The lawyer for Bill Johnston, the former federal prosecutor charged in the aftermath of the Branch Davidian case, is demanding investigators' notes of their interviews with him.
Summaries of the interviews are "susceptible to paraphrasing ... and tailoring" by investigators "to better fit the prosecution theories of the case," contends Johnston's lawyer, Michael Kennedy of New York City.
Whether the Office of Special Counsel John C. Danforth must turn over the notes is expected to be among the topics at a hearing Tuesday before U.S. Magistrate Judge Mary Ann Medler.
Johnston, now a lawyer in private practice in Waco, Texas, was indicted in November in St. Louis. He is accused of obstructing Danforth's investigation into the government siege of the Branch Davidian compound near Waco in 1993.
Johnston also is charged with lying to Danforth's investigators and attorneys and to the grand jury that indicted him. His trial is set to begin April 2 in St. Louis, where Danforth based his investigation.
Kennedy contends that getting investigators' notes is essential to his defense. "The need for disclosure is particularly great in this case, where the charges are based on alleged false statements," he said in a court document.
Johnston, a former assistant U.S. attorney in Waco, helped prosecute 11 Branch Davidians on murder charges. He has admitted he "temporarily misled" the grand jury about his knowledge of the FBI's use of pyrotechnic tear-gas devices on the final day of the siege and about whether he turned over all his notes and other material.
After the hearing on Tuesday, Medler will make a recommendation to U.S. District Judge Charles Shaw, who is presiding over the case.
Also pending is a decision on a motion Kennedy filed in December asking that the indictment be dismissed because Danforth's office singled out Johnston for prosecution after "acknowledging that statements of numerous government officials investigated by the (Office of the Special Counsel) were misleading, false and obstructive."
Felony charges against former assistant U.S. Attorney Bill Johnston should be dismissed because he is being held to a higher standard of conduct than other government officials involved in the Branch Davidian siege, his lawyer says.
Johnston, who admitted he withheld notes about the 1993 siege of the Branch Davidian compound, is scheduled to go to trial April 2 on two counts of obstructing justice and three counts of lying to federal investigators and a grand jury.
Johnston's attorney, Michael Kennedy, said those charges should be dismissed because the move to indict his client amounts to vindictive prosecution.
``Had the grand jury known that it was being caused to apply a higher standard to Bill Johnston than to others, the grand jury would have inquired and probably balked at discriminating against Johnston,'' Kennedy wrote in a motion seeking a pretrial hearing.
A pretrial hearing on the matter is scheduled for Tuesday in St. Louis.
Johnston was indicted by a grand jury in St. Louis on Nov. 8, just before Waco special counsel John C. Danforth released his final report absolving the government of wrongdoing in the siege. He pleaded innocent to the charges in November.
In July, Johnston admitted he had withheld several pages of notes written in 1993 that dealt with the FBI's use of pyrotechnic gas on April 19, 1993, the final day of a 51-day standoff that ended with the death of Davidian leader David Koresh and about 80 followers.
The standoff began Feb. 28, 1993, when agents with the Bureau of Alcohol, Tobacco and Firearms tried to serve search and arrest warrants on Koresh. It turned into a gunfight in which four federal agents and six Davidians were killed.
The notes indicated Johnston was told in 1993 that FBI agents fired several incendiary military tear gas grenades to try to end the standoff, something the Justice Department and FBI officials denied for years.
Jim Martin, an attorney for Danforth's St. Louis office, told the Waco Tribune-Herald they would oppose the motion.
``We disagree, in many respects, both factually and legally with the issues contained in the motions and we will address them thoroughly in our written responses,'' Martin said.
Supporters of indicted former federal prosecutor Bill Johnston are conducting a petition drive to try to convince George W. Bush to grant Johnston a presidential pardon.
They also have set up a Web site and hired conservative marketing and direct-mail fund-raising firms to help collect money for Johnston's legal defense, which they say easily could cost more than $100,000.
Johnston, 41, of Waco was indicted Nov. 8 in St. Louis on two counts of obstructing Special Counsel John C. Danforth's investigation into the 1993 siege at the Branch Davidian compound. He also was charged with three counts of lying to Danforth's investigators and to the grand jury that returned the indictment.
While Johnston has acknowledged that he "temporarily misled" the grand jury, he has pleaded not guilty and is set for trial in St. Louis on April 2.
The petition to Bush says that Johnston has been unfairly singled out for indictment "despite his heroic efforts to bring forth the truth of the use of pyrotechnics at Waco."
"We call upon your sense of justice to give a full pardon to this living example of integrity," the petition to Bush says.
David Smith, a former Waco city manager, and Carey Hobbs, a wealthy Waco businessman and a well-connected Republican Party activist, are spearheading efforts to raise money for Johnston and to seek the pardon.
Both men, along with several other friends of Johnston, were subpoenaed to testify before Danforth's grand jury in St. Louis. While they opposed the subpoenas at first, Smith and Hobbs both have said that the trip gave them the opportunity to tell the grand jury and Danforth's prosecutors about their feelings for Johnston and what he has meant to Central Texas law enforcement.
They have hired Bruce W. Eberle & Associates, a Washington, D.C.-based direct-mail fund-raising firm, and CKS&J Marketing of Austin, Colo.
Both firms have close ties to conservative political candidates, groups and causes. That raises the possibility that Johnston, who helped prosecute 11 Branch Davidians in 1994, will get money from people who were critical of how the government handled the siege with David Koresh and opposed the Davidian prosecutions.
"That could be a real twist to this case," Hobbs said. "But we are not too concerned about that. I think that probably part of these folks who have shown interest in helping are on the fringe."
But many, he said, "are under similar circumstances that Bill is facing: unwarranted threats or unwarranted prosecutions. While our efforts are sure to reach some of the fringe, it also will reach some of the people inside the fringe who would like to help Bill out."
Hobbs, who said he will attend Bush's Jan. 20 inauguration, said he hopes that the new president will consider setting Johnston's indictment aside.
"I think that would be appropriate," Hobbs said. "I would hope that he would take a look at this and see it for what it is."
A booklet from the Eberle firm that asks, "Are you an innocent victim of government bureaucracy?" said that it has raised more than $250 million for its clients since 1974.
Some of the firm's legal defense fund clients have included Clinton accuser Paula Jones; Linda Tripp; Stacey Koon, one of the former Los Angeles police officers involved in the Rodney King beating; controversial former Interior Secretary James Watt; and Richard Jewell, who was wrongfully suspected in the Atlanta Olympics bombing.
Political clients have included Ronald Reagan, Jesse Helms and Pat Buchanan.
The brochure says that Eberle "willingly takes on as clients those individuals who have the deck stacked against them."
"Far too often in today's society those faithful to duty, honor and country are sacrificed upon the altar of political expediency," the Eberle materials say. "Bowing to the hurricane force winds of political correctness, ambitious politicians knowingly and willingly punish the innocent in pursuit of their own political gain."
Christopher Cobb, an Eberle senior account executive, declined comment on Johnston.
Charles Phillips of CKS&J Marketing arranged for Smith to talk about Johnston's case on two conservative talk-radio programs in Arizona and Michigan last week, with more to come.
"They want to know what is going on and I tell them what a good man Bill is and how I think he is being persecuted," Smith said. "I tell them how I think he was singled out and that they let several others go that got people killed, while what Bill did didn't have any effect on anything. That is what I am telling people, and how out of control I think that group in St. Louis is."
Smith described the radio programs he was on and the listeners they attract as "very conservative."
"I wouldn't say they are anti-government. I am not anti-government at all," Smith said. "I am very supportive of government. I spent my life in municipal government, but I am violently opposed to government abusing its power, and that is what this is.
"I am sure that there are some involved in this group who are radical. But I told the guy on the radio and I told the grand jury in St. Louis that I am not a radical. I am just very cynical about the way the Justice Department has been operating," Smith said.
Smith declined to say how much money their efforts have raised so far, acknowledging only that the fund has grown beyond the $30,000 that the Tribune-Herald reported two months ago.
He said he has had a number of people hand him $100 bills and tell him that they want to support Johnston. But, Smith said, they insist on giving cash because they don't want their names to end up on a list somewhere.
"That is scary when people are afraid of their own government," Smith said. "That is what makes radicals. I told them I haven't kept a list and if the government asks me to produce a list, I'll tell them my dog ate it. ... I don't feel that way, personally, but there are a lot of substantial business people in this community who do."
Phillips said his firm will send out about 100,000 letters from Smith to potential donors to Johnston's defense fund.
"We have identified well over 6 million households that are interested in law enforcement and justice and the whole issue of Waco, from a positive aspect, not for or against David Koresh, but for truth and who will have a heart for what Bill and his family are facing," Phillips said.
The letters will be sent to "pro-America people," he said.
"I don't have any militia-type groups or anything like that. These are people who can look at this situation and say it really isn't justice to prosecute the prosecutor in this case."
Danforth's final report on the Branch Davidian fiasco, released the same day that Johnston was indicted, absolved the government of blame in the tragedy. Johnston's was the only indictment to come out of Danforth's 14-month, $17 million investigation.
FBI officials claimed for years that they fired no tear-gas rounds that were capable of starting the fire on April 19, 1993, in which Koresh and 75 followers perished.
However, they were forced to admit that at least three "military-style" cannisters, which are pyrotechnic and can spark a blaze, were fired during the early hours of the April 19.
Johnston escorted independent filmmaker Michael McNulty into a government evidence room last year, and it was McNulty who discovered the military-style rounds among tons of other evidence from the fire.
As government officials continued to deny the use of the pyrotechnic devices, Johnston wrote to U.S. Attorney General Janet Reno to warn her of the continuing cover-up.
Johnston, however, is charged in the indictment with hiding his notes from a 1993 meeting he attended in which the use of military-style tear gas was discussed.
He admits that he withheld the notes despite a congressional subpoena and a federal judge's order last year to turn over all matters relating to the Branch Davidian case.
Johnston has admitted that he "temporarily misled" the grand jury about his notes, on which he had written the abbreviation "incend" for incendiary on one page that he held back.
Johnston, who declined comment for this story, has said that he didn't turn over the notes because he had become a "pariah" within the Justice Department and was being falsely accused of wrongdoing by his superiors at the time and, later, by attorneys for the Office of Special Counsel.
Johnston turned over the missing notes to the grand jury in July, but not before he testified that he had already turned over all his materials relating to the case.
In order to supplement the above news, we recomment the book by David Thibodeau "A Place Called Waco: A Survivor's Story" (see related article). Thibodeau, one of only nine Branch Davidian survivors of the attack, tells the story of the Branch Davidians and their dealings with federal agents. In light of subsequent government admissions, including a partial recantation in 1999 of previous denials that the tea gas used in the assault could have been incendiary, Thibodeau's detailed account of the storming of the compound and the fire that followed is still more important.
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