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"Hearing on remaining Davidian issue appears uncertain"

by Mark England ("Waco Tribune-Herald," July 20, 2000)

A hearing date next month on the remaining issue in the Branch Davidians' wrongful-death lawsuit against the government, namely whether FBI agents shot at the Davidians, appears shaky.
U.S. District Judge Walter S. Smith Jr. of Waco scheduled a hearing for Aug. 2.
But Houston attorney Mike Caddell, the lead attorney for the plaintiffs, reaffirmed his statement last week that he will not attend a hearing on the gunfire issue.
"I don't know what purpose it would serve," Caddell said. "I think it is clear, or it should be clear, that Judge Smith has made up his mind about this case. I have no desire to simply go through the motions. I'm not willing to participate in something that's not real. I feel like that's what I did for four weeks. Having done it once, I'm not willing to do it again."
A five-member advisory jury found last week that the government was not guilty of negligence at Mount Carmel.
They considered four issues: whether agents for the Bureau of Alcohol, Tobacco and Firearms fired indiscriminately during a Feb. 28, 1993 raid; whether the FBI prematurely demolished part of Mount Carmel in violation of U.S. Attorney General Janet Reno's instructions; whether the FBI helped start or spread the fire that killed David Koresh and 75 followers; and whether the FBI was negligent by not having a firefighting plan.
Smith will consider the advisory jury's opinion in reaching a final decision on those issues. A gunfire hearing would be held without a jury.
A clerk in Waco's federal court, however, described the gunfire hearing as being "up in the air."
Neither Caddell nor the other attorneys for the plaintiffs, Ramsey Clark and James Brannon, had notified the court by Wednesday afternoon regarding whether they plan to attend the hearing.
Clark, the former U.S. attorney general representing many of the longtime Davidians, told the Tribune-Herald he wants to pursue the gunfire issue.
However, he may not be in Waco if there is a hearing.
"Whatever he (Caddell) does, we'll persevere," Clark said. "We'll have someone there. At the moment, it doesn't seem possible for me to be there personally."
Clark said he doesn't think Caddell's boycotting of a gunfire hearing should cause its cancellation.
"In one sense, the case is virtually complete," Clark said. "All the affidavits are in. The prior depositions from Vector (Data Research) are in. All that is missing is one person's testimony. What that can add to the Vector report would be fairly modest presumably."
Vector is the company chosen by Smith and Special Counsel John Danforth, who is investigating the FBI's actions at Mount Carmel for Reno, to determine whether the flashes on the FBI's April 19, 1993 infrared video were gunfire. Its chief infrared expert, David Oxlee, has been unavailable for questioning because of surgery. That led Smith to separate the gunfire issue from the other four issues in the Davidians' lawsuit.
Caddell has attacked Vector's re-creation of the final day at Mount Carmel.
In March, a helicopter at Fort Hood with an infrared camera flew over a debris field and men firing weapons known to be in the FBI's arsenal seven years ago. The infrared video produced was compared with the FBI's 1993 infrared video that contained numerous flashes, which the plaintiffs argue were government gunfire in some cases.
However, Vector determined the flashes came from debris and not gunfire.
Caddell filed a motion arguing that Vector employees testified in depositions that the debris field at Fort Hood produced no multiple flashes - which are seen at various points in the FBI's infrared video.
Vector's Oxlee has apparently recovered enough from recent surgery to attend an August hearing on the gunfire issue.
Regardless, Caddell said he will let his gunfire arguments rest on the motions already filed in federal court.
"I actually think this issue is weaker than the other issues," Caddell said. "That doesn't mean I don't think we're right. But it's weaker in the sense there's no eyewitness testimony. And there's the supposed independent expert. Although I believe we've thoroughly discredited them, a lot of people will look at them, Danforth's independent expert, and say there was no gunfire. I think this was the issue the court was least likely to be persuaded by to begin with. Given what happened at the trial, I think it's even less likely."
Caddell said he won't prevent Clark or Brannon from calling his designated infrared experts - Edward Allard, Ferdinand Zegel and Carroll Lucas - to testify at a gunfire hearing.
Both Allard and Zegel have stated they believe the FBI's infrared tape captured agents firing at the Davidians. Lucas filed a report disputing the accuracy of Vector's test results from the Mount Carmel re-creation. Among other things, Lucas noted the different flight characteristics of a helicopter and the FBI's Night Stalker airplane, from which the Mount Carmel infrared video was taken.
"I don't control them," Caddell said. "It's a free country. They can do whatever they want."

"'It Wasn't Even Close'"

Analysis of the Waco Wrongful Death Verdict by Solomon Wisenberg -- Commentary by FindLaw (ABC News, July 19, 2000)

July 19 - In the end, it wasn't even close. After a month of testimony and just a few hours of deliberations, an advisory jury cleared the government of wrongdoing during the 1993 siege of the Branch Davidian compound in Waco, Texas.
Survivors of the fire that ended the siege in April, along with relatives of those who died, had brought a wrongful death action against the government, seeking damages.
But the advisory jury wasn't convinced, and found for the government across the board. (The jury served in an advisory capacity because actions under the Federal Tort Claims Act (FTCA) are heard by a federal judge alone.
Presumably, United States District Judge Walter Smith, Jr. empaneled the jury because of the sensitive nature of the case. He will make the final ruling himself, likely in August.) Although the jurors have not discussed their reasoning publicly, the decisive verdict seems to have resulted from evidence that the Davidians were largely responsible for the deaths and injuries they sustained.
If, as is expected, Judge Smith adopts the jury's findings, the trial court will conclude that:
ATF agents did not fire indiscriminately (or without provocation) during the execution of the search warrant at the Branch Davidians' Mount Carmel complex on Feb. 28, 1993.
The FBI did not negligently deviate from a Washington-approved tear gas plan on April 19, 1993, when agents knocked down Mount Carmel's walls five hours into the operation. The approved plan called for the walls to be knocked down 48 hours into the operation.
The FBI did not negligently start or contribute to the spread of the fire or negligently fail to have fire-fighting equipment in place on April 19.
The Battle With The 'Beast'
The key to the government's victory appears to have been the deep complicity of the Davidian leadership in the events of Feb. 28 and April 19. Trial testimony showed that many adult male Davidians (and some females as well) together unloaded a massive volley of gunfire at ATF agents trying to execute a valid search warrant on Feb. 28, 1993.
Davidian leader David Koresh unquestionably knew that federal law enforcement agents, rather than unknown intruders, were on the scene and in fact had warned his followers of a future battle with such a "beast."
Indeed, the testimony established that the ATF agents, rather than Koresh and his followers, were taken by surprise and pinned down under heavy fire with limited ammunition. Under these circumstances, it seems fair to assume that the jury was not all that bothered by the possibility that some ATF gunfire indiscriminately raked the second story windows of the compound.
Most Americans, no matter how skeptical they may be of the law enforcement community, are not willing to let their fellow citizens choose which warrants to accept or reject - especially when that rejection is accompanied by machine gun fire.
The government's evidence as to who started the fires on April 19 was similarly devastating. In addition to expert testimony that the Davidians were responsible for setting the fires, FBI-installed listening devices recorded sect members joking about becoming "charcoal briquettes" and contemplating "catching fire" a day before the compound was destroyed.
And on the day of the fire, the listening devices recorded the chilling commands to "spread the fuel" and "light the torch." Given the Davidian involvement in starting and spreading the fire, it is not surprising that the advisory jury absolved the government on this question.
Lead plaintiffs' attorney Michael Caddell complained loudly about Judge Smith's jury instructions, particularly Smith's refusal to distinguish between child and adult victims, or to allow the jury find that the government's actions contributed to the Davidians' decision to commit suicide. But given the brief duration of the deliberations and the strength of the government's evidence, it is hard to imagine a different result even with Caddell's proposed changes.
What the Jury Did Not Hear
But there is a little more to the story. Theoretically important to the government's victory was the testimony the jury never heard or ruled upon, due to Judge Smith's pretrial rulings concerning the scope of the discretionary function exception to the FTCA.
Under this exception, the government is immune from suit for the negligent acts of its agents if they are performing discretionary, policy-type functions - such as deciding how to execute a search warrant - pursuant to statute, regulation or agency guidelines.
One could reasonably conclude that there were negligent acts by the ATF leadership on Feb. 28 and the FBI leadership on April 19. But the trial did not focus on these acts. The advisory jury was not asked, for example, to make findings as to whether the initial ATF raid was negligent.
It is generally conceded that this raid was a strategic and tactical disaster. It was undertaken without adequate contingency plans and despite the loss of the element of surprise. Moreover, Koresh probably could have been peacefully arrested, away from the Davidian compound, had the ATF only tried.
Similarly, the jury was not asked to advise on whether the FBI decision to conduct a high-risk tear gas assault on April 19, rather than waiting out the Davidians, was in itself negligent. The reasons typically given for the assault are that the Hostage Rescue Team was fatigued and that conditions in general were deteriorating.
But those reasons seem pretty flimsy, given that at least 18 children were dead after the assault. After all, protection of the children inside the compound was supposed to be a high, if not the highest, priority of the FBI during the siege.
Of course, had the jurors taken into account this additional evidence, it's not clear that their ultimate answers would have been any different. As it was, they had evidence before them from which they could have concluded that the tank demolition and the failure to have fire-fighting equipment available in time were deviations from a pre-approved plan of action.
Nevertheless, they remained unmoved - which isn't surprising, given the ample proof that the Branch Davidians started the April 19 fire. Solomon Wisenberg, a former Assistant United States Attorney in the Western District of Texas, is a partner in the Washington, D.C. law firm of Ross, Dixon & Bell.

"Waco's unanswered questions"

by Robert Bryce ("Salon Magazine," July 17, 2000)

Last Friday's verdict in the Branch Davidians' $675 million lawsuit against the federal government is reminiscent of a photograph taken shortly after Mount Carmel burned to the ground. The widely published photo shows federal agents sorting through the charred rubble of the Davidians' home. A pair of bulldozers is on the left. On the right is a flagpole topped by the American flag. Below it is the Texas flag. And below the Texas flag flutters a blue banner emblazoned with the initials ATF.
The photo tells a great deal about the government's attitude toward the Davidians in the hours after the deadly fire. "All those people may be dead," the Bureau of Alcohol, Tobacco and Firearms flag seems to say, "but we won the battle."
By winning the civil trial, the government has prevailed again over the Davidians. But the trial and the verdict have left both sides disappointed. U.S. District Judge Walter Smith Jr. limited both sides to 40 hours of presentation, a ruling that kept mountains of evidence out of court and many pivotal witnesses off the stand. There remains much that the public doesn't know about the deadly standoff, which resulted in the deaths of 80 Branch Davidians -- including 18 children under age 10 -- and four ATF agents.
Supporters of the federal position are pleased their side prevailed, but some are angry that the Department of Justice hasn't prosecuted federal miscreants who lied about what happened at Mount Carmel. And both sides fear that supporters of the Davidians may express their anger by taking action against the federal government.
"This will be more salt in the wound of people who were hoping that this trial would provide some kind of redemption for the Davidians," said Stuart A. Wright, a sociology professor at Lamar University who has written extensively about Waco. "This trial pacified them for a while. Now I'm wondering if we won't see more militancy from the people on the far right."
Wright's fears are apparently shared by the U.S. Marshals Service, which provided tight security during the four-week trial. At least four marshals were inside the courtroom each day, and police cars were stationed adjacent to the courthouse. After the verdict, when government lawyers emerged from the courthouse to talk with reporters, nearly a dozen security officers scanned the area, watching for signs of trouble.
Shortly after noon on Friday, Smith instructed the five-member jury to answer four questions: Did the Bureau of Alcohol, Tobacco and Firearms use excessive force and fire indiscriminately during the initial raid? Did FBI agents act negligently, going beyond their orders, in their use of tanks during the final assault? Did those tanks cause the April 19, 1993, fire? And were FBI commanders negligent in deciding not to have firefighting equipment available on the scene?
By 2:45, the jury had sided with the government on all the charges.
Smith did not allow anyone to question the jurors about their verdict. In fact, the jurors had already gone home when Smith came into the courtroom with the verdict in hand. "They didn't want to talk to anybody," Smith told the courtroom. Then, as he turned to the jurors' answers, Smith said, "I can't read the name of the presiding juror."
Thus, after seven years of waiting for a trial to answer key questions relating to one of the bloodiest police conflicts in American history, the press was not allowed to ask questions of the jurors, nor even learn their names.
One wonders what the jurors (two white women, one white man, one black woman and one black man) thought about the questions they were not told to answer. For instance, why, instead of sending 76 heavily armed, body-armor-clad ATF agents to Mount Carmel, didn't federal officials arrest David Koresh when he was shopping for groceries in Waco?
Nor did the jury hear or see any evidence dealing with other questions raised by the government's actions at Mount Carmel. The absence of such evidence was due to Smith's broad interpretation of the "discretionary function exemption" law that exempts federal officials from liability for actions they make in good faith while working for the government.
Important issues -- such as the use of large amounts of tear gas, 700 tons' worth of tanks and psychological warfare against the Davidians -- were scarcely mentioned during the trial. The jury did not hear about training the ATF undertook at Fort Hood with Army Special Forces units in close-quarters combat in the days before the Feb. 28, 1993, raid on Mount Carmel. And it heard few details about the instruction Special Forces medics gave ATF agents on how to insert intravenous needles in the field and how to treat sucking chest wounds.
Smith delayed discussion of the forward-looking infared (FLIR) videotape, which was taken during the FBI's final assault. The tape allegedly shows government assassins firing into Mount Carmel on April 19, during the final minutes of the siege. A hearing in the tape has been scheduled for early next month.
What's more, there was an almost complete lack of drama in the trial. Not one decision maker for the government took the stand. Jeff Jamar and Dick Rogers, the two men who headed the FBI's force in Waco, had be en expected to testify; during opening statements, government lawyers promised jurors they would appear. It's likely the fault of the lead lawyer for the Davidians, Michael Caddell, that the two men were not called. Caddell had them on his witness list but apparently changed his mind, hoping the two would be called by the government.
Nor were ATF commanders Phillip Chojnacki and Chuck Sarabyn called to the witness stand. The two decided to go ahead with the raid on Mount Carmel even though they knew the element of surprise had been lost, a fateful decision that, observers say, was responsible for the carnage that followed. According to the Treasury Department's own report, the two men later "lied to their superiors and investigators" about their actions.
The most powerful moment in the courtroom was the videotaped deposition of Attorney General Janet Reno. With shaking hands, she assured her questioners that whatever the FBI had decided to do at Mount Carmel was, in essence, OK with her. Reno (who famously told the public in 1993 that "the buck stops here") told the Davidians' lawyers that Rogers and Jamar were in "operational control" and that whatever decisions they made to demolish Mount Carmel with tanks "would have been in their discretion."
Davidians and their supporters had lost faith in Smith long before their civil suit went to trial, and now they are frustrated at having once again been defeated in Smith's courtroom. The staunch Republican judge has never hidden his disdain for the group, an offshoot of the Seventh-Day Adventists.
In 1994, Smith oversaw the criminal trial of several Davidians. Although the jury did not find any of them guilty of the main charges -- conspiracy and murder -- it found seven guilty of using a firearm in the commission of a federal offense. Smith initially said that the firearms charge would have to be set aside because it conflicted with the acquittal on the main charges. But two days later, he changed his mind and sentenced the Davidians to 40 years in prison for using automatic firearms, even though there was no proof that any of the accused had used that type of weapon during the shootout.
On June 5, the U.S. Supreme Court, in a unanimous decision, reversed Smith's ruling in that case, saying the firearms issue should have been submitted to a jury. The Davidians who were sentenced by Smith are likely to be resentenced to 15 years.
Lawyers for the Davidians tried many times to get the civil trial transferred out of Smith's courtroom, appealing the matter all the way to the Supreme Court, but to no avail.
Smith plans to reconvene the court on Aug. 2 to discuss and examine the FLIR tape. With the jury dismissed, the court will hear testimony from a few other witnesses, including David Oxlee, an expert from Vector Data Systems, a British firm that conducted a government-sponsored test of the the FLIR in March at Fort Hood. Caddell, lead attorney for the plaintiffs, is sufficiently disillusioned with Smith's court that he indicated he may not return to the courtroom again, even for the FLIR hearing. He had to "recognize that there will be no judgment against the government by Judge Smith," he said.
The end of the trial has not satisfied those who believe justice in the Waco matter requires further action. They want the Justice Department to investigate reports of misconduct by its employees.
Bill Johnston, a former high-profile federal prosecutor, believes Reno's agency has been lax when it comes to prosecuting the people who acted improperly at Waco. Johnston quit his job as an assistant U.S. attorney in the Waco case earlier this year after he blew the whistle on what he believed to be improper actions by his fellow employees. He wrote Reno a letter last year warning her that some of her employees were withholding information from her.
Johnston believes the agency should have prosecuted Sarabyn and Chojnacki forlying to federal investigators after the Mount Carmel tragedy. Treasury's report says the two lied when asked if they knew that the element of surprise had been lost and that Koresh and the Davidians were waiting for them. (Lying to federal investigators is a felony punishable by up to five years in prison.)
When it comes to Waco, Johnston says, the federal government has "a history of nonaccountability."
Like Wright, Johnston worries that the lack of accountability on the matter is creating hostility toward the government. "That's how you develop hatred to create an act like the one Tim McVeigh did by bombing the building in Oklahoma City," said Johnston.
Prosecuting Sarabyn and Chojnacki "would have helped. It would have been the right thing. It would have let people see that the government process works. But the Justice Department doesn't do the right thing," he said. "They do what is easy."
Johnston is also angry that the government hasn't prosecuted Marshals Service employees who lied after the standoff. Shortly after the siege began, two marshals falsely accused two other Waco-based marshals, Parnell McNamara and his brother, Mike, of being the source of the leak that let Koresh know ATF was coming. The McNamaras, among the most famous lawmen in the Lone Star State, had to sue the agency to clear their names, and the marshals who lied about them were promoted. That matter, combined with Reno's decision not to prosecute the two ATF commanders, is what led Johnston to leave the DOJ. "I'd had a bellyful of all the silliness," said Johnston.
In the wake of the verdict, government lawyers expressed hope that Americans would forget about Waco. U.S. Attorney Michael Bradford, who led a team of eight Justice Department lawyers in the lawsuit, told reporters that it was "time we moved on from this matter." The jury's verdict, he said, "shows that the responsibility for this tragedy is with David Koresh and the Branch Davidians."
Ever since the ATF flag flew over the charred ruins of Mount Carmel, the government has laid all of the blame for the tragedy on Koresh and his followers. Now that the long-awaited trial is nearly over, only time will tell whether Americans can simply "move on" and let the government avoid shouldering some of that blame.

"Waco trial is over, but Danforth's work remains"

by William Freivogel ("St. Louis Post-Dispatch, July 16, 2000)

A jury has voted to clear the government of wrongdoing in the 1993 siege of the Branch Davidians, but that may not be the nation's final verdict.
Still ahead is the report of special counsel John C. Danforth, appointed last September by Attorney General Janet Reno to conduct an independent investigation of the deadly siege in which about 80 Davidians died. Congressional committees also have long-running investigations.
In addition, the monthlong trial had a limited scope. Some controversial actions were not before the jury -- such as the wisdom of sending 76 armed men to arrest David Koresh when authorities could have nabbed him when he left the compound.
Nor does the jury's verdict that the government wasn't negligent mean that the government didn't make mistakes. The government itself has admitted to errors of judgment -- such as sending in agents to arrest Koresh when he knew they were coming and failing to heed the advice of FBI negotiators who counseled a less controversial approach toward the Davidians.
Still, the verdict of five anonymous citizens of central Texas is a tremendous boost for the government and the law enforcement officers who risked their lives or died at Waco.
Jurors left the courthouse without responding to questions, so no one knows what they were thinking. But the government emphasized the argument that the Davidians should bear responsibility for resisting a lawful search warrant and then, the government asserts, burning down their own building.
U.S. District Judge Walter S. Smith Jr. has to decide whether to accept the verdict that the advisory jury delivered on Friday. But both sides in the civil lawsuit say that's a foregone conclusion.
Before the trial
In some ways, the Branch Davidians had lost their case before the trial began. The national spotlight dimmed quickly after Danforth's appointment.
For one thing, former Sen. Danforth, R-Mo., located his investigation in St. Louis and imposed a news blackout. Faced with a black hole in the middle of the country, the national press dropped off the story.
In addition, the new evidence that had led to the Danforth inquiry seems to have turned into a dead-end. That new evidence was the FBI admission that it had fired pyrotechnic military tear gas on the final day of the siege when the fire broke out.
The admission at first broke the case open because Reno had denied for years that any fire-producing tear gas had been fired. Suddenly there was reason to believe the tear gas could have started the fire and that the FBI had covered up its use.
In addition, there were the sensational allegations that flashes on infrared tape of the last day of the siege were from government agents firing into the complex to trap the Davidians inside during the fire. And there was the claim that the shadowy Delta Force of Pentagon commandos was involved.
As it turns out, there is no proof of military tear gas being fired at the building itself - just three canisters fired in a nearby field. And there is plenty of proof the Davidians set the fire themselves.
The Delta Force allegation proved to be a dead end. No commandos got near the complex with guns. And, Danforth's test of the gunfire theory undermined its credibility. A British firm concluded last spring that the flashes on the infrared tape were from solar reflections, not guns. As a result, Smith separated that issue from the trial.
As the trial approached, the answer to the "dark questions" that Danforth had said he would probe seemed to be no.
One other development may have accounted for the improved government position - the decision to put J. Michael Bradford, the U.S. attorney from Beaumont, Texas, in charge of the case. Bradford, a tall Texan with a slow east Texas drawl, developed a rapport with Smith and came across as believable to the jury in a case where believability was the ball game.
Mike Caddell, a young, smooth-talking Houston personal injury lawyer who wore cowboy boots under his dark suits, had performed a minor miracle in getting the Davidians' case into court. But he may have come off to the jury as a little too smooth.
The jury instruction
The death knell of the Davidians' case was the jury instruction that Smith announced at the end of testimony on Thursday.
Smith reduced the complicated lawsuit to a few simple questions for the jury - far too simple in Caddell's eyes. The lawyer accused Smith of trying to "engineer a verdict" - a charge the judge hotly denied in court on Friday. But the denial will not stop claims by the Davidians that the trial was unfair because Smith is biased against them. He is also the judge who presided over the 1994 criminal case against the Davidians.
In presenting his case, Caddell had taken pains to distance the women and children he represented from Koresh, whom he called "evil." But the judge's jury charge lumped together all of the Davidians.
Caddell had submitted a proposed set of jury questions that would have instructed jurors to weigh the fault of each Branch Davidian against the fault of the government. But Smith instructed the jury to weigh the fault of the Davidians as a whole against the FBI.
Caddell also objected that the judge told the jurors they could consider whether the Branch Davidians had continued to resist arrest during the siege, between Feb. 28 and April 19. Caddell thought this violated an agreement that the government had made. The government lawyers said in a formal agreement it would not try to blame the Davidians for not leaving the complex. In return, the Davidians couldn't introduce evidence of government misconduct between Feb. 28 and April 19.
By allowing the government to blame the Davidians for not submitting to lawful arrest during the siege, Smith made meaningless the government concession not to blame the Davidians for staying in the complex, said Caddell.
Here is the way Smith sent the case to the jury:
Question 1
Did the ATF use excessive force by either firing without provocation or firing indiscriminately?
Smith told the jurors they were not to consider the controversy about the ATF's use of 76 officers to attempt to execute the search warrant for illegal weapons on Feb. 28. Smith already had ruled that that method of serving the warrant was within the government's discretion.
Nor was the jury to challenge the validity of the warrant. Smith has ruled that the warrant was legal.
In considering whether ATF agents used excessive force, the jurors were to take into account that the agents are law enforcement officers with a "duty to execute all lawful search and arrest warrants" and the authority to use "force," the judge said.
A law enforcement officer has the "right to protect himself from an attack made upon him by one resisting arrest," even if that involves deadly force, the judge told the jury. In addition, "every citizen has a duty to submit to a lawful arrest or search," he said.
People are not justified in using force in resisting a warrant unless a law officer uses excessive force before the resistance, the judge told the jury.
For the Branch Davidians to have won on this issue, the jury would have had to disbelieve the stories of more than two dozen ATF agents who testified that the Davidian complex erupted in gunfire after they had taken only a few steps toward the building.
Question 2
Did the FBI act negligently on April 19 by: 1. Using tanks to penetrate the complex in violation of the plan approved by Reno; 2. Starting or contributing to the spread of the fire. 3. Deciding to have "no plan to fight a fire" despite Reno's directive requiring "sufficient emergency vehicles to respond both from a medical and any other point of view."
Caddell argued that the FBI commanders on the scene - Jeff Jamar and Richard Rogers - violated the plan Reno had approved when they used converted tanks during the last hour of the siege to begin to knock down the building.
The plan called for a gradual insertion of tear gas and did not provide for knocking down the structure until 48 hours after the tear-gassing began.
But five hours after the gassing began, one tank began knocking into the back of the complex while another knocked into the front. On videotapes from the siege, it looks like the tanks are knocking down the building. But the drivers of the tanks, their commanders and Reno testified they were knocking into it to insert tear gas into an interior room where the Davidians had escaped the tear gas.
In knocking into the building, Caddell said, the tanks may have knocked over flammable liquids that could have caused the fire. He also suggested, but did not prove, that FBI agents might have fired military style tear gas. FBI agents have denied that and no military rounds were found in the building.
Caddell has admitted that Davidians may have started one of three fires that broke out within two minutes of one another just after noon April 19. Government listening devices also picked up conversations of Davidians talking about pouring and lighting fuel.
Caddell also maintained that the FBI tanks blocked exits and hindered the ability of Davidians to escape the fire. But Smith told the jury it could take into account the fact that some Davidians surrendered to authorities during the siege, while those in the complex "continued to resist the execution of the search and arrest warrants."
Finally, Caddell maintained that the decision by FBI commanders Jamar and Rogers not to have a special firefighting plan for April 19 violated Reno's directive calling for "sufficient emergency vehicles."
An FBI memo dated April 9 quotes Rogers and Jamar as saying they had "no plan to fight a fire." But Bradford, the government lawyer, said a plan was developed after April 9 and before April 19. Yet the medical expert who developed that plan disputed Bradford's claim.
In any event, Bradford said, fire engines could not have gotten close to the fire because Davidian gunfire would have endangered the firefighters.
Ironically, Jamar and Rogers, the two key commanders whose actions were called into question, were not called by either side for strategic reasons. Danforth's investigators, by contrast, interviewed both men at great length.
The nation will see whether Danforth comes to different conclusions when he issues his report, expected later this year.

"FBI agent welcomes verdict on Waco siege; filmmaker disputes it"

by Terry Ganey ("St. Louis Post-Dispatch," July 16, 2000)

An FBI agent who negotiated with the Branch Davidians during the 1993 standoff near Waco, Texas, said he hoped the jury verdict absolving the government of responsibility for their deaths would begin rebuilding public confidence in law enforcement.
"This case had done more damage than anyone can ever imagine," said Byron Sage, now retired from the FBI. "It's time to reverse that, based on the facts in this case and what the jury found."
Sage said he was not only pleased with the jury's decision Friday but glad that it had reached a verdict so quickly - in just 2 1/2 hours.
"That's a true testament as how clear the facts are," Sage said.
One reason some members of the public doubt the government's version of what happened at Waco is because of two documentary films by Mike McNulty, who has blamed the FBI and the Bureau of Alcohol, Tobacco and Firearms for the Davidian deaths. Despite the verdict, McNulty said he stood by his findings.
"The jury shortchanged the Davidians," McNulty said. "There were too many live issues that had to be deliberated with care and detail. Obviously they didn't deliberate."
Judge Walter S. Smith Jr. refused to permit the jury to consider some of the Davidians' claims, citing a law that gives discretion to federal officials. For example, the FBI's decision to use converted tanks to pump tear gas into the sect's complex was not an issue for the jury to decide.
Near the end of the siege, as about 30 women and children huddled in a concrete room in the center of the complex, a tank pumped the gas into the structure in an attempt to force them out. Most of the women and children who died were found in the concrete structure. Some had died of bullet wounds but others died from asphyxiation and smoke inhalation from a fire that followed the gas attack.
Phil Arnold, a Houston-based theologian who wanted to talk the Davidians out of their complex during the standoff, said he believed the gas attack on the concrete structure was the strongest evidence of excessive federal force.
"Had they (the jurors) been able to consider that, then perhaps they would have concluded the deaths of those victims could be laid at the doorstep of the government authorities," Arnold said.
Dick Reavis, author of "The Ashes of Waco," covered the trial as a reporter for the San Antonio Express-News. He said he believed it was hard for the jurors to understand the argument by the Davidians' lead lawyer Mike Caddell that while the Davidians bore some blame for what happened, it was time for the government to shoulder its share.
"That's the kind of reconciliation that might work with one's spouse," Reavis said. "Jurors are not going to understand that. If this guy (Caddell) thinks he's partly to blame, what's he doing in court? He defeated himself by trying to distance his clients from the rest of the Davidians."
The civil trial was the second time that issues surrounding the deadly raid and the subsequent siege have been before a jury. In 1994, a jury in San Antonio considered criminal charges against the Davidians. It reached a compromise verdict, exonerating 11 defendants of conspiracy and murder but finding five guilty of manslaughter and two of weapons charges.
Sarah Bain, who was the jury forewoman in that case, said she was disappointed with the civil jury's verdict.
"It's still my belief that the government did have a hand in all of those deaths," Bain said. "They knew the teachings of the Branch Davidians that they would have a conflict with the government. The government played right into that and did nothing to assuage the fears of the Branch Davidians."
Although the jury verdict is advisory and Smith has the power to ignore its findings, Bain said she didn't believe Smith would overrule the panel. Smith presided over the criminal trial as well as the civil case, although lawyers for the Branch Davidians tried to get him removed.
"I was hoping this was something that could put an end to the unrest that still exists across the nation," Bain said. "Even though I think it's basically over, it won't satisfy the minds of a lot of the American public."

Waco, FBI and the Branch Davidians: Updates

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