Probation deal pulled over public comments

06/01/2001

By Lee Hancock / The Dallas Morning News

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could face jail time when he is sentenced next week by a St. Louis federal judge because the Waco special counsel has withdrawn a pledge to recommend probation.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 Thursday.

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 tragedy.

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Johnston's plea agreement included the provision that the special counsel's commitment to recommend probation could be withdrawn if he did anything "inconsistent ...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 practicing law.

"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 states.

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 turpitude.

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 moral turpitude.

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 gas.

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 died.

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 investigators.

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 discredit him.

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 controversy.

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 conduct."

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 debacle.

"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."