Trial by fire

Waco is once again in the news. Six years later, after the jury
trial, the convictions, and the buried evidence that we-the-people can’t
be permitted to see, my warning in this column about Waco’s potential to
destroy our remaining liberty is being fulfilled. Congressman Barr has
opened hearings, and he needs to know that we stand with him. Here is my
assessment of the Waco tragedy, originally published Feb. 21, 1994,
prior to the jury verdicts:

Far more than most Americans understand the fate of our liberty rests
upon the shoulders of 12 anonymous men and women seated in a jury box in
San Antonio, Texas. These 12 people — and they alone, will decide if
federal agents had the right, based on the flimsiest of pretexts, to
mount a deadly attack in which nearly 80 men, women, and children were
burned alive.

Perhaps they do not know the true weight of the responsibility that
rests upon their shoulders. I suspect that they do. On the surface,
their job is easy enough: listen to the testimony of 120 witnesses
brought by the prosecution, 11 brought by the defense, weigh the
evidence, and reach a reasonable decision as to the guilt or innocence
of the defendants.

But there are times when jury duty goes beyond the facts — when jury
members must search out the truth. The court is a place of law; but the
jury room is a place of justice. It is not widely known today, but a
jury is answerable to no one for its verdict — not the judge, not the
lawyers, and
indeed, not even the facts. If they will, the jury can find the 11
defendants innocent — regardless of the facts. In so doing, the jury
judges the law.

Jury duty brings us face to face with our deepest and most cherished
beliefs. It is the point, where as the old phrase goes, the rubber meets
the road. Lysander Spooner wrote in Trial by Jury, “If the jury have no
right to judge of the justice of a law of the government, they plainly
can do nothing to protect the people against the oppressions of the
government; for there are no oppressions which the government may not
authorize by law.”

Attorney General Janet Reno has been widely praised for accepting
responsibility for what in polite circles is referred to as the “botched
raid.” And well she should (accept responsibility): a review of the
matter found that she had not read through the FBI situation assessment
before ordering the raid. In the business world, where a consumer was
harmed, such neglect of due diligence might well expose the
decision-maker to criminal charges of negligence. Still unexplained, and
defying all reason, is why the raid was ever conducted in the first
place. David Koresh, the Davidian leader and target of the raid,
frequently jogged outside the compound and traveled to nearby Waco. On
at least one occasion, agents refused to talk to him on the telephone.
Is this the behavior of a man who is thought to be so dangerous that his
capture warrants slaughtering the entire village in which he makes his
home?

At the trial, federal agents have admitted under cross-examination
that they lied about the raid. Similar admissions came in the Randy
Weaver trial in Idaho. Officials dug up the most ridiculous charges,
including child abuse, which they later admitted never happened, to
justify their actions. To
his credit, Treasury Secretary Lloyd Bentsen was first to order a review
of the raid; the result was highly critical of BATF agents, and has
resulted in the firing of several (since reinstated). But it is well to
remember that Secretary Bentsen is of another generation from the
majority of those
ensconced in Washington.

Perhaps the seriousness of the case can best be judged by
understanding the unlikely union it has produced. The American Civil
Liberties Union recently joined with the National Rifle Association in
accusing federal agents of using deadly force without cause, and of
conducting illegal searches. They have urged President Clinton to
appoint a national commission to review the policies and practices of
all federal law enforcement agencies. We are not optimistic that he will
comply.

One of the greatest mysteries is where that lion of freedom and
protector of our liberties, the mainline press, has been during all this
turmoil. Most editors, judging from the coverage in their newspapers
(after the event), are unaware that the raid ever happened. Two
politically unpopular groups were represented among the Branch Davidians
— fundamentalist Christians (so portrayed in the media) and Second
Amendment advocates.

One way to assess the honesty of the coverage is to ask, how would it
have been handled differently, if the stage been the same, but the
players different? Would, for instance, the New York Times have insisted
on access to the compound at Mt. Carmel, had the Davidians not been
Christians — but
homosexuals? What if they had amassed a collection of weapons, to
protect themselves from the local “homophobes”?

Would the television news crews have been content to stay two miles
away from the action, had the Davidians all been black? Would the daily
press briefings from federal officials have been met with the same
yawning acceptance, had they been given by local law enforcement?

In the face of such questions, it is worth wondering if the jury is
aware they can vote their conscience. The answer is yes. The Fully Informed Jury
Association said it obtained the names of the jurors and mailed a
Jury Power Information Kit to each of them, explaining their rights. No
mention was made of the Branch Davidian trial, nor were jurors advised
how to vote. Judge Walter Smith learned of the contact and questioned
jurors. He satisfied himself that they had not been influenced.

All of the above information comes from reliable sources. There are
other reports which have not been confirmed, but of which you should be
aware. Catherine Matteson, age 77 and a siege survivor, told an Austin
television audience that the first shots she heard were fired from
helicopters strafing David Koresh’s room. She fled the compound but was
arrested and charged with murder. Charges have since been dropped.

Gladys Ottman, another Davidian, wrote to a San Antonio friend that
Derick Lovelock, a British national, witnessed 30 fellow Davidians shot
down as they tried to escape the fire through rear exits. Katherine
Jones, another Davidian, claims Lovelock told her the firing came from
men in
helicopters. The British Consulate intervened; Lovelock was released and
returned to Britain.

It is a tragedy that dedicated federal agents were placed in harm’s
way. Some were injured; four lost their lives. It would be a greater
tragedy if to vindicate them, we lost our liberty. Those in the leftist
camp scoff at the intent of the Second Amendment. They refer to it as a
barbaric relic of the past. They need look no further than the ashes at
Waco to see its relevance for today.

(This essay first appeared in Conservative Consensus, Feb. 21, 1994)