Judge rejects second attempt to reopen Davidian lawsuit

Waco Tribune-Herald, September 29, 2000
By Tommy Witherspoon

U.S. District Judge Walter S. Smith Jr. has rejected a second attempt by plaintiffs in the Branch Davidian wrongful-death lawsuit against the government to reopen the case concerning allegations that the FBI shot into Mount Carmel on April 19, 1993.

Plaintiffs attorneys David T. Hardy and Jim Brannon asked Smith to reconsider his ruling from last week that rejected the notion that flashes picked up on FBI infrared video on the final day of the 51-day siege were muzzle blasts from FBI weapons.

In a ruling this week, the judge said the request was "without merit." The plaintiffs alleged that another gunfire test performed earlier this month near Fort Collins, Colo. shows flaws in how a March 19 test at Fort Hood was conducted. The test was in conjunction with the lawsuit and Special Counsel John Danforth's investigation.

Danforth, the civil jury in Smith's court and Smith's judgment in the case absolved the government of wrongdoing in the Feb. 28, 1993, raid at Mount Carmel and in the April 19, 1993, fire in which David Koresh and 75 of his followers were killed.

An infrared expert for the plaintiffs has said that the flashes on the forward-looking infrared (FLIR) videotape taken from an FBI surveillance airplane can be attributed to gunfire from government sniper locations. Smith removed the gunfire issue from the trial of the lawsuit because a court-appointed infrared expert from England was ill and couldn't testify at trial.

Smith later ruled on the issue based on evidence previously submitted after an attorney for the majority of the plaintiffs said after the four-week trial that he no longer was willing to pursue the matter.

The court's expert from Vector Data Systems determined that the flashes were sunlight reflecting off debris.

Smith ruled that the flashes were not gunfire because people are not visible on the FLIR near the flashes and that the flashes are too long to constitute gunfire.

"We submit that the defense experts and the Office of Special Counsel's team from VDS have misled the court into relying on these supposedly 'scientific criteria' for ruling out gunshots," the plaintiffs' motion said. "It is important, in the light of history as well as of law, that the issue not be determined by supposed scientific 'rules' which have been disproved by actual scientific testing."

The Fort Collins tests disproved findings in both areas, the motion contends.

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