Jury Finds for U.S. in Deaths at Waco

Says Officials Are Not Liable -- Judge to Get Final Word

New York Times, July 15, 2000
By Ross E. Milloy

WACO, Tex., July 14 -- In a striking victory for the government, an advisory panel of five jurors took slightly more than an hour today to find that federal officials were not liable in the deaths of nearly 80 Branch Davidians who were killed in the 1993 raid and standoff at the sect's compound near Waco.

Federal officials portrayed the jury's finding as a vindication for them in an episode that provided one of the darkest chapters in the history of federal law enforcement, threatened the career of Attorney General Janet Reno and continues to generate criticism. The lawsuit itself represents a six-year legal struggle that ultimately became a highly publicized test of the government's credibility.

"This terrible tragedy was the responsibility of David Koresh and the Branch Davidians, not the federal government," the Justice Department said in a statement. "We are pleased the jury affirmed that view."

The swift verdict, which came after a month of testimony, may not be the final word on the case, however.

Federal District Judge Walter S. Smith, who is presiding over the trial, will ultimately decide the outcome of the wrongful-death suit. Earlier today, before the jury was seated, Judge Smith reminded lawyers involved, "It's important for everyone to understand that their decision is in no way binding."

"I intend to consider the advice of the jury, but by law I cannot be bound by it," he said.

Federal law allows for advisory panels in cases in which the government is being sued. Judge Smith limited the jury's role to that advisory capacity. Lawyers involved in the case today said they could not recall an instance in which a judge overruled a jury's advisory finding.

Judge Smith will not make his ruling until at least next month, after he hears another part of the case determining whether federal agents fired into the Branch Davidians' Mount Carmel compound as it was consumed by flames on April 19, 1993. That issue will be decided by him alone.

Survivors and relatives of Branch Davidians killed during the siege had sought $675 million, accusing the Bureau of Alcohol, Tobacco and Firearms of using excessive force and firing indiscriminately in the initial Feb. 28, 1993, raid to arrest Mr. Koresh, the sect leader, on weapons violations charges. Six Branch Davidians, as well as four bureau agents, were killed that day in the start of a 51-day standoff.

The survivors and relatives also contended that commanders on the scene for the Federal Bureau of Investigation at the April 19 fire had exceeded their authority while carrying out a plan, approved by superiors in Washington, to use tanks to shoot tear gas into the compound. Those tanks, the plaintiffs claimed, eventually caused a fire in which more than 70 people, including 20 children, died.

The government was also negligent, the plaintiffs further contended, by not having adequate equipment on hand to fight that fire.

Government lawyers had argued that Branch Davidians ambushed the A.T.F. agents in the initial raid and set the final, devastating fire themselves as part of a suicide pact.

Closing arguments from both sides in the case, delivered earlier today, were steeped in outrage.

"The scariest thing about this trial is that there will be another David Koresh," Michael Caddell, the lead plaintiff's lawyer, told jurors. "This case is about the children. It's too late to save the children of Mount Carmel. What you do here will determine what happens to those next children."

Mr. Caddell tried to fix blame for the raid, standoff and fire on those who planned the operations, but spoke glowingly of the "brave men" of the government who were killed.

"Men under that kind of pressure make mistakes," he said. "It's not their fault. They were placed in an impossible position. They didn't give the orders. They didn't make the plans."

During his final argument defending the government, J. Michael Bradford, the United States attorney, told the jury the events at Mount Carmel were "a terrible tragedy."

"Those children should be alive today, would be alive, but for the actions of a man who thought he was Jesus Christ," he said, referring to Mr. Koresh.

"We should be shocked and outraged by the conduct of David Koresh and the Branch Davidians. Instead, we have this lawsuit that seeks to validate their actions."

In his charge to the jury, Judge Smith listed four questions they should answer in assessing fault.

Did the Bureau of Alcohol, Tobacco and Firearms use excessive force and fire indiscriminately during the initial raid? Did F.B.I. agents act negligently, going beyond their orders, in their use of tanks during the final assault? Did those tanks cause the April 19 fire? And were F.B.I. commanders negligent in deciding not to have fire-fighting equipment available on the scene?

Since federal protections grant wide latitude for agents pursuing their official duties, Judge Smith ruled that if jurors answered "no" to the first two questions, there was no reason to answer the last two.

Jurors got no further than the first two questions, the judge said. The decision of the panel was unanimous, and the jurors did not want to speak to reporters, he said.

Mr. Caddell said he thought the jury was likely swayed by "all the guns" the sect kept at the compound.

When asked if he would appeal the verdict, Mr. Caddell hesitated and said, "As a a practical matter, when you get a verdict, it's over."

Mr. Bradford said the verdict vindicated the actions of the government agents who, he said, "faced a very dangerous group of people in a very difficult circumstance in 1993 in trying to carry out their job."

F.B.I. Director Louis Freeh said, "The significance of the jury's findings to the courageous federal law enforcement officers who have had to absorb unproven allegations and public criticisms for all those years cannot be overstated. An enormous burden has been lifted from them and their families."

Arguments in the case were delayed this morning while Judge Smith responded to accusations Mr. Caddell made on Thursday that the judge was trying to "engineer a verdict" through the four-part questionnaires he had prepared for the jury.

"I want to set the record straight," Judge Smith said. "I have not in any way tried to engineer a jury charge. I have tried to simplify the issues."

Some of those involved in the case said Judge Smith's narrow jury charge, and the limitations he placed on evidence during the trial, may have kept jurors and the public from getting all relevant facts in the case.

"I'm terribly, terribly frustrated by the way this case has gone," said Ramsey Clark, a lawyer for the plaintiffs and former attorney general in the Johnson administration, before the jury reached its verdict.

"This isn't a negligence case, it's a constitutional case. How do you drive a tank into a church dozens of times and then call it negligence? The government has made the victims into the violators," he said.

David Thibodeau, a Branch Davidian who survived the fire, also expressed frustration. "It's outrageous that after two Congressional hearings and the criminal trial they are still limiting what the public knows about this case. It'll be another 20 years before we find out what really happened," he said.

Ms. Reno appointed former Senator John Danforth as special counsel last September to conduct an investigation of the Mount Carmel events; that inquiry continues, and it is not known when he will make his report.

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