Judge cancels hearing on remaining Davidian issue

Waco Tribune-Herald / August 29, 2000
By Tommy Witherspoon

A September hearing on the remaining issue in the Branch Davidians' wrongful-death lawsuit against the government - whether agents shot at sect members during the April 19, 1993, fire - was canceled Tuesday by a federal judge in Waco.

U.S. District Judge Walter S. Smith Jr. had set a hearing for Sept. 18. However, in an order Tuesday, Smith said he would issue a ruling in the lawsuit based on evidence already in the record since none of the plaintiffs expressed an interest in paying for an infrared expert to be brought from England to Waco for the hearing.

Smith removed the issue from the lawsuit because David Oxlee of Vector Data Systems was not available to come to Waco for the trial, which started in June.

After an advisory jury's verdict cleared the government of wrongdoing in the deaths of David Koresh and 75 of his followers, the majority of plaintiffs said that they no longer were interested in pursuing the gunfire issue. They had alleged that FBI agents fired into Mount Carmel on the final day of the standoff and pinned sect members inside a burning Mount Carmel.

Oxlee's analysis of infrared videotape shot during a re-creation at Fort Hood in March indicated that flashes appearing on the tape during the fire likely were sunlight reflecting off debris.

Smith has set no timetable for when he will issue his final "findings of fact and conclusions of law" from the civil trial.

Also in his order, Smith clarified a previous order by saying that the costs associated with the March demonstration at Fort Hood are to be paid by the individual plaintiffs, not the plaintiffs' attorneys.

Lead plaintiffs attorney Michael Caddell of Houston questioned Smith's Aug. 11 order in which the judge broke down the cost of the re-creation based upon the number of plaintiffs each of the three attorneys represented. In a motion filed Monday, Caddell called the judge's order "manifestly unjust" and asked the judge to clarify his order.

Smith had ordered Caddell and his 138 clients to pay $20,014; Ramsey Clark and his 35 clients, $5,131; and James Brannon and his three clients, $513. The government will pay the other half of the $51,318.17 that the Department of Defense billed for the test at Fort Hood.

Those costs did not include the salaries of military personnel used during the re-creation or the cost of transporting a Lynx helicopter from England for the test. The judge said in his order Tuesday that salary and the transport costs will not be passed on to the plaintiffs.

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