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Waco trial: Repeated as farce?
Alan Bock

The advisory jury's decision in the Branch Davidian civil damages trial that the government and its agents were not responsible for the fire that led to the deaths of more than 80 men, women and children was stunning to many, especially those who have studied the incident or at least have seen one of the two documentary films produced by Mike McNulty, "Waco: Rules of Engagement," and "Waco: A New Revelation." But while some view the jury's decision as virtual nullification of the law, perhaps similar to the jury's verdict in the O.J. Simpson case, the verdict might not be all that surprising given the extent to which its access to relevant information and scope of jurisdiction were limited by Judge Walter Smith.

For starters, this was a jury whose work was only advisory in nature, and it began not as a 12-person jury but a six-person panel. Such a procedure is not unprecedented in civil cases, according to the Cato Institute's Tim Lynch, with whom I discussed the case as it was ongoing. But it is quite unusual.

Judge Smith was also the judge in the criminal trial against surviving Branch Davidians when the government, in an especially nasty bit of business, brought criminal charges against those whose compatriots and relatives had been killed in the Mount Carmel conflagration. He conducted the trial in a way that favored the prosecution, and then imposed sentences that were so grotesquely lengthy that the U.S. Supreme Court later reversed him. A case could be made that he should have recused himself from any proceeding involving the Davidians, but he didn't.

I talked with Mike McNulty, who used to live in Southern California and whom I have known for more than 10 years as a source and eventually a friend. During that time he has demonstrated an assiduous desire to get at the truth, not necessarily what he would have preferred to believe. He called my attention to Linda Thompson's early film on Waco, which purported to show tanks being used as flamethrowers. Instead of simply going with that version of the matter, however, he took the trouble to find earlier-generation (and therefore sharper and less degraded) versions of the footage in question and had it analyzed by independent video experts. When that analysis showed that it was most unlikely that what had at first superficially looked like evidence of flamethrowers almost certainly wasn't, he went with it and embarked on a years-long search for solid evidence of what really happened that culminated in his two films.

"Now I believe that several of the Davidians were culpable for many things that happened at Mt. Carmel between Feb. 28 and April 19, 1993," McNulty told me. "At the same time, many of the Federal agents and their superiors were at least equally responsible for many serious deeds that bordered on or were criminal in nature.

"The Davidians all paid a dear price for their alleged misdeeds. And they were not accorded their right to a trial before being executed. They are either dead, in prison or related to the dead or imprisoned."

The government officials have yet to be held accountable, and it's been more than seven years. The Texas jurors had a chance to do so and muffed it. To put the icing on the cake, they took only two and a half hours (with an hour off for lunch) to decide the outcome of a case of extreme complexity and national importance.

"It is difficult not to suspect," Mike McNulty believes, "that these Texans had the opinions and attitudes of their neighbors and fellow townspeople on their minds. The jury in the Waco case was not sequestered. Were the years of animosity between the townsfolk and the religious residents of Mt. Carmel finally brought to closure?"

The jurors were all granted anonymity by the Judge Smith. And they were allowed to sneak out the back door of the courthouse before the verdict was read to the Davidians in the courtroom.

Mike McNulty has received recognition outside the relatively small band of Americans who have come to care deeply about Waco and the ominous trends in government power it represents. His films have been recognized with an Academy Award nomination, the International Documentary Association's film of the year award and a National Emmy for "Best Investigative Journalism." It was his request for access to material stored in warehouses that caused the Texas Rangers to turn it over to Judge Smith, which pushed the judge to reopen certain questions in the case.

His view on how Judge Smith conducted the case deserves some weight. And it isn't a complimentary view.

"The government presented its case that the Davidians killed themselves by gunfire and by setting the conflagration that consumed the compound," he told me. The Davidian attorneys could have presented shocking visual evidence that shows the FBI were the ones that set the fire and that they also held the men, women and small children inside the burning building with long bursts of automatic weapons fire. That and other material evidencing the FBI's criminal behavior at Mt. Carmel was not allowed to be shown to the jury because the judge thought the jurors not competent (that reads 'too stupid') to understand the technical aspects of the evidence.

"The evidence the jury was not allowed to consider or even to see is same evidence that hundreds of thousands of other citizens have been able to clearly perceive in our documentary films -- that the government agents had a criminal role in the events surrounding the Davidians' deaths. The judge withheld the critical evidence calling into serious question and in my view refuting the government's dubious tale from the jury. They were left with only the government's version of the story.

"This strange conception of fairness and justice repeated itself over and over again during the course of the jury portion of the trial. So did the Davidians get a fair trial? Well, what do you think?"

I don't think they did. For a while I entertained the hope that the trial would help to make public virtually all of the information available about the siege of the Branch Davidians so that citizens would at least have sufficient information to make independent judgments if they were so inclined. I even managed to hope that this would begin a process of "closure," to use a trendy word, in that Americans would be able to come to terms with this frightening incident on the basis of reliable information rather than speculation and prejudice.

Because of the way Judge Smith conducted the trial, that is unlikely. Unfortunately, the verdict, combined with the way the trial was conducted, is more likely to inflame passions than to cool them. More and more Americans are likely to fear that if the Davidians were not safe from government extremism, none of us are.

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Alan Bock is senior editorial writer and columnist at the Orange County Register, Senior Contributing Editor at the National Educator, a contributing editor at Liberty magazine and author of "Ambush at Ruby Ridge."