Completely Different Versions

000606 Early Show Andrew Cohen
This is going to be one of those "same planet, different world" trials. When the evidence starts pouring out into the courtroom, the judge and the jury and the rest of us will hear and see completely different versions of what happened at Mt. Carmel, Texas on and immediately before April 19, 1993.

Attorneys for the Branch Davidians, the plaintiffs in this multi-million dollar wrongful-death civil trial, appear set to try to paint the federal government as an unfeeling, uncaring, negligent, and careless defendant which didn't do enough, either before, during or after the raid on David Koresh's compound, to protect the peace. And, for the first time, some Davidians will publicly testify about what went on inside the compound that fateful day.

Defense attorneys, meanwhile, will likely try to portray the government as having gone out of its way to save lives that day, only to see the most loyal Davidians set fire to the buildings on the compound once the raid began. Look for folks from Janet Reno on down to testify — live or via deposition — about how their reasonable plans went awry. And the Feds, too, are certain to continue to avail themselves of the many legal defenses available to them as the trial proceeds.

Actually, those defenses already are the big story in the case. Through a series of pre-trial motions, the government has succeeded in eliminating all of the individual defendants from the case, including Attorney General Janet Reno. The Feds also have convinced the judge to significantly narrow the claims — and evidence — the plaintiffs can offer jurors, significantly reducing the chances that those plaintiffs will prevail at trial.

For example, the judge called "outrageous" and "frivolous" and threw out of court claims by the plaintiffs that the Feds planted a bomb in the compound before the raid. The judge also is likely to throw out allegations by the Davidians that federal agents fired into the compound to prevent Davidians from fleeing the burning buildings.

Now, judges are supposed to winnow out claims and allegations in a case which don't appear to them to be supported by reliable, relevant evidence. In fact, one of the chief duties of a trial judge is to make sure only the best evidence factors into the ultimate decision a trial. But the winnowing process in this case has been particularly significant and particularly likely to have an impact on the likely outcome following the trial.

Maybe that's why the judge, U.S. District Judge Walter S. Smith, Jr., used his discretion to empanel an "advisory" jury in the case. An advisory jury is one which is asked to hear and judge evidence at a trial which typically would have been heard by a judge alone. In this case, because the government is the only defendant left, the plaintiffs could not have asked for a jury trial so they get a break by having Smith ensure one.

My guess is that Smith wants a jury because he wants community input into a deciion which is likely to affect the Waco community in so many ways. A jury verdict in this trial also is likely to hold more respect from the community than would a decision from a judge already seen by many folks there as being pro-government. It's a safety-valve, an "out," a nod to the public interest this case, and the event which spawned it, has generated over the years.

For the government, however, a jury is a wildcard in a case like this; the one unknowable factor which could turn a significant defense advantage into a plantiffs' verdict. If a jury is shaky news to the defendant, on the other hand, it's good news for the plaintiffs. And the way things have gone so far on the eve of trial, the plaintiffs will need all the good news they can get.

By Andrew Cohen
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