Government says it did not try to trick Davidian into implicating himself in fire

Waco Tribune-Herald, July 7, 2000
By Mark England

The government denied trying to "trick" a plaintiff in the Branch Davidians' $675 million wrongful-death lawsuit into implicating himself in setting the fire that destroyed Mount Carmel seven years ago.

In a motion filed with U.S. District Judge Walter S. Smith Jr. of Waco, the government said it's entitled to an adverse inference that Derek Lovelock helped start the fire at Mount Carmel because of his refusal to read alleged statements about lighting a fire that were picked up by surveillance devices planted inside the building.

Lovelock, a British resident, was one of nine Davidians to escape the fire that led to the deaths of David Koresh and 75 followers.

"... the plaintiffs were on notice of the United States' position that the Branch Davidians started the fire, and they had access to the tapes prior to the deposition," the government motion said. "Thus, plaintiffs' claim of unfair prejudice and surprise or lack of notice is baseless."

Mike Caddell, lead plaintiffs attorney, said Lovelock did not help start the fire. His refusal to say various phrases — such as, "Spread the fuel" and "Light the fire" — merely reflect his fear of the United States government, Caddell said.

Lovelock's previous experience with the government came during the siege, Caddell said.

Caddell accused the government in a motion filed two weeks ago of deliberately springing its request on Lovelock. It expected Lovelock to refuse to repeat what was on the tape, Caddell said, allowing government attorneys to ask the court for an adverse inference.

But a government motion filed Thursday claims that Lovelock could have just declined to say the words on the tape. Instead, Lovelock invoked his right not to incriminate himself.

It acknowledges the right to invoke the Fifth Amendment, the government stated. However, when that privilege is asserted during a civil case, a court has the right to draw negative inferences, according to the government motion.

The government accused the plaintiffs of trying to use the Fifth Amendment privilege as "both a shield and a sword" to present only favorable testimony from Lovelock.

Partial transcripts of Lovelock's deposition show that a government attorney warned Lovelock of his rights before seeking to depose him. Plaintiffs had argued otherwise. Government attorney James Touhey told Lovelock, "... if you said something or testified to something that was incriminating, that could be used against you in a criminal prosecution. Do you understand that?"

After consulting with his attorney, Joe Phillips, who works for Caddell's firm, Lovelock took the Fifth Amendment.