Davidian wrongful death lawsuit consists of 4 parts

Waco Tribune Herald, June 17, 2000
By Tommy Witherspoon

The complex wrongful death lawsuit filed against the government by Branch Davidian survivors will play out in the courtroom like four mini-trials.

After U.S. District Judge Walter S. Smith Jr. ruled last week that the trial, which is set to begin Monday, will not include allegations that government agents fired into David Koresh's Mount Carmel compound as the siege was coming to a deadly end, that left four issues to be decided.

Those issues will be presented one at a time to the jury, instead of the often-haphazard and more random order in which juries hear evidence in many civil cases. After the live testimony, videotaped depositions and cross-examinations are complete on one issue, the parties in the suit will move on to the next.

The judge approved the manner of trial presentation last week on a proposal by lead plaintiffs' attorney Mike Caddell.

"I think that's an excellent way to present things," Smith said during a pretrial conference.

"The judge is going to let us present the issues one at a time," Caddell said. "That lets us present deposition testimony and live witnesses all on a single topic, and I think this will present the evidence in a very clear and understandable and organized fashion for the jury. The government hates it because they want the jury not to understand what happened. They want to talk about what a bad person David Koresh was and that's their case in a nutshell."

U.S. Attorney Mike Bradford of Beaumont, who is co-lead counsel for the government, didn't object strenuously to Caddell's proposal at last week's pretrial conference. He did, however, suggest that the format would require more organization from government attorneys in the case.

"I actually think that it will be more difficult to present it that way," Bradford said.

Attorneys will continue to wrangle over pretrial issues with the judge Monday morning before a panel of about 50 prospective jurors comes in after the lunch break.

Smith has told attorneys that he will question the potential jurors himself and likely not allow the lawyers to ask follow-up questions during the jury-selection process known as voir dire .

The judge denied a request from Caddell for jurors to fill out a two-page questionnaire about themselves and their feelings about the case. Smith also said that he is considering allowing the seven-member advisory jury to remain anonymous.

Caddell said he expects opening statements in the case to begin Tuesday morning. The trial is expected to last about four weeks.

The jury will be asked to decide:

  • whether Bureau of Alcohol, Tobacco and Firearms agents fired indiscriminately and used other excessive force on Feb. 28, 1993, when they stormed Mount Carmel in an attempt to arrest Koresh on weapons charges.

  • whether the FBI's tear-gas assault deviated from Attorney General Janet Reno's authorized plan and caused the premature demolition of the building.

  • whether the government was negligent by not having a plan to fight the fire in which Koresh and 75 followers died.

  • whether the government contributed to the cause and spread of the fire. Smith, not the jury, will decide the amount of damages, if any, the government will pay if the government is found to be liable in any of the allegations.

    Besides Bradford, the government is represented by Marie Hagen, an assistant U.S. Attorney from Washington, D.C., and a host of other Justice Department attorneys. Bradford has said that no more than four government attorneys will be seated at the counsel table during the trial at any one time. He added that the attorneys will alternate at the counsel table depending on what area of dispute is being considered.

    Caddell will be joined at the counsel table by his wife, Cynthia Chapman, and attorneys for other plaintiffs, former U.S. Attorney General Ramsey Clark of New York and James Brannon of Houston.

    The first three rows on either side of the courtroom will be reserved for members of the media. The remaining seats will be available on a first-come, first-served basis. The courtroom holds about 95 spectators.

    Caddell said he doesn't expect many of the Branch Davidian survivors, many of whom live in foreign countries, to attend the trial on a daily basis.

    "We will have a few," Caddell said. "Most of our people are very private people and this was a major tragedy for them. They don't want to be exposed to the press and they don't want to be scrutinized by a bunch of people. I talked with a client from England (Friday) morning about that very thing and she just didn't want to be here to relive all that pain. She lost two children there."

    Security will be heavy at the federal courthouse. Officials are preparing for an onslaught of media and, possibly, Davidian sympathizers to be in Waco for the trial.

    Officials are limiting access to the building to the front door on Franklin Avenue, and those entering the building will pass through a metal detector, which is common in any federal courthouse.

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