WACO, Texas Seven years after the deadly confrontation between federal agents and the Branch Davidians, the combatants will gather Monday in a Waco federal court to decide how much blame, if any, the government should share for the 1993 tragedy.
Lawyers for each side will offer starkly opposing accounts of the standoff at the sect's rural compound, which began with a gunbattle that killed four federal agents and ended 51 days later with the fiery deaths of more than 80 Davidians.
At stake for both sides in the $675 million lawsuit is potential vindication for their actions in the deadliest law-enforcement incident in U.S. history.
Also hanging in the balance are public confidence in federal law enforcement and the legacy of Attorney General Janet Reno, whose now-waning tenure began with her decision to let the FBI use tanks and tear gas to resolve the Waco standoff.
"What the Justice Department is concerned about is that a verdict against it would sustain the long-standing criticism of its conduct and the relatively large group of Americans who have been energized by this incident. ...Waco horrified a great number of people in the mainstream," said Jonathan Turley, a George Washington University law professor. "The Justice Department, however, tends to portray the Waco incident as largely a concern for fringe and extremist groups.
"The Justice Department and Reno know that Waco will remain one of the darkest chapters in her tenure. If there's a verdict against the government, this incident will become more than a mere footnote," he said. "A verdict would be a statement of the community against the conduct of the government.
What's important is that this jury and judge cannot be dismissed as a fringe group." Surviving sect members say the trial will allow them for the first time to fully air their accounts of the 1993 incident at the place they call Mount Carmel. They also hope to counter the government's portrayal of them in an earlier criminal trial and in Justice Department, Treasury Department and congressional inquiries as apocalyptic cultists who surrendered wives, children and even their lives to self-proclaimed messiah David Koresh.
"I'd like for people to see that this was a horrible thing that happened to us," said Sheila Martin, who surrendered during the siege and lost her husband, Wayne, and four children in the final fire. "No matter what they want to make it sound like, we were a family inside. ...We have lost a lifetime, a life of whatever might have been."
Four agents died
Government officials say they hope the trial will remind the public that four agents of the federal Bureau of Alcohol, Tobacco and Firearms were gunned down while serving a lawful search warrant, and hundreds of FBI agents spent 51 days doing everything possible to resolve the incident peacefully.
"The biggest upset, and what has gotten lost through the years: There were real people at Waco working for the FBI doing the absolute best job they could, none of whom wanted the outcome that occurred, all of whom were dedicated to saving lives," said a senior FBI official, who spoke on condition of anonymity because his agency's lawyers have barred public comment on the case. "They feel that for all these years, they've been falsely accused and have not had an opportunity to have their side heard." "This is sort of the last remaining chapter," the official said. "A verdict for the government would be, to a significant degree, vindication to the people who were on the ground that day trying to do their best under extremely difficult circumstances." But for at least one group, the trial may prove a disappointment either way.
Some of the most vehement critics of government actions in Waco say they are skeptical about whether the trial will resolve much because of U.S. District Judge Walter Smith's decision to dismiss many issues outright and remove others from consideration by the trial jury.
"The 1993 conflagration spawned an entire cottage industry of conspiracy theorists, some of whom were previously occupied with their own theories concerning the grassy knoll and whether or not space aliens were being cloned at Area 51," said one government official close to ongoing federal inquiries into the 1993 incident. "It's clear that Judge Smith has little tolerance for the wackier Waco theories."
The judge threw out charges in July that government agents infiltrated the compound just before it burned and placed a bomb on top of the concrete room where many of the sect members' bodies were found after the fire, calling the charge "frivolous" and "outrageous." He announced in a hearing last week that he would sever from the jury trial the allegation that flashes on an April 19 FBI infrared video were caused by government gunfire that kept sect members from fleeing the fire. On Tuesday, the judge wrote in a pretrial order that he might dismiss that issue outright.
Michael McNulty, a Colorado filmmaker whose two Waco documentaries have popularized the April 19 gunfire theory as well as the bunker-bomb claim, said the judge's recent actions suggest he intends "to whitewash the only criminally significant issue in the whole mess.
"I don't believe they are going to deal with the evidence ... It cuts the importance of the trial by 50 to 70 percent," he said. "But then, I'm somewhat skeptical whether anything will come out of the federal family, from either this judge and court or [Waco special counsel John C.] Danforth or the Congress." After a final round of pretrial skirmishes, the opposing teams of lawyers will spend Monday afternoon choosing a jury of six people and one alternate from a pool of 50 Central Texas residents.
Lawyers representing surviving Davidians and families of those who died will open their case with a re-examination of the bloody ATF raid at Mount Carmel..
The charge that an army of 75 heavily armed ATF agents used excessive force Feb. 28, 1993, firing indiscriminately at a wooden building filled with dozens of innocent people, is one of the four central issues in the wrongful-death suit.
Government lawyers will counter that the ATF agents were serving a valid warrant to search the building and arrest Mr. Koresh on weapons violations, and acted lawfully to defend themselves when ambushed.
"People have forgotten that four agents died," said U.S. Attorney Michael Bradford of Beaumont, one of the government's lead lawyers.
The government has indicated it may call up to 26 ATF agents involved in the raid, including six hit by Davidian bullets or grenade shrapnel during the gunfight.
The government trial team also won a recent fight to bring samples from the Davidians' arsenal into the courtroom and show jurors a photo book of each of the more than 200 guns and hundreds of thousands of rounds of ammunition recovered from the compound after the siege.
Lead plaintiff's attorney Michael Caddell said he believes he can blunt the impact of that display by addressing the issue head-on in his opening statement. He said he also will speak bluntly about Mr. Koresh, telling jurors that he and others in the sect's leadership may have contributed to the tragedy.
"There weren't any 2-year-olds carrying AK-47s," he said. "The bad acts of David Koresh and a handful of others created a dangerous situation, but bad decisions by the government created a deadly situation in which the lives of a lot of innocent women and children were lost." Some familiar with the case say the argument about excessive use of force by ATF may prove most compelling to jurors. They note that a San Antonio jury acquitted surviving sect members in a 1994 criminal trial of the most serious charge of conspiracy to murder. Eight were instead found guilty of lesser charges of manslaughter and weapons violations.
Jurors in that case also told reporters after the trial that they agreed early in their deliberations that "both sides did wrong," and no one could say who started the initial gunfight. Although the more than 20 ATF agents called as witnesses in that trial insisted that sect members fired first, two also acknowledged they initially thought the first shot came from outside the compound.
The civil case will include live testimony from more than a half-dozen Davidians who witnessed that confrontation, as well as videotaped depositions from several imprisoned sect members. No sect members testified in the 1994 criminal case.
But Mr. Bradford said that testimony could ultimately bolster the government's defense in a case that government lawyers will boil down to "who to believe." Judge Smith has already ruled that the government can question sect members and introduce other evidence of the sect's aberrant lifestyle and beliefs.
Government lawyers say they will detail Mr. Koresh's teachings that his followers must wage an apocalyptic war with the government, as well as the fact that sect members were so committed to him as their messiah that they dissolved all marriages and let him have sex with girls as young as 11.
Remaining issues in the trial will focus on the final April 19 tear gas assault and fire that ended the siege.
Plaintiffs have alleged that the government's two Waco commanders, FBI Hostage Rescue Team commander Richard Rogers, and FBI regional chief Jeffrey Jamar, violated Ms. Reno's orders in their planning and execution of the final April 19 plan.
Ms. Reno has disputed that in her deposition, saying their actions were proper. Both sides have indicated they plan to present video excerpts from her deposition during the trial, and lawyers for the plaintiffs say they will also introduce portions of depositions in which senior FBI officials indicated that the FBI's actions in Waco went beyond approved operational plans.
Mr. Jamar and Mr. Rogers have said they acted properly in Waco. Government lawyers say they will call each of the men, who are retired, to testify.
But the plaintiffs will argue that the two agents' decision not to try to fight a fire or have fire equipment on hand violated the attorney general's directive to have adequate emergency equipment before launching the raid.
Lawyers for the sect will also argue that the two commanders violated the Washington-approved operation plan when they decided to send tanks smashing deep into the building after only four hours of tear gassing. The operational plan approved by Ms. Reno called for at least 48 hours of tear gassing before agents in Waco would use tanks to demolish the building.
Finally, lawyers will contend that the tanks caused or contributed to the spread of the fire. Even if some Davidians set some areas of the building on fire, some lawyers for the plaintiffs will argue, the government was responsible for protecting innocent women and children from harm and did not respond adequately to the known threat of fire. They will argue that government actions set the tragedy in motion, hurried it to its end and were carried out despite clear warnings about how some sect members might react.
Government lawyers will argue that the decisions on how to use tanks, whether to fight a fire or have fire equipment on hand are protected under federal law from later legal challenge. They have filed legal briefs contending that federal law gives broad protection to federal agencies and employees to prevent their being "second-guessed" on policies or decisions even if the decisions prove negligent or wrong.
They will contend that claims of FBI negligence in going ahead with the gas operation despite information about the poor condition of the building, the mindset and the practices of the Davidians, and the weather are also barred by the same exemption.
"The exception covers negligence and abuse of discretion, as well as the failure to consider possible alternatives," such as the possibility that the sect might start a fire, the lawyers argued in a recent brief.
And even if the government was negligent in sending tanks into the building before the fire, the government's pretrial brief contends, the Davidian deaths were solely caused by the actions of sect members who set the fire.
"Because the fire was started by certain Branch Davidians, the United states owed no duty to protect the remaining Davidians from the fire," government lawyers contended in their pretrial legal filing, adding FBI agents also had no duty to rescue the Davidians "from a peril it did not cause." Mr. Bradford acknowledged that the government will present evidence that some of the surviving Davidians, including one acquitted of all charges in the criminal trial and another never charged, were among those who helped set the fires.
"The point is, we didn't set the thing on fire. They did. We're not responsible," he said. "Our understanding of the law is that it's intended to protect federal law enforcement officers like those at Waco from going into a difficult situation, making the best decisions possible under the circumstances, and then seven years later having those decision picked apart or second-guessed."
The plaintiff's chances for convincing a jury that the FBI's actions on April 19 were negligent may hinge on how much they are able to present from the bureau's own internal memos and reports of the events leading up to the tear gas assault.
The two agents who led negotiations and a third who prepared detailed behavioral analyses of the sect warned FBI commanders that aggressive tactical actions such as sending in tanks would guarantee violence. The two top negotiators told interviewers after the tragedy that overly aggressive tactics by Mr. Rogers and his hostage-rescue team killed negotiations and kept at least some Davidians from surrendering before the fire.
Government lawyers have asked the judge to bar introduction of those reports and interview statements. They contend those are inadmissible because they involve the kind of "judgment calls" that the judge has already dismissed from the lawsuit.
"They don't want the jury to hear about their own hostage negotiators saying, 'We could've gotten more people out if we'd handled this differently," Mr.
Caddell said. "But that's the whole case. The reason those people stayed inside and didn't come out on April 19 is because of the bad acts of the government." Mr. Bradford disputed that, saying he will argue to jurors that "it wasn't anything we did that kept them from coming out. They had the opportunity to come out. When the decision was made to insert the gas, they [the Davidians] set the building on fire." But Mr. Caddell said he believes the ultimate issue in the trial will be whether the government will be held accountable for what happened.
"David Koresh and the Davidian leadership paid the ultimate price for their share of responsibility for the tragedy at Mount Carmel. Many others are still in prison," he said. "It's time for the government to accept its share of responsibility."
Last fall, when John Danforth's investigators popped the lids off five-gallon containers that held "junk evidence" from the government's siege at Waco, Texas, they encountered a terrible smell.
As the investigators picked through the six-year-old debris, mostly rounds of ammunition that had burst during Mount Carmel's deadly fire, they found patches of human hair, clothing and other watersoaked rubble amid brass shell casings collected after the 51-day siege ended.
For some, there's always been a stench attached to what happened at Waco - how it began, how it ended and the conduct of the federal investigations that followed. Now, another airing is about to begin.
On Monday in a federal court in Waco, the government goes on trial in a civil lawsuit brought by relatives of those who died during the siege. The trial, which is expected to last four weeks, will consider Branch Davidian claims that actions by government agents contributed to the deaths of some 80 members of the obscure religious sect seven years ago.
Unlike the criminal trial of Branch Davidian defendants in 1994, this time the government will have to defend its actions. And because of the last-minute addition of a jury, the public will have a role in judging those actions. The lawsuit's outcome, along with investigations by Danforth and Congress, could put to rest Waco's questions once and for all and help bring to a close what the judge has called "a great American tragedy."
Mike Caddell, the Davidians' lead attorney, believes the trial is "about forcing the government to accept its share of responsibility for the tragedy at Mount Carmel, for the deaths of those children and the deaths of innocent people."
Mike Bradford, the U.S. attorney helping defend the government, said the Davidians' claims have slowly evaporated. Davidians began by accusing the government of intentionally trying to hurt people but now are accusing the government only of making mistakes, he said.
"We have turned significantly the tone of this whole situation," Bradford said. "That's something of a vindication for us."
The government is hoping that the trial and its jury verdict will provide further vindication and help sway the results of the inquiries by Danforth and Congress. The plaintiffs are looking toward a different result.
Focus on children
The Davidians' most serious allegation - that FBI agents fired on the complex - has been tarnished by results from a special test recommended by Danforth in March. The British experts who conducted the tests have concluded that the agents did not fire, and U.S. District Judge Walter Smith Jr. has suggested he may throw out that allegation during the trial.
That would leave four claims for the jury and Judge Smith to consider:
That Alcohol, Tobacco and Firearms agents used excessive force in the initial raid to serve search and arrest warrants on Feb. 28, 1993. In a gunfight during the raid, four agents and six Davidians were killed.
That FBI agents exceeded Attorney General Janet Reno's orders by using converted tanks to demolish the complex.
That FBI tactics, possibly including the firing of tear gas canisters, caused the fire that destroyed the complex on April 19 during a tear gas assault.
That firefighting equipment should have been on hand to save lives. While some Davidians died from gunshots, most perished in the fire.
The Davidians' lawyers will focus attention on the child victims. Many claims made by relatives of adults who died have been withdrawn. Twenty of those who died were under the age of 16. Many of their bodies were found in a 14-by-14-foot concrete room inside the Davidians' wooden complex.
The room, where food - and later guns and ammunition - were stored, became a refuge for about 34 women, children and babies. After the siege ended, their bodies were found amid hundreds of thousands of rounds of ammunition that had burst from the heat. During a five-day cleanup, a bulldozer scooped up the spent cartridges and poured them into the containers that investigators looked into last fall.
Government lawyers will point to the Davidians' dead leader, David Koresh, as the major cause of the tragedy. Among the evidence it will present is the fact that the religious community kept an arsenal of more than 264 rifles, pistols and shotguns, 48 of which had been illegally modified to fire fully automatic.
"My first words to the jury will be that I won't defend David Koresh," Caddell said. "What happened didn't happen because David Koresh wanted it to happen but because of a combination of bad acts by David Koresh and bad decisions by the government."
Bradford said Waco's events were caused by Koresh, "who considered himself as a messiah who had prepared his followers for a violent confrontation with the government that he believed was going to lead to the end of the world."
"The cause of the tragedy was the Davidians' actions. The government acted reasonably during a dangerous and difficult ordeal," Bradford said.
U.S. District Judge Walter Smith Jr. has ordered the selection of a six jurors and one alternate to help him determine whether the government shares any blame.
The jury will hear all the issues except that of alleged government gunfire. Judge Smith will consider that element separately when a court-appointed expert will be available to testify, perhaps in August. The jury will consider whether the government is liable for damages; Smith could overrule its findings but probably won't be inclined to do so. The judge alone probably will determine the amount of damages, if any.
Judge Smith was originally scheduled to hear the case by himself. He announced May 26 that he would impanel the advisory jury, "having considered the importance of the issues involved in this case."
The move distributes the responsibility for the verdict. And should the jury's recommendation go against the Davidians, it would help bury conspiracy theories deeper than would a ruling from a lone federal judge.
In 1994, Judge Smith presided over the criminal trial of 11 Davidians accused of murdering federal agents. Seven of them were found guilty of manslaughter and of weapons charges. The U.S. Supreme Court earlier this month reduced by 25 years the sentences that Judge Smith gave to four of the defendants and cut another five years off the sentence of a fifth.
Bradford is the U.S. attorney from Beaumont in southeast Texas. A former state district judge, he was brought onto the government's team in January to provide homegrown flavor to the defense. Lawyers who have worked with him say Bradford is thorough, diligent and ethical and just the right man to handle a case as complex and controversial as Waco.
Although only on the job for six months, Bradford has become the spokesman for the government's side. That's because co-counsel Marie L. Hagen, the senior trial counsel in the Torts Branch of the Justice Department's Civil Division, refuses to talk about the case.
"I don't give interviews in pending litigation," Hagen said.
She has represented the government in cases ranging from the Navy's Tailhook sexual harassment scandal to a suit involving the deaths of 47 sailors on the U.S. battleship Iowa in 1989. A magistrate criticized Hagen for holding back documents in the Navy case. Lawyers for the Branch Davidians have made similar complaints about her regarding Waco.
Caddell, with an office in Houston, is known in Texas for successfully representing plaintiffs in personal injury and product liability cases. Sometimes a guest for coffee at the White House, Caddell has been a major campaign contributor to Democratic party causes and President Bill Clinton. Lawyers representing other Davidian survivors include James Brannon of Houston and former U.S. Attorney General Ramsey Clark.
A lawyer familiar with Waco and not connected to either side believed the jury's presence could help the Davidians' lawyers, particularly Caddell. Government lawyers had asked Judge Smith to reconsider the decision to impanel a jury.
"Caddell will play the violin right from the very beginning," the lawyer said. "He will wave the bloody shirts on all the kids. He thinks well on his feet. The government people are more plodding."
Perhaps Caddell's most compelling witness will be Misty Dawn Ferguson, who was 17 years old when she escaped the burning complex by leaping from a second-story window. Her hands are withered from burns.
"She is a child who never fired a gun, never did an illegal act," Caddell said. "She was afraid to come out during the siege. She saw the agents destroy the church's property. She saw the agents mooning the Davidians. That's not a way to create trust."
Some Davidians have said that during the siege, agents made obscene gestures toward them. An investigator who has questioned some FBI agents about the allegations said none has admitted the gestures.
Caddell said Ferguson would testify that on the final day of the siege, there was no plan to commit suicide or to set the building on fire. He said that as tanks poured tear gas into the complex and agents fired "ferret" tear gas rounds into it, Ferguson was in an upstairs bedroom waiting with others.
"They were terrified," he said. "They felt the building shudder every time it was hit by the tanks."
Caddell said the damage the tanks did to the building prevented Ferguson from using stairs to get out quickly when the fire started.
"She had to turn around and walk through a wall of fire to get out," Caddell said. Caddell will attempt to show that the government's gassing attack could have started the fire. The government will argue that the Davidians started the fire.
The trial's witnesses will also include current and former FBI agents, religious experts, pathologists, engineers, specialists in infrared technology and fire experts. While Attorney General Reno is not expected to testify, parts of her sworn statement will be entered into the court record.
Byron Sage, who was the FBI's prime negotiator during the siege, may be called as a witness. Sage, who retired after 28 years, said the FBI went ahead with the tear gas plan thinking parents would get their children out of the complex as soon as they smelled the gas.
About 15 minutes before the fire began, Sage broadcast to the Davidians on a loudspeaker that tanks were prepared to pour more tear gas into the structure. Sage has the transcript of his broadcast: "You have the opportunity to call an end to it. You have precious young kids in there. We do not intend nor do we want to inflict any injury on those kids. It's time to bring this to an end. Come out."
No one reacted to the broadcast, and after the tanks plowed into the building to insert more gas, fires broke out in three places.
Sage said the FBI had "grossly underestimated the extent of influence and control that Koresh exerted over those people. I will forever regret the fact that that effort was not successful and those precious children perished."
There's no doubt the government made mistakes at Waco. Two ATF commanders were fired for lying about details regarding the initial raid, though they were later reinstated in other jobs. After-action reports by FBI agents acknowledge that FBI commanders undermined their negotiators during the standoff that followed. Changes have been made since then within the FBI's hostage rescue team that require the tactical forces to coordinate activities with the negotiators.
"There were more than enough mistakes to go around," Sage said. "There comes a time when they (the Branch Davidians) need to be held accountable for their actions. We did not shoot at them. They shot hundreds of rounds at the FBI. We didn't set the fire. They did."
A federal judge in Waco has told both sides in the Branch Davidian wrongful-death case that he is considering throwing out the sect's allegations that government gunfire contributed to the massive loss of life at the end of the 1993 siege.
U.S. District Judge Walter S. Smith gave lawyers for the sect until next Friday to offer "any additional evidence" to support their claim that repeated flashes on an FBI infrared videotape recorded on April 19, 1993, came from government gunfire.
Citing the May report of a court-appointed expert that the flashes came only from sunlight and heat reflections, Judge Smith wrote that "the court is persuaded that the issue ... may best be resolved through summary judgment.".
The order came on the heels of the judge's Monday announcement that the April 19 gunfire issue would be severed from the jury trial of the wrongful-death case set to begin next week in Waco.
Judge Smith said Monday that he planned to hear evidence and decide that issue at a later date because the chief analyst for the British firm appointed by the court to study the issue, David Oxlee of Vector Data Systems, was ill and unavailable to testify until late summer.
Vector Data Systems was retained both by the court at the recommendation of Waco special counsel John C. Danforth to help resolve the April 19 gunfire issue. Vector's scientists have also provided analysis to Mr. Danforth's ongoing inquiry and helped his office supervise a March field test at Fort Hood.
Lawyers representing sect members and their families have alleged that government gunfire kept Branch Davidians from escaping their home when it was consumed by fire on April 19, 1993. The fire broke out six hours after FBI agents began ramming the building with tanks and spraying in tear gas to force an end to a 51-day standoff.
More than 80 Branch Davidians died amid the fire.
Lawyers for the government said Thursday that they are now hopeful that the judge will dismiss outright what they have long maintained is an outrageous and baseless allegation.
"We think that the evidence is overwhelming that there is no gunfire, that the court-appointed experts confirm what was already very clear, and that a summary judgment order should be granted," said U.S. Attorney Michael Bradford of Beaumont, one of the government's lead defense lawyers.
But lawyers for the plaintiffs complained that the ruling unfairly burdens them on the eve of trial and comes before they are allowed to fully question the court's experts. They have argued that the findings were flawed, noting that two Vector Data Systems analysts who have been deposed have contradicted many aspects of the firm's report and that one admitted that neither was qualified to evaluate whether infrared recordings captured gunfire.
"We offered to go to London and take Mr. Oxlee's deposition so we could present this issue to the jury. The court rejected that proposal, saying the court wanted to see Mr. Oxlee testify personally," said Michael Caddell of Houston. "I find this order surprising and very strange, to suggest that this issue could be decided on before we ever get to question him.".
Judge Smith had previously denied government motions to dismiss the April 19 gunfire allegation from the wrongful-death lawsuit, citing a report by a former defense department expert that the flashes on the infrared video could only have come from government gunfire.
But on Tuesday, he issued a three-page order citing three recent U.S. 5th Circuit Court of Appeals opinions that federal judges can unilaterally decide to reconsider such a decision. Citing one of those opinions, he gave lawyers for the plaintiffs until next Friday to offer "any additional evidence ... of whether the [infrared] tapes of April 19 reflect gunfire on the part of the FBI.".
Jim Brannon, another attorney for the plaintiffs, said presenting any new information to the court will be difficult because their chief expert, former defense department scientist Edward Allard, recently suffered a stroke. Judge Smith's Tuesday order noted that his decision not to throw the April 19 gunfire issue was based on Dr. Allard's reports that the flashes on the infrared tape came from gunfire.
A second infrared expert who stated publicly last fall that the flashes on the April 19 infrared video were from gunfire and was considering signing on as an expert for the plaintiffs died of a heart attack in April, Mr. Brannon noted.
A third scientist, another retired defense department analyst, is still working on the case, and former Attorney General Ramsey Clark and other lawyers for a group of plaintiffs recently reinstated to the case are scrambling to retain their own infrared experts, he said.
"It's wholly unreasonable to expect lawyers who are picking a jury and putting on evidence to be writing briefs or coming up with new evidence on this matter, especially when the accuracy of the Vector Data report has not been sworn to by anyone," Mr. Brannon said. "We'll have to do the best we can, but the court seems determined to keep the issue of government gunfire from the public and an unbiased jury.".
"I also have to say that I see the hand of Waco special counsel John Danforth in this, as he selected Vector Data Systems and drew up the plans for their junk science demonstration," Mr. Brannon said. "His so-called investigation has lost any credibility to this lawyer and appears to be a continuation of previous non-investigations of Waco.".
Mr. Bradford dismissed criticisms of the Vector report as baseless.
He noted that Judge Smith's Monday decision to sever the April 19 gunfire issue from the jury trial posed potential problems for the government's trial team. Having what he termed as an inflammatory claim remain a key part of the plaintiff's case would probably hurt the credibility of the plaintiff's lawyers, he said.
"They had lost a lot of credibility by trumpeting this all over the country, and even when it's been disproved, continuing to push it." .
He added that reserving the issue until after the jury trial could hamper the government's ability to argue that government agents did not fire a single shot on April 19 a position that has long been central to the FBI's defense of its actions in Waco.
"We can't until we get that resolved. We are not able to argue that. If it gets resolved in the middle of the trial, we might be able to," he said. "We'd be happy to see it dismissed."
A month after a McLennan County jury failed to determine who owns Mount Carmel, those seeking title to it were back in a Waco court.
Judge Alan Mayfield of the 74th State District Court heard opposing ownership arguments Thursday.
Douglas Mitchell - a follower of the late Lois Roden, from whom the late David Koresh gained control of the Branch Davidians - asked Mayfield to sustain the jury's May 5 verdict that neither Koresh's surviving followers such as Clive Doyle nor the widow of the late Branch Davidian leader George Roden, Amo Roden, are legitimate church trustees.
Amo Roden asked Mayfield to overturn the portion of the jury's verdict that pertained to her.
Attorney Percy Isgitt of Houston, representing Doyle and other followers of Koresh, asked Mayfield to overturn the jury's verdict and designate the plaintiffs in the first trial as church trustees.
None of the parties disputes that Mount Carmel, on which Koresh and 75 followers died seven years ago, belongs to the Branch Davidian church. However, all sides believe themselves to have the strongest ties to the original church.
Mayfield, after listening to all three parties, said he will issue a decision in the next 90 days.
Roden opened the hearing by arguing that she had in effect done the job of a church trustee for the past 12 years.
"It should be pretty clear here that I'm angling for a court appointment as trustee," Roden told Mayfield.
Mitchell argued that the Davidians who had followed Ben and Lois Roden and chose not to follow Koresh were the rightful heirs of Mount Carmel, located on 77 acres about 10 miles outside Waco. The jury by its verdict seemed to recognize there had been a schism in the group, Mitchell said.
He also complained about Koresh's followers calling themselves Branch Davidians.
"The court should issue an injunction barring the plaintiffs from using any names, words or designation of the original church," Mitchell said.
Mitchell said the jury made it clear that the plaintiffs had no right to Mount Carmel.
"The jury was actually saying the documents subsequently filed were not above board or done in good faith," Mitchell said. "They were something done to deceive people, to gain something they had no right to gain." .
Isgitt argued there was definitive evidence proving the plaintiffs had a right to the property.
"We've submitted undisputed evidence that some or all of the plaintiffs have been trustees of the church since 1973," Isgitt said.
Neither Roden nor Mitchell have been trustees of the Davidian church, Isgitt said.
"The defendants have not produced one scintilla of probative evidence to support their claim to be trustees," Isgitt said. "For the simple reason that none exists." .
In rebuttal, Roden argued that Koresh's followers weren't fit to be trustees.. She claimed they seized Mount Carmel, turning it from a community of families into a commune, tearing down the single-family homes and building a rambling structure that featured dormitories for men and women.
"It supported a lifestyle quite different from when the church had single-family housing," Roden said.
WACO, Texas (AP) - Only one example of each type of weapon owned by the Branch Davidians can be introduced during their wrongful-death trial against the government, a federal judge has ruled.
Mike Caddell, the lead attorney representing the Davidians, had argued that allowing the government to introduce a larger number of weapons could inflame jurors.
U.S. District Judge Walter S. Smith Jr. agreed, and this week moved to limit the weapons recovered in the fiery 1993 Branch Davidian siege that can be brought into court.
He said the government may offer photographs of all the weapons.
Trial is scheduled to start Monday.
U.S. Attorney Michael Bradford, who is helping represent the government, argued during a June 12 pretrial hearing that jurors needed to see all the weapons to understand why the FBI was reluctant to bring in firefighting equipment.
A fire engulfed the Davidian's compound on April 19, 1993. Leader David Koresh and some 80 of his followers died - some from the blaze, others from gunshot wounds. Flames broke out six hours into a tear-gassing operation designed to flush members out.
Smith stated in Wednesday's order that he doesn't expect the issue of damages, if necessary, to be tried immediately after the close of the lawsuit's liability phase.
Waco, FBI and the Branch Davidians: Updates
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