Law • Bill Johnston

When he told the truth about the Branch Davidian standoff, he sacrificed his career to his conscience.

September 2000By Comments

In the annals of Texas law enforcement, it would be hard to find a tougher or more successful prosecutor than Bill Johnston. As an assistant U.S. Attorney in the Western District of Texas for the past twelve years, he sent more than 1,500 criminals to federal prison and earned a remarkable 99.6 percent conviction rate. His hands-on approach to jurisprudence was unprecedented: He often accompanied law enforcement officers on drug raids and manhunts, and in the case of serial killer Kenneth McDuff, he tracked down several of the buried victims himself. Known as a straight-arrow, Johnston had a squeaky-clean reputation and what many felt was one of the most promising careers in the Justice Department.So it was with considerable astonishment that the law enforcement community learned of his abrupt resignation in February. His reason: He believed high-ranking Justice Department officials had failed to inform Attorney General Janet Reno of critical evidence pertaining to the 1993 standoff in Waco. That evidence indicated the FBI had fired pyrotechnic tear gas grenades, which were capable of sparking a fire, hours before the Branch Davidian compound was consumed by flames. Johnston also believed his superiors were trying to silence him. Though he was certain that Davidians, not federal agents, had started the fatal fire—a belief upheld by a recent ten-month investigation by special counsel John Danforth—he insisted that his superiors stop publicly denying the use of pyrotechnics when they knew otherwise. He told Reno as much in a now-famous letter in the summer of 1999, following the FBI’s admission, after six years of denials, that the bureau had indeed used pyrotechnics. It was an extraordinary move that broke rank with his colleagues and set loose the forces that would eventually lead to his resignation.

That resignation was taken particularly hard by the legions of lawmen who believe Johnston is in the right. “He has integrity beyond question, and he’s fearless,” said Texas Ranger Matt Cawthon. “He ought to be eight feet tall and bulletproof.” As for his decision to resign, they believe he had no other choice. “Bill Johnston suffers from a terminal case of honesty,” said deputy U.S. marshal Parnell McNamara. “It’s in his genes; it’s in his heart; it’s in his soul.”

For the 41-year-old Johnston, it was another chapter in a case that has dogged him for much of his career, one whose deadly end still haunts him. Broad-shouldered and intense, the maverick attorney cuts an imposing figure at six four, though his tremendous physical presence is undercut by his genial mannerisms. He shrugs off anyreferences to his success in the courtroom with considerable embarrassment and a "well, golly." Friends say Johnston is a straight shooter who adheres to a deep moral code, a man whose keen sense of right and wrong recalls another, less cynical time. (He counts Teddy Roosevelt's Rough Riders among his heroes and is perhaps the only federal prosecutor to have ever written books for his children on the Texas Rangers and the Alamo.) The grandson of a Methodist minister, Johnston once taught Sunday school and refrains from using profanity: His coarsest language to date has consisted of referring to one particularly loathsome criminal as a "creep" and a "rat," much to the amusement of his friends in law enforcement. At his Waco office, where Johnston is now in private practice, he straddled the back of his chair and spoke animatedly about his self-described "corny idealism"—a belief that law enforcement and the courts "can make a noticeable difference in the quality of life." It was a notion shaped by his father, Wilson Johnston, an assistant district attorney for Dallas County under Henry Wade. "I understood that name as well as my own," said Bill Johnston. "We even had a dog named Henry Wade, so my dad could boss him around." Johnston was too young to remember his father's most famous case—prosecuting Jack Ruby on appeal—but his childhood was steeped in law and order: His father often spent evenings riding shotgun with Dallas' larger-than-life sheriff, Bill Decker, and houseguests included a Texas Ranger who had helped shoot down Bonnie and Clyde. When Johnston was seven years old, his mother died of cancer; his father, and by extension the other lawmen who hung around the Dallas County courthouse, became his caretakers. Criminal trials were to him what television was to other children of the sixties and seventies. The future prosecutor often watched, rapt, as the dramas of the city played out before him, learning the craft of lawyering by his father's example.

Johnston was a quick study. After finishing Texas A&M a year early and then earning his law degree at Baylor in only two years, he prosecuted his first murder case at the age of 23. As a prosecutor for the McLennan County district attorney's office in Waco, Johnston adopted his father's habit of riding with lawmen, hoping the experience would make him a better trial lawyer. ("If we were talking about a meth lab," he said, "I wanted to see what a meth lab looked like.") He went on more than one hundred drug busts in those early years, serving as a legal adviser to the arresting officers. When he became a federal prosecutor, he rode along on late-night raids and manhunts in a more limited legal capacity. "If I'm asking people to work for me at one or two in the morning, why should I be asleep?" he said. "I can't justify staying at home while they're out there putting their lives on the line." His commitment to working in the trenches earned him the respect of area lawmen, said Secret Service agent Robert Blossman. "When Bill put out a call, everyone answered."

At the age of 28, after local politicians lobbied for a U.S. Attorney's office, Johnston became the first federal prosecutor to serve exclusively the thirteen-county area that stretched between Dallas and Austin. Three years later, in 1990, he was appointed chief drug prosecutor for the Western District of Texas, the second-largest jurisdiction in the nation. "People in this area cannot fathom what this community would be like if not for Bill," said deputy U.S. marshal Mike McNamara. "He put hundreds of drugmakers and dealers in the penitentiary for a long time, and he had a tremendous impact. His message was, 'If you're going to deal drugs, you're not welcome here.'"

One of his most famous cases was that of Kenneth McDuff, a sadistic serial killer who—through a twist of fate and the bribery of a state official—was paroled to the Waco area in 1989. Lawmen soon suspected he was behind a rash of new murders; Johnston used intelligence gathered from an informant to obtain a warrant for his arrest and helped lead a six-week manhunt that ended in the killer's capture. "That case did something to all of us," he recalled grimly. "The depths to which a human being could go, the terror. It was horrifying."

But nothing would disturb his sleep more than the Branch Davidian siege—"an American tragedy of epic proportion," as he wrote to Reno, quoting the presiding judge in the case. Johnston was deeply involved from its earliest days, having helped draft the affidavit alleging that Branch Davidians were stockpiling weapons—the document that became the basis for the search warrant the Bureau of Alcohol, Tobacco, and Firearms tried to serve on February 28, 1993. Johnston vividly recalls listening to the frantic voices on the police radio that morning as he stood at the ATF command post four miles from the compound, realizing that the raid had gone terribly awry. That day's pitched battle between Davidians and ATF agents was the worst police shoot-out in U.S. history, leaving four agents dead and twenty wounded. Johnston remembers seeing a pickup truck at the command post afterward, piled high with the equipment of fallen ATF agents; rainwater had collected in the truck's bed liner, and when it dripped onto the ground, it ran out red. "Knowing people had died, and that I had sponsored the affidavit . . ." he said, searching for the right words. "It was the beginning of a weight that has never lifted."

In the chaos that followed, Johnston noticed that key evidence, which he would later need in prosecuting the Davidians for murder, was getting lost in the shuffle. There was also the curious fact that ATF agents had been put in charge of investigating their own agency's conduct during the raid. At Johnston's insistence, Texas Rangers were brought in to collect evidence and conduct an independent investigation. It was perhaps the single most important decision he made; if not for the Rangers, many questionable aspects of the government's conduct during the 51-day siege might never have come to light. The Rangers soon unraveled the first of several mysteries: The fatal shoot-out had occurred, in part, because Davidians had learned of the raid beforehand. Worse yet, Rangers discovered that two ATF raid commanders, Chuck Sarabyn and Phil Chojnacki, knew that the Davidians had been tipped off but had proceeded with the raid anyway. (They also lied to the Rangers investigating the case.) Though Sarabyn and Chojnacki were briefly fired, they were soon rehired—a glaring example of what critics refer to as the lack of accountability surrounding the Branch Davidian case.

As the standoff between federal agents and the Branch Davidians wore on for days and then weeks, Johnston learned that FBI commanders were hampering the Rangers' ability to collect evidence. When his pleas to superiors for help fell on deaf ears, he wrote what would be his first letter to Janet Reno asking for her assistance. "The letter was a desperate move and one that I did not want to make," he later wrote. "I simply did not know any other way to bring the situation under control . . . As soon as the letter left my hands, I knew that I would never be seen as a 'team player' within our office or within the Department of Justice."

Reno responded swiftly, however, and the FBI was instructed to work more closely with investigators. By alerting Reno to the problem, Johnston had helped save the government's murder case against the Davidians—a case he prosecuted in 1994. In the end, however, the siege took a terrible toll: On April 19, 1993, Johnston watched as the FBI inserted tear gas into the compound in an effort to force its occupants out. Hours later he stood by helplessly as the compound—which contained roughly eighty Davidians, eighteen of whom were children—was ravaged by fire.

After he testified in 1995 at congressional hearings about the Branch Davidian siege, Johnston hoped to put the ordeal behind him. But three years later he was contacted by filmmaker Michael McNulty, whose documentary Waco: The Rules of Engagement was nominated for an Academy award. McNulty had tried in vain to gain access to evidence in the case and asked for Johnston's assistance. Though Johnston was wary of McNulty, whose film suggested that the government had deliberately murdered the Davidians on April 19, 1993, he sought—and got—permission from the Justice Department to show McNulty evidence in the case. "I didn't care for his film, but my feeling was that if you stone- wall someone who mistrusts government, then you cause them to feel that all the more," Johnston said. "I didn't think there was anything to fear about the truth."

In the spring of 1999 McNulty began reviewing the evidence, which was in the custody of the Texas Rangers. Johnston received an angry call soon afterward from an attorney in the Justice Department's torts division. "She was sort of growling at me," he remembered. "She chewed me out for showing McNulty the evidence, saying, 'What do you think you're doing? What are you doing?!'"

Indeed, the results of McNulty's search were devastating, yielding what appeared to be shell casings from pyrotechnic rounds. The Texas Rangers, in turn, began cataloging the evidence under their control, and in late July, they informed Johnston that pyrotechnics had indeed been used. Johnston alerted his superiors in a series of increasingly urgent e-mails and phone calls, first in late July and then throughout the month of August. But the Justice Department—responding to renewed questions from the media about Waco prompted by the Davidians' impending wrongful death suit—continued to deny the use of pyrotechnics. Johnston grew alarmed and then indignant, insisting that the department be forthcoming. When he pressed his point, he received a fax of a 1993 memo that he believes was designed to intimidate him into silence. The memo (which bore the notes "do not disclose" and "privileged") implied that Johnston had attended a meeting during trial preparations where "military rounds"—pyrotechnics—were discussed. Johnston insists he has no memory of the meeting; if he had been present, he adds, he would not have understood the significance of the term "military rounds." "I thought, 'Why are you sending this to me, and not Reno?'" Johnston said. To him, the fax's message was clear: "There's a problem here all right, and if you raise a stink, it will be your problem."

That week, on August 24, the Dallas Morning News published a front-page article in which a former FBI official conceded that pyrotechnics were indeed fired on April 19, 1993. The following day, the FBI formally acknowledged their use. An angry Janet Reno, who had forbidden the use of pyrotechnics during the siege, pledged a thorough investigation. But Johnston felt an even greater issue was at stake: His superiors had known about the use of pyrotechnics since at least late July, when he first notified them of the Rangers' findings, yet they had clearly not notified the attorney general. As he had done six years before, he wrote directly to Reno. "I knew this was an extremely serious step that would have consequences," he said. "But sometimes you have to say, 'If they fire me for this, it's worth it.'" U.S. district judge Walter S. Smith, Jr., who presided over the Branch Davidian case, was sufficiently concerned about the security of Johnston's job that he called Reno himself. "I told her the high regard I have for Bill and what his reputation was and that it would be a tragedy if he was in any way mistreated, because he had taken steps to advise her she was being lied to," said Judge Smith.

But on September 14, Johnston was removed from the Branch Davidian case and told to send all relevant documents to the U.S. Attorney's office in San Antonio. He soon found himself ostracized by department superiors and cut out of district-wide staff meetings. "I was becoming embittered," he said, "and I knew it was time to go." After he finished his commitments to two pending murder trials, he resigned in February, telling reporters: "I have a hard time working for people that I don't respect."

Half a year later, it is clear in talking to Johnston that his decision to leave is no less painful. He explained that, soon after his resignation, he stumbled upon a Justice Department employee sent from the Austin office to covertly download files off his computer. When she saw Johnston enter the office, she bolted for the door. Johnston was stunned and also saddened. "My feeling was, 'Has the system lowered itself to this?'" he said. Others believe the system has fundamentally failed. "To lose a man of this stature is a tragedy—not just for Bill, but for this country," said Mike McNamara. "Bill is the sort of person who should be promoted and who should lead because of his honesty and integrity." As Johnston sat in his Waco office, the walls of which are decorated with nearly a dozen awards from federal and state law enforcement agencies, he spoke candidly of his regrets. "I made hundreds of decisions on the Davidian case over the past seven years, and I've tried to do the right thing—but in doing so, I made mistakes, even recently," he said. "Everyone who has dealt with this case to any extent has had bad things happen to their personal lives and their careers. Every accuser has become an accused. I hope that the personal destruction will soon come to an end."

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