XIV. Prosecutions
A. Introduction
The Waco crisis began with ATF's attempt to arrest and prosecute Koresh for firearms violations. Following the ATF raid, the prosecutive focus shifted to-building cases against any Branch Davidians who were responsible for killing and wounding ATF agents, or attempting to do so, during the two shootouts on February 28. The prosecutors also decided to keep the original firearms charges open as well, in the event that Koresh or any of his followers who had violated the firearms statutes surrendered to the authorities.
As discussed above, at the same time the FBI was handling the standoff negotiations, the United States Attorney's office in Waco (and its parent office in San Antonio), working largely with the Texas Rangers, concentrated on preparing its cases. In addition, as described above, the Justice Department intervened in early April, while the negotiations were was ongoing, to resolve differences of opinion that had arisen between the Assistant United States Attorney in Waco and his boss, the United States Attorney in San Antonio. The prosecution team was realigned and placed under the leadership of a different Assistant United States Attorney, who was to report directly to the Justice Department in Washington, D.C.
The discussion of the prosecutions in this report must necessarily be limited, because all the defendants are awaiting trial in the United States District Court in Waco. Given the constitutional and statutory rights of the defendants, as well as our desire not to interfere in the prosecution's presentation of its case, we are very limited in what we may discuss in this portion of the report. our discussion will describe the prosecutive efforts undertaken during the standoff and following the standoff.
B. Prosecutive Efforts During the Standoff
During the standoff the United States Attorney's office in San Antonio was required to make prosecutive decisions regarding those adults who left the compound. As to each adult who left the compound the prosecutors had several options: (1) they could file charges; (2) they could seek "material witness" warrants under 18 U.S.C. 3144, meaning that a judicial officer could order the released individual held in custody or released on bond until trial; or (3) they could do nothing. The third option -- doing nothing -- would not have been appropriate, because no one could be certain about the potential criminal liability of any of the departing Branch Davidians until a full investigation could be conducted following the evacuation of everyone from the compound. Accordingly, the departing adults were all treated either as defendants or material witnesses.
Early in the negotiations there was some confusion as to whether the filing of criminal charges against any of the departing Branch Davidians would undermine the FBI's negotiating efforts with Koresh. For example, two elderly women, Margaret Lawson and Catherine Mattson, were released from the compound on March 2, 1993. The next day, the United States Attorney's Office (after consulting with at least one FBI supervisor), charged the two women in a criminal complaint with conspiracy to commit murder. The FBI complained that the charges were premature, and that news of the charges had upset Koresh and undermined the FBI's negotiating effort. The United States Attorney reversed course and dismissed the complaint immediately, seeking material witness warrants against the two women instead.
As the standoff progressed, however, the process for dealing with the departing adults became more regularized. Those who left the compound were treated initially as material witnesses, pending the United States Attorney's decision whether to charge them. Those treated as material witnesses were either held in custody, released to a halfway house, or released on bond.
As of April 19, seventeen Branch Davidians who had left the compound before the fire or who had survived the fire were named as material witnesses, as follows: