Houston Chronicle
(Sunday Op Ed Section)
July 23, 2000
Page 1D

What the Waco jury never heard

By Stuart A. Wright

On July 14, an advisory jury of five persons answered
interrogatories assessing no blame on the federal government for
actions taken against the Branch Davidians sect in 1993. As might
be expected in a high-profile case where the defendant is the
U.S. government, the trial became heavily politicized. [Editor's
note: On Friday, an independent investigative commission headed
by former U.S. Sen. John Danforth issued a preliminary report
exonerating the government of responsiblity for the Branch
Davidian tragedy.]

Under the circumstances, the trial had little to do with such
lofty virtues as finding truth or championing justice. With their
already tarnished reputations on the line, the FBI, U.S. Bureau
of Alcohol, Tobacco and Firearms and Justice Department officials
marshaled an impressive array of resources to overwhelm questions
of liability.

Michael Bradford, the lead co-counsel for the government, boasted
after the verdict: "What this shows is that the responsibility
for the tragedy that happened at Waco is with David Koresh and
the Branch Davidians." He added that, "It's time to put this to
rest and move on."

But few scholars and observers think this latest verdict will put
the Waco incident to rest. There are too many disturbing
questions about the civil trial. Consider the first interrogatory
posed to the jury. The jurors were asked if the ATF used
excessive force in executing the warrants in either of the
following respects: 1) by firing at the Mount Carmel compound
without provocation; and 2) by using indiscriminate gunfire at
Mount Carmel on Feb. 28, 1993. Unanimously, the jury said no to
both parts. But the response was largely a product of severely
narrowed questions in the interrogatories. Key evidence was not

Judge Walter Smith granted "discretionary function" exemptions to
federal officials, essentially giving them immunity for making
bad decisions, and restricted evidence and arguments to the
51-day period between the failed ATF raid on Feb. 28 and the
final FBI assault on April 19.

The jury was not privy to the damning evidence that the ATF had
ample opportunity to serve the warrants to Koresh when he was
alone. Why was this important? Because by isolating Koresh, ATF
could have avoided imperiling the lives of 130 other residents,
including infants, women and elderly persons, at the Mount Carmel
compound in a dangerous, high-risk "dynamic entry."

U.S. Treasury Department officials and congressional
subcommittees reviewing the Waco debacle subsequently castigated
ATF commanders for shoddy planning and a bungled surveillance
operation that failed to apprehend Koresh away from the
residence. Indeed, ATF initially claimed that Koresh never left
the complex. But later investigations determined that this
information was obtained second-hand from an unreliable source.

What else did the jury not hear? Evidence that the ATF
manufactured claims about Davidian drug trafficking to the
military in order to obtain Close Quarters Combat training at Ft.
Hood and secure aerial surveillance and support from the Texas
National Guard in an effort to circumvent the Posse Comitatus
Act. The law prohibits the use of the military to enforce
domestic law, except in cases of drug trafficking. It did not
hear evidence that the ATF raid commanders were told to call off
the raid if they lost the element of surprise. An ATF undercover
agent, Robert Rodriguez, was inside the Mount Carmel compound the
morning of the raid and learned that the Davidians had been
forewarned. Agent Rodriguez left the complex and informed his
superiors that the element of surprise had been lost. The raid
commanders ignored orders and proceeded anyway. As well, the jury
did not hear evidence that the warrants were filled with numerous
errors of fact and false statements.

The truth is, the entire incident on Feb. 28 was avoidable. Had
ATF agents served the warrants while Koresh was jogging down
Double E Ranch Road or while he was in town on other business,
the raid would have been unnecessary.

Other law enforcement agencies, including members of the McLennan
County Sheriff's Department and the Texas Rangers, have made the
same observation. The Treasury Department report puzzled over
this question, noting that those in charge ignored less lethal
options, acting as if they were on a "pre-ordained road."

The final report on the Waco hearings by the joint House
Committee on Government Oversight and Reform and the Senate
Judiciary Committee was less kind: "The ATF's investigation of
the Branch Davidians was grossly incompetent. It lacked the
minimum professionalism expected of a major federal law
enforcement agency."

Was lethal force excessive? I believe it was. The operation was
carried out in the form of a high risk, paramilitary assault,
planned two months before surveillance, undercover and
infiltration efforts were even begun, organized under the false
pretenses of a drug nexus, targeting a residence housing infants,
women and elderly persons, while ignoring opportunities to arrest
the suspect alone. What jury would absolve the defendants if they
had been allowed to hear all the evidence?


 Wright is associate director of graduate studies and professor
of sociology at Lamar University in Beaumont. He is editor of
Armageddon in Waco and testified in the 1995 hearings on Waco.

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