Fair trial predicted in Waco, but some say bias against Davidians will influence jury

Monday, June 19th 2000, 12:00 am

By: News On 6

WACO â€“ Sitting in his pickup on a rural road near the Branch Davidian site, J.D. Middleton says he'd hate to be on the jury deciding whether the government was at fault for the tragedy that left more than 80 sect members dead.

"I wouldn't know which way to go," he said, calling the followers "addicts of religion."

"There were errors made on both sides," he said.

Jury selection starts Monday in the wrongful-death lawsuit brought against the government by families and survivors of the 1993 siege near Waco. Many residents say an impartial jury can easily be impaneled because most of them lost interest in the case long ago.

"Ninety percent of the people could care less," said Mr. Middleton, who lives nearby. "They are indifferent. There's people in Waco that know less about this than people out-of-state."

At a downtown Waco finance office, Kimberly Everett is one of many who say they wish it would all go away. Sometimes callers to her office make comments about Waco.

"They say, 'Oh, you're from Wacko.' We just laugh about it. Or they'll ask if we have any new cults coming in," she said. "Waco gets a bad rap for it."

But Ms. Everett, like others, said she, too, thinks a fair panel can be picked from the Central Texas region.

"Nobody is really pro or con on it, so it wouldn't be hard to find an impartial jury," she said.

Some aren't convinced.

Houston attorney Dick DeGuerin, who briefly represented sect leader David Koresh and met with him during the siege to try to persuade him to surrender, said he is "bothered a lot" that jurors will be drawn from the Waco area.

He noted that U.S. District Judge Walter Smith decided to move the criminal trial arising from the standoff to San Antonio because he feared that potential jurors in Waco might be too heavily influenced by publicity surrounding the incident that attracted worldwide attention.

"It really shouldn't be tried there," he said. "The people of Waco and that area are subjected wherever they go to ridicule, humiliation. When you say the word 'Waco,' it means government overreaching. It means religious nuts. It means the terrible things that happened. I think the community is under tremendous pressure to redeem themselves by blaming the Davidians."

Selection process

Fifty potential jurors will be summoned to Judge Smith's courtroom in Waco. Both sides predict that a jury of six and one alternate will begin hearing evidence by Tuesday. Federal juries hearing civil cases comprise six members, instead of 12.

Both sides will use jury consultants to pick prospective jurors. Lead plaintiff's attorney Michael A. Caddell is using the same consultant used in the San Antonio criminal trial.

Residents say they wish that the final chapter could be written on this seven-year saga.

"Everybody looks at it like, 'Oh boy, here we go again,'" said Larry Holze, a spokesman for the city of Waco. "The reality is that it's part of Waco's history. ... There is no reason to deny that, even though we had nothing to do with it and it wasn't in our [city] limits."

Returning sideshow

Residents say they know the circus is back when media vans begin to roll into town.

The U.S. Marshals Service has received requests from 35 news organizations for credentials to cover the trial. Authorities are planning for extra security at the courthouse, and the city has established a two-block area behind the federal building on Eighth Street and Franklin Avenue to accommodate media vans, trailers and satellite trucks.

"There's more interest among the media than the people here," said David Smith, a retired Waco city manager.

"We had the whole circus out at the compound. Then we had the civil cases brought by the families of the agents who died in the first raid," said Baylor University law professor Bill Underwood, who was one of the lawyers representing the families in that litigation. "Then we've had the endless series of property disputes among the remaining Davidians. We've had the criminal prosecutions. And now this."

But he said he thinks trying the case before a group of Central Texas residents is important.

"You've got a group of citizens alleging a pretty serious abuse of power by their government. That abuse and allegations of abuse are going to be tried in open court," Mr. Underwood said. "The government is going to be called and required to explain its acts. I think that it's important that a portion of this will occur in front of a group of citizens."

But Mr. DeGuerin said he doesn't think Waco is the right place to do it.

He noted that a state court jury recently asked to decide ownership of the land where the standoff occurred refused to award title to the surviving Branch Davidians and their church.

"The property, rightly or wrongly, belongs to the Davidian church. A Waco jury said we're not going to give it to anybody," he said. "The only thing that you can analyze out of that was that the jurors were anti-anything that seems to be in favor of Branch Davidians because of the ridicule that the Davidian incident has brought upon the whole community and the city."

Outside opinion

But finding a fair jury could be difficult anywhere, said a 50-year-old Garland man, who did not want his name used.

"I believe everybody has formed an opinion now," he said, standing outside the city's tourist center. "If it had not been for the fact of the weapons on the compound, I think the government should have left him alone."

He said he and his wife were skipping the Branch Davidian site on their trip; instead, they were going to the Dr Pepper museum.

"I don't care to go to a death place," he said.

But others do. Curiosity continues to bring visitors to where the compound once stood.

Walter Dulock lives across the road from a memorial honoring the four U.S. Bureau of Alcohol, Tobacco and Firearms agents who also died at the compound in the battle with sect members that started the standoff. He often directs travelers to the site.

"It's old news," Mr. Dulock said. "But it's never going to die."

Staff writer Lee Hancock contributed to this report.