When the first civil suits were filed, they were filed in the US District Court for the Southern District of Texas. However, at US request, the matter was transferred over to Judge Walter Smith in the Western District. Nine such suits were filed on behalf of a variety of plaintiffs, asserting a variety of claims, and the suits have been variously consolidated. On July 1, 1999 Judge Smith issued a Memorandum Opinion and Order in which he disqualified many plaintiffs and dismissed many claims, and allowed other claims to move forward to trial. All but one of the claims Smith approved for trial will be decided by a judge, not a jury. And who is the judge who will preside at the trial Judge Smith has ordered? None other than Judge Smith.
As you may know, Judge Smith has prior history with the Branch Davidians. The Judge Smith of 1994 vintage presided over the criminal trial of the Branch Davidians accused of murdering four ATF agents. During that trial, Smith allowed testimony he must have known was perjurious and irrelevant. (For more information, see "Judge Smith, Perjury Facilitator" and "Collusion on Deaths of Mothers and Children," below.) After a jury found the Davidians not guilty, Smith saw to it that most of them received 40 year prison sentences. The foreman of the jury called these sentences an outrage.
The Judge Smith of 1999 vintage is presiding over the civil cases, pretending to be impartial, as if his hands were not dirtied by his prior history. But the old Judge Smith waggles the jaw of the new Judge Smith: While the new Smith pretends to be outraged by "new revelations" of government wrongdoing, the old Smith quietly works with government and Davidian lawyers to achieve the US goals.
"Judge Smith, meet Judge Smith!" The public has not been promised such a fine display of ventriloquism since Edgar Bergen waggled the jaw of Charlie McCarthy.
Judge Smith wrote a history of the litigation in his July 1 Order. How good is Judge Smith at keeping track of details, necessary to writing such a history? Not too good. For example, in his July 1 Order, he repeatedly misspells David Thibodeau's name "Thibideau" even as he lauds Thibodeau's testimony. We have reproduced Smith's history of the litigation in Footnote 1, but with it we issue a warning: Caveat emptor.
Space limitations allow only a cursory review of three of the complaints and the Order. We encourage readers to secure copies of court documents themselves for personal study. Contact the Clerk of the Court (Western District), P.O. Box 608, Waco Texas, 76703, or call 254-750-1501.
The truth is of primary importance in the attainment of justice. In fact, one of the fundamental purposes of the court is to establish the truth. We have just seen the family of Martin Luther King, Jr., use the court exactly for this purpose: to establish that a conspiracy was behind the King assassination.
A legal finding is in part a finding of fact. When there are insufficient facts or no facts to back the lawyer's claims, even an honest judge has to reject those claims. A judge rules on what is presented to him.
And when a claim is dismissed, it is usually dismissed with prejudice; that is, the claim cannot be presented to the court a second time. Once the case is tried and a decision arrived at, appeals are considered only on the basis of procedures, not fact. A lawyer seeking justice for his clients must use his one and only opportunity to state the client's claim truthfully and fully and back up the claim with the clear and convincing evidence he has at hand. He has one chance. Let's see how the lawyers who speak for the Davidian plaintiffs use their one chance in history.
Lyons filed a lawsuit on behalf of Oliver Gyarfas Sr. and Elizabeth Gyarfas on April 19, 1995. Aisha Gyarfas Summers and her one-year-old daughter, Startle Summers, allegedly died on April 19, 1993 at the Mt. Carmel Center after taking shelter from the CS in a concrete room, an old records vault. Oliver Gyarfas Sr. and Elizabeth are the parents and grandparents of the deceased. Lyons claims that the US wrongfully caused the deaths of Aisha and Startle and asks that the US taxpayer pay Aisha's mother, father, and brother $30 million.
In a case of "wrongful death," the cause of death is of paramount importance. If, for example, Aisha and Startle died of natural causes or as the result of actions committed by another agent (i.e., not the US), Lyons would have no case.
If the lawyer and the judge were doing their jobs honestly, they would be vitally interested in how the decedents met their deaths. The cause of death is officially determined by the medical examiner and memorialized in Autopsy Reports.
In making his case, then, we would expect that Kirk Lyons would use the Autopsy Reports as his starting point. We would then expect that Lyons would show the causes of their deaths to be directly related to US actions. And we would expect Judge Smith to be looking for the presentation of the evidence.
However, Lyons does not use the Autopsy Reports in the complaint. This is his one opportunity in history to introduce this information, and he misses it.
The Autopsy Reports of the deceased Davidians have been readily available from the Justice of the Peace in McLennan County, Texas since they were filed in 1993. Certainly Kirk Lyons had access to them. Why weren't they used?
In the case of Startle, the answer is simple. There was no Autopsy Report for Startle Summers. Why? Her body was never found.
See the Identification Matrix of the Davidians killed in Waco, supplied to the Museum in 1995 by the office of the Justice of the Peace in McLennan County, Texas. Note that Startle Summers' name does not appear.
No Death Certificate has been issued for Startle Summers. How can a suit for wrongful death can be seriously considered by a judge when the lawyer does not present a Death Certificate?
Despite the fact that there is no corpus delicti and thus no Autopsy Report and no Death Certificate, Lyons tells the court that Startle died "a hideous, slow, and painful death from heat, fire, smoke, and noxious and poisonous gasses." (Pg. 38.) Lyons does not tell the court how he knows this. In fact he does not even mention the lack of a body.
One of the witnesses in the 1994 criminal trial of the Branch Davidians was Nizam Peerwani, the medical examiner who conducted and supervised the autopsies. So Judge Smith knew about the Autopsy Reports. Given his demonstrated enthusiasm for persecuting the Davidians with 40 year prison terms even though they were found not guilty of murder, one might expect Judge Smith to seize upon Lyons' unfounded claims about Startle's death with a vengeance.
We might expect the same, too, from the Department of Justice lawyers defending against Lyons' claims. They have Lyons cold: a Branch Davidian lawyer claiming millions of dollars from the US Treasury in a wrongful death claim, yet there is no corpus delicti and no Death Certificate. Surely this is a possible case of fraud!
Yet in his July 1 Order, Judge Smith does not mention the problem himself, nor does he mention any objections from the defendant, the US Department of Justice. Everyone ignores the problem.
Now let's turn to the evidence Lyons presents concerning Aisha's death. Lyons does not discuss Aisha's Autopsy Report, either. Why?
Recall that Lyons is claiming Aisha died on April 19. According to official records and sworn
testimony, the alleged remains of Aisha Summers (Mt. Carmel Doe 31A), were recovered on April 22,
and refrigerated after removal. See pg. 5963 of:
The remains were autopsied on May 6, 1993, having spent approximately two weeks in refrigeration. (The claim that the refrigerators were turned off during this time is false. It was one year later, in 1994, when one of the civil attorneys was allegedly attempting to re-autopsy a Branch Davidian body, that the refrigerators at the morgue were said to have "malfunctioned.")
Read the Autopsy Report of Mt. Carmel Doe 31A at:
For a list of Autopsy Reports available in the Museum, go to:
You will see that if Lyons discussed the Autopsy Report for Mt. Carmel Doe 31A while claiming Aisha died on April 19 … Well, that might lead to problems because by April 19, 1993, Mt. Carmel Doe 31A had been dead for a long time.
The Autopsy Report of Mt. Carmel Doe 31A states that the torso of this body was found among the commingled remains of others. The arms and hands were missing; of the head, only the lower skull was recovered, the face apparently destroyed prior to recovery. A jaw and a pony tail (without scalp), found nearby, were thought to belong to the corpse.
We are told the deceased died of a gunshot wound of the left chest and asphyxiation. After death, the body was damaged by an explosion (pg. 4).
Describing the corpse, the Autopsy Reports says: "… multifocal albeit limited charring, but ubiquitous, severe decomposition. This latter is characterized by a caseous type pasty liquefactive appearance of virtually all soft tissue and organs," (pg 3). "Due to extensive heat-related damage and severe decomposition the internal organs are readily accessible but difficult to discern as discrete organs … No heart or great vessels are discernible within the chest or abdomen … The lungs are not discernible within the severely decomposed soft tissues of the hemithoraces." (pg. 5.) Other organs are described as "severely" or "markedly" decomposed.
Now recall that this body was recovered on April 22, only three days after death allegedly occurred on April 19. The weather in Waco during this period was cool. This is a remarkable degree of decomposition to have occurred in just three days.
Compare the decomposition of Mt. Carmel Doe 31A to other Davidians alleged to have died on April 19. The bodies of Julliete and Crystal Martinez (Mt. Carmel Does 54 and 57; Autopsy Reports available at the URL above) were recovered just feet away from Aisha's, on April 27-29. Even though those corpses were left out in the elements without refrigeration a week longer, the remains are described as "moderately" decomposed.
But even more telling: Let's compare the remains of Mt. Carmel Doe 31A to the remains of the Davidians who died on February 28, 1993, 51 days before Aisha's alleged death. These bodies were buried in shallow graves or "tunnels" for more than seven weeks and then were inundated by rain water and human waste for a week. Nonetheless, the state of decomposition of these bodies is described as moderate: Winston Blake (Mt. Carmel Doe 77), Peter Gent (Mt. Carmel Doe 76), Peter Hipsman (Mt. Carmel Doe 79), Perry Jones (Mt. Carmel Doe 80), Jaydean Wendel (Mt. Carmel Doe 78.)
For further discussion, see:
So either Aisha died earlier than April 19 or these remains are not Aisha's. Certainly this Autopsy Report would not help Lyons' case. It contains more information than any of the parties in that courtroom want.
Given the destruction of most of the head and face, how do we know the remains were those of Aisha Gyarfus Summers? We know because FBI lab technicians told us so. They identified the remains by DNA testing. TRUST THEM. Those who don't trust FBI lab technicians may entertain the notion that the remains were not those of a Branch Davidian at all.
Apparently Lyons' opponents, the Justice Department lawyers defending the case, did not bring up the anomalies of the Summers autopsy records, even though challenging Lyons on these issues would have been an excellent strategy for a real defense. Judge Smith did not mention the autopsies in his July 1, 1999 Order, either. Thus we have three sets of people determined not to examine the autopsy reports: Lyons, the Justice Department defense lawyers, and the judge. This does not sound like an adversarial proceeding … but none dare call it collusion.
You have just read the Autopsy Report of Mt. Carmel Doe 31A. It said the deceased died of asphyxiation and gunshot wound. The Autopsy Report does not relate the circumstances under which the wound might have been inflicted. But Kirk Lyons knows those circumstances. Aisha either committed suicide or was killed by another Davidian in a mercy killing:
"… Plaintiff's decedent Aisha Gyarfas Summers was forced to take her own life or had her own life taken by a person unknown to end her hideous suffering from heat, fire, smoke, and noxious gas and poisonous gasses." (pg. 38.)
In the investigation of a suspicious, violent death, established procedure dictates that the death be regarded as a homicide until evidence rules out homicide. Certainly Lyons refers to the FBI's Hostage Rescue Team as a "professional death squad of assassins" (pg. 28) and a "death squad" (pgs. 30, 35). But in light of Lyon's choice of terminology, one wonders why Lyons leapt to the conclusion this "professional death squad of assassins" -- which visited Aisha's home on April 19, 1993 -- did not inflict the fatal wound. What chain of reasoning led Lyons to blame the fatal wound on Aisha herself, one of the other victims, or one of the fire survivors?
Once again, Judge Smith is silent about all of the foregoing in his July 1, 1999 Order. And we can understand why. As we will see again and again in this examination, Judge Smith's job is to keep the truth out of the courtroom, and he is getting all the help he needs from the plaintiffs and their lawyers.
On pg. 36 Lyons states: "… defendants' agents willfully maliciously, and intentionally, without legal justification, caused a fire to consume the building wherein Plaintiffs' decedents were trapped because of the actions of defendants." Then:
"… the fire which started in the Mt. Carmel Center originated in areas occupied or solely controlled by agents of Defendant …" (pg. 36) This is slim evidence on which to make a claim that the fire was "willfully, maliciously, and intentionally" started by the US.
Just in case the judge won't buy this weak case against the US, Lyons offers the court another explanation for the fire: The Davidians started it!
"THAT, in the alternative, without waiving any of the foregoing, agents of Defendant UNITED STATES of AMERICA, the Attorney General Janet RENO … her deputy or others knew, or should have known that other persons were about to start a fire, but defendants continued to assault and otherwise provoke such persons into starting a fire …" (pg. 37.) Lyons repeats a similarly worded charge again at the bottom of the same page: the US knew or should have known "some person or persons would or were about to set fire to Mount Carmel Center (sic) …"
Lyons complains that the Davidians could not escape during the fire and US agents "purposely or negligently" failed to have fire suppression apparatus or firemen at the scene (pg. 39).
We will see how Judge Smith takes advantage of all of this when we examine his remarks about the fire in his July 1, 1999 Order. Now let's look at the efforts of another lawyer.
Some background: Ramsey Clark is a Texan who was appointed United States Attorney General—the top law enforcement office in the country—by fellow Texan Lyndon Baines Johnson, one of the most corrupt politicians ever to inhabit the White House. What are the chances the sublimely crooked LBJ appointed an upright citizen to his top law enforcement post? Answer that question yourself.
LBJ, of course, was the man who took over the White House when President Kennedy was assassinated. Jim Garrison, the New Orleans District Attorney who investigated the Kennedy assassination, discussed Ramsey Clark in his book ON THE TRIAL OF THE ASSASSINS (Warner Books, 1988).
Garrison had arrested New Orleans resident Clay Shaw, believing that there was enough evidence to indict Shaw on conspiracy to assassinate President Kennedy. After the arrest, Attorney General Ramsey Clark quickly came to Shaw's aid, issuing a public statement that the federal government had already investigated Shaw and found him innocent of any involvement with the Kennedy assassination.
Garrison then posed this question: If Shaw had no connection with the assassination, how had the Attorney General come to investigate Shaw and clear him? Clark then beat a fast retreat. "'The Attorney General,' a Justice Department official announced, 'has since determined that this was erroneous. Nothing arose indicating a need to investigate Mr. Shaw.'" (pg. 174). So Ramsey Clark investigated and cleared Clay Shaw for no reason at all. Now let's get a sampling of what Ramsey Clark has done on Waco.
Clark filed Andrade v. Chojnacki (Second Amended Complaint) on September 19, 1996. Clark asked that the US taxpayers award $837.5 million to plaintiffs including David Koresh's mother, Bonnie Haldeman; Sheila Martin, who lost her husband and several children; David Thibodeau, alleged survivor of the April 19, 1993 fire; Clive Doyle, alleged survivor of the April 19, 1993 fire and father of the late Shari Doyle; and the General Association of the Branch Davidian 7th Day Adventist.
The claims Clark makes in this suit have been misunderstood by a number of observers. These observers say Clark's law suit is "tough" and that he accuses the US of murdering the Davidians.
This is not so. In one section of the filing, Clark says that US actions were motivated by antipathy towards the Davidian religion, that the US was motivated by a desire to destroy evidence of the "illegal use of deadly force" on February 28, 1993, and a desire to take revenge for the ATF deaths. These motives led the US "to punish plaintiffs by engaging in the various forms of mistreatment of plaintiffs … and by subjecting plaintiffs to unwarranted, excessive, and deadly force." (pg. 71, 72.) This is not an assertion of murder.
Clark also cites omissions and failures of the US, such as not being patient enough, and not appointing "experienced leadership," (pg. 53). "Had defendants taken any of the actions or omitted the excessive force and introduction of dangerous substances … They would not have taken the lives of decedents, injured Church members, or destroyed the Church." (pg. 71.) This is not an assertion of murder, either--it is a negligence claim.
Even so, given that Clark blamed the US for the Davidian deaths, we might expect him to discuss the Autopsy Reports and show a clear connection between the causes of death and US actions. But like Lyons, Clark does not do this.
Clark represents Sheila Martin, mother of Lisa Marie Martin (13), and Sheila Renee Martin (15). Clark represents that the two girls were alive on April 19 and died that day due to US acts and omissions. But the bodies of the two girls were never found. Consequently, their names do not appear on the Identification Matrix:
None of the Autopsy Reports bear their names and no Death Certificates have been issued. Like Lyons, Clark fails to mention the no-corpus-delicti, no-Autopsy-Report, no-Death Certificate problem to the judge. On what basis does Clark tell the court that Sheila Renee and Lisa Marie are dead? He does not say. The Department of Justice defense team apparently fails to comment upon this anomaly, even though doing so would be an excellent defense strategy; and the judge ignores it all in his July 1 Order. This does not sound like an adversarial proceeding … but none dare call it collusion.
Clark's investigator, Gordon Novel, was interviewed by Don Wiedeman on the American Freedom Network (AFN) on October 10, 1996 and stated that some of the Davidian children's bodies in the concrete room had been "obliterated" by a bomb set off over the roof of the concrete room. (Authenticity of that interview confirmed with AFN. We will examine the "bomb" claim more closely below in "The Fireball and The Hole" and "General Partin Goes Down In Flames.")
Fetus and baby bodies were found in the concrete room. Those bodies were not obliterated. Lisa Marie and Sheila Renee Martin were teenagers. It is hard to imagine that a bomb would obliterate teenage bodies but not fetus or baby bodies.
Here is how Clark mentions the Autopsy Reports: "Autopsy reports showed lethal levels of cyanide, ethanol, other toxins and asphyxiation, gun shot wounds, bruises, wounds, and other causes of death." (pg 59).
Note the generalization. Clark refers to the Autopsy Reports as if there was one communal autopsy report and one communal death. In fact, individuals died, Autopsy Reports were written, and remains were assigned identities. Cause of death was established, correctly or incorrectly, for each individual.
If the Autopsy Report for each victim were individually examined, the judge would have to comment on the assertions made therein and make a judgement on the basis of those assertions. This must not happen, however, because the Autopsy Reports don't support the government's story and don't support the Ramsey Clark story of the Davidian deaths.
In fact, the condition of the bodies as described in the Autopsy Reports shows that many of those who allegedly died on April 19, 1993 had long been dead by that date. The descriptions of the bodies show they had been selectively mutilated and incinerated, effectively hiding the causes and circumstances of death and even the identity of the victims. The bodies had been "laundered."
No, the myth that all the mothers and children were alive on April 19 and died as the result of US negligence must be maintained. The Autopsy Reports must not be examined in detail. Far better to have history view the government proved incompetent than proven murderers.
The issue of "Davidian survivors" is fraught with questions, as told in these exhibits: