Naked City

Tell It to the Judge

Livingston Fagan's faith rests with God, not U.S. District Judge Walter Smith Jr. But Smith is smiling upon Fagan anyway. In an order entered last Friday, Smith reduced Fagan's federal prison sentence from 40 years to 15 years.

The problem is that Fagan didn't even appeal his sentence. The appeals were made by other Branch Davidians who were convicted in Smith's courtroom in 1994. Fagan, one of the staunchest believers in David Koresh and Branch Davidian teachings, has refused to acknowledge the standing of the court, saying that only God can judge his guilt or innocence. Despite Fagan's obstinance, Smith reduced the sentences of Fagan and the other Branch Davidians -- Renos Avraam, Brad Branch, Jamie Castillo, Kevin Whitecliff, and Graeme Craddock -- who were found guilty of manslaughter and weapons charges.

Although the jury in the case did not find any of the Davidians guilty of the two biggest charges -- conspiracy and murder -- it did find them guilty of using a firearm in the commission of a federal offense. Smith initially said that the firearms charge would be set aside because it conflicted with the acquittal on the main charges. But two days later, he sentenced the men for using automatic firearms, even though there was no proof that any of the accused had used that type of weapon during the Davidians' shootout with federal agents on February 28, 1993.

On June 5, the U.S. Supreme Court unanimously reversed Smith's ruling in the 1994 criminal case and sided with the Davidians, saying that the firearms issue should have been submitted to a jury. That ruling forced Smith to re-sentence the Davidians. In his ruling reducing Fagan's sentence, Smith wrote that it would be "manifestly unfair not to reduce his sentence also."

The move was applauded by John Carroll, a San Antonio lawyer who represents Avraam. "I'm impressed," said Carroll of Smith's ruling. "He didn't have to do it. But I think it was the right thing to do."

Smith, however, apparently has a low opinion of Fagan. In a motion filed on Sept. 11 in the Davidians' civil suit against the government, the plaintiffs allege that during the recent trial, the Branch Davidians' lead attorney, Michael Caddell, was reading an excerpt from Fagan's deposition when Smith interrupted and commanded Caddell and government attorneys to approach the bench. Once at the bench, Smith "referred to Fagan as a 'crazy murdering son of a bitchí' and expressed a willingness to exclude Fagan's testimony if the government wished," the court document says. "However, the government also wished to use portions of Fagan's deposition, and again, the Court relented."

Caddell's motion says that Smith also denounced some of the plaintiff's trial materials as "bullcrap," wrongly prevented plaintiffs from using a videotaped deposition of FBI commander Richard Rogers during closing arguments, and prevented the court's advisory jurors from viewing or considering the forward-looking infrared videotape shot by government planes during the government's final assault on Mount Carmel.

The cumulative effect of Smith's statements and rulings, say the plaintiffs, show Smith's "deep-seated bias against the Plaintiffs and in favor of the government." The motion asks for Smith to declare a mistrial in the civil case and assign it to another judge. Smith apparently did not like Caddell's motion. Visitors to the federal courthouse in Waco last week were told that Caddell's 18-page motion was "sealed" and that no copies would be available to the public.