|Ex-Davidian prosecutor could
Probation deal pulled over public
By Lee Hancock / The Dallas Morning
Former federal prosecutor Bill Johnston could face jail
time when he is sentenced next week by a St. Louis federal
judge because the Waco special counsel has withdrawn a pledge
to recommend probation.
Mr. Johnston had hoped to avoid imprisonment after his
guilty plea to withholding information about the use of
pyrotechnic tear gas in the Branch Davidian siege from the
office of Waco special prosecutor John Danforth.
But a federal prosecutor assigned to the special counsel's
office argued in a May 17 court filing that Mr. Johnston
violated his plea agreement in statements to Texas Lawyer
after his February guilty plea.
Mr. Johnston and his lawyer declined to comment. Assistant
Special Counsel James Martin, who made the filing, also
declined to comment Thursday.
Without a probation recommendation and prosecutors'
assurance that he accepted responsibility for wrongdoing,
legal experts say, a federal judge could sentence Mr. Johnston
to six months in federal prison if federal sentencing
guidelines are followed. He is scheduled to be sentenced
Mr. Johnston was the federal prosecutor who set in motion
renewed scrutiny of government missteps in the 1993 Branch
Davidian siege. He drew national attention when he warned
then-Attorney General Janet Reno in 1999 that she and the
public were being misled about the FBI's handling of the Waco
Mr. Johnston pleaded guilty to withholding evidence in
exchange for the special counsel's agreement to drop a
five-count felony indictment against him. At the time, Mr.
Johnston said Mr. Danforth's commitment not to seek jail time
was key to his plea decision.
In the recent special counsel's filing, Mr. Martin noted
that Mr. Johnston's plea agreement included the provision that
the special counsel's commitment to recommend probation could
be withdrawn if he did anything "inconsistent ... with
acceptance of responsibility."
Mr. Martin wrote that he recently received a copy of a Feb.
19 Texas Lawyer article in which Mr. Johnston was
quoted as saying, "I didn't plead guilty to anything they
indicted me for. They charged me with obstruction of justice
and five counts of false statements. I did not plead guilty to
that and was not guilty of that."
The prosecution pleading contends that the statement shows
Mr. Johnston had "failed to accept responsibility for all his
criminal conduct." The pleading further objects that the
article included Mr. Johnston's hope that he could continue
"His statements in the article appear to be an attempt to
downplay and deny his criminal conduct to affect any action
contemplated by the state bar of Texas," Mr. Martin's pleading
Since first being targeted for prosecution by the special
counsel's office, Mr. Johnston has repeatedly said he wants to
continue practicing law. After his plea, he told The Dallas
Morning News and other Texas media that he hoped that the
state bar disciplinary rules would allow him to retain his law
license because his conviction did not involve moral
Mr. Johnston and his lawyer have previously indicated that
they refused early prosecution offers for a plea agreement
because of Mr. Danforth's insistence that Mr. Johnston be
stripped of his law license.
In its recent filing, the special counsel's office
contended that Mr. Johnston should lose his bar license after
he is sentenced. The State Bar of Texas has allowed some
lawyers to keep their licenses after being convicted of crimes
that do not involve moral turpitude.
The pleading notes that the Texas Supreme Court has held
that concealing nonconfidential information involves moral
turpitude. It argued that Mr. Johnston's "hiding evidence,
lying and submitting false certifications" similarly involve
In his guilty plea, Mr. Johnston admitted to withholding
several pages indicating that he was told in the fall of 1993
about the use of pyrotechnic tear gas during the Branch
Davidian siege. He also admitted that he lied to Justice
Department superiors when he signed a statement in 1999
certifying that he had surrendered all his Davidian materials
to them, and later lied to the special counsel's office when
he said he had no knowledge of the use of pyrotechnic tear
His withheld notes included the word "incind" – an apparent
reference to the military tear gas rounds fired by the FBI
during their final tear gas assault on the sect's compound.
Mr. Johnston was one of five prosecutors assigned to pursue
criminal charges against surviving Branch Davidians. The siege
began when four agents from the federal Bureau of Alcohol,
Tobacco and Firearms died in a gunfight after they tried to
search the sect's rural compound and arrest leader David
Koresh on weapons violations.
A fire consumed the compound 51 days later, about six hours
after the FBI began assaulting it with tanks and tear gas to
force the sect to surrender. Mr. Koresh and about 80 followers
Government officials denied for years that the FBI used
anything capable of sparking fires during their final assault.
But in the summer of 1999, the Texas Rangers began
re-examining old evidence in the case, and, with Mr.
Johnston's help, learned that at least one spent pyrotechnic
tear gas round had been photographed after the fire and a
shell casing from another had been recovered by government
Mr. Johnston then publicly complained to Ms. Reno that
other federal officials appeared to be trying to cover up the
use of pyrotechnic gas. Within less than a month, Mr. Danforth
was appointed as special counsel to re-examine government
actions in the Waco siege.
Mr. Johnston said he then found among his 1993 notes
apparent references to pyrotechnic or "incind" gas. Mr.
Johnston said he initially withheld the notes because he
feared that angry colleagues would use the notes to try to
He said that he later withheld the notes from Mr.
Danforth's office because the special counsel's investigators
treated him harshly.
Mr. Johnston has maintained that he did not recall taking
the 1993 notes until he found them in 1999, and did not
understand their significance until the issue drew national
Prosecutors hotly disputed that in their recent pleading.
"Johnston continues to try to paint himself as the white
knight who tried to force the government to tell the truth,"
Mr. Martin wrote. "He continues to try to deceive the public
and refuses to acknowledge the full extent of his criminal
Mr. Johnston's Waco supporters contend that Mr. Danforth
and his assistants are intent on punishing Mr. Johnston for
publicly embarrassing the federal government. Several noted
that he alone has been prosecuted, while other prosecutors, an
FBI lawyer, an FBI lab supervisor, ATF commanders and a former
McLennan County deputy sheriff have not been pursued for lying
or misleading authorities about their actions in the Waco
"He's the one that blew the whistle, and that's the reason
they're after him," said David Smith of Waco, who has helped
raise money for Mr. Johnston's defense. "They told him early
on that they were going to ruin him, and they've been working
on it ever since.
"We just think it's terrible that they would go back on
their word. We can't believe that of all the people that lied
and even admitted that they'd lied, and Bill is the only one
they go after."