U.S. not responsible, Davidian jury says

Judge must still rule, but sect's lawyer calls decision final

The Dallas Morning News, July 15, 2000
By Lee Hancock

WACO - Federal authorities were not responsible for the gunfight that began the Branch Davidian siege or the deadly fire that ended it in 1993, a five-member advisory jury ruled Friday.0 Government lawyers said the decision, reached after 21/2 hours of deliberations, vindicates federal actions in the nation's deadliest law enforcement tragedy and should end seven years of controversy over the siege.

Government lawyers said the decision, reached after 21/2 hours of deliberations, vindicates federal actions in the nation's deadliest law enforcement tragedy and should end seven years of controversy over the siege.

"The Branch Davidians started the fire, burned down their own complex, and caused this tragedy to happen. I think what this shows is that the responsibility for this tragedy is with David Koresh and the Branch Davidians," said U.S. Attorney Mike Bradford of Beaumont, who headed the government's defense team in the Branch Davidians' wrongful-death lawsuit.

"I hope that this puts to rest concerns about federal law enforcement's activities out there," he said. "I think this is a tragedy that has gone on for many years. And I would hope that this does put it to rest."

Lead plaintiffs' attorney Michael Caddell of Houston said he views the decision as final, even though U.S. District Judge Walter Smith reminded both sides Friday that the jury verdict was only advisory and he alone would make the final decision in the case.

Mr. Caddell said he will not pursue the sole undecided issue in the case: whether government agents fired guns at the Davidian compound and cut off escape routes when it burned on April 19, 1993.

Other lawyers involved in the lawsuit indicated that they still plan to pursue the issue, which Judge Smith has tentatively set for two days of hearings in early August.

"It's over," Mr. Caddell said. "I'm not someone who pursues lost causes," he said, adding that he told the court late Friday afternoon of his decision.

"We recognize that there will be no judgment issued by Judge Smith against the government," he said. "I think the vast majority of the American people will take this as the final word."

The case

The $675 million lawsuit contended that the government should be held at least partially responsible for the raid that touched off the 1993 standoff on Feb. 28, 1993, and the inferno that ended it 51 days later.

Four agents from the federal Bureau of Alcohol, Tobacco and Firearms died when a gunbattle broke out as they tried to search the Davidians' compound for illegal weapons and arrest Mr. Koresh. Six Davidians also died in the February raid. About 80 perished in the fire that consumed the compound on April 19, 1993.

Lawyers for the sect argued that FBI tanks touched off or helped spread the fire when they smashed into the compound during a tank and tear gas assault. They also alleged that the decisions of the FBI's commanders to send the tanks deep into the building and to have no provision for fighting fires that day violated the Washington-approved plan for the tear gas operation.

During the four-week trial, jurors heard graphic and sometimes emotional testimony from federal agents involved in the standoff, as well as depositions from the FBI's top leaders in 1993 and Attorney General Janet Reno. Much of the plaintiffs' case centered on internal FBI documents from the siege.

Playing the tapes

Lawyers played a 911 tape made during the gunfight and also aired the now-famous footage of the melee recorded by a cameraman for KWTX, a Waco television station. Jurors also heard the faint voices of Davidians captured on FBI bugging devices. They included taped conversations in which Mr. Koresh laughed about watching an ATF agent get his head blown off and he and other followers later discussed pouring fuel and lighting fires just before the compound burned.

For the first time in a federal courtroom, a jury heard from the Davidians themselves. None of the surviving sect members ever testified in the 1994 criminal trial also presided over by Judge Smith, which ended with eight being sentenced to lengthy federal prison terms for manslaughter and gun violations.

Seven sect members were among the 49 witnesses during the trial, and both sides presented excerpts from depositions of 11 more current or former Davidians.

Government lawyers used those sect members' words to try to portray them as willing to surrender themselves, their wives, and their children to their self-proclaimed messiah, Mr. Koresh.

Government lawyers also spent more than a day detailing the 300 weapons amassed by Mr. Koresh. Jurors saw charred remnants of a .50-caliber sniper rifle and illegal AK-47 and AR-15 machine guns. They heard Texas Rangers testify in awe about the sect's arsenal, including one who said the number of guns and bullets found in the sect's bunker rivaled anything he'd ever seen at Texas National Guard headquarters.

Mr. Caddell said Friday that he believed that firearms evidence was the deciding factor in the jury's verdict. "It may be that at the end of the day, that for the jury, having that many weapons that close to Waco was just too much for them," he said.

On Friday, jurors retired about 12:30 p.m. to answer a series of questions put to them by Judge Smith. By 3 p.m., the three women and two men on the panel had unanimously agreed that the ATF had not fired indiscriminately or used excessive force. They also agreed that the FBI tanks' actions were not negligent and did not contribute to the fire, and that the FBI commanders were not negligent in their decision not to try to fight any fires at the compound during the tear gas assault.

Jury's exit

In a striking break from most jury trials in state and federal courts, Judge Smith dismissed jurors and had them escorted out of the building before announcing their verdict.

"The jurors have informed me that it is their unanimous decision that they have no desire to talk to anyone, attorneys or news media," said Judge Smith. "They have already left the building and won't be available."

From the beginning, when jury selection began June 19, Judge Smith ordered that jurors remain anonymous.

Friday, he sternly reminded both sides before closing arguments that the jury's verdict would only be advisory. Speaking at length to the packed courtroom, the judge expressed amazement that Mr. Caddell had told reporters the previous day that he viewed the judge's planned jury instructions in the case as an attempt to "engineer" a verdict favorable to the government.

On Thursday, Mr. Caddell said the judge's decision to lump all sect members together in one group – instead of asking jurors to consider each individual's actions during the standoff – ignored the law. He said the judge's instructions also failed to follow Texas law, which applies in the case under the federal statute that allows private lawsuits against government agencies.

But the visibly angry judge disputed that criticism at length Friday morning, noting that it was Congress that decided not to allow the issues in the case to be decided solely by a jury. Federal laws dictating when government agencies can be sued require that such litigation be decided by judges, but federal judges do have discretion to impanel advisory juries.

"First of all, I have not in any way tried to engineer the jury instructions or the verdict form in order to have a particular result happen. I have tried to simplify the jury charge to get to the bottom line in the issues that are of interest to me and the public in this case," he said. "A jury makes a decision. The jury advises the court. I can take its advice or I can reject it. I consider their verdict to the extent that I want to."

Morning arguments

The jury's decision came after a morning of impassioned arguments about who should be held accountable for what went wrong in 1993. Plaintiffs' lawyers' warned jurors that the government must be found negligent to avoid a repeat of the tragedy.

"If the ATF and the FBI's conduct at Mount Carmel did not involve excessive force and negligence, then the U.S. government can employ this exact self-same conduct with impunity against any group in America, and no one here will be free from the violence of their own government," said former U.S. Attorney General Ramsey Clark. "It has to be stopped."

Mr. Bradford countered that the sect alone started and ended the confrontation with unimaginable violence, first ambushing federal agents without provocation and then immolating themselves instead of submitting to lawful authority.

"They could've ended it at any time by simply surrendering and not resisting arrest," Mr. Bradford said. "We should be shocked and outraged by the conduct of David Koresh and the Branch Davidians, but what we have instead is this lawsuit. It's a lawsuit that puts on trial the men and women of the ATF and the FBI."

Who fired first?

Mr. Caddell argued that none of the 10 agents who testified in the case "could tell us who started fired first. ...You heard testimony, the uncontroverted testimony that David Koresh, as evil as he was, was standing at the front door unarmed."

But Mr. Bradford said the sect clearly laid an ambush after being tipped off to the coming raid. He noted that the 10 ATF witnesses and 28 additional agents whose post-raid statements were read to jurors "described the same experience."

"As soon as they exited and approached Mount Carmel, it exploded with gunfire, he said. "Within seconds, agents were pinned down behind cars, behind air conditioners, behind propane bottles, behind anything they could. ...They found themselves in a fight for their lives."

Mr. Bradford conceded that "we may never know exactly where the first shot came out of Mount Carmel, because it happened so quickly, and it happened so fast." But he said the plaintiffs had offered no evidence that any of the agents' gunshots during the ensuing battle were unprovoked.

Lawyers for the plaintiffs repeatedly told jurors that the government must be held at least partially responsible for the awful deaths of the sect's children. More than 20 died, but government lawyers introduced autopsy reports during the trial that showed five of the children died of gunshots and one was stabbed.

James Brannon, a Houston lawyer representing the estates of three of Mr. Koresh's children killed in the fire, conceded that the children might have been "no more than hostages for their parents."

'Rescue the innocent'

But he ridiculed the response of the FBI and its Hostage Rescue Team. "Their idea of rescue is knowingly putting gas in on children who have no gas masks?" he said. "First, you rescue the innocent."

Mr. Caddell asked jurors to consider how their decision might affect the lives of other children caught up in future conflicts between the government and "evil" madmen like Mr. Koresh.

"The scariest thing in this case is that there will be another David Koresh," Mr. Caddell said. "So this case is about the next children who will be with the next David Koresh, and the next, and the next. What we do here ... will determine what happens to those next children."

But Mr. Bradford said the Davidians alone sealed their children's fates, and he ridiculed efforts to blame government decisions and actions.

"What would've happened if they hadn't decided to put that tear gas in? What if David Koresh had done something like Jonestown, and he'd poisoned everyone – he'd poisoned all the children?" he said. "We'd be here today with a group of lawyers saying, 'Why didn't you go in with tear gas?'"

He then recounted how one FBI hostage rescue team member who had testified the previous day had risked his life to save a Davidian from the burning building.

"You think about his running into the building and saving a life. And asking, where are the children? And they wouldn't tell him," Mr. Bradford said. "He would have given his life to save those children. He is the HRT. That is the HRT. ... They're not monsters. They're people. And they were out there to do their jobs."