Tenacity of 2 Played a Role in Reviving Inquiry on Waco

New York Times, September 2, 1999
By Jim Yardley

HOUSTON -- Michael McNulty and David Hardy refused to let go. In the six years since the Branch Davidian compound went up in flames on April 19, 1993, the two men have waged an obsessive quest to discredit the official account of what happened.

Espousing views popular with many right-wing groups, McNulty, in particular, has blamed Federal agents for the deaths of the Branch Davidian leader, David Koresh, and about 80 of his followers, a position many critics regard as anti-Government propaganda. McNulty and Hardy, however, regard as Government propaganda the official explanation that Koresh and his followers carried out a suicide pact by setting fire to the cult compound and shooting themselves on the 51st day of a siege by Federal agents.

The fire at the compound, near Waco, Tex., has emerged again as a national issue, and McNulty and Hardy have played crucial roles in the chain of events leading the Justice Department to reopen the case and consider an independent investigation.

Hardy, 48, an Arizona lawyer, requested documents and evidence related to the siege and fire, then sued for them. Both men pushed the Texas Rangers to begin an inquiry into evidence under state control. They also gave information to lawyers representing the families of deceased Branch Davidians in a wrongful-death lawsuit. And McNulty, 53, a documentary film maker from Colorado, toured the state evidence lockers four times, unearthing what he says are potentially flammable devices capable of starting a fire.

"Mike and Dave deserve the lion's share of the credit for coming up with the evidence," said Joe Phillips, a lawyer for the Branch Davidian families in the lawsuit, scheduled to go to trial in Federal court in Waco on Oct. 18.

"They've been working on this for years."

The case again became an embarrassment for the F.B.I. and the Justice Department last week, after disclosures that the F.B.I., despite long-standing denials, launched pyrotechnic tear-gas canisters on the morning of the fire. Congress is subpoenaing evidence and witnesses, and

Attorney General Janet Reno has promised a full-scale inquiry. In the midst of it all, McNulty and Hardy are enjoying a broad new forum, appearing regularly on radio and television news programs. McNulty often uses his media appearances to promote his forthcoming documentary, "Waco: A New Revelation." In an interview on Court TV, McNulty even waved a sign with an 800 number so that viewers could call about the film.

Critics say they fear that while McNulty may have come up with some information worth examining, he has also spread much that is unsubstantiated and misleading.

"It's really unfortunate," said Mark Potok, a spokesman for the Southern Poverty Law Center, which monitors paramilitary and other anti-Government groups. "This has given credence to the rest of McNulty's views, which are unsupported."

McNulty said he and Hardy met about a decade ago in Southern California. They came to be concerned about the Branch Davidian fire independently, they said in a series of interviews, but have shared information since their investigations began.

Hardy, a former Department of Interior lawyer in Washington, said he returned home to Arizona in 1990 and entered private practice, writing law review articles, including one he co-wrote tracing the legal history of paramilitary groups. He described himself as "an obsessive-compulsive" whose pet issue is his belief that law enforcement is becoming dangerously militaristic. Convinced that the events near Waco proved his point, Hardy filed eight Freedom of Information requests, starting in November 1995, with the Justice Department and the Federal Bureau of Investigation.

He got nowhere in what became a paper trail of fruitless correspondence with Government officials as he tried to obtain documents and evidence that he considered in the public domain.

As it turned out, much of that evidence was stored in Austin, Tex., in the evidence rooms of the Texas Department of Public Safety. After the Branch Davidian fire, the Texas Rangers were asked to investigate and collect crime scene evidence, and they kept it.

But when Hardy requested evidence from the Rangers under a Texas public records law, he was told that only the Justice Department could authorize access. When he wrote to the Justice Department, he was told that the evidence was under the control of the Rangers.

In one letter Hardy wrote to Texas officials, he bluntly said, "Did it ever occur to you guys that you're being set up?"

McNulty, meanwhile, was pushing on a different front. Until the early 1990's he sold insurance in Southern California, living comfortably, he said, until the national company he represented decided to uproot from the West Coast. A Vietnam veteran who converted 20 years ago from Roman Catholicism to the Mormon faith, McNulty said the Branch Davidian fire had reminded him of a bloody incident in Mormon history, the Haun's Mill Massacre of 1838. In that incident, a mob in Missouri herded Mormons into a grist mill and shot them to death with muskets. Ultimately, the Mormons, led by Joseph Smith, were ordered out of Missouri.

With his insurance business in disarray, McNulty said, he became increasingly consumed with the Branch Davidian fire, obtaining evidence like videotapes, photographs and documents from Hardy and other sources he would not disclose. He moved his wife and five children to Fort Collins, Colo., and became a producer on a documentary, "Waco: Rules of Engagement." The film, a critical assessment of the Government's role, was nominated for an Academy Award.

Despite the nomination (the film did not win), "Rules of Engagement" also was criticized for failing to accurately present evidence that placed the Government in a favorable light, and for numerous inaccuracies. Nonetheless, Mark Pitcavage, a historian who specializes in right-wing extremist groups and operates the Militia Watchdog Web site, said the film made McNulty a celebrity among followers of right-wing, anti-Government groups.

"The Waco documentary was highly publicized, but the inaccuracies were not," Pitcavage said. "I don't think the McNulty Waco documentary could even remotely be considered objective."

McNulty strongly denies that he is "an anti-Government type" and stoutly defends the findings in his first documentary.

Until just over a year ago, neither McNulty nor Hardy had been able to collect much, if any, evidence from the Government. Then McNulty began telephoning Bill Johnston, an assistant United States Attorney in Waco. "He was very skeptical when he heard who I was," McNulty said.

McNulty placed scores of calls to Johnston, prodding and cajoling for access to the locked state evidence room. Toward the end of 1998, McNulty said, he confronted Johnston with copies of records from Fort Bragg, N.C., suggesting that members of an elite military unit had been present for the fire at the compound.

He got the documents from Hardy, who got them from another agency when the Justice Department was slow to respond.

The military had responded quickly to Hardy's information requests, providing documents that detailed how members of the elite Delta Force military unit were at the compound on the day of the fire. The Pentagon now says there were three Delta Force soldiers present as observers.

Eventually, Johnston contacted the head of the Justice Department's office of public relations in Washington about McNulty's case.

"I didn't want to be a party to even the appearance of stonewalling him," Johnston said. "Ultimately, this is the public's evidence."

From November 1998 to last March, McNulty said, he paid four visits to the evidence rooms in Austin, always escorted by at least one Texas Ranger. He said he found at least four projectiles that he believes are pyrotechnic, and took samples for munitions testing.

Hardy, the lawyer, meanwhile, had continued to try to get both the Rangers and the Justice Department to meet his information requests. Frustrated, he said, he made copies of his correspondence and sent them to Jerry Patterson, a former Texas State Senator whose name had been given to him by friends in Texas. Patterson is a conservative Republican who wrote the state's 1995 concealed-weapons law.

"I guess I'm the go-to guy for the black helicopter crowd," joked Patterson, now an Austin lobbyist. He said Hardy's Texas friends warned him that the evidence stored in Austin brought "a whole new light on what happened at Waco."

He said he and Hardy's friends feared that the evidence would be turned over to the Justice Department "never to see the light of day."

Patterson said he first contacted Clay Johnson, chief of staff for Gov. George W. Bush, who referred him to James B. Francis Jr., chairman of the Department of Public Safety. Patterson said he met with Francis, explaining that neither the Rangers nor the Justice Department claimed to control access to the evidence from the fire.

"It was a mess," Francis said in an interview.

Francis took swift action. Earlier this summer, the Department of Public Safety began an investigation into the evidence in the storage rooms. Francis said the Rangers would complete their report in time to respond to a Congressional subpoena for a planned hearing on Sept. 7. The department also asked Judge Walter S. Smith Jr. of Federal District Court in Waco to take possession of all evidence related to the Branch Davidian case.

In an order this month, Judge Smith granted the department's motion, ordering that all evidence in the case be turned over to his court. The judge noted that the plaintiffs in the civil case "have a right to seek access" to the evidence. On Tuesday, Justice Department lawyers sought to block Judge Smith's order.

"Once the court decided that the evidence was worth taking control of, it was the triggering device of everything that has happened since then," Francis said. He would speak only in broad terms about the evidence, but he said there were eyewitness accounts and photographs that raised questions about whether the Delta Force participated in the events at the compound. By law, military units like the Delta Force are allowed to observe but not operate inside the United States.

"There are military guys in body armor and in face paint," Francis said, describing photographs. "It might be significant evidence when all the facts come out."

Unless Judge Smith grants a continuance, the wrongful-death lawsuit will begin in just over a month. Michael Caddell, the lead plaintiff's lawyer, said the Government had refused to permit him to examine evidence since the case was filed in 1994. Instead, Caddell said, he has had to rely on McNulty and Hardy to provide him with copies of documents and evidence. He estimated that he had paid McNulty $40,000 to $50,000 for services like testing of evidence and investigative help.

"His access to information has been critical," Caddell said. "He has looked at information that Congress didn't see and the F.B.I. didn't see or didn't want to acknowledge." Without evidence provided to him by McNulty and Hardy, Caddell said, Judge Smith might have granted a Government motion to dismiss the case.

Finally, everything was pushed fully into the public eye last week when a former senior F.B.I. official told Lee Hancock of the The Dallas Morning News that two potentially flammable tear-gas projectiles had been fired at a concrete bunker at the compound by an F.B.I. hostage rescue team on the morning of the fire. The official, Danny Coulson, said he learned of the canisters in recent weeks after years in which F.B.I. officials, including himself, had denied that any potentially flammable projectiles were used. He declined to say who told him that the canisters had been used. Justice Department officials initially denied Coulson's claims but later confirmed the presence of the devices.

In an interview this week, Coulson reiterated his belief that the canisters were not connected to the fire. On that day, F.B.I. agents had sprayed tear gas into the compound in an effort to forcibly end the siege.

"The significance as it applies to the fire is none," Coulson said. "The real significance is that the Attorney General and many F.B.I. officials, including myself, have given statements that pyrotechnic devices were not used, and now we know that is an error. It goes to the very credibility of the inquiry conducted by the Department of Justice."

For critics of McNulty and Hardy, the new admissions by the Government are particularly frustrating.

"They deserve a little bit of credit," Pitcavage said. "But you wish that someone else had discovered this stuff instead. These guys have ulterior motives."

But Hardy and McNulty make no apologies.

"I'm downright happy about it," Hardy said.