This article appeared in the July 22-28 edition of the Houston Press, a local news and ent

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This article appeared in the July 22-28 edition of the Houston Press, a local news and entertainment weekly. It is an edited transcript of an interview by Houston Press associate senior editor Steve McVicker with Dick DeGuerin, David Koresh's lawyer. It took me several hours to type in, so I hope you find it interesting and that I don't get flamed excessively for posting such a long article. Regards, John R. Kennedy ---------------------- begin article ---------------------- McVicker: When did you first hear about the initial failed raid and how did you get involved? DeGuerin: I first heard about it like most people did, the evening of Sunday, February the 28th, on the news. It was big news; four federal agents killed. I heard, of course, that it was the ATF and I immediately suspected that they were at fault, because I know the long history of the ATF using excessive force, abusing their authority. I thought, like I'm sure a lot of defense lawyers in Texas did, it's a dream case to get involved in, and would present a lot of challenge and a lot of problems to any lawyer attempting to overcome the killing of four agents. But I had no real specific indication I was going to get called until about a week later. McVicker: Koresh's mother called you? DeGuerin: First call I got was from a lawyer [Kirk Lyons] originally from Houston, who had referred a murder case to me a couple years earlier. He was putting together a defense team for a number of the Branch Davidians.... He asked me if I would be interested in being on that defense team. I told him no, but that if David Koresh were to call that I would consider representing him.... He said, "We can't get in touch with David Koresh, but we're in touch with his mother." The next thing I knew I got a call from her.... She asked me if I would help. I said I would, but because of the intense publicity going on I didn't want to be seen as an ambulance chaser, and I wanted to make sure I had authority from someone that had the authority to hire me. So I got her to fax me a letter asking me to help her son. With that, I went to Waco.... I didn't agree to take any money from her. She engaged me as mothers or relatives of someone in trouble often do... So far it's pro bono.... I hope to be able to write a book about it, sometime in the future. McVicker: Going back to the beginning--what do you think was the one thing that made the ATF go in on that Sunday in February? DeGuerin: First, you have to understand that the ATF stands for "Alcohol, Tobacco and Firearms" and it is, in essence, a tax agency. Their mandate began as revenuers. Only late, 1968, did they take over responsibility for policing and taxing the manufacture and sale of firearms. So, they have a mandate and a right to investigate the firearms business. The manner in which they did in this case is a classic example of abuse and authority, and the use of excessive force. They didn't have to do what they did, the way they did. They were, early on, given opportunities to peacefully inspect the Branch Davidian community and to see all the firearms there and they rejected that. McVicker: Koresh had talked to ATF agents in the past and invited them in? DeGuerin: Through an intermediary, he invited them in, in July of 1992--said if there's any problem with what we're doing here, come on out and look at the guns, inspect them and we'll show them to you. That was rejected by the agents. What they wanted to do was build a criminal case through surreptitious means, rather than openly inspecting all the guns. I guess you have to understand the Rambo mentality to understand why these ATF agents and their supervisors wanted to do that. But there were a lot of other factors that were working there. McVicker: Like budget-cutting at ATF? DeGuerin: Exactly. They've got to justify their budget by doing things the hard way. If they don't justify their budget, then it gets cut. Now it's a given fact that in January of 1993 the House Appropriations Committee notified Stephen Higgins, head of the ATF, that he would have to appear before that committee on March the tenth and then and there have to justify his budget, his goals, his means of training and so forth. That was another factor. In the search warrant affidavit where the agent swears out reasons for the judge to issue the search warrant, there were a number of falsifications and number of facts with- held that would have made a truly neutral magistrate pause, and hesitate to issue the search warrant. For instance, in the affidavit it mentioned that neighbors had complained about hearing automatic gunfire. Well, that's true. The neighbors had complained.... What the affidavit failed to say was that those complaints of automatic weapons fire had been investigated by the sheriff's office and found not to be true. There was some allegation of child abuse in the search warrant. In the first place ATF doesn't have any mandate or right to investigate child abuse. But what the search warrant failed to say was that those child abuse allegations had been thoroughly investigated by Children's Protective Services and had been found baseless.... This isn't an isolated incident, the way the ATF operates. You ask any criminal defense lawyer who's been in the business long enough, and they'll tell you what the reputation of the ATF is, across the country. McVicker: What were your thoughts on your first trip to the compound? What sort of instructions and what sort of discussions did you have with the FBI? DeGuerin: Well, first the FBI tried to scare me. They said that I ought to wear a flak jacket and that they weren't going to allow me to get any closer that the outside fence, which was about 20 yards from the front door. Said they didn't want me to end up being a hostage, or didn't want those on the inside to shoot at me, or to grab me and take me inside. I said that wasn't acceptable, because I'd have to shout my conversations with my client and I wanted a private conversation. They said they were worried about my safety and I said I wasn't, because I was on [the Davidians'] side. They're not going to hurt me. I'm their ray of hope. So they had me sign a global release, releasing the FBI and the Justice Department and the entire United States government from any harm that would come to me. [Laughs] The next step was actually getting up there. They said they would allow me to at least go to the front door and I could sit there and converse with my client through the door. They put me in the back of a tank and drove the tank up to about a hundred yards of the front door and opened the back door of the tank, frisked me very carefully, and said, "Okay, son, you're on your own." So I walked around the tank and up the next hundred yards to the front of the building.... [I] walked up and knocked on the front door. Steve Schneider came to the front door and we stood there and talked. Then Koresh came down and we talked for about two hours. McVicker: Did you go in during that first meeting? DeGuerin: No. That first day, the rule set down for me by the FBI was that I could only stand at the front door, and if everything went okay maybe I could go in. Sure enough, they didn't grab me or kidnap me. Actually, I thought I was in more danger from some of those FBI snipers that were ringing the place than I was [from] David. I was concerned that if David showed his face a sniper might shoot at him and hit me by accident. McVicker: What did you make of the two of them during your conversation that day? DeGuerin: Steve Schneider was very friendly and glad to see me. David Koresh was very glad to see me. Very factual. We talked about the original raid and a little bit about who I was. It was a get-acquainted kind of meeting. He knew about me from [a Waco-related] case that I had recently tried.... We got along very well. McVicker: How was it decided that you would be allowed to go inside? DeGuerin: After that evening, I met with the FBI agents and told them that I would not tell them the content of our discussions and would not report on the conditions on the inside. I told them I would not be a spy for them or reveal anything that my client told me, or that anybody else told me, because as a lawyer you have a right to interview witnesses and to keep that information confidential. The FBI accepted that. I did tell them that I thought we were making progress, that I thought when I fully explained to David and the others what was facing them and my thoughts that we could get a fair trial, and that we could expose the ATF and their excessive force and law-breaking, that we stood a chance of actually prevailing in court.... So by me telling them that I thought we were making progress, they said if you think going inside would help, we'll agree to that. McVicker: How many meetings did you have? DeGuerin: I went inside the building on four separate days that week and then went back on Sunday and went inside. McVicker: What sort of condition was the place in? DeGuerin: Spartan. The Davidians had been building that series of buildings for several years from the ground up. They didn't have contractors or any outside help. They were building it with scrap materials, so it was not the best construction. But it was clean, pleasant and it was Spartan.... It was damaged, in that almost every window was shot out. They had sheets and pillow cases and trash bags covering most of the windows. There was no electricity, so they didn't have any electric lights. They had Coleman lanterns in a lot of the rooms. They had food and drink and water. McVicker: Did most of your conversations deal with legal matters or were they ever of a spiritual nature? DeGuerin: Most of the conversations were factual or legal, talking about conditions in jail, what to expect in the coming months once we got into the criminal justice system. There were some spiritual discussions and I asked for an explanation of his spiritual position and what his beliefs were. Didn't ask to be converted, but I wanted to get an idea of how his beliefs impacted on what they were doing then, how it might impact on the trial, and how persecution, which they felt deeply, might play a part in the defense. McVicker: Did Koresh believe he was God? DeGuerin: No. Never said that he was. Nor did he ever say he was the Son of God. Nor did he ever say he was Jesus Christ. That's a perversion of what he said. It's part of the government plan to demonize him and to make him look ridiculous or evil. McVicker: Was he aware of the monitoring devices that had been sent into the compound with other items? DeGuerin: They found most of them. They didn't find all of them. Actually, I kind of hoped that some of them got through and that the FBI was monitoring our conversations because I didn't have anything except my memory and my notes to rely on. I'd love to have a tape recording of all those times we were in there. But what they told me was that they had found listening devices in almost every package the FBI sent in, and dismantled them. McVicker: Did you ever feel like you were being used by FBI? DeGuerin: I didn't feel I was being used in an evil way. I knew we had parallel interests. To the extent the FBI could use me to get David and the others to get into the criminal justice system, I was certainly willing to offer [myself] to do that. Because that's the same interest I had. As his lawyer, I want him the criminal justice system safely, without being killed. McVicker: If he had been able to get into the legal system, what do you think would have been the charges, and the eventual outcome? DeGuerin: The charges were clearly going to be, by the time the original raid was over, conspiracy to kill federal officers. That's what has been filed on several of the survivors. Once the raid took place and four federal agents died, then practically every able-bodied adult was going to be charged with that. That's the way the government operates. I don't think there would have been any evidence that David Koresh held or fired a weapon during that entire stand-off. So it would have been difficult for the government to prove that he had anything to do with the actual shooting of any of the agents. I interviewed one of the Davidians who admitted to me that he had shot several of the agents, and frankly, he had a very good defense. Because they shot at him first and he was simply shooting back at someone who had invaded his home and was shooting at him. Now, the law is that you don't have the right to resist the lawful execution of a warrant. The way to contest a warrant is in court. But you don't have to submit yourself to being killed. In other words, if a warrant is being unlawfully executed by the use of excessive force, you or I or anybody else has a right to resist that unlawful force. If someone's trying to kill you, even under the excuse that they have a warrant, you have a right to defend yourself with deadly force, and to kill that person. That would have been that person's defense, and it would have been David's defense. Conspiracy, on the other hand, makes everyone who's a member of a conspiracy equally responsible under the law for a criminal act. So that would have been the difficulty with Koresh. The government would have claimed that David Koresh either authorized or ordered [the others] to do his bidding. That would have been difficult to prove also. Because contrary to the government picture of this, this wasn't a group of organized, militant religious fanatics. It was a group of highly religious people. But they certainly weren't very organized and there wasn't any kind of plan to kill all the agents. It happened that the ATF stormed that place with excessive force. Those on the inside with the ability to fight back, did. McVicker: Once they took over, did the FBI handle this like a hostage situation? DeGuerin: They never revealed their rules of engagement or their strategic plans to me.... What the FBI misinterpreted was the willingness of the other people there to be there and to stay there. It was their home. They felt persecuted. They felt there was no justification in asking them to give up their home, and it really was their home... The search warrant doesn't say, "You are hereby dispossessed of your home and all your worldly belongings 'til we decide you can have them back." It simply says that the agents are allowed to go inside and to seek evidence of wrongdoing. As for how the FBI handled it, the FBI needs to be given credit for pushing the ATF back, number one, and secondly, maintaining a peace for 51 days. For 51 days not a soul was hurt. There wasn't a shot fired. I have some criticism of their tactics during that time because they were using these horrible screech machines and tearing up all the property around there and crushing the kids' bicycles and tricycles and running over cars and boats and trucks. I think that was counter-productive. Seriously counter-productive--if the FBI wanted those on the inside to rebel and come out, rebel against some kind of leadership that was keeping them there.... What it had the effect of doing, even if they weren't already bonded by their religion, is it bonded them together. That's what the FBI was doing. They were giving them resolve to resist more and more. McVicker: Where were you on Day 51? DeGuerin: I was in Denton, Texas. I was preparing to go to trial in a [different case]. When I got back to the hotel room from my morning run, I turned on the television and there were the tanks rolling. I knew then it was going to end today. I didn't know how. I didn't think it was going to be good. I was very upset. I called the FBI and said I'll be right down there, stop what you're doing. Let me go back in there and see if I can bring them out now. Looks like you're going to tear the building down. The FBI agent said, "Well, we don't need you." Nonetheless, I went to court ... and told the judge what was happening and [that] I felt my presence in Waco was necessary and that I might be able save some lives if I got down there in time. The judge allowed me to leave, and I was driving to Waco when the fire broke out. [At this point in the interview, DeGuerin paused to rub his eyes with his hands.] McVicker: What did you do then? DeGuerin: Kept coming. Wasn't much I could do. By the time I got to Waco it had already burned to the ground. McVicker: What were your thoughts when you heard about the fire? DeGuerin: I thought about what a tinderbox the place was. It was made out of plywood and used lumber. There were hay bales throughout the building used as blockades against the wind and against the ATF from the outside. There were Coleman lanterns that were being used for light. They had some butane and propane heaters on the inside. They were also using candles. What happened on April the 19th was just a totally botched, totally mismanaged affair that resulted, no matter how you cut it, in at least 80 deaths. McVicker: According to Time, [Attorney General Janet] Reno and the FBI didn't want to use water cannons on the building because that might have compromised its structural integrity [DeGuerin laughs], yet they punched holes in the building with tanks. DeGuerin: Frankly, I think Reno's whole decision-making process was flawed because she got bad information. She came out very strongly on the first day, saying that the ultimate reason [for the assault] was the perceived danger to the children. She was told that the children were in increasing danger from abuse. Well first, I don't believe it. But, secondly, I can't imagine a more abusive thing to do to a young child than to force that young child to undergo a tear-gassing. So for Janet Reno to say that she gassed the children to save them from being abused is ludicrous. Nothing had happened. No one was in any danger. They were making progress on the task that David said was what they wanted to complete before they came out, and that was his interpretation of the Seven Seals.... If you'll recall, the FBI said ... that it was just a ruse. There's proof that they were doing that. [The disk containing work on the interpretation] survived the fire. Then, you simply couldn't have devised a worst day to do it on, [during] 30- to 40-mile-an-hour winds. You don't throw tear gas down in winds like that, and then make more holes in the building so the breeze can come through because that's going to disperse the gas. It also makes a highly volatile fire situation. When you look back at [FBI] stand-offs in the past, it's amazing how many of them have ended in immolation. Look at the Symbionese Liberation Army, look at Philadelphia, the MOVE movement, up in Arkansas there was another one. The chance of starting a fire was so great that if they didn't adequately consider it, they should have. McVicker: You don't think there's any chance that the fire was intentionally set [by the Davidians]? DeGuerin: Oh, I think there's a chance of it. But I don't think it happened. That's not what the survivors have said to me. That's not what they believe as to how the fire got started. I mean, this was their home. It would take a really twisted mind, and I don't think these people were twisted. I think they had some unusual religious beliefs, based on the Bible. They were very fervent about their religion. But twisted enough to burn down everything they had built up and lived with? I don't think so. McVicker: You don't think Koresh was twisted? DeGuerin: I think that he was very unusual. I think that he had very strongly held beliefs. Twisted? I wouldn't call him that. That's because I don't buy off on this government line that he was a child molester. McVicker: What about talk of mass suicide? DeGuerin: Any of the surviving Branch Davidians will tell you that that's something that's repugnant to them under their religion. Suicide is repugnant. I just don't believe that's what happened.... I think with another week or two the whole thing would have been over without any further loss of life, and then everybody would have been a hero. All the FBI had to do was sit back and wait. McVicker: There have been a lot of news stories recently about Reno, like a campaign to enhance her image. Have you made much of that? DeGuerin: I'm very pleased that we have an Attorney General, finally, after 12 years, who will accept responsibility. But it's SO refreshing, it's such a SHOCK to have that, that when she grabbed the blame for herself, it deflected any other inquiry.... She said, "I'll take the blame, but it's all Koresh's fault." [Laughs] Well, that's not really taking the blame. No matter what you believe [about who started the fire], it happened because the FBI rolled the tanks and shot the tear gas. McVicker: Do you think Koresh deserves blame? He could have let those children go, rather than them becoming pawns in the whole thing. DeGuerin: I don't think the children were really pawns. They were used as much by the FBI as an excuse to go in as they were used by Koresh. The children were not being kept against the will of the parents of the children. There were some children who were sent out by their parents. The children who were still there had their parents with them. The parents wanted them to be there. So, I think it's a misstatement to say that there was anyone there who was being kept against their will. McVicker: Where are the [congressional] hearings? DeGuerin: Well, that's a good question. It kind of fizzled.... I got one call and never heard back from them. I may have blown my chances with Senator [Dennis] DeConcini when I told him I didn't think he could be fair. I doubt if he'll call me to his committee. McVicker: Why don't you think he could be fair? DeGuerin: Well, he showed up on Larry King with a hand grenade and a 50-caliber bullet to explain what had happened in Waco--[yet] he wasn't there, as far as I can recall. If he's supposed to be the judge and the jury in the Senate hearing, he's already made up his mind.... McVicker: You talked briefly about possible suits. Where do you stand as far as filing anything? DeGuerin: [Koresh's mother and half-brother may] file a suit. I will not be the lawyer on it. I think there certainly will be lawsuits, filed by other survivors or by ... families of persons that were killed in the compound. McVicker: I see that this week they closed the road to the compound. DeGuerin: Yeah. I thought they closed it in order to keep there from being a memorial service over the July the Fourth weekend. In fact, they threatened to do that. But reason prevailed and they left it open for members of the families of the Branch Davidians to have a service out there. McVicker: Do you think people have missed the point on this whole thing? DeGuerin: Yeah--and here's how it happened. The government has put its spin, and they're very good at that, on the Branch Davidians and David Koresh. They've painted him out to be a monster. Because it's much easier for the general public to accept, than [that] the fuck-ups of the U.S. government are why he's dead right now. It's much easier to accept a military force invading a private home if the person in the private home is an evil person. It's much easier to accept that our government surrounded these people with tanks and then destroyed their home and killed them all, if they're different from you and me. That's what happened. [Even] if David Koresh was having sex with children and was a religious nut, it doesn't justify the government violating the Constitution. McVicker: How do you feel about the role the media played? DeGuerin: If the media hadn't been there, the abuse by the government probably would have been much worse. As it is, the fact that the media were there in force, probably kept them alive for 51 days. On the other hand, I've got some real problems with reporters simply trucking over to the FBI briefing every morning at 10:30 and then regurgitating what they hear. Without fact-checking. Without back-checking. Without doing some digging. A few people did. And a few people got out the word that not all was what the government said it was.... A few people did their jobs. And since the briefing only lasted an hour a day, that left 23 other hours that that vast media apparatus could have been out really digging and getting to the bottom of all this. ----------------------- end article -----------------------


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