Waco jury decides against Davidians

Dallas Morning News, July 14, 2000
From Staff and Wire Reports

The findings in the $675 million case are advisory to U.S. District Judge Walter Smith Jr. He is free to accept or reject the jury's decision. Judge Smith said he tentatively planned to issue his ruling on Aug. 2.

The jurors reached their decision after 2½ hours of deliberations on the same day they heard final arguments from both sides about the botched raid and the standoff's fiery conclusion.

Government attorney Michael Bradford told the jurors that the plaintiffs failed to prove the government should bear responsibility for the deaths of sect members.

"They set this place on fire. They're responsible for the deaths in there because they burned this place to the ground, '' Bradford said, referring to the inferno that brought the standoff to a deadly end.

"This was one of the most terrible and horrible events in our history and they want to come into court and ask you to award them a judgment,'' Bradford said. "That would be wrong. It would not be supported by anything that would be just and right.''

Plaintiffs' attornys urged the jury to punish the government for its role in the 1993 siege at the Branch Davidian compound, saying the deaths of the sect members "didn't have to happen.''

Lawyer Ramsey Clark called the siege "the greatest domestic law enforcement tragedy in the history of the United States.''

"It didn't have to happen, and it must never happen again,'' said Clark, a former U.S. attorney general who represents several survivors and the families of many who died.

Before the trial, Judge Smith ruled that the jury would not consider perhaps the most contentious issue – whether federal agents shot at the Davidians at the end of the siege. The judge said he will take up that issue before issuing his final verdict.

"This case is not finished,'' Judge Smith said. "Once the jury is retired, I need to talk to lawyers about when we're going to continue this trial and consider the issue. Then the court will render a decision.''

The plaintiffs alleged that agents with the Bureau of the Alcohol, Tobacco and Firearms used excessive force and fired indiscriminately during a botched raid on the compound and contributed to or caused the tragic events on the final day of the siege.

"This case is about the children at Mount Carmel, but it's too late to save those children,'' plaintiffs' attorney Michael Caddell said in his closing arguments. "This case is also about those other children . . . the children that will be there with the next David Koresh. What you do will help determine what happens to those children.''

Caddell also quoted the Declaration of Independence, saying everyone – including sect members – had the right to "life, liberty and the pursuit of happiness.''

He paused repeatedly during his closing arguments to display government documents that he said proved that the government deviated from its tear-gassing operation and took steps that put the innocent people inside the compound in danger.

Jim Brannon, who represents three of sect leader David Koresh's surviving children, said the parents were holding their children hostage.

"It's incredible that a hostage rescue team doesn't focus all of its efforts on rescuing the absolutely purely innocent,'' he said. "Their idea of rescue is knowingly putting gas in on children who had no gas masks.''

The trial has centered on events that began Feb. 28, 1993, when ATF agents tried to search the complex and arrest Koresh on illegal weapons charges.

When gunfire erupted, six Davidians and four ATF agents were killed. After a 51-day standoff, some 80 men, women and children died from either gunshots or fire.

Government lawyers on Thursday presented autopsy findings for 21 adults, children and one infant who died in the concrete room in the center of the complex. Twenty died of gunshot wounds and a toddler died of a stab wound to the chest – proof, they said, that Davidians were suicidal and started the fires.

Plaintiffs said the FBI deviated from an approved tear-gassing plan by punching holes in the building with tanks. They said the tanks may have ignited the fires by knocking over kerosene lanterns inside the complex.

The plaintiffs also contended that agents used excessive force during the initial raid; the government said the agents were under fire and were only defending themselves.

"If the conduct of the ATF and the FBI was performed without excessive force and without negligence, then how in the world did it end up with such unmitigated, disastrous effects?'' Clark asked.

The government insisted the demolition was a result of trying to create paths so tanks could inject tear gas into hard-to-reach parts of the building and force the sect members out.

Late Thursday, Caddell had blasted Smith's charge, or instructions, to the jury and accused him of trying to "engineer a verdict.''

Caddell said the charge did not differentiate between men, women and children who lived at the compound, and meant that those considered minors under Texas law would be treated the same as adults like Koresh.

Before reading the charge to the jury Friday morning, Smith responded.

Here are excerpts of his comments:

"It's the first time in my experience that a proposed charge to a jury wound up in the newspapers. But this has been a novel experience in many ways for me. I was able to discern that there were some errors in the charge. ...

"I don't usually pay much attention to what the media reports about trials because my experience is that, try as they might, reports are often inaccurate. But when I am involved in a case where there is media reporting ... I do take an interest, because I feel that it's important to me to know what a jury might be exposed to. ...

"First of all, I have not in any way tried to engineer the jury instructions or the verdict form in order to have a particular result happen. I have tried to simplify the jury charge to get to the bottom line in the issues that are of interest to me and the public in this case.

"Congress waived soveriegn immunity. Congress passed a statute that allowed the government to be sued. ...Congress in its wisdom put certain limits on that right. ...An important limit that Congress put on that right, they simply did not trust juries to decide cases where the government is being sued.

"... Federal statutes allow and federal rules of proceedure allow judges to impanel advisory juries. ... That's not limited to Federal Tort Claims Act cases.

"How many lawyers have ever been involved in a case (with an advisory jury)?

(Michael Caddell, lead plaintiffs' lawyer, is the only attorney in the courtroom to raise his hand. The judge then continues.)

"That absolutely amazes me, because you're the one who seems to have absolutely no understanding of the process.

"A jury makes a decision. The jury advises the court. I can take its advice or I can reject it. I consider their verdict to the extent that I want to. I don't know what that advice is going to be. But we'll see. ...

"I certainly do intend to make the decision that the jury makes today public, but it's important for everyone to understand that that is not in any way a binding decision. It is an advisory decision. ...

"I have not attempted to engineer what that advice will be. And I think that perhaps makes the record clear.''