Appeals court affirms ruling throwing out TV photographer's libel suit against Baylor University over Branch Davidian article

Waco Tribune-Herald/September 18, 2009

A Waco appellate court has said a lower court was correct to throw out a libel lawsuit against Baylor University by a television station photographer who unwittingly spoke to David Koresh's brother-in-law before the 1993 federal law enforcement assault at Mount Carmel.

Jim Peeler, a photographer at KWTX-TV, alleged in his suit filed in 2004 that two stories printed in The Baylor Lariat student newspaper marking the 10th anniversary of the failed Feb. 28, 1993, raid on Koresh's Branch Davidian compound were inaccurate and "unfairly painted Peeler as an incautious and irresponsible media person."

After 170th State District Judge Jim Meyer granted Baylor's motion to dismiss the lawsuit, Peeler appealed his ruling to Waco's 10th Court of Appeals. The opinion was written by 35th State District Judge Stephen Ellis, who was sitting by appointment on the court in this case after Justice Rex Davis recused himself because of a potential conflict involving a law firm in the case where he previously was employed.

'I am disappointed'

The opinion, which upheld Meyer's decision to dismiss the lawsuit, was joined by Chief Justice Tom Gray and Justice Felipe Reyna.

"I am disappointed," Peeler said. "To me, this ends it, but I am just disappointed that I never did get my day in court. They should have tried to get both sides of the story. I was never even asked for a comment."

Andy McSwain, a Waco attorney who represented Baylor in the lawsuit, said he is pleased with the opinion.

"We think that it is correct, and hopefully this litigation will be over," he said.

The Lariat stories, quoting a CNN Web site, recounted a reported conversation that Peeler had with a rural mail carrier on the morning of the raid. The mail carrier, unbeknownst to Peeler, was David Jones, a Branch Davidian and Koresh's brother-in-law.

The Lariat article said Peeler warned the mail carrier to leave the area because of the impending law enforcement action. Jones reportedly left Peeler and went immediately to Mount Carmel.

Disclaimer dispute

The lawsuit alleges the Lariat articles were inaccurate and did not include the disclaimer in the original CNN version that Peeler was unaware that Jones was a Branch Davidian. The Lariat reporters also did not contact Peeler before they wrote their stories, the suit alleges.

The lawsuit claimed that after Channel 10 representatives complained about the articles, Baylor administrators and professors failed to retract or correct the "inaccurate, false and libelous statements published with actual malice and gross negligence to the economic and psychological detriment of Peeler."

The lawsuit notes that a panel from the Society of Professional Journalists reviewed the role the local media, including KWTX and Tribune-Herald representatives, played before and during the raid and "determined that claims that the media was somehow responsible for the failure of the raid were simply unfounded."

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