Waco Judge Denies Justice Dept Plea

Associated Press, April 24, 2000

WACO, Texas (AP) -- The federal judge presiding over the Branch Davidians' wrongful-death lawsuit denied the Justice Department's request to throw out most of the plaintiffs' claims Monday.

The government had asked U.S. District Judge Walter Smith to reject three of the five major aspects in the civil lawsuit -- that federal agents erred in not bringing in armored firefighting equipment; that they wrongly held back firefighters as the compound burned; and that using tanks to push into the compound deviated from the operations plan the attorney general approved.

Smith's order, released at the close of a pre-trial hearing dealing with alleged evidence tampering, said: "The court has determined that too many material fact issues are presented to justify dismissal or summary judgment as to the claims remaining in the lawsuit."

Michael Caddell, lead counsel for the Branch Davidian plaintiffs, said: "This means we will go trial on every issue, including gunfire."

Earlier, Smith confirmed that a preliminary review of infrared videotapes recorded during the final hours of the 1993 siege found no firearm muzzle flashes from either federal agents or sect members.

Preliminary results from the court experts' analysis, which compared the 1993 aerial footage to recordings made during a March 19 field test at Fort Hood, showed the flashes most likely were sunlight reflecting off debris, not government gunfire, the judge said.

However, Smith said he does not consider the preliminary analysis by Vector Data Systems indisputable evidence.

U.S. Attorney Mike Bradford said: "We were very pleased to hear the results of the Vector test. It's consistent with what we've said all along -- that there was no government gunfire on April 19."

The Branch Davidians have argued that government gunfire, which they believe appears as flashes on the infrared video, cut off the sect members' only avenue of escape as flames consumed their retreat. Sect leader David Koresh and some 80 followers died in the April 19, 1993, fire that started during an FBI tear-gassing operation intended to end the 51-day standoff.

The plaintiffs 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 emergencies -- and that the government withheld, destroyed or tampered with crucial evidence.

The government contends the deaths, whether from fire or gunshot wounds, came by the Davidians' own hands.

The British experts identified 57 flashes signifying heat on the infrared film, but none was attributed to muzzle blasts -- either from Davidians or government agents, Smith said.

The full analysis of the simulation is expected to be completed by May 8. The plaintiffs shrugged off the preliminary findings.

"You get good news. You get bad news. ... This is not going to result in a dismissal of the case," Caddell said.

Also, an FBI pilot who flew the aircraft that videotaped the final hours of the siege testified that he was surprised to learn last year that no audio accompanied one videotape copy of the infrared recording.

Plaintiffs' attorneys have questioned the repeated silences on the aerial infrared surveillance footage captured by the FBI's Nightstalker plane.

Caddell has called the lack of audio on the tapes "suspicious." On one tape, he said, someone is heard asking for the audio to be turned off.

The plaintiffs were in federal court to air their allegations that the government has tampered with or withheld key evidence in the case, which heads to trial in mid-June. They contend that some of the Forward Looking Infrared, or FLIR, footage bears signs of the audio having been erased.

The Justice Department has dismissed as "baseless" the plaintiffs' charges of evidence tampering.