Davidian jury to serve in advisory role

Waco Tribune-Herald, June 3, 2000
By Mark England

While there will be a jury in the June 19 trial on the wrongful-death lawsuit filed by surviving Branch Davidians against the federal government, U.S. District Judge Walter S. Smith Jr. of Waco won't have to follow its verdict.

By statute, the jury will be a so-called advisory jury. "It is as if the jury does not exist from a legal standpoint," said an attorney familiar with federal civil procedure.

The role of such a jury is solely to advise a judge. On appeal, for example, the judge's findings entirely displace those of the advisory jury. Smith announced last week that he'll seat a jury for the lawsuit trial.

Both sides in the lawsuit had expected Smith to hear the case. When FBI sniper Lon Horiuchi was dismissed from the lawsuit in March, only the federal government remained as a defendant. Federal law doesn't provide for a jury hearing in civil cases not involving individuals.

"The judge has the discretion of impaneling an advisory jury, and he can treat the findings of the advisory jury as though they were the findings of a jury in a case where there was a right to a jury trial," said Bill Underwood, the Leon Jaworski professor of practice and procedure at Baylor University School of Law.

The Federal Rules of Civil Procedure (39c) authorize the use of advisory juries. "In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury...."

Advisory juries are common in cases involving issues of community standards, such as obscenity laws.

How much judges rely on advisory juries varies, according to an article in the Harvard Law Review .

Some judges will sustain an advisory jury's verdict if it isn't "clearly erroneous," according to the article. However, other judges treat an advisory jury's verdict as an additional piece of evidence and "only part of the data taken into consideration in arriving at the court's independent conclusion."

Having a jury - even an advisory one - changes the dynamics in the courtroom, said Dick DeGuerin, the Houston attorney who represented David Koresh during the siege.

"It's a different ball game," DeGuerin said. "With a jury, you have a cross section of the community. They're somewhat less predictable than a judge. A judge, no matter how fair they try to be, they get reputations, proclivities, after they've been on the bench for awhile. They become defense-minded or plaintiff-oriented. Judges are subject to prejudices just like any other individual.

"With juries, you've got a group mentality. You've got to convince everyone or none."

U.S. Attorney Michael Bradford of Beaumont, who will help defend the government, said having a jury will force government attorneys to change their tactics.

"We are still going to try to streamline the presentation as much as possible, but, inevitably, I think we will have to present some more information because the judge has a great deal of information about this case that the jury, presumably, won't have," Bradford said. "... We want to make sure that the jury will have the necessary background."

Bradford declined further comment on Smith's decision to impanel a jury. Smith's May 26 jury order did not lay out his reasoning. However, Smith did note that he made the decision after having "considered the importance of the issues involved in this case..."

Houston attorney Mike Caddell, the lead plaintiffs attorney, thinks having a jury will help win public acceptance of any verdict, given that Caddell expects the government to "retry" the 1994 criminal case. Smith was the presiding judge at the San Antonio trial of 11 Branch Davidians.

"Their approach to this whole case is that they (Davidians) were a bunch of bad people and they deserve whatever they got," Caddell said. "That is the government's case in a nutshell, and I think because Judge Smith presided over the criminal trial, it was wise for him to bring in a jury."

Baylor's Underwood discounts speculation that having a jury takes the heat off Smith.

"From what I know of Judge Smith, I don't think he's ever been afraid of any heat," Underwood said. "I just think that whatever the decision, it will be more widely accepted if there is a jury."

In some ways, the difference between having a regular jury and an advisory jury is illusory.

Federal judges, if they don't like a verdict, already have the authority to toss out a regular jury's decision. Smith has done that several times in the past.

In 1989, Smith tossed out a jury's $250,000 award against the Salado Independent School District and ordered the plaintiff, former superintendent Nolan Kinsey, to pay the school district's court costs. Smith ruled that Kinsey, suspended by the school board for supporting a slate of opposing school board candidates, did not have his right to free speech violated, arguing that it wasn't protected since it was only voiced in an attempt to save his job.

Three years later, Smith voided a jury's award of $1.4 million to former Waco police sergeant Mike Nicoletti, who sued the city for what a jury determined to be a punitive transfer. Smith labeled the jury's award "excessive." He ordered a trial only on damages, which led to Nicoletti getting about $35,000.

Opinions differ on which side in the lawsuit will benefit by having a jury. "We're very happy at having a jury," Caddell said. "I think people in the Waco area have changed their minds about the Davidians after seven years.

That doesn't mean they condone their lifestyle. But I do think they're absolutely convinced after all that's come out in the last year that the government bears some responsibility for what happened at Mount Carmel." DeGuerin, however, doesn't think having a local jury will favor the plaintiffs.

"Look at how a Waco jury would not even give Clive Doyle and the Davidians their very own land back," DeGuerin said. "... I think there's a lingering resentment because Waco was put on the map in a way it didn't want to be put on the map."

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