THE WACO ADVISORY VERDICT

By SOLOMON WISENBERG

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. empanelled 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 February 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 February 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 February 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 to 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

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 February 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 Solomon L. Wisenberg

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