Davidian lawyers challenge report

British firm dismissed claim of government gunfire

The Dallas Morning News, June 25, 2000
By Lee Hancock

WACO – Lawyers in the Branch Davidian wrongful-death case have filed a detailed challenge to a British firm's report dismissing their claims of government gunfire at the end of the 1993 siege.

The pleading, filed Friday afternoon by lead plaintiffs' lawyer Michael Caddell, is aimed at persuading U.S. District Judge Walter S. Smith to reconsider his recent threat to throw out the issue. The pleading argues that further investigation and a full-courtroom airing are needed because the report by court-appointed Vector Data Systems is too flawed to resolve whether government gunfire caused repeated flashes on a 1993 FBI infrared recording.

It includes a report from a retired CIA imagery analyst disputing Vector's conclusion that flashes on the FBI video weren't gunfire because no gunmen were visible where flashes were recorded and no people were visible until after a fire had engulfed much of the Branch Davidians' building.

In a preliminary review of the infrared recording and still photos taken from an FBI airplane, the analyst said he could see personnel on the ground in three areas near the front and rear of the compound just before it burned.

Expert affidavit

"Vector Data Systems is incorrect in the claim that personnel cannot be seen," stated the four-page affidavit by Carroll L. Lucas, who worked for the CIA for 25 years and has more than 45 years of experience in both classified and unclassified imagery analysis. "The Vector Data Systems analysis indicating that recorded flashes on the Mount Carmel imagery are solar flashes is flawed and unreliable."

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.

Government lawyers have dismissed that claim as baseless, insisting that the government acted properly and should not be held responsible for the Waco tragedy. They have maintained that no one from the government's side fired a gunshot during the April 19 tear gas assault.

The government's defense team has argued that studies submitted by two Defense Department scientists in support of the sect's charges are junk science and government scientific experts have also debunked the gunfire claim.

Government lawyers have also dismissed recent criticisms of Vector as insignificant. They contend there is ample scientific evidence to support Vector's core claim that heat and sunlight reflections – not government gunfire – caused the flashes on the April 1993 FBI video.

Judge's rulings

Judge Smith decided on the eve of the wrongful-death trial to sever the April 19 gunfire issue, telling lawyers for both sides that he wanted to hear personally from the chief analyst assigned by Vector to study the FBI video and data from a March infrared field test ordered by the court to help resolve the gunfire issue.

On June 14, Judge Smith issued a terse order stating that he was considering dismissing the entire issue. He then gave plaintiffs in the wrongful-death case 10 days to submit any evidence they had that might make him reconsider but extended that deadline until next week for the group of plaintiffs represented by former Attorney General Ramsey Clark.

On Friday, Mr. Clark said he plans to file his own detailed brief on the issue early next week and said his pleading will including a study supporting the gunfire claim from a New Jersey infrared expert. A conservative media watchdog group, Accuracy in Media, funded that expert's study, and its chairman, Reed Irvine, said Friday that his and another Washington-based conservative group are considering commissioning a full infrared field trial to challenge the court's Vector test and study.

Mr. Caddell's Friday pleading complained that two Vector analysts recently deposed by both sides in the lawsuit gave conflicting testimony with key elements of Vector's written report to the court in May.

While Vector wrote that its March test produced flashes from sunlight reflecting off debris that were comparable to flashes in the 1993 infrared tape, one of Vector's analysts acknowledged that Vector produced no instance of multiple flashes coming from debris at Fort Hood. In comparison, Mr. Caddell's brief said multiple flashes occur repeatedly on the April 1993 video.

Discrepancies

The two analysts also acknowledged other discrepancies in Vector's study and admitted that the firm could not produce any records detailing the development of its conclusions because it has a policy of routinely destroying all draft reports and notes

Deposition transcripts indicate that one of the analysts even admitted that neither were qualified to evaluated whether any of the infrared recordings from 1993 captured gunfire.

Although the second analyst questioned disputed that, the transcripts indicate, even he acknowledged that the report hinged on the opinions and analysis of a third Vector employee, David Oxlee. Mr. Oxlee is now recovering from prostate cancer and cannot come to the United States until late July.

"The gunfire issue is too important to this case and to this nation, too complex and too contested to be decided ...without Vector's 'lead analyst's' testimony and plaintiffs' experts evaluation of that testimony," the brief argued.

Filed along with Mr. Caddell's brief were transcripts from the Vector analysts' depositions, which included internal Vector documents that acknowledged that the 18-employee British firm would be challenged by the Waco infrared study.

In a memo written after Vector was retained as the court's expert, one Vector employee wrote that there were "some risks" in taking the project. "We may not be able to match the scientific or tech