U.S. defends its handling of Waco evidence

Sect says some items lost, altered

The Dallas Morning News, April 18, 2000
By Lee Hancock

Government lawyers filed a point-by-point response Monday to claims that key evidence from the Branch Davidian siege was lost or intentionally altered, arguing that officials acted properly in collecting and turning over evidence from the 1993 raid.

The lengthy pleading comes one week before U.S. District Judge Walter Smith of Waco will conduct a hearing to determine whether the government should be sanctioned or fined for its handling of key evidence from April 19, 1993, the final day of the siege near Waco.

Lawyers representing relatives of the sect asked the judge last month to punish the government for what they say is a "disturbing pattern" of missing or altered evidence, including still photos, infrared videos and audio recordings from FBI bugs inside the Branch Davidian compound at the end of the siege.

The government's 41-page response countered that those allegations relied on incomplete, illogical or scientifically invalid analyses by the plaintiffs' hired experts and lawyers.

"This evidence, as shown below, has not been tampered with or altered, and, in those few instances where, after seven years, the items cannot be located, there is no showing of . . . improper motive by the FBI," the government's pleading read.

The government said seven rolls of still photos were taken from an FBI airplane in the last hours of the siege.

Lawyers for the sect have alleged that most of the original negatives are missing from one roll of film shot from that FBI airplane. They also have said many more than seven rolls were shot on the last day.

The government's motion noted that the missing negatives had previously been acknowledged when they were turned over to the federal court in Waco.

Government lawyers also dismissed the claims that "suspicious gaps" exist between the still photos taken in the final hours of the standoff. The motion said such charges are "inherently suspect because three of the four alleged 'suspicious gaps' occur within rolls of film as opposed to between rolls of film."

The government said an FBI recording expert found no evidence to support claims by the sect's experts that infrared video recordings made that day from another FBI airplane were altered, partially erased or tampered with. The government's motion argued that the findings of a sect expert cannot be relied upon because he has acknowledged that they were based on only a partial analysis of the infrared tapes.

The FBI's recording expert also determined that all of the FBI recordings turned over to the court from surveillance devices inside the compound April 19 are original recordings. The government's motion disputed the sect experts' assessment that electronic signals on those tapes and other evidence suggested that they were not originals and had somehow been altered.

A missing roll of film shot by a Texas Department of Public Safety photographer has recently been located in the trove of Branch Davidian evidence held by the U.S. district clerk in Waco. Lawyers for the sect had complained that the missing roll of film could have provided key information and turned up missing only after being taken into custody in 1993 by the FBI.

The government said that "flash-bang" grenades found in the burned ruins were not from the FBI at the end of the siege but rather came from an earlier federal Bureau of Alcohol, Tobacco and Firearms botched raid that began the Branch Davidian standoff.

Lawyers for the sect had alleged that the devices were mislabeled as "silencers" by the FBI laboratory and could have sparked the fire that consumed the compound.

Both sides will appear Monday in Judge Smith's Waco courtroom to present evidence in what could prove a dress rehearsal for the June trial of the sect's wrongful-death lawsuit.

Lawyers for sect members and their relatives have alleged that government negligence and wrongdoing were at least partially responsible for the deaths in the April 19 fire. More than 80 sect members died amid the blaze, which broke out about six hours after FBI agents began assaulting the building with tanks and tear gas to try to force an end to the 51-day siege.

Sect lawyers have charged that government gunfire in the last hours of that tear-gas assault kept many Branch Davidians from escaping when a fire broke out in their wooden building.

But lawyers for the government have countered that the Branch Davidians refused to surrender and deliberately set fire to their home. They and FBI officials have also vehemently denied charges that government agents fired guns in Waco on April 19.