WACO A federal judge on Thursday refused to dismiss wrongful-death claims by Branch Davidian survivors and family members.
Government attorneys argued that the plaintiffs, who wrapped up their case against the government at midmorning, had failed to prove their claims.
U.S. District Judge Walter Smith denied the motion without comment and instructed the government to begin its defense.
The plaintiffs are seeking $675 million for the deaths of more than 80 people on two days in 1993: the day the government raided the sect's compound and the final day of the group's standoff with the government, when the compound burned.
The plaintiffs say federal agents fired indiscriminately during the raid, violated a preapproved plan when tanks punched holes in the building to spray tear gas to try to end the standoff, contributed to or caused at least one of the three fires that engulfed the compound, and failed to have firefighting equipment at the scene.
The government has estimated it will take less than two weeks to present its defense.
U.S. Attorney Michael Bradford had argued that the evidence presented since the trial started June 19 has not shown the government shares responsibility for the deaths.
He said the plaintiffs failed to prove that Bureau of Alcohol, Tobacco and Firearms agents provoked the gunbattle on Feb. 28, 1993, that killed five Davidians. That was the start of the standoff that ended with the fire April 19 of that year.
He also argued the plaintiffs did not prove the government contributed to or caused the fires. The plaintiffs' fire expert, Patrick Kennedy, testified that the cause of the blaze is undetermined. Bradford also noted that one Davidian testified he saw another sect member pouring fuel and that the plaintiffs' lawyer conceded that Davidians likely set one of the fires.
Bradford also contended that testimony disproved claims that FBI agents deviated from a tear-gassing plan approved by Attorney General Janet Reno by prematurely beginning the demolition of the building and failing to have firefighting equipment on the scene.
A five-member jury will act only as an advisory panel to Smith, who will deliver the verdict. Separately, Smith will consider whether federal agents shot at Davidians during the fires.
WACO Branch Davidian Clive Doyle acknowledged Wednesday that sect members considered David Koresh as God incarnate, but he denied repeatedly that they fired the first shots in a deadly standoff with the government or torched their compound to end it.
He wept as he told jurors in the sect's wrongful-death trial about how his daughter, Shari, died in the compound fire. But he acknowledged never trying to find the 18-year-old or even seeing her on the day that the FBI launched a tear gas assault and the building burned.
Government lawyer Jim Touhey ridiculed Mr. Doyle in the most intense cross-examination of the eight-day trial, noting that he had taken great pains to rescue his mongrel dog before leaping through a hole in the burning building.
"And you didn't go look for your daughter, who died in the fire?" he demanded.
"No, I didn't," Mr. Doyle responded.
Ms. Doyle was among more than 80 sect members who died in the blaze. Lawyers for surviving Davidians and the families of those who died have alleged that FBI tanks started or contributed to the fire and that FBI commanders were negligent in failing to have firefighting equipment available before launching a tank and tear gasassault.
But the governmentcontends that the sect alone caused the tragedy, charging that Mr. Doyle and others inside the building spread fuel and then set it ablaze on April 19, 1993.
Neither Mr. Doyle nor any of the nine other fire survivors were ever charged with arson. Mr. Doyle was acquitted after a 1994 trial in which he was accused of conspiring to murder federal agents in the gunbattle that started the standoff.
During his often combative cross-examination, Mr. Touhey displayed a shredded, blackened nylon jacket taken from Mr. Doyle after his escape. The government lawyer then asked if he could explain why its sleeves contained traces of flammable liquids.
Mr. Doyle said the flammable substance could've been spattered on his clothing as he refilled white-gas and oil lanterns used to light the building during the 51-day siege. He testified earlier Wednesday that 30 to 40 lanterns were distributed throughout the building for light after FBI agents cut off the compound's electricity, and that fuel for the lamps was kept in the chapel area where he slept and lived during the siege.
The government's case is expected to include testimony from an Arlington chemist whose testing determined that the jacket's sleeves contained traces of charcoal lighter fluid. Lawyers for the sect have said that claim may be questionable because more than a dozen other substances are known to mimic the chemical fingerprint of charcoal fluid.
Mr. Touhey then demanded that Mr. Doyle explain how he sustained third-degree burns that covered his hands up to his jacket sleeves when none of the other seven men who escaped the blaze suffered similar burns.
"In the fire. Maybe you should try it sometime," Mr. Doyle responded. "It was the only part that was exposed. ... If you were in that kind of fire, perhaps you'd understand."
One of the women who escaped, Misty Ferguson, lost all of her fingersin the blaze, and one of the men suffered a burned arm. Ms. Ferguson, 24, testified Tuesday that her hands were burned as she struggled to escape an upstairs hallway that had been bashed in by repeated tank intrusions before the fire.
Mr. Doyle insisted that he knew of "no plan" for setting a fire, and that he never saw anyone doing anything to start one. He said he and others went immediately to escape after "being told" that the building was in flames. He added he was burned when he was driven to the floor by the fire's intense heat.
"There was no doctrine of suicide that's been held in this church since I've been a member or even before that," said Mr. Doyle, 59. "There was no plan to commit suicide. We had an agreement coming out as soon as certain things took place. We were hanging on that. ... There was an elation, I would say, that this is finally going to be over and resolved peacefully."
Sect members have said Mr. Koresh negotiated an agreement to leave the compound after he finished writing a treatise on the Seven Seals, part of the apocalyptic prophecy of the Bible's book of Revelations. FBI officials have said they believed that was another of a long string of lies.
The Davidians' religious beliefs were a major focus of Mr. Doyle's testimony and a repeated flashpoint between lawyers on both sides.
Mr. Touhey pressed Mr. Doyle hard on his belief that Mr. Koresh not only spoke for God but was a physical manifestation of divinity who could claim sole rights to sex with all women in the group even married women. At one point, Mr. Doyle acknowledged that his faith was so complete that he considered Mr. Koresh to be speaking for God, and that anything God asked him to do would not be a sin.
He said Mr. Koresh's "marriages" to many of the women in the sect were done "for spiritual reasons," but never asked his daughter whether she had "married" the 33-year-old sect leader.
"You thought a teenager having sex with David Koresh was something spiritual?" Mr. Touhey said, prompting a retort from Mr. Doyle that "millions of Catholic women" become nuns and consider themselves "Brides of Christ." "We gave ourselves totally to God," Mr. Doyle added.
In a pointed rebuke to the government, plaintiff's lawyer Michael Caddell later noted that the sect's sexual and marital practices "probably seem strange to most people in this courtroom," adding: "Does that mean your daughter deserved to die? ... Does that mean she didn't have any value?"
Mr. Doyle broke down as the Houston lawyer continued, "Does ever a day go by when you don't think about your daughter making it out?" Mr. Doyle finally sobbed, "I live with this every day."
Mr. Touhey tried to suggest that the shootout that began the standoff was the culmination of Mr. Koresh's prophecies that the world would end in a violent conflict at the sect's Waco compound.
But Mr. Doyle said that Mr. Koresh's teachings focused on an apocalyptic battle in Israel. He said that the guns found inside the compound after the fire weren't stockpiled for battle but were collected for an ongoing gun-show business.
"We believed that if we were persecuted, if the authorities came against us, it might be an armed confrontation. It was not something that we hoped or prophesied," he said.
When a shootout began as agents from the federal Bureau of Alcohol, Tobacco and Firearms arrived on the sect's property to search for illegal weapons, Mr. Doyle said, he believed the raiding party triggered the gunbattle. He said he heard the first shots come from outside on Feb. 28, 1993, after Mr. Koresh sent followers to their rooms and went to the front door to yell: "Hey wait. There are women and children in here!"
Mr. Doyle noted that several agents testified in his 1994 criminal trial that they initially believed the first gunfire came from agents assigned to kill the compound's dogs.
"If they're outside shooting at our dogs, it's the same thing as shooting at us," he said. "It's the beginning of a war. If that's what triggers it, who's to blame?"
Four ATF agents and six sect members died in the shootout. Lawyers for the sect have alleged in the wrongful death lawsuit that the government agents fired indiscriminately and used excessive force. Government lawyers have said the agents responded properly to an ambush.
Mr. Doyle's testimony was marked by often tediously detailed questioning by Mr. Clark, and repeated flashes of impatience from U.S. District Judge Walter S. Smith.
After government lawyers objected to Mr. Clark's questions about the sect's efforts to rebuild a church at the site of its burned building, the judge demanded, "What's the relevance?" When Mr. Clark said his questions were designed to show "that the faith goes on," the judge again demanded, "what's the relevance of that?"
"I think it's important to establish that you can't crush religion," Mr. Clark said.
"That's not the purpose of this trial," the judge said.
WACO, Texas - A Branch Davidian survivor broke down crying on the witness stand Wednesday when questioned about a fire that he managed to escape while his daughter died.
"I live with this everyday," said a tearful Clive Doyle after explaining how he and eight others escaped the flames that destroyed the sect's complex while his daughter, Shari Doyle, died.
Jim Touhey, a lawyer for the government, asked Doyle how he managed to get out, saving his dog in the process. Earlier, Doyle had testified that he threw his dog out of a hole in the wall of the burning building.
"Your daughter's there and you don't go to check on her?" Touhey asked.
"I didn't know where my daughter was," Doyle replied.
A devoted follower
Doyle is one of the survivors who have filed a multimillion-dollar wrongful death suit against the government, claiming that agents' actions caused deaths and injuries during the 1993 siege. He testified Wednesday in the trial of the suit after being called as a witness by his lawyer, Ramsey Clark, who is representing some of the Davidian survivors.
Doyle described the conditions within the complex during the siege and outlined the sect's religious beliefs. He said he believed the sect's leader, David Koresh, to be the embodiment of God.
"We believed that God was speaking through him, yes," said Doyle, who was 52 at the time of the government's siege near Waco.
Doyle said that Koresh took as his "wife" many of the women of the complex. He acknowledged that he had heard his daughter was one of them but that he never knew for sure.
"It was not discussed," Doyle said. "My position was, if she made a choice for spiritual reasons to enter into a relationship, it was her decision." Shari Doyle was 18 at the time of the siege.
The government's questions attempted to point blame for the fire at Doyle, whose hands had been badly burned. Doyle had testified that he had moved some cans of fuel to the stairs.
"Isn't it a fact that you poured them on the stairs?" Touhey asked.
"No, I did not," Doyle answered.
Doyle denied starting the fire. He said that flammable liquids later discovered on the sleeves of his jacket may have come from lanterns that he had filled for other residents after the FBI cut off the electricity.
Doyle was never charged with arson, but he was among 11 defendants accused of conspiring to murder federal agents during the initial raid on the complex by agents of the Bureau of Alcohol, Tobacco and Firearms. Six Davidians and four agents were killed in a gunfight during the raid. Doyle was acquitted.
Prepared for armed conflict
He said the first shots he heard during the raid came from outside the buildings, where the federal agents were. He speculated that that may have been the agents killing the Davidians' dogs. Federal agents shot the dogs on the way to the front door of the complex, according to testimony in the criminal trial in 1994.
"Shooting of the dogs is the beginning of a war," Doyle said. "If that's what triggers it, who's to blame?"
"We believed if the authorities came against us, it may be an armed conflict," he said.
The initial gun battle led to a 51-day siege during which the FBI tried to force out Davidians. On April 19, 1993, tanks and FBI agents poured tear gas into the complex, and a fire began.
About 80 Davidians died. Doyle said the group would have come out in about two weeks, after Koresh had completed his interpretation of the Seven Seals of the Bible.
As flames destroyed Mount Carmel, Branch Davidian Clive Doyle testified that he dove through a hole created by government tanks to escape the heat that seared his hands and said he wondered if anyone else made it out of the inferno alive.
Doyle, a plaintiff in the $675 million wrongful death lawsuit against the government, spent about five hours on the witness stand Wednesday describing life inside David Koresh's compound during the 51-day siege with the government and the chaotic, fiery end on April 19, 1993.
Doyle told the five-member advisory jury that "the skin was rolling off my hands" as he jumped from the building through a hole in the wall of the chapel.
"I looked back over my shoulder and saw a massive wall of flames and I thought I was the only one who got out," Doyle said, his voice cracking with emotion.
Eight others escaped the fire, but Doyle once again choked back tears as his attorney, former U.S. attorney general Ramsey Clark, asked about his 18-year-old daughter, Shari, who did not.
Government attorney James Touhey, however, implied during cross-examination that Doyle cared more about himself and his small dog than he did about his daughter or anyone else in the structure. He also accused Doyle of helping start the fire by pouring flammable liquid on some stairs, charging that is why his hands were so badly burned and why there were traces of a fire accelerant on the sleeves of the blue nylon jacket he was wearing that day.
Doyle denied pouring the liquid or starting the fire in which Koresh and 75 followers died.
"Sir, isn't it a fact that you poured that liquid on the stairs?" Touhey said.
Doyle said no.
"Your hands. How did your hands get burned in the fire?" Touhey asked.
"Maybe you should try it sometime," Doyle said dryly.
Clark asked Doyle if he saw Misty Ferguson's hands during her trial testimony Tuesday. Ferguson, who also escaped the fire, lost fingers on both hands because of her burns.
Doyle told the jury that he spent most of the 51-day siege in the chapel area of the compound. His daughter and three others stayed there with him until Koresh gave an edict that the women and children were to remain in their rooms upstairs, Doyle said.
He said living conditions inside what Clark referred to as the "church center" became increasingly difficult as the standoff with government agents dragged on.
"It was pretty rough," he said. "We were not able to get to the toilet facilities, which were outside at the time. At one point, the electricity was cut off."
That caused much of the food supply in the freezers to ruin, Doyle said, adding that water supplies also got low, causing Davidians to ration water and resort to catching rainwater in pots to replenish the supply.
Doyle, who said he lost 30 pounds during the standoff and slept very little, testified that he dug a grave in an underground shelter in which they buried four of the five sect members who were killed on the morning of the Feb. 28, 1993, raid on Mount Carmel by agents from the Bureau of Alcohol, Tobacco and Firearms.
Four ATF agents were killed during the gun battle that ensued when agents attempted to arrest Koresh on weapons violations.
Davidians felt a sense of "elation" and thought "this was all going to be resolved peacefully" after FBI negotiators got an agreement from Koresh that he and his followers would surrender after Koresh finished writing his interpretations of the Seven Seals from the Book of Revelation, Doyle said.
That, by Doyle's estimation at the time of Koresh's pledge, would have taken another two weeks.
On the day before the raid, Doyle said he felt so bad that he slept on the bed in his room for the first time during the siege. About 4 a.m. on April 19th, Doyle said went to the chapel to read his Bible because he couldn't sleep. A couple of hours later, he said, he heard a loud speaker blaring that the siege was over and that the FBI would be pumping gas into the compound.
Doyle said he retrieved a gas mask that had been by his sleeping bag on the floor of the chapel and put it on. Each time a tank equipped with a boom crashed into the building and sprayed the misty tear gas that Doyle said had the consistency of talcum powder, the Davidians would rush into another area, he said.
He said he assumed that the women and children were upstairs. Most of them didn't have gas masks, Doyle said, adding that Jennifer Andrade rushed downstairs during the tear-gas assault and asked if more gas masks were available.
Doyle said men were crying because of the tear gas, which he said felt like "battery acid" on the skin.
Later in the morning, Doyle said he heard someone yell that the compound was on fire.
"I was looking out a hole in the chapel and smoke came down the south wall and got sucked into the hole and everything turned black," Doyle said. "Within a few seconds, I felt heat over the top of my head and it was very oppressive. There was no conscious thought to get down on the floor. The heat just pushed you down and I was on the floor rolling around and it felt like I was burning."
Doyle said he was holding a small dog that he cared for during the standoff and pitched it out through the hole and onto the ground. The dog found its way back inside and Doyle said he threw it out two more times before he jumped out himself.
"The dog was there with you," Touhey said on cross-examination. "You threw him out three times. You didn't go look for your daughter, though, did you?"
Doyle said no, explaining that he had been sick.
"But you were well enough to go get water for yourself and put on extra clothes," Touhey countered.
Doyle told Clark that the Davidians had no plan to commit suicide, saying that church doctrine made them "dead-set against" killing themselves.
"There was no plan to commit suicide," Doyle said. "We had an agreement to come out as soon as certain things took place. We had an agreement. We were hanging on that."
Touhey asked Doyle to explain how the flammable liquid got on the sleeves of his coat. Doyle said he didn't know, but theorized that he could have spilled lantern fluid when he was refilling lamps or said the dog might have tracked it back inside after walking through gasoline and diesel from gas tanks and barrels knocked over by the tanks.
Doyle, who was acquitted of all criminal charges after a 1994 trial in San Antonio, defended the sect's beliefs, including that God spoke through Koresh. He said that Koresh's sexual relationships with teen-age girls in the group were "spiritual relationships" that the girls entered into freely.
Touhey asked Doyle about reports that his daughter had become one of Koresh's "wives." Doyle said he never talked to her or Koresh about it.
After Touhey's rigorous cross-examination, lead plaintiffs attorney Mike Caddell asked Doyle if there ever is a day that goes by that he doesn't think about his daughter.
Doyle became emotional again, paused and said, "I live with this every day."
Before the lunch break Wednesday, U.S. District Judge Walter S. Smith Jr. again became impatient with the pace of the trial, saying at one point, "You are taking way too much time, Mr. Clark."
As Clark asked Doyle about recent efforts to rebuild a chapel at Mount Carmel, Touhey objected. The judge asked Clark to explain the relevance of the question.
"It shows that faith goes on, your honor," Clark said.
"What's relevant about that?" the judge asked.
"It shows you can't crush religion," Clark said.
"That's not what this trial is about. Sustain the objection," Smith said.
Waco, FBI and the Branch Davidians: Updates
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