain the warrant was ignorant both of the National Firearms Act and of the items he contended were illegal. But there also are those who, while unsympathetic to the ATF, insist that under current standards of case law the information was neither stale nor insufficient (which, if true, merely indicates how the courts have watered down the standards of the Fourth Amendment).
The Treasury Department's report was a model of soul-searching compared to the Justice Department's, which entertained little or no grounds for self-doubt and indeed portrayed the FBI's actions in the resolutely laudatory tones of a regimental history. It showcased the magnitude of the event, stating that "there were a minimum of 719 law enforcement personnel committed on-site at Waco on any given day during the stand- off" and that "never before have so many heavily armed and totally committed individuals barricaded themselves in a fortified compound in direct challenge to lawful federal warrants and to duly authorized law enforcement officials."
A chronology of the siege, covering eighty-six pages, suggested the perplexity and frustration that built up in the besiegers as one negotiating ploy after another failed to work. A point of pride to the FBI was the assertion that "after February 28, no weapons of any type were fired by any law enforcement officer, whether state, local, or federal." Apparently not counted as "weapons of any type" were dozens of "flash-bangs" (termed "distraction devices" in federalese-grenades that cause a loud report and bright burst of light) or 300-400 "ferret rounds"-tear-gas cannisters-"deployed" through windows of the residence. The report did not add that the Branch Davidians also did not fire any weapons during the siege (until their home was invaded on April 19), nor did they even shoot out the annoying floodlights or loudspeakers.
The main burdens of the report were to justify the use of gas and to place the onus for the final conflagration on the victims. The first was accomplished by reciting the steps leading up to the Attorney General's approval of the plan to use gas and introducing a statement by the President giving four reasons for that action:
First, there was a limit to the length of time the federal authorities could maintain the quality and intensity of the coverage of the scene. Resources were limited, and the experts might be needed in other parts of the country. Second, the people who had reviewed that situation had concluded that no progress had been made recently and that, in their opinion, no progress would be made using normal means of getting Koresh and other cult members to come out. Third, it was felt that the danger of their doing something to themselves or to others was likely to increase with the passage of time. Fourth, there were reasons to believe that the children who were still at the compound were being abused and were being forced to live in unsanitary and unsafe conditions.The second burden was discharged by assertions that "the Davidians started fires at three separate locations within the compound" and by an appended report of an "independent" arson team that concluded "the FBI's actions did not cause the fire" and "the Davidians could have escaped the fire if they had wanted." (These contentions have been vigorously contested.) The report was bolstered with a supportive sixty-three-page commentary by an attorney in private practice, Edward S. G. Dennis, Jr., who had been Assistant Attorney General (Criminal Division) under the Bush Administration. He concluded: "Under the circumstances, the FBI exhibited extraordinary restraint and handled this crisis with great professionalism."
The only scholar of religion to be included was Professor Nancy T. Ammerman, Sociology of Religion, Candler School of Theology, Emory University. She was concerned about the lack of understanding by the federal agencies of what they were dealing with at Waco and their failure to consult experts who could help them. Though she is not herself a specialist in new religious movements, she recommended ten American and two British scholars who are. She noted that religious experimentation and innovation have been common in American life and are protected by the free exercise clause of the First Amendment. She also suggested several respects in which such movements are very different from what the federal agencies (and the media) were expecting:
The Branch Davidians had an apocalyptic worldview in which they expected attack from the outside world. The reason for arming themselves was to protect themselves from an expected attack. They had been training themselves for a long time to defend . . . against such an effort.When the decision was made to use gas to drive the Davidians out of their residence, it was assumed that parents would leave the premises in order to protect their children from the noxious effects of the gas. But if people are willing to die for their beliefs, "the death of their children may not have the same meaning as it would for other people. . . . To some individuals, death has a very different meaning. It can be seen in terms of birth into a new and better life." The gas attack is more likely to be interpreted as part of an escalation of wrongful force on the part of the Babylonians. "In this context . . . the concept of suicide . . . may well be quite different from that of the ordinary individual. Not to be blasphemous, but it is highly doubtful that Christ considered himself a suicide."
Dr. Cancro also redefined the effect on the Davidians of the gas attack.
Law enforcement might argue that a gas attack is not an assault because the gas is nonlethal. To the people inside the compound, armored vehicles firing gas grenades into their home could only be perceived as an assault. It certainly would be reasonable for the occupants . . . to assume at this point that whatever follows the gas attack will be even worse and that they are now faced with the choice of being killed by enemy weapons or by their own hand and by a method of their own choosing.Professor Lawrence E. Sullivan, Director of the Center for the Study of World Religions at Harvard, castigated the federal agencies for their almost total disregard of the religious dimension at Waco, resulting in a complete tone-deafness to the things most important to the people they were trying to reach. For instance, when David Koresh sent out several letters early in the siege (which are photographically reproduced in extenso as an appendix to the Justice Department report), it was not discerned that he quoted biblical passages that emphasized the power of the hand and the side of the messiah, suggesting that his wounds in hand and side were seen by him not as evidences of weakness but of strength, and that he was therefore unlikely to surrender to escalating force by the federal agencies.
The FBI's view of the situation as a "hostage rescue" came in part from its focus on the individual psychology of the leader rather than the collective dynamics of the group as a whole, which can be much more powerful in their effects than individual motivations. Likewise, the FBI was unaware of the way in which "religion galvanizes groups into communities of coordinated actions, whether those actions be liturgical spectacles or mass movements." He suggested that not only the FBI but public policy planners in general were increasingly proceeding in immense ignorance of religious elements in the views and motivations of the populace they supposedly serve.
The fourth behavioral science commentator, Dr. Alan Stone, Professor of Psychiatry and of Law at Harvard, sent his commentary in on November 8, 1993, a month after the Justice Department report was issued, because he was not satisfied with the information available at the deadline date. His paper was issued separately (without the blue cover that had bound the five earlier issuances) and the Justice Department soon ran out of copies, but it was a significant contribution. Dr. Stone pointed to an extensive literature in criminology and psychiatry on the "gamble with death" psychology of persons disconnected from the rest of society. "Inner-city youths often provoke a shoot-out, 'gambling' with death (suicide) by provoking police into killing them. . . . Koresh and his followers were in a desperate kill-or-be-killed mode."
The FBI's critical assumption was that David Koresh and the Branch Davidians, like ordinary persons, would respond to pressure in the form of a closing circle of armed vehicles and conclude that survival was in their self- interest, and surrender. This ill-fated assumption runs contrary to all of the relevant behavioral science and psychiatric literature and the understanding it offered.Dr. Stone also criticized the concept of an "ambush." Given the heavy firepower of the Davidians, it seemed to him that if they had wanted to they could have slain every ATF agent in sight. "The ATF agents brought to the compound in cattle cars could have been cattle going to slaughter if the Branch Davidians had taken full advantage of their tactical superiority. They apparently did not maximize the kill of ATF agents. This . . . suggests that the Branch Davidians were not cold-blooded killers; rather, they were desperate religious fanatics expecting an apocalyptic ending, in which they were destined to die defending their sacred ground and destined to achieve salvation."
He was especially critical of the decision to saturate the residence with CS gas, considering that gas masks are not made for infants and toddlers and that the chemical can cause choking, vomiting, temporary blindness, skin burns, disorientation, chemical pneumonia, and cyanosis. He cited medical literature to this effect and commented that the information given the Attorney General about the effects of CS gas was very understated in this respect. He concluded with an understatement of his own: "I find it hard to accept a deliberate plan to insert CS gas for forty-eight hours in a building with so many children. It certainly makes it difficult to believe that the health and safety of the children was our primary concern."
The proper postscript to the imposing postmortem production of 1,300 pages was provided by one of the government attorneys in the course of the criminal trial. When defense attorneys noted discrepancies between the prosecutor's case and the federal reports, an assistant U.S. attorney explained "that the Treasury review is a book written for release to the public," implying that it was an effort at public relations and not to be considered binding on the government.
The evidence adduced did not settle who fired the first shot on February 28, 1993, or who started the fire on April 19, but some new light was shed on claims set forth in the government's version of events. And some light was lacking that should have been shed because of evidence strangely missing. One defense witness was Jack Zimmerman, an attorney who had entered the residence at Mt. Carmel with the FBI's consent to represent Steve Schneider, Koresh's chief lieutenant. Zimmerman, a former colonel of Marines, was given a tour of the premises and shown indications of the results of incoming gunfire. He testified that he had seen a "spray pattern" of bullet holes entering the right half of the double front door from outside and no bullet holes going outward. That metal door had somehow disappeared, and Texas Ranger Fred Cummings, who reported on the search for evidence by the Rangers after the fire, could not explain what had become of it. It was steel and could not have melted in the fire any more than other steel doors in the place did. He admitted that the ATF and FBI had had access to the area following the fire and before the Rangers took over on April 20.
Zimmerman also testified to having seen eight or nine bullet holes in the roof that "caused the building material to be pooched in or down" showing that "the rounds came from above the ceiling down into the room." Of course, this evidence, like much else, was consumed in the fire. When the Texas Rangers did take charge of the systematic search of the ruins after the fire, said Captain David Byrnes, who was in command of the Rangers, all agents of the ATF were by mutual consent excluded from the site (after they finished checking for unexpended explosives) to forestall charges that the ATF had had a chance to "salt the scene." The FBI was not thus excluded, however, and continued to assist the Rangers in their search.
The first ATF agent to testify was Roland Balesteros, who was assigned to lead the way through the front door. He said he had come out of the cattle trailer in full SWAT gear and raced toward the front door carrying his shotgun across his chest. When he was still on the way, David Koresh, unarmed, opened the door and asked, "What's going on?" The agent claimed that he called out, "Police! Lay down! Search Warrant!" (though he admitted he had had not mentioned those cries in earlier interviews with the Texas Rangers). He said that Koresh "smirked" at him and closed the door. A moment later, he testified, bullets came out through the door; one hit his thumb, and he tumbled into the dog pen beside the porch and lay beneath a window during the remainder of the fight. He said he knew the bullets were coming outward because of holes in the door and splinters of wood pointing outward. (Cross-examination brought out that the door was steel, and there was no wood in it to splinter.)
When asked who was assigned to announce their identity and the purpose of the raid, Balesteros replied that no one was so assigned. "We basically all announced." He admitted that in their rehearsals during the previous week they had not practiced what the ATF manual prescribed: "Officers are required to wait a reasonable period of time to permit the occupants to respond before forcing entry." He was not assigned to knock and wait but to gain entry, and he was followed by other agents with a battering ram to break the door open if necessary. He said they were expecting resistance, but not gunfire. Fire from within thus upset their plans.
Later AFT agent Kenneth King testified that he had been on one of two teams that were assigned to put ladders up and gain entry to the second- floor "gun room" at the same time as the front-door entry. On cross- examination he admitted that they had not announced their intention when they got on the roof, but had proceeded to try to break in through the windows. "Even if the people at the front door had been welcomed in by David Koresh, none of that would have made any difference . . . the window would have been broken and the flash-bangs would have been thrown and you would have entered the window?" he was asked. "Yes, sir, that was our job." Here again, it was the gunfire that stopped them. It became clear that the AFT had not planned a peaceful entry but expected to cow the residents with an overwhelming show of force. When that did not work, the agents had no Plan B.
Furthermore, it seemed likely that some of the damage done to the federal force was done by "friendly fire." Some bullet holes in the ATF vehicles may have come from directions other than the Mt. Carmel building. And ATF agent Constantino admitted that in the "gun room" he and two others entered on the second floor he may have hit agent Jordan in the arm. An FBI firearms specialist attested that the bullet recovered from agent Jordan was a 9mm. hydroshock bullet that only the ATF was using on February 28, and it may well have come from agent Constantino's gun, but that gun had been damaged in the fire and would not mark test bullets consistently. Some of the shots may also have hit agent King of the other team out on the roof preparing to enter the adjacent room.
The government called numerous gun dealers from across the country as witnesses to the many orders for guns they had filled for Mt. Carmel. None of the purchases was illegal, and Mike DeGuerin, representing Paul Fatta (who had been absent from Mt. Carmel throughout the entire fifty- one days), demonstrated that the Davidians were buying firearms wholesale as a business enterprise for resale at gun shows. The prosecution introduced dozens of exhibits of plastic-wrapped firearms described as weapons found in the ashes of Mt. Carmel that had been converted from semi-automatic (legal) to full automatic (illegal), and some of them were linked by serial numbers to sales made to Mt. Carmel by the testifying gun dealers. A few bullets were recovered from the dead ATF agents, and these were identified as emanating from weapons of the general type being fired from within Mt. Carmel, but no one-to-one identifications were made. None of the defendants was linked directly to any of the firearms or bullets that killed the four ATF agents.
Photographs were introduced by the prosecution of an engine lathe, a hydraulic press, and a milling machine on the premises that could have been used to modify legal firearms to make them illegal, as well as silencers or "sound suppressors" (which are illegal) in various stages of manufacture. Some twenty firearms in evidence were described as having been converted from semi-automatic to full automatic. Cross- examination brought out that it was impossible to determine where or when such conversion occurred or whether the automatic weapons in evidence had actually been fired. Two heavy .50 caliber guns were introduced, as well as .50 ammunition. Cross-examination made clear that there was nothing illegal about owning such weapons or ammunition for them and no evidence that they had been fired.
The Tarrant County Medical Examiner, Dr. Nizam Peerwani, offered lengthy and depressing testimony about the bodies found and autopsies conducted. Many adult decedents had been identified by dental records. Some adults, including David Koresh and Steve Schneider, had died of close-range gunshot wounds to the head. Several women's bodies were found in the hallway leading to the trapdoor access to the underground school bus at the north end of the building that had been constructed as a tornado shelter, but they could not reach it because the trapdoor had been buried by debris from the collapsing of the wall pushed in by a tank prior to the fire.
In the center of the buildings under the four-story tower was a cinder- block room that had been used for cold storage of food. It was the strongest, safest place in the complex, furthest from the gas and the tanks. To it had fled many of the women and all of the children. It had one door, which faced toward the front of the building. Some thirty or more bodies were recovered from that small room. Many were covered with blankets, sleeping bags, extra clothing, especially the small children, as their mothers apparently tried to protect them from the gas and the fire. And at some point this cinder-block room collapsed, the tower fell upon it, and those within died of suffocation, blunt trauma from the impact of debris, close-range gunshot wounds, or the effects of fire.
Agent Craig, who drove the Combat Engineering Vehicle that began the process of spraying the CS gas on April 19, testified that two CEVs had been "jerry-rigged" at Fort Hood with a boom that carried several cylinders of CS gas. When the boom penetrated the wall, a cylinder (which was about two feet long and eight inches in diameter) would empty in three seconds with a cone-shaped spray of mist reaching forty-five feet ahead. The mist was propelled by carbon dioxide under pressure and was composed of CS agent-a white crystalline powder dissolved in a liquid solution. The solution came ready-mixed in a canister that was placed in the bottle, and then pressurized. Sixteen of these large canisters were sprayed into the building by the first CEV and a few by the second (which "threw a track" and was disabled before it could do more; its crew started up a third CEV, which could not inject gas).
Smaller canisters of CS were fired into the windows from grenade launchers in Bradley tracked vehicles, one on each side of the buildings. One agent testified that he fired seventy to seventy-five such canisters and supposed that the other three agents similarly occupied had done the same, making a total of some three hundred fired during the morning. Most such projectiles-called "ferret rounds"-went in through the windows. Some were fired at the frame walls in the hope they would penetrate, but most of those just bounced off.
Agent Craig testified that after he had "inserted" the first bottle of CS gas, he heard over his radio that the residents had begun to fire back. (He was not aware that his vehicle had been hit by gunfire because of its heavy armor, the loud noise of the motor, and the radio earphones he was wearing). He switched to Plan B, injecting as much gas as fast as possible. He emptied his other three bottles and then returned to get four more. Each trip took some forty-five minutes, and he made three more trips.
On the fourth trip, he received new instructions. He was told to push into the front of the building, to open it up so the observers could see inside and to press on in toward the base of the tower. The other CEV was directed to do the same from the back, resulting in the collapse of the gymnasium. Agent Craig inched into the front door with his eleven- foot-wide bulldozer blade, pushing in the doors, door frame, and a window on each side. He went in about fifteen feet and released a bottle of gas. He did not go further because the turret had caught on the floor of the second story, and he was afraid of knocking the building down around his vehicle. So he withdrew and moved down to the corner of the building, pushed in the wall there, and released his fourth bottle. Although he did not call this "Plan C," the directive to "make a deep penetration" into the structure and to press toward the center (where the women and children had taken refuge) was a distinct departure from the plans that had been discussed in the meetings prior to April 19. It represented a third strategy, apparently decided upon about 10:30 a.m. and communicated by oral orders. Who gave these orders was not determined, but they probably brought on the final act of the tragedy.
At around noon the buildings at Mt. Carmel caught fire and in a high wind quickly burned to the ground. The government devoted much effort at trial to making the case that the residents of Mt. Carmel had started the fire. The defense countered with the contention that the tanks had knocked over Coleman lanterns that were used for illumination because the FBI had cut off the electricity, and that the fuel in them had spilled onto bales of hay stacked around the walls to stop incoming bullets, setting them afire. The prosecution introduced tapes and transcripts of recordings made from electronic listening devices. The quality of sound was poor, even after having been enhanced by a private sound-recording specialist. There seemed to be voices saying that "The fuel has to go all around to get started," and "Got to put enough fuel in there." Then a voice says, "So, we only light 'em as they come in," or (a later version by the same specialist), "So, we only light 'em as soon as they tell me." (The prosecution distributed copies of the tape transcripts to the press to show that the Branch Davidians set the fire.) The defense contended that-at worst-preparations may have been made to ignite lantern fuel as a countermeasure against invading tanks. (Graeme Craddock, one of the defendants, had told a Texas Ranger that he was directed by Wayne Martin to pour lantern fuel on any tank that came in through the wall and to light it-a last-ditch tactic that might result in the defenders' death as well as the attackers'.)
There were claims that the FBI notified the Burn Unit at Parkland Memorial Hospital early on the morning of the nineteenth to be prepared to receive burn victims and asked for directions for landing helicopters at the hospital. FBI agents wore fireproof suits that day. A helicopter with a Forward-Looking Infra-Red (FLIR) camera was circling over the complex ready to photograph any outbreak of fire. All of this suggests that the FBI was expecting fire on the nineteenth, but not necessarily that the FBI intended to cause the fire. The defense attorneys seem to have concluded that the FBI had intelligence from some source that there was a likelihood of fire, whether from the two interlopers, Louis Alaniz and Jesse Amen or Alman, who "snuck" in during the siege and left before it ended (and were viewed by the attorneys as FBI "plants"), or from the bugs in the milk cartons. It is possible that the anti-tank plan Craddock later described was being talked about prior to the nineteenth, and the FBI got wind of it. But the FBI did not arrange for fire- fighting equipment to be at hand, nor did it deviate from its showdown plans, but in fact went on to Plan C when A and B didn't work.
The government called a member of the "independent" arson team named William Cass, who stated that films taken at the time of the fire, including the FLIR photos, showed the fire starting almost simultaneously in three different locations at Mt. Carmel at 12:11 p.m. Because of the strong wind and the holes punched by the CEVs, the fire engulfed the entire structure in about five minutes. Defense counsel displayed an earlier portion of the FLIR video showing a flash or flare of heat in the gymnasium area at 12:08. Cass said he had never seen that portion of the video. He was asked if he had seen the observers' logs that contained two reports of fire starting in the gymnasium area at 12:11, and he said those logs had been handled by Paul Gray, the chief of the arson investigating team, and he himself had never seen them.
Paul Gray was identified as a person who often testified regarding arson incidents for the AFT and whose wife worked in the Houston office of the AFT. More significantly, Paul Gray devoted a page of his report to the flammability potential of tear gas and concluded that neither the ferret rounds of CN tear gas nor the pressurized CN gas delivered by the CEVs would have augmented the fire, and indeed would have had a retardant effect.
This was a curious conclusion, since all other sources and all testimony at the trial referred to the gas in question as CS, a very different substance. As Jack Zimmerman stated on the witness stand, "It's not tear gas." (Tear gas, CN, is Alphachloroacetenone; CS is Orthochlorobenzyladine Malononitrile.) An Army Field Manual states: "Exposure to CS may make [victims] incapable of evacuating the area. . . . The dispersers should not be used to introduce a riot control agent directly into a closed structure except in extreme circumstances. . . . Do not use around hospitals or other places where innocent persons may be affected. . . . Do not use where fires may start or asphyxiation may occur." Yet it was solely into "closed structures" that the FBI directed the CS gas at Mt. Carmel. One of the manufacturers of CS, the Aldrich Chemical Company of Milwaukee, warns purchasers about its use: "Emits toxic fumes under fire conditions: . . . carbon monoxide . . . hydrogen cyanide . . . hydrogen chloride gas." The United States is a party to the Chemical Weapons Convention of 1993 that outlaws the use of CS in warfare.
Seven defendants were convicted on Count Three-that they "did knowingly use and carry a firearm during and in relation to a crime of violence." The judge had instructed the jury that to find a defendant guilty of that crime, it must be convinced that the government had proved each of the following elements beyond a reasonable doubt: (1) "That the Defendant . . . committed the crime alleged in Count One" (conspiring to murder federal agents), and (2) "That the Defendant . . . knowingly used or carried a firearm during and in relation to the Defendant's commission of the crime alleged in Count One." Since the jury had determined that the defendants were not guilty of Count One, the judge set aside the convictions on Count Three because, he said, the jury had decided there was no conspiracy.
Almost four months later, on June 16-17, 1994, the judge convened a hearing for sentencing. In the interim, presentencing reports had been prepared on each convicted defendant by the probation officers. But an odd thing had happened. The judge had reinstated the convictions on Count Three. Ruth Riddle, who had been acquitted of all other charges and was being deported to Canada for overstaying her visa, was retrieved from the immigration service and brought back for sentencing on that charge. The other six convicted on that charge faced additional years in prison.
Before sentencing, each of the nine convicted defendants had the opportunity to address an "allocution" to the court. One or two sought to retry the case, insisting among other things that the court did not have jurisdiction and that Janet Reno and Bill Clinton should be called as witnesses. Others maintained that they had not been responsible for the deaths of the ATF agents. None expressed contrition or remorse. Perhaps the best articulation of their view was that of Livingston Fagan, the Jamaican who was probably the only Branch Davidian with any formal theological training.
First of all, there is no doubt in our minds that we are innocent. . . . Never, at any point, have I sought to distance myself from David Koresh, his teachings, or from the actions of the residents of Mount Carmel. . . . The actions that we were forced to take were justified, given the circumstances that we were placed in by the actions of the agents of the government. . . .
We were pursuing realities pertaining to the spirit that this Court did not-does not recognize, as they did not recognize 2,000 years ago. Right from the beginning, the spiritual aspect of this was totally and absolutely rejected. But it was the very core of why we were at Mt. Carmel, and essentially, why we acted the way that we acted. . . .
We don't particularly care what you want to do. You're going to do it anyway. But we also serve a God who sits on a throne like you, a judge. He's got a book in his hand, sealed with seven seals. Men don't know his judgment. Consequently, Mount Carmel happened the way that it did. As you have judged, so, too, you will be judged. . . . And we do not accept this notion, this facade, that is being presented in this court, that somehow we have agreed with this judgment, with this sentencing, with anything that has taken place. We have not. . . . We are innocent. Absolutely, without any doubts whatsoever, we know we are innocent.(Livingston Fagan has declined to appeal his sentence, saying that the Lord will look after him.)
Each of the defense counsel argued in mitigation of sentence for their clients. Some lamented the reinstatement of the convictions on Count Three. Mike DeGuerin, counsel for Paul Fatta, disagreed with the contentions of the probation officer, Ms. Suniga, (which were largely adopted by the judge) that Mr. Fatta conspired to kill federal agents. "I think the jury rejected those ideas." Joseph Turner, on behalf of Ruth Riddle, said, "It's difficult for me . . . to get up and argue for a five-year sentence when I don't even think the five-year sentence should apply to Ruth Riddle." Several counsel pointed out that these defendants were not leaders of the Branch Davidians and that the living were being made to answer for the actions of those beyond the reach of vengeance.
The government, for its part, again insisted that religion had nothing to do with the case and then recited a litany of theological allegations to show the evil intent of the Branch Davidians.
[The] whole purpose of the message was, "We're going to have a confrontation with law enforcement officers." . . . Obviously, it was not a peaceful group if the message is, "You can't die for God if you can't kill for God."The government reiterated its call for maximum sentences for all defendants.The jury had found all defendants innocent of conspiracy to kill federal agents on the highest standard of proof-"beyond a reasonable doubt." Judge Smith stated that sentencing was based on a lesser standard-"preponderance of the evidence." So he felt free to assert a view of the case that the jury had rejected. He acknowledged that mistakes may have been made by the federal agencies, but they were not before the court in this case and were not deemed relevant to the issues that were before it.
The mistakes made by the Defendants now before this Court . . . were serious violations of federal criminal law, and resulted in the homicide of four young agents, the injury of numerous other agents, and the death of numerous residents of the building referred to during the trial as the "Compound."
These Defendants, and other adult Branch Davidians, engaged in a conspiracy to cause the deaths of federal agents. It was part of the beliefs of the Branch Davidians, expressed and taught by their leader, that they must bring about a violent conflict with federal agents, thereby forcing the agents to use deadly force against them, and by dying in the ensuing battle to be "translated" immediately to Heaven.
To this end, immense preparations were made. Huge sums were fraudulently charged to many credit cards in order to acquire an armory that would rival that of a National Guard unit's; ammunition in an unbelievable quantity was acquired; paramilitary uniforms and gear were purchased and created by Davidian seamstresses; firearms training and fortification of the Compound took place; the leader preached sermons to motivate his "army"; and finally preparations for the ambush of February 28 were completed.The judge entirely adopted the government's scenario despite the jury's findings to the contrary. His characterization of the Davidians' beliefs is typical of the government's projection of what they wanted to find. Koresh did not preach that his followers must "bring about" a violent conflict with federal agents, but that the government would proceed against them and they must be prepared to defend themselves. The arms, camouflage suits, and shooting vests were primarily the Davidians' commercial stock in trade, which they sold at gun shows for profit. Of course, when they found themselves embattled, those came in handy for guard duty, but they were not a sacred uniform for Holy War.
In sentencing, the judge turned the import of his jury instructions upside down. He had told the jury that they could not convict on Count Three (use of firearms) unless they had found a defendant guilty under Count One (conspiracy to murder). The jury made a mistake and convicted seven defendants on Count Three, but not on Count One. The judge then concluded that the jury had found a conspiracy after all, and "bootstrapped" Count One onto the lesser Count Three, holding that by convicting the defendants of the latter it had really convicted them of the former. Then he threw the book at them.
By reinstating convictions on the third count, the court brought on draconian sentencing requirements. To "use or carry" a firearm in the commission of a violent crime invokes a mandatory sentence in addition to the sentence imposed for the crime itself. "Use" and "carry," it turns out, do not mean in current law what they might mean in commom usage. The courts have held that a defendant can "use" a firearm without firing, brandishing, or displaying it. In one case a person was found guilty of this offense when the firearm was located "in a zippered bag in a second-floor closet." Beyond that, courts have applied a "fortress" theory when firearms are found "readily available in strategic locations" on the premises, and any defendants also on the premises at the time can be convicted of using and carrying. The judge found that Mt. Carmel was "not only a figurative but a literal fortress, manned by each of the Defendants convicted on this count."
If the firearm is legal, the additional sentence is five years. If it is an illegally "enhanced" weapon, the sentence is enhanced to thirty years. In response to defense attornies' contentions that the determination of whether the weapons involved were enhanced was a matter of fact to be determined by the jury, the court disagreed, announcing that "the type of weapon is not an element of the offense." What the jury was to determine was the mens rea or "guilty mind" of the defendant, not the means used to carry out the intended offense. On the basis of this reasoning, the judge felt free to conclude that all convicted of Count Three had access to enhanced weapons. But he expressed exasperation with the recently adopted mandatory sentencing guidelines (which, though overruled on appeal, he had found unconstitutional in an earlier case).
In an earlier era, before the surge of crime in this country caused Congress to attempt to micro-manage sentences handed down by federal courts, judges could actually weigh relative culpability and exercise discretion in formulating appropriate sentences. Such is not now the case. Based on this Court's review and analysis of all available authorities, it is determined that thirty-year sentences as to all Defendants convicted of Count Three is mandatory.That conclusion added thirty years to the ten years for voluntary manslaughter for five of the defendants:
Renos Avraam: 40 years, plus fine of $10,000;
Brad Branch: 40 years, plus fine of $2,000;
Jaime Castille: 40 years, plus fine of $2,000;
Livingston Fagan: 40 years, plus fine of $5,000;
Kevin Whitecliff: 40 years, plus fine of $2,000.Paul Fatta, found guilty of two firearms offenses, was sentenced to five years on one and ten years on the other, to run consecutively, plus a fine of $25,000 on each. The judge said he would recommend incarceration in Nevada near where Mr. Fatta's son, Kalani, was living, as requested by his attorney. Somewhat surprisingly, despite his protestations about lack of discretion, the judge "departed downward" from the sentencing guidelines with respect to two defendants convicted on Count Three. Because of Graeme Craddock's forthcoming responses to the Rangers and the Grand Jury, he was given a sentence of ten years for voluntary manslaughter and ten years for Count Three, a total of twenty years, plus a fine of $2,000. Ruth Riddle was also given a reduced sentence. The judge commented, "One would have to have been as closely involved with this tragedy from its first day until today, as I have been, and to have observed Ms. Riddle's demeanor and reactions throughout all of these proceedings, compared to all of the other Defendants, to fully understand all of the reasons I believe her culpability is so much less than most of theirs. Therefore . . . the Court will depart downward in this case and sentence Ms. Riddle to a period of thirty-excuse me-five years incarceration . . . [and] a $2,500 fine." The sentencing guidelines were apparently not so rigid that they could not be reduced by twenty-five years for a defendant whose "demeanor" seemed acceptable to the judge. (Katherine Schroeder, who testified for the government, received a sentence of three years.) Appeals are being taken to the Fifth Circuit Court of Appeals in New Orleans by most of the convicted defendants.
In an interview on June 24, 1994, she said about the sentences: "They certainly didn't reflect the jury's intention at all. We had thought that the weapons charges would be a slap on the wrist. . . . I wish everyone had just been acquitted on all charges. . . . The federal government was absolutely out of control there. We spoke in the jury room about the fact that the wrong people were on trial, that it should have been the ones that planned the raid and orchestrated it and insisted on carrying out this plan who should have been on trial."
The prosecutors and the judge repeatedly insisted that "the government is not on trial here." Sara Bain and other jurors evidently thought it should have been. That may yet occur. A number of civil suits have been brought against the federal agencies and officers involved. The leading lawsuit is probably that entered in August 1994 by former Attorney General Ramsey Clark on behalf of "the surviving members of the General Association of the Branch Davidian Seventh-day Adventists" for $900,000,000 for wrongful death, property damage, and other harms. If the case goes forward, a prolonged period of discovery will follow, which could produce some very interesting evidence, including the videotapes and still photos taken by the ATF photographers during the raid, the plans for the raid, the FBI's plans for use of CS gas, the logs of observers during the gassing and the fire, and other information that was not admitted at the criminal trial.
The Speaker of the House of Representatives, Newt Gingrich, stated on January 14, 1995 that Congress will hold hearings this year into the deaths at Waco. Whether such hearings will contribute to truth and justice may be a different question. They may just muddy the waters and impair the civil suits. But they should at least keep the pot boiling. There is much about the disaster at Mt. Carmel that has not yet come out, and the public still thinks about it in terms of "cult" stereotypes that ill prepare us for future encounters with those who believe they are touched by the finger of God.
The survivors are indigent, having lost everything in the fire. But Sheila Martin, the widow of Wayne Martin, told me that they are sustained by their reliance on the Bible, not on David Koresh. He taught them, she said, to rely on the Word, not on him. But one elderly lady said she was just waiting for him to come and take her home.