Branch Davidians asking for new trial against U.S. government

Waco Tribune-Herald, Feb. 9, 2003
By TOMMY WITHERSPOON Tribune-Herald staff writer

Branch Davidian survivors and victims’ families say they are entitled to a new trial of their wrongful-death lawsuit against the U.S. government because U.S. District Judge Walter S. Smith Jr. of Waco has exhibited “deep-seated antagonism” against them.

The surviving Branch Davidians and their families claim in a lengthy brief to the 5th U.S. Circuit Court of Appeals that Smith erred by not removing himself as judge over the $675 million lawsuit.

A three-member panel of the New Orleans-based federal appellate court is set to hear oral arguments in the case Monday morning.

“I think even the Branch Davidians are entitled to a fair trial, and they didn’t get that,” said plaintiffs’ attorney Mike Caddell of Houston. “That really says it all. The real question is are we going to have a double standard in this country for the Microsofts and the Enrons and the rich and powerful? Are we going to have one standard for those people and another standard for the poor or the disadvantaged, unpopular outsiders?”

An advisory jury in Waco’s federal court concluded in July 2000 after a monthlong trial that David Koresh, not the government, was responsible for the deaths of 76 Branch Davidians, including Koresh and 21 children, in a fire at Mount Carmel April 19, 1993.

The fire erupted during an assault of the Branch Davidian compound east of Waco in which federal agents knocked holes in the walls with military vehicles to insert tear gas. The fire ended a 51-day standoff that began Feb. 28, 1993. About 100 federal agents stormed Mount Carmel in an attempt to arrest Koresh and his followers on weapons violations on Feb. 28. A two-hour shootout ensued and four agents and six Branch Davidians were killed.

Smith, who also presided over the criminal trial of 11 Branch Davidians in San Antonio in 1994, ruled after the civil trial that the government was not liable in the deaths of Koresh and his followers.

The plaintiffs’ appeal claims that Smith should have recused himself from the trial because he was close to at least two of the original defendants, had made no effort to hide his disdain for the Branch Davidians and went out of his way to sentence the criminal defendants to lengthy prison terms, which later were overturned by the U.S. Supreme Court and reduced.

“If we are to have any integrity, if we are going to have any confidence in this country’s justice system, we have to extend the same standard to everyone, no matter how unappealing they may be,” Caddell said. “The Davidians, to many people, are particularly unappealing. But they have the same rights under the Constitution to a fair trial as the rich and powerful. That is what this is about.”

Charles Miller, a Justice Department spokesman in Washington, D.C., declined comment on the appeal, saying the government’s response speaks for itself.

Attorneys for the government contend that Smith did not abuse his discretion by failing to recuse himself and demonstrated no bias that would warrant a recusal.

Among the examples of the judge’s alleged “animus” outlined in the plaintiffs’ appeal is a description of an incident during the civil trial in which Smith called Branch Davidian Livingstone Fagan “a crazy, murdering son-of-a —–” during a conference with attorneys.

Smith, according to the brief, explained that his comments were “off the record and in response to another lawyer’s humorous suggestion, and was not in any way intended to be taken seriously. The court regrets the slight to Mr. Fagan’s mother, should he have one.”

The appeal contends that besides admitting his “profane” reference to Fagan and his mother, the statement also demonstrates the judge’s unfamiliarity with the pleadings and parties in the case.

“Livingstone Fagan’s mother, Doris Fagan, burned to death in the fire at Mount Carmel on April 19, 1993. Her estate was a plaintiff in the trial,” the appeal states.

The brief contends that throughout the proceedings, the judge “demonstrated a high degree of antagonism toward the appellants which made fair judgment impossible.”

A spokesman in Smith’s office said the judge could not comment on a pending case.

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