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Texas Lawyer July 26, 1999 Burning Questions Branch Davidian Survivors' Suit May Resolve Concerns Over Feds' Conduct by JOHN COUNCIL
For six years, hundreds of containers of evidence relating to the federal government's raid on the Branch Davidian compound have sat in an Austin storage room, protected by the Texas Department of Public Safety and rarely seeing the light of day. Requests from the public and the media for access to that evidence -which includes videotapes, photographs and audiotapes that may paint an unflattering picture of the government's conduct during the 1993 raid near Waco - have typically been met by confounding replies from federal and state officials. "The DPS says, 'We have it, but we don't control it.' The DOJ [U.S. Department of Justice] says, 'We don't have it. Ask DPS,' " says Michael A. Caddell, a Houston lawyer who's suing the federal government on behalf of the Branch Davidians' surviving family members. "It's like chasing your tail. It's the kind of games playing that makes people not trust the government." But all of that soon may change. Caddell's civil suit is proceeding thanks to a July 1 order issued by U.S. District Judge Walter S. Smith Jr. of Waco. Caddell hopes the suit and the discovery it produces will clear the smoke around what happened on April 19, 1993, the day the compound burned to the ground killing 73 people inside (18 other people died from gunshot wounds) after a 51-day standoff. Caddell believes the government may be responsible for some or all of those deaths, and believes some of the evidence will show that agents shot into the compound on that final day and used pyrotechnics that caused the compound to burn. The government denies those allegations, and in motions to dismiss the case, DOJ lawyers assert that sovereign immunity protects the government from such tort claims. The government has long maintained that the Branch Davidians set fire to the compound. Many of the civil suits filed against the defendants were consolidated in 1996 to be tried before Smith. In motions, the government defendants asked Smith to dismiss the suit. Smith dismissed all of the claims against the individual defendants (except those against Lon Horiuchi, an FBI sniper accused of firing into the compound), but he allowed some of the controversial claims against the ATF and FBI to go forward. "If one or more ATF agents shot into the compound indiscriminately and without provocation, such would be the type of behavior that could lead to liability," Smith wrote in his order. "There is insufficient evidence at this point for the court to determine, as a matter of law, how the fire was started in the compound (although there is nothing to support plaintiffs' claim that the government started the fire intentionally)." "If it is determined that some of the Davidians actually started the fire in the case, the United States would not be liable for failing to protect the remaining Davidians," Smith continued. "Likewise, there would be no liability based upon the Government's failure to end the stand-off successfully." A DOJ spokesman says the government has not decided how to proceed with the case or whether to appeal Smith's order. "We're still in just the reviewing stage," says Myron Marlin, who suggests that the DOJ prevailed in Smith's order. "We got something like 100 claims thrown out," he says. Some of those discarded claims included RICO actions against the government. Marlin declines to comment on specific questions about the suit because it is pending. But Caddell says Smith's ruling leaves the main issues in the suit intact. "Smith has ruled that we can go to trial on, [what] is for me, what the lawsuit is all about." Shots Fired Caddell's discovery process may actually be aided by independent chroniclers of the Branch Davidian raid who have doggedly pursued evidence about the stand-off for years. Or, at least, those people may give Caddell a glimpse of what he's in for. One of them is David T. Hardy, an Arizona lawyer who has been trying to pry the evidence loose for a book he intends to write. Hardy filed suit against the FBI and the ATF after they dragged their feet on releasing evidence, including infrared tapes shot by federal agents. Some independent investigators claim those tapes show agents shooting at the compound on the day it burned. On July 6, Senior U.S. District Judge Alfredo C. Marquez of Arizona awarded Hardy $32,000 in attorneys' fees for his three-year quest to get information from the government. "The court's decision to award attorney fees tips in favor of the plaintiff because of the unreasonableness of defendant's excuses for withholding information," Marquez wrote. "The FBI's conduct was far superior to that of the ATF, but in this court's opinion FBI stonewalled the release of the most controversial of plaintiff's requests: the FLIR (infrared) tapes." Hardy expects that the civil lawyers will be more successful during discovery than he was with his Freedom of Information Act requests. "The guys handling the litigation may get a ton of stuff," Hardy says. "The discovery potential is unbelievable." Interestingly, much of that evidence may end up under Smith's control during discovery, and not the government's. The Texas Office of the Attorney General filed a motion July 9 with Smith's court asking to be relieved of the duties of caring for the records and handling requests to see them. "The Department of Justice has requested that it receive all requests from the public for access to evidence," wrote Texas Assistant Attorney General Daniel E. Maeso in the motion. "It has responded to such requests by asserting its lack of possession of the evidence and, ultimately, referring the same requests back to the DPS." DOJ lawyers in Washington did not return two phone calls. Maeso has also asked for the evidence to be kept under seal and under the court's control. Smith has not yet ruled on the motion. If Smith grants the motion and keeps the evidence, it could hurt the government, says Michael McNulty, a Fort Collins investigative reporter who served as researcher and producer for the 1997 independent documentary film, "Waco: The Rules of Engagement," which was nominated for an Academy Award. "Instead of being the guardian of the evidence, they have to go ask for it. It's definitely added a new twist to the case," McNulty says. "They won't have the masterful control of the evidence that they might have had. If you have control of the evidence, you have control of the case." McNulty says he obtained copies of the infrared tapes from lawyers who got the evidence through discovery in defending the surviving Branch Davidians during their criminal trials. His film examined the infrared tapes and suggested that government agents fired into the compound on the final day of the siege and that devices they placed in the compound contributed to the fire. McNulty filed a declaration last month with Smith's court stating that he recently examined evidence in the DPS storage facility under the supervision of an assistant U.S. attorney while working on a new film project. He claims he found evidence including: photographs that show government personnel pouring bleach over bullets in order to destroy hair fibers and tissue; a videotape of a helicopter directing gunfire into the compound; and "flashbang and other pyrotechnic munitions recovered by the Texas Rangers from inside and around Mt. Carmel, including some recovered at or near the alleged points of origin of the April 19, 1993 fire." Bill Johnston, a Waco assistant U.S. attorney, says he accompanied McNulty on a supervised visit of the evidence storage room, and that subsequent visits by the investigator were supervised by the Texas Rangers. "Throughout this case, the government has suffered because of a perception of not being open and a perception of not being accountable. That lends itself to other bad feelings," Johnston says. "Because of that, I felt that we should lean toward giving some access." Dan Cogdell, who represented surviving Branch Davidian Clive Doyle during his criminal trial, doesn't remember tapes being handed over to McNulty. But he does remember the tough time he had examining government surveillance tapes he was given during discovery. "We got literally weeks worth of surveillance a few days before cross-examination. It's an impossible task," Cogdell says. "You can scream all day, but it's very tough to get a case reversed based on a discovery claim." Eleven surviving Branch Davidians were tried in federal court for murder in connection with the deaths of four ATF agents killed during the raid. All were acquitted of murder but four were found guilty of the lesser-included offense of voluntary manslaughter. Cogdell says he has no doubt that plaintiffs lawyers with civil suits will have a much easier time with discovery than he did. "It's just one of the many ironies," Cogdell says. "Your monetary rights far exceed your civil liberties."
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Attorney Michael A. Caddell accuses the government of playing games with
the evidence.