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"Jury's findings reverberate across capital, country"

by Michelle Mittelstadt ("Dallas Morning News," July 15, 2000)

WASHINGTON – A Texas jury's quick finding that the government bears no liability for the deadly 1993 Branch Davidian siege drew sighs of relief in federal law enforcement circles Friday and dismay in some other quarters.
"The significance of the jury's findings to the courageous federal law enforcement officers who have had to absorb unproven allegations and public criticisms for all these years cannot be overstated," FBI Director Louis Freeh said in a statement. "An enormous burden has been lifted from them and their families."
Officials at the FBI, Justice Department and the Bureau of Alcohol, Tobacco and Firearms, who have been harshly criticized over the years for their decisions at the siege near Waco, took pains not to appear jubilant.
"This terrible tragedy was the responsibility of David Koresh and the Branch Davidians, not the federal government," the Justice Department said in a terse statement. "We are pleased the jury affirmed that view."
Their quietly expressed sense of vindication wasn't shared by critics of the government's actions during the 51-day standoff, which ended with the deaths of more than 80 Branch Davidians. They expressed disappointment, saying the court's rulings before and during the trial prevented the plaintiffs from putting on their entire case.
"You've got all these unanswered questions that are going to linger," said Houston lawyer Jack Zimmerman, who spent time inside the Davidian retreat during the siege. "My concern is that we've got extremists that are going to view this as a whitewash. There was really no resolution. The judge didn't let all the evidence in; the jury didn't hear everything."
Fellow Houston lawyer Dick DeGuerin, who also went inside the compound to visit with his client Mr. Koresh, said it was inevitable that a Waco jury would find for the government.
"What's happened is the jury from Waco can't get back at David Koresh for all the embarrassment that he's caused them ... so they are blaming these other folks," Mr. DeGuerin said of the plaintiffs.
"This case shouldn't have been tried in Waco," he said, an assessment shared by Mr. Zimmerman.
During the four-week trial, the plaintiffs contended that ATF agents used excessive force during a Feb. 28, 1993, raid to serve weapons warrants on Mr. Koresh, the Davidian leader. Four ATF agents and six sect members died in the gunbattle that sparked the siege.
The plaintiffs also attacked the FBI's conduct on April 19, 1993, blaming on-scene commanders for reckless conduct in ramming the compound with tanks delivering their payloads of tear gas and by failing to have firefighting equipment on hand.
More than 80 Davidians died in the fire that raced through the complex several hours after the FBI initiated a tear-gassing operation approved by Attorney General Janet Reno.
The five jurors rejected the plaintiffs' claims, including their contention that agents spread or contributed to the start of the fire.
While calling the deaths "tragic," Mr. Freeh said he hoped the jury's finding would "reinforce the fact that the actions taken during those 51 difficult days were taken by dedicated professionals who were doing their best under extraordinarily dangerous conditions."
ATF officials offered little public commentary. In a one-paragraph statement, the agency said the jury's recommendation was consistent with a post-siege Treasury Department investigation in 1993 that concluded "ATF agents were ambushed and engaged in a disciplined response to this unprecedented attack on law enforcement officers."
Michael McNulty, a Colorado filmmaker whose two Waco documentaries popularized the theory that gunfire from government positions trapped sect members inside the burning building, said he was "bitterly disappointed" by the jurors' decision.
"I spent seven years of my life gathering evidence, much of which was not included in the trial, and these good citizens took two-and-a-half hours to make a decision on this issue," said Mr. McNulty. His investigations and reports in The Dallas Morning News prompted the government last year to recant its long-standing denial that potentially incendiary tear-gas canisters were used during the standoff's final hours.
While acknowledging their use, the government insists its agents did not cause or contribute to the fire, and that no federal personnel fired on the Davidians on April 19.
Sen. Arlen Specter, the Pennsylvania Republican who is leading a special subcommittee reinvestigating the government's conduct during the standoff, called the jury's advisory opinion "significant" but not "determinative."
"I think that this complicated case is still a long ways from being over," Mr. Specter said in an interview, noting that special counsel John Danforth has yet to conclude the inquiry he was asked to perform by the attorney general.
As for congressional hearings, Mr. Specter said: "We have decided that we are going to await Senator Danforth's report."
The appetite for renewed congressional hearings has diminished somewhat since last year, when the Justice Department's admission that pyrotechnic tear-gas devices were used touched off a furor on Capitol Hill.
The House Government Reform Committee, which also has been re-examining the Waco operation, still has not made a final decision on whether hearings will be held, a panel aide said Friday.

"Judge Smith's comments"

("Dallas Morning News," July 15, 2000)

Lead plaintiffs' attorney Michael Caddell took the highly unusual step of strongly criticizing Judge Walter Smith on the courthouse steps after Thursday's proceedings in the wrongful-death lawsuit of Branch Davidians and survivors against the government. He said the judge was "trying to engineer a verdict" and criticized his instructions to the jury, as well as his decision to combine all the plaintiffs - including men, women and children holed up in the compound during the 51-day siege - into one group. Mr. Caddell said he thought the law should allow separate consideration of the death or injury and actions or negligence of each individual.
Judge Smith responded in comments before bringing the jury in for closing arguments Friday morning:
"It's the first time in my experience that a proposed charge to a jury wound up in the newspapers. But this has been a novel experience in many ways for me. I was able to discern that there were some errors in the charge. ...
"I don't usually pay much attention to what the media reports about trials because my experience is that, try as they might, reports are often inaccurate. But when I am involved in a case where there is media reporting .... I do take an interest, because I feel that it's important to me to know what a jury might be exposed to. ...
"First of all, I have not in any way tried to engineer the jury instructions or the verdict form in order to have a particular result happen. I have tried to simplify the jury charge to get to the bottom line in the issues that are of interest to me and the public in this case.
"Congress passed a statute that allowed the government to be sued. ....Congress in its wisdom put certain limits on that right. ... An important limit that Congress put on that right, they simply did not trust juries to decide cases where the government is being sued. ...
"Federal statutes allow and federal rules of procedure allow judges to impanel advisory juries. ... That's not limited to Federal Tort Claims Act cases.
"How many lawyers have ever been involved in a case [with an advisory jury]?
(Mr. Caddell is the only attorney in the courtroom to raise his hand. The judge then continues.)
"That absolutely amazes me, because you're the one who seems to have absolutely no understanding of the process.
"A jury makes a decision. The jury advises the court. I can take its advice or I can reject it. I consider their verdict to the extent that I want to. I suppose a judge has the right to talk to his wife or his brother about issues. ...I'm not sure it's appropriate, and I don't talk to my wife or my brother about decisions that I intend to make. I have not attempted to engineer what that advice will be, and I think that perhaps makes the record clear.
Before reading the jury's verdict Friday afternoon, Judge Smith continued his bench comments about the advisory jury's role in the case.
"I fully recognize that there are differences ...between the plaintiffs, regarding children, old people. ...There is a difference between a 2-year-old and [adult Davidian] Clive Doyle. ...All of that will be sorted out by me. ...
"This is an advisory jury. The jury has now given me their advice. That advice I can use in any manner I see fit."

"Jurors retain anonymity"

by David McLemore ("Dallas Morning News," July 15, 2000)

WACO – When a federal judge read the verdict Friday in the Branch Davidians' $675 million damage suit, the five-member jury had already left the courthouse.
The jurors had been fast in deliberations too, presenting their findings in about two hours and 35 minutes. And throughout the trial, jurors managed to retain the anonymity that marked their four-week service in the landmark civil suit that pitted survivors of the 1993 fiery assault on the Branch Davidian compound against the federal government.
"The jurors have informed me that it is their unanimous decision that they have no desire to talk to anyone, attorneys or news media," said U.S. District Judge Walter S. Smith. "They have already left the building and won't be available."
The judge then read the jurors' findings; they found that agents of the Bureau of Alcohol, Tobacco and Firearms and the FBI had not caused the deaths of David Koresh and 80 followers in the final attack on the compound April 19, 1993.
The speed of the jury deliberations was simply a way for the jury to send a message to the Branch Davidians, said plaintiffs' attorney Ramsey Clark.
"It was a verdict unsupported by the truth and the evidence," Mr. Clark said. "They were saying that they didn't like these outsiders, this unpopular and minority religious community. In that sense, they were speaking for the whole Waco community."
The defendants can't take much comfort in knowing that the three-woman, two-man panel's verdict was one in name only, Mr. Clark said.
"The judge can ignore them if he wants, simply not pay attention to their verdict," he said. "That's not likely, but . . . life is full of surprises."
The jurors served only as an advisory panel to Judge Smith, who will issue a final ruling in the civil suit next month.
Federal law requires that civil actions filed against the government must be heard only by a federal judge. But Judge Smith chose to name an advisory panel to assist him because of the notoriety and sensitivity of the tragedy at Waco.
"This jury has been their advice on how to view the facts in the case," Judge Smith said after reading the verdict. "I can use it any way I see fit."
Plaintiffs' attorneys said they weren't surprised at the speed of the jury's deliberations or the verdict.
"The jury's finds are, I think, indicative of the judge's final ruling," said Mike Caddell, lead plaintiffs' attorney. "I believe there will be no judgment against the government. I'd be foolish to predict otherwise."
>From the beginning, when jury selection began June 19, Judge Smith ordered that jurors remain anonymous. Six jurors and one alternate were picked out of a pool of 60 people from 13 Central Texas counties. During the trial, two were dismissed for personal reasons.
Throughout the trial, juror names and addresses were not revealed. Of the five remaining, very little is known.
One of the men is a physical education instructor at a Waco elementary school, while the other man works as an aircraft electrician in Bell County.
One of the women, believed to be the forewoman, lives in Copperas Cove and works in a military payroll office at Fort Hood. Another woman works in the Limestone County victim's assistance office. The fifth juror is a homemaker from Hewitt.

"Davidians: No justice in Waco; Plaintiff's attorney: Fair trial impossible"

by Martha Ashe (Waco Tribune-Herald," July 15, 2000)

Survivors of the tragedy at Mount Carmel and relatives of Branch Davidians who died in the blaze said Friday they did not expect to find justice in Waco.
The plaintiffs in the wrongful-death case against the government blamed Waco residents, U.S. District Judge Walter Smith and federal agents after the five-member advisory jury returned a verdict Friday against the Davidians.
Ramsey Clark, a former U.S. attorney general who represented some of the plaintiffs, huddled outside the courtroom after the verdict with Davidians and their relatives, telling them they could not have received a fair trial in Waco.
Jurors were making a statement, on behalf of the Waco community, by deliberating less than three hours to arrive at a verdict, Clark said.
“It’s a statement (saying), ‘We don’t like people like that,’ ” Clark said. “Religion is a factor, but the demonization of that is part of it.”
Clark compared Waco’s relationship to the Davidians to Dallas’ desire to distance itself from the assassination of President Kennedy. Except, he said, in Waco’s case, “they were homegrown.”
David Koresh and 75 others died April 19, 1993, when the 51-day government seige of the Branch Davidian compound at Mount Carmel ended in fire.
Bonnie Haldeman, Koresh’s mother, said jurors had their minds made up before they began deliberating.
“I think there’s a lot of good people in Waco . . . but I think what you hear mostly is the voice of the few,” Haldeman said. “I’m not disappointed. If you don’t expect something, you can’t be disappointed . . . The jury was sort of a farce, anyway.”
Sherry Burgo, whose father Floyd Houtman died in the 1993 fire, said the jury’s verdict was as painful for her as the day the Mount Carmel compound went up in flames, though in a different way.
“I often think of him,” Sherry Burgo said. “I know he’s probably not happy” with the verdict.
Her husband was more specific. “I know what he would say,” Kenneth Burgo said. “He would say, ‘Wait on God.’ ”
The Burgos traveled from their home in Massachusetts for the four-week trial. Now they said they will await the ruling from Smith, who will consider the decision of the "advisory jury," and hope an appeals court will see the case their way.
“We’re going to be strong,” Sherry Burgo said. “Once we’re out of Waco, we’ll have a chance. All I wanted was justice.
“It wasn’t fair from the beginning. We weren’t allowed to bring in evidence to present the case. All our evidence was destroyed at Mount Carmel.”
The Burgos blame Smith for rulings that prevented the plaintiffs from presenting evidence that the fire did not destroy. They blamed the federal government for covering up its actions.
“How do you try a case when you see a judge being one-sided?” Kenneth Burgo said. “This here was just a big joke to (the federal government). They knew they were going to railroad this case before they even got here.”
For Branch Davidian Sheila Martin of Waco, Friday’s verdict against the Davidians was a reflection of people’s rejection of the sect’s religious beliefs.
“You take it one day at a time,” Martin said. “All you could do was sit and listen (as the verdict is read) and hold your breath. . . . Our trust is in God. You can’t depend on any person.”
Branch Davidian Clive Doyle of Waco, who escaped the fire and later was acquitted in the 1994 criminal trial, said the verdict was not unexpected.
“I saw it coming for the whole month,” Doyle said. “I didn’t expect anything different with the way it was set up with all the restrictions the judge put on the case.”
The lesson to be learned from the trial is to try to avoid a confrontation with the government, which will win in the end, Doyle said.
“The message is that you better not be on the receiving end of the government.” he said. “They demonize you and justify anything they want to do to you.
Doyle, who lost an 18-year-old daughter in the fire, said he doesn’t think the trial will put to rest any of the questions remaining from Mount Carmel.
“I don’t think it will change anybody’s mind. There are still those questions out there,” he said.
Smith is expected to make a final ruling on the case later this summer, after an August hearing to consider evidence on whether federal agents fired gunshots at the compound the day of the fire.
Because the jury acted in an advisory capacity, Smith could disregard its verdict and rule in the Davidians’ favor.
But Clark, the plaintiffs' attorney, said he doesn’t expect that to happen.
“It doesn’t seem likely,” Clark said. “One of the great things about life is it’s full of surprises. Not lately, though.”

"Smith tries to 'set record straight,' denies turning jury against Davidians"

by Mark England & Tommy Witherspoon ("Waco Tribune-Herald," July 15, 2000)

U.S. District Judge Walter S. Smith Jr. of Waco, ruddy complexion aside, was seeing red when he walked into federal court Friday. The morning newspapers carried lead plaintiffs attorney Mike Caddell's comment that Smith was trying to engineer a verdict against the Branch Davidians in their wrongful-death lawsuit against the government.
Caddell took exception to Smith's instructions to the advisory jury, which later in the day would find for the government.
Smith didn't differentiate in the jury charge between men, women and children. Instead, when asking jurors what degree of responsibility those at Mount Carmel bore for what happened seven years ago, Smith referred to "the Davidians," as a group.
You didn't need to read faces to gauge Smith's reaction to Caddell's comment. Upon sitting down, Smith granted a government motion. When Caddell stood up to respond, Smith snapped, "Sit down, Mr. Caddell."
Before bringing in the jury, Smith told the packed courtroom that he wanted to "set the record straight." The judge said he didn't usually pay attention to media reports about trials, accusing them of often being inaccurate.
"But when I am involved in a case where there is media reporting, I do take an interest in that because I think it's important for me to know what the jury might be exposed to," Smith said.
Then Smith got down to the nitty-gritty. "First of all, I have not in any way tried to engineer the jury instructions or verdict forms in order to have (certain) results," Smith said. ''I have tried to simplify the jury charge in order to get to the bottom line. That's all I've done.''
He explained that it "must be remembered by those with the ability to understand" that Congress denied those suing the government the right to a jury trial. Judges, however, can appoint advisory juries in such cases.
"Congress simply did not trust juries to decide cases where the government is being sued," Smith said. He then asked how many lawyers in the courtroom had been involved in cases with advisory juries, which provide a judge issuing a verdict an idea of how the community feels about the issue.
Only Caddell raised his hand. It was a tactical error. "That absolutely amazes me, Mr. Caddell, because you're the one who seems to have absolutely no understanding of the process," Smith told him.
With an advisory jury, he was free "to take that advice or I can reject it," Smith said.
Caddell didn't respond to Smith's remarks. Caddell said later, though, that he felt the need to tread lightly during his closing arguments.
"The term 'Davidians' was not defined in the instructions given to the jury, so I had to feel my way there," Caddell said. "Obviously I didn't want the judge to come down on me in my closing."
After the jury left at noon to deliberate, Smith had one more thing to say about Caddell's accusation that he had lumped all the Davidians together.
"I fully recognize that there are differences between children, old people and active shooters," Smith said. "All that will be taken into consideration, sorted out and determined by me."
A government attorney said he was astounded by Caddell's public comments about Smith. "I thought we might have another suicide plan to discuss," the attorney said. "I am not familiar with that kind of strategy."
Caddell, however, was unapologetic. "I'm going to say what's right," he said.
Caddell told a throng of media that he and Smith were in agreement on one point. "This (charge) does make it simpler," Caddell said. "They don't have to go through individuals... That doesn't change the fact that the charge that was submitted to the jury does not reflect Texas law. I don't know any other way to say that. And, frankly, I think the judge acknowledged that by saying that when he makes a judgment he will make a decision on an individual basis."

"Jury: Feds not liable Judge will have last word on Davidian wrongful-death suit"

by Tommy Witherspoon ("Waco Tribune-Herald," July 15, 2000)

A federal court jury in Waco on Friday placed blame for the 1993 Branch Davidian tragedy squarely on the shoulders of David Koresh and absolved government officials of wrongdoing in the botched raid that killed nine and the fire in which 76 sect members died.
The jury, empaneled only to advise U.S. District Judge Walter S. Smith Jr. on liability issues in the case, deliberated about 21/2 hours before unanimously finding in favor of the government after the monthlong trial.
Jurors in the $675 million wrongful-death lawsuit filed by surviving Branch Davidians were whisked away from the federal courthouse by federal marshals and were not present in the courtroom when Smith read the verdict. The judge said the jury would not comment on the case.
Jurors found that 76 agents from the Bureau of Alcohol, Tobacco and Firearms did not use excessive force by firing indiscriminately and without provocation when they came rolling up to Mount Carmel in cattle trailers to arrest Koresh for weapons violations on Feb. 28, 1993.
Four agents were killed and16 were wounded during the fierce two-hour gunbattle with Koresh and his followers. Five Branch Davidians were killed that morning and a sixth was shot and killed later than afternoon trying to enter the compound.
The jury, which consisted of two white women, a white man, a black man and a black woman, also ruled that the FBI was not negligent in the way it handled the 51-day standoff and how it chose to try to end the siege on April 19, 1993.
Jurors answered no to each of three allegations remaining in the trial pertaining to the April 19 fire, finding that FBI agents were not negligent in using tanks to penetrate Mount Carmel; that they did not contribute to the start or spread of the fire; and that the government response to the fire was reasonable.
U.S. Attorney Mike Bradford of Beaumont, the government's co-lead counsel, said he hopes the jury's verdict will put the controversy over Mount Carmel to rest. Bradford was flanked by 14 government attorneys and staff members as he talked to the press after the trial.
"I'm gratified with the jury's verdict today," Bradford said. "I think this is a vindication for the law enforcement officers who were out at Mount Camrel in 1993 doing their duty, doing their best to carry out their job in very difficult circumstances, very dangerous circumstances. I think what this verdict shows is that several of the positions we've taken are true. And that is the Branch Davidians started the fire, burned down their own complex and caused the tragedy that happened."
Lead plaintiffs' attorney Mike Caddell of Houston said he was unsure if he would appeal the verdict, which is an advisory verdict to assist Smith, who will issue the final judgment in the case later.
The judge removed from the trial the issue of whether FBI agents fired into Mount Carmel on the final day because a key expert witness was not available for the trial.
On Friday, the judge set a tentative hearing date for Aug. 2 to hear testimony from David Oxlee, a specialist in infrared tape analysis from England who works for Vector Data System and who is recovering from recent cancer surgery.
The judge indicated he would issue a judgment in the entire case after hearing Oxlee's analysis of a March gunfire recreation at Fort Hood that was captured on infrared cameras. The recreation did not prove the plaintiffs' claims of government gunfire on April 19.
"I would like to get this all disposed of at the earliest date possible," Smith told the parties to the suit.
Caddell hinted after the trial that he might not pursue the allegations pending over the gunfire issue.
"I understand the judge has his decision to make and the jury is advisory, but I think from a practical matter, we would recognize that there will be no judgment against the government issued by Judge Smith," Caddell said. "I wouldn't be foolish enough to suggest otherwise."
Caddell was critical of the judge's instructions to the jury, charging that they were designed to elicit a verdict favorable to the government. The judge angrily denied those claims Friday morning before bringing in the jury.
"I am not someone who pursues lost causes," Caddell said. "I think there are enough causes that can be won that you don't have to pursue the lost ones, generally. But I also think that sometimes, as a matter of principle, you take cases that are very, very tough, and we knew this was going to be a tough case.
"We knew that once we were transferred to Waco, it would be tough. We didn't file this case in Waco. We offered to move this case to any court in the Western District other than this court. We went to the Supreme Court to try to get Judge Smith recused. So that may tell you a little bit how hard the government fought to get this case tried in front of this judge and how hard we fought to keep it from being tried in front of this judge," Caddell said.
Bradford, who was brought into the case when U.S. Attorney Bill Blagg of San Antonio removed his office from the case, said he hopes the trial will bring to a close a tragic chapter in American history.
"I hope this puts to rest the concerns about federal law enforcement's activities that day," Bradford said. "This was a randomly selected group of citizens that constituted a jury who heard the evidence and came back with a very quick verdict in favor of the law enforcement agencies. And I think that speaks volumes."
Caddell said he thinks that the "vast majority" of Americans will take the verdict as the final word on Mount Carmel.
"The vast majority of the American public won't know what the jury charge looked like or won't know if it was in accord with Texas law or not. What they will take away from this is that five people sat on a jury through four weeks of a trial and issued a verdict saying that the government was not negligent. I think that is what people will take away from this, and for most peple that will be the finish to Mount Carmel," he said.
The final word, however, may belong to former Missouri Sen. John Danforth, Caddell said. Attorney General Janet Reno appointed Danforth as special counsel to review the FBI's actions at Mount Carmel on April 19, 1993.
"I think Senator Danforth has got some issues that he is looking at similar to the issues we raised," Caddell said. "Whether this verdict will influence his decision, I don't know. I'm sure he would deny that. But the reality is that a jury verdict like this makes it easier for Senator Danforth to conclude that there was no government wrongdoing."
The government contends that Koresh and his followers bore total responsibility for the fiasco by resisting agents' efforts to serve arrest and search warrants on Koresh on Feb. 28 and by setting fire to the compound themselves. Bradford told the jury repeatedly during his closing statements Friday morning that the Davidians were under a spell cast by Koresh, yet could have come out of Mount Carmel at any time during the 51-day standoff.
To illustrate Koresh's hold over his followers, Bradford reminded the jury of testimony relating to the death of Davidian Perry Jones, who was shot in the stomach during the initial raid and refused medical attention offered by the government. He said the 64-year-old Jones sent a message to Koresh asking if he could commit suicide to end his suffering. He died from a gunshot wound to the mouth.
"Just like you had to get permission to do anything at Mount Carmel, you even had to get permission to kill yourself from David Koresh," Bradford .
saidCaddell told the jurors in summations that their verdict would send a message.
"The scariest thing about this case is that there will be another David Koresh," Caddell said. "I said in the beginning that this case is about the children of Mount Carmel. But it is too late to save them. So this is also about the next set of children, those children who will be with the next David Koresh and the next and the next. So what we do here will help those next children."
After the verdict, Caddell said he hopes the message to law enforcement is not a negative one.
"If it does send a message to law enforcement, it would be a bad one," he said. "It would be one that sounds like tanks are OK and knocking a building down like that and ignoring a plan that had been carefully thought out is acceptable. I hope that that message is not being sent to law enforcement because that would be pretty frightening, frankly."

Waco, FBI and the Branch Davidians: Updates

CESNUR reproduces or quotes documents from the media and different sources on a number of religious issues. Unless otherwise indicated, the opinions expressed are those of the document's author(s), not of CESNUR or its directors

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