Stakes high for plaintiffs, government in Davidian wrongful death trial

Waco Tribune Herald, June 17, 2000
By Mark England

A lot is at stake in the Branch Davidians' wrongful-death lawsuit against the government that starts Monday in Waco.

It's not just about money, although the plaintiffs - surviving Davidians and the relatives of those who died at Mount Carmel - are asking for $675 million.

The government stands to lose the most of the two parties.

A verdict in favor of the Davidians would mean a federal judge, and not just critics, had found the government's actions at Mount Carmel to be negligent. "This particular civil trial could have a much greater impact on government conduct in the future than a criminal case would," said Houston attorney Mike Caddell, lead attorney for the plaintiffs.

"A jury verdict against the government would be a dramatic reminder of whom they're supposed to work for. They had more tanks at Mount Carmel than the Marines had in Somalia. It's true. It doesn't matter what David Koresh did. The American people don't expect innocent women and children to be assaulted and tear-gassed."

Michael Bradford, U.S. attorney for the Eastern District of Texas and government co-counsel for the civil trial, did not return phone calls requesting an interview.

A government win could lend credence to its version of events seven years ago. However, it won't end the speculation about what happened at Mount Carmel, according to Mark Swett, a Portland, Maine man whose extensive collection of Davidian siege documents has made him a resource for researchers and programs such as "Frontline."

Swett, who works for an insurance company, is writing a book, David Koresh and the Untold Story of the Branch Davidians , based largely on the FBI "bug" tapes from Mount Carmel. The listening-device tapes changed Swett's mind on who's to blame for the fire that led to the deaths of Koresh and 75 followers. Swett thinks they show the Davidians purposely set the fires.

"Should the Davidians lose the civil trial, the controversy will still go on," Swett said. "The only thing that can stop the endless speculation will be a complete investigation utilizing all the evidence. We missed that opportunity with the 1995 congressional hearings."

Davidian Sheila Martin sees the civil trial as a chance for redemption - for her family, not herself.

Martin left Mount Carmel during the Davidian siege to care for her handicapped son, James. Two other children, Daniel and Kimberly, came with Martin. Her husband Wayne, a Waco attorney educated at Harvard, and four other children stayed. They all died on April 19, 1993.

"I won't say that we don't want our elderly and our children taken care of," Martin said, "but the names of our family who died there, the truth about why they were there, those things are important, too."

Whether a courtroom is really the proper forum for the truth to come out about an event like Mount Carmel is debatable. Attorney Dick DeGuerin, who represented Koresh during the siege, doesn't think it is. But he also doesn't see a better candidate stepping forward either.

"I'd like to see a public forum where the public had a right to make a decision based on all the evidence without regard to politics," DeGuerin said. "But it looks like this is as close as we're going to get to the truth. Clearly, decisions in Congress are made along political lines and not along lines of what's just."

The civil trial will examine four areas of potential government liability regarding 81 of the Davidians who died at Mount Carmel.

  • Did agents with the Bureau of Alcohol, Tobacco and Firearms fire indiscriminately at the Davidians on Feb. 28, 1993 when five group members died?

  • Did the FBI demolish Mount Carmel prematurely and not in accordance with U.S. Attorney General Janet Reno's directive?

  • Was the government negligent by not having a plan to fight a fire?

  • And did the government contribute to the cause and spread of the fire?

    Whether the government fired shots at the Davidians and kept some of them from escaping the fire will be decided by U.S. District Judge Walter S. Smith Jr. at a later date.

    Plaintiffs are suing the government under the Federal Claims Tort Act. Theoretically, the government can be held to the same standards as an individual when it comes to negligence.

    "Under general tort law, the way we determine if a defendant is responsible is to ask if the defendant did what was reasonable and prudent under the circumstances at the time," said Bill Trail, a professor at the Baylor University Law School.

    "The attorney for the plaintiff will argue that the facts show there were two reasonable ways to do this and the defendant picked a third. The attorney for the defendant will argue there were three reasonable ways to do it."

    There is one big difference, however, between suing the government and suing an individual.

    "It's the doctrine of sovereign immunity," said Bill Underwood, the Leon Jaworski professor of practice and procedure at Baylor's law school. "The government can't be sued unless it consents to be sued. That's the most fundamental difference between the government, individuals and corporations."

    And government officials, under the law, are protected from being sued for their discretionary decisions - decisions left to an official's judgment. Caddell, though, will argue that FBI officials at Mount Carmel changed the official plan to force the Davidians out of Mount Carmel, starting to demolish it more than a day and a half ahead of schedule. Changes were only permitted in the event of an emergency according to the government plan, Caddell said.

    "If Jeffrey Jamar and Richard Rogers deviated from that plan and people got hurt, the government is liable," Caddell said. "It's not a complex case from that standpoint."

    Jamar was the lead FBI agent at Mount Carmel, while Rogers headed the Hostage Rescue Team.

    Attorneys predict the Davidian civil trial could last a month or more. Mike McNulty, a producer of "Waco: Rules of Engagement," also made a prediction. He believes the Davidians will win a negligence award - albeit a minor one.

    "I prognosticate a wrist slap that won't get to the heart of the matter," McNulty said. "It won't have to do with any of the allegations that would be seen as an overt act against the Davidians. I don't think the judge nor the special prosecutor nor Congress has the stomach for that kind of confrontation. ... It will be like the sponge of vinegar given to Christ to slack his thirst. That's what it will be like."

    Swett, who began collecting records related to the siege while it was happening, isn't predicting who will win.

    He finds it hard to lay fault more at one doorstep than the other, seeing what happened at Mount Carmel as a clash between two sides deaf to the other.

    "The Davidians could not get beyond their Biblical convictions even in the reality of serious charges including the deaths of federal agents," Swett said. "The FBI was not able to overcome the theology of David Koresh. One side lived in the spiritual realm, and the other in the real world. In the end, those worlds collided with devastating effects."

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