Davidian admits firing at ATF agents

San Antonio Express-News, Feb 23, 2000
By Dick J. Reavis

For the first time, a Branch Davidian survivor of the Feb. 28, 1993, shootout at Mount Carmel has admitted that he fired at two of the four U.S. Bureau of Alcohol, Tobacco and Firearms agents who were killed during the battle.

Livingstone Fagan, who was one of 11 Davidians tried in San Antonio six years ago, said in a deposition that he shot at ATF agents on the roof of Mount Carmel. Fagan gave the deposition in a wrongful death lawsuit Mount Carmel survivors and their families are bringing against the federal government.

Fagan was convicted in 1994 of manslaughter and a weapons charge and is serving a 40-year prison sentence. It's unclear whether prosecutors will file new charges based on his admission.

His deposition, taken earlier this month at a federal prison in Allenwood, Pa., was made public this week by the Houston legal firm Caddell and Chapman, which represents several plaintiffs in the civil case. Fagan is a party to the wrongful death suit because his mother, Doris, 60, and his wife, Evette, 30, died in the April 19, 1993, fire at Mount Carmel. In suit pleadings, attorneys for Davidians and their family members argue that the ATF used excessive force in its Feb. 28 raid, and that federal authorities were to blame for the fire seven weeks later in which about 80 Davidians died.

During their 1994 trial, Fagan and his fellow Davidian defendants did not take the stand. In the years since, three survivors of the shootout have testified before Congress, but none admitted firing on federal agents. Fagan maintains the shooting in which he took part isn't the one for which he was convicted in 1994.

During the Davidian trial, federal prosecutors claimed that late in the 45-minute battle, Fagan wounded ATF Agent Eric Evers, who took the stand to identify his assailant.

"I know that man over there shot me," Evers testified, pointing at Fagan.

"It's everything is etched in my brain until the day I die, because of that incident. There's no doubt in my mind that man shot me." But in his Feb. 1 deposition, Fagan says that on the morning of the ATF raid, he wasn't outdoors, as Evers testified. Instead, he was in Mount Carmel's cafeteria, firing on agents who were standing on a roof outside David Koresh's bedroom.

Fagan told federal civil attorney Marie Hagen he acted in self-defense. "Your government murdered people who were very dear to me," he declared. Hagen both cajoled and pressed for details, even offering Fagan her coat to ward off a Pennsylvania morning chill. His confession came in a sudden and startling exchange:

Hagen: "Did you shoot at them?"

Fagan: "Well, they fired at me."

Hagen: "OK. But did you shoot at them?"

Fagan: "And so I responded."

Hagen: "Did you hit any of them?"

Fagan: "I don't know specifically, because I assume that there were others, too, that were firing then."

Two of the ATF agents on the roof, Todd McKeeham, 28, and Conway LeBleu, 34, both from the bureau's New Orleans team, were killed on the spot. A third man on the roof, Kenneth King, was wounded but survived. King crawled from the roof and dropped into Mount Carmel's courtyard, where he lay until a cease-fire was arranged. In his recounting of the incident, Fagan said he watched King writhe in agony as ATF rescuers carried away the wounded man on a stretcher.

The holder of a graduate degree from a Seventh-day Adventist seminary in England, Fagan was not present at Mount Carmel for the fatal fire April 19. He had surrendered March 22, he says, because Koresh had asked him to act as a spokesman for the group.

His admission came as a surprise to fellow Davidian survivors of the 1993 events. One of them, David Thibodeau, in a memoir published in the fall, repeated the accepted wisdom among the group that Fagan, whose manner is that of a theologian, "was kneeling in prayer in the chapel while the bullets were flying."

Clive Doyle, who was acquitted in the same trial that convicted Fagan, said: "I think that I saw Livingstone standing by the door in the cafeteria, but I don't think that he was firing."

Even Fagan's lawyer in the civil suit, Kirk Lyons of Black Mountain, N.C., was somewhat startled by Fagan's revelation.

"This is a guy that's been in solitary confinement for a long time, and he's had nobody of his own mental abilities that he can talk to," Lyons said. "He's a little stir-crazy."

The plaintiff's team decided to make the deposition public, Lyons said, because Mike Caddell, the lead counsel, "believes that we have to get to the truth about what happened, that's all."

In the 1994 trial, Evers and another agent, Gary Orchowski, alleged Fagan was outside the building, on its "green" or northwest side, the area where a tornado shelter was under construction.

But during his cross-examination of Evers, defense attorney Steven "Rocket" Rosen of Houston placed the identification of Fagan by both agents in doubt. His client, Rosen pointed out, was one of only two Davidian males of African descent who were present at Mount Carmel on Feb. 28 and survived the fatal events.

Because Fagan surrendered to authorities before the April 19 blaze in which most of his co-religionists died, Rosen argued, his client was widely depicted on television. The second African-American male who survived the Feb. 28 assault, Derek Lovelock, didn't surrender until April 19 and never was indicted.

During the trial, a notation made by a Texas Ranger during a pretrial session in which Evers picked Fagan from a photo lineup was introduced into evidence. The notation said, "unsure if ID'd from TV or shooting." Orchowski, in after-action interviews, said he could not identity the assailant who, in the courtroom, he picked out as Fagan. But Rosen's cross-examination of the two agents failed to impress U.S. District Judge Walter Smith Jr., who also will hear the wrongful death suit, which is set for trial in May.

During the 1994 sentencing hearing, Smith said: "The evidence from this trial has not faded from my memory. Certain images are clear. I see Livingstone Fagan dressed in combat gear, coldly shooting down Eric Evers with a military rifle as he rounded the corner of the compound and came into view. As Evers tried to get up, Fagan shot him twice more." The man who shot at Evers, Fagan told Hagen, was a British male of African descent, who died in the April 19 fire. Fagan refused to provide the man's name.

It is unclear what effect Fagan's remarks might have upon his status as a prisoner. Because of constitutional protections against double jeopardy, "it is unlikely that they will indict him for what he says in the deposition," Lyons said.

But George Dix, a University of Texas professor of criminal law, is not so sure.

"When it's a crime to a victim, like assault or murder," he said, "it's clearly one crime per victim. Being placed in jeopardy for one victim doesn't protect you against prosecution for the other." Federal authorities were unavailable for comment Wednesday. Other Davidians who were imprisoned as a result of the 1994 proceedings are appealing their sentences, and the U.S. Supreme Court has set a hearing on their case for April.

But Fagan refused to join the appeal, he says in a recent letter to the San Antonio Express-News, because "when Judge Smith did what he did, he took the matter out of the realm of the judicial"- a phrase that in the argot of the Davidians, means the Mount Carmel gunman has placed his future in God's hands.