Committee for Waco Justice Files Complaints
July 28, 1994
Contact: Carol Moore
Washington, D.C.-- Members of the Committee for Waco Justice have filed formal complaints regarding prosecutorial and judicial misconduct in the trial of 11 Branch Davidians. Considering the gross misconduct documented in our complaints, we are demanding a new, fair trial with honest prosecutors and an unprejudiced judge.
The Committee's complaint with the Office of Professional Responsibility, which investigates all such complaints, has been made against federal prosecutors Ray Jahn, LeRoy Jahn, William Johnston and John Finizy. The complaint alleges prosecutors repeatedly violated the Brady rule, which requires prosecutors to give defense attorneys adequate opportunity to inspect all evidence, and unduly and illegally influenced witnesses.
The Committee's complaint with the Clerk of the U.S. Court has been made against Judge Walter J. Smith of Waco, Texas who presided over the trial. The complaint alleges that Judge Smith exercised extreme judicial prejudice throughout the trial, improperly restricted public access to the whole jury wheel, refused to allow the defense to introduce evidence or witnesses that would prove the defendant's innocence, wrote prejudicial jury instructions, lied to defense attorneys and jurors, unfairly limited defendants' allocution, and unilaterally found the defendants guilty of crimes of which they had not been found guilty by the jury.
In numerous media interviews outspoken jury foreman Sarah Bain has asserted that she and other jurors are incensed that Judge Smith gave Davidians long sentences for conspiracy to murder federal agents and using and carrying machineguns during commission of that crime when jurors found them innocent of conspiracy and never were asked to rule on whether nine of eleven defendants possessed illegal weapons.
Nevertheless, Judge Smith agreed to prosecutors' demands and sentenced Davidians Renos Avraam, Brad Branch, Jaime Castillo, Livingston Fagan and Kevin Whitecliff to 40 year sentences, Graeme Craddock to 20 years, Paul Fatta to 15 years and Ruth Riddle to 5 years. Most Davidian defendants are appealing their sentences and demanding new trials.
For more information please contact the numbers above.
July 28, 1994
Clerk of the Court
U.S. District Court
P.O. Box 1908
Waco, TX 76703
Re: Complaint About Judicial Misconduct by Judge Walter J. Smith in the Trial of the Branch Davidians
The below listed members of the Committee for Waco Justice hereby file a formal complaint with the Clerk of the U.S. District Court regarding judicial misconduct by U.S. District Judge Walter J. Smith in the 1994 trial of eleven Branch Davidians.
There is little doubt Judge Smith's extremely prejudiced actions were motivated by vindictiveness towards the Davidians whom he blamed for the deaths of federal agents. However, Smith also may have been influenced by the fact that during the first half of the Davidian trial he was under investigation by the Justice Department for allegedly lying under oath. And the Justice Department desperately needed convictions to excuse BATF and FBI assaults which caused the deaths of four federal agents and over 81 Branch Davidians, mostly women and children.
Below are listed specific instances of misconduct which we have garnered from news reports and court documents and from interviews with court observers, Branch Davidian defendants and attorneys, and trial jurors. (Any inadvertent errors should not discredit any or all other allegations.) Our listing is not all inclusive. Other individuals doubtless will file their own complaints detailing even more instances of misconduct.
Judge Smith improperly and possibly illegally restricted public access to the whole jury wheel for the Western District of Texas before the Davidian trial. His only proper authority would be to restrict public access to the much smaller "panel" of jurors chosen for a specific trial. Smith later admitted he did so because he was concerned the Fully Informed Jury Association would exercise their legal right to send the several thousand members of the jury wheel information about a jury's right to vote their conscience.
Judge Smith refused to allow Livingston Fagan's case to be separated from that of the other defendants although two other defendants, Brad Branch and Kevin Whitecliff, could have testified that he was not the man identified by two federal agents as having fired at them.
Judge Smith unfairly limited defense attorneys' right to cross examine prosecution witnesses and upheld an unusually large number of prosecutors' objections, thereby restricting their ability to present an effective defense.
Judge Smith unfairly squelched an important line of defense -- that BATF agents were firing from helicopters -- by forbidding defense attorneys to question prosecution witnesses about it and by refusing to allow them to call witnesses who might have provided evidence of such shooting.
Judge Smith upheld prosecutors' objection to the defense calling David Koresh's gun dealer Henry McMahon to the stand. Smith only allowed jurors to hear a brief statement "stipulated" by prosecutors stating that BATF agents had refused Koresh's July, 1992 invitation to inspect his guns and that Koresh had supplied McMahon and BATF with records of weapons purchased. If McMahon had taken the stand defense attorneys surely would have elicited testimony from him about how BATF had taken him into "protective custody" and threatened him with prosecution during the 51 day siege to keep him from telling the FBI and the press about Koresh's legitimate business dealings and his full cooperation with BATF investigators.
Judge Smith instructed jurors that they could find defendants guilty of aiding and abetting voluntary manslaughter, which he defined as, "when a human being is killed unlawfully in the sudden heat of passion caused by adequate provocation." Of course, any reasonable person might act from passion when provoked by 76 men shooting weapons and throwing "flash-bang" grenades! Nevertheless, Smith did not instruct the jury on any grounds by which defendants might be found innocent, such as self-defense.
Judge Smith lied to both defense attorneys and jurors when he told them that he was setting aside the jury's guilty verdict for using or carrying a firearm in relation to conspiracy to murder federal agents. The jury had misunderstood Smith's instructions to find the Davidians guilty of this only if they also found them guilty of conspiracy to murder. (Jurors thought they merely were finding them guilty of using a weapon in relation to aiding and abetting manslaughter.) Because of Smith's promise, defense attorneys did not demand he send the decision back to the jurors, who would have had to vote them innocent of the charge. Smith also told jurors he was setting aside the verdicts. Two weeks later Smith reinstated the guilty verdicts, maintaining he had made no final decision to set them aside!
Judge Smith strictly limited in advance the amount of time each defendant would be allowed to speak in "allocution" before sentence was handed down, something which higher courts have forbidden. Also, Smith would not allow defendant Renos Avraam to call one of the BATF agents who was inside a helicopter which Davidians claimed fired at them, although defendants have the right to call such "exculpatory" witnesses before sentencing.
Judge Smith unilaterally found the Davidians guilty of using and carrying machine guns--even though this had not been part of the original charges and the jurors had never been asked to decide whether defendants were guilty of such charges. Smith imposed the maximum sentence--30 years instead of 5--on five defendants based on his personal determination of their guilt.
Judge Smith ruled at sentencing that Davidians "engaged in a conspiracy to cause the death of federal agents" even though the jury had found them innocent of this crime. Jury foreman Sarah Bain wrote Judge Smith and exclaimed: "We certainly had no knowledge that the penalty for a guilty verdict would be tied to a conspiracy charge as alleged in Count One!" Nevertheless, Smith used this as an excuse to impose the maximum sentence.
Judge Smith asserted Renos Avraam had "confessed" to shooting an agent and used this as an excuse for giving him a 30 year sentence. However, Smith misquoted a (very unreliable) witness who merely claimed Avraam had stated he was "a good shot."
Members of the Committee for Waco Justice request that you investigate this complaint and any and all other related complaints against Judge Walter J. Smith. The type of prejudiced, vindictive and dishonest misconduct in which he engaged only discredits the whole judicial system.
Alan Forschler, Ian Goddard, Michelle McKneally, Carol Moore, Dick Sanford, Tim Seims, Andrew Williams.
July 28, 1994
Mr. Michael E. Shaheen, Jr., Counsel
Office of Professional Responsibility
Department of Justice
10th and Constitution Avenues N.W.
Room 4304
Washington, D.C. 20530
Re: Complaint About Prosecutorial Misconduct in the Trial of the Branch Davidians
The below listed members of the Committee for Waco Justice hereby file a formal complaint with the Justice Department's Office of Professional Responsibility regarding prosecutorial misconduct. Our complaint concerns the actions of federal prosecutors Ray Jahn, LeRoy Jahn, William Johnston and John Finizy in the 1994 trial of eleven Branch Davidians. According to OPR's guidelines, any member of the public may file such a complaint and you will investigate and report back to them.
There is evidence these prosecutors repeatedly violated the Brady rule which requires prosecutors to give defense attorneys adequate opportunity to inspect all evidence, for and against the defendants, well before it is presented in court. This practice became so flagrant that defense attorney Dan Cogdell filed a motion for a mistrial. There is also evidence prosecutors unduly and illegally influenced witnesses so that they would produce incomplete or false evidence damaging to the Davidians.
Federal prosecutors may have been motivated to engage in misconduct by desires to vindicate their own, BATF, FBI and Justice Department decisions and actions which lead to the deaths of four federal agents and 81 or more Branch Davidians. Assistant U.S. Attorneys Bill Johnston and John Finizy were prime motivators of the original BATF investigation and February 28, 1993 raid. Ray Jahn and his wife and assistant LeRoy were special counsels to former FBI Director William Sessions who promoted the fatal April 19, 1993 gas and tank assaults on the Davidians' home.
Below are listed specific instances of misconduct which we have garnered from news reports and court documents and from interviews with court observers, Branch Davidian defendants and attorneys, and trial jurors. (Any inadvertent errors should not discredit any and all other allegations.) Our listing is not all inclusive. Other individuals doubtless will file their own complaints detailing even more instances of misconduct. We expect you will add all new complaints to the ongoing investigation.
Prosecutors Withheld Evidence Regarding Defendant Fagan
Prosecutors did not tell Livingston Fagan's attorney in advance that two witnesses, BATF agents Evers and Orchowski, would claim Fagan shot them.
Prosecutors withheld evidence that cast doubt on Evers' testimony--a copy of the photo lineup Texas Rangers had shown the agent in March of 1993. Next to the photo of Fagan, Evers had written, "unsure if identified from shooting or TV." Even the pro-prosecution Judge Smith criticized the prosecution for this incident.
Prosecutors Withheld Evidence Regarding Illegal BATF Shooting February 28, 1993
Prosecutors were untroubled by the fact that they could not produce one of the two steel double front doors which might have proved that BATF shot a first barrage of bullets at the unarmed David Koresh, critically wounding the unarmed Perry Jones. FBI agent R.J. Craig's testimony, as well as FBI photographs, indicated the doors had been pulled away from the building before the fire. Texas Ranger testimony, the Treasury Department report, as well as news and amateur video, indicate FBI and BATF agents had access to the scene before and after Texas Rangers took it over.
Prosecution witness Dr. Nizam Peerwani claimed that Perry Jones only had a gun shot wound to the mouth and ignored the nearly fatal BATF-inflicted bullet wounds to the stomach Davidian survivors have described. Even prosecution witness Kathryn Schroeder testified Perry Jones was wounded by BATF gunshots. Jones' surviving family members will soon have their own autopsy done.
Prosecutors did not tell the defense that BATF agents Roland Ballesteros and Robert Champion had changed their testimony about whether anyone had yelled search warrant, seen David Koresh in the door or shot dogs in the first minutes of the raid. After being interviewed by Treasury Department agents and prosecutors, they gave testimony much more damaging to the Davidians and protective of BATF than that which they gave the Texas Rangers in March, 1993.
Prosecutors supported BATF's claim that the reason it did not have video of the first minutes of the raid was that BATF equipment both in the undercover house across the street and in the helicopters had failed. However, BATF officials initially claimed they had video evidence the Davidians fired first. Many believe this video footage does exist and actually contains evidence that BATF agents fired first and that agents fired at Davidians from helicopters. Survivors, including prosecution witness Marjorie Thomas, make such allegations.
Prosecutors lied to the court when they stated they showed all available KWTX television video tape of the February 28th raid. They definitely did not show the widely broadcast footage of a BATF agent breaking the windows of the chapel and throwing two dangerous "flash-bang" grenades inside. They also may have edited out other footage damaging to the prosecutors' case.
Prosecutors Withheld Evidence Regarding How April 19, 1993 Fire Started
Prosecutors supported the FBI's claim its surveillance devices were destroyed by tanks right before the final tank attacks which Davidians assert started the fires. If they exist, such tapes might provide evidence that the tanks, and not the Davidians, started the fires.
Prosecutors did not reveal to the defense that the FBI in Waco and in Washington, D.C. had a live audio feed of everything caught on surveillance tapes inside Mount Carmel Center. Attorney General Janet Reno, other Justice Department and FBI officials, and agents in Waco could hear everything caught by the "bugs" as it happened. If this had been known, the defense would have had a strong case to call any such individuals to the stand to testify about the exact time surveillance tapes actually stopped recording.
Prosecutors withheld the fact that when they showed jurors infrared and video shots of the April 19th fire, they did not include almost 5 crucial minutes between noon and 12:07, footage which might have proven that the final tank attacks started the fire. This footage should be released to defense attorneys and the public immediately.
Prosecution witness Dr. Peerwani withheld from the jury what Davidian death certificates cited--that some bodies had ethanol in their blood, possible evidence that the FBI used this highly flammable substance as a dispersant for CS gas. Nor did he reveal that several dozen bodies had lethal doses of cyanide, a known byproduct of burning CS gas.
Prosecutors Withheld Evidence Regarding "Star Witness" Kathryn Schroeder
Davidian Kathryn Schroeder, who plea bargained for a lower sentence in exchange for her testimony against other defendants, admitted in court that prosecutors told her they had a witness who could testify she had shot a gun on February 28th. Once she cooperated with them, prosecutors denied they had such evidence any longer. Defense attorneys demanded prosecutors turn over any evidence that similarly "exonerated" their clients. Prosecutors did not do so. It is possible either that prosecutors lied to Schroeder to compel her cooperation or that they did in fact withhold evidence that might exonerate other defendants.
Prosecutors disclosed only on the morning of Schroeder's testimony that Texas Rangers had a transcript of Schroeder's original March, 1993 statement to them. The statement was quite different from both her later grand jury testimony and the testimony prosecutors had revealed to defense attorneys she would present at trial. With this evidence finally in hand, defense attorneys could confront Schroeder and make her admit she had lied to Texas Rangers.
Prosecutors Intimidated or Unduly Influenced Witnesses
The above suggests that prosecutors may have lied to and intimidated Kathryn Schroeder in order to convince her to lie on the stand in exchange for a greatly reduced sentence.
Prosecutors obviously coached former Davidian Victorine Hollingsworth. At trial she testified with confidence that she had seen various individuals carrying guns during or after the February raid. However, when one attorney read aloud her statement to Texas Rangers taken shortly after she left Mount Carmel in March, the transcript showed that Hollingsworth was very confused and unsure of who was carrying guns or what those guns looked like.
Soon after the February 28th raid, Assistant U.S. Attorney Bill Johnston monitored BATF undercover agent Robert Rodriguez' statement to Texas Rangers. This is suspicious considering that Rodriguez testified at trial he became so worried about BATF officials' lies about him, he hired his own attorney.
Prosecutors may have influenced witness Bradley Rogans, a 23 year old serving three eight-year sentences on drug-related charges. Rogans testified he befriended defendant Renos Avraam during almost a week at a Texas prison and that Avraam had told him he had carried an automatic weapon and boasted he was "a good shot." Later it was revealed that Rogans had spent only one day at that facility and was released to freedom the next day!
Prosecution witness audio expert Paul Ginsberg, who earns more than $100,000 a year doing work for the FBI, admitted that after speaking with prosecutors he changed the contents of his transcripts. For example, he changed one statement he originally transcribed as: "So we only light 'em as soon as they tell me it's the last chance, right?" to, "So we only light `em as they come in." It is obvious these changes had little to do with audio clarity and everything to do with creating content damaging to the Davidians. A juror told us jurors did not find his transcriptions credible.
Prosecutors would allow defense attorneys' weapons expert to inspect allegedly illegal machineguns only by looking at them through their plastic wrappings. This adds to suspicions that prosecutors and weapons experts falsely claimed that legal weapons were actually illegal ones--or that some legal weapons had been converted to illegal ones in FBI laboratories.
The Committee for Waco Justice would like a thorough investigation of whether one or more prosecutors named above were involved in withholding evidence or unduly or illegally influencing witnesses. We would like to see appropriate disciplinary or legal measures taken against culpable prosecutors. We would also like to see any evidence withheld by BATF or the FBI found and disclosed to Branch Davidian defense attorneys.
As you know, after Attorney General Janet Reno decided not to merge your office with that of the Inspector General, some lawmakers expressed dismay. According to the Washington Post, Senator John Glenn asked, "What is going on over there they don't want us to look at?" We hope that your office will not confirm Senator Glenn's suspicions and will do a thorough investigation of our and all other relevant complaints. We expect that you will contact the Committee for Waco Justice about the results of your investigation.