Sect lawyer says judge ignoring law

Instructions to jurors at issue in Davidian case

Dallas Morning News, July 14, 2000
By Lee Hancock

WACO – A plaintiff's attorney complained Thursday that a federal judge appeared to be "ignoring the law" and trying to "engineer a verdict" favorable to the government as both sides finished presenting evidence in the Branch Davidian wrongful-death lawsuit.

Michael Caddell of Houston told reporters that the judge's written instructions and questions for the advisory jury unfairly lump the Davidians together as a group instead of allowing separate consideration of the death or injuries and actions or negligence of each individual in the case.

"I think the jury may surprise the judge. I think that the judge would like to engineer a verdict," Mr. Caddell said on the steps of the federal courthouse in Waco. "I think we can get a jury verdict anyway. But it's clear that he doesn't want a verdict with respect to anyone 17 or older that will be inconsistent with what he wants to do."

Lead government attorney Mike Bradford said he had not carefully reviewed the instructions to be read on Friday after jurors hear closing arguments. But he said they appeared to cover "all of the issues. It seems to be fair."

He and other attorneys defending the government against the sect's $675 million lawsuit had conceded in their proposed instructions submitted to the court earlier this week that jurors would individually consider the actions and injuries of each .

But Mr. Bradford noted Thursday that federal law dictates that judges alone decide civil lawsuits against federal government agencies. If the judge uses his discretion to bring in a jury to advise him, he said, he can use that same power to decide what questions he wants answered.

"It seems to cover all of the issues," he said. "I think he has a great deal of latitude ... he can either rule for us or against us regardless of what this advisory jury finds."

The jury interrogatory asks a four-part series of questions about how the government handled the 1993 standoff, which ended in a fire that killed more than 80 Branch Davidians.

Plaintiffs' attorneys in the wrongful death trial have charged that agents from the Federal Bureau of Alcohol, Tobacco and Firearms used excessive force when a gunbattle broke out as they tried to search the compound and arrest sect leader David Koresh on weapons charges Feb. 28, 1993.

They have also alleged that the FBI exceeded a Washington-approved tear-gas plan and helped touch off the compound fire when they tried to force a surrender on April 19, 1993.

Government lawyers have disputed each charge, countering that sect members ambushed ATF agents and then deliberately torched their building in a mass suicide ordered by their self-proclaimed messiah, Mr. Koresh.

To decide the case, jurors will be asked:

First, did ATF agents use excessive force or fire indiscriminately when a gunbattle broke out on Feb. 28?

Then, did FBI agents act negligently, specifically violating a Washington-approved plan, when they sent tanks deep into the compound during an April 19, 1993, tear gas assault? Did the tanks cause or spread the fire that broke out, and did FBI commanders commit negligence when they decided beforehand that they wouldn't bring in fire trucks or even try to fight any blaze that day?

If government agents were in any way negligent, were the Davidians also negligent in starting fires or failing to submit to government authorities beginning Feb. 28, and continuing through April 19?

An accompanying 18-page set of instructions tells jurors how to consider those questions. It warns that they can't sonsider controversies such as whether the ATF operation was poorly planned or should've been canceled when commanders learned that the sect was tipped off just before the raid.

But it says they can consider the Branch Davidians' decision to resist federal authorities when they weigh the question of whether the FBI "negligently prevented or hindered them from leaving the compound."

The jurors also will be told that they can consider whether "any of the adult plaintiffs in Mount Carmel" contributed to or "proximately caused" the sect's injuries and deaths.

Judge Smith's decision to have jurors consider the Branch Davidians as a group appears to be a shift from his explanation of the case during jury selection.

During that June 19 proceeding, he told prospective jurors: "There are a number of plaintiffs in this case ...and they have to be viewed individually in a lot of respects. Some of them were small children. Some of them were older children. Some of them were aged adults. And you'll learn that there was a different standard to use for different aged persons in determining whether or not something they did was negligent."

When one member of the jury panel asked for more explanation, the judge responded, "You can't treat all of the plaintiffs as one single group. You have to treat them as individuals."

After leaving court Thursday, Mr. Caddell said he was disturbed that the judge did not instruct the jury that they could not consider suicide as a defense if the government's actions helped cause the suicide. He said Texas state law requires such an instruction, and the federal law that allows lawsuits against the government requires a judge to apply the civil laws of a state where the lawsuit is filed.

Autopsy reports

Earlier Thursday, lawyers for both sides recited autopsy reports of those who died in Mount Carmel. A government lawyer told jurors that 20 people – four of them children – died from gunshot wounds to the head or chest, and another child was stabbed to death.

Plaintiffs' lawyers then presented autopsy evidence that nine of those victims suffered extensive smoke inhalation before they died, and an additional nine Branch Davidian women and children were buried alive and suffocated by falling debris. Another 14 died of burns or smoke inhalation.

Mr. Caddell said he was also highly concerned that the jury charge did not consider each individual's case separately, or ask jurors to weigh only that individual's actions when considering whether they or the government were in any way negligent.

He said that unfairly "lumps" women and children together with men who were known to be shooting guns on Feb. 28 and may have been involved in setting fires on April 19.

"He doesn't separate the children," Mr. Caddell said. "I guess I wonder if he thinks that a two-year-old is a Davidian. ... He's saying is that Aisha Gyarfas Summers, who was 17 years old and under the law in Texas is an adult, should be treated the same as David Koresh.

"We asked that the rights of each claimant be deteremined on an indivdiual basis – which is what the law requires, which is what the judge told the jury they were going to be asked to do," Mr. Caddell said. "This will be good evidence to somebody that this judge is not following the law."

Mr. Caddell conceded that his criticism of the judge in a pending case was unusual.

"But I've never had an experience like this. I've never had a judge ignore such clear law. He's ignoring the law that even the government cited in their brief. He's ignoring law that he applied in [an earlier ATF] case arising from the siege."

ATF agents were paid a $15 million out-of-court settlement in 1996 by the Wace Tribune Herald, Waco TV station KWTX, and a local ambulance company after Judge Smith in an April 1996 ruling wrote that the media was aware that the sect was heavily armed and potentially dangerous and should have forseen how their actions endangered ATF agents. Four ATF agents died on Feb. 28.

But the judge's jury charge includes no instructions that FBI commanders had been warned of the possible danger of sending tanks deep into the building on April 19.

Documents offered during the trial showed that commanders were repeatedly warned by FBI experts that the sect would respond violently to such actions.

The judge presented his jury charge to both sides late Thursday afternoon. They will hear it Friday after each side offers their hour-and-a-half closing arguments.

Agent's testimony

Earlier Thursday, the government closed its defense with emotional testimony from an FBI agent who raced into the burning compound to save a sect member who had returned to the inferno.

James McGee, a Hostage Rescue Team member, recalled Davidian Ruth Riddle going back into the building after jumping from a second story, and then trying to fight him off and telling him to leave her alone when he went in to pull her out.

"I found her about 8 to 12 feet inside laying on the floor, laying facedown," said Mr. McGee, who had to ask for a moment to compose himself before describing his actions that day. "She was resistant and said, 'No, leave me alone.'"

When asked why he went in, Agent McGee said: "I went into the compound because the motto of the Hostage Rescue Team is 'servari vitas.' That means to save lives."

The agent said Ms. Riddle turned her head and did not answer when he asked repeatedly for the location of the sect's children. "If she had told me, I would have went after the children or died trying," he said.

In a brief rebuttal, plaintiffs' lawyers read a portion of the deposition of FBI hostage rescue team commander Richard Rogers. Mr. Rogers confirmed that he and the overall onsite Waco commanders decided not try to fight any fires that might break out during the April 19 tear-gassing operation. Byt But Mr. Rogers also said the situation was "too risky."

Plaintiff's Plaintiffs' lawyers also played portions of an FBI surveilance tape in which Branch Davidians could be clearly heard describing how one of the six sect members killed on Feb. 28 were shot from a government helicopter. ATF agents and pilots of the helicopters have all testified that none of the aircraft used in the raid were armed and no shots were fired from them Feb. 28.