A federal judge in Waco has told both sides in the Branch Davidian wrongful-death case that he is considering throwing out the sect's allegations that government gunfire contributed to the massive loss of life at the end of the 1993 siege.
U.S. District Judge Walter S. Smith gave lawyers for the sect until next Friday to offer "any additional evidence" to support their claim that repeated flashes on an FBI infrared videotape recorded on April 19, 1993, came from government gunfire.
Citing the May report of a court-appointed expert that the flashes came only from sunlight and heat reflections, Judge Smith wrote that "the court is persuaded that the issue ... may best be resolved through summary judgment."
The order came on the heels of the judge's Monday announcement that the April 19 gunfire issue would be severed from the jury trial of the wrongful-death case set to begin next week in Waco.
Judge Smith said Monday that he planned to hear evidence and decide that issue at a later date because the chief analyst for the British firm appointed by the court to study the issue, David Oxlee of Vector Data Systems, was ill and unavailable to testify until late summer.
Vector Data Systems was retained both by the court at the recommendation of Waco special counsel John C. Danforth to help resolve the April 19 gunfire issue. Vector's scientists have also provided analysis to Mr. Danforth's ongoing inquiry and helped his office supervise a March field test at Fort Hood.
Lawyers representing sect members and their families have alleged that government gunfire kept Branch Davidians from escaping their home when it was consumed by fire on April 19, 1993. The fire broke out six hours after FBI agents began ramming the building with tanks and spraying in tear gas to force an end to a 51-day standoff.
More than 80 Branch Davidians died amid the fire. Lawyers for the government said Thursday that they are now hopeful that the judge will dismiss outright what they have long maintained is an outrageous and baseless allegation.
"We think that the evidence is overwhelming that there is no gunfire, that the court-appointed experts confirm what was already very clear, and that a summary judgment order should be granted," said U.S. Attorney Michael Bradford of Beaumont, one of the government's lead defense lawyers.
But lawyers for the plaintiffs complained that the ruling unfairly burdens them on the eve of trial and comes before they are allowed to fully question the court's experts. They have argued that the findings were flawed, noting that two Vector Data Systems analysts who have been deposed have contradicted many aspects of the firm's report and that one admitted that neither was qualified to evaluate whether infrared recordings captured gunfire.
"We offered to go to London and take Mr. Oxlee's deposition so we could present this issue to the jury. The court rejected that proposal, saying the court wanted to see Mr. Oxlee testify personally," said Michael Caddell of Houston. "I find this order surprising and very strange, to suggest that this issue could be decided on before we ever get to question him."
Judge Smith had previously denied government motions to dismiss the April 19 gunfire allegation from the wrongful-death lawsuit, citing a report by a former defense department expert that the flashes on the infrared video could only have come from government gunfire.
But on Tuesday, he issued a three-page order citing three recent U.S. 5th Circuit Court of Appeals opinions that federal judges can unilaterally decide to reconsider such a decision. Citing one of those opinions, he gave lawyers for the plaintiffs until next Friday to offer "any additional evidence ... of whether the [infrared] tapes of April 19 reflect gunfire on the part of the FBI."
Jim Brannon, another attorney for the plaintiffs, said presenting any new information to the court will be difficult because their chief expert, former defense department scientist Edward Allard, recently suffered a stroke. Judge Smith's Tuesday order noted that his decision not to throw the April 19 gunfire issue was based on Dr. Allard's reports that the flashes on the infrared tape came from gunfire.
A second infrared expert who stated publicly last fall that the flashes on the April 19 infrared video were from gunfire and was considering signing on as an expert for the plaintiffs died of a heart attack in April, Mr. Brannon noted.
A third scientist, another retired defense department analyst, is still working on the case, and former Attorney General Ramsey Clark and other lawyers for a group of plaintiffs recently reinstated to the case are scrambling to retain their own infrared experts, he said.
"It's wholly unreasonable to expect lawyers who are picking a jury and putting on evidence to be writing briefs or coming up with new evidence on this matter, especially when the accuracy of the Vector Data report has not been sworn to by anyone," Mr. Brannon said. "We'll have to do the best we can, but the court seems determined to keep the issue of government gunfire from the public and an unbiased jury."
"I also have to say that I see the hand of Waco special counsel John Danforth in this, as he selected Vector Data Systems and drew up the plans for their junk science demonstration," Mr. Brannon said. "His so-called investigation has lost any credibility to this lawyer and appears to be a continuation of previous non-investigations of Waco."
Mr. Bradford dismissed criticisms of the Vector report as baseless. He noted that Judge Smith's Monday decision to sever the April 19 gunfire issue from the jury trial posed potential problems for the government's trial team. Having what he termed as an inflammatory claim remain a key part of the plaintiff's case would probably hurt the credibility of the plaintiff's lawyers, he said.
"They had lost a lot of credibility by trumpeting this all over the country, and even when it's been disproved, continuing to push it."
He added that reserving the issue until after the jury trial could hamper the government's ability to argue that government agents did not fire a single shot on April 19 - a position that has long been central to the FBI's defense of its actions in Waco.
"We can't until we get that resolved. We are not able to argue that. If it gets resolved in the middle of the trial, we might be able to," he said. "We'd be happy to see it dismissed."
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