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?
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Johnston was now haunted by the possibility that he had attended the fateful November 1993 meeting at Quantico. That fear led to his downfall. Flipping through a yellow legal pad of notes from that trip, trying to refresh his memory, he discovered one cryptic page of scribbling. It read in part: “Charlie. One green military (incind).” The misspelled abbreviation apparently indicated that incendiary rounds had been discussed. He still could not remember the meeting, but he knew now its importance: If he had been there—if he had understood clearly that the FBI had fired pyrotechnics—then he had failed to reveal the truth. Johnston ripped the offensive page from his notepad, well aware that he was sliding down the slippery slope of criminal activity. Only then did he obey orders to send his Davidian-related documents to San Antonio.
Not long after that, Johnston arrived at his office to find a Justice Department computer technician downloading files from his computer. When she saw Johnston, she left abruptly. That’s when Johnston decided to resign. “I just don’t want to be on their side anymore,” he told friends.
On three occasions in the fall of 1999 and the spring of 2000, Johnston traveled to St. Louis to answer questions from the Office of Special Counsel, unaware that prosecutors had zeroed in on the meetings at Quantico and were poring over the notes of trial team prosecutors. Nor could he have guessed that they had discovered that a page was missing from his notepad and reproduced it through a technique called indented handwriting analysis. Unaware of his vulnerability, Johnston underwent questioning without an attorney. The Davidian trial team had broken into groups in that 1993 meeting at Quantico, so there was no way for investigators to establish which prosecutors had attended which meetings—except from their notes and what they remembered six years later. The Office of Special Counsel focused on one particular meeting in which HRT member David Corderman acknowledged that he had fired pyrotechnic rounds. None of the team members remembered this meeting. But notes taken by John Lancaster, a prosecutor assigned to the team from Justice’s Terrorism and Violent Crime Section, read “Corderman—military gas round … fired 1-4 incendiary rounds.” Notes apparently from the same interview taken by paralegal Reneau Longoria have the revealing terms “bubblehead” and “military gas round” and a misspelling of the word “incendiary.” The Office of Special Counsel discovered no notes to prove that LeRoy Jahn had attended the meeting but suspected that she had. After Johnston’s third appearance before the grand jury—and after he had lied about the missing page—he was told by an Office of Special Counsel staff member that he hadn’t attended the Corderman meeting, that he had probably learned about it from one of the others. The misspelling of “incendiary” suggests he had seen Longoria’s notes. But the revelation came too late to help him.
In its final report the Office of Special Counsel concluded that all the trial team members understood clearly what was said and shared responsibility. But only the Jahns and a blacked-out name that is presumably Bill Johnston’s “went to great lengths” to cover up their knowledge and obstruct justice. Johnston’s misconduct, however, “went further than that of the Jahns.” Johnston had not only removed from his notes a key page relating to the FBI’s use of pyrotechnic tear gas but had also falsely certified that he had produced all relevant documents. On the advice of Gerry Goldstein, a prominent San Antonio attorney, the Jahns refused to sign the same certification. The Jahns went out of their way to manipulate witnesses and shift the blame to Johnston, the report states. But Johnston had repeatedly lied about the existence of the concealed page and the Office of Special Counsel seemed particularly angered by what it saw as Johnston’s attempts to take the high road in letters to Reno and statements to the media. “He made these statements knowing that he had engaged in precisely the deceptive conduct which he was condemning,” Danforth’s office said. Finally—unlike the Jahns—“Johnston’s felonious conduct may be proved by direct, probative, and admissible evidence.” Prosecutors hate to indict unless they can also convict. Johnston had made it easy for Danforth to use him as the fall guy.
By the time Johnston pleaded guilty and came up for sentencing, the only unanswered question was motivation. The indictment used the word “scheme” repeatedly, implying that he had plotted to hide his own culpability and make himself into a hero (for example, by allowing McNulty to sift through the evidence and discover the M651 casing). “It’s not atypical for people trying to pass themselves off as whistleblowers to make public remarks and try to put the focus on other people,” assistant special counsel James Martin told me later. This theory requires people to believe that Johnston knew about the use of pyrotechnics from the beginning. Even if he had been at the meeting with the HRT in November 1993, he and the other members of the trial team, including the Jahns, were obviously confused by the semantics employed by the rescue team members, which used a number of terms interchangeably—military rounds, cupcakes, bubbleheads, incendiaries, hot gas, and penetrators. At one Quantico meeting, LeRoy Jahn had asked, “What is a cupcake round?” Apparently no one had used the correct name—pyrotechnics. There is no reason to believe that Johnston attributed any significance to the terms until after McNulty discovered the M651 shell.
After listening to both sides, Judge Shaw decided that Johnston was motivated by nothing more sinister than survival. Though his crime was real, it did not rise to the level of a Machiavellian plot or deserve a prison term. Instead, the judge gave him two years probation. It was a victory, but I didn’t feel like celebrating. The case never should have been pursued.
If Danforth had been truly pursuing wrongdoers, there were plenty to choose from:
• The ATF commanders, Chuck Sarabyn and Phillip Chojnacki. The Texas Rangers filed federal charges of lying to investigators against both men. They were fired by the ATF but later rehired. Justice declined to prosecute.
• FBI commander Richard Rogers, who gave the order for the HRT to fire pyrotechnics, then remained silent while his superiors denied that pyrotechnics had been used. Justice declined to prosecute.
• The Jahns. The Office of Special Counsel recommended that they be removed from their jobs. Justice declined either to fire or to prosecute them.
• James Cadigan, an FBI crime-scene investigator who made a note about a “40 mm gas grenade,” then concealed the notepad in his attic for seven years. “Putting notes relating to one of the most significant investigations in FBI history in an attic is highly suspicious,” the Office of Special Counsel observed. Justice declined to prosecute.
• Jacqueline Brown, an FBI lawyer who knew about the use of pyrotechnics but failed to pass on the information to Justice and then lied at least four times to the special counsel. Justice declined to prosecute.
But each of these wrongdoers got the benefit of the doubt. There was no government cover-up or conspiracy, Danforth concluded, just “human foible.” Of Jacqueline Brown, Danforth writes, “I believe what happened in this case was that this fairly young lawyer simply goofed, simply failed to do an adequate job.” Honest or even bad mistakes, the special counsel decided, are not evil, merely human.
Not if your name is Bill Johnston. Not if you’re a maverick. Not if you’re a whistleblower. Not if you tell the truth about the FBI. Not if you’re the only guy who doesn’t have friends in Washington. No one connected to the horror of Waco comes off clean. Nobody escapes censure. And Bill Johnston, the one person who did demonstrate honor and integrity, is the one who is punished. Somewhere, David Koresh is smiling.
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