Representing a “Cult” Leader: Dan Cogdell on the Waco Trial

Showtime premiered a new limited series this weekend, “Waco: The Aftermath,” about the 1993 siege of a compound controlled by the religious sect known as the Branch Davidians. While the 2018 limited series, “Waco,” told the story of the nearly two-month standoff between the sect members and law enforcement – which led to the deaths of 82 members and four federal agents – the new series covers what happened after the armed conflict, including the investigations and seven-week trial of 11 members of the Branch Davidians.

We caught up with Dan Cogdell, the distinguished Houston criminal defense attorney who represented Clive Doyle, who was facing charges over the murder of the federal agents. The siege and the trial gripped the nation, and the themes of religious extremism, homegrown militia movements and brutality by law enforcement are still playing out today.

The Branch Davidians, widely portrayed as a religious cult, were accused of stockpiling illegal weapons. On Feb. 28, 1993, state and federal agents raided their compound and the Davidians used arms to defend their home and families. Four federal agents and six Davidians died in the gunfire. A 51-day standoff ensued until April 19, when the FBI teargassed the compound. It became engulfed in flames, killing 76 sect members, including 25 children and two pregnant women.

Cogdell – played by Giovanni Ribisi in the Showtime series – hesitated to take the case on at first. The media had been covering the siege relentlessly for weeks, framing the Branch Davidians as unhinged cultists. But, particularly after the fire, the government’s misconduct started to look egregious to Cogdell. Then he met Doyle and realized he was simply a person who’d been through hell and was in need of defense. With Cogdell’s advocacy – and the whole nation watching – Doyle was acquitted of all charges.

Lawdragon: How did you come to represent Clive Doyle?

Dan Cogdell: When the fire happened, I was transfixed just like everybody else. Dick DeGuerin, a very good criminal defense lawyer, asked me if I wanted to represent Clive Doyle, who had survived the fire. At the time, there were 100 or so people on trial, and you were meant to volunteer your time. Well, I had a new wife and had just bought a house, and I didn’t think I could volunteer for a trial that could take two or three years. But Dick said, just meet him. I agreed, but wasn’t making any promises.

The best way to demonize anyone is to call them a member of a cult, and I bought into that like everybody else in the country. I was expecting some absolute lunatic who participated in child sex abuse and everything else. Well, after spending about five minutes with Clive, it was pretty obvious to me that his being a Branch Davidian was about as normal as Catholicism is to a Catholic. He was raised a Branch Davidian. That was the only religion he'd ever known, and he didn't know an AR-15 from a BB gun.

I met him in his hospital room, in the burn unit. His legs are handcuffed to the bed because he was burned over 40 percent of his body. CNN was playing, and the screen crawl was publishing the names of the deceased. That’s how he learned his daughter had died in the fire. He broke down, as any parent would. I decided then and there to take on the case.  

During trial we received a bunch of letters from folks.... It was really about 50/50 “way to go” or “rot in hell.”

LD: Had you been following the siege as it unfolded?

DC: Definitely. I was gripped like everyone else in the nation. There were only 15 or 20 television channels back then, and it was the lead story on every channel. “The wackos from Waco.” I totally bought into it. Even seeing the tanks drive around this house, hearing stories about them blasting Nancy Sinatra’s “These Boots Are Made for Walking” all night so the residents couldn’t sleep – I thought the federal agents were just doing their job, trying to get these crazy outliers that didn’t have the sense to surrender for the obvious crimes they’d committed.

It wasn’t until the fire that the horror and wrongfulness really slapped me in the face. It was around noon on April 19, I was in a misdemeanor court, a DWI trial. The judge stopped the trial and turned the news on. We all just sat there watching it. It was like 9/11, where you couldn't take your eyes off it. I became more open-minded to how outrageous the government’s misconduct was.

LD: How long did you have to prepare for the trial?

DC: Ten months. Prepare is a little elastic, to the extent that under the federal rules back then, you weren't entitled to a lot of discovery. You got the Jencks Act material, the discovery, the night before the witness testified. If the judge was a difficult judge, and Judge Walter Smith was the definition of a difficult judge, the judge wouldn't require the government to produce the memorandums of witness interviews until the night before the witness testified. So, you were literally learning the identity of the witness and what they were going to say only the night before they testified. 

LD: Did Clive or any of the other defendants testify?

DC: No, none of them did. That was a group decision with the rest of the defense team. The Davidians believe in a thing called the duality of man, which means they could separate David Koresh the man from David Koresh the prophet. So, they wanted to wave the Koreshian flag and testify as to what a wonderful man he was. The jury wasn’t going to buy it. The guy went to strip joints and had sex with 15-year-olds and cheated on his wife with other members’ daughters. No jury was going to see him as a holy prophet. The core beliefs of the Davidians didn’t make them guilty, but it made them difficult to understand and believe.

So, we kept the focus on the horrific and outrageous conduct of the government.

LD: How closely were you working with the rest of the defense team on case strategy? 

DC: It was a group effort, for sure. We started out as a garage band but we were a goddamn symphony when we finished. We played off the strengths of each other. There were a lot of damn good lawyers on that case.

LD: How did you handle being in the middle of the media circus surrounding the trial?

DC: I just kept my head down and worked my ass off. But it was interesting, during trial we received a bunch of letters from folks who either loved or hated the government, and would either praise or excoriate the lawyers. It was really about 50/50 “way to go” or “rot in hell.” I got a letter from a fellow by the name of Tim McVeigh. I remembered the name because it was the same name as my paper route manager when I was a kid. It was a “government is evil” type of letter, very acidic. I happened to hold on to the letter; I held on to about half of them.

Months later, I’m in a different trial here in Houston, in federal court, when a bunch of suits blow into the room. They go right up to the judge without even a “May we?” So, I assumed the suits must have had initials after their name. I figured FBI. You can tell by the shoes most of the time. They called me over, asked if I represented Clive Doyle. This was the day the Murrah building was bombed, in Oklahoma City. They thought he did it, basically because he was the only Branch Davidian that was acquitted and still living in the Waco area. I was like, there’s no way. I knew the guy. He wouldn’t blow up a basketball with an air pump. 

A couple days later, they identified Tim McVeigh as the bomber. I called the FBI agent and said, “I may have something for you.”

LD: Wow. That’s eerie.

DC: Yeah. Made my blood run cold.  

LD: So Clive was acquitted. What was the result for the other 11 defendants?

DC: Two others were also acquitted. The other nine were all acquitted of the most serious charges, but convicted of much lesser charges. That didn’t stop Judge Smith from maxing everybody out to the extent the law allowed. Clive was the only one of those acquitted who didn’t have an immigration hold, which meant he was the only one that walked out of the courtroom. The other two got deported back to Australia. 

LD: This case happened 30 years ago. But there’s this new Showtime series, a sequel to the first one which was very popular. What do you think explains the lasting fascination with this case?

DC: I think it was the beginning of the great divide that we're in today. The Branch Davidian case was a very polarizing event. When the government engages in that sort of misconduct, and when it's played out, when it's livestreamed, it leaves a mark. In politics today, there's never been a bigger cleavage, a bigger distance between the right and the left. The right has embraced the Branch Davidian event as proof that our government is out of control. Donald Trump even announced his reelection campaign from there. 

LD: Did you ever imagine taking on a case like this back when you were in law school? 

DC: I don’t think I did. But now, when I talk to other lawyers about this case, I say I wish every lawyer had a Branch Davidian case in their career path. The misconduct of the government in that case continues to put a little oxygen in my lungs, even 30 years after the fact.

What we do as criminal defense lawyers, it's a hard racket. The juries don't like you. The judges don't like you. The odds are overwhelmingly against you. It's really easy to tell yourself, "No matter how hard I try, it's not going to make a difference. To hell with it. Let me have a drink and go to bed. The outcome's going to be the same either way. Why am I going to bust my arse for a losing cause and for a difficult client?"

The Branch Davidian case was a very polarizing event. I think it was the beginning of the great divide that we're in today. 

Now, thirty years after the fact, part of the reason I still walk the floors at night and try as hard as I can is because I realize that defense lawyers are such an important part of the process. If we don't stand up and defend people who are, in the eyes of many, indefensible – who will?

And the case has done so much for me. Sure, the attention is positive and it helped from a case generation standpoint, but cases come and go. A career is here to stay, and unless you have the mettle to get back into it and stay in the fight, it's easy to quit training. Unless you remember how important the fight is, you ain't going to get up at 5 a.m. and go train.

LD: What made you first want to become a lawyer?

DC: I joined law school with a singular focus: to work for and learn from Richard “Racehorse” Haynes, who was one of the country’s preeminent criminal defense lawyers. I saw him on the television every night, and I also knew him because we both raced motorcycles. I was in undergrad at University of Texas and trying to figure out what to do next, with my smoking hot 2.8 GPA and a rejection from the MBA program. Haynes had just tried the T. Cullen Davis cases, who to this day is the richest man ever to be charged and acquitted of murder. It was an incredible series of cases. Well, I happened to know that Haynes was a really bad motorcycle racer, so I stupidly figured, criminal defense must not be that difficult. Deep analysis and logic went into this. 

So, I went to law school so I could work for him, which I did for six years. I’ve since tried cases all over the country with really, really good lawyers. More often than not, really, really good lawyers are assholes. They’re self-absorbed. They’re sharp-edged, condescending, difficult people. Haynes was the antithesis of that. He was gracious. He was funny. He was welcoming. The harshest criticism I got from him was along the lines of, “Well, that’s one way to do it, but here’s another way to do it,” instead of the abuse and vitriol you can get from some senior partners.

LD: So then the Waco case was your first major trial without Haynes. What were some of the lessons you took from him into this giant trial?

DC: The biggest lesson I learned from Haynes, particularly in that context, is there's no one case that defines your career. Focus on the case, not on how it might affect you. Because we had a lot of lawyers in that case, a lot of really good lawyers. A couple of them were just absolutely obsessed with the media and sound bites. Don't get me wrong, getting between me and a camera is dangerous airspace. But I learned from Mr. Haynes, having been a part of a number of high-profile cases with him, that it's the case that matters, not the attention.

So with the Branch Davidian trial, I just kept my head down and went to work. I was working literally 18, 20 hours a day, sometimes more, and not because I'm just so committed and all of that, I'm a slow learner as well. I'm not fast. It takes me twice as long to learn anything. My personal history bears that out as well. Mr. Haynes taught me work ethic, tenacity, and focusing on the case above all else. Hard work and commitment triumph over natural talent 24/7.