WACO - A jury of four women and three men will begin hearing the Branch Davidian wrongful-death case Tuesday, a day after fierce clashes over the admissibility of key evidence detailing the actions of FBI commanders and sect members during the 1993 siege.
The jury was chosen during the opening day of the trial Monday, and their identities were kept anonymous.
Lead plaintiffs' lawyer Michael Caddell of Houston complained Monday that government lawyers had repeatedly ignored court discovery deadlines, ambushing lawyers for the plaintiffs as recently as last weekend with previously undisclosed documents and government witnesses that should have been turned over months ago.
Judge Walter S. Smith said, "The government has been extremely less than diligent."
But he refused Mr. Caddell's bid to keep out detailed transcripts of Branch Davidian conversations intercepted by FBI listening devices during the siege.
The transcripts could prove damaging to the sect's arguments that government agents used excessive force in their initial 1993 raid on the Branch Davidians' rural compound and acted improperly in their efforts to end an ensuing 51-day standoff.
Four ATF agents died in a gunbattle that broke out as they tried to search the compound for illegal weapons and arrest Branch Davidian leader David Koresh on Feb. 28, 1993. The siege ended when a fire broke out as FBI agents rammed the compound with tanks and sprayed in tear gas. Mr. Koresh and more than 80 Branch Davidians died.
Government officials have maintained that they did all they could to resolve the standoff peacefully and that Mr. Koresh and his followers were responsible for its tragic outcome.
But lawyers for surviving Branch Davidians and relatives of those who died have alleged that FBI commanders were negligent in deciding not to try to fight any fire that might break out that day or have adequate fire equipment available.
They also have charged that the FBI's leaders in Waco violated a Washington-approved gas plan when they sent tanks deep into the rear of the building and knew such an action would provoke a violent response.
The transcripts, prepared by a government expert, suggest that sect members laughed about shooting federal agents and seeing one get his head blown off. They also suggest that sect members tried to talk an intruder out of leaving by telling him no one left without approval from sect leader David Koresh and also joked two days before the compound burned that firetrucks couldn't get near any fire on their property.
In one of the March 15 transcripts, a voice that appeared to be Mr. Koresh's said jokingly, "A guy came around the corner going - then I looked around the corner and saw the guy over there, you know, and, uh, in the corner all slumped, and he was, all his head down like this, and then his head blew up. "He shouldn't have been standin' in my door. ... Tryin' to come in. ... But I - I didn't, you know. ... What am I goin' do? Let 'em come in?"
In a morning of last-minute skirmishes over the amount and scope of evidence to be allowed in the case, the judge also ruled that the plaintiffs may introduce internal FBI documents that could prove damaging to the government's defense.
Those included a proposal bearing initials of the FBI's two Waco commanders that recommended medals for hostage rescue team members who had helped dismantle the sect's rural compound April 19, 1993.
Mr. Caddell called that document "a smoking gun" that could determine the outcome of the case.
He and other lawyers for the plaintiffs have contended that the decision by FBI commanders Richard Rogers and Jeffrey Jamar to send tanks into the building six hours after the FBI launched its tear-gas operation violated the plan approved by Attorney General Janet Reno. That plan said the compound would be gassed for 48 hours before tanks would begin dismantling it.
Lawyers for the government repeatedly told Judge Smith that broad federal protections from lawsuits against government agencies and employees prohibited the court from admitting the medals document - and even the FBI's drafts of its operations plan for the gas assault.
The federal tort claims act includes a blanket protection - the discretionary-function exemption - that prohibits private legal challenges to most decisions and policies of federal employees and agencies.
Citing that exemption, Judge Smith has thrown out parts of the plaintiffs' case revolving around the government's decision to gas the compound, its decision to use tanks to spray gas in and efforts to negotiate a surrender before the April 19 assault.
Government lawyers used that argument Monday to try to block the introduction of internal documents, memos and interview notes detailing FBI negotiators' fears that Mr. Rogers and Mr. Jamar sent tanks in prematurely April 19 because they were frustrated and angry.
Mr. Caddell "claims that he's not offering this evidence to challenge the FBI's conduct. ... But that's precisely why he's offering it," said Marie Louise Hagen, a Justice Department lawyer who is one of the government's lead defenders. "He's offering evidence that is very prejudicial."
In one of the negotiation documents, an FBI behavioral expert warned Mr. Jamar a week after the siege began that attacking the building with tanks would lead to the deaths of children and intense criticism of the FBI. In another, one of the lead FBI negotiators at Waco - an agent who now heads the bureau's crisis-management unit - said after the siege that any negotiator could have predicted the deadly outcome of sending tanks into the compound.
But Mr. Caddell countered that the documents would help a jury understand the mindsets of Branch Davidians on April 19 and why they did not trust the FBI.
He added that the documents would show the motivation of the two Waco FBI commanders as well as the warning given Mr. Jamar of the tragedy that might result from sending in tanks.
"The FBI has said for seven years, 'Nothing we could've done would've made a difference,'" Mr. Caddell said. "That's not true. Their own people say we would have ... gotten more people out." Judge Smith delayed a ruling on the matter but is expected to decide before the start of opening arguments. He noted at the end of the day that he had surprised even himself in picking a jury by mid-afternoon.
More than a dozen surviving sect members and relatives of the dead came to the federal courthouse at the edge of downtown Waco on Monday for the proceedings.
Sherry Burgo was among several Branch Davidian family members who attended. Her father, Floyd Houtman, died in the fire that ended the standoff.
"It disturbs me that they were treated this way," Ms. Burgo said outside the federal courthouse. "For me, it isn't about money. ... It's to clear my father's name."
A jury was picked from a pool of 60 people from 13 counties.
The panel includes two Waco men, a property manager and an elementary physical-education teacher. Others include a Copperas Cove payroll accountant who works at Fort Hood, a Limestone County victims' assistance program employee and a Hewitt homemaker.
A sixth juror, from Bell County, is a management assistant whose husband is a retired Army sergeant. The seventh is an aircraft electrician from Bell County.
Two of the seven are black.
Potential jurors were asked whether any of them had a child who had died or whether they had been involved in a dispute with the government. None had. Some jurors were excused early for conflicts such as planned vacations and work commitments. A few people raised their hands when asked whether they had heard about the case. The judge told potential jurors that "this situation has been highly, highly publicized."
The trial, Judge Smith told them, is expected to last four to five weeks.
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