A former federal prosecutor who played a major role in the government's siege of the Branch Davidians was indicted by a federal grand jury in St. Louis on Wednesday on charges that he obstructed the investigation of special Waco counsel John Danforth.
William W. Johnston, a former U.S. attorney in Waco, Texas, was accused in a five-count indictment of concealing information about the government's use of pyrotechnic tear gas rounds during the siege.
The indictment was issued as Danforth released his final report on Waco. He said he would have preferred releasing the report without prosecuting anyone, but that the charges were too serious to be ignored.
Johnston is accused of hiding his notes about the use of incendiary tear gas rounds from the Justice Department and Congress. He is also accused of later lying about the notes to Danforth's investigators and to the grand jury.
"I couldn't just shrug it off," Danforth said.
The indictment was tinged with irony. Johnston had played a role in the disclosures about the pyrotechnic rounds that led to the appointment of Danforth to investigate Waco. Johnston, while admitting that he hid the notes, said in a prepared statement that he was now being prosecuted because he was a "whistle-blower."
"My actions were foolish, regrettable and wrong, but they were not criminal," Johnston said. "I can't confess to concealing the pyrotechnics when I was the government employee most responsible for disclosing them. And I can't take full blame when there is so much blame to be spread around."
Danforth's final report criticized others who had withheld information and evidence, but other than Johnston, no one else is being prosecuted.
The criminal case is the final development in a 14-month investigation that cost $17 million. The final report was the last of Danforth's findings. In July he said that government agents did not shoot Davidians or start the fire that killed many of them. He also found that the military acted properly.
While finding that there was no widespread government conspiracy to cover up the use of pyrotechnic tear gas, Danforth found that members of the Justice Department's prosecution team had failed to give information about the rounds to Davidian defense lawyers during a criminal trial in 1994. He also criticized two FBI evidence technicians who checked the crime scene.
Three pyrotechnic tear gas rounds were fired at a shelter near the Davidians' complex on April 19, 1993, several hours before the fatal fire that ended the siege. It has since been determined that the rounds had nothing to do with starting the fire.
The Justice Department and the FBI had denied for years that the government used anything that could have started the fire. But that story began to unravel in the summer of 1999 when a filmmaker found evidence that tear-gas rounds that could start fires had been used. Johnston had let the filmmaker inspect some of the evidence left over from Waco.
When Attorney General Janet Reno was forced to acknowledge that the pyrotechnic rounds had been used, she appointed Danforth to direct a special investigation. At the time, Johnston went public with complaints that Justice Department officials had covered up the evidence that showed FBI agents had fired some pyrotechnic rounds.
In his prepared statement Wednesday, Johnston said he hid his notes about the rounds to protect himself from enemies in the department.
"Certain people leaked a memo to the news media making it appear - falsely - that I attended a 1993 meeting at which the term 'pyrotechnic' was used," Johnston said. "In any event, when I uncovered the notes, only days after the memo was leaked, I panicked, because I had just been ordered to place all my trial material in the hands of the people behind the smear campaign.
"I should have turned those notes over anyway and suffered the consequences, but I didn't," Johnston said.
Johnston, a highly regarded prosecutor, was a member of the prosecution team that tried some Davidian survivors in 1994. Danforth's report said the team had information that the pyrotechnics had been used and should have told the defense team.
Danforth also said he believed that Ray and LeRoy Jahns of San Antonio, two other federal prosecutors on the team, knew about the rounds but did not disclose them.
"I don't believe they told us the truth," Danforth said in an interview. "But the evidence is less tangible. There is a difference between what I believe and conclude and what I can prove beyond a reasonable doubt."
The report also said that while the Jahnses' failure to disclose was an unethical and illegal violation, it was not a criminal act.
The Davidian crime scene should have yielded three spent casings from the pyrotechnic shells and three spent projectiles, but only one casing was entered into evidence. While the report said the missing evidence was troubling, there was no information to indicate it was criminal.
"The Office of Special Counsel cannot exclude the possibility that someone at the crime scene decided to remove the evidence in order to benefit the FBI," the report said.
The report singled out FBI agents Richard Crum and James Cadigan. It said Crum gave statements that were evasive and unbelievable. Cadigan was faulted for keeping notes about the crime scene investigation in his attic. The report said his actions were "highly suspicious."
But neither agent is being prosecuted.