Judge delays Branch Davidians' wrongful-death trial

CNN News, September 15, 1999

WACO, Texas (AP) -- A judge on Wednesday delayed the trial of a wrongful death lawsuit brought by surviving Branch Davidians against the government, saying more time is needed for federal officials to produce the evidence he demanded.

U.S. District Judge Walter Smith, who has battled the Justice Department over the scope of his demand, acknowledged that the department intends to comply with his order to turn over documents and evidence related to the 1993 Waco siege and its fiery end.

"However, the physical transfer of control of all of this evidence will take longer than originally anticipated by the court," Smith wrote. "Therefore, the current trial setting of Oct. 18, 1999, will be impossible to maintain."

Smith has yet to set a new court date. He said the government's request for a fall 2000 date was "unrealistic" and he will not postpone the trial for a year.

On Sept. 2, Smith ordered the government to surrender all evidence by Oct. 1 or face a contempt of court citation.

"We believe the judge appropriately recognized that gathering all these materials would take longer than Oct. 1," said Justice Department spokesman Myron Marlin.

A lawyer for the plaintiffs, Jim Brannon of Houston, called Smith's decision "wonderful news."

"That allows us more time to dig for the evidence we need," Brannon said. And, with congressional and independent inquiries under way in Washington, "we can possibly take advantage of some of that now." Smith's order comes a day after the Justice Department announced it had removed from the case the entire federal prosecutor's office for West Texas, including the prosecutor who first raised concerns about a cover-up at Waco. The department said he and his colleagues are potential witnesses in the independent inquiry into the government siege.

On Feb. 28, 1993, Bureau of Alcohol, Tobacco and Firearms agents raided the rural home of Branch Davidian leader David Koresh and his followers. Four agents and six cult members died in a gun battle after the Davidians were tipped to the impending raid. Following a 51-day siege, Koresh and nearly 80 others died after a fire consumed the compound.

Surviving Davidians and the relatives of the dead later sued, challenging the government's conclusion that the cult members started the fire and that they shot first during the raid. The lawsuits were consolidated into one case that was to open in Waco federal court next month.

In delaying the case, Smith apparently took into account the far-reaching nature of his Aug. 9 order demanding that all federal agencies turn over any Waco-related documents or items to his court.

That order prompted a skirmish with Justice officials, who contended Smith was overstepping his authority and that the request would "impose an unwarranted and substantial burden on the federal government."

In Wednesday's order, Smith also warned the plaintiffs that although he is moving the evidence to a central location, they "will not be granted blanket access to these materials" without making proper discovery requests.

Brannon said he and Michael Caddell, another lawyer representing plaintiffs in the civil lawsuit, have yet to gain access to evidence held by the Texas Rangers or items in possession of other agencies.

"Now that this has happened, you can bet we are both going to be filing quick to look at that evidence," he said.