Emotions in check in Waco lawsuit

San Antonio Express-News, June 24, 2000
By Dick J. Reavis

WACO — The Davidian wrongful death lawsuit, which opened Monday in Waco, has been a mild affair, unlike prior proceedings about the 1993 Mount Carmel events.

As a result of a Friday ruling by Judge Walter Smith of Waco, it appears it will remain that way.

At issue in the trial is whether the Davidians or the federal government is chiefly responsible for the deaths of the 84 men, women and children — including four federal agents — who perished in the shootout, siege and fire. The suit has been brought by the kin of some 60 of Mount Carmel's Davidian dead and by a few Davidians who survived the ordeal.

But last week, the bitter notions that have fueled debate over Waco elsewhere were hardly in evidence in the courtroom.

Nobody mentioned the First or Second Amendments, freedom of religion or the right to bear arms.

None of the lawyers spoke the words "self-defense," virtual fighting words, given the ATF deaths.

No one asked if helicopters had fired on Mount Carmel's residents during the assault, although witnesses who were on the stand swear they saw as much.

No photos of the dead were displayed; lead attorneys for both sides in the case excluded them in an agreement.

And no one shed tears in the witness box.

All of this happened — or didn't happen — because the case was largely in the hands of lead plaintiffs attorney Michael Caddell of Houston and his wife and law partner, Cynthia Chapman.

Their mild, upbeat strategy for the case regards passion and defiance, often displayed by Davidian attorneys in the 1994 San Antonio criminal trial, as counterproductive.

Until Friday, the Davidian faithful, gun rights advocates and other anti-government partisans, some of whom are in the courtroom each day, were little worried about any deficiencies they note in the case Caddell and Chapman are presenting.

That's because the survivors and dissidents were waiting to hear the witnesses they expected another plaintiff's attorney, former Attorney General Ramsey Clark, to call.

On Friday, however, a time-limit ruling from Smith may have sharply curtailed Clark's participation.

Clark, 77, a somber, stately figure, was devising a strategy at odds with the Caddell-Chapman approach, in part because Clark views the Mount Carmel events through a different lens.

"This case is about the women and children who died or were injured at Mount Carmel," said Caddell, who in weeks leading up to the trial sent letters to representatives of the adult males who died at Mount Carmel asking them to withdraw from the suit.

Most were not pleased, and a few were irate.

Last week, in line with his strategy, Caddell took live testimony from three women, two of whom had been children at the time of the 1993 events.

He put no male survivors on the stand.

All three women testified Mount Carmel was a kid's paradise, a place where home-schooled children spent time riding go-carts, swimming, playing in a mammoth sandbox, eating hot dogs and strolling beside a lake.

Caddell's three female witnesses denied familiarity with firearms and claimed that before the Feb. 28, 1993, federal raid, they had only glimpsed or heard about the guns that a handful of men kept there.

They shot at nobody, the three said, yet they allege that ATF agents fired bullets into their rooms.

The idyllic and virtually nonviolent picture drawn of Mount Carmel squared with the interests of Caddell's clients, perhaps, but also with his personal views.

"I am an advocate of gun control, and I am troubled by all of the guns that were at Mount Carmel," he said during a Wednesday news conference.

In his opening remarks, Caddell said he believes that a few male Davidians may have started one of the fires that consumed Mount Carmel. The fire he cited broke out in the building's chapel.

Clark did not have such latitude. He cannot make key concessions in order to gain common ground, because among his clients are those survivors who place total blame on the government for the deaths at Mount Carmel.

Since leaving the federal government, Clark, who was attorney general during the Johnson administration, has become known as the advocate of protesters, heretics and hated men — clients with a radical tinge.

He sued the federal government on behalf of the students who were killed by the National Guard at Kent State University in 1970 — and 10 years later collected a settlement. He brought suit on behalf of the convicts who survived the Attica prison massacre, and, after the Persian Gulf War, he represented the government of Iraq.

He is now defending former American Indian activist Leonard Peltier, imprisoned after he was convicted of killing federal agents in South Dakota, and a New York woman who is in a Peruvian prison, convicted of aiding that country's guerrilla movement.

He was among the first attorneys to join the Waco suit, and his strategy is similar to that he pursued on behalf of his Kent State and Attica clients.

"Our basic position will be that the government actions foreseeably and directly led to all of the injuries and deaths that occurred," Clark told the San Antonio Express-News.

To build his case, which most observers say is hastily prepared, Clark last week brought to Waco a New Orleans electronics and espionage expert named Gordon Novel. He is the man who originated most of the shocking allegations and conspiracy theories that have hovered over the Waco events for seven years.

Clark also announced he would call retired U.S. Army Gen. Ben Partin as an expert witness. Partin became notorious after the 1995 Oklahoma City bombing for advocating a theory of the blast that pointed to the federal government, not Timothy McVeigh, as the culprit.

Clark planned to put two adult male Davidian survivors, Clive Doyle and David Thibodeau, on the stand.

He also wanted to elicit live testimony from Sheila Martin, whose husband and four children died in the April 19 fire, and from Mary Bell Jones, who lost a husband, three children and 10 grandchildren at Mount Carmel.

And despite his reliance on conspiracists such as Novel and Partin, Clark was weaving his strategy out of nostalgic threads from his past.

For many conspiracists, anti-government activists and gun rights advocates, Mount Carmel has become a kind of Alamo, a place where a last stand was made on sacred ground.

But for Clark, Mount Carmel is the reincarnation of the Jim Crow South.

"When I was doing civil rights work in the government," Clark said, "our first priority, above all others, was police abuse. That's because, if the police won't protect you, who will?

"We had all of these cases reported where black people were jailed in the South for resisting arrest. But often, what it really was, was resisting assault.

"Something like that is what happened at Mount Carmel. The federal government assaulted those people."

If Clark had argued a similar analogy in the courtroom, the trial would have turned into a contentious, acrimonious or controversial proceeding — anything but mild.

But on Friday, Smith ruled the plaintiffs' attorneys — all of them — will have only 40 hours to present their cases.

By Smith's time clock, they already had spent 21 hours when he made the ruling.

Clark's freedom to call witnesses now is limited to the time lead attorney Caddell can spare.

Though Caddell said, "We'll work with Ramsey," he is not expected to be generous, in part because he needs the balance of time to finish presenting the case he has developed for his clients, who account for the majority of the more than 100 plaintiffs.

Beyond that, there is evidence, even in court filings, of a split in the plaintiffs' ranks.

Clark and Caddell have differed, for example, about the wisdom of staging a field test of the so-called FLIR tape, a videotape made with forward-looking infrared radar that showed mysterious flashes on the backside of the compound, away from TV cameras.

Caddell assured the judge that even with late notice, he will meet the 40-hour time limit.

When the judge made his ruling Friday, Clark grimaced.

Unless Smith changes his mind — he's done so several times in both Waco trials — Clark believes his participation will be limited to a summation, or closing arguments speech, probably less than 30 minutes long.