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"Davidians have prison terms cut"

("Dallas Morning News," September 20, 2000)

A federal judge has more than halved the federal prison sentences of five Branch Davidians and also cut five years from the sentence of a sixth, ensuring that all could be free within less than six years, a defense lawyer said Tuesday.
The order, issued Friday by U.S. District Judge Walter S. Smith Jr., followed a recent ruling by the U.S. Supreme Court that the Waco trial judge had erred in his original sentencing of sect members on federal weapons charges.
Five of the Branch Davidians convicted on manslaughter and weapons charges in a 1994 criminal trial were sentenced to a total of 40 years in federal prison, and a sixth was sentenced to 20 years.
But the high court set the stage for Friday's order in its ruling last winter that Judge Smith lacked authority to impose 30-year sentences for five of the sect members convicted on weapons charges. Each of the five also received an additional 10 years for manslaughter.
In his two-page order, the judge wrote that he was revising each of the sentences without further court proceedings because government lawyers had informed the court that there is "no desire to attempt to retry the defendants."
Although Davidian Livingstone Fagan did not appeal his 40-year sentence, Judge Smith wrote that his prison term would be cut to 15 years because "the court believes it would be manifestly unfair not to reduce his sentence, also."
Also receiving 15-year terms as a result of Friday's order are Branch Davidians Brad Branch, Kevin Whitecliff, Jaime Castillo and Renos Avraam.
Sect member Graeme Craddock, originally sentenced to 20 years, also received a 15-year prison term.
The 15-year prison sentence of a seventh Branch Davidian, Paul Fatta, was not affected by Friday's ruling.
Their convictions stemmed from a 1993 confrontation at the sect's rural compound near Waco. Four agents of the federal Bureau of Alcohol, Tobacco and Firearms died in a gun battle that broke out as they tried to search the building and arrest leader David Koresh on weapons violations.
An ensuing standoff ended 51 days later with a fire that consumed the compound with Mr. Koresh and more than 80 followers inside.
Eleven surviving sect members were tried in San Antonio almost a year later. Three were acquitted of all charges, and a federal jury also acquitted the remaining Branch Davidians on the most serious charge of conspiracy to murder federal agents.
Instead, Mr. Fatta and Branch Davidian Ruth Riddle were found guilty of weapons charges, and the remaining sect members were found guilty of manslaughter and weapons violations. Ms. Riddle was freed after serving a five-year sentence.
"My calculation is that in about five and a half years, they'll all be out," said Richard Ferguson, a Waco attorney who helped defend Mr. Branch.
Although his client and the other Branch Davidians believe they should have been released years ago, Mr. Ferguson said, the sentence reductions are welcome because they will probably allow the imprisoned sect members to be transferred to lower-security facilities.
"I assume they'll be reclassified and sent to a more hospitable environment, and that will put them in a better frame of mind. They've been pretty angry and bitter," he said.

"Davidians' lawyer wants to present new evidence"

by Terry Ganey ("St. Louis Post-Dispatch," September 19, 2000)

ST. LOUIS - A lawyer representing some Branch Davidians in their wrongful-death claims against the government has asked a federal judge to hold a hearing to consider additional evidence in the case.
Mike Caddell, the lead lawyer for the sect's survivors, wants a chance to show U.S. District Judge Walter Smith Jr. why the Davidians refused to leave their Mount Carmel complex during the government's 51-day siege in 1993.
In a separate filing, government lawyers argue that Smith should not recuse himself from the case. Last week, Caddell filed a motion saying Smith was biased against the Davidians because he had made prejudicial remarks about a Davidian witness and complimented a government lawyer on his performance.
Smith presided over a four-week civil trial in Waco, Texas, this summer on claims by the Davidians that government actions contributed to the deaths of about 80 people during the fiery end of the siege. An advisory jury absolved the government of wrongdoing. Smith has not yet issued his verdict.
Caddell said that because of Smith's rulings, neither the judge nor the jury heard evidence of why the Davidians refused to leave their complex from Feb. 28 to April 19, 1993. Caddell said he was prepared to introduce testimony from five survivors who would say that the misconduct of federal agents during the siege persuaded them that it was safer inside Mount Carmel than it was to surrender.
According to a motion Caddell filed with the court, the Davidians - especially women and children - were frightened by FBI tactics that included:
- Psychological warfare involving search lights and loud taped recordings of rabbits being butchered and Tibetan chants.
- The firing of stun grenades at people who did leave the complex.
- Mooning and obscene gestures by the agents surrounding the complex.

"Judge Reduces Davidians' Sentences"

(Associated Press, September 19, 2000)

WACO, Texas (AP)--A federal judge has reduced prison terms for six Branch Davidians, three months after the Supreme Court said he overstepped his authority by exceeding federal sentencing guidelines.
U.S. District Judge Walter S. Smith had sentenced Kevin Whitecliff Jaime Castillo, Renos Avraam and Brad Branch to 30 years in prison for using firearms during the federal government's 1993 raid on the Davidian's compound near Waco, Texas.
However, on Monday, he reduced that term to just five years. He also reduced the sentence of Graeme Craddock, who was sentenced to 10 years for possession of a grenade and 10 years for using a firearm, to 15 years.
Although he didn't appeal, Livingstone Fagan also earned a reduced sentence from 30 years to 5 years on the weapons conviction after Smith said it would be ``manifestly unfair'' not to cut Fagan's sentence.
All of the men still must serve 10 years prison sentence for their voluntary manslaughter convictions.
The Supreme Court on June 5 set aside the lengthy prison sentences given to the Branch Davidians after it ruled that Smith misused an anti-gun law to increase their punishment.
Davidian attorneys said they were buoyed by Monday's ruling.
``We are very happy for our clients,'' said Waco attorney Richard Ferguson. ``Forty years is almost like a life sentence without parole for men who are in their 30s and this gives them a chance at having a life.''
The six Davidians were convicted in 1994 in the killings of four federal agents during a botched Bureau of Alcohol, Tobacco and Firearms raid on the compound outside Waco.
The raid led to a 51-day standoff that ended when flames swept through the compound. David Koresh and some 80 followers died.

"Attorney for Davidian survivors asks judge to step down from case"

by Tommy Witherspoon ("Waco Tribune-Herald," September 13, 2000)

An attorney for Branch Davidian survivors has asked that U.S. District Judge Walter S. Smith Jr. of Waco step down from the case, alleging that the judge repeatedly displayed bias against the plaintiffs throughout this summer's wrongful-death lawsuit against the government.
Michael Caddell of Houston, lead attorney for the Branch Davidians in their civil lawsuit, has asked Smith to recuse himself, declare a mistrial in the case and transfer the lawsuit to another federal judge.
"This court's actions demonstrate both a class bias against the plaintiffs and a predetermination of the issues in this case," Caddell wrote in a 17-page motion that he sent to the court.
The court clerk's office had not received the motion by the close of business on Tuesday.
"The appearance of partiality is profound and infects every aspect of this proceeding," Caddell wrote. "These issues are particularly important when, as here, the trial judge is also the trier of the fact."
Smith, who also presided over the Branch Davidian criminal trial in San Antonio in 1994, selected a five-person advisory jury to assist him in the civil lawsuit. The jury cleared the government of wrongdoing in the Feb. 28, 1993, raid on David Koresh's Mount Carmel compound and in the April 19, 1993, fire in which Koresh and 75 followers died.
Smith has not issued his final judgment in the case. Caddell's motion seeks to have the judge removed before he does.
Smith did not return a phone message to his office.
"It became clear as the trial proceeded that the jury's purpose was merely to camouflage the court's deep-seated prejudices against the plaintiffs," Caddell's motion alleges.
Caddell and the judge locked horns on the next-to-last day of trial after Caddell accused the judge of trying to engineer a verdict through his jury instructions to ensure that the government would prevail. Caddell charged the judge's instructions were contrary to law, accusations the judge angrily denied the next morning.
Caddell repeated those accusations in his recusal motion. It's the second time Caddell has tried to remove Smith from hearing the civil case, pursuing the first recusal motion all the way to the U.S. Supreme Court in 1997.
Thom Mrozek, a Justice Department spokesman, said Tuesday that he had not seen Caddell's motion and declined comment. U.S. Attorney Mike Bradford of Beaumont, who represented the government in the lawsuit, was out of town on Tuesday and did not return a phone message to his office.
Caddell also charges that government attorneys gave gifts to Smith's staff at the conclusion of trial on July 14. The gifts reportedly were T-shirts labeled "WWPD?," an apparent take-off on the popular Christian phrase "What Would Jesus Do?"
"That the impropriety of accepting these small gifts was not immediately apparent to this court's personnel is further evidence of this court's inability to be fair and objective in this matter," according to the motion.
The motion contends that the judge also showed bias during disputes over transcriptions from government listening devices placed inside the compound during the 51-day standoff. Attorneys for the plaintiffs and government disagreed over what was said on critical portions of the bug tapes, prompting dueling transcriptions from both sides.
During a hotly contested debate over one of the transcripts, Smith reportedly told Caddell's wife and co-counsel Cynthia Chapman during a bench conference that "your transcripts are bullcrap, Ms. Chapman."
"Such crude language from a federal judge is particularly surprising given the Western District's lengthy rules on 'Courtroom Etiquette,' " the motion states.
During another bench conference with the judge and attorneys, Smith reportedly referred to Branch Davidian Livingstone Fagan as a "crazy murdering son-of-a-bitch," Caddell alleges.
"Again, hardly appropriate courtroom etiquette — but apparently the local rules did not apply to the court's treatment of plaintiffs," Caddell writes.
Fagan is serving a 40-year prison term on manslaughter and weapons convictions.
Caddell also alleges that Smith patted government attorney James Touhey on the back, shook his hand and said, "Good job, Mr. Touhey" during a break after Touhey's cross-examination of Branch Davidian Clive Doyle.

"Davidians' attorney vents anger at judge"

by Lee Hancock ("Dallas Morning News," September 13, 2000)

Continuing a legal grudge match, the lead lawyer in the Branch Davidian wrongful death lawsuit filed a caustic motion Tuesday asking U.S. District Judge Walter S. Smith Jr. to remove himself and declare a mistrial in the case.
Prosecuting whistleblower could backfire

The 18-page motion, filed by Houston lawyer Michael Caddell, alleges that the judge's behavior, comments and rulings in the four-week trial showed "profound" and "deep-seated prejudice" that denied a fair trial to sect members and their families.
"There was a pattern there, and it was very clear that Smith felt a great deal of personal animosity toward not only us but anyone associated with the Davidians. That revealed a bias against us that we could not overcome," Mr. Caddell said Tuesday.
The government's lead trial lawyer, U.S. Attorney Mike Bradford of Beaumont, said the motion was unfounded. "The judge was fair in the trial," he said.
The pleading represents a reversal from Mr. Caddell's previous statements that he would not appeal the case arising from the 1993 Branch Davidian siege near Waco.
Judge Smith will respond to the motion at a later date. He has not issued a final ruling on the case. A five-member advisory jury decided in July after hearing four weeks of evidence that sect members alone were responsible for the deadly tragedy. More than 80 died on April 19, 1993, when the compound burned about six hours into an FBI tank and tear-gas assault.
Lawyers for the sect had tried to convince jurors that government negligence helped cause the final disaster. . The trial ended with an unusually public and personal confrontation between Judge Smith and Mr. Caddell.
Just before both sides made closing arguments, the Houston trial lawyer appeared before reporters and denounced the judge's jury instructions as biased and aimed at "engineering a verdict" against his clients. That prompted an equally angry denial from Judge Smith, who rebuked Mr. Caddell at length before a packed courtroom.
After the jury verdict, Mr. Caddell said he expected the judge to rule against his clients and would not appeal what he considered "a lost cause." He told the judge he would not attend a subsequent hearing in the case, saying he had endured enough abuse from the Waco jurist.
New plan
But in his Tuesday motion, Mr. Caddell indicated he plans to appeal. The motion renewed what he conceded had become a "personal" fight, repeating his complaint that the judge fashioned "results-oriented" jury instructions that failed to follow the law. The motion argued that the judge's actions throughout the trial included a "pattern" of bias that proved he should have stepped down when the plaintiffs first sought his recusal in 1996.
Their original motion contended that Judge Smith could not be fair because he presided over a 1994 criminal trial arising from the siege. In that trial, eight Branch Davidians were convicted of weapons charges and manslaughter for the deaths of four federal agents killed in a gunfight that began the siege. It erupted when federal Bureau of Alcohol, Tobacco and Firearms agents tried to search the Branch Davidian compound and arrest leader David Koresh on weapons violations.
The judge refused to step down, and appelate courts upheld his decision.
In Tuesday's motion, the plaintiffs allege that the judge showed a "clear and consistent class bias" in the civil trial by exhibiting hostility toward the defendants' lawyers and witnesses.
In one instance, the motion said, Judge Smith told lawyers during a bench conference that one videotaped defense witness, Livingston Fagan, was a "lying, murdering son of a bitch." Mr. Fagan, among the convicted Branch Davidians, admitted in his deposition that he shot one federal agent.
The motion says the judge told lawyers during a heated discussion in chambers early in the trial that "if you don't think I've got the guts to disregard this jury verdict, you're wrong."
And the motion complains that Judge Smith told jurors the government's transcripts of surveillance recordings were prepared by "a professional," while plaintiffs' transcripts came from lawyers with a stake in the outcome, or an "oar in the water."
He told plaintiff's lawyers that their transcripts were "bullcrap," the motion says, even though their transcripts were later shown to be more accurate to the government's.
Mr. Caddell's motion also said the judge acted improperly by shaking the hand of a government lawyer during a recess and congratulating him for a "a good job" after his grueling cross-examination of another Branch Davidian .
Prosecutor recalls
Mr. Bradford said that complaints about congratulating a government lawyer outside the jury's presence were misplaced, noting that Judge Smith also publicly complemented plaintiffs' lawyers. Mr. Bradford added that he recalled no bench conference in which the judge denounced Mr. Fagan.
Mr. Bradford said he had never seen such a motion filed before a judge has decided a case. There is no basis for it, no basis to challenge this judge," he added.
Though he has not issued what is expected to be a lengthy final ruling, Judge Smith has offered some indications that his opinion in the case will mirror the jury's decision.
Late in the four-week trial, he told a reporter that sect members broke the law by resisting the federal search and by refusing to surrender during the 51-day siege. He said those violations probably trumped plaintiffs' arguments that government agents acted negligently in efforts to end the standoff.
The judge noted he might be in "one hell" of a position with his decision to impanel an advisory jury for a type of civil case normally decided by a judge alone.
During the civil trial, the judge sometimes reacted emotionally to graphic evidence. After spending a weekend reviewing the government's excerpts from surveillance recordings made in the compound during the siege, he remarked during a break in the case that the tapes would "blow" the plaintiffs "out of the pond."
Those tapes included a conversation in which Mr. Koresh laughed about seeing an ATF agent killed with a gunshot to the head and another in which an unidentified Branch Davidian joked one day before the compound fire that fire trucks could not get near the building.
Expert views
Legal experts say the plaintiffs' motion appears aimed at convincing an appeals court to find an "accumulation of error" or a demonstrated appearance of bias by the trial court judge.
Such arguments are difficult to win, even on appeal, said Steven Lubet, a Northwestern University law professor and judicial ethics expert. Judges typically are not disqualified for "isolated statements in the course of a long trial," and are allowed to react to evidence that they hear, he said.
But another key issue in such cases is appearance of propriety or "whether a judge's impartiality might reasonably be questioned," said Leslie W. Abramson, University of Louisville law professor. "In that situation, you're looking not at the fact of bias but how it would appear to a reasonable person."
He added, "It really takes the judge saying something egregious to get an appellate court to pay attention."

"Judge in Waco case used obscenity in referring to Davidian witness, filing says"

by Terry Ganey ("St. Louis Post-Dispatch," September 12, 2000)

The federal judge who presided over the Branch Davidians' wrongful death trial this summer called one Davidian witness "a crazy, murdering son-of-a-bitch" during a discussion with lawyers, according to a motion filed Tuesday.
The Davidians' attorney, Mike Caddell, cited the alleged statement by U.S. District Judge Walter Smith Jr. as a sign that Smith was biased against the Davidians and should be recused from further considering the case.
Caddell's motion seeks to move the case from Smith's court in Waco, Texas, to another federal court.
Smith had no immediate reaction to the motion.
"He is not going to respond to that," said a clerk in Smith's office.
Smith presided over a four-week trial of the Davidians' claims that government agents contributed to the deaths of about 80 members of the sect at its Mount Carmel complex near Waco in 1993. A five-member advisory jury absolved the government of wrongdoing on July 14. Smith has yet to issue his own verdict.
Caddell's motion said Smith issued rulings and made statements during the trial that clearly demonstrated he favored the government.
The remark that Caddell attributed to Smith referred to Livingston Fagan, a Davidian convicted of voluntary manslaughter and weapons charges. When Caddell attempted to introduce a statement from Fagan, Smith called Caddell and government lawyers to the bench.
According to Caddell, Smith said he would be willing to exclude Fagan's testimony if the government wanted. It was then, according to Caddell, that Smith made the remark.
Government lawyers wanted to use a statement from Fagan, too, and his testimony was entered. Caddell also said that during a trial recess, Smith had patted a government lawyer on the back, shook his hand and congratulated him on his cross-examination of another Davidian witness.
"It became clear during the course of trial that this court's class bias against all occupants of Mount Carmel, including the minor children, would so influence this court's decision-making that any meaningful consideration of the issues and facts would be impossible," Caddell said.
Caddell said Smith improperly prevented the introduction of evidence and testimony that could have helped the Davidians' case. He said the judge admitted that he had not read some evidence introduced by the Davidians. The judge limited the time the Davidians' lawyers had to present their arguments and prevented them from pointing out to the jury at the trial's close that government lawyers had failed to produce the testimony of two key government agents as they had promised, Caddell said.
A previous attempt to recuse Smith was unsuccessful.

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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