WACO The thorniest question in the upcoming Branch Davidian wrongful death trial - whether government agents fired at the sect at the end of a deadly 1993 siege - will be decided not by a jury but by a federal judge alone, following a Monday court ruling.
U.S. District Judge Walter S. Smith Jr. announced that he was separating that issue from the trial scheduled to begin on June 19 because the chief expert from a British firm appointed by the court to help resolve it is ill and unavailable to testify until late summer.
The announcement came during a hearing in which Judge Smith moved briskly through final pretrial issues and warned lawyers "this trial is not going to last as long as you anticipated."
Attorneys on both sides said after Monday's hearing that they expect the initial trial on alleged government negligence will take three to four weeks..
The judge's decision to strip away the issue of government gunfire on April 19, 1993, came only weeks after he surprised both sides in the case by announcing he would ask a jury to help him decide the wrongful death case. Federal trials involving government agencies are typically decided by judges alone, but Judge Smith said he was calling an "advisory jury" because of the unusually high level of national public interest in the case.
He later rejected a secret government bid, filed several weeks ago under court seal, to reconsider the decision to bring a jury into the case.
The judge told both sides on Monday that he "probably" would limit the jury's role to deciding whether government negligence contributed to deaths or injuries of sect members. That would leave the judge alone to decide how much damages - if any - the government would have to pay.
Judge Smith said a pool of 50 potential jurors would be summoned next Monday morning to the federal courthouse to fill out a two-page questionaire. Both sides predicted that a jury of six and one alternate will begin hearing evidence by mid-week.
Because of publicity and controversy surrounding the incident, Judge Smith said he is considering keeping secret the identities of the seven jurors chosen for the civil wrongful death trial. He took a similar step in 1994 with the San Antonio jury that convicted eight surviving Davidians on manslaughter and weapons charges arising from the siege.
The removal of the government gunfire issue leaves four other questions for the Waco civil jury:<> Did federal ATF agents fire indiscriminately or use other excessive force when a gunbattle broke out on Feb. 28, 1993, as they tried to raid the compound and arrest Davidian leader David Koresh for alleged weapons violations?
Was the FBI negligent 51 days later when they had no plan to fight any fires that might break out when they began using tanks to ram the sect's rickety wooden building and inject tear gas?
Did the agents' actions during the April 19, 1993, tear gas assault contribute to the start or spread of a fire that consumed the compound with Mr. Koresh and more than 80 followers inside?
Finally, did the FBI violate Washington-approved operations plans that day by initiating premature demolition of the building?
Government lawyers have insisted that the government did everything possible to encourage a peaceful surrender before the sect leaders ordered a mass suicide. They have maintained that no one from the government's side fired a gun shot on April 19.
The government's defense team has noted that the court's own experts recently reported that flashes on an infrared video recorded from an FBI airplane on April 19 did not come from gunfire.
Lawyers for the sect have criticized that finding, noting that one employee from the British firm, Vector Data Research, acknowledged in a recent deposition that neither he nor a second Vector analyst heavily involved in the study were qualified to identify gunfire on infrared recordings.
But their efforts to challenge Vector's report will now be delayed until at least August, when a third Vector employee has recovered from recent prostate surgery and can travel to the U.S. to testify.
One lawyer representing the estates of three Davidian children said Monday's ruling would cripple efforts to convince jurors that the government must be held accountable for wrongdoing and missteps in Waco.
"I am extremely disappointed," said attorney James Brannon of Houston. "This takes away the single most damning issue against the government from the eyes of a jury."
Michael Bradford, one of the government's lead lawyers, said the judge's decision was "significant" for the government's effort to prove its agents did nothing wrong.
He said that removing what is expected to be complex, competing testimony from infrared experts from both sides would help shorten the upcoming jury trial.
Houston lawyer Michael Caddell, who has led the much of the plaintiffs' efforts in the case, said taking the gunfire issue away from the jury could "raise credibility issues" not only for any court verdict but also for an ongoing independent counsel's investigation of the government's handling of the siege.
A recommendation by Waco independent counsel John C. Danforth led Judge Smith to appoint the British firm late last year to oversee a March field test and present a written report to help resolve whether gunfire caused the flashes on the FBI infrared video.
Mr. Caddell predicted Monday that other aspects of the plaintiff's presentation to a jury will not be "impeded that much" by the removal of the gunfire issue.
"You've got tanks knocking the building down. You've got them firing more than 400 tear gas rounds in," he said. "A jury can conclude that these people were not unreasonable in concluding that the safest place to be was inside Mt. Carmel."
Monday's hearing left unresolved several disputes over the scope of evidence that each side will be allowed to present to jurors.
Responding to a challenge by Mr. Caddell, government lawyers conceded that they would not try to show jurors autopsy photos of four ATF agents killed during the initial Feb. 28 shootout with the sect.
They then asked the court to prevent Mr. Caddell from introducing similar photos of Davidians killed in the standoff. Even after Mr. Caddell said he had no plans to introduce photos of burned sect members, Mr. Bradford told the judge that the government objected to the introduction of photos of Davidian children taken before the April 19 fire. "I anticipate what they're going to do is introduce all these pictures of 5-year-old children."
Judge Smith left unresolved a bid by the plaintiffs to keep the government from bringing the sect1s large arsenal of weapons into the courtroom. More than 200 weapons, including more than 40 illegally converted machine guns were recovered from the compound wreckage after the fire.
Mr. Caddell argued that the plaintiffs had already agreed to accept the government's claims about the number of guns found inside the burned compound, adding that allowing the guns or even pictures of them into the courtroom would only inflame and prejudice jurors.
But Mr. Bradford argued that jurors needed to see photos and some examples of the sect's weaponry to understand the FBI's decision not to bring fire trucks in on April 19 until after the building was completely engulfed.
"We think that's vitally important," Mr. Bradford said. "They're going to have to be evaluating not only the credibility of the FBI's decision. ... They're also going to have to be deciding who initiated the gunfight on Feb. 28.
Allegations that FBI agents fired into David Koresh's Mount Carmel compound, preventing more Branch Davidians from escaping the April 19, 1993, fire, will not be submitted to a jury in the wrongful-death trial against the government, a judge ruled Monday.
U.S. District Judge Walter S. Smith Jr. decided during a pretrial conference with attorneys in the case that he will resolve the dispute later this summer.
The judge took the issue out of the jury's hands because a court-appointed expert is not currently well enough to travel from England to testify and the judge didn't want to postpone the trial again. The trial is set to begin Monday in Waco's federal court.
Smith also told parties in the suit that he likely will dismiss the advisory jury after the liability stage of the trial and rule himself on the amount of damages, if any, the government owes Branch Davidian survivors.
David Oxlee, a specialist in infrared tape analysis, works for Vector Data Systems, the British firm that conducted a court-ordered re-creation of events thought to be captured on FBI aerial surveillance tapes.
The test, conducted at Fort Hood in March, was designed to determine the source of flashes that appear on FBI tapes. Plaintiffs' attorneys allege that the flashes are gunshots from FBI agents that drove sect members back into the roaring fire and prevented their escape.
Government officials deny that FBI agents fired any shots that final day, despite the fact they were under heavy fire from the Davidians as agents in military vehicles punched holes in the building to insert tear gas.
Vector's report indicated that the flashes were sunlight reflecting off debris and not gunfire.
Attorneys for the government have alleged that the Davidians died in an inferno of their own making, fulfilling Koresh's apocalyptic prophesy.
Koresh and 75 of his followers, including 21 children, died in the fire that ended the 51-day siege with government officials.
Jim Brannon, a Houston attorney who represents some of the plaintiffs, said he thinks the trial should have been delayed so the gunfire issue can be presented to the jury.
"The resolution of the dispute has now turned into one that will inevitably lead to serious questions about the fairness of the proceedings," Brannon said. "I do not believe the issue should have been taken away from the jury under any circumstances, and if that meant we should wait until Mr. Oxlee can no longer come up with other excuses about why he can't travel, and let me say I am extremely skeptical about those, then that is just the way it has to be."
Brannon and lead plaintiffs' attorney Mike Caddell of Houston said they have no doubt that the FBI fired shots on the final day of the siege.
"Trying this case, as the court said when it ordered the jury, is a case of national importance, and to take away the single most damning issue against the government from the eyes of the jury is to change it back to where it was," Brannon said. "The jury, therefore, will not have before it extremely fatally damaging testimony to the credibility of the government's entire case."
U.S. Attorney Mike Bradford of Beaumont, who is representing the government, said the development likely will shorten the trial by two to three days. Officials expect the trial to last about a month.
That leaves four major issues to be decided by the trial jury, and ultimately the judge:
whether Bureau of Alcohol, Tobacco and Firearms agents fired indiscriminately and without provocation when they came to arrest Koresh on weapons charges on Feb. 28, 1993; whether the FBI demolished the structure prematurely on April 19, 1993, and not in accordance with directives from Attorney General Janet Reno; whether the government was negligent by not having a plan to fight a fire; and whether the government contributed to the cause and spread of the fire.
Bradford said the decision by the judge to decide damages should be a moot issue.
"I think it is significant that the court will be deciding that issue," Bradford said. "The court has said this is an advisory jury, so there apparently are certain issues that he wants to be advised on. I gather from what he said that this isn't one of them. Of course, we believe that there will not be a damages phase of the trial. There is no liability, so there should be no discussion of damages."
Caddell said he would prefer that the gunfire and damages issues be decided by a jury. He said he is confident that the trial will move into the damages phase.
"I think that it is important to get a sense of a jury on the damage issue as well as the other issues in this case," Caddell said. "These people are from the community. I think six or seven people are better than one in determining the damage issue. But I don't care who you are. A child burning to death, those have to be terrible damages.
"I don't think Judge Smith sees this as a $50,000 fender-bender in terms of damages. So I don't mean to suggest he won't be fair on damages. I think he understands that when you are talking about people burning alive, you are talking about very serious damages."
In other matters, Bradford asked the judge to limit the plaintiffs' use of childrens' photographs at trial, arguing that the photos would be an emotional ploy to gain sympathy from the jury. In turn, Caddell asked that the government be limited in the number of weapons they bring into the courtroom in what he called an attempt to inflame the jury.
"They want to scare the jury," Caddell said. "Let's have a lot of weapons so we can scare the jury. They also want to confuse the jury and to keep evidence from the jury. They don't want the jury to hear that the FBI's own hostage negotiators are saying that they could have gotten more people out alive if they had handled things differently. Their own hostage negotiators have said that the tactical and negotiations men were at cross-purposes and created mistrust on the part of the Davidians that contributed to them not coming out."
Bradford, however, said it is important for the jury to learn about the types of weapons the Davidians had to understand why it was reasonable for the FBI to hold back firefighting equipment out of concern for personnel safety
Both sides in the Branch Davidians' wrongful-death lawsuit against the government will square off in Waco today, a week before the trial in the case is scheduled to begin.
At stake in the pretrial hearing is the testimony of many key expert witnesses for the plaintiffs.
Government lawyers have asked U.S. District Judge Walter S. Smith Jr. to restrict their testimony at the June 19 trial. Among other things, government lawyers claim the plaintiffs' experts are being asked to speculate or testify on matters outside their area of expertise.
Expert witnesses being challenged by the government range from James Tabor, a university professor from North Carolina who has studied the Davidians' beliefs, to Patrick Kennedy, a fire expert.
A motion filed by Marie Hagen, co-counsel for the government, argued that the testimony of the contested experts would not "assist the trier of fact to understand the evidence or to determine a fact in issue."
Houston attorney Mike Caddell on Friday downplayed the importance of the pretrial
hearing."The government is not trying to strike the testimony of our expert witnesses," said Caddell, lead plaintiffs attorney. "They're trying to exclude portions of their testimony. Big difference. They've got all the same problems with their witnesses. I don't view it as a big deal. Lawyers always wrangle on what goes before the jury. At the end of the day, we'll have more than enough evidence to put before the jury."
One person whose testimony the government is asking to strike is R.L. Hooper, who is supposed to testify regarding the amount that would be required to rebuild Mount Carmel.
In his May 26 order setting today's pretrial hearing, Smith noted last month's verdict in a Waco state court on the ownership of Mount Carmel. A jury in the 74th State District Court decided that neither the surviving followers of the late David Koresh nor the widow of the late George Roden, who lost a power struggle to Koresh in the 80s, were the legitimate trustees of the Branch Davidian church.
Smith ordered the plaintiffs to be prepared today to prove why the Branch Davidian church should not be dismissed as a party to the lawsuit.
Ramsey Clark, the former U.S. attorney general who represents the church, was not available for comment.
Caddell said the issue isn't significant.
"Frankly, sticks and bricks don't amount to much," he said. "I'm more interested in the innocent women and children who died at Mount Carmel."
Smith also ruled in his May 26 order that a jury would be empaneled to hear the lawsuit.
In a motion filed last week contesting Clark's bid for the trial to be continued, Caddell noted that the government had filed a sealed motion asking Smith to reconsider having a jury. However, Caddell said Friday that Smith had rejected the government's request.
Sam Cole isn't doing wheelies over the preparations being made for the June 19 start in Waco of the Branch Davidians' wrongful-death lawsuit ag ainst the federal government.
Cole is the general manager of Fred & Wally's Sports Pub, 210 S. Eighth St., which squats directly across the street from the federal courthouse in Waco. It's primarily a biker bar that Baylor University students and white-collar types also find welcoming despite the occasional brawl.
Waco police told the pub no parking will be allowed on Eighth Street from Franklin Avenue east to the railroad tracks during the civil trial, though drivers can pa ss. Cole just doesn't get it.
"They never closed down the street before when they had to deal with the Branch Davidians," Cole said. "But some dude from the (Waco) SWAT team came in and said for the length of trial they're closing Eighth Street, 24 hours a day. Our parking out front is limited anyway. I don't see what makes things so important now. That's old news."
Like seven years ago, after a shootout that left five Branch Davidians and four agents with the Bureau of Alcohol, Tobacco and Firearms dead, state and national media will encamp in Waco. Seventeen members of the media have requested credentials from the U.S. Marshals Service to cover next week's civil trial. Outside scrutiny of Waco will be intense, although down from 1993 standards. Then there were 35 satellite TV trucks alone parked a couple miles from Mount Carmel, in what came to be known as Satellite City.
Most local hotels have rooms available for the run of the civil trial. However, there is one notable exception, the Residence Inn by Marriott, at 501 University Parks Drive. It is an extended-stay property.
"I have people begging for rooms, but I can't get them in here," said manager Gayle Herbert.
Herbert said Residence Inn normally runs over 90-percent occupancy anyway. It is booked full for the expected six-week trial run.
"I run such a high occupancy anyway," Herbert said, "but the trial is definitely going to increase that."
Besides the probable ban on parking along a small portion of Eighth Street, the most visible sign that a headline-making trial is in session will be Waco's plans to spruce up a vacant lot near its new bus terminal, behind the federal courthouse, to create a temporary home for TV satellite trucks.
Other preparations for the trial are more low-key.
New video cameras have been installed inside and outside Waco's federal courthouse and security will be beefed up during the civil trial, according to Jack Dean, U.S. Marshal for the Western District of Texas, who is supervising the security efforts.
"Our security specialist spotted a couple of dead spots around the courthouse so we installed two more video cameras," Dean said. "There will probably be parking restrictions enforced and tags issued for seating. You can only get so many people in the courtroom. Other than that, it will be pretty normal."
Dean acknowledged that his office urged the post office to hurry up and complete the move of its downtown branch, which is in the federal courthouse, to its new building a couple of blocks from Interstate 35.
"We didn't twist their arm, but there's no question it would help our security if the post office was to move," Dean said. "It's a nightmare to maintain security for the building as it is now. For one thing, the doors stay open all night. That's no way to run a railroad. We like to keep the doors closed and to know who comes in and out."
Waco post office spokesman Steve Kincer said the move would take place this weekend and the post office will open for business at the new location Monday.
"The marshals and court officials said it sure would make things easier," Kincer said. "They're going to have pretty stringent security measures, and it could have meant making our customers go through metal detectors."
Kincer said the post office had been planning to vacate the federal courthouse around the second week in July.
"We've just barely accepted the building," he said. "There's still some tweaking going on."
There were rumors that if the post office didn't move, U.S. Postal Service employees would have to be screened going in and out of the courthouse and packages would also have to be examined.
"It's better for everyone if we move before the trial," said Lou Guerra, customer service manager for the downtown post office. "We'll have a new station where carriers can work more efficiently, and we won't be in the way at the courthouse. It will alleviate security concerns."
Seating at the trial will be on a first-come basis, Dean said. Those wanting to attend the trial will have to go through a metal detector, which was installed at Waco's federal courthouse after the Oklahoma City bombing in 1995.
How many Davidians will pass through it isn't known.
Davidian Sheila Martin, who lives in Waco, said she expects many of them to turn out along with a number of supporters.
"This trial is important to us," Martin said. "It shows that after all these years we're still believing and saying they were wrong to do what they did. We're going into this knowing that people believe the raid was the wrong thing to do. We're all hoping to be there. I couldn't tell you how many will make it, though."
Martin lost her husband, Wayne, who was a Waco attorney, and four children in the fire that destroyed Mount Carmel.
However, she said the civil trial is not about revenge.
"David told us not to be angry, not to look down on the people surrounding us," Martin said. "He told us we had to relate to God as they had to relate to the boss they had, that maybe they were more obedient to their boss than we were to ours... No one really wins in this world. We all have to face God. We just pray our lives are lived in such a way that he won't turn his back on us."
Dean said that, despite the security precautions, he doesn't expect any attempts to disrupt the trial.
"You always try to plan for the worst-case scenario," he said. "This is a civil trial, however. You're talking about money and not criminal penalties. Any time you're talking about getting 50 years in prison or the death penalty, there's going to be a lot of emotion. A civil trial normally doesn't carry the same passion."
He hopes the security precautions are done in such a way they're hardly noticeable, Dean said.
"We want to handle this in as low-key a manner as possible," Dean said. "Get in, get it over with and everyone get on with their lives. It's past time for healing in this matter."
WACO, Texas (AP) - It's been seven years since 80 people died in the fieryconclusion to a standoff between the government and the Branch Davidian religious sect.
On June 19, the two sides will confront each other again - this time in a courtroom.
The government is the defendant in a $675 million wrongful death lawsuit, which consolidates nine civil cases filed in 1994 by Branch Davidian family members and survivors. Legal maneuvers by both sides contributed to the delay in bringing the case to trial.
The lawsuit alleges the government used excessive force in the initial raid on the Branch Davidian compound that started the 51-day standoff, may have caused at least two of the fires that destroyed the compound and improperly withheld firefighting assistance. The government denies the allegations.
Early on April 19, 1993, government tanks rammed holes in a wooden building in the compound, where more than 80 sect members lived with their leader David Koresh, to allow tear gas canisters to be thrown inside.
About six hours later, fire raced through the building and killed 80 people, at least 17 of them children.
The plaintiffs' lead attorney, Michael Caddell of Houston, said the lawsuit is not about money.
``It's about acknowledgment of shared responsibility and a commitment that this will never happen again,'' said Caddell.
U.S. Attorney Mike Bradford, lead counsel for the government, hopes the trial will restore the public's faith in the law-enforcement community.
``This was a terrible tragedy because there was a significant loss of life,'' said Bradford. ``It's been a great burden on the public and certainly on law enforcement agencies. Unfortunately one of the things that has happened is there has been a lot of misinformation over the years in public domain through a variety of sources. We hope this trial will be an opportunity to get the facts out.''
Many of those facts are in dispute.
The lawsuit alleges that FBI agents fired at Davidians during the final moments of the siege, and that the gunfire was captured on infrared aerial surveillance tape made by the FBI.
``We can't prove that any specific individual was killed by government gunfire on April 19,'' said Caddell. ``The significance is simply that people would've been afraid to come out of the building.''
The defense maintains there was no government gunfire.
The plaintiffs also accuse government agents of using excessive force during the original Feb. 28 raid on the compound by agents of the federal Bureau of Alcohol, Tobacco and Firearms, who were trying to serve search and arrest warrants for suspected firearms violations. A gunfight broke out and four agents and six Davidians were killed.
Bradford said the agents were ambushed and were firing back in self-defense. In 1994 five Davidians were convicted of voluntary manslaughter in the agents' deaths.
Caddell acknowledges that Davidians fired at ATF agents, but says it's irrelevant who fired first. ``The ATF never had the right to fire willy-nilly into a building filled with noncombatants,'' he said.
Attorneys for the Branch Davidians contend that the government could have been responsible for at least two of three fires that started on April 19.
Bradford said the government has ``very strong and convincing'' evidence that sect members started the fires. However, the government has acknowledged that some tear gas canisters were potentially incendiary.
The lawsuit also alleges that the government was criminally negligent by ignoring orders to have firefighting equipment on the scene.
Bradford says firefighters were not allowed near the compound because they were in danger from potentially explosive munitions stored by the Davidians.
U.S. District Judge Walter Smith ordered a field test in March simulating the siege. Both sides hoped the test, recorded on infrared tape, would determine what caused more than 100 flashes to show up on the FBI's original infrared tape.
A report last month by Vector Data Systems, the court's infrared expert, said the flashes were sunlight reflecting off debris, not government gunfire.
Attorneys for the plaintiffs say the test violated protocol agreed upon by both sides and that the court-appointed expert is less than neutral. Vector is owned by Anteon Corp., which has done work for U.S. intelligence agencies, the defense department and the FBI.
Bradford said Vector's analysis was a ``truly independent evaluation and a very thorough evaluation'' of the infrared tapes.
WACO, Texas--Seven years after the FBI's siege of the Branch Davidian compound near Waco in fire and death, the city of Waco is fed up with the awful images its name evokes.
Did the religious cult cause the catastrophe, as federal officials contend?
Or did the FBI use "grossly excessive force," as a lawsuit against the government alleges? Waco's citizens aren't much interested. The disaster is an ugly memory they'd like to forget.
But now Waco is braced for a courtroom replay of the nightmare. The federal government is to go on trial June 19 as the defendant in a wrongful-death civil case brought by scores of plaintiffs, most of them relatives of Branch Davidians who died in the April 19, 1993, fire.
The raid, in which 75 Branch Davidians died, ended a 51-day standoff at the compound that started when federal agents arrived to arrest cult leader David Koresh on weapons charges and became involved in a shootout. Questions and accusations concerning the FBI's conduct in the final assault began raging as flames were still licking the sky that day. Years after the smoke cleared, the controversy continues to burn: Who ignited the blaze, the Branch Davidians or the FBI?
To those who inhabit an Internet realm where tales of sinister government conspiracies abound, "Waco" has become a shorthand term for a mass murder and coverup orchestrated by secret enemies of freedom in Washington.
But that's not what "Waco" means to restaurateur Tracy Maughn. To him and others, it means home.
"I travel from time to time," said Maughn, who also owns restaurants in Iowa, Wisconsin and Nebraska. "People ask me where I'm from, and I go, `Waco.' And right away they go, `Branch Davidians!' And then it starts.
"It was a black eye for our community and for the whole country, and I'm really sick of hearing about it. People ask me where I'm from now, and I just tell them, `I'm from Texas.' "
"We wish it never happened, but, good Lord, if it was going to happen, we wish it would have been somewhere else," said McLennan County District Attorney John Segrest, who has lived in Waco all his 50 years, and who is not involved in the case. "The feeling is, it'll never go away. The Davidian siege is like that bad penny. It keeps coming up."
Four federal agents and six members of the apocalyptic cult died in the Feb. 28, 1993, gun battle that led to the standoff at the Branch Davidians' rural compound, called Mount Carmel, about 10 miles east of the city. In the raid 51 days later, the FBI assaulted the group's main building with armored vehicles and tear gas. Many who perished in the subsequent inferno were children.
In U.S. District Court, the plaintiffs allege that FBI agents ignited the blaze with pyrotechnic tear-gas projectiles, then fired gunshots into the building, pinning down the Branch Davidians and preventing them from escaping the flames. The Justice Department has long maintained that cult members started the fire and that FBI agents never fired a shot during the assault.
"We certainly feel the evidence is very clear that the cause of this tragedy was the Branch Davidians," Mike Bradford, U.S. attorney for the Eastern District of Texas, said this week. Bradford is the government's chief lawyer in the case. "While law enforcement faced difficult circumstances that day and didn't do everything perfectly, they were dealing with a man in David Koresh who was willing to bring down his entire group to avoid giving up." Koresh died in the assault.
Waco will once again find itself under siege in a little more than a week.
Media from throughout Texas and the nation will descend on the city June 19, after a seven-year hiatus, to cover the Branch Davidians' wrongful-death lawsuit.
This time it's the government on trial, accused of causing the deaths of 81 Davidians in 1993.
Five Davidians died during a bungled raid by the Bureau of Alcohol, Tobacco and Firearms. After a 51-day siege, a tear-gas assault by the FBI culminated in a fire that killed 76 Davidians, including David Koresh.
For surviving Davidians, the trial is a long-awaited chance to make the government accept responsibility for the deaths.
Attorney Gary Coker of Waco, however, finds it hard to get excited by the looming courtroom clash, even though he has ties to the case. Coker tried unsuccessfully to get William Sessions, his friend and the FBI director during the siege, to negotiate directly with Koresh then.
"I guess I've got a little bit of Davidian fatigue," Coker said. "I'm just tired of hearing about it."
Coker successfully defended Koresh and seven followers against attempted murder charges in 1988. They had shot it out with the late George Roden, after being caught trying to prove he dug up a woman's body with the intent to raise her from the dead. Koresh and his followers were trying to force Roden off Mount Carmel, their 77-acre home 10 miles from Waco.
Coker's thoughts these days are more with the five Davidians still in prison, whose long weapon sentences were tossed out by the Supreme Court last week.
"I just hope the judge (Walter S. Smith Jr.) lets them go with unenhanced sentences," Coker said. "They need some closure, some final justice."
Mount Carmel is not an official tourist stop locally. There are no locator maps to it available from the City of Waco, although people still come from all over the world to visit the prairie site that dominated world headlines for much of 1993. Public information director Larry Holze said Waco gets fewer and fewer requests for information on Mount Carmel as time passes.
"Every once in awhile, we'll get an inquiry on our website," Holze said. "Amazingly enough. We're not disappointed about it certainly."
Holze, however, isn't pretending what happened seven years is going away, even after the conclusion of the civil trial.
"The name Waco is certainly going to still be out there world-wide," Holze said.
Four recent German visitors to the city reaffirmed that perspective for him. They were participants in a cultural exchange program. One was from Nuremberg, site of the Nazi war crimes trials after World War II.
"He said, 'We have something in common with you,'" Holze said. "'You have a beautiful city. So do we. But that's not what either of us is known for.'"
Waco has long had something of an image problem, even before Mount Carmel. Out-of-town journalists skewered it as the backwater buckle of the Bible belt. In recent years, though, the city has cleaned up the river corridor, downtown has undergone a renaissance and nearby Baylor University launched a building program that, among other things, gave the school athletic facilities the equal of any university in the country.
Facing another onslaught of media has city officials nervous, though. They remem ber Ben MacI ntyre of the London Times describing Waco as a "one-horse town where the horse died" while covering the Mount Carmel siege. He also wrote that the cuisine ranged from "hamburgers to cheeseburgers."
Waco officials, doing their best to demonstrate a stiff upper lip, maintained that what happened at Mount Carmel would ultimately benefit Waco. Name recognition is name recognition after all.
Former mayor Bob Sheehy Sr. was the city's spokesman during the siege. He and other city officials showed Waco's hospitable side in 1993. Sheehy did countless interviews. At the daily news conferences at the Waco Convention Center, coffee and snacks were provided for visiting journalists. There were also tourism-related brochures on tables outside the briefing room to subtly remind visitors that Mount Carmel was not a Waco product.
Seven years later, Sheehy, an attorney, sighs when contemplating the media's return trip to Waco.
"I'd be curious how many people locally even know the trial is going to be here," Sheehy said. "It's not even coffee talk around town anymore."
Sheehy acknowledges that many people outside Waco are still fascinated by the showdown between the Davidians and the government. But he's hoping the allure fades.
"I assume we'll never lose the tag of it being a Waco event," Sheehy said. "We haven't really been out of the spotlight in the years since this occurred. It's just a continuation of the same thing. Hopefully, one of these days it will all be over and put to rest."
Coker doesn't see that happening.
"You talk to someone on the phone about a computer or something, and they know where Waco, Texas, is," Coker said. "That put Waco on the map. More than the tornado. Tornadoes come and go. There's always another one. Something like this hadn't happened before. A religious community surrounded by government tanks. People remember it."
The 1953 tornado that struck Waco killed 114 people and destroyed 196 downtown buildings. Some say Waco has never fully recovered from it.
Waco's image, however, doesn't have to be rebuilt, Coker said.
"What happened at Mount Carmel is not going to harm Waco any more than the Kennedy assassination harmed Dallas," Coker said. "You had a Northern president killed in a Southern city. That didn't prevent lots of Northerners from moving to Dallas. You go up to Dallas and you wonder where you are. I don't see it making much difference one way or the other."
Coker said he doesn't know if he'll attend the upcoming civil trial.
"I don't like to wear a suit and tie in the summer," he said.
But he does think the trial can provide benefits for a city largely weary of the seemingly neverending saga.
"No one can accuse Waco of being dull and boring this summer," Coker said. "There will be plenty of free entertainment at the federal courthouse."
Attorneys for the plaintiffs in the wrongful-death lawsuit filed by surviving Branch Davidians against the government disagree on whether the trial should start in Waco on June 19, according to a motion filed Thursday.
Mike Caddell, lead plaintiffs' attorney, asked Judge Walter S. Smith Jr. to reject a request by former U.S. attorney general Ramsey Clark for a continuance. Clark represents many longtime Davidians such as Clive Doyle. In his motion, Caddell noted that Smith had already rejected a motion by the government asking for a continuance. That motion was filed under seal, according to Caddell's motion.
Both Clark and the government want to delay the trial until after Sept. 5, according to Caddell's motion.
He wrote that both had dragged their feet in communicating with him on a recent pre-trial filing, "occasioned to a significant degree by their time spent seeking to delay or alter the trial of this case."
U.S. Attorney Michael Bradford of the Eastern District of Texas told the Tribune-Herald that he couldn't comment on the government's request for a continuance because it was done under seal.
Clark was unavailable for an interview, his New York office said.
The civil trial was first scheduled for October 1999. Then it was reset for May 15, 2000. A subsequent postponement pushed it back to June 19.
"There is no basis for further delay," Caddell wrote.
Caddell mentioned in his motion that the government also filed under seal a motion asking Smith to reconsider his decision to empanel a jury for the civil trial. Since no individuals are defendants in the case, federal law doesn't require a jury trial. Smith said in a May 26 order that he decided to empanel a jury because of the "importance of the issues involved in this case."
Smith has not responded to the government's jury motion.
Thursday, the government filed a motion asking to bar portions of testimony from expert witnesses for the plaintiffs.
Marie Hagen, co-counsel for the government, asked Smith to disqualify part of the testimony expected from five expert witnesses: Dr. Paul Radelat, a pathologist; Dr. Joseph Burton, also a pathologist; Frank Johnson, a mechanical engineer; George Uhlig, whose specialty was not spelled out in the motion; and Patrick Kennedy, the plaintiffs' fire expert.
Hagen wrote that Radelat, Burton, Johnson and Uhlig were being asked to testify on areas outside their expertise.
For example, Hagen said Burton might testify that he couldn't exclude the possibility that some of the Davidians who died on April 19, 1993 were shot from outside Mount Carmel. However, Burton said in his deposition that he doesn't have an opinion on the matter because of inconclusive evidence.
"Such expert testimony that a particular scenario is 'possible' or 'cannot be excluded' does not assist the trier of fact," Hagen wrote.
Parts of Kennedy's proposed testimony amount to speculation, Hagen also argued in her motion.
WACO, Tex. Seven years after the FBI's siege of the Branch Davidian compound near here ended in fire and death, the city of Waco is fed up with the awful images its name evokes. Who's to blame? Did the religious cult cause the catastrophe, as federal officials contend? Did the FBI use "grossly excessive force," as a lawsuit against the government alleges? Waco's citizens aren't much interested. The disaster is an ugly memory they'd like to forget.
But of course they can't. And now this central Texas city is wearily braced for a courtroom replay of the nightmare. The federal government is scheduled to go on trial here June 19 as the defendant in a wrongful-death civil case brought by scores of plaintiffs, most of them relatives of Branch Davidians who perished in the April 19, 1993, conflagration.
The raid, in which 75 Branch Davidians died, climaxed a 51-day standoff at the compound that started when federal agents arrived to arrest cult leader David Koresh on weapons charges and became involved in a deadly shootout. Questions and accusations concerning the FBI's conduct in the final assault began raging as flames were still licking the sky that day, and years after the smoke cleared, the controversy continues to burn: Who ignited the blaze, the Branch Davidians or the FBI?
To a lot of people--particularly those who inhabit an Internet realm where tales of sinister government conspiracies abound--"Waco" has become a shorthand term for a mass murder and coverup orchestrated by secret enemies of freedom in Washington. But that's not what "Waco" means to Tracy Maughn, a local restaurateur. To him and others, it means home.
"I travel from time to time," said Maughn, who also owns restaurants in Iowa, Wisconsin and Nebraska. "People ask me where I'm from, and I go, 'Waco.' And right away they go, 'Branch Davidians!' And then it starts. . . . It was a black eye for our community and for the whole country, and I'm really sick of hearing about it. People ask me where I'm from now, and I just tell them, 'I'm from Texas.' "
In interviews here this week, Waco residents voiced scant interest in the questions lingering from the 1993 tragedy and said they dread the glare of national attention likely to be focused on this city of 108,000 when the trial starts. After years of official and unofficial investigations, after several congressional inquiries and a criminal trial of cult survivors that was held in San Antonio, the civil case will examine the catastrophe for the first time in the county where it occurred.
"We wish it never happened, but, good Lord, if it was going to happen, we wish it would have been somewhere else," said John Segrest, the McLennan County district attorney, who has lived in Waco all of his 50 years. Segrest, who is not involved in the case, added: "The feeling is, it'll never go away.. .. . . The Davidian siege is like that bad penny. It keeps coming up."
Four federal agents and six members of the apocalyptic cult died in the Feb. 28, 1993, gun battle that led to the standoff at the Branch Davidians' rural compound, called Mount Carmel, about 10 miles east of here. In the climactic raid 51 days later, the FBI assaulted the group's main building with armored vehicles and tear gas. Many of those who perished in the subsequent inferno were children.
In U.S. District Court here, the plaintiffs allege that FBI agents ignited the blaze with pyrotechnic tear-gas projectiles, then fired gunshots into the building, pinning down the Branch Davidians and preventing them from escaping the flames. The Justice Department has long maintained that cult members started the conflagration and that FBI agents never fired a shot during the assault.
"We certainly feel the evidence is very clear that the cause of this tragedy was the Branch Davidians," Mike Bradford, the U.S. attorney for the Eastern District of Texas, said this week. Bradford, the government's chief lawyer in the case, said that "while law enforcement faced difficult circumstances that day and didn't do everything perfectly, they were dealing with a man in David Koresh who was willing to bring down his entire group to avoid giving up." Koresh died in the assault.
Michael A. Caddell, the lawyer for the biggest group of plaintiffs in the case, has annoyed many conspiracy theorists who accuse the FBI of deliberately carrying out a slaughter. Caddell, who rejects those allegations, said he will argue in the trial that FBI commanders at Mount Carmel made errors in judgment for which the government should be held liable.
"They made bad decisions," Caddell said in an interview. "That doesn't mean they had ill motives or they were part of some huge conspiracy. They got frustrated and angry at the refusal of the Branch Davidians to come out, and they began to feel pressure to make something happen."
U.S. District Judge Walter S. Smith Jr., who is presiding in the case, surprised attorneys on both sides recently when he announced he would impanel a jury to hear the lawsuit. With numerous accused individuals having been dismissed from the case, leaving only the government as a defendant, the plaintiffs have no legal right to a jury trial, and normally such a case would be heard by the judge.
"Given the circumstances, I think [Smith] recognizes that a jury verdict will be perceived as more fair by the American people than a verdict by a judge who gets his paycheck from the U.S. government," said Caddell, who applauded the decision.
Smith, a Reagan judicial appointee, also presided at the 1994 Branch Davidian criminal trial, which was moved 160 miles south to San Antonio. Several cult members were convicted of manslaughter and gun charges stemming from the initial Mount Carmel shootout, and Smith imposed 40-year prison terms in some cases. But the Supreme Court this week ordered new sentencings for five of the defendants, ruling that the punishments meted out by Smith were improperly harsh.
The jury pool will come from the geographic Waco division of the federal court system's Western District of Texas--mostly McLennan County, a largely white, middle-class jurisdiction of 200,000 residents, about half of whom live in Waco.
"I don't think either side [in the case] has an advantage," said Segrest, the district attorney, discussing jurors in his county. "They're conservative, but they're not way-out militia types. They're very religious. And they support the government. But they keep an eye on the government, too."
And they're not looking forward to news coverage of the trial--reporters reminding the world of Waco's tragedy, the fire video airing again and again on TV.
"People are bored with it and embarrassed by it," said Jay Charles, who hosts a morning radio show here. "They don't want to talk about it. And when they do, they'll always say, 'It wasn't even in Waco! It was way out in the country!' "
The U.S. Supreme Court has undone a great injustice to surviving membersof the Branch Davidians, a religious group that has already suffered enough at the hands of the federal government. Convicted on firearms charges in connection with a government assault on their property in Waco, Texas - an assault that need not and should not have taken place - the Davidians wound up facing lengthy sentences on charges of using machine guns, something the jury in the case had never found.
Recall that originally federal prosecutors had tried to get the jury in the case to convict the Branch Davidians of murdering federal agents. (Four agents and five Davidians died in the February 1993 assault by the Bureau of Alcohol, Tobacco and Firearms.) When the jury declined to return a guilty verdict on the count, prosecutors sought convictions on charges of conspiracy to commit murder. Again the jury declined. But faced with confusing jury instructions, the jury did convict some of the Davidians of using weapons in the commission of a crime that the jury had already found the defendants didn't commit.
The judge, recognizing the contradiction, initially tossed out the guilty verdict. But he reimposed it after hearing arguments from the Justice Department that this was the jury's awkward, amateurish attempt to reach some compromise ruling. The judge further decided that the "firearms" the defendants used in their non-crime were machine guns, which meant additional prison sentences of 30 years or more. The defendants appealed their sentences on grounds that finding someone guilty of a machine gun violation is something for a jury, not the judge, to determine. By a unanimous vote this week, the U.S. Supreme Court agreed.
At issue was whether carrying machine guns was a crime separate from some underlying offense - something for a jury to determine - or whether it was a merely a factor in sentencing - something for a judge to determine. Prosecutors had not indicted the defendants for using machine guns, and they did not ask the jury to decide the question during the 1994 trial.
Arguing the case before the Supreme Court, however, the federal government tried to blur the distinction between machine guns and other kinds of weapons. Wrote Justice Stephen Breyer for the high court: "The Government argues that, conceptually speaking, one can refer to the use of a machine gun as simply a 'method' of committing the underlying 'firearms offense.' . . . But the difference between carrying, say, a pistol and carrying a machine gun (or, to mention another factor in the same statutory sentence, a 'destructive device,' i.e., a bomb) is great, both in degree and kind. And, more importantly, that difference concerns the nature of the element lying closest to the heart of the crime at issue. It is not surprising that numerous gun crimes make substantive distinctions between weapons such as pistols and machine guns."
For example, Justice Breyer said, it is against the law to transport in interstate or foreign commerce any "destructive device," "machine gun" or similar type of weapon unless the carrier is licensed or authorized to do so.. But there is no such prohibition for pistols. Furthermore, he said, "the statute at issue prescribes a mandatory penalty for using or carrying a machine gun that is six times more severe than the punishment for using or carrying a mere 'firearm.' " Given these distinctions, Justice Breyer said, lawmakers no doubt treated machine gun violations as separate offenses to be tried in court rather than mere factors in a judge's sentencing.
Hearing of the Supreme Court's decision, the woman who served as foreman of the trial jury so long ago pronounced herself "elated." Americans who think that even members of unpopular religious groups deserve fair trials should be elated, too.
Waco, FBI and the Branch Davidians: Updates
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