Jury: Feds not liable, Judge will have last word on Davidian wrongful-death suit

Waco Tribune-Herald, July 15, 2000
By Tommy Witherspoon

A federal court jury in Waco on Friday placed blame for the 1993 Branch Davidian tragedy squarely on the shoulders of David Koresh and absolved government officials of wrongdoing in the botched raid that killed nine and the fire in which 76 sect members died.

The jury, empaneled only to advise U.S. District Judge Walter S. Smith Jr. on liability issues in the case, deliberated about 21/2 hours before unanimously finding in favor of the government after the monthlong trial.

Jurors in the $675 million wrongful-death lawsuit filed by surviving Branch Davidians were whisked away from the federal courthouse by federal marshals and were not present in the courtroom when Smith read the verdict. The judge said the jury would not comment on the case.

Jurors found that 76 agents from the Bureau of Alcohol, Tobacco and Firearms did not use excessive force by firing indiscriminately and without provocation when they came rolling up to Mount Carmel in cattle trailers to arrest Koresh for weapons violations on Feb. 28, 1993.

Four agents were killed and16 were wounded during the fierce two-hour gunbattle with Koresh and his followers. Five Branch Davidians were killed that morning and a sixth was shot and killed later than afternoon trying to enter the compound.

The jury, which consisted of two white women, a white man, a black man and a black woman, also ruled that the FBI was not negligent in the way it handled the 51-day standoff and how it chose to try to end the siege on April 19, 1993.

Jurors answered no to each of three allegations remaining in the trial pertaining to the April 19 fire, finding that FBI agents were not negligent in using tanks to penetrate Mount Carmel; that they did not contribute to the start or spread of the fire; and that the government response to the fire was reasonable.

U.S. Attorney Mike Bradford of Beaumont, the government's co-lead counsel, said he hopes the jury's verdict will put the controversy over Mount Carmel to rest. Bradford was flanked by 14 government attorneys and staff members as he talked to the press after the trial.

"I'm gratified with the jury's verdict today," Bradford said. "I think this is a vindication for the law enforcement officers who were out at Mount Camrel in 1993 doing their duty, doing their best to carry out their job in very difficult circumstances, very dangerous circumstances. I think what this verdict shows is that several of the positions we've taken are true. And that is the Branch Davidians started the fire, burned down their own complex and caused the tragedy that happened."

Lead plaintiffs' attorney Mike Caddell of Houston said he was unsure if he would appeal the verdict, which is an advisory verdict to assist Smith, who will issue the final judgment in the case later.

The judge removed from the trial the issue of whether FBI agents fired into Mount Carmel on the final day because a key expert witness was not available for the trial.

On Friday, the judge set a tentative hearing date for Aug. 2 to hear testimony from David Oxlee, a specialist in infrared tape analysis from England who works for Vector Data System and who is recovering from recent cancer surgery.

The judge indicated he would issue a judgment in the entire case after hearing Oxlee's analysis of a March gunfire recreation at Fort Hood that was captured on infrared cameras. The recreation did not prove the plaintiffs' claims of government gunfire on April 19.

"I would like to get this all disposed of at the earliest date possible," Smith told the parties to the suit.

Caddell hinted after the trial that he might not pursue the allegations pending over the gunfire issue.

"I understand the judge has his decision to make and the jury is advisory, but I think from a practical matter, we would recognize that there will be no judgment against the government issued by Judge Smith," Caddell said. "I wouldn't be foolish enough to suggest otherwise."

Caddell was critical of the judge's instructions to the jury, charging that they were designed to elicit a verdict favorable to the government. The judge angrily denied those claims Friday morning before bringing in the jury.

"I am not someone who pursues lost causes," Caddell said. "I think there are enough causes that can be won that you don't have to pursue the lost ones, generally. But I also think that sometimes, as a matter of principle, you take cases that are very, very tough, and we knew this was going to be a tough case.

"We knew that once we were transferred to Waco, it would be tough. We didn't file this case in Waco. We offered to move this case to any court in the Western District other than this court. We went to the Supreme Court to try to get Judge Smith recused. So that may tell you a little bit how hard the government fought to get this case tried in front of this judge and how hard we fought to keep it from being tried in front of this judge," Caddell said.

Bradford, who was brought into the case when U.S. Attorney Bill Blagg of San Antonio removed his office from the case, said he hopes the trial will bring to a close a tragic chapter in American history.

"I hope this puts to rest the concerns about federal law enforcement's activities that day," Bradford said. "This was a randomly selected group of citizens that constituted a jury who heard the evidence and came back with a very quick verdict in favor of the law enforcement agencies. And I think that speaks volumes."

Caddell said he thinks that the "vast majority" of Americans will take the verdict as the final word on Mount Carmel.

"The vast majority of the American public won't know what the jury charge looked like or won't know if it was in accord with Texas law or not. What they will take away from this is that five people sat on a jury through four weeks of a trial and issued a verdict saying that the government was not negligent. I think that is what people will take away from this, and for most peple that will be the finish to Mount Carmel," he said.

The final word, however, may belong to former Missouri Sen. John Danforth, Caddell said. Attorney General Janet Reno appointed Danforth as special counsel to review the FBI's actions at Mount Carmel on April 19, 1993.

"I think Senator Danforth has got some issues that he is looking at similar to the issues we raised," Caddell said. "Whether this verdict will influence his decision, I don't know. I'm sure he would deny that. But the reality is that a jury verdict like this makes it easier for Senator Danforth to conclude that there was no government wrongdoing."

The government contends that Koresh and his followers bore total responsibility for the fiasco by resisting agents' efforts to serve arrest and search warrants on Koresh on Feb. 28 and by setting fire to the compound themselves. Bradford told the jury repeatedly during his closing statements Friday morning that the Davidians were under a spell cast by Koresh, yet could have come out of Mount Carmel at any time during the 51-day standoff.

To illustrate Koresh's hold over his followers, Bradford reminded the jury of testimony relating to the death of Davidian Perry Jones, who was shot in the stomach during the initial raid and refused medical attention offered by the government. He said the 64-year-old Jones sent a message to Koresh asking if he could commit suicide to end his suffering. He died from a gunshot wound to the mouth.

"Just like you had to get permission to do anything at Mount Carmel, you even had to get permission to kill yourself from David Koresh," Bradford said.

Caddell told the jurors in summations that their verdict would send a message.

"The scariest thing about this case is that there will be another David Koresh," Caddell said. "I said in the beginning that this case is about the children of Mount Carmel. But it is too late to save them. So this is also about the next set of children, those children who will be with the next David Koresh and the next and the next. So what we do here will help those next children."

After the verdict, Caddell said he hopes the message to law enforcement is not a negative one.

"If it does send a message to law enforcement, it would be a bad one," he said. "It would be one that sounds like tanks are OK and knocking a building down like that and ignoring a plan that had been carefully thought out is acceptable. I hope that that message is not being sent to law enforcement because that would be pretty frightening, frankly."

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