And Justice for Some
Part 1: Disposable People

My partner gasped as machine-gun fire flickered on our television screen. We were viewing the Academy Award nominated documentary, "Waco, the Rules of Engagement,"¹ called "one of the most disturbing films of our time" by the San Francisco Chronicle. Not our normal Saturday night fare, I had recently received a package of documents; copies of reviews of the film and newspaper articles on behalf of federal prisoner Paul Fatta, a Branch Davidian. Fatta turned himself in on the Today Show following the fire that killed most of the other Branch Davidians in Waco, Texas in April 1993. I was interested in his story: why the Today show? Why at all? What part had he in the Waco incident?

 

Paul's case

Serving 15 years on a conviction that calls for a 1-3 year maximum sentence, Fatta was found guilty of possessing a firearm during the commission of a violent crime. The confusion sets in when understood that Fatta was actually 90 miles away from the crime scene on a business trip, completely oblivious to the turn his life was about to take.

How is it that Fatta has been imprisoned 5 years already for a crime it is argued he did not commit? Under a broad interpretation of the Pinkerton principle, a defendant may be found guilty of crimes he or she did not personally commit or even know had been committed so long as it is proven beyond a reasonable doubt that the crimes were part of a conspiracy and that the defendant was a co-conspirator. Stranger still is the fact that although Fatta was acquitted of the original charges, irregularities in court proceedings landed him in a federal prison with an "enhanced" sentence, to jurors' dismay.

Described as a "low-key kinda guy" by friends, Fatta drove home to find the perimeter of Mt. Carmel Center sealed off and surrounded by federal agents.² Stunned, he approached the agents and asked what was happening. He was told to leave the premises, yet, warned not to leave town. Agents refused his pleas to be allowed to negotiate on their behalf with the people inside the building.

 

The 51-day time bomb

Fatta checked into a local motel with his son to wait out what turned into a 51-day stand- off. From time to time ATF agents appeared on the Fattas' rented doorstep to confirm their whereabouts and intimidate them. One week passed and then another. The agents, increasingly fierce during their visits, cause Fatta to begin to fear for his life and the life of his son. After one such visit too many, they climbed into their vehicle and left town.

In the days to follow, approximately 50 law enforcement professionals will engage in a heated pursuit of Fatta and his son over an area covering several states. Agents will prowl Fatta's mother's neighborhood in California and in a dramatic event fit for a TV movie of the week, armed men in full gear will burst into the wrong home, terrifying residents and their out of town guests whose Texas license plate was intelligence enough for the agents in question. On locating Mrs. Fatta's residence, she was harassed at her front door night and day.

 

FBI deals with Fatta

For weeks Fatta and son Kalani live on the run, pulling in and out of quick-stops for food and gas, just ahead of furious of federal agents and state police. As the siege back in Waco wore on, patience grew thin and frustration escalated as an FBI agent reported an ATF agent as saying, "Once we find 'em, they're dead."

Fatta learned of the death of his friends at Mt. Carmel Center. Finding himself now the focus of the full attention of government law enforcement, he begins negotiation with the FBI. Fatta refuses surrender until promises are made for the safe delivery of his son to his paternal grandfather at an airport lobby in Las Vegas. Upon arrival, Kalani Fatta finds FBI agents waiting to intercept him. Knowing the terms of the agreement with his father, young Fatta creates a scene, refusing to talk with agents and rushes past to his new custodian.

With the airport duplicity fresh, Fatta changes course to the FBI's fury and turns himself in on NBC's Today show hoping to avoid personal harm. Fatta appears wearing a suit, composed and articulate as he fields hard questions about life at Mt. Carmel Center. My image of Branch Davidians is tested.

 

Agency games

In weeks and months to come, the papers and reports that reached my desk from various sources grew deeper, poor substitutes for real answers over what had so thoroughly assaulted my sensibilities. The fire haunted me. As the Texas wind whipped it into a mesmerizing frenzy, the sound of a voice broke its spell with the report of people trapped inside. Right now, right then, people were burning alive. They were being tormented by flames climbing their clothes and melting their skin if smoke had not mercifully rendered them unconscious. In my mind's eye, I saw children unable to be comforted by their mothers and parents who agonized for their children.

In a bar, viewers cheered, "It's about time!"

Now I waited for answers in the coming House and Senate Hearings as the media hammered out a demonized version of what little information there had been access to while kept back from the crime scene. Initial hearings convened 9 days after the fire where the New York Post accused "No one questioned under oath, no immunity granted and questionable testimony," made even more questionable by new evidence made public February 1998, the thrust of which confirms what supporters of human rights and Paul Fatta have been saying all along.

"I think a lot of it stems from what happened with Ruby Ridge and Randy Weaver. I think with us, they were gonna use this raid to get heir credibility back and what happened is it backfired. Now, they wanted to point us out as some kind of crazy cult fanatics that needed to be taken care of and this was all supposed to be on video because in 2 weeks they had to go before Congress for a budget hearing. Because of what happened at Ruby Ridge, there was already talk about taking away funds or even disbanding, so this was the mission that was gonna win them back...The point: they were supposed to have this all on video and show it to Congress, but mysteriously when the trial came this video disappeared; they had nothing to show." —Paul Fatta

Accused by hearing committee members as using the Branch Davidians for a public relations exercise,³ the ATF is "exposed" on film in good company. Former FBI Forensic Photographer Farris Rookstool was with the Evidence Response Team:

"As one of the primary photographers responsible for photographing evidence as it was being recovered and placed into appropriate bags, I photographed David Koresh's living quarters and also all of the bodies from what is termed 'the bunker.' (Pauses) Having been in a position to walk, touch, feel, hold, photograph, observe a great majority of the bodies at Waco, I am left with an overall disturbing and a haunting opinion that many of the people in the residence were homicide victims."⁴

Retired ATF Arson Specialist Rick Sherrow offers his expertise:

"Survivors who exited the south side of the building had to walk through an area contaminated by fuel of a large tank spilled by the government tank operation. The thing that really concerns me is why the building was so totally destroyed afterwards. After the fire was out. There was no fire-fighting whatsoever attempted and in the crime scene, and it was a crime scene, was totally, absolutely destroyed and I've seen this happen before."⁵

 

The trial

After six weeks of testimony, 1500 pieces of evidence and most of the 200 federal witnesses called, the verdict was delivered. 18 hours of deliberation over 4 days led the jury to acquit the defendants of the most serious charges; conspiracy to murder and aiding and abetting murder of 4 federal agents who died in the initial raid with 6 Branch Davidians. Of the 13 defendants, 4 were set free, 5 were convicted of voluntary manslaughter and 2 of weapons violations.

Fatta was convicted of possessing a firearm during the commission of a violent crime, namely, conspiracy, and specifically, declared to have conspired to murder federal agents in the pre-sentencing report. Double jeopardy for conspiracy to murder federal agents was addressed by the defense on Fatta's behalf. Defense Atty. Terrence Kirk alluded to US vs. Korea-Ventura stating that prosecution can't argue the issue of charging some of the Branch Davidians as using machine-guns when this wasn't part of the original indictment. Another complication is that Witness for Immunity Kathryn Schroeder "could not be made to say" that she had passed out machine-guns. Other cases were cited and Kirk asserted that the jury must know that gun used in the charges is a machine-gun, which was never made clear.⁶

 

The sentences

Initially, US District Judge Walter Smith Jr. had set aside these convictions, explaining that the jury couldn't find defendants guilty of possessing a firearm while committing a crime if the jury acquitted them of the crime itself. Smith threw out the weapons charge against all seven defendants convicted of it, which prosecutors seemed to accept. Two days later, prosecutors filed a motion asking Smith to restore those convictions citing case law they say supports the jury's original decision. Smith reinstated the charge and followed most sentencing recommendations of the prosecutors. Federal officials applauded the prison terms while human rights activists and followers of Koresh were outraged.

Renos Avraam, 31, a British businessman and musician, Brad Branch, 36, a technician from Texas, Jaime Castillo, 26, a musician from California and Livingstone Fagan, 35, a British social worker with a masters degree in theology and father of two were each given 40 years. Kevin Whitecliff, 34 and Graeme Craddock, 33, an Australian teacher and engineer were sentenced to 20 years while Paul Fatta , 35 was given 15 years and Ruth Riddle, 31, a Canadian citizen, 5 years.

 

Jury reactions

Accused of ignoring the spirit of the jury verdict, forewoman Sarah Bain questioned the law that allowed the judge to sentence the defendants as if they were guilty of conspiring together, even though they were acquitted by the jury of the same charge. Bain said that the guilty verdicts on the weapons charges were a mistake and the Davidians were never intended to serve so many years in prison.

"The federal government was absolutely out of control out there (at Mt. Carmel Center)."

Colonel Jack Zimmerman, author and counsel to Steven Schnieder, a Branch Davidian who died in the fire, declares,

"The way things are supposed to work in this country is that if someone is suspected of a crime, even if it is child abuse, even if it's capital murder, we give them a trial. The jury finds them guilty beyond a reasonable doubt before they go to sentencing. Then a jury or a judge sentences them and an appeals court makes sure the trial was conducted with due process. We don't kill them first like what happened in Waco, April 19th."

 

"Denied without comment."

The day before the anniversary of the fire, April 18, 1997, the Branch Davidians asked the Supreme Court for a review but were "denied without comment." The appeal raised questions on instructing jurors regarding gun charges that they said required conviction of murder as well as the potential use of enhanced sentences such as Fatta's after their acquittals for murder.⁷ The judge chose not to so instruct the jurors. The Court refused to decide the issue of whether a judge or jury should decide if a defendant had an illegal weapon and differing conclusions have come from different circuit courts.

Judge Walter Smith ruled that the Branch Davidians did in fact have automatic weapons based on the FBI labs allegations that there were 48, however, errors have been reported found in FBI lab methods by the Department of Justice's Inspector General Congressional Committees.

In his article, The Legacy of Waco: The Demise of ATF and Justice Department Integrity, Jack Zimmerman describes "a totally incompetent decision (to destroy the building) made by desk-bound Washington bureaucrats. I predict none of their heads will fall. The public ought not to accept such an outcome."

 

Our part

Within a day or two of the fire, I was one of the few who happened to hear the retraction of allegations of child abuse against the Branch Davidians. Investigated by child protective services the previous year, they were determined to be unfounded. The documents that authorities had used to based their decisions on were null and void. The assault on April 19th "to save the children" was for nothing.

I struggled over the Branch Davidians. Media-formed images of menacing men and subservient women obedient to the demands of a megalomaniac silenced my conscience for brief periods of time, but it all boils down. Public revelation of agents in charge of the raid lying to their superiors and overall incompetence within the Treasury Department followed the candy-coated House inquiry 9 days after the fire.⁸ Subsequent House and Senate hearings show committee members badgering credible witnesses and further testimonies simply do not equate the proclaimed conclusion by Senator Joe Biden:

"...although mistakes were made, government forces did not do that (cause the fire.) The Branch Davidians burned themselves."

Authorities may have allowed federal agents a search warrant⁹ from an affidavit based on sloppy intelligence and vindictive claims of a former sect member who found alliance with the Cult Awareness Network.¹⁰ Avoiding opportunities for peaceful encounters with Koresh allowed for the over-zealous raid on 135 people under the guise of delivering the missing search warrant.¹¹ Casualties were immediate on both sides and a 51-day siege ensued,¹² including sensationalist press to demonize people whose home had been violently invaded and guide our mental images choosing such words as "compound," "fortress" and "sniper tower," as opposed to portraying the structures for what they were: a modest building of no particular strength or protection and a water tower.¹³ Of specific interest at one hearing was the decision to use CS gas which was banned for military use in the Chemical Weapons Convention in Paris, January 1993 by more than 100 countries, including the United States, for its devastating affects. Although authorities knew that there were no gas masks inside the building that would fit the children, they allowed canisters of CS gas, likely to explode and ignite fires, hurled into frame structure through holes punched in walls with illegally appropriated military tanks. The resulting torture of the children through the inhalation of the gas and its affects, contorting and freezing them into a seizure-like state, is documented by forensic photography.

The decision-makers abandoned their "save the children" campaign in what's been called a "modern massacre," "the bloodiest event in law enforcement history" and the worst abuse of federal authorities by government forces since 200 American Indians were massacred at Wounded Knee in 1890.

Like the Native Americans, the Davidian children have faded from our memory, as has our interest in the deaths of their parents and grandparents under the watch of the federal government. Results of a portion of a WSJ/NBC poll released in June 1995 showed Americans of the opinion that it is more important to hold hearings on militia groups than on Waco, three to one. A Canadian recently gave me his view of Americans.

"Americans would rather take leave of unpleasantness," he said, "than take action and fight for their communities and rights."

We are a nation that once called our leaders to account for, and then to end, an immoral war. The mantra of the 60's, "Question Authority" seems to have lost its punch. We haven't even questioned our media, whose primary function is to sell papers and air time while entertaining us.

The Branch Davidians and their children have become disposable people. Perhaps we are intolerant of belief systems that are "off center" of our own. We may consider the people of Mt. Carmel Center deviants not worthy of our attention. Is it better to sweep their glaring political incorrectness under the rug with the less-than-saintly David Koresh? Are our individual and cumulative consciences seared?

While former Attorney General Ramsey Clark defends the Branch Davidians as symbolizing "the eternal struggle for the right of humans to pray to their God as they see fit," others breathe a cautious sigh of relief.

"The ATF has recovered quite well as an institution—as long as there aren't too many more anniversaries, too many more discussions about Waco." —Ron Noble, Undersecretary Treasury Department

 

Next time: What about those guns?

 

¹Waco, the Rules of Engagement
²LA Times: Reports Say Raid Riddled with Mistakes
³Siege prompts new media policy, limits on advance notice of action imposed Dallas Morning News
⁴Waco, The Rules of Engagement
⁵Waco, The Rules of Engagement
⁶Jury instructions
⁷Jury instructions
⁸Video: Inside raid HQ from Waco Freedom of Information Act suit
⁹Search warrant and affadavit
¹⁰Cult Awareness Network
¹¹LA Times: Reports Say Raid Riddled with Mistakes
¹²Transcript of Koresh/FBI negotiations
¹³Siege prompts new media policy, limits on advance notice of action imposed Dallas Morning News