FBI Testimony Barred in Waco Trial

The Associated Press, June 21, 2000
By Sherri Chunn

WACO, Texas (AP) - A judge hearing the $675 million wrongful death case against the government over the deadly 1993 Waco siege has excluded testimony from three FBI negotiators who said tanks should not have been used to end the standoff.

Plaintiffs' attorneys, who considered the evidence important to their case, said the ruling by U.S. District Judge Walter Smith would force them to adjust their case.

"We will have to shift gears and bring other witnesses," said attorney James Brannon after the trial opened Tuesday.

The jury will consider whether the government used excessive force in the April 19, 1993 raid on the Branch Davidian compound. Cult leader David Koresh and about 80 of his followers died, some in the blaze that destroyed their compound, others in gunfire. The government contends that cult members started the fire and that no federal agents fired guns.

In his ruling, Smith agreed with government lawyers who say the negotiators' testimony and communications fell under a privilege that shields the federal government from liability even if its agents' actions prove negligent. It is designed to give federal officials the ability to act without fear of a lawsuit.

U.S. Attorney Michael Bradford, defending the government, said the agents were making difficult decisions in a tense situation.

"How negotiations are discussed shouldn't be second-guessed by the court system," he said.

It was unclear whether plaintiffs' attorneys can use a March 1993 memo warning that the FBI would face trouble if tanks were used at the compound and children died. The memo by FBI profiler Peter Smerick to on-scene commander Jeffery Jamar has been described by Brannon as his best evidence from the government.

Jamar ordered the use of tanks to insert tear gas into the compound on April 19, 1993, to force out the Davidians. Fire broke out about six hours into the operation, destroying the compound.

Plaintiffs' attorney Michael Caddell said the judge's ruling won't preclude plaintiffs from asking Smith to allow some of the testimony related to efforts to end the standoff.

Four federal law officers and six Davidians were killed when agents tried to serve a search warrant on the compound at Mount Carmel, outside Waco, on Feb. 28, 1993, because of suspected gun violations. That began a 51-day siege that ended after the FBI tear-gassed the wooden complex and it went up in flames.

Five Davidians were convicted in 1994 of voluntary manslaughter in the agents' deaths.

This lawsuit consolidates nine civil cases filed by survivors and victims' relatives.

The jury will act only as an advisory panel to the judge, who will deliver the verdict. Separately, the judge will consider the question of whether federal agents shot at Davidians during the siege's fiery end.

The plaintiffs' presentation Tuesday included testimony from survivors, some of whom were children at the time. One recalled how her bedroom was riddled with bullet holes after the initial raid.

"It was completely destroyed ... all my quilt coverings were full of holes. If I had been sleeping, I would not be here today," said Natalie Nobrega, now 18.

Jaunessa Wendel, who was 8 at the time of the raid, testified that her mother, Jaydean, was fixing her hair in their room when gunfire shattered the window, spraying glass into her brothers' crib. Jaydean Wendel was killed.