Future Forum: Guilt, Innocence, and the Death Penalty 
The Case of the Persecuted Prosecutor
As an assistant U.S. attorney, my friend Bill Johnston had done more than any man in America to reveal how the FBI lied about its actions in the Branch Davidian siege. So why did the government try to send him to prison?
(Page 2 of 3)
By the third day, the law enforcement community had split into warring camps—the FBI and the U.S. attorney on one side and the ATF, the Texas Rangers, and Johnston on the other. Johnston stayed in the Rangers’ camp, coordinating the criminal investigation. The Rangers believed that their best evidence in the homicide case was the dozen or so vehicles that the Davidians had left parked in front of the compound. During the shoot-out, ATF agents had used the vehicles as cover, and the vehicles were riddled with bullet holes and stained with blood. Since investigators knew which cult members had been at which windows, the lines of trajectory could establish who had fired the fatal shots. Ranger Byrnes solicited a promise that the FBI would respect the integrity of the crime scene, that the vehicles would not be moved unilaterally. But on a Sunday afternoon, about three weeks into the standoff, Johnston was horrified to hear from ATF agents that the vehicles were being bulldozed into heaps.
Johnston wasn’t a team player, but then he never had been; out in the boondocks, far from the San Antonio office and light-years from Washington, he had mingled with local law enforcement officers and considered himself one of them. He was totally unprepared for the high-stakes bureaucratic warfare in which he would soon become involved.
On March 23 Johnston took the most daring initiative of his career. Bypassing Ederer, he wrote a letter directly to Reno, the newly appointed attorney general, complaining that FBI actions and missteps were destroying evidence and threatening the effort to prosecute the Davidians. Before mailing the letter, he showed it to David Byrnes. “Bill, this looks like a suicide note to me,” the Ranger captain warned him.
Johnston’s letter got action. Reno sent her deputy assistant attorney general, Mark Richard, to Waco. Richard eyed the situation and instructed the FBI to cooperate and respect the role of the Rangers. But the letter was viewed as a virtual act of mutiny by rank-and-file lawyers at Justice, who never forgot or forgave. The letter had so poisoned the well that Johnston wasn’t told about the HRT’s plan for a final assault on the compound until the evening of April 18, just hours before it began—and he was told not by the FBI but by the Secret Service.
Already on the outs with his colleagues at Justice, Johnston further angered some members of the team of prosecutors appointed to try the surviving Davidians by fully cooperating with a review of the Waco tragedy by the Treasury Department. He was passed over as the lead prosecutor in favor of Ray Jahn of the San Antonio office, who was named to head up a five-member team, which included his wife, LeRoy, and Johnston. Ray and LeRoy Jahn had been stars within the ranks of Justice since the early eighties, when they successfully prosecuted Charles Harrelson for the murder of federal judge John Wood in San Antonio. They were angry with Johnston for cooperating with the Treasury review, which they feared would damage their case against the Davidians. For the trial, Johnston was given the relatively minor assignment of proving how and from whom the Davidians got their machine guns and explosives. But a critical moment for Johnston occurred a few months before the case was tried: In November 1993 the team of prosecutors traveled to Quantico to interview HRT members, a trip that seemed routine at the time. Six years later, it would become central to the unraveling of Johnston’s career.
The conviction of the eleven Davidians did not put the questions about the tragedy to rest. Congress held hearings on the Waco debacle in 1995, and the turf war between Justice and Treasury was on again. Subpoenaed to testify, Johnston further alienated his bosses by preparing a written statement that did not conform to Justice’s party line—that the FBI had done a fine job in Waco, had worked closely with the Texas Rangers, and had brought a difficult case to a successful conclusion. But when he appeared before Congress, the questions focused mostly on the ATF raid rather than on how the FBI had conducted itself. Johnston did not know at the time that pyrotechnics had been fired, but others who did know either lied or misled Congress. Several internal Justice and FBI documents, as well a Justice briefing for Reno, denied the use of pyrotechnics. Richard Rogers, the FBI commander who had ordered the firing of pyrotechnics, sat directly behind Reno—and remained silent—as she assured Congress that only non-pyrotechnics had been employed. After the hearings, the Davidian affair dropped off the media’s radar screen for nearly three and a half years. But one person was still asking questions about Waco—documentary filmmaker Michael McNulty. His 1997 film, Waco: The Rules of Engagement, conjured up a number of wild conspiracy theories, but it also raised the question of who started the fire. McNulty had repeatedly written letters to the Justice Department requesting permission to examine the evidence locker in Austin where the Rangers had stored thousands of pieces of material from the Davidian investigation that had never been inventoried. Each request was curtly denied. Johnston, who had always believed that the government had nothing to hide, decided to allow McNulty to look at the evidence, after first clearing it with Justice’s head of public affairs. The filmmaker discovered a shell casing from a pyrotechnic grenade. McNulty wrote the Justice Department about what he had found and told Johnston and the Rangers as well. Johnston was skeptical, but he and the Rangers decided to take another look at the evidence. By the summer of 1999 a DPS expert had established that the shell casing was indeed from a pyrotechnic M651 tear gas round.
When Johnston read the expert’s report, he sent a series of frantic phone, fax, and e-mail messages to Bill Blagg, the new U.S. attorney in San Antonio, alerting his superiors that Justice and the FBI had a big problem. Yet Reno and others continued to stand by the FBI. Meanwhile, the torts division at Justice was outraged to learn that McNulty had shared his discovery with lawyers representing the Davidians in their $675 million lawsuit against the federal government. Marie Hagen, Justice’s top lawyer in the civil suit, telephoned Johnston, furious that he had permitted the filmmaker to see the evidence.
The truth emerged on August 24,1999, when Dallas Morning News reporter Lee Hancock wrote that a former senior FBI official had admitted that the agency had fired two pyrotechnic tear gas grenades. The next day the FBI publicly acknowledged that it “may have used” pyrotechnic devices. Prosecutor Johnston had been right—but if he thought that the fallout from Waco was now behind him, he quickly discovered otherwise. A few days after the newspaper stories ran, Blagg called to say that he was faxing Johnston a troubling document that the Jahns had found. The fax was part of the notes taken by the trial team’s paralegal during the November 1993 Quantico meeting in which a member of the HRT’s Charlie Team revealed that “military gas rounds” had been used. The paralegal had written Johnston’s name in the margin, which suggested that Johnston may have attended this meeting. Johnston had been at Quantico at the time, but he had no recollection of such a meeting. Nor would he have understood the meaning of “military” rounds back in 1993. But he knew it all too well now. Johnston thought long and hard about what to do. He kept remembering something his father, an assistant district attorney in Dallas in the fifties, liked to say, “I sacrifice no principle to get this job; I’ll sacrifice none to keep it.” Then he sat down and wrote another letter to Reno, informing the attorney general that the FBI and lawyers from her own department had long withheld key information about Waco. Once again Johnston’s letter to Reno got a response. She appointed John Danforth, the former United States senator from Missouri, as special counsel, with orders to get to the bottom of the Davidian debacle.
Although the fax from Blagg to Johnston was confidential, a report about its contents appeared in the Morning News the day after Danforth’s appointment. When Johnston realized that the fax had been leaked, he gave Lee Hancock a copy of his letter to Reno. His estrangement from Justice had turned into open hostility. In a matter of hours the story was making national headlines. Soon Johnston was telling his story to 60 Minutes, National Public Radio, and other forums.
My Library
