July 14, 2000
Austin Chronicle
The themes for the government attorneys are suicide, arson, sex, and guns. Lawyers for the Branch Davidians are talking about women, children, missing evidence, and fire trucks.

The verdict in the Davidians' $675 million lawsuit, which will likely come next week, will hinge on which version of events the five jurors find most believable. Was David Koresh a suicidal maniac who convinced his followers to torch themselves? Or were federal police too lax in safeguarding the inhabitants of Mount Carmel during the 51-day siege that ended with a deadly fire which killed 74 Davidians -- including 18 children under the age of 10?

Whichever side the jurors believe, the trial in U.S. District Judge
Walter Smith Jr.'s courtroom will do little to quell the controversies that swirl around Waco. Too many issues have been set aside by Smith in the $675 million wrongful death lawsuit to bring any closure to the Davidians or to the government. And as the three-week-long trial winds down and attorneys prepare their closing arguments, true believers on both sides are lamenting lost opportunities to present their evidence in court.

Gordon Novel, the chief investigator for Ramsey Clark, the
former attorney general who is representing some of the Davidians, has complained vociferously throughout the trial that Clark has not been allowed to present evidence which he believes shows that federal authorities fired on the Davidians during the fatal April 19, 1993, fire. Novel says that Smith's ruling limiting each side in the lawsuit to no more than 40 hours of presentation is "a sham." Novel, a controversial New Orleans-based investigator whose past exploits include efforts to prove the existence of unidentified flying objects and that the FBI was behind the assassination of President John F. Kennedy, said his team has spent tens of thousands of hours investigating what happened at Waco. And yet, he said, "we aren't being given the chance to present our case. To say I'm sad is to understate the case. Judge Smith has killed so much of our evidence that this trial will be meaningless."

Some on the government side are frustrated, as well. Byron Sage
was the government's lead negotiator during the standoff. He has
since retired, but has become the agency's main defender on Waco.

Last Sunday afternoon, holed up in a Waco hotel room, Sage's
frustration was boiling over. "I so desperately want to get as much
information out in an unbiased form as possible," said Sage, who
hoped to take the witness stand during the trial. "The more you
know, the better we look." In particular, Sage wanted to introduce
some of the wiretap tapes and transcripts from the standoff. The
documents, he says, are "very significant in terms of mindset and
motivation of the Davidians. There is so much that's in here that
won't be addressed at trial, it's infuriating."

The audio tapes are just one aspect of the standoff that won't be
discussed. There also won't be any analysis or arguments about the
forward-looking infrared (FLIR) videotape shot during the FBI's
final assault on the compound. The plaintiffs had been counting on
the FLIR tapes to prove their contention that agents fired on the
Davidians, but Smith has ruled that it won't be discussed during the
trial. None of the members of Delta Force, the secret
anti-terrorism unit of the U.S. Army, who were at Mount Carmel
during the final assault, will testify. There will be no discussion of
the shooting of Michael Schroeder, a Davidian who was killed
outside the compound by ATF agents on Feb. 28, 1993. His corpse
lay where it fell for four days before it was examined by Texas
Rangers, and ballistics tests on the guns used by the ATF agents
who shot him have never been released. There will be no discussion
of the FBI's use of tear gas. The Davidians have claimed that the
amount of CS tear gas was excessive, may have been toxic to the
children in the compound, and may have contributed to the deadly
fire.

There also won't be any discussion of the 51 days of talks between
the Davidians and the FBI. The FBI believes the negotiations
showed their good-faith efforts; a lawyer for the Davidians calls it
"51 days of terror," and wanted to discuss the FBI's use of
psychological warfare against the civilians. There won't be
arguments about why federal police were allowed to bulldoze the
ruins after the fire, or why they destroyed the area known as the
vault, the concrete structure inside Mount Carmel where most of
the women's and children's bodies were found.

Perhaps the single most disappointing thing about the trial has been
the lack of drama. That's because none of the commanders at
Waco have appeared in the courtroom, and it appears none of them
will. Despite promises from U.S. Attorney Michael Bradford that
both Dick Rogers and Jeff Jamar, the two FBI commanders at
Waco, would appear in court, neither has been seen. Nor were ATF
commanders Phillip Chojnacki and Chuck Sarabyn called to the
witness stand. The two decided to go ahead with the Feb. 28, 1993,
raid on Mount Carmel even though they knew the element of
surprise had been lost. Their fateful decision led to the carnage that
followed. And according to the Treasury Department's own report,
the two men "lied to their superiors and investigators" about their
actions.

The lack of drama and controversial evidence has resulted in a trial
that is frequently soporific. On several occasions, one member of
the jury has been seen nodding off to sleep.

Government lawyers, led by Bradford, have shown jurors dozens of
charred guns, presented hundreds of exhibits, and brought numerous
witnesses to illustrate David Koresh's fascination with death, his
unorthodox sexual practices (he had 15 "wives"), his exhortations to
his followers that if he was killed, they should kill themselves, and
his fascination with high-powered firearms. They have also
presented evidence alleging that the Davidians spread Coleman fuel
throughout the building before the fire. As Bradford told reporters
last week, the defense case rests on the idea that the Davidians
would "do anything David Koresh told them to."

Meanwhile, Michael Caddell, the smooth-talking lead lawyer for
the Davidians, has gone out of his way to remind people that he is
not defending David Koresh, whom he referred to last week as "an
evil person." But whatever Koresh did, says Caddell, it didn't justify
the government's decision to begin tearing down Mount Carmel five
hours after the gassing began. Nor does it justify the lack of
firefighting equipment on the scene. Focusing on Koresh's
fascination with sex and guns, says Caddell, has been a "blatant
attempt to prejudice the jury against the Davidians." He says that
the government is in essence saying that "there were some bad
people at Mount Carmel, and so the rest of them deserved to die.
Until you get women and children pulling the trigger, they are pretty
innocent."

While the two sides bicker about Koresh's predilections, the key
term in the lawsuit will likely be the "discretionary function
exemption." Smith and the jurors must decide whether or not the
decisions made by the FBI at Mount Carmel are exempt from
liability for the deaths caused by those decisions. The exemption is
intended to protect government employees from civil lawsuits over
actions they pursue with diligence and in good faith.

Compared to issues like sex, suicide, and guns, the idea of
discretionary function isn't a very exciting topic. But it is exactly like
the rest of the issues that are part of the Waco maelstrom: It's
controversial and it won't be resolved any time soon.