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The 5th U.S. Circuit Court of Appeals on July 14 rejected the Federal Tort Claims Act case filed by survivors of the Branch Davidian standoff based on their only appellate issue — that the U.S. district judge in Waco, Texas who heard their case should have recused himself because of alleged bias. Survivors and the estates of Branch Davidians who died during the 1993 conflict with the Bureau of Alcohol, Tobacco, Firearms and Explosives and Federal Bureau of Investigation agents later sued the federal government. Their cases were consolidated in 1996. They alleged federal agents were negligent by shooting pyrotechnics into the Davidians’ compound, causing it to burn. Seventy-three people died in the compound (18 other people died from gunshot wounds) on April 19, 1993, after a 51-day standoff. The government steadfastly denied any responsibility in the Davidians’ deaths, maintaining the fire was the result of a suicide by the followers of Davidian leader David Koresh. In 2000, U.S. District Judge Walter Smith in Waco empanelled an advisory jury to hear the case, Andrade v. USA. Prior to trial, lawyers for the Davidians alleged Smith was biased and asked the judge to recuse himself from the trial. He refused. The advisory jury found that the federal government had not acted negligently in any respect. Smith later issued a ruling rejecting the Davidians’ FTCA claims in a take-nothing judgment. According to the 5th Circuit decision, in their appeal, the survivors and the estates of those who died cited a litany of examples of Smith’s alleged bias during the trial: alleged comments to a reporter that he believed the Davidians broke the law by refusing to surrender during the standoff; allegedly referring to one Davidian in an off-the-record bench conference as a “crazy, murdering son of a bitch”; and allegedly referring to expert prepared transcripts of government surveillance tapes as “bullcrap.” But the plaintiffs failed to prove how those alleged comments showed trial error, according to the 5th Circuit’s July 14 ruling in Andrade. The plaintiffs “argue that allegations of bias effectively relieve them of the obligation to charge error,” wrote Judge Edith Jones in the opinion, which was joined by Judges Jacques Wiener and Harold DeMoss. “We must infer from these tactics that appellants concluded there were no colorable appellate issues concerning Judge Smith’s rulings, as opposed to his alleged bias.” “Appellants’ argument for reversal is misplaced,” Jones concluded in the opinion, affirming Smith’s take-nothing ruling against the survivors and the estates of those who died. Michael A. Caddell, a partner in Houston’s Caddell & Chapman who represents a group of Davidian survivors in Andrade, says he plans to appeal the ruling to the U.S. Supreme Court. “When you read the catalogue of incidents that occurred during the course of that trial — even as set out in the 5th Circuit’s opinion — it’s unfortunate and frankly difficult for me to believe how any impartial observer could look at that series of events and not conclude that Judge Smith was biased against the Davidians,” Caddell alleges. Smith declines to comment. Mark Stern, a Department of Justice attorney who represented the government in the case before the 5th Circuit, referred a call seeking comment to DOJ spokesman Charles Miller. Miller says the department is pleased with the decision. Ramsey Clark, a New York City solo who represents another group of Davidian survivors in Andrade, did not return a call seeking comment or a fax requesting an interview before presstime on July 17. Mike Bradford, a former U.S. Attorney for the Eastern District of Texas who represented the government in Andrade, says the 5th Circuit reached the correct conclusion. “It’s certainly not a surprise,” Bradford, who is now of counsel at Beaumont’s Benckenstein & Oxford, says of the 5th Circuit’s decision. “I think it was a fair trial, and Judge Smith conducted himself fairly and properly.” Bradford says many of Smith’s decisions — made over the objections of the government lawyers — favored the plaintiffs, such as allowing a rare advisory jury panel to hear the case and allowing broad discovery in the case. Two appellate attorneys say there’s not much hope that an appeals court will accept an argument that a trial court judge is allegedly biased without showing how that alleged bias affected his or her rulings. “It’s very rare for judicial bias to be a valid basis for reversing a case on appeal,” says Sidney Powell, a partner in Dallas’ Powell & Reggio who practices before the 5th Circuit. “If they got a fair trial, it really doesn’t matter what the judge’s personal view is,” Powell says. Roger Townsend, an appellate attorney and partner in Houston’s Alexander Dubose Jones & Townsend, agrees. “It’s not a recommended strategy,” Townsend says of alleging judicial bias. “The easiest way to demonstrate that … is if you’ve got 10 really solid errors that the judge committed. You show that, and let the court of appeals make up its mind.” But Caddell alleges that the 5th Circuit’s standard for challenging Smith’s individual rulings, based on its prior decision in 1991′s City Public Services Board v. General Electric, was “erroneous.” “It allows the judge to do a lot of things wrong, but as long as he doesn’t approach dead wrong, he can get away with it,” Caddell says of the standard. “We recognized that the appropriate thing to do was to challenge his refusal to recuse himself.” Still, Caddell says he was disillusioned with the 5th Circuit’s ruling. “I guess I expect more from our courts than this kind of behavior,” Caddell says. “I expect more from this system of justice.”

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