From:
http://www.abcnews.go.com/sections/us/DailyNews/findlaw_waco000719.html
FindLaw Resources
http://abcnews.go.com/sections/us/DailyNews/findlaw_subindex.html
�It Wasn�t Even Close�
Analysis of the Waco Wrongful Death Verdict
By Solomon Wisenberg
Commentary by FindLaw
July 19 � In the end, it wasn�t even close. After a month of
testimony and just a few hours of deliberations, an advisory jury
cleared the government of wrongdoing during the 1993 siege of the
Branch Davidian compound in Waco, Texas.
Survivors of the fire that ended the siege in April, along
with relatives of those who died, had brought a wrongful death
action against the government, seeking damages.
But the advisory jury wasn�t convinced, and found for the
government across the board. (The jury served in an advisory
capacity because actions under the Federal Tort Claims Act (FTCA)
are heard by a federal judge alone.
Presumably, United States District Judge Walter Smith, Jr.
empaneled the jury because of the sensitive nature of the case.
He will make the final ruling himself, likely in August.)
Although the jurors have not discussed their reasoning publicly,
the decisive verdict seems to have resulted from evidence that
the Davidians were largely responsible for the deaths and
injuries they sustained.
If, as is expected, Judge Smith adopts the jury�s findings,
the trial court will conclude that:
ATF agents did not fire indiscriminately (or without
provocation) during the execution of the search warrant at the
Branch Davidians� Mount Carmel complex on Feb. 28, 1993.
The FBI did not negligently deviate from a
Washington-approved tear gas plan on April 19, 1993, when agents
knocked down Mount Carmel�s walls five hours into the operation.
The approved plan called for the walls to be knocked down 48
hours into the operation.
The FBI did not negligently start or contribute to the
spread of the fire or negligently fail to have fire-fighting
equipment in place on April 19.
The Battle With The �Beast�
The key to the government�s victory appears to have been the deep
complicity of the Davidian leadership in the events of Feb. 28
and April 19. Trial testimony showed that many adult male
Davidians (and some females as well) together unloaded a massive
volley of gunfire at ATF agents trying to execute a valid search
warrant on Feb. 28, 1993.
Davidian leader David Koresh unquestionably knew that
federal law enforcement agents, rather than unknown intruders,
were on the scene and in fact had warned his followers of a
future battle with such a �beast.�
Indeed, the testimony established that the ATF agents,
rather than Koresh and his followers, were taken by surprise and
pinned down under heavy fire with limited ammunition. Under these
circumstances, it seems fair to assume that the jury was not all
that bothered by the possibility that some ATF gunfire
indiscriminately raked the second story windows of the compound.
Most Americans, no matter how skeptical they may be of the
law enforcement community, are not willing to let their fellow
citizens choose which warrants to accept or reject � especially
when that rejection is accompanied by machine gun fire.
The government�s evidence as to who started the fires on
April 19 was similarly devastating. In addition to expert
testimony that the Davidians were responsible for setting the
fires, FBI-installed listening devices recorded sect members
joking about becoming �charcoal briquettes� and contemplating
�catching fire� a day before the compound was destroyed.
And on the day of the fire, the listening devices recorded
the chilling commands to �spread the fuel� and �light the torch.�
Given the Davidian involvement in starting and spreading the
fire, it is not surprising that the advisory jury absolved the
government on this question.
Lead plaintiffs� attorney Michael Caddell complained loudly
about Judge Smith�s jury instructions, particularly Smith�s
refusal to distinguish between child and adult victims, or to
allow the jury find that the government�s actions contributed to
the Davidians� decision to commit suicide. But given the brief
duration of the deliberations and the strength of the
government�s evidence, it is hard to imagine a different result
even with Caddell�s proposed changes.
What the Jury Did Not Hear
But there is a little more to the story. Theoretically important
to the government�s victory was the testimony the jury never
heard or ruled upon, due to Judge Smith�s pretrial rulings
concerning the scope of the discretionary function exception to
the FTCA.
Under this exception, the government is immune from suit for
the negligent acts of its agents if they are performing
discretionary, policy-type functions � such as deciding how to
execute a search warrant � pursuant to statute, regulation or
agency guidelines.
One could reasonably conclude that there were negligent acts
by the ATF leadership on Feb. 28 and the FBI leadership on April
19. But the trial did not focus on these acts. The advisory jury
was not asked, for example, to make findings as to whether the
initial ATF raid was negligent.
It is generally conceded that this raid was a strategic and
tactical disaster. It was undertaken without adequate contingency
plans and despite the loss of the element of surprise. Moreover,
Koresh probably could have been peacefully arrested, away from
the Davidian compound, had the ATF only tried.
Similarly, the jury was not asked to advise on whether the
FBI decision to conduct a high-risk tear gas assault on April 19,
rather than waiting out the Davidians, was in itself negligent.
The reasons typically given for the assault are that the Hostage
Rescue Team was fatigued and that conditions in general were
deteriorating.
But those reasons seem pretty flimsy, given that at least 18
children were dead after the assault. After all, protection of
the children inside the compound was supposed to be a high, if
not the highest, priority of the FBI during the siege.
Of course, had the jurors taken into account this additional
evidence, it�s not clear that their ultimate answers would have
been any different. As it was, they had evidence before them from
which they could have concluded that the tank demolition and the
failure to have fire-fighting equipment available in time were
deviations from a pre-approved plan of action.
Nevertheless, they remained unmoved � which isn�t surprising,
given the ample proof that the Branch Davidians started the April
19 fire.
Solomon Wisenberg, a former Assistant United States Attorney in
the Western District of Texas, is a partner in the Washington,
D.C. law firm of Ross, Dixon & Bell.
Copyright �2000 ABC News Internet Ventures.
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