Branch Davidians make little headway in push for new trial against U.S.

NewsObserver.com/February 10, 2003
By Adam Nossiter

New Orleans -- Lawyers for Branch Davidians and their families pushing a wrongful death case against the government appeared to make little headway Monday with their argument that a judge who previously dismissed their case was biased.

An appeals judge repeatedly pressed Davidian lawyer Michael Caddell on his claim that remarks made by the lower-court judge demonstrated antagonism toward the religious sect that clashed with federal authorities in 1993. "Is that what you are hanging your hat on, three statements over the course of a trial?" said Judge Edith Jones of the U.S. 5th Circuit Court of Appeals.

The survivors' wrongful death case was dismissed in September 2000 when U.S. District Judge Walter Smith backed the federal contention that agents had not used excessive force in their tear-gas assault. Smith found that the Davidians themselves set the fire that killed nearly 80 men, women and children.

The Davidians are seeking a new trial in front of a different judge.

Judge Smith's "hostility toward these people, which you could almost feel, showed that the possibility of a fair trial was not possible," said former U.S. Attorney General Ramsey Clark, a longtime champion of libertarian causes who was in court to argue for the Davidians.

Jones at one point cut Clark short, urging him to "summarize the major legal points" of his case.

Despite the sharp handling from Jones, Clark declared himself "an optimist by nature" after the hearing.

"I felt it went very, very well," said Bonnie Haldeman, mother of the late Davidian leader David Koresh, and who was also in court. She said she lost 13 grandchildren in the Waco fire.

The case was brought on behalf of the estates of 14 children who died in the fire, a 15-year-old girl who was badly burned and three parents whose children died in the blaze.

Government lawyers dismiss the Davidians' bias claims.

"To the contrary, Judge Smith displayed patience and diligence wading through enormously complicated legal and factual claims and gradually winnowing down the issues for trial," they said in their brief.

On Feb. 28, 1993, federal agents stormed the Branch Davidian compound looking for stockpiled automatic weapons and hand grenades. Four federal agents and three Davidians were killed in the clash.

For 51 days, the government attempted to get the cult followers to come out. On April 19, agents fired tear-gas rounds into the compound and fire consumed it. Koresh was among scores of Davidians who died.