WACO, Texas (AP) - The judge in the Waco trial ruled Monday that the jury can hear government audiotapes in which the cult members were supposedly heard saying, ``Pour the fuel'' and ``Light the fire'' before their compound burned to the ground.
The ruling came as the $675 million wrongful-death trial entered its fourth week. Relatives and surviving members of the Branch Davidians contend the government used excessive force against the cult and contributed to the blaze.
The government contends the surveillance recordings - made with tiny eavesdropping devices placed in the compound - are proof that cult members bent on suicide caused the April 19, 1993, fire. About 80 members, including leader David Koresh, died from either gunshots or fire that day as the 51-day standoff came to an end.
In court papers last month, the plaintiffs argued that the tapes amount to hearsay because of their anonymous nature.
``Absent voice authentication, the tapes are not admissible for any purpose,'' they said. ``At a minimum, the defendant must present testimony from one or more witnesses able to identify the speakers based on his familiarity with their voices.''
U.S. District Judge Walter Smith ruled in the government's favor Monday.
``I don't think it matters who was talking. These are adult Branch Davidians who were talking,'' the judge said.
In testimony Monday, an FBI agent recalled peering through his binoculars and seeing a cult member bending over in a second-floor window seconds before smoke and flames erupted on the final day of the siege.
``Shortly thereafter, I noticed smoke and fire coming out of that window,'' Ronald Elder testified. ``He got up and moved out of my view, and that's when I saw the fire and the smoke coming out of the window.''
Even with binoculars, Branch Davidian attorney Michael Caddell questioned Elder's ability to see that far, considering he was more than 2,000 feet, or a little less than half a mile, away from the complex.
Caddell also wondered why Elder never reported what he had seen until two months later during an FBI interview.
``When I observed something, I would speak out to other team members. The team leader would report it if it needed to be reported,'' Elder said. ``Our main concern was if these individuals inside the building were going to come out compliantly or in a hostile manner.''
The standoff began on Feb. 28, 1993, when agents with the Bureau of Alcohol, Tobacco and Firearms unsuccessfully tried to search the complex and arrest Koresh on weapons charges. A gunfight broke out, during which four agents and six Branch Davidians were killed.
That triggered the standoff that ended with the compound burning to the ground.
A fire expert hired by the plaintiffs has testified that tanks used in an FBI tear-gassing operation on the final day punched holes in the walls that allowed wind gusts to feed the flames.
WACO, Texas (AP) - Government attorneys in a wrongful death lawsuit hope jurors can hear surveillance audiotapes of Branch Davidians in the sect's compound moments before it was consumed by flames.
As the 51-day standoff came to an end, the voices recorded inside the building could be heard saying, ``pour the fuel'' and ``light the fire,'' lawyers for the government claim.
The recordings are proof that suicidal Davidians, not federal agents, caused the April 19, 1993, fire that consumed the rickety wooden complex, the government said in a motion filed Friday seeking to introduce the tapes into evidence.
Some 80 sect members - including leader David Koresh - died from either gunshots or fire that day.
Attorneys for sect family members and survivors suing the government have argued that jurors in the case should not hear the recordings because the voices have not been identified and therefore do not prove sect members started the blaze.
The recordings were made with tiny eavesdropping devices placed in the compound. In a motion filed last month, plaintiffs argued that introducing the tapes amounted to hearsay because of their anonymous nature.
``Absent voice authentication, the tapes are not admissible for any purpose,'' said the plaintiffs' motion. ``At a minimum, the defendant must present testimony from one or more witnesses able to identify the speakers based on his familiarity with their voices.''
U.S. District Judge Walter Smith has yet to rule on whether they will be admitted as the $675 million wrongful death trial enters its fourth week.
The standoff began Feb. 28, 1993, when agents with the Bureau of Alcohol, Tobacco and Firearms unsuccessfully tried to search the complex and arrest Koresh on illegal weapons charges.
A gun fight ensued in which four agents and six Davidians were killed. It triggered the standoff that ended with the compound burning to the ground.
Plaintiffs say agents fired indiscriminately into the building during the raid, but the agents claim they were ambushed by Davidians and were defending themselves.
A fire expert hired by the plaintiffs has testified that tanks used in an FBI tear-gassing operation on the final day turned the compound into kindling by punching holes in the walls, allowing wind gusts to feed the flames.
WACO, Texas (AP) -- Government attorneys in a wrongful death lawsuit hope jurors can hear surveillance audiotapes of Branch Davidians in the sect's compound moments before it was consumed by flames.
As the 51-day standoff came to an end, the voices recorded inside the building could be heard saying, ``pour the fuel'' and ``light the fire,'' lawyers for the government claim.
The recordings are proof that suicidal Davidians, not federal agents, caused the April 19, 1993, fire that consumed the rickety wooden complex, the government said in a motion filed Friday seeking to introduce the tapes into evidence.
Some 80 sect members -- including leader David Koresh -- died from either gunshots or fire that day.
Attorneys for sect family members and survivors suing the government have argued that jurors in the case should not hear the recordings because the voices have not been identified and therefore do not prove sect members started the blaze.
The recordings were made with tiny eavesdropping devices placed in the compound. In a motion filed last month, plaintiffs argued that introducing the tapes amounted to hearsay because of their anonymous nature.
``Absent voice authentication, the tapes are not admissible for any purpose,'' said the plaintiffs' motion. ``At a minimum, the defendant must present testimony from one or more witnesses able to identify the speakers based on his familiarity with their voices.''
U.S. District Judge Walter Smith has yet to rule on whether they will be admitted as the $675 million wrongful death trial enters its fourth week.
The standoff began Feb. 28, 1993, when agents with the Bureau of Alcohol, Tobacco and Firearms unsuccessfully tried to search the complex and arrest Koresh on illegal weapons charges.
A gun fight ensued in which four agents and six Davidians were killed. It triggered the standoff that ended with the compound burning to the ground.
Plaintiffs say agents fired indiscriminately into the building during the raid, but the agents claim they were ambushed by Davidians and were defending themselves.
A fire expert hired by the plaintiffs has testified that tanks used in an FBI tear-gassing operation on the final day turned the compound into kindling by punching holes in the walls, allowing wind gusts to feed the flames.
WACO, Texas - Five anonymous citizens from central Texas have the daunting job of applying common sense to complicated legal issues and conflicting accounts of the deadliest law enforcement debacle of the 1990s - the siege of the Branch Davidian complex.
Here are some of the questions that the advisory jury will consider when it begins deliberations later this week or early next:
* How much force is too much force when law enforcement agents are pinned down in a gunbattle?
* How much room do front-line law enforcement officials have to make mistakes without paying for them in court?
* Can the government be blamed for the deaths of the more than 80 Davidians if the Davidians set the fire that killed them?
* Did the government have a legal responsibility to rescue the Davidians from a fire they set?
* Should the government be held responsible for the deaths of the children who couldn't save themselves?
But the unwritten question that looms is whether these ordinary Texas citizens - three women and two men - believe the federal government.
Excessive force
The question of excessive force applies to the Feb. 28, 1993, raid that led to the 51-day siege. About 75 agents from the Bureau of Alcohol, Tobacco and Firearms attempted to execute a search warrant for illegal guns.
Branch Davidians claim the agents shot first and fired "indiscriminately" during a two-hour gunbattle. The ATF agents claim they had only taken a few steps toward the building before the Davidians opened fire. For the rest of the gunbattle, the Davidians had the agents outgunned. Agents said they would have been "slaughtered" if they had tried to retreat.
So far, the government has spent a week countering the allegation of excessive force with statements from more than 30 ATF agents, all of whom say the gunfire erupted from the complex before government agents fired.
Courts, including those in Texas, generally refuse to second-guess the decision of the officer on the street who acts in self-defense. For example, the government has cited the case of a Texas police officer who tried to stop a trucker for drunken driving and ended up shooting him when the driver barreled toward him. The officer was cleared.
Government discretion
The Federal Tort Claims Act permits people to sue the government. But the law has a "discretionary function" exception that protects the government from being sued for mistakes made by its officials. The point of the exception is to avoid discouraging officials from making tough decisions.
The government has already won some legal battles in the Waco case because of this exception. U.S. District Judge Walter S. Smith Jr. threw out the challenge to the ATF's "dynamic entry" during the Feb. 28 raid, when agents tried to break into the Davidian complex immediately after announcing a search for illegal weapons. Smith also threw out the claim that the government's use of tear gas endangered the Davidians.
The government has tried to convince Smith that the same discretion that covers the use of tear gas also should protect the means the government chose to insert the gas. On the final, fatal day of the siege, FBI commanders on the scene - Jeff Jamar and Richard Rogers - used converted tanks to knock into the building to deliver the tear gas.
But Smith still isn't sold on that argument. He is allowing the Davidians to show that the commanders' decision to knock down large parts of the complex violated the plan that Attorney General Janet Reno had approved. That plan did not call for demolition of the complex until 48 hours after the assault began.
Reno testified that Jamar and Rogers had the discretion to knock down part of the complex six hours after the assault began. But her testimony was undercut by a memo quoting her as saying the FBI wanted her to "butt out" once she approved the final assault.
The causal chain
To win, the Davidians have to show an unbroken "chain of causation" between a negligent act by the government and the death of the Davidians.
The government claims that the Davidians' actions in setting the fire broke the causal chain between the government's demolition of the building and the deaths of the Davidians.
Mike Caddell, the lead lawyer for the Davidians, responds that the key question is whether the government should have been able to foresee a drastic response by the Davidians. He cites the warnings from the FBI's psychological profilers that, "If the compound is attacked, in all probability, David Koresh and his followers will fight back to the death."
The government's answer is that no one could foresee such an extraordinary event as "the decision of parents of young children to place them in mortal danger by setting their building on fire."
Duty to rescue
The law does not have the warm heart of the good Samaritan. It generally does not recognize a duty to rescue another person from danger.
The Justice Department illustrates that legal rule with the story of the bystander who allows a blind man to step in front of traffic knowing he will be hit. The bystander cannot be held liable. The government says that, by the same token, it cannot be held liable for not having sufficient fire equipment at Waco to rescue the Davidians.
Caddell's response is that the government was not an "apathetic bystander" at Waco. It took actions that made the situation more dangerous and for that reason had a legal duty to rescue the Davidians.
The children
If the government is found to be liable, the damages it has to pay can be reduced if those bringing the suit are also at fault. If the fault of the person suing is greater than 50 percent, the person cannot collect.
Caddell has proposed jury instructions that would require the jury to determine - for each plaintiff - what percentage of blame lies with the government and what percentage with that plaintiff.
Caddell says that under Texas law, a child under 5 cannot be at fault and a child 5 to 13 is only expected to act like a reasonable child - which probably means staying with parents. So, if the jury found the government negligent in some way, the government would pay for the children's deaths.
In the end, however, the jury's verdict is merely advisory. That may be a good thing, because one of the five jurors has slept through large portions of the testimony. Smith can set the verdict aside if he disagrees with it. And he could decide, after all the evidence is in, that the government's actions were within the discretionary-function exception of the law.
WACO – Government lawyers again have asked a federal judge to throw out a claim of government gunfire at the end of the Branch Davidian siege, renewing their argument that the charge springs from faulty science and can be disproved with basic mathematical analysis.
Their pleading comes just weeks after U.S. District Judge Walter S. Smith told both sides in the Branch Davidian wrongful-death case that he might dismiss the issue without allowing it to go to a full trial.
Judge Smith said last month that he was persuaded to consider the dismissal by a May report rejecting the gunfire claim. That report, written by his court-appointed expert, British-based Vector Data Research, concluded that flashes on the Waco video came not from gunfire but from sunlight or heat from tank engines reflecting off ground debris.
Study called flawed
Lawyers for the sect filed a detailed challenge to the Vector report late last month. They argued that the study was too flawed to resolve whether gunfire caused repeated flashes on an FBI forward-looking infrared, or FLIR, videotape recorded on the final day of the 1993 standoff.
Government lawyers filed their own brief late Friday afternoon, arguing that "gunfire can be ruled out mathematically as the source of 90 percent of the flashes ... and therefore the court can independently evaluate the FLIR tape without the assistance of the Vector report."
The wrongful-death lawsuit filed by sect members and relatives of those who died during the siege alleges that government gunfire cut off escape routes and kept innocent women and children from fleeing when their compound caught fire. More than 80 people died amid the blaze that broke out just after noon on April 19, 1993, about six hours after the FBI began a tank and tear gas assault aimed at forcing the sect to surrender.
Judge Smith decided to sever the April 19 gunfire issue from the case last month before the opening of the sect's wrongful-death trial. At the time, he told lawyers for both sides that he wanted to hear personally from the chief analyst assigned by Vector to study the original FBI video and data from a March infrared field test ordered by the court to help resolve the gunfire issue.
Conflicting testimony
The company's Waco report has been under fire since two of the three analysts involved in the study were deposed in May. The two analysts gave testimony that conflicted significantly with the company's original May report to Judge Smith.
Neither side in the lawsuit has questioned a third Vector employee who served as chief analyst for the court-ordered study. He underwent prostate surgery last spring and cannot travel to the United States until late July. His unavailability and his importance to the Vector study were Judge Smith's principal reasons for deciding last month to delay consideration of the gunfire issue.
But after severing the issue, Judge Smith announced five days before the start of the Davidian trial that he was considering dismissing it outright. The government's Friday brief argued that Judge Smith could use simple mathematical analysis and "independently evaluate the FLIR tape without the assistance of the Vector report."
Flashes analyzed
Citing an analysis by their own infrared expert, government lawyers argued that each flash on the Waco video could be ruled out as gunfire by first noting how the FBI's FLIR camera recorded thermal images.
Government lawyers noted that the British-made camera records 30 individual frames per second, and each of those are composed of two intertwined or interlaced "fields" recorded every 1/60th of a second.
The government's brief noted that the Waco infrared video can be slowed down to determine the exact number of individual fields that each flash appears. Noting the duration of a single muzzle blasts from the fastest-firing guns carried by government forces at Waco, the government argued, a gun blast should appear no longer than one 1/60th of a second – or a single field on the Waco infrared camera.
Most of the flashes on the Waco infrared video appear over two or more consecutive fields – too long to be from gunfire, government lawyers argued.
"It therefore can be stated with scientific certainty that a flash that appears on the FBI's FLIR tape in two successive fields is too long in duration to be a small-arms muzzle blast," stated a report accompanying the government brief from their scientific expert, Irving William Ginsberg.
Additionally, the government argued, some flashes can be ruled out as gunfire because no people are visible anywhere near them, and gunmen would normally be detected by the heat-sensing camera.
"In addition to an objective mathematical analysis, the context of the flashes further supports the conclusion that the flashes are not caused by gunfire. Most notably, the complete absence of discernable personnel during the times at issue, coupled with the ability to detect personnel in the vicinity later in the tape ... supports the conclusion that the flashes are not caused by muzzle blasts," wrote Dr. Ginsberg, chief scientist at the U.S.. Energy Department's remote sensing laboratory in Nevada.
Plaintiffs' case
Michael Caddell of Houston, one of the plaintiffs' lawyers in the wrongful-death lawsuit, contended Saturday that the government's argument is flawed. He said he and other lawyers must be allowed to cross-examine Dr. Ginsberg and Vector's chief analyst before Judge Smith makes any decision on the gunfire issue.
He said Dr. Ginsberg's analysis is suspect because it hangs on his estimates of the cyclic firing rate – or maximum number of bullets fired per minute – of M-16 assault rifles and M-60 machine guns.
Mr. Caddell noted that no M-16 rifles were used by the government in Waco, and the government report does not address other guns such as MP-5 9 mm machine guns, shotguns and M-79 grenade whose blasts were recorded during a court-ordered March infrared camera field test. Government lawyers tried to fight the field test last fall, originally citing opinions from their scientific experts that the infrared camera used at Waco was not sensitive enough to detect and record any type of gunfire.
Mr. Caddell said the government's latest brief on the gunfire issue fails to address a report he filed with the court last month from a retired CIA imagery analyst. The analyst found that personnel could be seen in the Waco video in three areas near the front and rear of the compound just before it burned.
Other lawyers for the sect filed an additional report late last month from a New Jersey infrared expert, who wrote that the camera's controls could have been manually manipulated to make people less visible and that the flashes on the video looked more like gunshots than anything found in nature.
But "most revealing," Mr. Caddell said, was the government's dismissal of the Vector Data Research report. "They are disassociating themselves from Vector," he said. "That speaks volumes about how Vector has been discredited.."
That could have implications for the ongoing investigation by Waco special counsel John C. Danforth. Judge Smith chose Vector last year to supervise an infrared field test and prepare a written analysis of the Waco video after they were recommended by Mr. Danforth's office.
Mr. Danforth's office is also using the firm to help prepare its own evaluation of government actions in the 1993 tragedy.
Waco, FBI and the Branch Davidians: Updates
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