Davidian lawyers hope to use memo against Feds

Monday, June 19th 2000, 12:00 am

By: News On 6

WACO, Texas (AP) â€” Seven years ago, during the long government standoff with the Branch Davidians, an FBI criminal profiler warned the on-scene commander about using force to end the siege.

If the FBI took ``physical action'' to end the confrontation and children died, Peter Smerick said in his March 7, 1993 memorandum to Jeffery Jamar, agents would be blamed even if they were not responsible.

Jamar ordered the use of tanks to fire tear gas into the compound on April 19, 1993, to force out the Branch Davidians. A fire broke out six hours into the operation, destroying the compound and killing about 80 people.

Now, with the wrongful death lawsuit filed by surviving Branch Davidian members set to begin, lawyers for the plaintiffs are hoping to use the information against the government.

``That's the best evidence we have from the government, period,'' plaintiffs' lawyer Jim Brannon said on the eve of Tuesday's opening statements.

The $675 million lawsuit consolidates nine civil cases filed in 1994 after the federal raid and deadly fire that burned through the compound near Waco. The trial is expected to last about a month.

Government lawyers say the memo falls under the ``discretionary function'' privilege, which shields the federal government â€” even if its agents' actions proved negligent â€” from liability in its decisions. The law is designed to give federal officials the ability to act without the fear of being sued.

U.S. District Judge Walter Smith was expected Tuesday to decide whether documents from FBI negotiators who were at the compound will be allowed before the seven-member jury, which includes one alternate.

Plaintiffs' attorneys were expected to argue the Bureau of Alcohol, Tobacco and Firearms agents used excessive force in the initial raid on the compound that started the standoff on Feb. 28, 1993; that the government may have caused at least two of the fires that destroyed the compound 51 days later; that it improperly withheld firefighting assistance; and whether using tanks to push into the compound deviated from a plan approved by Attorney General Janet Reno.

The initial raid set off a gunfight in which four agents and six Davidians were killed. After the April 19 fire, sect leader David Koresh and some 80 of his followers were found dead, some from the blaze, others from gunshot wounds.

Testimony in the case will focus on whether government agents used excessive force during the botched ATF raid that turned into a bloody gunfight, said Michael Caddell, lead counsel for the plaintiffs.

``Those four guys were victims of the same bad tactics, bad management and bad decision-making that ultimately resulted in the deaths of so many Davidians,'' said Caddell said of the four agents killed.

Plaintiffs' attorneys say agents fired indiscriminately at the compound even though women and children were inside.

U.S. Attorney Michael Bradford, lead counsel for the government, said the agents were ambushed by the sect and were firing back in defense of their lives. In 1994, five Davidians were convicted of voluntary manslaughter in the agents' deaths.

Smith last week removed what could have been the most contentious issue of the lawsuit â€” whether government agents shot at Davidians during the final hours of the siege.

He said the issue would not be addressed during the trial because a court-appointed expert was unable to attend due to illness.