Waco trial is over, but Danforth's work remains

St. Louis Post-Dispatch, July 16, 2000

By William Freivogel

A jury has voted to clear the government of wrongdoing in the 1993 siege of the Branch Davidians, but that may not be the nation's final verdict.

Still ahead is the report of special counsel John C. Danforth, appointed last September by Attorney General Janet Reno to conduct an independent investigation of the deadly siege in which about 80 Davidians died. Congressional committees also have long-running investigations.

In addition, the monthlong trial had a limited scope. Some controversial actions were not before the jury -- such as the wisdom of sending 76 armed men to arrest David Koresh when authorities could have nabbed him when he left the compound.

Nor does the jury's verdict that the government wasn't negligent mean that the government didn't make mistakes. The government itself has admitted to errors of judgment -- such as sending in agents to arrest Koresh when he knew they were coming and failing to heed the advice of FBI negotiators who counseled a less controversial approach toward the Davidians.

Still, the verdict of five anonymous citizens of central Texas is a tremendous boost for the government and the law enforcement officers who risked their lives or died at Waco.

Jurors left the courthouse without responding to questions, so no one knows what they were thinking. But the government emphasized the argument that the Davidians should bear responsibility for resisting a lawful search warrant and then, the government asserts, burning down their own building.

U.S. District Judge Walter S. Smith Jr. has to decide whether to accept the verdict that the advisory jury delivered on Friday. But both sides in the civil lawsuit say that's a foregone conclusion.

Before the trial

In some ways, the Branch Davidians had lost their case before the trial began. The national spotlight dimmed quickly after Danforth's appointment.

For one thing, former Sen. Danforth, R-Mo., located his investigation in St. Louis and imposed a news blackout. Faced with a black hole in the middle of the country, the national press dropped off the story.

In addition, the new evidence that had led to the Danforth inquiry seems to have turned into a dead-end. That new evidence was the FBI admission that it had fired pyrotechnic military tear gas on the final day of the siege when the fire broke out.

The admission at first broke the case open because Reno had denied for years that any fire-producing tear gas had been fired. Suddenly there was reason to believe the tear gas could have started the fire and that the FBI had covered up its use.

In addition, there were the sensational allegations that flashes on infrared tape of the last day of the siege were from government agents firing into the complex to trap the Davidians inside during the fire. And there was the claim that the shadowy Delta Force of Pentagon commandos was involved.

As it turns out, there is no proof of military tear gas being fired at the building itself - just three canisters fired in a nearby field. And there is plenty of proof the Davidians set the fire themselves.

The Delta Force allegation proved to be a dead end. No commandos got near the complex with guns. And, Danforth's test of the gunfire theory undermined its credibility. A British firm concluded last spring that the flashes on the infrared tape were from solar reflections, not guns. As a result, Smith separated that issue from the trial.

As the trial approached, the answer to the "dark questions" that Danforth had said he would probe seemed to be no.

One other development may have accounted for the improved government position - the decision to put J. Michael Bradford, the U.S. attorney from Beaumont, Texas, in charge of the case. Bradford, a tall Texan with a slow east Texas drawl, developed a rapport with Smith and came across as believable to the jury in a case where believability was the ball game.

Mike Caddell, a young, smooth-talking Houston personal injury lawyer who wore cowboy boots under his dark suits, had performed a minor miracle in getting the Davidians' case into court. But he may have come off to the jury as a little too smooth.

The jury instruction

The death knell of the Davidians' case was the jury instruction that Smith announced at the end of testimony on Thursday.

Smith reduced the complicated lawsuit to a few simple questions for the jury - far too simple in Caddell's eyes. The lawyer accused Smith of trying to "engineer a verdict" - a charge the judge hotly denied in court on Friday. But the denial will not stop claims by the Davidians that the trial was unfair because Smith is biased against them. He is also the judge who presided over the 1994 criminal case against the Davidians.

In presenting his case, Caddell had taken pains to distance the women and children he represented from Koresh, whom he called "evil." But the judge's jury charge lumped together all of the Davidians.

Caddell had submitted a proposed set of jury questions that would have instructed jurors to weigh the fault of each Branch Davidian against the fault of the government. But Smith instructed the jury to weigh the fault of the Davidians as a whole against the FBI.

Caddell also objected that the judge told the jurors they could consider whether the Branch Davidians had continued to resist arrest during the siege, between Feb. 28 and April 19. Caddell thought this violated an agreement that the government had made. The government lawyers said in a formal agreement it would not try to blame the Davidians for not leaving the complex. In return, the Davidians couldn't introduce evidence of government misconduct between Feb. 28 and April 19.

By allowing the government to blame the Davidians for not submitting to lawful arrest during the siege, Smith made meaningless the government concession not to blame the Davidians for staying in the complex, said Caddell.



Here is the way Smith sent the case to the jury:

• Question 1

Did the ATF use excessive force by either firing without provocation or firing indiscriminately?

Smith told the jurors they were not to consider the controversy about the ATF's use of 76 officers to attempt to execute the search warrant for illegal weapons on Feb. 28. Smith already had ruled that that method of serving the warrant was within the government's discretion.

Nor was the jury to challenge the validity of the warrant. Smith has ruled that the warrant was legal.

In considering whether ATF agents used excessive force, the jurors were to take into account that the agents are law enforcement officers with a "duty to execute all lawful search and arrest warrants" and the authority to use "force," the judge said.

A law enforcement officer has the "right to protect himself from an attack made upon him by one resisting arrest," even if that involves deadly force, the judge told the jury. In addition, "every citizen has a duty to submit to a lawful arrest or search," he said.

People are not justified in using force in resisting a warrant unless a law officer uses excessive force before the resistance, the judge told the jury.

For the Branch Davidians to have won on this issue, the jury would have had to disbelieve the stories of more than two dozen ATF agents who testified that the Davidian complex erupted in gunfire after they had taken only a few steps toward the building.

• Question 2

Did the FBI act negligently on April 19 by: 1. Using tanks to penetrate the complex in violation of the plan approved by Reno; 2. Starting or contributing to the spread of the fire. 3. Deciding to have "no plan to fight a fire" despite Reno's directive requiring "sufficient emergency vehicles to respond both from a medical and any other point of view."

Caddell argued that the FBI commanders on the scene - Jeff Jamar and Richard Rogers - violated the plan Reno had approved when they used converted tanks during the last hour of the siege to begin to knock down the building.

The plan called for a gradual insertion of tear gas and did not provide for knocking down the structure until 48 hours after the tear-gassing began.

But five hours after the gassing began, one tank began knocking into the back of the complex while another knocked into the front. On videotapes from the siege, it looks like the tanks are knocking down the building. But the drivers of the tanks, their commanders and Reno testified they were knocking into it to insert tear gas into an interior room where the Davidians had escaped the tear gas.

In knocking into the building, Caddell said, the tanks may have knocked over flammable liquids that could have caused the fire. He also suggested, but did not prove, that FBI agents might have fired military style tear gas. FBI agents have denied that and no military rounds were found in the building.

Caddell has admitted that Davidians may have started one of three fires that broke out within two minutes of one another just after noon April 19. Government listening devices also picked up conversations of Davidians talking about pouring and lighting fuel.

Caddell also maintained that the FBI tanks blocked exits and hindered the ability of Davidians to escape the fire. But Smith told the jury it could take into account the fact that some Davidians surrendered to authorities during the siege, while those in the complex "continued to resist the execution of the search and arrest warrants."

Finally, Caddell maintained that the decision by FBI commanders Jamar and Rogers not to have a special firefighting plan for April 19 violated Reno's directive calling for "sufficient emergency vehicles."

An FBI memo dated April 9 quotes Rogers and Jamar as saying they had "no plan to fight a fire." But Bradford, the government lawyer, said a plan was developed after April 9 and before April 19. Yet the medical expert who developed that plan disputed Bradford's claim.

In any event, Bradford said, fire engines could not have gotten close to the fire because Davidian gunfire would have endangered the firefighters.

Ironically, Jamar and Rogers, the two key commanders whose actions were called into question, were not called by either side for strategic reasons. Danforth's investigators, by contrast, interviewed both men at great length.

The nation will see whether Danforth comes to different conclusions when he issues his report, expected later this year.