E.R. Tausch was a court observer during the Waco trial. This article is a
description of what events he witnessed during the trial.
The Branch Davidian Trial
by Egon Richard Tausch
Nancy Kerrigan never staggered under such a handicap as the surviving Branch
Davidians had to overcome in their murder and conspiracy trial, one year after
the bloody attack, siege, and final assault on their communal home.
At the last, they prevailed. The result was anything but foreordained. The
trial, however, seemed to be over before it started. In a virtually
unprecedented move, U.S. District Judge Walter Smith decided to choose an
initial jury panel of 84, which he personally selected out of an original "jury
wheel" of 300, basing his selections entirely on answers supplied by the
potential jurors to a lengthy questionnaire concerning their attitudes toward
gun control, religion, government, and federal agencies.
Judge Smith overruled separate trials for several defendants, increasing the
chance of conflicting, and therefore ineffectual, defenses.
Almost half of the subpoenas for witnesses requested by the defense were refused
by the court, some on the flimsiest grounds or no grounds at all.
Finally, throughout the evidentiary portion of the trial, the court refused to
permit any direct or indirect hint of the issue of self-defense on the
Davidians' part -- neither in cross- examination of prosecution witnesses, nor
in testimony or other evidence put on by the defense.
The judge regularly sustained prosecution objections whenever defense questions
could be interpreted as leading toward governmental misconduct.
This broad prohibition ruled out issues about the sufficiency of the notorious
affidavit "supporting" the ATF warrants; the legality of the warrants
themselves; the requirements for service and execution of a warrant; the use of
the words "assault" or "attack" in reference to ATF actions;
discussion of the Davidians killed by the ATF agents; or any use of the Treasury
or FBI reports.
It also made putting any of the defendants themselves on the witness stand a
futile and dangerous exercise. The only questions they could have been asked,
after giving up their right to silence, hostile ones.
That appeared to leave only two possible defenses: The four dead ATF agents were
actually not killed by anyone but died of natural causes, or the Davidians
weren't there at the time.
For that matter, the latter defense wouldn't have been much good, either; the
second-most serious charge was "conspiracy to commit murder," which
charge didn't require the defendants' presence at Mt. Carmel. Nor did the lesser
charges. In fact, four of the eleven defendants were elsewhere, during the
bloody battle in which six Davidians and four ATF agents died.
All of these matters were decided, as legal issues routinely are, outside the
hearing of the jury.
The defense did win a few. Prosecution witnesses avoided using the prejudicial
words "cult" and "compound" -- the latter a
military-sounding term never used by the inhabitants of Mt. Carmel -- for
almost half of the trial.
As for, the "sniper tower," or "watch tower," at Mt. Carmel,
which the ATF and FBI had repeatedly labeled and pointed out to America's
television viewers, the court instructed that it be identified as the only thing
it had ever been used for: a huge water-storage tank on which the 100-200
inhabitants relied for drinking and sanitation.
And the defense did have one major legal break which no court or ruling could
seem to get around: The presumption of innocence. Therefore the Government had
the burden of putting on at least some evidence. This disadvantage proved to be
the prosecution's undoing.
Emotional or inattentive jurors certainly observed an impressive government
case: weapons parts found in the ashes of the burned Davidian center; clean-cut,
articulate agents describing their "attempt to execute a warrant" and
grieving over fallen comrades; one ATF medic's courage; a horrific account of a
grievously wounded agent who lay conscious but unattended for two hours. Kathy
Schroeder's chilling description of David Koresh's on-again-off-again ideas for
a mass suicide after the battle. The early testimony by Texas Rangers about the
weapons and weapons-parts found in the ashes of Mt. Carmel apparently had a
strong effect on the out-of-state media. The prosecutors obligingly posted
pre-printed lists all over the press room, to horrified comments by Eastern
reporters who weren't sure of the difference between a bolt-action .22 rifle and
a fully-automatic AK-47, but were sure they were all utterly evil and must be
illegal, and what more would jurors need to know for guilty verdicts on all
The U. S. Attorneys, however, had to take a Texas jury into account, and soon
gave up trying for shock value in the courtroom, especially since the Ranger
witnesses were visibly uncomfortable testifying as involuntary federal "deputies."
Of course, due to the pre-trial rules, the Rangers were no more free to be
questioned about ATF actions than they had been free to investigate them
independently at the time. They were deputized by the feds, probably illegally,
at the very beginning of their investigation during the siege of Mt. Carmel.
Unfortunately for the prosecution, their case could not be presented without
multitudes of still and videotaped scenes of the February 28, 1993, ATF approach
and massive assault on Mt. Carmel.
For no readily discernable reason, the lengthy last part of the prosecution's
case concerned the final, fiery attack by the FBI on April 19. This was
irrelevant to the murder charges and could not only have the most tenuous
connection with the conspiracy or other charges. It could have swayed jury
sympathy in either direction.
Despite many attempts, the prosecution failed to establish conclusively which
side started the fire -- Davidians or FBI tanks smashing through kerosene lamps,
candles, and large quantities of fuel during a windstorm.
The jury listened to edited parts of a tape-recording from hidden microphones
inside Mt. Carmel during the final attack and fire of April 19. These consisted
of sounds of static during which one could faintly hear a voice or saying "fire."
A government expert testified that through electronic enhancement, he
reconstructed some clearly incriminating comments, even if the jury couldn't
hear them. There was no mention of when, how, by whom, or under what authority
the Davidians' home had been so extensively bugged before the raid.
The prosecution failed also to establish which side fired its weapons first
during the ATF raid on February 28. Indeed, it seemed to be afraid of the issue.
All of Mt. Carmel's windows were shut at the moment of the ATF's arrival, and
none of the people glimpsed inside or outside was visibly armed.
The position that the ATF was "attempting to serve a warrant" fell
apart when, during cross-examination, agent after agent denied that he had a
warrant, or knew of anyone who had one, or ever announced one, or heard anyone
else announce one, or ever had any orders to do anything but shoot at windows,
walls, and people, scale ladders and smash into rooms, throw concussion
grenades, or other warlike activities. The prosecution did not choose to call
the ATF leaders, on the stand, and the defense was prohibited from doing so.
Only Roland Ballesteros, the first agent to testify, claimed he shouted out that
the raiders were ATF and that they had a warrant. He stated he made this
announcement before any shooting started, while he ran, weapon pointed, toward
David Koresh, who was standing unarmed at the front doors with two other unarmed
Davidians behind him. "He responded, 'What's going on?'" Ballesteros
then added that Koresh closed the doors with a "smirk" and fired at
him through them. Since this was at the time of Koresh's wounding, Ballesteros
was asked how he knew it was Koresh firing out, not agents firing in. The Agent
replied that he could see the "wood or plywood" chips flying away from
the bullet-holes. [NOTE: Koresh said he was wounded later, not at this point.
In cross examination, the defense attorney mildly pointed out that the doors
were made entirely of thin metal. The agent reluctantly admitted this. (The
bullet-scarred door in question had mysteriously disappeared after the initial
investigation.) Almost as an afterthought, the defense elicited agent
Ballesteros' admission that in the several previous official statements he had
made since that bloody day he had confessed to lying in a shallow ditch at the
time. Never before had he mentioned shouting anything or seeing anything, other
than a dog killed at the edge of the ditch, in the first shots he heard, which
came from the ATF "dog team." The prosecutors promptly got Ballesteros
off the stand and replaced him with more credible agents.)
Most telling was the ATF agents' descriptions, under cross-examination, of their
intensive training for the raid, coached by Green Berets at Fort Hood. They
admitted that they staged "about 15 or 20" practice raids on a mock
Mt. Carmel, and that in each raid the orders and outcome were the same: a
military assault from several directions at once, constant firing, scaling of
ladders, smashing of windows with crowbars, throwing concussion grenades in
them, then "securing" the rooms by killing or capturing the
None of the practice-sessions involved the required policy of "Knock and
Neither then nor in the raid itself did any agent witness ever learn who was to
have or announce warrants, or approach the front doors, or who or how many
Davidians were to be arrested, or what items were to be searched for. These
details did not seem of much interest to them, and they were unprepared for such
questions. As one team-leader, Agent Kenny King, testified, his team's orders
were to scale his ladder and smash into the building, and his orders had never
called for any announcement of identity or purpose, or allowed any discretion or
change, whatever happened elsewhere -- "even if the Davidians had all
greeted the agents outside, with their hands up and a big sign reading, 'Welcome
In order to implicate three defendants in having said they shot agents, the
prosecutors put on the videotaped deposition of Davidian Marjorie Thomas, who
had been given immunity from prosecution. She nevertheless repeatedly told U.S.
Attorney Ray Jahn that there was no conspiracy to kill agents. At Jahn's
question as to what would have happened had the agents just come to the door and
walked in, she said, "We wouldn't do anything." This seems to have
been a case of the prosecutor's asking his own witness a few too many questions.
When Kathy Schroeder took the stand, as the government's long anticipated "star
witness," her obvious continued affection for the defendants, and her
statement that "our conspiracy was only to defend ourselves when attacked"
did little to help the prosecution's case.
After the prosecution rested and the jury was sent out, the defense again
requested that it be permitted to try to establish self-defense.
The defendant's motion was again denied.
This left defense counsel with few witnesses and little evidence of their own.
The defense first put on part of a tape of the 911 phone call made by Davidian
Wayne Martin during the first few minutes of the ATF attack. He frantically
reported that ATF agents were shooting at men, women, and children, and pleaded,
"Call it off!" Several other desperate 911 calls were placed from Mt.
Carmel, but Judge Smith ruled that "90 per cent" of the taped pleas
were "irrelevant" and inadmissible.
Retired Colonel and Vietnam veteran Jack Zimmerman, now a lawyer, had been at
Mt. Carmel for a time during the siege, to represent some of the Davidians, and
had entered and examined the building on two occasions. He testified as to
bullet-holes in the highest part of the roof, coming into the building. He added
that they could not have been fired from the water tower or from anywhere but
the sky, contrary to the testimony of helicopter pilots who had, during the
government's case, denied any firing at all (but could not satisfactorily
explain why the helicopters were each carrying "eight or ten" ATF
agents each throughout their mission over Mt. Carmel).
Col. Zimmerman also explained to the jury that it was not "teargas"
which was used in the FBI attack, but CS gas, a mucous, tissue, and lung agent
with far more serious an lasting effects, and outlawed for use in combat.
The prosecution attempted to portray Col. Zimmerman as an ardent admirer of the
Davidians' religious beliefs, which he denied. After repeated forays, the
prosecutor demanded to know what his religion was. Zimmerman answered that he
was Jewish, and that his spoken defense of the Davidians' faith was at the
invitation of his synagogue.
Col. Zimmerman's testimony might have caused the jurors to notice, if they
hadn't before, the wide diversity among the defendants. Anglo-Saxon males,
blacks, Mexican-Americans, an Italian American, British subjects, Australian
citizens, a woman, elderly people and young people. Mt. Carmel was apparently a
multiculturalist's dream, with all races, nationalities, and ages living in
harmony. Of course, they were religious and owned guns, which made them a PC
nightmare, instead. Although the press had listened quietly and almost
reverentially to the prosecution's witnesses, the defense witnesses were drowned
out by boos, hoots, and derisive laughter. The large room took on the appearance
of an ill-natured high school pep-rally, with applause reserved for the judge
whenever he sustained a prosecutor's objection.
There were, to be sure, a few reporters whose sympathies were with the defense.
Rod Norberg, representing an obscure constitutionalist publication, was quietly
ordered out of the courtroom, handcuffed in the hall, and taken to jail on a
traffic warrant for a ticket which was on appeal, the only instance of such a
warrant provoking a manhunt in San Antonio. A local lady from the Libertarian
Party was removed from the courtroom and ordered never to return due to alleged
"sleepiness." Apparently strict coat-and-tie rules among spectators
did not keep out all the riff-raff.
Then the defense attorneys rested after only a day and a half of presenting
their case. Both sides closed.
The major surprise was that in his 60-page charge to the jury Judge Smith
finally permitted the defendants to argue self- defense, now that it was too
late to present witnesses or evidence, or to cross-examine or re-call
prosecution witnesses. The consensus of the rumor mill was that the judge was,
at the tail-end of the trial, persuaded of the defendants' innocence. U.S.
Attorney Bill Johnston spent his two hours in what could most charitably be
described as avoiding mention of any evidence whatsoever. He alternated between
calling the defendants and all Davidians "cowards" and "snivelling
cowards," even when describing deeds that, if done by people of whom he
approved, would have been recognized at once as heroic.
Johnston's greatest fury was reserved for the defense attorneys, some of whom
were court-appointed, none of whom had been paid, and some of whom were
supporting defendants and their families by supplying their clothing and upkeep
-- including housing them in their own homes -- as "hyenas."
Perhaps this last epithet was his worst mistake, because the defense attorneys,
each in turn, came forward with some of the angriest (yet well-reasoned and
spoken) closing arguments on record. Most referred to the U.S. attorney's "hyenas"
remark, responding in a variations of "We have to consider the source."
Rocket Rosen patiently recounted each witness and piece of evidence, on each
charge, concluding that none proved the charges, and most proved self-defense
from a government agency dangerously out of control. "A conspiracy to
defend oneself from unlawful attack is not a criminal conspiracy."
Mike DeGuerin gave a rousing patriotic speech centered on the idea that this
trial was about "respect," and whether the federal government still
had any for individual rights, the American people, or the U.S. Constitution.
Dan Cogdell gave the most memorable closing arguments, with his Amarillo English
and down-home phrases. Were the Davidians "cowards"? Looking down the
barrel of a hostile tank "would scare the gorilla snot" out of anyone.
He reminded the jury that the Davidians were attacked in their home and their
church, not a "compound."
He also contrasted the methods of the federal ATF and the Texas Rangers with the
famed remark by one of the latter when he arrived alone to quell a massive
disturbance: "One riot, one Ranger".
As his finale, Cogdell listed each of the euphemisms used by the prosecution.
They were not ATF concussion grenades, but "diversionary devices", not
tank-tracks but "ground disturbances;" not ATF snipers, but "forward
observers;" not tanks but "armored mobile units;" not an attack,
but a "dynamic entry;" not the bloodiest assault on American civilians
in history, but the "execution of a warrant."
The prosecution's final two-hour close would have been an anticlimax but for a
disastrous mistake by U.S. Attorney Ray Jahn, when, trying again to lessen the
importance to the jury of the concussion grenades, he implied that the defense
witness who had her arm blown off by one was faking the seriousness of the
injury, adding that she could still hold the microphone in the courtroom. From
that point the jury refused to look in his direction.
After only 18 hours of deliberations (including the several hours necessary to
study the judge's charge to the jury), following a six-week trial, the jury came
back with "not guilty" verdicts for all 11 defendants on the murder
and conspiracy to murder charges, convictions of five defendants for voluntary
manslaughter, a few convictions for using firearms in the commission of a
violent crime (which convictions were dismissed by the judge because those
defendants had not been found guilty of any violent crimes) and seven weapons
One juror stated to the San Antonio Express-News, "When we heard all that
testimony, there was no way we could find them guilty of murder." He added
that "We felt provocation was pretty evident. When the firestorm started,
everybody was trying to cover their behinds...I thought two agents in plain
clothes should have gone in there and knocked on the door (to issue warrants)".
Long after the verdict, the national media were still referring to the
government's "bungled attempt to serve a warrant." If anything at all
was proven during this trial, and proven beyond a reasonable or unreasonable
doubt, it is that there was no attempt to serve a warrant. There was a
thoroughly planned and rehearsed military assault and campaign against a group
of civilians, some of whom were suspected of secretly possessing illegal weapons
parts, which campaign was efficient enough to rack up a kill-ratio which would
be envied by any army in history.
Did the government's trial fail because of incompetent prosecutors, brilliant
defense attorneys, legal technicalities, strange Texas jurors, insufficient
investigation, bad luck? Or because of lack of merit in the charges? Probably
the latter. But a major problem evident to the jurors and spectators throughout
the prosecutors' case was the shocking arrogance of the federal government and
its contempt for the American people. This contempt was clear to many citizens
during the events a year ago and the blatant lying at the time and since; it was
clear in the surprise the government felt at civilian self-defense or resistance
of any sort; it was clear in the prosecutors' choices of defendants and charges;
it was clear in the conduct of the trial; it was clear in the prosecutors'
belief that the jury would swallow anything and was incapable of coherent,
logical thought. And it is clearer, after the trial, in the vindictive actions
and remarks of outraged federal officials.
The site of Mt. Carmel near Waco is quickly becoming a major tourist attraction.
Russian engineer Ilias Abdonlline told the Express-News reporter in Waco that he
had come directly from Moscow just to see the site. "Everyone in the world
was amazed when this thing happened, but especially when it happened in America,"
he said. "We have a terrible history with Stalin in Russia, and I have a
memory with that. When I saw this on television, I was shocked. How could it
happen in the U.S.? The U.S. is a democracy."
Was the jury verdict at the Davidian trial a victory for freedom from a
centralized and oppressive police power, for freedom of religion and the right
to keep and bear arms, for the Constitution of the United States?
One would think so from the spontaneous San Antonio victory celebrations and
parties, attended not just by Constitutionalists and Davidian supporters but by
throngs of locals. The minority who had not seemed convinced of the wrongfulness
of the Waco Massacre before, now claimed to have been champions of freedom all
along. Bumper-stickers of the Texas flag with SECEDE! written on them were
circulated in at least one party.
For those who suffered through a terrifying attack, an oppressive siege, a
raging fire, and the sight of their children, spouses, and friends dying,
followed by a year in jail, then to find themselves tried in court facing
life-imprisonment, and now facing imprisonment for lesser offenses, perhaps the
victory is not so satisfying.
Similarly for those now-acquitted foreign defendants whom the spite of
disappointed prosecutors is chasing through the labyrinths of the INS in the
hope of preventing voluntary return to their homelands and forcing deportation
Also those citizens who are currently being hunted down for attempting to inform
the jury of their rights and obligations. For those of us who know that there
will be no indictment or prosecution of the ATF leaders and Janet Reno, who
together violated the Constitution they were sworn to uphold, and cost almost a
hundred people their lives, there is little cause to hope, "Never again!"