By Solomon L. Wisenberg  

Chief Federal Waco Prosecutor Bill Johnston left office last week with the same self-righteous attitude he has displayed for months, piously lecturing the Department of Justice about "the truth" and blaming others for ganging up on him. It is true that many of Johnston's erstwhile colleagues are disgusted with the former AUSA, but not because he is a modern day Diogenes. Instead, they are chagrined by his decision to drag San Antonio United States Attorney Bill Blagg into the Waco muck with unfair and unfounded criticisms. It bears repeating that Blagg was a criminal defense attorney when the ATF raided the Davidian compound. Johnston, on the other hand, as the top Waco federal law enforcement poo-bah, was at the command post on raid day, reportedly decked out in an ATF jacket and/or military-style fatigues. Prior to that time he helped draft the search warrant affidavit that served as the legal justification for the original federal raid.

Solomon L. Wisenberg  
Barnes & Thornburg, LLP  


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Johnston has been pointing the finger at everybody but himself since the dust settled on the initial ATF assault. He blamed his then-boss, United States Attorney Ron Ederer, for having the temerity to overrule him on several policy issues--which was Ederer's absolute right. (This, along with other matters, prompted the first of Johnston's two petulant letters to Attorney General Janet Reno.) He blamed the FBI for moving evidence during the 51-day siege of the compound. He sought prosecution of two ATF supervisors for perjurious statements to the Texas Rangers. He pressed for punishment of two Deputy U.S. Marshals for falsely accusing other Deputy Marshals of unauthorized leaks. He implied that fellow prosecutors Ray and LeRoy Jahn, in contrast to himself, feared the release of exculpatory materials during the investigation of the Branch Davidians. He accused Blagg and Blagg's predecessors of retaliating against the Waco Division.

I could go on. The point is not that Johnston is always wrong in his complaints. For example, his criticism of the decision not to prosecute the two ATF supervisors is well-taken. The point is that his incessant finger pointing at others, given his own substantial involvement in the Davidian matter, is unseemly.

Despite appearing to be so interested in "the truth," Johnston leaves with many questions about his own role unanswered. According to the Treasury Department's Report on the ATF Investigation, "Johnston informed ATF early in the investigation that he would not authorize a search warrant for the Branch Davidian Compound if it was to be executed through a siege-style operation. He...feared that a siege strategy would permit Koresh and his followers to destroy evidence and make prosecution more difficult." Is this allegation true? If so, how does Johnston justify interfering in ATF's tactical decision-making process? Further, how does this square with Johnston's Congressional testimony that "I did not tell [ATF] what kind of raid to do."

Another unanswered question concerns Johnston's failure to turn over information he obtained in a 1993 interview of an FBI Agent that "[s]moke from [the] Bunker came when these guys tried to shoot gas into the Bunker (Military Gas Round)." This is the same information that the FBI admitted to shortly before Johnston wrote his August 30, 1999 letter to Attorney General Reno. Newspaper reports have credited this admission to filmmaker Mike McNulty's investigations of the Waco evidence, investigations made possible by the intervention of Johnston. But Johnston was apparently told about the military gas rounds six years ago. Johnston says that he did not understand the significance of the information in 1993, but a paralegal's notes of the interview, as well as an accompanying outline, are more ambiguous on this point. To begin with, the notes distinguish between "military" and "ferret" rounds. It was already known at the time of the interview that ferret rounds had been fired into the complex. A military gas round represented something arguably new and different. More importantly, prosecutors considered the FBI Agent's information to be rebuttal evidence against film footage that showed smoke emanating from the bunker at the time of the final raid. They were worried about a defense based on this film. Hence, the paralegal's notes refer to the evidence as "Rebuttle" [sic] and the outline states that "smoke on film came from attempt to penetrate bunker w/1 military and 2 ferret rounds." (The evidence was in the nature of rebuttal since the rounds were actually fired hours before the final raid.) But if Johnston thought that the military gas round could account for the smoke in the bunker, why didn't he know that it was potentially incendiary in nature? And if the military gas round was incendiary in nature, why wasn't it turned over to the defense, or at least to the court for in camera review, pursuant to Brady v. Maryland? (Recall that the Government's conspiracy theory encompassed the fire allegedly set by the Davidians on the final day of the siege.)

Johnston's departure also has refocused attention on some other key unresolved Waco issues, and that is all for the good. Did the FBI return fire during the April 19 tank assault? Did the FBI have any role in starting the fire that engulfed the compound on April 19? Did the FBI know ahead of time that the Davidians would set fire to the compound in the event of an assault, yet still refuse to call off the assault or provide for a proper firefighting response? A "yes" to any of these questions would be devastating to the Bureau and could very well result in felony prosecutions against various federal officials.

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