THE BRANCH DAVIDIAN TRIAL JURY:
AN INTERVIEW WITH SARAH BAIN, FOREWOMAN
By Benedict D. LaRosa
June 24, 1994, San Antonio, Texas
Q: When and where did you find out about a juror's right to judge both law and fact and to reach a verdict according to conscience?
A: When I picked up information at the FIJA booth at Mt. Carmel on April 18th of this year during the Day of Information (event).
Q: Were you aware of attempts to get this information to the jury before and during the trial?
Q: How were you made aware?
A: I received several mailings and turned them over to the judge as he requested us do. I wasn't aware that they were from FIJA.
Q: Did all the jurors receive a packet?
A: Many did. I don't know how many of the 18 jurors (12 primary and 6 alternate), though. Most of us received several mailings.
Q: Did any of the jurors talk about the power of the jury?
Q: After the trial?
A: I haven't seen any of the jurors since the trial. I have only sent them information concerning events coming up such as the Day of Information at Mt. Carmel and the sentencing. We haven't discussed any of the information. I doubt if anyone has received further information since the trial.
Q: Did any of the jurors read the FIJA information sent to them?
A: I'm not sure. I suspect some did. Curiosity gets the better of some of us. There was no mention that we don't have to do this, or we can do that.
Q: Would you have done anything differently had you known that you couldn't correctly convict on count #3 having acquitted on count #1?
Q: Was that the opinion of the other jurors?
A: Of the majority of the jurors. At least nine of the 12 who deliberated would not have found the defendants guilty of count #3 if they had realized that it had to be tied to count #1. How we might have persuaded the other three, I don't know. We might have ended up with a hung jury on those two counts.
Q: If you had known the extent of the sentences, would you have voted differently?
A: Definitely. One juror told me that she would not have voted guilty on count #3 if she had known that there was a five year term associated with it.
Q: Would you have voted differently had you read the FIJA material prior to or during the trial, or known the full range of juror's powers?
A: I don't know. I can't personally say I would have done anything differently. I can't speak for the other jurors since we never discussed FIJA material.
Q: In hindsight, knowing what you know now?
A: I'm not sure, for one reason only. I need substantiation of the accuracy of the information that FIJA is passing out. I have seen quotes from the founding fathers concerning some of the material. Based on those quotes Jefferson, Douglas, etc. it certainly seems that what FIJA is saying is accurate. Where that fits in with our legal system today, I don't know. But I'd like to see further substantiation.
Q: FIJA considers that conscience is more powerful than the law itself when it comes to delivering justice. Does that make sense?
A: I'm still unsure about that. That would seem to lead to anarchy. If we go too far with personal opinion and conscience everyone has their own and if we are not governed by something, which I guess has to be law, then it would seem we would be going in 12 different directions. So, I'm a little concerned about that aspect.
Q: What did the judge say about FIJA and its mailing to the jurors?
A: I don't remember the name FIJA being used. The judge used the term anti-government propaganda in describing the contents of the mailings, some of which were not from FIJA.
Q: Did you have any sense that the judge had read the FIJA material and was referring to it, at least in part, as anti-government propaganda?
A: It seemed to be just a general statement concerning all the mailings. He didn't make any distinction.
Q: In your opinion, why would the judge want to keep jurors from learning about their powers?
A: I'm losing respect for the judge rapidly. I'm not sure he intended to separate us from FIJA information. Rather, I think he didn't want us to read and decide for ourselves what was appropriate for fear of exposing us to biased material. So, he just asked us to turn in everything. I can understand his point.
Q: Did you feel he was keeping from you the full extent of a juror's powers?
A: In hindsight, I assume so. After he read the material, he could have returned what was not prejudicial to the case. Since he did not, it appears that he was keeping that kind of information from us.
Q: Did you and other jurors know that evidence favorable to the defense was being withheld from you, such as the other half of the door at Mt. Carmel, portions from the 911 tape, the government videos, etc. ?
A: I am now finding out that there was a whole lot of things withheld. At the time, we had no idea that evidence was being withheld. We were vaguely aware that motions had been made by both sides to submit and suppress evidence. But we didn't know who made what motions or what evidence was suppressed.
Q: Did you ever consider asking the judge about the missing evidence?
A: No. I am becoming aware now of numerous items that we were not permitted to see. I would've loved to have been a fly on the wall during those times when we were absent from the courtroom. Those sitting there the media and spectators probably had more insight than we did as jurors.
Q: Did the prosecution seem inept?
A: They didn't seem inept at all. They had a lot of groundwork to lay before presenting their case. I think they went about it as best they could. In hindsight, I don't appreciate the methods they used to make their points.
Q: Did you sense the judge was losing patience with the prosecutors?
A: No. I didn't pay much attention to the judge. I was busy listening to witnesses and taking notes. The few times I looked at the judge, he seemed sound asleep, leaning back in his chair, looking very comfortable, usually with his eyes closed. But anytime there was a point of law or an objection raised, he immediately answered. Quite obviously, he was attuned to the proceedings. He just didn't seem to be. I don't remember him losing patience with either side.
Q: Did you get the impression the prosecution was seeking justice, revenge, or something else?
A: I think they were seeking justification for what happened, searching long and hard to find it.
Q: Were you surprised at the prosecution's attitude?
A: Yes. There were times when I was impressed with the cooperation the prosecution gave the defense attorneys. The prosecution had massive amounts of equipment with which to present evidence. They willingly shared these things with the defense. That was a nice thing for them to do. But something that will forever stick in my mind is the name-calling (by the prosecution) during the closing arguments. It was totally uncalled for.
Q: Did that influence your verdict?
A: It didn't help. I can't say it influenced the verdict. By that time, all the evidence was in.
Q: Why did the prosecution resort to that tactic?
A: They were probably frustrated at that point. They were worried about getting their point about the conspiracy across.
Q: Why do you think Judge Smith reversed himself to allow the inconsistent verdict to stand?
A: After reading why it was done and speaking with some friends who are attorneys, apparently an inconsistent verdict by a jury is still a valid verdict . Once the prosecution presented the motion to reinstate the verdict to the judge, he had no choice but to reinstate it.
Q: So you don't blame the judge for reinstating the verdict?
A: I don't. I'm sorry it was done, though. I'm very sorry the verdict could not have been interpreted the way the jury meant it as a weapons charge, not a weapons charge during the commission of a conspiracy.
Q: Was the charge clear to the jury?
A: I don't have the intestinal fortitude to go back and read the 68 page charge to the jury for fear I may see that it was clear. I suspect that it was clear. At the same time, we received the verdict form which had a very, very, brief synopsis of each count and a list of defendants to be considered on that count. On the verdict form for count #3, it was not clear that it was tied to the conspiracy. In looking only at the verdict form, we knew exactly what the question was. So we relied a lot on that, and less on the judge's instructions.
Q: Who put together the verdict form?
A: I'm not sure. I know that the instructions from the court were a joint effort of the prosecution, defense, and the judge. But I don't know whether the verdict form was a joint effort or not.
Q: Do you know why the judge was so harsh in sentencing the defendants?
A: No. There are some things that concern me about the sentences. I expressed these concerns in a letter to the judge. One, that we were never asked to differentiate between who simply carried and who used a weapon. There has to be a major distinction there. We were not asked to determine if any of the 8 defendants on that count had an enhanced weapon. We were not asked to consider whether anyone carried or used automatic weapons. Yet, when it came to sentencing, because there were automatic weapons found on the premises, the judge tied the defendants to those weapons.
Q: Were you presented evidence that the Davidians had automatic weapons or are you taking the word of the prosecutors that they were found there?
A: We were not gun experts. The prosecution tried to point out little things that made it fire automatically. We had to take their word for it.
Q: Were you convinced that there were automatic weapons in the hands of the Davidians?
A: We were convinced that there were automatic weapons on the premises. Whether or not they were taken out of the gun room was never determined.
Q: Did you consider whether they belonged to the Branch Davidians?
A: By virtue of the fact that they were on the premises, we assume they belong to them.
Q: Did you consider that the weapons might have been planted there by government agents after the fire?
A: We never considered that the evidence could have been tampered with.
Q: Even after the testimony of the Texas Rangers?
A: We thought that testimony might have been manipulated, but never the physical evidence.
Q: Has your opinion changed since the trial?
A: It certainly has. I have spoken to many individuals who, although I have not seen their evidence, claim they have videos showing the placement of weapons and other items on the grounds (at Mt. Carmel) following the fire when government agents went in to supposedly gather evidence.
Q: Did it disturb you that Texas Rangers had been deputized as federal agents, and that they did not use their own resources in their investigation of the crime scene, but instead cooperated with the government agents involved with the incident?
A: No. That the Texas Rangers were cooperating with the (federal) government was no surprise. I consider that all law enforcement is ultimately under the government anyway.
Q: Looking back on it now, does it look suspicious?
A: I'm not sure. They (Texas Rangers) were the furthest from Washington. Interestingly, all the things I'm hearing now cast no aspersions on the Texas Rangers. The problem still seems to be with the ATF, their superiors, and the superiors of the FBI. I hear nothing disparaging about the Texas Rangers.
Q: Was there any indication that the Branch Davidians had used automatic weapons during the firefight of February 28, 1993?
A: No. Numerous ATF officers said they heard such weapons, but hearing them doesn't tell you where the sounds are coming from.
Q: Did you consider that the Davidians acted in self-defense?
A: Because of an element of self-defense, some were found guilty of voluntary manslaughter rather than murder. In considering the voluntary manslaughter charge, the Davidians had to have acted with adequate provocation. That puts a lot of blame on the government. This was one of the guidelines we were given in determining voluntary manslaughter an individual was unlawfully killed, but the perpetrator was adequately provoked in doing that killing. In making that decision, we thought we were placing some of the blame on the government.
Q: When some of the ATF agents testified that they neither possessed nor had seen a search warrant, that they were instructed to break in at their respective point with their assault teams regardless of what happened at the front door, how did that strike you?
A: It struck me as strange. However, being familiar with bureaucratic organizations, I know that those in the field often act on command without seeing the paperwork that supports those commands. I honestly believe that the majority of ATF agents were just out there to do their job the best way they knew how. The fault lies not with them but with their superiors.
Q: This is your opinion in spite of the testimony given that regardless of what happened at the front door if the Davidians had invited the agents in had they asked, as one Davidian testified the other agents would have still broken in?
A: To my recollection, there was no testimony to the effect that if they handcuffed Koresh at the front door, someone would blow a whistle to stop everyone else from doing what they were doing and retreat to the cattle trucks. Of course, since it didn't happen that way, there was no thought given to what might have been.
Q: Did you question the validity of the search warrant?
A: We never saw the affidavit that accompanied the search warrant. We only saw the front page that gave the legal description of the property to be searched, whom it was for, the date it was issued, when it expired. It is interesting that it would have remained sealed for the trial.
Q: Did you ask to see the affidavit?
A: No. Among the tons of paper in the jury room we found the search warrant, but not the affidavit.
Q: You didn't think to ask for it?
A: No. We had two search warrants. I can't remember what the second one was for. But the second one had an affidavit attached to it. It might have been for the Mag Bag. It had an affidavit and a cover sheet attached to it. The other one had just the cover sheet. We asked ourselves where the rest of it was. If I had known we could ask for missing evidence, I would've done so then.
Q: This goes back to not knowing the full powers of the jury.
A: Yes. This is one aspect of the information I received from FIJA that we have a right to ask for more evidence than what was presented in court. We though we could only base our decision on what we were allowed to see or hear in court. As jurors, we had no right to ask questions.
Q: Did you assume the search warrant was valid?
Q: Did it seem that there was an extraordinary amount of force involved in serving two warrants: an arrest warrant for Koresh and a search warrant for his quarters?
A: The search warrant incorporated the entire 77 acres including all the grounds and buildings. We definitely had difficulty with the method used. If Koresh was their target, why did they come in with such force and make dynamic entries when they could watch for another two weeks and arrest him off the premises? And then come in with a search warrant when he had been arrested?
Q: Was that ever answered to your satisfaction?
Q: Did you determine in your own mind who fired the first shots?
A: No. We talked about it and thought that the first shots were not shots at all, but the fire extinguishers used on the dogs, and someone seeing the puffs of smoke interpreted that firing had started. The first gunshot came following that. But, from what side, I don't know.
Q: Did it surprise you then, when the judge, in sentencing five of the Davidians to 40 years, accused them of having fired the first shots?
A: Yes. There were several things he said during the sentencing that disturbed me.
Q: Has your attitude towards the Fully Informed Jury Association and its goals changed since the trial?
A: During the trial, I had no idea who they were. The title sounded fine. I had no idea what type of information they were trying to disseminate.
Q: Did you see them as a partisan or non-partisan group?
A: I felt it was a partisan group. I now believe that it is a non-partisan group.
Q: Is your attitude towards this group more favorable?
Q: Did sentencing have anything to do with your attitude towards FIJA?
A: It validated some of the things they said.
Q: Do you have any advice for future jurors?
A: Don't rely on the verdict charge form alone. Be sure you understand the charges. If not, ask the judge for clarification. If the evidence invokes questions, ask for more information.
Q: Would you recommend that future jurors examine the FIJA material?
A: If at all possible, prior to being impaneled. I'm concerned that if it becomes known by any court, especially a federal court (that a perspective juror has read FIJA material), they will be dismissed. I wish that FIJA would begin a public relations campaign using radio and television to educate people about juror's rights. FIJA, and what it stands for, must be more publicly known.
Q: Were you aware that Judge Smith would not allow evidence of self defense on the part of the defendants during the trial?
Q: What's your reaction?
A: It makes the hair on the back of my neck stand up.
Q: Do you feel the jury was manipulated by some party to the trial?
A: Not at the time. Now, however, I feel we were improperly used. If the judge was not going to accept the total negation of count #1 the conspiracy charge then I don't know what we were doing there.
Q: Did you feel you were meant to act as a rubber stamp to the government?
A: No. During our deliberations, we had to consider whether the evidence (proved the prosecution's contention) beyond a reasonable doubt. Apparently, when it come to sentencing, the judge considers only the preponderance of the evidence. That is a discrepancy that needs to be corrected in our legal system. If what the judge considers is important enough for sentencing, then it ought to be part of the jury's consideration. If he can lower the requirements to just a preponderance of the evidence, that isn't correct. He should be held to the same standard.
Q: The judge claimed that his hands were tied by sentencing guidelines. Do you believe him?
A: To a degree. His hands were tied in having to follow the guidelines, but they were not tied in taking them to the maximum. There was plenty of reasonable doubt, for instance, that the defendants had automatic weapons on the day in question. Now, there was testimony from Kathryn Schroeder that, following the raid, she distributed some automatic weapons, but the automatic weapons went to those who did not already have guns. That was following the deaths of four agents.
Q: Why, then, the higher sentences? Did the judge simply ignore the jury's verdict?
Q: Did he fail to discern the intent of the verdict or did he ignore it?
A: He ignored the intent. By the time he delivered the sentences in open court, I know that he had read my letter and knew our intent.
Q: Did the judge respond to your letter?
A: No. I didn't expect him to.
Q: Was it a fair and impartial trial?
A: Hindsight tells me it was not. At the time, I felt that it was. There were a couple of alternate jurors who made negative comments about the judge.
Q: Did they see something the other jurors didn't?
A: They saw things I didn't see.
Q: At the time, did you consider their observations valid?
A: No. We were too busy paying attention to the testimony to be concerned with the judge.
Q: What were the comments?
A: He (the judge) will not uphold any of the defense's objections, but upholds all of the prosecution's objections. Since I didn't know the basis for the objections, I wasn't too concerned. I don't know the mechanics of the law. It was beyond my knowledge to determine that the judge was acting unfairly. He was the judge, he knows his business, he should know what it admissible. I gave him the benefit of the doubt.
Q: Any other comments?
A: On the manslaughter charge, it cannot be too strongly stated that the defendants acted after adequate provocation, and that definitely puts some of the blame on the government. I want to see the government accept the blame and be made to answer for it. I don't know why dynamic entries had to be made. Many people testified that Koresh was off the grounds at an auto mechanic's shop, at all kinds of simple places where he could have been easily arrested without 75 armed ATF officers, even if he had resisted.
Q: Do you know why it was done this way?
A: This is why we kept saying that the planners had to be the ones to answer for the deaths of those agents.
Q: Were you disappointed that many of these higher government officials did not testify?
Q: Were you curious as to why they didn't testify?
Q: Are you aware that they were among the people the defense wanted to come but were not allowed to subpoena?
A: No. I know that when we were impaneled, they read us a list of proposed witnesses to determine if anyone know any of them. The prosecution's list was very long. The defense's list was much shorter and included either Janet Reno or William Sessions, or both. When the defense ended up resting its case after calling so few witnesses, I was quite surprised. I knew that the list was considerably longer. I thought it was simply a defense strategy.
Q: Whose testimony was most damaging to the prosecution?
A: If I may turn that question around as to whose testimony was most beneficial to the defense, I would say Kathryn Schroeder, Victorine Hollingsworth's and Ms. (Marjorie) Thomas's the three Davidians who testified for the prosecution. From the stand point of conspiracy and murder, it was obvious from their testimony that there had been no plan to murder federal agents.
Q: Were the jurors aware of a similar incident six months earlier in Idaho involving the Weaver family and a guest?
A: We never spoke of it. I imagine if anyone had said, "Gee this sounds like that Weaver case," several of us would have responded, "Yeah, I don't know the ins and outs of that, but it sure sounds like the ATF going overboard again."
The above is copied with permission from the Summer 1994 issue of the
FIJActivist, P.O. Box 59, Helmville, MT 59843.
SARAH BAIN'S COMMENTS 4/19/98 AT WACO
Samuel Adams, on April 22, 1998, posted an admittedly not quite perfect transcript of jury forewoman Sarah Bain's speech at the 4/19/98 memorial service at Mount Carmel. Below are some excerpts from that:
I was the... had the honor of being the foreperson of the trial...(inaudible)....That was needless to say, an extremely powerful moment, days, weeks, for me. I still don't have the trial itself out of my system. There has been so much that has transpired since that trial. Evidence that has been made public that was not available at the trial. I have had my views altered as a result of that information that has not been made public.
But going back strictly to the forty days at the trial I would like to give you some of the thoughts of the jury at that time. As we were deliberating, one of the ....one of the.... bits of information that was vitally important to us.... was whether or not the helicopters that were notoriously circling overhead, did any firing. In the course of the trial we had testimony from pilots, we had testimony from some of those that were onboard the helicopters. We had even military personnel who said that, (all of the same?) , absolutely not...there were no guns on those helicopters. We did have testimony at the trial, specifically from Jack Zimmerman, who was an attorney from Houston that came in during the 51 day, uh, siege, as a representative of Mr. Schneider. He testified that when he came into the Mount Carmel Center that it was very obvious that there were bullet holes that came through the roof. And he spent a great detail explaining how you could recognize an incoming shell. Sadly we had his testimony, versus the testimony of many others. Utilizing more or less what was the preponderance of the evidence, it was our opinion at the time, that apparently the helicopters had not done any firing. Most of you are aware now that there is much evidence that supports the truth, that the helicopters did fire. This is important, vitally important, to help establish whether or not the Branch Davidians that were (inaudible) at the time of the raid, at Mount Carmel, whether or not they were in a defensive mode or as the government would lead us to believe that they were on the offensive. (Regarding recording of ATF agent admitting agents had guns in helicopters and might have been firing) ... When I first heard that section of the negotiation tapes which was here last year in Mr. McNulty's video, uh, documentary, Waco: The Rules of Engagement. When I first heard that my stomach really churned. As I mentioned that had been one of the real sticky points during our deliberations. (After finding the Davidians guilty) ...
And many of us sat back, those of us who felt rather upset about the fact that we had really felt it necessary to come down with any guilty verdict at all. We sat back and said well, the Branch Davidians had now been held accountable for the deaths of the four ATF agents, we can rest assured that the ATF will have to someday to be made accountable for the deaths of the six Branch Davidians who died on that exact same day, we took some consolation in that. We're still waiting. There in is some of the major frustration, is the fact that their has been no account, on the part of the government. It matters not to me whether there is a trial and every single person is exonerated. I just simply feel that there needs to be a trial, they need to be made to answer for the reasons why they had to conduct the raid, and it needs to be in a public forum, not personnel matters that are handled behind the scenes. And I believe that for the peace of mind of many Americans, that that might help bring a little bit of closure to the incidents that took place on February 28 and April 19 of '93.
Of course in addition to having a trial for the ATF officers and their responsibility for the deaths of six Branch Davidians, there has to be some account made by the FBI for their activities on April the 19th, actually for their activities during the entire 51 days. But specifically for their activities on the 19th... I'm hoping that someone has more leadership ability than I do, has better ideas of the workings of the government and better ideas of the workings of our court systems and can pull something together to see that eventually the accountability is brought to bear. In mentioning that with a gentlemen I met just this morning, he said he just did not see how that would happen. The Indians are still waiting. I think that was not.....(applause)....I think that was not very encouraging. I feel that, this is my fifth year to come out to Mt. Carmel. I'm hoping that it will not be another five years that I still am feeling this burden and this frustration. I'm hoping that there will soon, not later, be this accountability that we're all waiting for. Thank you very cmuch......(applause).....