No-nonsense style defines Waco judge

Revelations about siege are troubling, he says

The Dallas Morning News, October 25, 1999
By Lee Hancock

WACO - The boxes have come by the dozens, filling the federal courthouse basement with a million pages detailing the government's actions in the 1993 Branch Davidian siege.

Three floors up sits the judge who forced every agency of the U.S. government to surrender what he terms a "mountain of sealed documents:" U.S. District Judge Walter S. Smith Jr.

In a rare interview, Judge Smith said he acted to protect the evidence for a wrongful-death case filed by surviving Branch Davidians - a lawsuit set for trial next May.

He said he also wanted to ease public concerns over recent revelations about government actions during the 51-day siege, information that contradicts the government's previous accounts of what federal agents did. "After more and more revelations were found, I just decided, let's get all the information here," he said.

He declined to discuss the merits of the Branch Davidians' case, which contends that federal negligence caused the deaths of leader David Koresh and at least 80 followers - allegations that government lawyers deny. But the judge said he has been troubled by information surfacing six years after the government absolved itself of blame for the standoff's tragic end. "It has been something," he said. "If they had just been upfront with the things, that now are coming out like teeth are being pulled, there wouldn't have been a problem, I don't think."

Those who know the 58-year-old judge say his orders forcing the government handover were vintage Walter Smith: quick, decisive and unbending to any argument that he lacks authority for such a sweeping act.

"I think he's trying to get at the truth," said David Guinn, a professor at Baylor University's law school.

"He is concerned that there have been things or there's the perception that things have transpired that should not have," said Mr. Guinn, a friend and law school classmate. "He's troubled by it, and he thinks it's time to get the issues out on the table."

Tough reputation

In 15 years on the federal bench, Judge Smith has become known as a tough jurist with a precise legal mind and a low reversal rate.

It was a career that began on a whim. He grew up in Marlin - just southeast of Waco - as the son of a second-generation physician and a teacher. He planned to follow his father into medicine but proposed taking law school classes at Baylor "for the experience" while awaiting the start of medical school.

Captivated by law, he said, he "never looked back."

He jumped into civil litigation, first joining a firm that exclusively represented plaintiffs and later shifting to insurance defense. Throughout, he said, he loved the courtroom. "It's almost like being on stage," he said. "Not to say that all lawyers are just acting, but it's kind of the same thing. . . . You're performing."

Judge Smith became active in politics. He was chairman of McLennan County's Republican Party from 1970 to 1979.

That eventually led to a summons to Austin. In 1980, he was called to the governor's office after a Waco state district judge resigned. He said he expected to be quizzed on possible replacement candidates.

But Gov. Bill Clements asked him to take the job. After 27 months, he ran for a full term but was defeated in the then-heavily Democratic county. Through Republican party work, he befriended an aide to the late Sen. John Tower. The two became closer when the aide attended law school at Baylor. In 1983, Mr. Tower helped Judge Smith become a U.S. magistrate. In 1984, after Congress created a judgeship for Waco, the senator nominated Judge Smith to the federal district bench.

Characteristically self-effacing, Judge Smith says he doesn't share the view of "a lot of federal judges" that lifelong judicial appointments reward superior intellect and legal skills.

"You've just got to be at the right place at the right time with the right connections," he said.

Being the only federal judge in Waco is wonderful, he said. "I can do pretty much whatever I want."

Approach to law

He said he operates his courtroom with a simple philosophy: "To try to see to it that the litigants get their appropriate day in court and are given an opportunity to present what's appropriate under the rules."

A soft-spoken man with patrician Southern manners, Judge Smith developed close bonds with the staff of the 1930s mission-style courthouse. Judge Smith's secretary followed him from the county courthouse. One law clerk who came for a two-year post in the early 1990s has stayed on. Judge Smith's wife, Brenda, works down the hall as the federal magistrate's secretary.

Judge Smith quickly became known among lawyers as a formal, no-nonsense jurist with little patience for the unprepared. He pushed his docket just as hard, hearing so many criminal cases at one point in the mid-1980s that his district court was among the nation's busiest.

He also became known as a tough sentencer, a trait that caused some of the criminal lawyers to label him as pro-government. But attorneys who appear regularly in his court say that reputation is overblown.

"If you get convicted, watch out. He will hurt you. But as far as making sure you get a fair trial, I think that he will give you as fair a trial as you could hope for," said Joe Turner, an Austin defense attorney who represented one of the Branch Davidians tried before Judge Smith in a 1994 criminal trial.

"He will make the government prove the case. He makes the government follow the rules," Mr. Turner said. "I think he takes seriously his job of making the government toe the line."

Judge Smith has ripped prosecutors who crossed that line. After the 1995 wire-fraud conviction of three former Baylor basketball coaches involved in a correspondence-course cheating scandal, the judge denounced the "government's extreme lack of prosecutorial judgment and good sense." The lead prosecutor ultimately transferred to another office.

"Anybody that says he's soft on prosecutors needs to talk to prosecutors who have come under his judgment," said Bill Johnston, head of the Waco U.S. attorney's office.

"He will give anybody the benefit of the doubt," he said. "But if you mislead him, you may not get back in there."

Quick involvement

In February 1993, the federal Bureau of Alcohol, Tobacco and Firearms raided the Branch Davidian compound near Waco. A gunfight broke out, and four federal agents died.

Judge Smith quickly became heavily involved in the case. The siege ended on April 19, 1993, when FBI agents used tanks and tear gas to force a surrender.

Six hours after the FBI assault began, a fire leveled the compound with Mr. Koresh and more than 80 followers inside. Investigators later ruled that the Branch Davidians deliberately set the blaze.

Eleven survivors were charged with conspiring to kill federal agents. Judge Smith moved their trial to San Antonio and presided over it for six weeks in early 1994.

He appeared visibly upset when a jury acquitted sect members of conspiring to murder and found eight guilty only of voluntary manslaughter and weapons charges.

His handling of the case was bitterly condemned by Branch Davidian supporters. But defense lawyers said the judge went out of his way to get an unbiased jury panel. Over vehement prosecution objections, Judge Smith allowed the defense to argue that the Branch Davidians acted in self-defense during the gunbattle.

In upholding the convictions, the 5th U.S. Circuit Court of Appeals ruled that the judge was not required to instruct jurors that the Branch Davidians could be acquitted of murder if they were defending themselves out of reasonable fear for their lives.

After that trial, Judge Smith began shepherding a dozen civil cases arising from the incident. In one, ATF agents said that employees from the Waco Tribune-Herald, Waco TV station KWTX and an ambulance firm tipped the Branch Davidians about the impending raid.

In a caustic April 1996 opinion, Judge Smith said the Waco media "arrogantly descended on the compound as if the First Amendment cloaked them with immunity from acting as responsible individuals." The defendants paid a confidential settlement later that year that participants said totaled $15 million.

In 1998, an ATF agent who warned superiors that the sect was tipped, won a $1.3 million judgment from a psychologist who leaked information from his counseling sessions to ATF managers.

Along with those cases, the judge also saw a massive wrongful-death lawsuit filed by surviving Branch Davidians and families of those who died. Lawyers for the Branch Davidians first fought all the way to the U.S. Supreme Court to get the judge removed. Some of the judge's friends marveled that he did not take "a golden opportunity" to ditch such a complex and thankless case, said Noley Bice, a former law partner.

"He views this as his duty," said Mr. Bice, general counsel for Baylor University. "He is willing to take that responsibility up until the end." Weighing both sides

After appellate courts refused to remove Judge Smith, both sides filed reams of pre-trial pleadings.

Branch Davidian attorneys insisted that the government was concealing what happened with its insistence that no FBI agents fired a gun or used pyrotechnic devices on April 19. Plaintiffs' pleadings argued that crime scene photos documented the use of pyrotechnic tear gas and that FBI infrared videos captured evidence of government gunfire during the tear gas assault.

Government lawyers said the allegations were baseless and sought dismissal of the case.

But the plaintiffs began filing pleadings in June that included information from the government's own evidence trove. After years of barring anyone from looking at the evidence, the Justice Department allowed a filmmaker to view it in the company of Mr. Johnston, the prosecutor who had worked on the Branch Davidian case from its inception.

The filmmaker asked about what appeared to be projectiles. That aroused concern among officials at the Texas Department of Public Safety who had kept key Branch Davidian evidence since Texas Rangers were asked to investigate the initial gun fight.

In July, the Department of Public Safety asked the judge to take the evidence from their lockers. Working with Mr. Johnston, Rangers began trying to determine what they had. They knew by early August that at least one of the projectiles was a U.S. military pyrotechnic grenade fired April 19. As Mr. Johnston sent increasingly dire warnings to his supervisors about what the Rangers were finding, the Justice Department asked Judge Smith to instruct the Rangers to surrender what they had to the FBI.

Amid mounting public questions about what the FBI's actions, the judge said, "from a public perception, that didn't seem to be an appropriate thing to do."

So he issued a stunning order Aug. 9: Every federal agency must disgorge everything in its files even remotely related to the siege and send it to the Waco federal courthouse.

The judge dismissed government arguments that he lacked legal authority. He noted that extraordinary action was warranted in "litigation that is unprecedented in subject matter, scope and public attention." He wrote that he wasn't going to allow "fishing expeditions" but was trying to address perceptions that "the government may have the opportunity to conceal, alter or fail to reveal evidence."

Within weeks, Mr. Johnston wrote Attorney General Janet Reno to warn that lawyers in her own department had long known and possibly covered up the use of pyrotechnic tear gas. The judge then called Ms. Reno personally to tell her of Mr. Johnston's integrity.

The judge said he also warned that he would not tolerate departmental retribution against the Waco prosecutor, and Ms. Reno assured him that Mr. Johnston would be treated fairly. Since then, regional U.S. Attorney Bill Blagg has recused Mr. Johnston and every other prosecutor in his district from involvement in the case.

Change of view

Even before his August order, the judge's writings in the case indicated a change in his view of what had transpired between the Branch Davidians and the government.

When he sentenced the Branch Davidians to stiff prison terms in 1994, he wrote that they had started the firefight that began the incident. However, in a July 1, 1999, order refusing to dismiss the case, he wrote that how the gunbattle began is "a matter of great dispute." Asked about that shift, the judge said, "The focus of the criminal trial was just that - on whether or not one or more Branch Davidians were responsible for the deaths of the agents.

"The focus now is entirely different, looking in a different direction: what government agents might or might not have done that was wrong, poor judgment or whatever," he said. "It's yet to be determined how much military personnel were involved. I don't know to what extent that's going to affect the government's liability."

But the origin of any government agent - military or civilian - probably wouldn't matter if they did wrong, he said, because they were acting on behalf of the government.

He acknowledged that his views on the military's involvement have recently changed, amid revelations that members of secret military units were sent to Waco to observe and assist the FBI with classified technical equipment. In his July order, the judge chastised plaintiff's lawyers for even suggesting that the Army's secret Delta Force unit may have been actively involved in the tragedy's end.

"That was before I had become aware that they were there," he said. "I don't know how many military people were there. I don't know what they did or didn't do. That's going to be forthcoming."

Whatever their role, he said, the military's presence gives him pause. "The Posse Comitatus law has been on the books a long time," he said. "We have not allowed our military personnel to be involved in criminal investigations except in limited settings. I think that's the way it ought to be. If you don't have that separation, you have a police state." Larger importance

Judge Smith said he believes that a civil trial in his imposing third-floor courtroom can fully air both what happened and the government's responsibility.

Although it retains the features of a routine civil case, the judge said he recognizes that the lawsuit carries a larger national importance. "There are those that want the trial to be an opportunity to expose government malfeasance, and to perhaps increase the public's trust in its government," he said. "I don't want the trial to become a political arena, but to some extent, it will be. So I view part of my job as trying to keep the lawyers focused on the real issues."

Congressional investigators and staffers of Waco independent counsel John Danforth have become regular callers. The judge's staff also has fielded media calls seeking access to the evidence. Judge Smith said he will not decide until later how to handle such requests.

He said he believes the lawsuit can help restore confidence in the legal system by determining what happened and if need be, holding government accountable.

"A civil trial is as good a place to determine that as we can get," he said. "The court's not really an investigating agency, but it is the apparatus by which the truth is determined."