Key issue at Waco trial: Were federal agents negligent?

It took but a few moments in April 1993 for a fire at the Branch Davidian residence to spread into a blazing deathtrap for nearly 80 men, women, and children inside.

But it has taken more than seven years for a multimillion-dollar wrongful-death suit to begin in a federal courtroom.

This week at the federal courthouse in Waco, Texas, a judge and jury are examining allegations that US agents who conducted the 51-day siege of the Branch Davidian compound in 1993 are partly responsible for those deaths.

The showdown at Waco has already been the subject of congressional and media investigations, and former US Sen. John Danforth is undertaking - at Justice Department urging - an independent examination of federal agents' conduct from the initial shootout in February 1993 to the fiery conclusion roughly two months later.

Far more worrisome to Justice Department officials, though, is the prospect of facing a jury of ordinary Americans.

"Congress can certainly hammer officials and threaten appropriations, but ... the Justice Department is adept at suggesting that congressional investigations are very partisan," says Jonathan Turley, a law professor at George Washington University here. "Civil litigation represents something much more serious.... A civil verdict by a panel of citizens is much harder to dismiss."

Questions have lingered over the motives and tactics of federal agents at Waco. Indeed, just the name Waco has become a kind of short-hand for iron-fisted government action.

Why the standoff went awry

Some analysts say agents sought to punish the Davidians with lethal retribution after US agents were slain in the initial raid. Others suggest that impatience and aggressive egos clouded the judgment of some agents on the scene. Still others place primary blame for the deadly outcome at the door of David Koresh, the doomsday-preaching leader of the Davidians who died in the compound.

"There is widespread agreement across the political spectrum that the government made serious mistakes at Waco," says Solomon Wisenberg, a former federal prosecutor who is now a criminal-defense lawyer here. "It is one of the few things liberals and conservatives can agree on."

Now, a judge and jury must decide if federal tactics at Waco should translate into an excessive-force verdict against the government.

The case will be hard fought. Legal analysts say US tort law allows agents at an armed standoff substantial discretion to take whatever action they deem necessary without facing second-guessing by a judge after the crisis.

But others say federal agents should have foreseen the tragic outcome of the use of aggressive tactics, particularly given lessons from earlier deadly sieges.

A 1984 siege ended tragically when a suspect died after government flares inadvertently ignited his cabin. A year later, Philadelphia police used a small incendiary device during a raid against a group called MOVE. Eleven followers died in the resulting fire.

"Negligence comes down to foreseeability," says Mr. Turley. "Waco occurred long after that kind of fire danger was well known in these types of procedures...."

Who did what, when?

The government's case isn't helped by an attempt to cover up certain conduct during the Waco siege. After six years of denials, the Federal Bureau of Investigation admitted last year that its agents had fired potentially flammable tear-gas canisters at the Davidians' residence several hours before it burned to the ground.

And it still is unclear whether agents fired rifles toward the complex on the last day of the siege, an action that might have kept Davidians - including women and children - from fleeing the spreading fire. That specific allegation will not be presented to the jury, but will be considered later by US district Judge Walter Smith. In a somewhat unusual move, the jury was impaneled to serve in an advisory role to Judge Smith, which means the judge will decide the case, but may accept or reject the jury's findings.

The expected month-long trial is the result of the consolidation of nine civil cases filed in 1994 by survivors and relatives of Davidians who died during the February raid or on the final day of the siege in April. They are seeking $675 million in damages.

At the heart of the case are allegations that the government contributed to two of three fires that broke out on the last day. Lawyers for the Davidians say agents negligently prevented fire-rescue equipment from responding to the blaze.

Government lawyers counter that the fire was set by the Davidians in a suicide pact and that firefighters would have made easy targets for the armed Davidians. The government also insists that agents did not open fire on the compound that day, other than firing tear-gas canisters.

Phillip Arnn of the Watchman Fellowship, a Christian evangelical group that monitors organizations it considers to be religious cults, saw "two extremes" at Waco. "Neither was willing to give an inch," he says. "The FBI was going to take this man one way or another, and David Koresh wasn't going to be taken."

Mr. Arnn says each side made mistakes. "Do the relatives deserve compensation? I would say probably no. Should people in the government lose their jobs? Absolutely."

(c) Copyright 2000. The Christian Science Publishing Society