WACO -- Cathy Bradshaw drove her children down Franklin Street last week and pointed to the two satellite broadcast trucks camped in the torturous heat on a parking lot across the street from the federal courts building.
"Take a good look," she told them. "This is history in the making."
However, Bradshaw, who runs a printing and stationery shop just down the street, admitted that she has not been glued to the civil trial unfolding on the third floor of the federal building.
"I haven't really been following it," she said. "I mean, I haven't been reading every newspaper article."
For the most part, all of Waco seems weary of the saga of the U.S. government's assault on the religious encampment known as Mount Carmel seven years ago. More than 80 members, including 25 children, died in the government's botched attempt to serve an arrest warrant on David Koresh, leader of a sect known as the Branch Davidians.
After years of investigations, congressional inquiries, charges, counter charges and criminal trials, the fallout has been minimal. Seven Davidians were convicted in the deaths of four ATF agents; no government official found culpable of anything.
Now, the long awaited chance for the Branch Davidians who survived the ordeal, and some who didn't, to get their day in court is being greeted in Waco with an audible yawn.
"Both sides were at fault," said Debra Massey, a clerk at the TETCO gas station and convenience store on Interstate Highway 35 a mile from the courthouse. "A lot of people are tired of hearing about it. They'll be glad when it's over."
The global interest that Waco anticipated also failed to materialize. The city designated a vacant lot behind the courthouse for the media that never arrived. A B&S Port-O-Jons trailer is the only occupant.
Across a driveway, another field was reserved for "Vendors," the T-shirt and trinket hawkers who squatted on a road near Mount Carmel during the 51-day standoff in early 1993. Not a single vendor showed this time.
When the trial opened two weeks ago, there was a platoon, rather than an army, of reporters, photographers and broadcast technicians, which the parking lot across the street from the courthouse easily accommodated -- at inflated prices.
The morning that jury selection began, the owner taped over his signs that offered "One Dollar A Day Parking." The price was raised to $5.
"We thought that with all this media, we might as well," an attendant said.
By the end of the week, most of the satellite trucks had moved on, to Huntsville for the Gary Graham execution or other stories offering more sizzle. By the second week, even the attendant had abandoned his post and few bothered to pay to park there.
The scene was similar inside the federal building.
Initially, the entrance and X-ray machine were guarded by a half-dozen U.S. marshals and local police. Wrought-iron barricades were placed strategically for crowd control. Additional U.S. marshals were brought in from as far away as Denver to help courtroom security.
Spectators and reporters were given strict ground rules. No talking. No gesturing. No passing notes. No reading newspapers. No chewing gum.
If anyone came expecting to hear shocking new evidence to prove that the government agents wrongfully caused the death of more than 800 Davidians, they were disappointed.
Instead, the Davidians' lawyers built their case with tedious and droning layers of written statements, affidavits and video depositions intended to focus the light that had already been shed on the episode.
By the third day, one reporter noted in his story that a government attorney, Marie Hagan, was dozing at the counsel table and the judge feigned elation at finally hearing "a live witness."
The second week of the trial began without the barricades. The parking lot was nearly empty. Two weary-looking marshals manned the entrance. The courtroom was less than half full and the rules seemed to have been relaxed. Some spectators actually whispered to each other with impunity.
Although Judge Walter Smith excluded much evidence from the trial (a defense expert in tear gas, for example, was not allowed to testify) lead attorney Michael Caddell, of Houston, managed to get the key points of his case before the jury:
·That ATF agents violated instructions and fired "indiscriminately" during the initial raid on the compound. He read to the jury statements from 25 of them, each acknowledging that they fired through windows and walls without knowing who or what they were firing at.
·The jury heard testimony from Dick DeGuerin, a Houston lawyer initially hired to represent the Davidians and to try to get them to surrender. DeGuerin told the jury that the bullet holes in the front door, where the first shots were fired, came from the outside, indicating that the ATF started the shooting.
·The jury also heard the 911 call from the compound that Sunday morning and on it Wayne Martin is heard telling the dispatcher, "There are men, 75 men around our building shooting at us. Tell them to call it off. There are children and women in here."
·Over the objections of government attorneys, Caddell was allowed to give the jury copies of the FBI plans to end the standoff. The plans called for inserting tear gas into the compound and then waiting 48 hours to see if the Davidians would surrender. Instead, tanks began demolishing the building two hours after the gassing.
·To support the argument that field commanders acted hastily, Caddell showed the jury video depositions in which two high-ranking FBI officials said they watched on television and were surprised that the tanks were ramming the building so soon.
On the video, Danny Coulson, former deputy assistant director of the FBI, said his reaction was to exclaim, "I hope that's a bad camera angle."
Former assistant FBI director Larry Potts said he was "surprised" to see tanks taking out chunks of building. "What are they doing going into the building?" he asked at the time.
·Caddell also introduced as evidence a statement that Attorney General Janet Reno gave to an FBI agent who was later investigating the events at Mount Carmel. She had told the FBI commanders to back away from the gassing if children were put into the compound's four-story tower. She was told by the FBI to "butt out," according to the investigator's notes. ·To counter the government's claim that the Davidians started the fire in a mass suicide, Caddell offered testimony from Patrick Kennedy, a Chicago investigator who helped write the industry standards for fire investigations.
Kennedy said the methods the government has used, such as Forward-Looking Infrared video, is unscientific and there is no proof that accelerants were used in the three areas where the fires seemed to start simultaneously. The tanks could not be ruled out as the cause of the fires, he said.
The question, though, is not just whether that evidence will convince the jury of government culpability, but whether it matters what the jury believes.
Federal trials against the government are typically decided by a judge, but because of the controversial nature of the case, Judge Smith seated a seven-member "advisory jury" whose verdict is nonbinding. By the middle of the second week, its number had dwindled to five.
How ever many jurors remain at the end, the real decision rests with Smith, who presided over the Davidian criminal trials with undisguised disdain for the sect.
Smith handed out stiffer sentences than the jury recommended. The sentences were recently overturned by the U.S. Supreme Court.
Red Nix, the 82-year-old proprietor of Ambold's Locks & Keys in downtown Waco, thinks the Davidians are wasting their time.
"They're not going to do a damn thing about it," he said last week. "They've got the Gestapo on it. They're going to lose. You can't fight the United States government."
Maybe not. The jury is still to hear the government side of the case and, if anyone in Waco is still interested, the verdict could be handed down in two weeks or less.
WACO – Retired federal agent Robert White testified Friday that he and other agents wrote their blood types on their necks and begged in vain for more assault rifles because of "worst-case" concerns before the raid that sparked the Branch Davidian siege.
But Mr. White and another now-retired agent wounded that day said they never expected to walk into a blood bath, where unseen gunmen blasted at them for hours through the Branch Davidian compound's windows, walls and doors.
"Not in our wildest dreams did we expect the resistance that we met out there that day," testified Kenny King, retired from the federal Bureau of Alcohol, Tobacco and Firearms.
Mr. King suffered six gunshot wounds to the chest, arms and legs during the gunbattle with the sect, and Mr. White was hit in the shoulder and grazed in the neck. A third bullet lodged in Mr. White's Kevlar helmet just behind his ear during the Feb. 28, 1993, firefight.
The two men were the final witnesses in the second week of trial in the Branch Davidians' $675 million wrongful-death lawsuit against the federal government.
Their testimony came during the second day of the government's case, which has so far focused on the ATF raid. Lawyers for the sect have alleged that agents fired indiscriminately when they came to the Branch Davidians' property outside Waco to search for illegal weapons and arrest sect leader David Koresh. Four ATF agents died and 20 were wounded in the gunbattle. Six Branch Davidians also died that day.
Government lawyers have argued that the sect was tipped off and laid an ambush. They have said the agents acted properly in a fight for their lives.
Friday's testimony offered accounts of the chaotic 21/2-hour battle from both ATF agents and a Waco TV newsman.
John McLemore, a former reporter for KWTX-TV, said gunfire "just seemed to start all at once" as he and a cameraman followed the two cattle trailers that took the ATF's raiding party to the compound.
But neither he nor any of the agents who have testified so far have been able to pinpoint where the shooting started.
Although Mr. McLemore broadcast news reports stating that the Branch Davidians had started the battle, he testified in a 1994 criminal trial that he couldn't tell who fired first. On Friday, he repeated that testimony, and unlike in the criminal trial, the government's lawyers did not show jurors footage from his news reports.
Mr. King said the first shots he heard were sporadic "pops" of gunfire that rang out as he jumped from one of the trailers. He said he assumed they were coming from agents assigned to subdue the sect's dogs, since he heard someone broadcast the word "dogs" over the ATF radios.
Under cross-examination, he acknowledged that the shots "could have been [from] ATF agents."
Mr. White said he was in the rear of the first trailer, waiting for 29 other agents to dismount, as he heard "200 to 300 rounds" ring out. He and his Dallas-based team of eight agents had been assigned to go through the compound's front door and clear people from the building's upstairs towers.
But when he turned toward the building, he said, "All the windows that I could see at that point ... every window that I had focused on ... I could see muzzle blasts or barrels coming out of the windows, and knew that we were taking blasts from all sides."
Upper window curtains were jumping from gun blasts, and interspersed with the distinctive crack of AK-47s and AR-15s was the "very deafening roar" of ..50-caliber guns, he said.
Most of the Branch Davidian women who testified earlier in the trial said they saw no sect members with guns that morning on the second floor, which housed sleeping quarters for Mr. Koresh and the sect's women and children.
Mr. White said he and four other agents knelt behind a Chevrolet Blazer, and other agents crouched behind other cars and vans in front of the compound. He said bullets smashed through the cars and "rained" window glass on them. "There was no cover to leave or retreat from."
He said he crouched for an hour and 42 minutes behind the Blazer, pinned down by "a continuous stream of gunfire." Two or three explosions rang out near the front door, followed by the racket of metal shrapnel. He said he deduced that they came from grenades, and later learned that his team's leader was hit by multiple grenade fragments.
Mr. White said he fired 40 or 50 rounds, shooting his 9 mm pistol when he could see a muzzle blast or barrel in a window. "I would try to project where the shooter would be,'' he said. "That's where I would fire four or five rounds at a time.''
Under cross-examination, he insisted that he fired only at "threats that posed themselves." He estimated that the 76-agent raiding party shot about 1,400 rounds during the firefight.
Mr. White said he saw Agent Steve Willis sprawled dead nearby and later helped retrieve his body as well as those of two other dead agents, Todd McKeehan and Conway LeBleu, after a cease-fire.
Mr. King, whose New Orleans-based team included Mr. McKeehan and Mr. LeBleu, said they came under fire immediately after climbing onto the compound roof and breaking a window that led to Mr. Koresh's bedroom. Another team managed to get through an adjoining rooftop window into a room where agents believed the sect's guns were all stored, but members were repulsed by compound gunfire.
Mr. King said a heavy spray of bullets through a compound wall hit him four times in the upper arm and chest and abdomen, puncturing one lung and tearing through his liver.
He said he lay down and slid across the roof "to get out of the line of fire." After he took two more rounds in the left thigh and lower buttocks, Mr. King said, he slid off the roof and into a courtyard where he lay for 21/2 hours before other agents could rescue him. He said he never unholstered his gun during any of the firefight.
Mr. King said he was aware that the sect had been tipped off before the raid was launched. "We still thought we had a window of opportunity, that if we went, we could still catch them inside the compound, separated from those guns."
He and Mr. White said the agents believed that the worst reaction they would get during the raid would be a few fistfights. "We knew about the large amount of guns, but we felt that guns would be in a particular area, and it would be sealed off,'' he said.
Mr. White said that he asked the ATF's Washington headquarters for permission to give his agents AR-15 assault rifles because of his concerns about the sect's firepower.
"You always prepare for the worst-case scenario,'' he said, adding that the entire raiding party ended up with six AR-15s. "The use of [more] AR-15s had been denied, so our feeling was that if we could get in fast enough, we wouldn't have the type of a situation where we would need them."
Under cross-examination, Mr. White said many agents also wrote their blood types on their necks with magic markers before going in.
His response prompted questions from two jurors about whether that was standard procedure in tactical operations.
Mr. White said it had never been done before but was done at the Waco raid at the recommendation of "the military."
He and the other ATF agents assigned practiced for the raid at Fort Hood, receiving training from U.S. Army Special Forces personnel. Army documents indicate that the ATF agents were taught how to give each other IVs during their training. The records indicate that the law enforcement agency asked for Special Forces medics to accompany the raiding party because of the threat of civilian and law enforcement casualties.
The request was denied because of a federal prohibition on military involvement in domestic law-enforcement operations.
Under cross-examination, Mr. King acknowledged that a number of the people involved in the shootout were convicted and sent to federal prison.
"You understand that this is not a criminal trial?'' plaintiffs' lawyer Michael Caddell asked. "You understand this is a civil trial for negligence?"
Mr. King then conceded he was one of a number of agents who eventually won a $15 million lawsuit from several Waco media organizations and an ambulance company for the inadvertent tip-off of the sect.
The trial resumes on Wednesday.
Two government agents who were wounded while trying to arrest David Koresh on Feb. 28, 1993, testified Friday that Branch Davidians inside Mount Carmel ambushed them with firepower that was beyond their "wildest dreams."
The testimonies of retired Bureau of Alcohol, Tobacco and Firearms agents Robert White and Kenneth King on behalf of the government closed out the second week of trial in the $675 million wrongful death lawsuit filed by Branch Davidian survivors.
King, who now lives in Knoxville, Tenn., said he was shot six times and lost three of his ATF team members from New Orleans during the fierce gun battle with Koresh and his followers.
"Not in our wildest dreams did we expect to meet the resistance we got that day," King told the five-member advisory jury in Waco's federal court.
White, who was riding with about 30 other agents in the first of two cattle trailers used to haul the 76 agents to Mount Carmel, said he heard 200 to 300 shots fired from the compound before he ever made it out of the trailer. King said he had taken about two or three steps out of his trailer when he heard the first shots.
However, under cross-examination from lead plaintiffs' attorney Mike Caddell, both agents said that the first shots they heard were not from automatic weapons and both assumed that those shots were from fellow ATF agents shooting dogs in front of the compound. Neither said he knew who shot first — the Branch Davidians or the ATF.
Both men said the agents had planned for the worst and hoped for the best. But White said they never expected much more than "fisticuff type of resistance," despite the fact that some agents had asked to carry AR-15 rifles and been turned down by their superiors.
Caddell asked if it weren't true that some of the agents had stenciled their blood types on their necks before the raid. White said they had.
"That would have been a hell of a fist-fight, wouldn't it?" Caddell asked.
The plaintiffs have alleged that ATF agents fired without provocation and shot indiscriminately during the Sunday morning raid.
However, White, who fired 40 to 50 shots during the battle, said he returned fire to windows in the compound where he could see muzzle blasts or a gun barrel sticking out. He said he never saw anyone with a gun inside the compound.
"Did you ever see any of these people firing a gun that morning?" Caddell asked, holding up a display bearing photos of children who died in the April 19, 1993, fire at Mount Carmel. White said no.
"You knew there were a number of women and children in there that day, didn't you?" Caddell asked, charging that agents fired through walls.
"Yes," White said.
"And you knew the building was of shoddy construction?"
"Yes," White said.
White, who was shot in the shoulder and neck, testified that a bullet also lodged in his helmet. Under questioning from Caddell, he said an investigation showed that agents fired 1,587 rounds during the raid.
King said his team was responsible for trying to enter Koresh's second-floor living quarters and sealing off a room nearby that ATF officials referred to as the "arms room." He said he had heard quite a bit of gunfire from other parts of the compound before his team got on the roof. He testified that he was shot four times in the arm, chest and stomach within seconds of his arrival on the roof.
He said he tried to get out of the line of fire and heard a noise that he thought was rain dripping off the roof from the early-morning drizzle. However, when he turned his head, he realized that the sound was blood pouring from a head wound suffered by his friend, ATF agent Todd McKeehan, 28, of New Orleans.
As he turned to see McKeehan's body, King said he was struck in the leg and buttocks by two shots fired through the roof. He then rolled off the roof and into an interior courtyard area, where he stayed about 21/2 hours until a cease-fire was negotiated and agents took him for medical treatment.
King said he never took his pistol from its holster.
During King's testimony, government attorney Marie Hagen displayed photographs to the jury of McKeehan, Robert Williams, 26, and Conway LeBleu, 30, all members of King's team from New Orleans who were killed that day. ATF agent Steve Willis, 32, of Houston, also died from gunshot wounds. Six Branch Davidians also died Feb. 28, 1993.
"I think the testimony continues to clearly establish that the ATF was not the aggressors in this situation," said U.S. Attorney Mike Bradford, Hagen's co-counsel. "They were caught in a gunfire in which they were basically fighting for their lives, defending themselves and that the shots being fired into the compound were in response to being fired upon. They were firing into directions in which they are taking gunfire and I think that point has been very well established and there really has been very little shown in contradiction to that."
In earlier government testimony Friday morning, former television reporter John McLemore, who witnessed the shootout, testified that three Texas National Guard helicopters made three passes about 200 yards away from Mount Carmel before the raid on Feb. 28, 1993. That contradicted testimony Thursday from three Texas National Guardsmen, who said the helicopters made just one approach to Mount Carmel that morning and never got closer than a quarter-mile from the building before the helicopters were hit by gunfire and forced to land.
Government testimony will resume Wednesday after an extended holiday break. Caddell said he thinks the trial could be concluded by the end of next week or early the week after.
Because the issue of whether the tear gas pumped into Mount Carmel contributed to the deaths of any Branch Davidians was tossed out of the Davidians' wrongful-death lawsuit by U.S. District Judge Walter S. Smith Jr., one expert on the substance took his case to the media Friday.
Smith ruled the government's action was protected by the discretionary function exception. It essentially protects officials from being sued or second-guessed for the choices they make performing their duties.
However, Eric Larsen, a retired research scientist at Dow Chemical, argued it's the public that needs protecting.
"This situation is going to occur again," Larsen said, in a press conference held at Waco's Hilton Hotel. "Law enforcement hasn't modified its thinking. Today they use pepper gas. They put in pepper oil instead of CS gas. But methylene chloride is still there in the same concentration."
The tear gas used at Mount Carmel contained methylene chloride mixed with a smaller amount of C.S. powder.
Larsen described methylene chloride as being almost as potent as chloroform. C.S. powder, according to Larsen, is essentially mace.
Larsen was retained by attorney Ramsey Clark, who represents longtime Davidians such as Clive Doyle, as an expert witness. Smith agreed to accept Larsen's testimony about the effects of the tear gas in the form of a written document. However, Smith has ruled that he can't testify before the advisory jury.
The government derailed Larsen's testimony by filing a motion referring to Smith's initial ruling on the issue last July.
"The FBI's decision to use tear gas in the April 19 final confrontation" is "clearly the type (of activity) that the discretionary function exception was designed to protect," Smith wrote.
At that time, Smith called the claim that the Davidians were subjected to the long-term effects of tear gas a "red herring."
"The fact that tear gas may be dangerous through long-term exposure is a red herring raised by the plaintiffs," Smith wrote. "Tear gas, obviously, is not intended for long-term exposure, and there is nothing to indicate that the defendants had any intention of subjecting the Davidians, adults or children, to long-term exposure. ... Any long-term exposure was the result of the Davidians' choice to remain in the compound after the tear gas has been inserted and to force their children to remain there, also."
Larsen sees it differently. He noted in a letter last year to Dow's chairman that FBI spokesman Bob Ricks acknowledged putting "massive gas" in a vault that contained 31 people, including 21 children.
"These statements suggest that intentionally torturing children and babies in order to force their parents to give up their strongly held religious beliefs and herding innocent women, children and babies into a small concrete room .... and inserting a lethal amount of a potent, fast-acting anesthetic gas is FBI-DOJ policy," Larsen wrote.
Ricks, in news stories at the time, said the FBI (erroneously) thought David Koresh was in the vault, actually a food-storage unit at the back of Mount Carmel.
The FBI unquestionably pumped large amounts of tear gas into Mount Carmel on April 19, 1993. Between 300-400 canisters of tear gas were dispersed, according to an FBI technician who testified in the civil trial. A tank that rammed through the front of Mount Carmel twice reached the vault to pump in tear gas.
Both C.S. powder and methylene chloride — the components of the FBI's tear gas — can be lethal if used indoors, Larsen said, with the latter acting more rapidly. And given the anesthetic nature of methylene chloride, one canister of the tear gas could have rendered the people in the vault comatose and unable to escape a fire, Larsen said.
"Babies in particular are very susceptible to anesthesic agents," Larsen said.
Government officials, however, point out that seven people inside the vault died from gunshot wounds and not smoke inhalation.
Larsen stands by his contention, however, that tear gas is dangerous.
"If there hadn't been a fire, the (tear) gas would have killed them," he said. "With the fire, it didn't matter anymore."
Waco, FBI and the Branch Davidians: Updates
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