Vol. 3, No. 3
to other articles
in this issue:
From the Editor: Taking Stock
Cult Fighting in Massachusetts
The Mexican Election: Bringing the Church Back In
Rome, Relativism, and Reaction
Tibet I: Lama on the Lam
Tibet II: Monastic Spinmeister
The Never Ending Story
Trial and Error
by Stuart A. Wright
During the week of June 25, I attended the civil trial in Waco of the wrongful death
lawsuit brought against the federal government by survivors and relatives of the Branch
Davidians. I had been looking forward to the trial with anticipationand some
amazementsince for many years it looked like it would never come about.
The 1994 criminal prosecution had been disastrous for the embattled sect even though a
San Antonio jury acquitted all defendants of murder and conspiracy to murder. The jury did
find five Davidians guilty of the lesser charges of aiding and abetting the voluntary
manslaughter of a federal officer. And, confused by Judge Walter Smiths
instructions, the jurors convicted on a weapons count under the assumption that it was
tied to the manslaughter chargewhereas it was tied only to the murder charge.
Faced with this inconsistent verdict, the judge set aside the verdict, but then, at the
behest of the federal prosecutors, changed his mind and reinstated the convictions.
Prosecutors argued that perhaps the jury was splithalf wanted a murder conviction
and half wanted a complete acquittalhence, a "compromise." Smith
didnt bother asking the jurors their intent. (They later filed sworn statements
indicating that the inconsistencies were due to confusion surrounding the judges
instructions, not a compromise.) Ruling that the weapons used in the commission of the
crime were machine guns, he sentenced five to the 40-year maximum allowed by federal
sentencing guidelines, while three others received lesser terms. A unanimous Supreme Court
later reversed these sentence enhancements, finding that the type of firearm used should
have been determined by a jury during presentation of evidence.
Given his rulings in the criminal case, it seemed very likely that Smith would dismiss
the civil charges and let the government off the hook. But in August 1999, investigators
for plaintiffs attorneys discovered pyrotechnic devices in the evidence storage room
in Austin. The FBI had denied for six years that its agents used pyrotechnic devices that
might have caused the fatal conflagration during its "insertion" of CS gas on
April 19. The FBI also failed to turn over audio tapes and other documentation of
pyrotechnic roundswhich to some indicated a cover-up. The Attorney General, angry
about the misrepresentations and concealment of evidence, appointed a special counsel,
former Missouri senator John Danforth, to open a new investigation. Pressured by the new
discoveries, Judge Smith allowed the Davidian lawsuit to go forward, much to the chagrin
of the Justice Department.
So, seven years after the worst debacle in federal law enforcement history, here we
were back in Judge Smiths courtroom to hear the case. As I looked around, I
recognized several news reporters. Jennifer Autry, whom I had spoken with a few days
earlier in an interview, was there for the Ft. Worth Star-Telegram. Lee Hancock,
who broke the story on the discovery of the pyrotechnic devices, was covering the story
for the Dallas Morning News. Dick Reavis, author of Ashes of Waco, was
representing the San Antonio Express. Mark England and Tommy Witherspoon were both
on hand for the Waco Tribune-Herald. Robert Bryce, whom I didnt know before
but befriended during my stay in Waco, was covering the story for the Austin Chronicle,
an alternative weekly, as well as for the on-line magazine Salon. Terry Ganey of
the St. Louis Post-Dispatch sat quietly in the back of the courtroom each day. Not
present, at least in terms of daily coverage, were two major news organizations in the
state, the Austin American-Statesman and the Houston Chronicle. As for the
national news organizations-the New York Times, Washington Post, USA
Today, Time, Newsweek, TV network news, etc.they were conspicuous
by their absence.
My principal objective in attending the trial was to continue gathering data for what
now had turned into a seven-year study of the Branch Davidian standoff. I was also curious
to compare notes with news reporters, weighing the relative importance of testimony,
evidence, and argument. As a sociologist I wondered if our evaluations or assessments
would be similar. How much background or history of the incident would journalists
understand? Would they be able to grasp the politics of the case? Would they ask the right
questions? Who would have the best coverage? These were significant issues, since the
media "narratives" would help frame the attitudes and perceptions of the public
as much, perhaps, as the verdict.
Most items of interest to the public were conveyed reasonably well by reporters. In the
first days of the trial, plaintiffs attorney Michael Caddell showed video images of
the children who died at Mt. Carmel. The testimony of surviving children, who described
the horrors of lying low on the floor, bullets flying overhead, and glass shattering, was
widely reported. Lawyers for the Davidians also revealed videotaped depositions of FBI
officials, such as Deputy Assistant FBI Director Danny Coulson and FBI Director William
Sessions, who said the destruction of Mt. Carmel during the insertion of CS gas was not in
the plans. One of the most shocking news stories concerned the first public airing of a
1993 videotaped deposition of Attorney General Reno telling investigators that senior FBI
officials told her to "butt out" after she agreed to the CS plan.
A central issue concerned ATF claims that its agents did not expect a violent response
to the initial raid and were "ambushed" by the Davidians. After testifying that
he and other agents only expected a "fistfight," ATF agent Gerald Petrilli
admitted under cross examination that they learned to treat "sucking chest
wounds," administer intravenous lines, give shock treatment and other emergency
medical care in the field during two days of training at Ft. Hood in preparation for the
raid. Agents also had their blood types stenciled on their necks, were adorned in
camouflage and full military combat gear (including Kevlar helmets and flak jackets), and
carried MP-5 submachine guns, semi-automatic AR-15s, Sig Sauer 9 MM semi-automatic
pistols, high-power sniper rifles, and concussion grenades. The government countered by
detailing the sects extensive arsenal, including illegally converted machine guns
and AK-47 assault rifles. Government attorneys also called on ATF agents injured or fired
upon by Davidians who claimed they were "outgunned" at Mt. Carmel. News stories
gave a good account of the back and forth.
But reporters paid insufficient attention to critical rulings by Judge Smith that
narrowed the evidence presented at trial and rendered the final result all but inevitable.
For starters, the judge granted "discretionary function" exemptions to federal
officials, essentially giving them immunity for having made bad decisions in choosing the
actions to take against the Davidians. The intent of the discretionary function exemption
is to protect law enforcement agents from being second-guessed in situations requiring
urgent and spontaneous decisions in the course of their duties. But its up to the
court to decide how broadly or narrowly to interpret it. Judge Smith chose a very broad
interpretation. No evidence could be offered concerning the FBIs decision to abandon
conciliatory negotiations early in the standoff in favor of "psychological
warfare," a counter-terrorism program developed by military special forces. Nor could
a challenge be mounted to the decision to insert massive amounts of CS gas, a chemical
weapon banned internationally for use even in wartime.
In addition, the judge restricted the scope of evidence to the 51 days between the
initial ATF entry on February 28 and the final conflagration on April 19, 1993. The jury
never got to hear evidence about the faulty raid plan, which a joint report by the House
Committee on Government Reform and Oversight and the Senate Judiciary Committee called
"grossly incompetent" and concluded was largely responsible for the deaths of
the four ATF agents. The jury never learned that the ATF misrepresented to Department of
Defense officials that the Davidians were involved in illegal drug manufacturing in order
to obtain military assistance and equipment. The jury was not privy to information
regarding the ATFs planning of a high-risk "dynamic entry" two months
before surveillance, undercover, and infiltration operations were even begun. It did not
hear that the ATF ignored opportunities to serve the warrants on Koresh alonewhich
would have avoided the unnecessary endangerment of 130 other residents at Mt. Carmel who
were not named in the warrants. And no evidence was presented regarding the decision by
ATF commanders to proceed with the military-style raid even after the element of surprise
Judge Smith also narrowed the interrogatories posed to the jury so severely that jurors
could have answered "no" to the specific questions but still have believed that
the government had some culpability in the case. For example, the jurors were asked to
decide if excessive force was used only in regard to whether agents fired 1)
indiscriminately into the complex and 2) without provocation. Smith also lumped all
Davidians into a single group, not allowing the jury to consider that some sect members,
such as the children, were innocent victims. This so upset the plaintiffs lead
attorney, Michael Caddell, that he publicly accused the judge of trying to "engineer
a verdict" in an interview with reporters before jury deliberations were completed.
Judge Smith was livid and castigated Caddell at length for his remarks to the press. By
the end of the trial, the Davidian attorneys were resigned to defeat.
To their credit, Bryce of the Austin Chronicle and the Morning Newss
Hancock both raised hard questions about the effects the evidentiary rulings had on the
outcome of the trial. In an August 18 article, Bryce pointed out that the Davidians were
not allowed to present evidence regarding "proof that the Bureau of Alcohol, Tobacco
and Firearms lied about their actions at Waco or covered up evidence," the "type
and extent of training given to ATF by Army Special Forces at Fort Hood," or the
"FBIs failure to follow its own hostage-negotiation guidelines during the
51-day standoff." Bryce also quoted Davidian survivor David Thibodeau saying,
"The biggest outrage is, we had experts from everywhere, and Judge Smith
wouldnt let us put them on." For her part, Hancock gave comprehensive coverage
to complaints about the judge by plaintiffs attorneys. In a July 14 story, she cited
Michael Caddells charge that the judge was issuing jury instructions designed to
favor the government. She noted that during the jury selection process, Smith told
prospective jurors: "You cant treat all of the plaintiffs as one single
group." Yet when the judge gave instructions to the jury before deliberations, he
lumped all the plaintiffs together.
The APs Susan Gamboa likewise deserves mention for a report focusing on the
evidentiary rulings in a July 15 story quoting Department of Justice spokesman Thom Mrozek
as saying, "Even before we got to trial, the case was whittled down significantly to
relatively narrow legal issues, in large part, because a lot of things we did are
protected by the nature of discretionary function."
Beyond the rulings themselves, the press largely ignored the tension between the
federal judge and the plaintiffs attorneys. It was clear to me from the outset that
the Davidian attorneys had to argue their case before a judge who was ill at ease with
this lawsuit against the government. The appointment of an advisory jury might have
lessened the judges discomfort somewhat. But I was struck early on by the
judges reproachful disposition toward the plaintiffs attorneys, particularly
Ramsey Clark and James Brannon. Smith barked and snapped at the two several times during
the trial, sending not-too-subtle messages to the jury. I found this display of behavior
in a court of law deeply disturbing. (Social psychologists have demonstrated that people
tend to rely on "paramessages"verbal and nonverbal cues that shape their
assessments, especially when conveyed by a respected authority figure.) Bryce was one of
the few reporters to address this tension, writing in an August 18 story that "while
the Davidians had plenty of faith in God, they had no faith in Judge Smith. Indeed, the
Judges enmity toward the Davidians is long and deep."
Given the choreography of the trialthe "discretionary function"
exemption granted the government, the restriction of evidence to the 51 days, the
narrowing of the interrogatories, the lumping together of all plaintiffs, and the
paramessagesthe verdict exonerating the government was hardly surprising.
In mid-September, approximately two months after the verdict, Michael Caddell filed an
18-page motion alleging that Judge Smith had showed a "profound" and
"deep-seated prejudice" in the trial. The motion alleged that Smith exhibited
personal animosity and hostility toward the plaintiffs, their attorneys, and witnesses.
During one bench conference, Caddell claimed, Smith referred to a videotaped witness,
Livingstone Fagan, as "a lying, murdering son of a bitch." Smith even offered to
exclude Fagans testimony, though the government made no such motion.
In another instance, Smith told plaintiffs attorneys that their transcripts of
surveillance recordings were "bullcrap," even though they were later shown to be
more accurate than the governments. Caddells motion also said that the judge
acted improperly in congratulating a government attorney after a grueling and
inquisition-like cross-examination of Davidian survivor, Clive Doyle, which seemed to put
the groups religion itself on trial. Caddell also charged that government personnel
gave gifts to Smiths staff after the trial: T-shirts labeled "WWPD?"
(i.e., What Would the Police Do?-a play on the popular evangelical phrase, "What
Would Jesus Do?"). "It was clear soon after the trial commenced," Caddell
wrote, "that Judge Smith had made up his mind and he could have written his opinion
There were only a handful of news reports covering Caddells motion, among them a
brief and superficial AP story and an only slightly more adequate account by Ganey of the Post-Dispatch.
Tommy Witherspoon of the Waco Tribune-Herald did file an excellent report, but
Hancock did the best job, detailing the problematic history of Smiths role in the
1994 criminal trial and revisiting the tensions arising between Smith and plaintiffs
attorneysincluding a statement from Caddell that the fight had become
"personal." Hancock also incorporated the opinions of legal experts on the
intent and possible success of the motion. Northwestern University law professor and
judicial ethics expert Steven Lubet observed that the motion appeared to be aimed at
convincing an appeals court of an "accumulation of error" or appearance of bias
by the trial judge. University of Louisville law professor Leslie Abrahamson noted that a
key issue for the appeals court might be the appearance of propriety or "whether a
judges impartiality might be reasonably questioned." Both legal experts opined
that such arguments would be difficult to win.
In the end, the significance of the plaintiffs motion was missed entirely by most
news organizations because they failed to look at evidentiary rulings, procedural
decisions such as the "results-oriented" jury instructions, and the apparent
contempt for the Davidians by the trial judge.
Perhaps the only thing more disconcerting than the ignored subtext of Judge
Smiths thinly veiled scorn toward the plaintiffs was the lack of coverage of the
trial by the major national news outlets. Outside of Texas, the mainstream media decided
that the country didnt want to revisit the painful memory of Waco. In tandem with
Special Counsel Danforth, they determined that this unfortunate episode should be put
behind usand permitted a biased judge to sweep legitimate grievances under the rug.
As a result, the country in all likelihood missed its last opportunity to correct an
agonizing injustice and heal a national wound.