Three Waco men who testified before Special Counsel John Danforth's federal grand jury in St. Louis this week said they feel retaliated against for their support of former assistant U.S. attorney Bill Johnston.
Danforth was appointed last year to investigate new revelations in the Branch Davidian case and has targeted Johnston for possible indictment on perjury and obstruction of justice charges related to Johnston's testimony before the Danforth grand jury in July.
Waco businessman Carey Hobbs and former Waco city manager David Smith have raised about $30,000 to help Johnston defray his legal expenses and said Jim Martin, an attorney on Danforth's staff, asked them about the fund-raising efforts in front of the grand jury.
"I felt like he wanted to throw a bomb in the middle of Bill's friends and watch everybody scatter, but it had the opposite effect on me because I am mad. I was not intimidated, I was mad, and I let the grand jury know about it," David Smith said. "But I had a good sense when I left. I think the grand jury seemed to respond and I'm glad I had an opportunity to talk directly to the grand jury and tell them how I feel about Bill. It had the opposite effect, I think, of what they wanted it to have."
Waco attorney Rod Goble, who also is a close friend of Johnston's, said he was asked about a newspaper article in which he was quoted as wondering what Danforth's staff was "smoking" to make them pursue felony criminal charges against Johnston.
"It is eye-opening to me to see what a tremendous abuse of power there was up there," Goble said. "I wonder if in other cases where there is a special prosecutor if they were on as much of a witch hunt as they are on this one. I felt I was subpoenaed solely because I made that comment about what they were smoking and I still haven't figured it out yet. ... It is an embarrassment to the legal profession."
Deputy U.S. marshals Mike and Parnell McNamara of Waco, who also are close to Johnston, also testified before the grand jury Thursday in St. Louis. Parnell McNamara said that he and his brother have been forbidden to comment on their grand jury testimonies by their superiors.
Sharon Barker, an administrative assistant in the Waco U.S. attorney's office, and John Phinizy, a federal prosecutor who formerly worked in Waco, also testified before the grand jury.
Hobbs, owner of Hobbs Bonded Fibers, said he fielded a number of calls Friday from supporters who had heard that he had been subpoenaed in Johnston's case and who wanted to donate to the legal defense fund.
"The overall deal that they can and would subpoena some of us whose only connection is our vocal support of Bill is extremely scary," Hobbs said. "The mere fact that the federal government can use this power to come after you if you are vocal in support of one of their adversaries is chilling. If they wanted to know something, they could have called us and asked us. I would have told them the same thing. Obviously, we didn't have anything to hide."
U.S. District Judge Walter S. Smith Jr. of Waco, who had worked closely with Danforth's office during his investigation and the preparations for the Branch Davidian survivor wrongful-death lawsuit against the government in Smith's court, testified before the grand jury Oct. 20.
Goble, David Smith and Hobbs all said they felt their grand jury appearances were in retaliation for their support of Johnston. However, each said he thinks it might have been good for Johnston's cause since grand jurors seemed interested in listening to their views about the case and their feelings for Johnston.
"I personally thought it was a great day," Hobbs said. "Everybody got to tell them what they thought about Bill. I told them that I know Bill Johnston and he would not intentionally do anything to impede justice or to cause a miscarriage of justice."
Johnston reportedly is being targeted because he withheld several pages from a legal pad on which he took notes during his preparations in 1994 to help prosecute 11 Branch Davidians for killing federal agents. Judge Smith had ordered all matters pertaining to the Branch Davidian matter be turned over to his office last year before the wrongful-death civil lawsuit.
Johnston reportedly produced the missing pages for Danforth and then submitted to a polygraph test, sources have said.
Notes by a paralegal indicated that Johnston attended a meeting before the 1994 trial in which the use of pyrotechnic tear gas devices was discussed. Johnston has said he doesn't remember attending the meeting and would not have realized the significance of the term "military gas" if he had been there.
The revelation that military-style tear gas was used early in the April 19, 1993, operation that ended the 51-day siege at Mount Carmel prompted Attorney General Janet Reno to appoint Danforth to investigate that and other allegations.
The FBI had denied for years that military gas, which can spark fires, was used.
Johnston's attorneys charge that he is unfairly being singled out for "blowing the whistle on the government's efforts to mislead the public" about the use of the pyrotechnic devices.
Johnston, who resigned in January, wrote a letter to Reno last year warning of a possible Justice Department cover-up regarding the use of the gas on the final day of the siege.
Three Waco men who testified before Special Counsel John Danforth's federal grand jury in St. Louis this week said they feel retaliated against for their support of former assistant U.S. attorney Bill Johnston.
Danforth was appointed last year to investigate new revelations in the Branch Davidian case and has targeted Johnston for possible indictment on perjury and obstruction of justice charges related to Johnston's testimony before the Danforth grand jury in July.
Waco businessman Carey Hobbs and former Waco city manager David Smith have raised about $30,000 to help Johnston defray his legal expenses and said Jim Martin, an attorney on Danforth's staff, asked them about the fund-raising efforts in front of the grand jury.
"I felt like he wanted to throw a bomb in the middle of Bill's friends and watch everybody scatter, but it had the opposite effect on me because I am mad. I was not intimidated, I was mad, and I let the grand jury know about it," David Smith said. "But I had a good sense when I left. I think the grand jury seemed to respond and I'm glad I had an opportunity to talk directly to the grand jury and tell them how I feel about Bill. It had the opposite effect, I think, of what they wanted it to have."
Waco attorney Rod Goble, who also is a close friend of Johnston's, said he was asked about a newspaper article in which he was quoted as wondering what Danforth's staff was "smoking" to make them pursue felony criminal charges against Johnston.
"It is eye-opening to me to see what a tremendous abuse of power there was up there," Goble said. "I wonder if in other cases where there is a special prosecutor if they were on as much of a witch hunt as they are on this one. I felt I was subpoenaed solely because I made that comment about what they were smoking and I still haven't figured it out yet. ... It is an embarrassment to the legal profession."
Deputy U.S. marshals Mike and Parnell McNamara of Waco, who also are close to Johnston, also testified before the grand jury Thursday in St. Louis. Parnell McNamara said that he and his brother have been forbidden to comment on their grand jury testimonies by their superiors.
Sharon Barker, an administrative assistant in the Waco U.S. attorney's office, and John Phinizy, a federal prosecutor who formerly worked in Waco, also testified before the grand jury.
Hobbs, owner of Hobbs Bonded Fibers, said he fielded a number of calls Friday from supporters who had heard that he had been subpoenaed in Johnston's case and who wanted to donate to the legal defense fund.
"The overall deal that they can and would subpoena some of us whose only connection is our vocal support of Bill is extremely scary," Hobbs said. "The mere fact that the federal government can use this power to come after you if you are vocal in support of one of their adversaries is chilling. If they wanted to know something, they could have called us and asked us. I would have told them the same thing. Obviously, we didn't have anything to hide."
U.S. District Judge Walter S. Smith Jr. of Waco, who had worked closely with Danforth's office during his investigation and the preparations for the Branch Davidian survivor wrongful-death lawsuit against the government in Smith's court, testified before the grand jury Oct. 20.
Goble, David Smith and Hobbs all said they felt their grand jury appearances were in retaliation for their support of Johnston. However, each said he thinks it might have been good for Johnston's cause since grand jurors seemed interested in listening to their views about the case and their feelings for Johnston.
"I personally thought it was a great day," Hobbs said. "Everybody got to tell them what they thought about Bill. I told them that I know Bill Johnston and he would not intentionally do anything to impede justice or to cause a miscarriage of justice."
Johnston reportedly is being targeted because he withheld several pages from a legal pad on which he took notes during his preparations in 1994 to help prosecute 11 Branch Davidians for killing federal agents. Judge Smith had ordered all matters pertaining to the Branch Davidian matter be turned over to his office last year before the wrongful-death civil lawsuit.
Johnston reportedly produced the missing pages for Danforth and then submitted to a polygraph test, sources have said.
Notes by a paralegal indicated that Johnston attended a meeting before the 1994 trial in which the use of pyrotechnic tear gas devices was discussed. Johnston has said he doesn't remember attending the meeting and would not have realized the significance of the term "military gas" if he had been there.
The revelation that military-style tear gas was used early in the April 19, 1993, operation that ended the 51-day siege at Mount Carmel prompted Attorney General Janet Reno to appoint Danforth to investigate that and other allegations.
The FBI had denied for years that military gas, which can spark fires, was used.
Johnston's attorneys charge that he is unfairly being singled out for "blowing the whistle on the government's efforts to mislead the public" about the use of the pyrotechnic devices.
Johnston, who resigned in January, wrote a letter to Reno last year warning of a possible Justice Department cover-up regarding the use of the gas on the final day of the siege.
Supporters of former Waco siege prosecutor Bill Johnston say their appearances Thursday before a federal grand jury in St. Louis were unnecessary and an effort to intimidate them.
"Nothing of merit was discussed in there," said one witness, Rod Goble, a lawyer in Waco, Texas. "I hope we were able to shed light ... on what an outstanding person (Johnston) is."
Goble is among seven people who testified before the special grand jury, empaneled in St. Louis by former Sen. John C. Danforth, R-Mo. Danforth is the special counsel investigating the government's handling of the standoff at the Branch Davidian compound outside Waco.
About 80 Davidians died April 19, 1993, when the compound burned after FBI agents in an armored vehicle smashed holes into buildings and pumped in tear gas.
The Justice Department said later that cult members - not the FBI - set the deadly fire.
The FBI acknowledged in August 1999 that despite earlier denials, federal agents fired one or more incendiary tear gas rounds during the standoff with Davidians.
Later, Johnston, a former federal prosecutor in Waco, sent a letter to Attorney General Janet Reno saying government lawyers had known for years about the use of pyrotechnic tear gas rounds.
Investigators for Danforth allege that Johnston may have obstructed justice by failing to turn over to investigators his personal notes about use of the pyrotechnic rounds.
Dick DeGuerin, the lawyer for Johnston's supporters, said Thursday that Johnston either did not understand the significance of his notes, made in 1993, or simply forgot about them.
"The irony is that this is a classic case of a whistleblower being turned into a scapegoat," DeGuerin said of Johnston.
DeGuerin, the Houston lawyer who had represented cult leader David Koresh, added that the grand jury subpoenas issued to Johnston's supporters were "an effort to frighten any other supporters ... and punish them for being supportive."
Officials of the Danforth inquiry have consistently refused to discuss the Johnston matter.
Goble, former Waco city manager David Smith, businessman Carey Hobbs and two deputy U.S. marshals, brothers Mike and Parnell McNamara, testified a day after Senior U.S. District Judge Stephen N. Limbaugh refused to quash the subpoenas issued by Danforth's investigators.
Smith said that about $30,000 has been raised in Waco as a potential legal defense fund for Johnston, who now practices law in Waco. Smith said he fears the donations will slacken if people suspect that by contributing to the fund they may come under the scrutiny of Danforth's investigators.
"I feel like they were trying to intimidate us because we are trying to raise money to help him," Smith said.
Goble said he suspects he was ordered to testify because of his comment, published in Dallas, in which he wondered what the Danforth investigators "were smoking" to go after Johnston.
Johnston appeared before the grand jury about two months ago, DeGuerin said.
Five Waco men subpoenaed by Special Counsel John Danforth failed Wednesday in their attempts to have their subpoenas quashed and are scheduled to testify today before a federal grand jury in St. Louis.
U.S. District Judge Stephen Limbaugh denied the motion to throw out the subpoenas filed on behalf of deputy U.S. marshals Mike McNamara and Parnell McNamara; Waco attorney Rod Goble; businessman Carey Hobbs; and former Waco city manager David Smith and ordered them to comply with the grand jury summonses.
Danforth, the former Missouri senator appointed last year to investigate new revelations in the Branch Davidian case, has targeted former U.S. attorney Bill Johnston of Waco for possible indictment on perjury and obstruction of justice charges related to Johnston's testimony before the Danforth grand jury in July.
All of the men subpoenaed, plus U.S. District Judge Walter S. Smith Jr. of Waco, who testified before the grand jury last week, have close ties to and have been vocal supporters of Johnston.
Houston attorney Dick DeGuerin, who represents the five, said he has advised his clients to invoke their Fifth Amendment rights against self-incrimination in their testimonies before the grand jury, although he said that none of them has anything to hide.
At that point, DeGuerin predicts, Ed Dowd and Jim Martin of Danforth's staff will "force immunity on them" to compel their testimonies.
DeGuerin is no stranger to the Branch Davidian case. He represented David Koresh and met with Koresh and Koresh's top lieutenants inside Mount Carmel during the Branch Davidian 51-day standoff with government agents in 1993.
"It's not like I have gone over to the other side or anything," DeGuerin said Thursday after the hearing. "I just think that anytime the federal government uses their God-awful strength to bully people, I am on the side of the guy getting bullied."
That's the theme that DeGuerin argued at Wednesday's hearing, acknowledging that there was no real legal authority to support his request to quash the subpoenas.
DeGuerin charges that Danforth and his staff are abusing the grand jury process to intimidate and harass Johnston's friends and supporters, some of whom are raising money for Johnston's legal defense.
Jan Diltz, a spokeswoman for the Office of Special Counsel, declined comment on the 60-minute hearing or on those subpoenaed by her office.
"Every person has a right to remain silent," DeGuerin said. "You don't know where these prosecutors are coming from. There is a thing called the perjury trap. They get you in there and ask you questions until they ask you something that they can prove is wrong, and the next thing you know, you have to defend a perjury rap.
"But the Texas and federal constitutions say you don't have to answer any questions. Prosecutors think the only way you don't have to answer questions is if they tend to incriminate you and that is not true. It is just so heavy-handed," he said.
DeGuerin said that the men subpoenaed are all potential defense witnesses for Johnston should he be indicted. He claims that Danforth's staff merely is trying to intimidate them, to "lock in" their potential testimonies and to use the grand jury to gather potential defense evidence. That is an abuse of the process, DeGuerin said.
"If they start subpoenaing people who are Bill's friends, then Bill is going to have to start looking for new friends," DeGuerin said of Johnston, who helped prosecute 11 Branch Davidians during the 1994 criminal trial in San Antonio. "These guys have had the gumption to stand up to all of it."
DeGuerin called Danforth's subpoena of Judge Smith "pretty dirty."
"It was a convenient way to keep Smith from being able to try the case if they had the case put in Waco," DeGuerin said. "They know that Smith is a strong supporter of Bill and it was a way of saying that anybody who is going to support Bill is going to be drug in front of a grand jury."
The potential charges against Johnston stem from his appearance in late July before Danforth's grand jury, sources have said. Investigators zeroed in on several pages that were missing from Johnston's legal pad that he kept during his preparations for the Branch Davidian criminal trial.
Johnston produced the pages for Danforth and then submitted to a polygraph examination, sources have said.
Notes by a paralegal indicated that Johnston attended a meeting before the 1994 trial in which the use of pyrotechnic tear gas devices was discussed. Johnston has said that he doesn't remember the meeting.
Judge Smith, who presided over the criminal trial and the Davidian wrongful-death suit against the government this summer, ordered all matters pertaining to the Branch Davidian case be turned over to his court last year.
The revelation that military-style tear gas was used early in the April 19, 1993, operation that ended the siege, which the FBI had denied for years, prompted Attorney General Janet Reno to appoint Danforth to investigate that and other allegations.
Danforth has concluded that the Davidians started the fire in which Koresh and 75 of his followers died and that the use of the military tear gas had nothing to do with the tragedy.
Johnston's attorneys have charged that he is being "unfairly targeted for his frequent criticism of the U.S. government and for blowing the whistle on the government's efforts to mislead the public about the government's use of pyrotechnic devices against the Branch Davidians."
Johnston, who resigned in January, wrote a letter to Reno last year warning of a possible Justice Department cover-up regarding the use of the incendiary devices on the final day of the siege.
Johnston's detractors, however, have charged that he was part of the cover-up by failing to disclose the use of the gas to attorneys representing the Branch Davidian criminal defendants in San Antonio and merely was trying to cover for himself by alerting Reno.
A federal court in St. Louis on Wednesday refused to quash subpoenas forcing five supporters of former Waco prosecutor Bill Johnston to testify before a federal grand jury investigating government actions in the 1993 Branch Davidian siege.
Houston attorney Dick DeGuerin, who filed a motion on behalf of the five Waco men, said U.S. District Judge Stephen Limbaugh ruled after an hourlong closed-door hearing that he lacked legal grounds to throw out the subpoenas. They were issued late last week at the request of the Waco special counsel's office.
Judge Limbaugh agreed to grant each of the five men immunity before they are called on Thursday before the grand jury, Mr. DeGuerin said.
"He made it clear that he saw what was going on, but at this point, there was not much he could do," Mr. DeGuerin said. "This is retaliation and punishment of these guys for supporting Bill Johnston, as well as an effort to chill any other potential support."
His motion on behalf of two deputy U.S. Marshals, a former Waco city manager a Waco lawyer and a wealthy Waco businessman had alleged that the subpoenas were part of an ongoing effort to intimidate them and Mr. Johnston.
A spokesperson for the special counsel's office declined to comment.
Two months ago, Mr. Johnston was told that he was being targeted for prosecution by the office of Waco special counsel John C. Danforth. Mr. Johnston was among five federal prosecutors who helped try surviving Davidians in a criminal trial arising from the siege.
The former prosecutor's lawyer said that Mr. Danforth's investigators believe that he committed criminal violations by withholding personal notes that he wrote in fall 1993 detailing the FBI's use of pyrotechnic tear gas at the end of the siege.
But the lawyer, Michael Kennedy of New York, said that the special prosecutor's actions were a continuing effort to punish Mr. Johnston for turning whistleblower over the Justice Department's handling of the case, as well as an effort to pressure him to accept a felony guilty plea.
Mr. Kennedy filed a separate motion Wednesday arguing that the subpoenas were "an abuse of the grand jury process." He noted that the subpoenas were issued two months after the special counsel's office formally told Mr. Johnston that it had enough evidence to indict him. The defense filing included an Aug. 30 letter in which Mr. Danforth's chief investigator announced that "our office will indict Bill Johnston in both St. Louis, Missouri, and in Texas."
"They're trying to anticipate the defense and neutralize our witnesses," Mr. Kennedy said. "Bill is disturbed by the fact that people who have been supporters of his and allies of his and are potential witnesses on his behalf are being threatened and harassed and dragged all the way from Texas to Missouri. All of this is designed to coerce Bill to plead guilty to a crime that he didn't commit."
Mr. Kennedy noted that Judge Smith, one of Mr. Johnston's friends, was subpoenaed to testify an hour after the special counsel was told that Mr. Johnston would not accept a felony plea.
"There is no question that this new round of subpoenas is a further effort to punish Bill for refusing St. Jack's offer," he said.
Mr. DeGuerin, who represented Davidian leader David Koresh and tried to negotiate his surrender during the 1993 standoff, said he agreed to represent five of Mr. Johnston's supporters because of concerns about "bullying" by the special counsel.
"The fact is, if you cross somebody in the Justice Department, there's going to be hell to pay, and that's what's going on here," he said.
His clients include deputy U.S. Marshals Mike and Parnell McNamara, former Waco City Manager David Smith, businessman Carey Hobbs and Waco lawyer Rod Goble. All are longtime friends of Mr. Johnston's, and all have been instrumental in rallying support and financial contributions for his defense. A sixth Waco resident, Mr. Johnston's former secretary in the U.S. Attorney's office, was also subpoenaed to appear Thursday but elected not to try to challenge the subpoena, lawyers said.
"Some people would say, 'You're switching sides here, and getting on the side of people who persecuted or prosecuted the Davidians.' I don't see it that way at all," Mr. DeGuerin said. "All of my career has been fighting bullies."
The case stems from revelations last year that forced the government to reverse years of denials that the FBI used anything capable of sparking fires when they assaulted the Davidian compound with tanks and tear gas. The tear gas assault ended with a massive fire that consumed the sect's compound on April 19, 1993. Mr. Koresh and more than 80 followers died.
The 51-day siege began with a gunfight that broke out as federal agents tried to search the compound and arrest Mr. Koresh on weapons charges. Four federal agents and six Davidians died in the initial melee.
Judge Smith issued an order in August 1999 requiring the surrender of all government records and evidence connected with the standoff to his court. Mr. Johnston then complained publicly that the Justice Department was covering up evidence that showed the FBI fired pyrotechnic tear gas at the sect.
That charge and the FBI's subsequent admission that it had used pyrotechnic gas drew so much controversy that Attorney General Janet Reno asked Mr. Danforth, a former Missouri Republican senator, to head a special counsel's investigation.
Mr. Johnston admitted to Mr. Danforth's investigators in July that he withheld several pages of notes from 1993 dealing with the FBI's use of pyrotechnic gas, including notations specifying how FBI agents fired several "incend" or incendiary, military gas grenades.
Friends said Mr. Johnston withheld the notes out of fear that colleagues might try to use them to discredit him and did not acknowledge his actions to Mr. Danforth's investigators before July because they accused him repeatedly of wrongdoing.
Waco, FBI and the Branch Davidians: Updates
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