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

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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