The raging, wind-swept fire that consumed the Branch Davidian compound on Monday possibly destroyed crucial evidence prosecutors and defense attorneys had hoped to use.
It’s still too early to assess just what effect the fire had on the prosecution of cult members who had come out of the compound, but it obviously will play a significant role in changing the face of the criminal investigation.
Arson investigators and Texas Rangers, who are heading the homicide investigation into the deaths of the four Bureau of Alcohol, Tobacco and Firearms agents killed in the failed Feb. 28 raid, now will be sifting through charred rubble instead of the fortresslike compound where Vernon Howell and about 100 of his followers held federal agents at bay for 51 days.
“My obvious gut feeling is, and anybody who has a lick of sense realizes that the fire is going to change everything,” said attorney Brad Cates, who represents cult member Livingston Fagan. “I am sure the prosecution anticipated at some point having, number one, cooperation from people in the compound in the prosecution of others, and number two, being able to obtain evidence from the compound.
“I think both of those possibilities, unfortunately for the families of those who didn’t survive the conflagration today, are considerably lessened at this point,” he said.
Fagan has not been charged but remains jailed as a material witness.
Counted on turncoats
Baylor University law professor Brian Serr said the government’s cases against cult members always relied, in part, upon convincing cult members to turn on other members, But, he added, that cooperation is not entirely necessary because of the broad-sweeping federal conspiracy and aiding-and-abetting statutes.
The fire, however, could have damaged evidence for any illegal firearms cases, which is what federal authorities had hoped to arrest Howell for on Feb. 28.
“On the possession-of-illegal-weapons violations, it is going to be harmful unless they get some oral testimony and statements from some of the individuals — defendants/survivors — as to what kind of equipment they had in there,” Serr said. “Having the guns helps the case, but it is not absolutely essential if they have testimony from other sources, undercover agents, the person who may have sold them the illegal weapons, ammunition or whatever.”
Most who have been charged so far are charged with conspiracy to murder federal agents, aiding and abetting or using a firearm during the commission of a felony.
Spokespersons with the FBI, the Texas Rangers and the Justice Department declined comment on the effect the fire might have on the investigation.
Disaster team due
FBI Special Agent Bob Ricks said Monday that the FBI’s disaster team will be dispatched from Washington, D.C., to assist with the investigation and help identify the bodies of cult members killed in the blaze.
Waco attorney Russ Hunt, who represents cult member Ofelia Santoyo, said the fire may have as devastating an effect from a defense standpoint as it could on the prosecution. It might have destroyed critical evidence or claimed the lives of potential alibi witnesses for the defense, Hunt said.
Santoyo is being held in a halfway house as a material witness.
“For example, if they say Mr. A was in a room shooting at police officers and he shot Officer B, who was behind car C, and you could say that Mr. A couldn’t even see car C from the room he was in. That could make a difference,” Hunt said. “But now, there is no car, there is no room, there is no compound. That could make a significant difference.”
Or if a defendant wanted to claim that he or she was hiding in a room with children or other cult members during the shooting, there is no one alive to corroborate the story, Hunt said.
Waco attorney Gary Coker represents three women considered material witnesses and defended Howell and seven of his followers after a shoot-out with a rival cult leader in 1987. He said the government should dispense with its criminal investigation altogether.
“They are way ahead now,” said Coker. “They had six and now they have 90. That’s 96 to 4. Isn’t that enough? It is inconceivable. That is sort of a bitter jest, but why should they do it? Revenge? I don’t understand why the government would pursue a criminal investigation against the survivors after what has happened today.”