"Jury to decide suit on Branch Davidian deaths"

by Lee Hancock ("The Dallas Morning News," May 27, 2000)

The wrongful-death case blaming the government for the tragic end of the Branch Davidian siege will be decided by a jury in Waco and not a federal judge alone, both sides in the case were told Friday.
"Having considered the importance of the issues involved in this case, the court has decided that a jury should be empaneled to issue a verdict regarding the issues remaining to be tried," U.S. District Judge Walter S. Smith Jr. wrote in a two-page order issued late Friday afternoon.
The unexpected decision comes only weeks before the June 19 start date of the trial and a month after he dismissed the portions of the case for which federal law normally allows a jury trial.
Federal limits on private lawsuits against the government and its agencies require that most such cases be heard and decided by a judge without a jury.
But federal judges have discretion to bring in juries to hear some civil cases that don't normally involve juries, such as disputes over patent rights or land titles.
Attorneys for the government declined to comment Friday.
But attorneys representing Branch Davidians and families of sect members who died in the 1993 siege hailed the judge's move.
"I applaud the judge for doing this. I think the government won't like it," said lead attorney Michael Caddell of Houston.
Attorneys for Davidians and their families are seeking a multi-million dollar judgment against the government for actions in the 1993 siege that they allege caused the deaths of more than 80 sect members. They died on April 19, 1993, amid a fire that consumed their rural compound near Waco. The fire broke out about six hours after FBI agents began bashing the building with tanks and spraying in tear gas to try to force the sect's surrender.
The wrongful-death lawsuit alleges that the government was negligent in its failure to bring in any firefighting equipment before launching the final tear gas operation. It also charges that the government's assault helped cause the fire and massive loss of life.
Government officials have said that sect members alone are responsible for the tragedy, noting that a government arson investigation found that Branch Davidians deliberately torched their building instead of giving up.
They have also angrily disputed a central claim of the sect's lawsuit that government gunfire on April 19 kept innocent women and children from escaping when the compound caught fire. FBI officials have insisted for years that none of their agents fired any shots during the entire 51-day siege and have also long maintained that the only gunfire on April 19 came from inside the compound.
Attorneys for the plaintiffs said Friday that they expect the decision to try the case before a jury will improve their chances and ensure greater public acceptance of any verdict.
"The real change is this: We will no longer go into this case worrying that the benefit of the doubt will always be given to the federal officials," said James Brannon, a Houston attorney representing relatives of several children of Branch Davidian leader David Koresh.
"I'm extremely pleased that we will now have the case judged by a group of fair, impartial and unbiased jurors, ordinary citizens like those who heard the evidence in the criminal trial and said afterwards that they thought the wrong people had been on trial there. Now we have the right people on trial.''
Mr. Brannon and some others had previously been openly skeptical about the judge's impartiality because of his handling of the 1994 criminal trial arising from the standoff. Mr. Caddell went all the way to the U.S. Supreme Court in a failed bid to have the judge removed from the civil case because of potential bias.
Judge Smith sentenced eight Davidians to up to 40 years in prison after a jury in San Antonio found them guilty of weapons violations and manslaughter for the deaths of four federal agents killed in the shootout that began the 51-day siege. The judge also harshly criticized the sect's actions, writing in his sentencing order that the Davidians had started the standoff by ambushing federal agents and ending it "by a combination of suicide and murder inflicted by Davidian on Davidian."
The U.S. Supreme Court heard an appeal of the sentences last month and is expected to issue a ruling later this summer.
The judge has indicated in prior rulings in the civil case that his views have shifted on some key issues arising from the standoff. In one key ruling last year, he wrote that who started the initial shootout was "hotly disputed."
And in an interview last fall with The Dallas Morning News, the judge said that the central issues of the civil case are different than those in the earlier criminal trial. While the criminal case hinged solely on the question of whether the Davidians on trial caused the deaths of federal agents, the judge said, "the focus now is entirely different, looking in a different direction: what government agents might or might not have done that was wrong, poor judgment."
Mr. Caddell said Friday that he thinks the government's lawyers were hoping to present their criminal case again in the civil trial, and the presence of a jury will hamper that strategy.
He noted that the judge issued an order Wednesday rejecting a government bid to introduce all testimony from the 1994 criminal trial as evidence in the wrongful-death case. That order came the same day that the judge rejected a government bid to file counterclaims against the estates of Branch Davidian leaders as well as some surviving adult sect members who recently dropped their lawsuits against the government.
Mr. Caddell said he thought the decisions were indications that the judge intends to limit the government's efforts to make the upcoming civil case a new trial of the Branch Davidians.
"He is sending a strong message that this is not going to be a replay of the criminal trial, and it shouldn't be," Mr. Caddell said. "In the criminal trial, the government held all the cards. ... This is going to be very different."
"Our primary concern about Judge Smith was his ability to divorce what he learned in the criminal trial from what he will hear in the civil case," Mr. Caddell said. "Having a group of people who won't be affected in any way by what happened in the criminal trial is key to a perception that the system is fair and this will be a fair trial."
Other lawyers who have been involved in earlier litigation arising from the 1993 standoff said the decision to bring in a jury could force last-minute shifts in both sides' trial strategies.
"Any time you have a case, if you're trying it to a court, you're going to do it a certain way, and if you're trying it to jurors, you have to use different approach," said Dicky Grigg, an Austin lawyer who won a $1.2 million jury verdict in Judge Smith's court for an undercover federal agent who played a key role in the Branch Davidian investigation.
"In this case, one of the big factors is that Judge Smith has been living with this thing since it happened, so there's a lot of background information that you wouldn't have to put on for Judge Smith, but you would have to put it on with a jury," Mr. Grigg said. "There are certain things that are going to play differently with a judge than with a jury. ...On expert witnesses, he's going to look at them differently, probably, than a juror is. That might be a plus for you or a minus."
Such differences could be pivotal in the upcoming Branch Davidian trial. Pretrial motions, depositions and a recent hearing in Waco all strongly suggest that the case will be largely a trial by opposing experts. Each side has retained fire experts, structural engineers, pathologists and other scientific analysts to bolster their opposing theories of who should be held responsible for the 1993 tragedy.
The plaintiffs' allegations of government gunfire on April 19 hinge on reports by two former defense department scientists that flashes recorded by an airborne FBI infrared video camera that day could have only come from government guns.
Government experts have disputed that, and a British infrared firm retained by the court and by Waco special counsel John C. Danforth to study the issue and conduct a March field test recently issued a report that all of the flashes were caused by sunlight or heat reflecting off ground debris.
Plaintiff's lawyers spent three days deposing two analysts who helped prepare the report for the British firm earlier this week.
Several lawyers involved in questioning the British analysts said they came away with significant doubts about the firm's qualifications and the scientific basis analysis, and they expect such questions may be considered far differently by a jury than by a judge alone.
Lawyers for the government said they expect any unresolved questions to be cleared up when the British firm's chief infrared expert is deposed. He will not come to the United States for questioning until after the trial begins because he is recuperating from a recent surgery.

"Jury To Decide on Waco Deaths"

(Associated Press, May 27, 2000)

DALLAS (AP) - The wrongful death suit blaming the government for the fire that ended the 1993 Branch Davidian siege will be decided by a jury and not a federal judge alone.
The decision Friday by U.S. District Judge Walter S. Smith comes only weeks before the June 19 start date of the trial.
Federal limits on private lawsuits against the government and its agencies require that most such cases be heard and decided by a judge without a jury. But federal judges have discretion to bring in juries to hear some civil cases.
The Davidians and their families are seeking a multimillion dollar judgment against the government for actions in the showdown that they allege caused the deaths of more that 80 sect members.
Davidian leader David Koresh and his followers died during the inferno that ended the 51-day siege. The government contends they perished at their own hands.
Reached by The Dallas Morning News, attorneys for the government declined to comment Friday.
But attorneys representing the Davidians and families of sect members who died in the siege hailed the judge's move.
``I applaud the judge for doing this,'' lead attorney Michael Caddell said in Saturday's editions of The Dallas Morning News. ``I think the government won't like it.''

"Online Site Halts Auction of Rifle"

(Associated Press, May 23, 2000)

WACO, Texas (AP) - Online auction house eBay halted bidding on a rifle purportedly taken from the former Branch Davidian compound and offered as a ``sobering'' piece of history.
The assault rifle was described as a broken and melted AR-15 converted to fully automatic fire and allegedly salvaged seven years ago, the Waco Herald-Tribune reported today. Its asking price was $2,000.
The seller wrote that the rifle was taken from the rubble of the compound several days after the April 19, 1993, fire that ended a 51-day siege. More than 80 sect members, including leader David Koresh, died.
The auction house declined to name the seller, who described the rifle as ``a piece of American history/tragedy that is sobering when looked at.''
No one bid on the weapon, which had been on the block since May 11, said eBay spokesman Kevin Pursglove. The weapon was yanked last week from the site because the company said it violated its policy on firearms sales. It was being offered as a collectible.
``It was such a gray area as far as weapons that we had to close off the entire category to weapons,'' Pursglove said. ``The sale of weapons is not the intention of that category.''
To vouch for the weapon's authenticity, the seller said a notarized letter from the ``government agent'' with possession of the rifle would be given to the buyer.
``If it was evidence in an ongoing case, people are not supposed to pick up evidence, and that would be a potential problem,'' U.S. Attorney Mike Bradford of Beaumont said. ``Who knows if it's even true?''