Attorneys for Branch Davidians plan to appeal Waco ruling

Friday, September 22nd 2000, 12:00 am
By: News On 6

Two attorneys for the survivors of the Branch Davidian siege and their relatives say they plan to appeal a federal judge's ruling that the sect members and not the government were responsible for the 1993 tragedy.

Former Attorney General Ramsey Clark, who represented most of the surviving Davidians, said Thursday that he was saddened but unsurprised by the ruling. He said he will appeal the decision, which he said was most notable for the judge's undisguised disgust and anger toward members of the sect.

"It's not what you'd expect in a judicial opinion," he said. "The thing that we should all comprehend is that a tragedy like this should never happen again at the hands of our own government and its agents. You can almost feel like a sense of celebration in the way the judge addressed the case.

"But there's nothing decent about celebrating this. It never should have happened," he said. "What has happened with this case has also been an enormous injustice from start to finish, and hopefully, for the good of the country, will be firmly corrected."

In a 22-page judgment finalizing an advisory jury's recommendation, U.S. District Judge Walter S. Smith Jr. ruled that surviving sect members and their families who had sought $675 million in damages would "take nothing" from the federal agencies involved in the deadly standoff.

Using the media

Judge Smith's ruling also included a lengthy rebuke of lead plaintiffs' lawyer Michael Caddell of Houston, saying he abused the judicial process.

The judge wrote that Mr. Caddell had attempted "for the past year ... to try their case in the media through the use of innuendo, distortions and outright falsehoods, rather than honestly presenting the true facts of the case."

Mr. Caddell issued a brief statement Thursday saying he also will appeal. He renewed his criticism of Judge Smith, saying "it was clear that soon after the trial commenced that Judge Smith had made up his mind and he could have written his opinion then.

"The appearance of bias and prejudice on the part of Judge Smith is profound. It is unfortunate that this case was not tried before an impartial fact-finder. The American people deserved a process and tribunal that were above reproach. Unfortunately, that did not occur," he said.

The judge's decision drew praise from Justice Department officials and FBI director Louis Freeh, who termed it a "most gratifying" vindication of federal law enforcement.

"No one in the FBI wanted anyone harmed. Everyone did their best under extraordinarily difficult circumstances. In the end, no one fired a shot, the government did not start the fires and the Davidians were found by the court to be solely responsible for the unnecessary deaths that occurred," Mr. Freeh said in a statement Wednesday.

The judge's decision came two months after an advisory jury concluded that Branch Davidians alone instigated a Feb. 28, 1993, shootout with federal agents and then ended a 51-day standoff by immolating themselves inside their besieged building.

Six Branch Davidians and four federal Bureau of Alcohol, Tobacco and Firearms agents died in the shootout, and about 80 sect members died in the final fire at the compound they called Mount Carmel.

Judge Smith's ruling rejected the sect's arguments that FBI efforts to force them out of their building with tanks and tear gas on April 19, 1993, were at least partially responsible for the fire.

Instead, the judge wrote, sect leader David Koresh and several of his male followers intentionally set the fires, and "adult Davidians kept the children in the compound after starting the fire rather than sending them to safety."

"The entire tragedy at Mount Carmel can be laid at the feet of this one individual," he wrote of Mr. Koresh.

Mere speculation

The judge concluded that the plaintiffs failed to prove their most controversial claim: that blips of light recorded by an airborne FBI infrared camera just before the fire were heat flashes from government guns firing into the compound.

"Mere speculation does not constitute proof," he wrote. "The FBI acted with restraint on April 19, 1993, despite the deadly gunfire directed at them during the tear gas operation. The FBI did not return fire."

Judge Smith also rejected the argument that FBI agents had failed to protect the lives of more than 17 children and other innocents who died inside the compound.

"Because the fire was started by certain Davidians, the United States owed no duty to protect the remaining Davidians from the fire," Judge Smith wrote. "Despite this, a number of FBI agents risked their lives to assist Davidians from the burning compound in an attempt to save the children."

He added that the agents' rescue efforts were the "most telling evidence" to debunk persistent conspiracy theories that the government intentionally set the compound fire or tried to cut off escape routes with gunfire.

The ruling closes another chapter in more than seven years of federal litigation arising from the standoff. In addition to presiding over the four-week wrongful-death trial that led to Wednesday's ruling, Judge Smith heard a 1994 criminal trial arising from the standoff and several other lawsuits brought by federal agents.

But even before the judge issued his final judgment, lawyers for the sect declared that they would appeal what they predicted would be a hostile decision toward them.

Profound prejudice

Mr. Caddell fired an opening salvo last week with a lengthy and caustic motion charging that the judge had denied his clients a fair trial. Asking Judge Smith to recuse himself and declare a mistrial, the motion alleged that the judge's behavior, comments and rulings displayed "profound and deep-seated prejudice" against the sect members and their families.

He also condemned the judge's move to impanel an advisory jury to help him decide the case, contending it was a ruse to provide the judge with cover for a controversial decision.

Such litigation against the federal government is normally decided by a federal judge alone. But Judge Smith announced just before the trial began in mid-June that he was bringing in a jury because of the high degree of public interest and controversy in the case.

After hearing four weeks of testimony, jurors returned a verdict for the government in less than three hours, and court personnel said their actual deliberations took less than an hour.

Judge Smith began his Wednesday ruling by castigating Mr. Caddell's recusal motion as legally and factually baseless. He told the Houston lawyer that such an unfounded and "reckless" public attack on a judge could constitute a violation of the Texas Bar Association's disciplinary rules.

Although he acknowledged remarking during one bench conference that he considered sect member Livingstone Fagan "a lying, murdering son of a bitch," the judge wrote that the comment was a joking and "off-the-record" response to a joking comment.

Mr. Fagan was among eight sect members convicted of federal firearms and manslaughter charges after the standoff, and he acknowledged in a recent deposition that he had shot at least one ATF agent.

"The court resents the slight to Mr. Fagan's mother, should he have one," Judge Smith wrote Wednesday. Mr. Fagan's mother Doris died in the fire.

Lawyers for the sect argued during the wrongful-death trial that ATF agents started the shootout as they arrived to search the compound and arrest Mr. Koresh on weapons charges. But Judge Smith rejected that claim, as well as the sect's contention that ATF agents fired indiscriminately and used excessive force.

He wrote that the ATF's decision to rush the building with a large number of agents was "reasonable in light of the accumulation of weapons by the Davidians," and he added that agents acted lawfully and reasonably after being ambushed. He noted that lawyers for the sect had admitted before the trial that their clients had amassed an arsenal of more than 300 weapons, including sniper rifles, illegal grenades and machine guns.

Lawyers for the sect also contended that FBI tanks touched off or helped spread the fire at the end of the siege when they smashed into the compound during a tank and tear gas assault. They alleged that the decisions of the FBI's commanders to send the tanks deep into the building and to have no provision for fighting fires that day violated a Washington-approved plan for the tear gas operation.

All was proper

But the judge ruled that the FBI's actions and decisions were both proper and protected under federal law from subsequent legal challenge.

He said that the Branch Davidians' actions were the sole cause of their injuries and precluded any claims of government negligence. "The law requires each person to act reasonably. The standard is what a reasonable person would do, not what a reasonable Davidian would do. As a matter of law, there was nothing reasonable about the adult Davidians' behavior from Feb. 28, 1993, through April 19, 1993."

Even if the damage that the tanks inflicted on the building during the tear gas assault was negligent, he wrote, "such negligence was not the proximate cause of the plaintiffs' injuries."

The ruling mirrors a preliminary July report by Waco special counsel John C. Danforth absolving government agents and Attorney General Janet Reno of any wrongdoing in their efforts to end the siege.