Finally Taken Seriously, Waco Suit Goes to Trial

New York Times, June 19, 2000
By Jim Yardley

HOUSTON -- For years, the Branch Davidian wrongful-death lawsuit seemed unlikely to amount to anything more than paper. The case file is about as thick as 25 metropolitan phone books, a tower of motions and countermotions once regarded as a monument to futility by those who doubted that the case would ever reach trial.

But six years after the lawsuit was filed, the trial is scheduled to open on Monday in Federal District Court in Waco, Tex. Once criticized as a bundle of anti-government conspiracies, the lawsuit is now being taken very seriously. At its core lies the fundamental question of whether the government was negligent in the deaths of more than 80 Branch Davidians on April 19, 1993, when the sect's Mount Carmel compound near Waco burned to the ground.

"This case is going to prove that our government can be held accountable for its abuse of power," said Michael Caddell, the lead lawyer for the Branch Davidian survivors and many of the relatives of those who died.

"And that's what happened on April 19. It was an abuse of power."

The format of the trial will be unusual, because there will essentially be two trials. Judge Walter S. Smith announced that he would impanel an "advisory" seven-person jury to help him decide the case. The judge could overrule the jury.

Last week Judge Smith said he would separate the most contentious issue -- whether F.B.I. agents fired gunshots into the compound on April 19 -- into a separate hearing to be decided later by him alone.

The prospect of a jury trial apparently unnerved the Justice Department, which filed a motion asking the judge not impanel a jury.

But Judge Smith said he had decided on a jury in response to national attention.

He has limited the jury's role to deciding whether the government was negligent.

He said he would determine damages if necessary.

The Branch Davidian controversy has cast a pall over the Justice Department since Feb. 28, 1993, when a gunfight broke out after federal agents tried to raid the compound and serve a warrant on the group's leader, David Koresh, on weapons charges. Four agents with the Bureau of Alcohol, Tobacco, and Firearms were killed that day, as were six Branch Davidians.

Throughout a 51-day standoff, Mr. Koresh refused the government's order to surrender. The compound caught fire after government agents began pumping tear gas into the structure from tanks and with projectiles.

As ordered by Judge Smith, the jury will consider five central issues: Did government agents use excessive force on Feb. 28? Was the Federal Bureau of Investigation negligent in failing to have fire trucks ready on April 19?

Did the tanks battering the compound spread the fire? Did F.B.I. agents fire gunshots into the compound on April 19? And did F.B.I. supervisors at the scene disobey Justice Department orders?

Michael Bradford, one of the lead lawyers for the government, said blame for the deaths of the Branch Davidians rested solely with Mr. Koresh. The government plans to introduce photographs of the huge cache of weapons stockpiled by the Branch Davidians as evidence of his provocative intentions and to remind the jury of his refusal to surrender.

"The tragedy that happened at Waco was brought about by David Koresh, who considered himself to be a messiah who was predicting the end of the world would come about in a violent conflict with the government," Mr. Bradford, the United States Attorney in Beaumont, Tex., said in an interview last week.

He said the government had "acknowledged that there were things that should have been done differently," a point emphasized by hearings in Congress and critical internal inquiries.

But he added: "It's one thing to say that things may not have been done perfectly. It's another thing to say that the government either intentionally or negligently caused those people's deaths."

Mr. Caddell said the first thing he would tell the jury was that he would not defend Mr. Koresh. Mr. Caddell said he would emphasize the women and children who died at the compound, not the men, many of whom were firing at federal agents.

He plans to portray F.B.I. supervisors as so angry during the standoff that they began demolishing the building with tanks on April 19, defying Attorney General Janet Reno's orders.

"I don't have to prove that the government is 100 percent responsible, and I don't believe that," Mr. Caddell said in an interview. "Clearly, David Koresh and the Branch Davidian leadership had some responsibility for what happened. But clearly the government had some responsibility."

The question of whether F.B.I. agents fired into the compound, an accusation the government has consistently denied, may hinge on a comparison between an aerial infrared surveillance video taken on April 19 and a video filmed earlier this year during a simulation ordered by Judge Smith. The two sides have disagreed if flashes on the video of April 19 represent gunfire or reflections from water and debris nearby.

An initial analysis of the simulation supported the government's belief that the flashes were not gunfire, but Mr. Caddell has disputed the findings. He said depositions by two of the experts who analyzed the videos disclosed major problems with the way the simulation was filmed.

The jury trial is expected to last four to six weeks, and the hearing on gunfire could begin in August. The lawsuit, though, does not signal an end to the Branch Davidian controversy. Last fall, Ms. Reno appointed former Senator John C. Danforth of Missouri as an independent special counsel to re-examine the government's role after new evidence showed that F.B.I. agents had fired pyrotechnic tear-gas canisters, capable of starting a fire, into Mount Carmel on April 19. Previously, the F.B.I. had steadfastly denied using such potentially explosive devices.

Mr. Caddell plans to argue that the tear-gas canisters started the fire. The government had long maintained that audiotapes made inside the compound suggest that Mr. Koresh ordered his followers to set the blaze as part of a suicide pact.

Mr. Danforth's investigation is not expected to conclude until after the civil trial.

Mr. Bradford hopes the lawsuit will end the Branch Davidian controversy. "I think we have learned everything we can know about this," he said. "Hopefully, this will be the end of it, and we can put this behind us and move on."