W A C O, Texas, April 24 — In what could be a preview of the Branch Davidians’ wrongful-death lawsuit against the government, a judge must determine whether key evidence gathered after the fiery 1993 raid of the group’s compound was mishandled.
U.S. District Judge Walter Smith was expected to review the plaintiffs’ complaint that the government has withheld, destroyed or tampered with evidence.
Davidian leader David Koresh and some 80 followers died during the April 19, 1993, fire that occurred several hours into an FBI tear-gassing operation designed to end a 51-day standoff. The government contends their deaths, whether from fire or gunshot wounds, came by their own hands.
The plaintiffs argue government gunfire cut off the Davidians’ only avenue of escape as the inferno raged. They also contend the FBI’s on-scene commanders did little to prepare for the possibility of fire despite Attorney General Janet Reno’s order that they be ready for all emergency situations. Debating the Evidence The hearing will deal with a motion filed in mid-March by plaintiffs’ attorneys that accuses the government of:
Never returning a roll of film confiscated from the Texas Rangers showing bodies and weaponry found inside the decimated concrete bunker. “The absence of these photographs makes it very difficult, if not impossible, to determine if any of these persons were shot outside of that room and moved into it prior to or after the fire,” the plaintiffs’ motion said.
Representing as originals audio recordings made from listening devices planted inside the compound during the 51-day siege. An analysis the plaintiffs commissioned suggests the tapes are copies. The tapes - which the government has relied on for proof that the Davidians spread fuel and started the fire - also bear signs of being recorded with multiple recorders, the plaintiffs’ tape expert concluded.
The government has called the allegations “baseless” and says the accusations relied upon are incomplete, illogical or scientifically invalid analyses by the plaintiffs’ hired lawyers and experts.
But in a point-by-point response filed one week ago, the government acknowledged it is missing 30 original negatives from the first of at least seven rolls of film shot by an FBI photographer who circled 1,000 feet above the complex in a Cessna surveillance aircraft.
Government Defends Actions
The government, however, has prints of the missing negatives and the original contact sheet of the negatives.
The roll of film is important because it appears to show there are no government agents standing where flashes appear on infrared surveillance tape. The absence of agents undercuts the Branch Davidians’ claim that the flashes are from the guns of agents firing into the complex.
The scheduled hearing comes on the heels of reports that a recent court-ordered simulation of the siege showed that flashes caught on videotape were most likely sunlight reflecting off debris, not government gunfire as the plaintiffs’ attorneys claim.
The wrongful-death trial was set to begin June 19.
Preliminary results from a test designed to determine the source of flashes on an infrared video at the end of the Branch Davidian siege near Waco strongly suggest they were caused by sunlight and heat from FBI tanks reflecting off debris - and not government gunfire, an investigator said.
A preliminary report submitted this month by court-appointed British experts did show that flashes were clearly visible on a test infrared video recording from weapons ranging from assault rifles to shotguns, other sources said.
But the test video also recorded distinct flashes from tank exhaust and sunlight reflecting off ground debris, and gunmen firing each of the weapons were always visible on the test video, according to sources who have reviewed the report by Vector Data Research.
Flashes from gunfire on the test video were also far shorter in duration, lasting at most one-fiftieth of a second while those from debris lasted up to 19 times as long, the sources said.
"The length of the April 19 flashes are consistently much longer than what you would see from muzzle blasts," said a government investigator, who spoke on condition of anonymity. "Their duration is far closer to what you saw being generated by debris in the field test." "There is now clear evidence to suggest that whatever caused those flashes on April 19, it wasn't guns," said the investigator. "It appears from their preliminary report that Vector is going to be systematically eliminating all of the glints as coming from muzzle blast on April 19, 1993."
Determining cause
More than 80 sect members died that day in a fire that consumed the sect's home. The fire broke out six hours into an FBI tank and tear gas assault, an operation in which lawyers for the sect have alleged that government agents fired guns repeatedly into the rear of the compound and cut off potential avenues of escape.
Government officials have long denied that any one from their side fired a single gunshot on April 19.
U.S. District Judge Walter Smith ordered a test to try to resolve the issue after the plaintiffs' infrared experts reported that flashes recorded by an airborne FBI forward-looking infrared or FLIR camera on April 19 could have only come from government guns.
The British infrared firm was hired by the court last year to supervise the March 19 field test after being recommended by the office of Waco special counsel John C. Danforth. Judge Smith also asked the firm to prepare an independent report on the results for the court.
Mike Caddell, lead lawyer for the plaintiffs in the wrongful death lawsuit arising from the siege, said he remains hopeful that Vector's final written report to the court will conclude that some of the flashes on the April 19 video came from gunfire.
Many issues
But he said he and other lawyers had expected to hear immediately from Judge Smith about the substance of an oral report he received last Monday by the British experts on its conclusions about the gunfire. Mr. Caddell conceded that the judge's decision not to pass along what he was told "may be a bad sign." He said the judge may not have wanted to give potentially bad news to lawyers for the sect during the same week that surviving sect members observed the seventh anniversary of the siege's fiery ending.
"There are many issues in our lawsuit. Gunfire is only one of them. It is not even the most serious issue in terms of loss of life. The most serious issue may be the decision not to have adequate firefighting equipment there on April 19," Mr. Caddell said.
"We can only recover for a death one time. And if we recover because there was lack of firefighting equipment or there was premature demolition of the building or because the government's actions contributed to the fire, or we recover because there was government gunfire - that is immaterial," he said. "For my clients, people who lost loved ones on April 19, all of these issues are equal."
Government case
Government lawyers have focused their key legal maneuvering during the last nine months on making the allegations of gunfire and government agents' use of excessive force against the sect the only issues that will be brought to a full trial. They have repeatedly asked Judge Smith to dismiss remaining issues in the lawsuit, arguing that federal law protects the government and its agents from what amounts to "second-guessing" of their decisions in a courtroom - even if those decisions have tragic results.
"The judge is likely to let at least some of the other issues go to trial, but losing on the gunfire issue is a major setback. The darkest of the dark questions in the plaintiff's case will be answered in the negative," the investigator said. "For anyone banking on the April 19 flashes being caused by gunfire, asking for this field test may have been the tactical equivalent of that prosecutor in Los Angeles asking O.J. Simpson to try on that glove." Judge Smith has not yet ruled on those motions, but his decisions on the final size and scope of the case must be made soon because he has scheduled the case to go to trial on June 19.
If the court expert concludes that there is no gunfire, then Mr. Caddell and other lawyers for the plaintiffs will have to decide whether they and their experts have any hope of challenging that conclusion.
Mr. Caddell said conditions in the Fort Hood, Texas, test such as the angle of the FLIR camera and its distance from the targets on the ground could still pose significant questions for whichever side loses when the British experts offer their final conclusions.
If they report no gunfire flashes on the April 19 video, he said, he would have problems accepting that "if there's a significant difference in [flash] time that would be attributed to distance or angle of the camera.
"If their conclusion is it can't be gunfire because we don't see people like on April 19, I'd have a problem," he said, noting that people would have been more visible on the test tape because the day was 20 degrees cooler in temperature and the gunmen in the test were not trying to hide.
"If they can show me flashes on the British FLIR that are from debris, that are identical to flashes on the April 19 FLIR, and they can then show me on the April 19 FLIR that [what appears to some viewers to be moving people] is in fact debris and not a person - I'm not crazy," he said. "I am not unreasonable. I could be convinced of it. But I'd have to see it."
Finding answers
The investigator involved in an ongoing investigation of the Waco incident said he believes that the British firm will be able to find clear causes other than gunfire for most, if not all, of the flashes on the April 19 tape.
He said some experts who have viewed the April 19 video have noted that the moving blips that appear on it could have been caused by blowing aluminum-coated insulation, bits of construction or roofing paper or other similar debris.
"The moving objects appear to go from right to left. That's the direction that the wind was blowing that day," the investigator said.
Experts also questioned gunfire as a possible source for the April 19 flashes because many appeared circular in shape and, "gun flashes are always linear," the investigator said.
Vector's preliminary written report analyzing the recording from the field test also indicated that heavy tanks like those used by the FBI in its April 19 tear gas assault did cause some flashes to appear on a FLIR video, sources said.
Heat from the exhaust bay of the combat engineering vehicles used by the FBI in Waco did throw enough heat onto debris strewn on the ground at Fort Hood to create visible flashes on the test recording, sources said the report by Vector indicated.
Flashes from the debris varied in shape, size and intensity on the field test recording. Its size, and sometimes its shape, was similar to the actual object that was reflecting sunlight or heat, sources said the report indicated.
The length of the debris flashes varied but was always longer than gun flashes. The gunshots caused flashes of uniform brightness and consistently small, linear shape and also left a shadow that was visible two to three feet above the ground when the images were viewed in "stereo," the report indicated.
Flash producers
Six weapons fired at Fort Hood did produce muzzle blasts, disproving the FBI's long-held theory that its camera was incapable of detecting and recording gunfire.
Weapons that produced flashes included CAR-15 assault rifles - a type of gun commonly carried by the FBI's hostage rescue team; M-60 machine guns - which were also present in Waco; M-79 grenade launchers - like those used to fire tear gas at the compound; shotguns, "flash-bang" distraction grenades; and a Mark-19 automatic grenade launcher, the preliminary report indicated.
But the test also supports the government's long-held theory that flashes on April 19 couldn't have been gunfire because no gunmen were visible. Government officials have argued that the first person to appear on that videotape is a Branch Davidian survivor who appeared on the compound roof during the fire.
The Vector preliminary report indicated that gunmen at Fort Hood were always visible, although they sometimes appeared less clearly, sources said.
Even before the British firm conducted last month's field test at a closed Fort Hood firing range, some government critics began to say that Vector could not be unbiased in its supervision and analysis because the firm is owned by an American defense conglomerate. Other subsidiaries of the conglomerate, Anteon Inc., have extensive contracts with U.S. agencies including the Pentagon, the National Security Agency, the FBI and the Justice Department.
At least part of the British firm's preliminary report to the court appeared aimed at addressing those critics.
Sources said the report's first section included the statement that the British firm did most of its work for the British defense ministry. The report also noted that the firm was operated and controlled by British nationals and had never previously done work under direct contract with the U.S. government.
Five weeks ago, the Branch Davidians' main claim of government wrongdoing in the siege at Waco, Texas, in 1993 was that FBI agents had fired guns at the occupied complex and then denied the shooting.
Today that charge is evaporating, and the Branch Davidians' lawyers are stressing other claims.
Five months ago, congressional investigators talked about high-profile hearings on Waco, where the siege of the Branch Davidians' compound ended in a fire that led to the deaths of about 80 people. Now, hearings are unlikely, and the Justice Department has been told that congressional investigations will probably end with reports that criticize the government but find no illegal acts.
What has changed? The main difference is the findings of a Waco simulation performed at Fort Hood, Texas, on March 19. The Post-Dispatch reported Saturday that a British firm that conducted the simulation has issued a report to U.S. District Judge Walter S. Smith Jr. that supports the government's denial of gunfire.
There is quite an irony in this result. Justice Department lawyers and FBI officials privately were exasperated with Special Counsel John C. Danforth for suggesting the simulation. The Branch Davidians' lawyers and experts had been ecstatic, confidently predicting the test would prove their allegations.
"Smoking gun?"
Every government agent who has testified about Waco has said that not one shot was fired by the government during the 51-day siege. But the Branch Davidians thought they had the "smoking gun" evidence - mysterious flashes that showed up on an infrared surveillance tape taken by an FBI plane during the final tear gas assault April 19, 1993. The flashes appeared near converted tanks that were knocking down the gym during the last hour before the fire.
The Branch Davidians claimed that the tapes showed a classic tank-infantry assault that frightened their members and kept them pinned inside the complex. On the infrared tape, no gunmen were visible near the flashes, but the Branch Davidians' experts said that people's bodies sometimes do not show up on infrared scans.
A high-tech computer firm, the Maryland Advanced Development lab, analyzed the tape using a computer program it had developed to detect gunfire in an infrared scene. The lab concluded that the flashes lasted too long to be gunfire. It suggested that the flashes instead came from sunlight reflecting off debris ejected as the tanks knocked down the gym.
Because the issue of gunfire was so central to the controversy, Danforth asked Smith to order a simulation. Smith is the judge presiding over a wrongful death suit in which survivors of the episode are claiming the government is responsible for the deaths of the Davidians.
Vector Data Systems, a British subsidiary of an American defense firm, conducted the test. Two aircraft with different infrared cameras circled over a test site at Fort Hood, scanning a debris field and a range where soldiers fired nine weapons.
Vector presented a written report of its preliminary findings to Smith and the parties to the suit April 14. The report is secret, but knowledgeable sources described its findings: The cameras detected flashes from both the debris and from six of the nine weapons tested. But two findings supported the government.
* First, the duration of the flashes from the debris was considerably longer than the flashes from the muzzles of the guns. This was in line with the findings of the Maryland lab that the flashes on the 1993 Waco tape were too long to be gunfire.
* Second, wherever flashes from guns showed up, the shooters were also visible.
Mike Caddell, the main lawyer for the Branch Davidians, said Friday that regardless of what Vector finally concludes, he will have a strong case against the government. He still plans to present his experts to say the flashes were gunfire. But he will stress other elements of his case.
Caddell's remarks illustrate how much the ground has shifted. He said he had tired of the focus on the gunfire issue. Instead, he stressed that the government should be held liable for the deaths of the Branch Davidians because FBI commanders negligently failed to provide fire equipment, despite Attorney General Janet Reno's instructions that they provide for "emergency equipment."
In a legal brief last week, Caddell quoted the testimony of top FBI officials who said they had thought Reno's directive included fire equipment. But the commanders on the scene, Jeff Jamar and Richard Rogers, said they had thought Reno was referring only to medical equipment.
Another claim that Caddell says he can prove is that Jamar and Rogers ordered the premature destruction of the gym. Jamar and Rogers claim they were not destroying the complex, but trying to get tear gas into the kitchen area. But Caddell says that Jamar prepared a commendation for a medal awards program that described the action as "methodically beginning the dismantling" of the gym.
FBI officials in Washington had rejected plans to knock down the complex, fearing that it would frighten the Davidians and make them feel they were under attack. The final plan for the assault provided that the agents not destroy the complex for at least 48 hours. The commanders exceeded their authority when they departed from Reno's instructions, Caddell argues.
But in a deposition last month, Reno didn't help Caddell's position. She maintained that Jamar and Rogers acted within their authority. Reno bolstered the government effort to persuade the judge to throw out most of the Branch Davidians' claims before trial.
Rulings are expected soon
Smith is expected to rule soon on pretrial motions, possibly as soon as Monday, when he holds a hearing in Waco on whether to sanction the government for missing his January deadline for turning over all documents.
The wild card in the Branch Davidian case is Danforth's investigation. Lawyers and investigators outside Danforth's office say that the special counsel appears to be going down what one described as "every rabbit trail" so that he can tell the American people that he has not left any allegation uninvestigated.
ST. LOUIS (AP) - Federal agents did not fire at Branch Davidians in the 1993 siege that ended in a deadly blaze at the group's compound in Waco, Texas, according to a preliminary report from last month's simulation of the confrontation.
Vector Data Systems, the British firm that conducted the simulation, provided the written report to U.S. District Judge Walter S. Smith Jr. earlier this month.
The test was performed March 19 in Fort Hood, Texas.
Vector found that flashes produced by sunlight reflecting off debris were considerably longer in duration than flashes produced by gunfire, the St. Louis Post-Dispatch reported today, citing informed sources.
That finding would support the government's claim that similar flashes seen on a 1993 infrared tape were the result of sunlight reflecting off debris from the crumbling complex, not gunfire.
Vector also reported that the infrared cameras in aircraft above the Fort Hood simulation site picked up flashes from six of the nine weapons tested. But wherever flashes were visible from weapons, the shooters also were visible, the sources said. Flashes on the 1993 Waco tape do not show shooters.
Vector followed up the preliminary report with an oral briefing for Smith last Monday.
Mike Caddell, the lead counsel for the Branch Davidians, said Smith has not yet relayed the conclusions of Vector's oral report.
He interpreted that as ``a bad sign for my side.'' But, Caddell said, he has strong evidence on other issues that he will stress at the June trial of the Branch Davidians' wrongful death suit against the government.
Among them are the Davidians' claim that the FBI failed to provide fire equipment as instructed by Attorney General Janet Reno and that the FBI commanders on the scene abused their discretion by prematurely knocking down part of the complex.
Regardless of Vector's conclusions, Caddell plans to present his own experts who will argue that the flashes on the 1993 tape are from government guns. He acknowledges that his experts cannot show that any particular Branch Davidian died from a government bullet.
Vector was hired to conduct the test by Special Counsel John Danforth who, in September, was appointed by Reno to oversee an independent investigation into the standoff and fire.
The appointment came amid criticism following revelations that the FBI, contradicting a position it had taken for six years, used potentially incendiary devices on the last day of the 51-day standoff on April 19, 1993. David Koresh and about 80 followers died. Reno and the FBI deny any wrongdoing.
The lead lawyer in the Branch Davidians' wrongful-death case charged Friday that the Justice Department is "misrepresenting the law [and] the facts" to avoid being assessed even partial responsibility for the 1993 Waco tragedy.
His lengthy motion alleges that government officials from Attorney General Janet Reno on down were "continuing their seven-year spin" as they seek dismissal of legal complaints that the government and its agents were negligent in failing to bring in adequate firefighting equipment before launching a tear-gas assault on the sect's home and prematurely ordering tanks to start demolishing it.
The 58-page pleading by Houston attorney Michael Caddell also offered new details of what low-level FBI agents were being told in the last weeks leading up to the April 19, 1993, assault. The operation ended in a massive fire that consumed the Branch Davidian compound and more than 80 sect members.
Friday's motion cited a videotaped April 7 briefing in which an unidentified supervisor told an FBI regional SWAT team that the bureau had wanted to take action earlier but could not because it was "kind of a rudderless ship." The official also told agents in Waco that early proposals to bash the compound with tanks and spray in tear gas were rejected as too provocative, but even less-aggressive plans to lob in gas from a distance with shoulder-fired grenade launchers were widely expected to provoke violence.
After tanks were used to bash holes into the building and spray in gas, senior FBI officials told Congress that they had no idea that their lead agent in Waco thought any gassing would provoke Branch Davidian gunfire.
One senior FBI official said last year that then-Deputy FBI Director Floyd Clarke vetoed lobbing in gas because he feared that it might appear that the bureau's agents had fired the first shots - a potential public-relations disaster if the assault ended badly.
Friday's pleading is the latest in a series of increasingly contentious legal filings in which each side has accused the other of twisting facts and legal precedent to try to persuade U.S. District Judge Walter Smith about which issues in the sect's wrongful-death lawsuit should be allowed to go to a full trial.
Mr. Caddell's motion comes on the heels of a detailed government motion seeking the dismissal of all claims against the government except those dealing with alleged use of excessive force during the 1993 standoff.
Responsibility issues
The government has long contended that the sect was responsible for the 1993 tragedy because government evidence, including wiretaps and a government fire investigation, showed that Branch Davidians torched their home.
The government's recent motion argued that Ms. Reno gave the FBI's commanders in Waco broad authority - including discretion to send tanks deep into the building at any time - when she allowed them to launch a tank and tear-gas assault against the Branch Davidians' home on April 19, 1993. It argued that federal law protects such discretionary decisions by government agents from private lawsuits.
But Mr. Caddell's motion Friday extended his argument that the FBI commanders' decision to send in a tank to demolish much of the rear of the compound violated the assault plan outlined by senior FBI leaders and approved by Ms. Reno.
The motion noted that senior FBI officials testified in recent depositions that the bureau's Waco commanders had no authority to send tanks in to demolish the building that early in the assault, absent emergency or prior approval from Washington.
It also characterized as a "smoking gun" an internal FBI award recommendation signed by both Waco commanders that described a tank's assignment at the rear of the compound that day as a "mission . . . [to begin] the dismantling of . ... . the gymnasium."
Mr. Caddell said Ms. Reno's recent deposition testimony on that and other issues was "evasive, nonresponsive" and a "well-coached" product of "her after-the-fact failure to properly investigate this matter and punish the wrongdoers - which she now must defend."
The motion also tried to bolster the sect's argument that FBI leaders should have had adequate firefighting equipment on hand in Waco. It stated that the bureau's top officials acknowledged in depositions that the attorney general's directives for adequate emergency equipment required it.
Only the bureau's Waco commanders, Jeffrey Jamar and Richard Rogers, said they didn't know that the directive extended to firefighting equipment.
Ms. Reno and the FBI's top officials acknowledged in depositions that no one in the bureau told the attorney general that Mr. Rogers and Mr. Jamar sent notice to FBI headquarters just before the assault that they didn't intend to try to fight any fire that might break out during their operation.
The motion noted that the FBI also ignored offers for the free use Czech-made armored firefighting equipment from a California vendor who had previously sold or rented aircraft to the FBI and other federal law-enforcement agencies. The equipment could be operated by remote control to avoid exposing firefighters and was featured in Jane's Intelligence Review the month before the siege began, the motion stated.
The vendor who offered the equipment testified recently that bureau officials never followed up on his offer. Senior FBI officials testified that they didn't recall the offer and assumed that no such equipment was available after an agent was told by Defense Department officials that none was available.
Videotape evidence
The motion included extensive excerpts from a home video made by an FBI agent assigned to help man FBI positions in the final weeks of the standoff.
The recording was turned over to Mr. Caddell as part of discovery in the lawsuit and also was recently released to an Arizona lawyer who has filed a freedom-of-information lawsuit to force the FBI to turn over all of its video and audio recordings.
In that April 7 video of an FBI briefing, an unidentified FBI SWAT team leader told a small group of camouflaged FBI agents gathered in a motel room that FBI headquarters rejected an early plan to use tanks to punch holes in the building and inject gas "because it would be perceived by the Davidians, the people inside, as an act of aggression or attack. . . . They will retaliate with gunfire. So headquarters rejected it because we'll take fire if we did that."
He added that "most people here" thought that even a less-aggressive effort to fire in gas from a distance would probably prompt the sect "to come out shooting."
He also told the agents that earlier bureau requests to launch a tactical action to try to force the sect to surrender had gone nowhere because of turmoil in the FBI's senior leadership, the lack of an attorney general during the early days of the siege and the unwillingness to approve a domestic paramilitary action that might lead to bloodshed.
Ms. Reno was not sworn in until the second week of the siege, and then-FBI Director William Sessions was under intense fire from within his agency.
"As far as all the red tape," the official said in the briefing, ". . . it's because the bureau has had kind of a rudderless ship. You look at the situation with the director. Rumor has it that, as soon as this is over, he's gone. He's kind of in a nondecision-making mode. The attorney general: there was no attorney general actually in place when this actually happened, and when Janet Reno finally got the job, she obviously wasn't going to make the decision to do that.
"And then a new administration, the Clinton administration, did not want something of this magnitude being the first military or paramilitary bloodshed, domestic, on American soil - something of this magnitude. So he wasn't willing to say, 'Go get 'em out.' It bypassed headquarters, went up to DOJ, and actually, decisions started being made from . . . the White House." The FBI SWAT team leader added that many bureau actions, including the controversial decision to allow criminal defense lawyers into the compound midway through the standoff, were dictated by Washington.
Mr. Jamar told Congress after the siege that he alone made the decision to let the lawyers go in.
But in the video, the FBI SWAT team leader told agents that Mr. Jamar was initially adamantly opposed to letting sect leader David Koresh and his chief lieutenant meet with lawyers hired by their families.
"But somewhere between that time and the next morning, headquarters was contacted back and forth and headquarters says, 'Yeah, let 'em go in.' So that was even above his head," the FBI SWAT team leader said.
Mr. Caddell's motion said those comments posed an "irony [that] is clear: Apparently the decision whether to send attorneys into Mt. Carmel was 'above' Jamar's head, but - the DOJ wants us to believe - sending tanks into the building was not."
In a segment of the video not cited in Mr. Caddell's motion, the official also said that the FBI had gone all over the world to interview former Branch Davidians and families of those inside the compound. Those interviews concluded that "nobody seems to think that this will be resolved peacefully. [Sect leader David] Koresh is not built that way. It [goes] against his preachings that he will die at the hands of the government violently.
"He has predicted that it would happen on past occasions just at the end of Passover, and it never happened. So in order to maintain his credibility, they feel that this will have to be a time for it to happen," the official said. "So everybody that knows him that they've been talking to for the most part feels that this will not end peacefully. It's going to be violent.
A preliminary report indicates that U.S. agents did not fire at the Branch Davidians in 1993. The British firm that performed last month's simulation of the Waco siege has issued a preliminary report that generally supports the government claim that agents did not fire at the Branch Davidians in 1993, the Post-Dispatch has learned.
Vector Data Systems provided a written report to U.S. District Judge Walter S. Smith Jr. earlier this month giving its analysis of the simulation that it conducted March 19 at Fort Hood, Texas. Vector found that flashes produced by glint reflecting off of debris were considerably longer in duration than flashes produced by guns, informed sources say. That finding supports the government because flashes on a 1993 infrared tape of the Waco siege also were long in duration. This means that the 1993 flashes could have come from sunlight reflecting off the airborne debris caused by the crumbling of the complex.
Vector also reported that the infrared cameras in aircraft above the Fort Hood simulation site picked up flashes from six of the nine weapons tested. But wherever flashes were visible from weapons, the shooters were also visible, the sources said. By contrast, the flashes on the 1993 Waco tape do not show shooters.
Vector followed up the preliminary report with an oral briefing for Smith on Monday. At that briefing, the infrared experts were planning to tell the judge whether they thought the flashes on the 1993 infrared tape of the incident were from gunfire.
Mike Caddell, the lawyer for the Branch Davidians, said Smith has not yet relayed the conclusions of Vector's oral report. Caddell takes that as "a bad sign for my side."
Caddell said he had grown weary of the emphasis on the gunfire issue. He says he has strong evidence on other issues that he will stress at the June trial of the Branch Davidians' wrongful death suit against the government. Principal among them are the Branch Davidians' claim that the FBI failed to provide fire equipment as instructed by Attorney General Janet Reno and that the FBI commanders on the scene abused their discretion by prematurely knocking down part of the complex.
As long as he can prove that the government's negligence in not having fire equipment contributed to the death of the 80 Branch Davidians who perished at Waco, it doesn't matter if he cannot prove government gunfire caused the deaths. "You can only collect on a death one time," Caddell said.
Regardless of Vector's conclusions, Caddell plans to present his own experts who will argue in testimony that the flashes on the 1993 tape are from government guns. But he acknowledges they cannot show that any particular Branch Davidian died from a government bullet.
Caddell said that in a deposition last week his chief medical expert testified that there was no way to use forensic or medical evidence to make his case.
WASHINGTON (AP) - The FBI ignored a California company's offer of remote-controlled armored firefighting equipment less than two weeks before the deadly fire that ended the 1993 Waco siege, Branch Davidians said in a court filing Friday.
The FBI's on-scene commanders also did little to prepare for the possibility of fire despite Attorney General Janet Reno's directive that they be ready for all emergency contingencies, the plaintiffs said as part of their wrongful-death lawsuit against the government.
They point to a memo jotted down in the FBI's Washington command center 10 days before the siege's fiery end advising that the two on-scene commanders had decided ``there would be no plan to fight a fire should one develop in the Davidian compound.''
More than 80 Branch Davidians died during the inferno that consumed their flimsy wooden retreat on April 19, 1993, several hours into an FBI tear-gassing operation intended to end the 51-day siege.
The local volunteer fire department's personnel and fire trucks were kept away from the burning building - a decision that FBI special agent in charge Jeffrey Jamar told Congress he made out of concern that the firefighters could be hit by Davidian gunfire or exploding ammunition.
But the plaintiffs, in a 58-page motion made public Friday that will be filed in federal court in Waco, Texas, say the FBI ignored an offer made by a California company - Flamechek International - to lend the government a Soviet T-55 combat tank reconfigured as armored firefighting equipment.
Flamechek's owner, Mira Slovak, told plaintiffs' lawyers in a deposition last month that he called an FBI office in California a week to 10 days before the siege's fiery end to offer the remote-controlled equipment. Slovak said he followed up the bureau's request for more information by providing brochures and tank specifications but never heard back from the FBI.
Former FBI Assistant Director Larry Potts and other high-ranking officials testified during recent depositions that they were told such firefighting equipment didn't exist and that they knew nothing of the Flamechek offer. ``Never heard of that,'' Potts said.
``It was my understanding that (armored firefighting equipment) didn't exist,'' said Richard Rogers, who headed the FBI's Hostage Rescue Team at Waco. He testified he first heard of Flamechek's offer last month.
The plaintiffs aren't focusing only on the armored equipment. They also argue that the FBI commanders were derelict in not exploring other options such as water cannons or helicopters with water buckets.
``The most fitting assessment of the FBI's pathetic performance on this issue remains the comment of Stuart Gerson, acting attorney general before the confirmation of Janet Reno: `Think about fire next time,''' the motion says.
The government has asked the federal judge presiding over the case to throw out the plaintiffs' claims relating to the fire, saying the FBI leaders' decisions are covered under a discretionary authority protection.
``The discretionary function exception protects policy-grounded judgment or choice,'' the Justice Department said in a court filing earlier this month. ``Even if the on-scene commanders were negligent or abused their discretion by deciding not to have armored fire trucks - or any other specific equipment - available, those decisions would fall within the exception.'' The government has long contended the Davidians themselves torched their retreat and caused their own deaths, whether by fire or gunshot.
The lawsuit heads to trial in mid-June.
Waco, FBI and the Branch Davidians: Updates
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