Waco Wrongful Death Case on Fast Track : Courts: Six-year-old civil lawsuits against the government are moving to trial as the federal officials' once-solid defense begins to fall apart.

By DAVID G. SAVAGE

Sept. 4, 1999 12 AM PT

TIMES STAFF WRITER

WASHINGTON — While official Washington gears up for a new independent investigation of the inferno that killed Branch Davidian cultists, the question of who was really to blame for the 1993 tragedy is likely to be answered sooner and more definitively in a courtroom in Waco, Texas.

Six years ago, two teams of lawyers filed civil lawsuits against the government claiming it wrongfully caused the deaths of about 80 people, many of them women and children, in the Branch Davidian compound. And by coincidence, their claims are nearly set to go to trial before a federal judge there, just as the government’s once-solid defense has begun to unravel.

On Thursday, an impatient U.S. District Judge Walter Smith ordered the government to turn over to him all the evidence in the case. And he has ordered both sides to get ready for a fast-track trial by Oct. 18.

“The American people will learn a lot if they watch this trial,” said Kirk D. Lyons, a North Carolina lawyer who filed the first suit against the government in 1993. “From the beginning, we said they created a deathtrap that resulted in the killing of Davidians. Now people are listening to us.”

The plaintiffs’ lawyers hope to question under oath the key FBI agents who participated in the siege near Waco, including Richard M. Rogers, the commander of the bureau’s hostage rescue team. He was heard on a tape released Thursday giving an agent permission to fire military-style “hot” tear gas canisters at a concrete bunker 40 yards from the Davidian compound on April 19, 1993.

In the aftermath of the inferno, FBI leaders told Congress that they used only tear gas that “posed no danger of fire or explosion.” They maintained that David Koresh, the Davidians’ leader, set the fire that killed him and his followers.

Atty. Gen. Janet Reno held firm to that position Friday, even while acknowledging that newly discovered evidence may contradict her earlier statements denying the FBI’s use of pyrotechnic devices in the final hours of the siege.

“The larger issue here,” Reno told reporters, “is the facts that we know now indicate that the FBI did not set that fire. That fire was set by David Koresh and the people in that building.”

Additional videotape of the scene released Friday suggests that the FBI’s use of military, or pyrotechnic, tear gas canisters at the compound was unsuccessful.

The newly released tape begins a few minutes after Rogers authorized the firing of the “military rounds.” The tear gas was fired about four hours before the compound went up in flames.

“Yeah, the military gas did not penetrate that, uh, bunker . . . ,” says an agent on the tape. “It bounced off.”

Another agent can be heard suggesting that the tank-like Bradley Fighting Vehicle move to a different position to get a better angle. Nothing about that repositioning or any subsequent firings can be heard on the tape.

Reno also said that she is still looking for “the perfect person” to undertake a new investigation of the Waco disaster. She refused to confirm that former Sen. John C. Danforth, a Missouri Republican, is the leading candidate.

“I want to let the outside investigator get to the truth of the issue,” she said. “I think it is important for everyone to look at the truth as it is obtained, to not stop until we get to the bottom of it.”

But the lawyers who have been immersed in the case for years predicted that they will reveal the truth before Reno’s handpicked investigator or congressional committees have finished their inquiries.

“I think we are more interested in the truth and in better position to ask questions,” said Houston attorney Mike Caddell, the lead lawyer for the plaintiffs. “To this point, we have not had any cooperation from the government.”

Caddell does not claim that the fatal fire was deliberately set by federal agents. Instead, he asserts that the government was guilty of “gross negligence,” which contributed to the deaths of innocent people.

“You don’t attack a flimsy wooden structure with tanks and tear gas canisters and grenade launchers and automatic weapon fire--and without a contingency plan for a fire,” Caddell said Friday. “Everybody knew the place was a firetrap. And everybody knew there were innocent children inside. And they didn’t even call for any firefighting equipment.”

“We will probably never know for sure how that fire was started,” he added. However, the plaintiffs’ lawyers said they believe that they can prove the government caused, or contributed to causing, the deaths of the Davidians.

They acknowledged that they still face an uphill fight in convincing Judge Smith, 59, a conservative who was appointed to the bench by President Reagan. Texas lawyers have routinely described him as “pro-government” in his rulings.

Recently, however, he has displayed some irritation with the U.S. attorneys who are defending against the Davidians’ claims.

His Thursday order threatens to hold government lawyers in contempt unless they turn over by Oct. 1 “all agents’ reports and other documents, all photographs, audio and video tapes and transcripts of the same evidence (including those recently seized from the hostage rescue team of the FBI) and any other items or documents in any way relevant to the events occurring at Mount Carmel in February-April 1993.”

Still, the judge has not given the plaintiffs’ lawyers the go-ahead yet to take depositions from federal agents who participated in the siege. Caddell said that he asked the judge to delay the trial for six weeks to give him more time to prepare, but Smith has not ruled on the request.

Sen. Orrin G. Hatch (R-Utah), chairman of the Senate Judiciary Committee, is also seeking new information with respect to the FBI’s use of incendiary tear gas. He sent a letter to the attorney general giving her until Friday to turn over all related documents and other information.