Waco attorney Cheryl Reyna was keenly aware when government attorneys set up shop in the St. Charles office building a few weeks ago. But she really started paying attention when a big yellow Ryder rental truck pulled up in front of the building Monday morning.
Reyna and other attorneys in her first-floor law office have watched in amazement, and sometimes amusement, as government agents, attorneys and prospective witnesses have scurried in and out of the office building in recent weeks in preparation for the Branch Davidian wrongful-death civil trial.
The government has rented an office on the second floor of the downtown building for use during the trial, which could last a month or more.
"There are all kinds of little guys here with earplugs talking to their wristwatches," Reyna said. "We have said that we are not going to panic just because these people jump out of their cars and look over their shoulders. But we said that when we see a yellow Ryder truck in the parking lot, we are going to get the hell out of here, and today there was one.
"There's some irony in the government renting a yellow Ryder truck, but they were moving all of the documents that they have had here over to the courthouse."
The truck was similar to one used by Timothy McVeigh in the Oklahoma City bombing on the second anniversary of the April 19, 1993, fire in which David Koresh and 75 of his followers died at Mount Carmel near Waco, she said.
The truck caught the attention of quite a few people who were on their way to lunch downtown, especially since it was surrounded by a group of uniformed police officers, including some from the Federal Protective Service.
Otherwise, despite the arrest of a man for impersonating a police officer at the federal building around noon, the presence of six or seven televison satellite trucks and a worse-than-normal downtown parking problem, the start of the Branch Davidian lawsuit against the government kicked off rather routinely.
Waco police arrested and handcuffed a man after he presented a badge while trying to enter the federal building. The man, who would not identify himself or cooperate with authorities, remained jailed Monday night.
While some businesses downtown might have put on some additional security for the trial, Margaret Mills, executive director of Downtown Waco Inc., said the trial, the accompanying media circus and others who might flock to Waco pose no extraordinary problems for the city.
"I think that we are certainly sensitive in the downtown area to the need for special attention to the trial and to those attending the trial, but we have not had any serious concerns expressed to us by any of the downtown business owners," Mills said. "I know that the Waco Police Department has been working on it diligently and we have been anticipating this for some time. But frankly, this has been a quieter day than usual."
Capt. Gerald Rangel of the Federal Protective Service hopes it stays that way. Rangel and six of his officers are in Waco to assist the U.S. Marshal's Service and local agencies with security around the courthouse.
The Federal Protective Service is the law enforcement division of the General Services Administration, which basically serves as landlord over government buildings.
"Anytime we support any high-profile trial, such as today, it is basically at the request of the U.S. Marshal's Service," Rangel said. "When they feel they need additional support, our role is to support the Marshal's Service, but also to maintain the integrity of the facility. We are basically here as the perimeter force."
Federal Protective Service officers were on hand at the Timothy McVeigh trial in Denver, at the World Trade Center bombing trial in New York and at the Branch Davidian and Mexican Mafia criminal trials in San Antonio in 1994, Rangel said.
Both sides won pretrial victories Monday, and U.S. District Judge Walter S. Smith Jr. of Waco made quick work of picking an advisory jury for the wrongful-death lawsuit filed by surviving Branch Davidians against the government.
Opening statements in the case are set for 9 a.m. today .
The jury, chosen in less than two hours, is made up of four women and three men. At least two jurors are from Waco and all live in the 13-county Western District of Texas. Their jobs range from a physical education teacher at an elementary school to an aircraft electrician. Their job now is to issue a nonbinding verdict that Smith will weigh in reaching his own decision on whether the government helped cause the death of 81 Branch Davidians in 1993..
Smith chose the jury from a pool of 60 candidates. During questioning, he asked if anyone had ever lost a child and if any of them had ever been in a dispute with the government.
Members of the plaintiffs' legal team literally gave each other a thumbs-up after the jury was announced.
"I think the jury will be fair," said Houston attorney Mike Caddell, lead plaintiffs attorney. "The voir dire was fair. The judge conducted things in an appropriate manner."
Former U.S. attorney general Ramsey Clark and Houston attorney James Brannon are also representing plaintiffs.
Smith through word and deed got his point across to attorneys.
"The judge has made it clear that he wants . . . (the trial) to go quickly,'' said U.S. Attorney Michael Bradford, co-counsel for the government.
Both the government and the plaintiffs squared off early Monday over the admittance of key evidence in the case.
The government kept the autopsy photographs of Davidians from being admitted into evidence and limited the discussion of Ruby Ridge, the shootout in Idaho involving many of the same FBI personnel at Mount Carmel that resulted in the deaths of three people, including the wife and son of Randy Weaver. Discussion of Ruby Ridge will be restricted to its influence in the decision by some Davidians not to leave Mount Carmel.
Bradford, however, said he will ask Smith today to bar mention of Ruby Ridge entirely.
"We're going to revisit it," Bradford said. "It's irrelevant to this case. What is at issue is what happened here, not what happened at Ruby Ridge."
Caddell, who was assisted by his wife, attorney Cynthia Chapman, won permission to admit preliminary drafts of the FBI's plan to force the Davidians out of Mount Carmel. A tear-gas assault on April 19, 1993, ended in a fire of disputed origin that led to the deaths of David Koresh and 75 followers.
Government attorneys argued the FBI's plans should be excluded under the discretionary function exception, which protects government officials from being sued for their elective decisions.
However, Caddell successfully argued that using tanks to tear down Mount Carmel if the Davidians had initially refused to leave had been discarded by the time the FBI's final plan was written. The final plan called for dismantling the building only if the Davidians had not surrendered after 48 hours.
"That was big," Caddell said later. "If you look at these previous plans, they show a steady progression toward less and less aggression. The (final) plan to insert tear gas only authorized the penetration of the building by the booms on the tanks. For anyone to say they had the authority to drive tanks into the building, I think the jury is going to decide pretty quickly that wasn't in the plan."
The civil trial will deal with four issues: whether agents with the Bureau of Alcohol, Tobacco and Firearms used excessive force in the Feb. 28, 1993, raid on Mount Carmel; whether using tanks to drive through the compound deviated from the plan approved by U.S. Attorney General Janet Reno; whether FBI agents helped cause the fires; and whether the government was negligent by withholding firefighting equipment.
Smith last week removed what could have been the most contentious issue of the lawsuit whether government agents shot at Davidians during the final hours of the siege. He said the issue would not be addressed because a court-appointed expert was unable to attend the trial due to illness. The issue will be decided later, probably by summary judgment.
One final pretrial matter will likely be settled today before the opening statements. The plaintiffs want to admit videotaped testimony from FBI negotiators at Mount Carmel as well as a March 7, 1993, memorandum from negotiator Peter Smerick to Jeffrey Jamar, the lead FBI agent.
"He (Smerick) stated, If we physically attack the compound and children are killed, even if they are killed by Branch Davidians, we in the FBI will be placed in a difficult position," Caddell told Smith. ". . . It goes directly to the issue of was this a foreseeable outcome of the decisions made by Mr. Jamar and Mr. Rogers."
Richard Rogers headed the FBI's Hostage Rescue Team at Mount Carmel.
Government co-counsel Marie Hagen accused the plaintiffs of "trying to get in through the back door what they can't get in through the front door."
"Second-guessing shouldn't be brought into this case on whether the tactical guys took a different approach," Hagen said.
WACO - A jury of four women and three men will begin hearing the Branch Davidian wrongful-death case Tuesday, a day after fierce clashes over the admissibility of key evidence detailing the actions of FBI commanders and sect members during the 1993 siege.
The jury was chosen during the opening day of the trial Monday, and their identities were kept anonymous.
Lead plaintiffs' lawyer Michael Caddell of Houston complained Monday that government lawyers had repeatedly ignored court discovery deadlines, ambushing lawyers for the plaintiffs as recently as last weekend with previously undisclosed documents and government witnesses that should have been turned over months ago.
Judge Walter S. Smith said, "The government has been extremely less than diligent."
But he refused Mr. Caddell's bid to keep out detailed transcripts of Branch Davidian conversations intercepted by FBI listening devices during the siege.
The transcripts could prove damaging to the sect's arguments that government agents used excessive force in their initial 1993 raid on the Branch Davidians' rural compound and acted improperly in their efforts to end an ensuing 51-day standoff.
Four ATF agents died in a gunbattle that broke out as they tried to search the compound for illegal weapons and arrest Branch Davidian leader David Koresh on Feb. 28, 1993. The siege ended when a fire broke out as FBI agents rammed the compound with tanks and sprayed in tear gas. Mr. Koresh and more than 80 Branch Davidians died.
Government officials have maintained that they did all they could to resolve the standoff peacefully and that Mr. Koresh and his followers were responsible for its tragic outcome.
But lawyers for surviving Branch Davidians and relatives of those who died have alleged that FBI commanders were negligent in deciding not to try to fight any fire that might break out that day or have adequate fire equipment available.
They also have charged that the FBI's leaders in Waco violated a Washington-approved gas plan when they sent tanks deep into the rear of the building and knew such an action would provoke a violent response.
The transcripts, prepared by a government expert, suggest that sect members laughed about shooting federal agents and seeing one get his head blown off.
They also suggest that sect members tried to talk an intruder out of leaving by telling him no one left without approval from sect leader David Koresh and also joked two days before the compound burned that firetrucks couldn't get near any fire on their property.
In one of the March 15 transcripts, a voice that appeared to be Mr. Koresh's said jokingly, "A guy came around the corner going - then I looked around the corner and saw the guy over there, you know, and, uh, in the corner all slumped, and he was, all his head down like this, and then his head blew up.
"He shouldn't have been standin' in my door. ... Tryin' to come in. ... But I - I didn't, you know. ... What am I goin' do? Let 'em come in?"
In a morning of last-minute skirmishes over the amount and scope of evidence to be allowed in the case, the judge also ruled that the plaintiffs may introduce internal FBI documents that could prove damaging to the government's defense.
A 'smoking gun'? Those included a proposal bearing initials of the FBI's two Waco commanders that recommended medals for hostage rescue team members who had helped dismantle the sect's rural compound April 19, 1993.
Mr. Caddell called that document "a smoking gun" that could determine the outcome of the case.
He and other lawyers for the plaintiffs have contended that the decision by FBI commanders Richard Rogers and Jeffrey Jamar to send tanks into the building six hours after the FBI launched its tear-gas operation violated the plan approved by Attorney General Janet Reno. That plan said the compound would be gassed for 48 hours before tanks would begin dismantling it.
Lawyers for the government repeatedly told Judge Smith that broad federal protections from lawsuits against government agencies and employees prohibited the court from admitting the medals document - and even the FBI's drafts of its operations plan for the gas assault.
The federal tort claims act includes a blanket protection - the discretionary-function exemption - that prohibits private legal challenges to most decisions and policies of federal employees and agencies.
Citing that exemption, Judge Smith has thrown out parts of the plaintiffs' case revolving around the government's decision to gas the compound, its decision to use tanks to spray gas in and efforts to negotiate a surrender before the April 19 assault.
Government lawyers used that argument Monday to try to block the introduction of internal documents, memos and interview notes detailing FBI negotiators' fears that Mr. Rogers and Mr. Jamar sent tanks in prematurely April 19 because they were frustrated and angry.
Mr. Caddell "claims that he's not offering this evidence to challenge the FBI's conduct. ... But that's precisely why he's offering it," said Marie Louise Hagen, a Justice Department lawyer who is one of the government's lead defenders. "He's offering evidence that is very prejudicial."
In one of the negotiation documents, an FBI behavioral expert warned Mr. Jamar a week after the siege began that attacking the building with tanks would lead to the deaths of children and intense criticism of the FBI. In another, one of the lead FBI negotiators at Waco - an agent who now heads the bureau's crisis-management unit - said after the siege that any negotiator could have predicted the deadly outcome of sending tanks into the compound.
But Mr. Caddell countered that the documents would help a jury understand the mindsets of Branch Davidians on April 19 and why they did not trust the FBI.
He added that the documents would show the motivation of the two Waco FBI commanders as well as the warning given Mr. Jamar of the tragedy that might result from sending in tanks.
"The FBI has said for seven years, 'Nothing we could've done would've made a difference,'" Mr. Caddell said. "That's not true. Their own people say we would have ... gotten more people out." Judge Smith delayed a ruling on the matter but is expected to decide before the start of opening arguments.
He noted at the end of the day that he had surprised even himself in picking a jury by mid-afternoon.
Relatives in attendance
More than a dozen surviving sect members and relatives of the dead came to the federal courthouse at the edge of downtown Waco on Monday for the proceedings.
Sherry Burgo was among several Branch Davidian family members who attended. Her father, Floyd Houtman, died in the fire that ended the standoff.
"It disturbs me that they were treated this way," Ms. Burgo said outside the federal courthouse. "For me, it isn't about money. ... It's to clear my father's name."
A jury was picked from a pool of 60 people from 13 counties.
The panel includes two Waco men, a property manager and an elementary physical-education teacher. Others include a Copperas Cove payroll accountant who works at Fort Hood, a Limestone County victims' assistance program employee and a Hewitt homemaker.
A sixth juror, from Bell County, is a management assistant whose husband is a retired Army sergeant. The seventh is an aircraft electrician from Bell County.
Two of the seven are black.
Potential jurors were asked whether any of them had a child who had died or whether they had been involved in a dispute with the government. None had.
Some jurors were excused early for conflicts such as planned vacations and work commitments. A few people raised their hands when asked whether they had heard about the case. The judge told potential jurors that "this situation has been highly, highly publicized."
The trial, Judge Smith told them, is expected to last four to five weeks.
Here are excerpts from eight disputed transcripts prepared by a government expert from recorded transmissions of FBI bugs in the Branch Davidian compound.
Judge Walter Smith on Monday turned aside plaintiffs' arguments that the transcripts should be declared inadmissible because they were turned over by the government months after the court's discovery deadlines.
Lead plaintiffs' counsel Michael Caddell argued that his side had not had time to examine them for accuracy and feared they might prejudice jurors.
WACO, Texas (AP) - Seven years ago, during the long government standoff with the Branch Davidians, an FBI criminal profiler warned the on-scene commander about using force to end the siege.
If the FBI took ``physical action'' to end the confrontation and children died, Peter Smerick said in his March 7, 1993 memorandum to Jeffery Jamar, agents would be blamed even if they were not responsible.
Jamar ordered the use of tanks to fire tear gas into the compound on April 19, 1993, to force out the Branch Davidians. A fire broke out six hours into the operation, destroying the compound and killing about 80 people.
Now, with the wrongful death lawsuit filed by surviving Branch Davidian members set to begin, lawyers for the plaintiffs are hoping to use the information against the government.
``That's the best evidence we have from the government, period,'' plaintiffs' lawyer Jim Brannon said on the eve of Tuesday's opening statements.
The $675 million lawsuit consolidates nine civil cases filed in 1994 after the federal raid and deadly fire that burned through the compound near Waco. The trial is expected to last about a month.
Government lawyers say the memo falls under the ``discretionary function'' privilege, which shields the federal government - even if its agents' actions proved negligent - from liability in its decisions. The law is designed to give federal officials the ability to act without the fear of being sued.
U.S. District Judge Walter Smith was expected Tuesday to decide whether documents from FBI negotiators who were at the compound will be allowed before the seven-member jury, which includes one alternate.
Plaintiffs' attorneys were expected to argue the Bureau of Alcohol, Tobacco and Firearms agents used excessive force in the initial raid on the compound that started the standoff on Feb. 28, 1993; that the government may have caused at least two of the fires that destroyed the compound 51 days later; that it improperly withheld firefighting assistance; and whether using tanks to push into the compound deviated from a plan approved by Attorney General Janet Reno.
The initial raid set off a gunfight in which four agents and six Davidians were killed. After the April 19 fire, sect leader David Koresh and some 80 of his followers were found dead, some from the blaze, others from gunshot wounds.
Testimony in the case will focus on whether government agents used excessive force during the botched ATF raid that turned into a bloody gunfight, said Michael Caddell, lead counsel for the plaintiffs.
``Those four guys were victims of the same bad tactics, bad management and bad decision-making that ultimately resulted in the deaths of so many Davidians,'' said Caddell said of the four agents killed.
Plaintiffs' attorneys say agents fired indiscriminately at the compound even though women and children were inside.
U.S. Attorney Michael Bradford, lead counsel for the government, said the agents were ambushed by the sect and were firing back in defense of their lives. In 1994, five Davidians were convicted of voluntary manslaughter in the agents' deaths.
Smith last week removed what could have been the most contentious issue of the lawsuit - whether government agents shot at Davidians during the final hours of the siege.
He said the issue would not be addressed during the trial because a court-appointed expert was unable to attend due to illness.
Waco, FBI and the Branch Davidians: Updates
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