Branch Davidian attorney says judge is biased, asks for mistrial

DALLAS - A mistrial should be declared in the Branch Davidians' wrongful-death lawsuit against the federal government because the judge showed ''deep-seated prejudices'' against the plaintiffs, according to a motion filed by the plaintiffs' lawyer.

Michael Caddell asked U.S. District Judge Walter Smith to remove himself from the case and send the lawsuit to another judge because Smith demonstrated ''both a class bias against the plaintiffs and a predetermination of the issues in the case.''

''The appearance of partiality is profound and infects every aspect of this proceeding. These issues are particularly important when, as here, the trial judge is also the trier of fact,'' read the motion, filed on Tuesday.

An advisory jury decided in July that the government was not responsible for the death of some 80 members of the sect in the 1993 siege of their compound in Waco, Texas, and a special counsel later absolved the government of wrongdoing.

Smith has yet to issue a final ruling.

Attorneys for surviving Davidians and the family members claim federal agents used excessive force during raid that led to the standoff, violated a plan approved by Attorney General Janet Reno to end the standoff and contributed to or started the deadly fire that leveled the sect's headquarters.

The government has denied the claims.

Caddell says Smith showed bias when he complimented a government attorney during a recess, when he referred to evidence presented by the plaintiffs as ''bullcrap,'' and when he made a disparaging remark about a convicted Davidian.

It was the second time Caddell had asked Smith to recuse himself. In 1997 the judge refused a similar motion, a decision which was upheld on appeal.