Agreement could shorten Davidian trial

Waco Tribune-Herald, June 23, 2000
By Mark England

An agreement to drop a government claim that 76 Branch Davidians contributed to their own deaths by staying inside a burning Mount Carmel will shorten the civil trial, both sides said Thursday.

"I think their decision will shorten the case significantly," said Houston attorney Mike Caddell, lead attorney for the plaintiffs. "I think we'll be able to finish our case sometime next week."

The government would then present its defense.

Government co-counsel Michael Bradford said the stipulation to not press a contributory negligence argument will undoubtedly shorten the trial on the Davidians' wrongful-death lawsuit against the government.

"It could have been weeks or longer if we had dug into everything that happened those 51 days," Bradford said.

The agreement won't hurt the government's defense in the case, Bradford said. The lawsuit deals with four issues: whether agents with the Bureau of Alcohol, Tobacco and Firearms fired randomly during their raid on Mount Carmel; whether the FBI demolished Mount Carmel prematurely and not in accordance with U.S. Attorney General Janet Reno's directive; whether the government should have had a plan to fight a fire; and whether the government contributed to the cause and spread of the fire.

"It would have been something of a sideshow on issues already dismissed from the case and would have prolonged the trial," Bradford said. "We don't need the contributory negligence argument. That's why we abandoned it."

Legally, contributory negligence is when the actions of a plaintiff in a lawsuit contributed to his injury. According to the law, the government couldn't have argued that anyone less than 5 years old was guilty of contributory negligence.

There were 13 children less than 5 years old who died at Mount Carmel.

Caddell had been prepared to argue that the government's actions during the Feb. 28, 1993 raid on Mount Carmel and the resulting 51-day siege led the Davidians to remain inside while their building burned to the ground almost two months later.

To Caddell, the agreement with the government is telling.

"What that tells you is that the government is terrified of having the American people judge their conduct from Feb. 28, 1993 to April 19, 1993," Caddell said.

Bradford, however, denied that accusation.

"That's certainly not true," Bradford said. "The truth of the matter is that it probably could have been a strong argument for us. There's a tremendous amount of evidence that the FBI practically begged the Davidians to surrender and send their children out."

Caddell said the government's concession is a victory for the plaintiffs. "We may have limited the issues going to the jury to one issue," Caddell said. "Was the government negligent? If the answer is yes and there's probable cause, it's over."

James Brannon, the Houston attorney representing David Koresh's legal children in the trial, isn't so sure.

"It was a good move on the government's part," Brannon said. "They didn't want all that testimony about shooting and gassing. We were going to make the argument that the government might have been shooting at them or gassing them to the point they couldn't come out. That's particularly true of the people in the vault. They shot four bottles of gas in there. I doubt anybody in there was able to walk out."