U.S. not liable at Waco

A federal judge will take that advisory verdict into account when he ultimately rules in the wrongful-death suit.

©New York Times

© St. Petersburg Times, published July 15, 2000

WACO, Texas -- In a striking victory for the government, an advisory panel of five jurors took just over an hour Friday to find that federal officials were not liable in the deaths of nearly 80 Branch Davidians who were killed with four government agents in the 1993 raid and standoff at the sect's compound near Waco.

Federal officials portrayed the jury's finding as a vindication for them in an episode that provided one of the darkest chapters in the history of federal law enforcement, threatened the career of Attorney General Janet Reno and continues to generate criticism. The lawsuit itself represents a six-year legal struggle that ultimately became a highly publicized test of the government's credibility.

"This terrible tragedy was the responsibility of David Koresh and the Branch Davidians, not the federal government," the Justice Department said in a terse statement. "We are pleased the jury affirmed that view."

The swift verdict, which came after a month of testimony, may not be the final word on the case.

Walter Smith, the federal judge presiding, will ultimately decide the outcome of the wrongful-death suit. Earlier Friday, before the jury was seated, Smith reminded lawyers involved that,"It's important for everyone to understand that their decision is in no way binding.

"I intend to consider the advice of the jury, but by law I cannot be bound by it," he said.

Federal law allows for advisory panels in cases in which the government is being sued, said Smith, who limited the jury's role in the suit to this advisory capacity.

Smith will not make his ruling until at least August, after he has heard another part of the case dealing with whether federal agents fired into the Branch Davidians' Mount Carmel compound as it was consumed by flames on April 19, 1993. That issue will be decided by him alone.

Survivors and relatives of Branch Davidians killed during the siege had sought $675-million, accusing the Bureau of Alcohol, Tobacco and Firearms of using excessive force and firing indiscriminately during the initial Feb. 28, 1993, raid to arrest Koresh, the sect leader, on weapons violations. Six Branch Davidians, as well as the four agents of the bureau, were killed that day in the beginning of a 51-day standoff.

They also said that commanders on the scene for the FBI at the April 19 fire had exceeded their authority while implementing a Washington-approved plan to use tanks to inject tear gas into the compound, ultimately causing the fire in which about 75 people, including 20 children, died. The government was also negligent, they had claimed, for not having adequate equipment on hand to fight that fire.

Government lawyers had argued that the Branch Davidians ambushed Alcohol, Tobacco and Firearms agents involved in the initial raid and set the final, devastating fire themselves as part of a suicide pact.

Closing arguments from both sides in the case, delivered earlier Friday, were steeped in emotional outrage.

"The scariest thing about this trial is that there will be another David Koresh. This case is about the children. It's too late to save the children of Mount Carmel. What you do here will determine what happens to those next children," the plaintiffs' lead lawyer, Michael Caddell, told jurors.

Caddell had attempted to fix blame for the raid, standoff and fire squarely on the shoulders of those who planned the operations, but spoke glowingly to the jury of the "brave men" of the government who were killed.

"Men under that kind of pressure make mistakes," he said. "It's not their fault. They were placed in an impossible position. They didn't give the orders. They didn't make the plans."

During his final argument to the jury, J. Michael Bradford, the U.S. attorney representing the government, called the events at Mount Carmel a terrible tragedy.

"When I think of those children it makes me mad and angry. Those children should be alive today, would be alive, but for the actions of a man who thought he was Jesus Christ," he said, referring to Koresh. "We should be shocked and outraged by the conduct of David Koresh and the Branch Davidians. Instead, we have this lawsuit that seeks to validate their actions."

In his charge to the jury, Smith had listed four questions that jurors should answer in assigning blame:

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 on the compound? Did those tanks cause the April 19 fire, and were FBI commanders negligent in their decision not to have firefighting equipment available on the scene that day?

As federal protections grant wide latitude for agents pursuing official duties, Smith said, if jurors answered no to the first two questions, there was no reason to answer the last two.

In the end, jurors got no further than the first two questions, the judge said. The decision of the panel was unanimous, and the jurors did not want to speak to reporters, he said.

Caddell said he thought the jury was likely swayed by "all the guns" the sect kept at the compound: "Having that quantity of weaponry this close to Waco was too much for them."

When asked if he would appeal the verdict, Caddell hesitated and said, "As a a practical matter, when you get a verdict, it's over."

The government's lawyer, Bradford, said he thought the verdict vindicated the actions of the government agents who, he said, "faced a very dangerous group of people in a very difficult circumstance in 1993 in trying to carry out their job."

"This verdict shows the responsibility for this tragedy is with David Koresh and the Branch Davidians," he said.

© St. Petersburg Times. All rights reserved.