Justice Department agrees to turn over evidence in the Branch Davidian case to federal judge

The Dallas Morning News, August 4, 1999
By Lee Hancock

Justice Department officials filed a motion Wednesday agreeing to a state bid to hand over the evidence in the Branch Davidian case to a federal judge, but they asked the court to turn it over to the U.S. Marshal's Service for safekeeping.

The motion follows a request from the Texas Department of Public Safety asking U.S. District Judge Walter Smith Jr. to take custody of the vast array of evidence collected after the 1993 tragedy.

DPS commissioner James B. Francis told The Dallas Morning News last week that he was concerned that the DPS was caught in the middle of a federal effort to block public access to evidence from the incident.

The federal government's response filed Wednesday in Waco marks what some criminal experts say is a legal rarity: the federal government's agreement to surrender control of the evidence from one of the most complex criminal investigations in U.S. history.

"This case is highly unusual," said Tim Evans of Fort Worth, who represented one of two Branch Davidians acquitted in a 1994 criminal trial. "This case has taken on such political overtones and consequences that it's just not being handled like any other case that I'm familiar with."

Other veteran lawyers noted that giving the evidence over to a court might ease concerns about the government's actions in Waco.

"Turning it over to a U.S. District judge is one way to keep the fox from guarding the hen-house," said F.R. "Buck" Files of Tyler.

The evidence has been in custody of the Texas Rangers since a 1994 trial that ended with the manslaughter and weapons convictions of eight Branch Davidians. The Rangers were brought into the case to investigate the 1993 standoff and were deputized by Judge Smith as special U.S. Marshals to participate in the ensuing federal prosecution.

But the Rangers have been under Justice Department orders to route all requests for access to the evidence to Washington, where officials have then routinely sent them back to Austin. Mr. Francis said last week that "Catch-22" setup created a "complete stonewall" blocking public access to information in the case.

Wednesday's Justice Department filing asked Judge Smith to "consider taking the evidence into its custody and delegating the care and custody of the evidence to the United States Marshal's Service under the court's direction."

The judge could then determine who could access the evidence, the government motion stated.

Government lawyers said the Marshal's Service would be well suited because of its experience in handling seized property and evidence in federal court proceedings.

The agency is an arm of the Justice Department whose duties include processing, jailing and transport of federal criminal defendants and security for federal courts.

Because the evidence includes weapons, grenades and ammunition, government lawyers said it should be kept by law enforcement "until the final appellate resolution of the convictions in this case and of the related civil litigation."

Judge Smith is presiding over a pending wrongful death lawsuit filed against the government by sect members and relatives of the 80 Branch Davidians who died.

Earlier this month, the judge ruled that several of the Branch Davidians' claims could go to trial, including the allegation that the Bureau of Alcohol Tobacco and Firearms agents used excessive force in the raid that began the standoff. Other issues to be tried are claims that FBI agents fired into the compound on the day it burned and that FBI actions or negligence were responsible for the deadly fire.

Government filings have dismissed those claims as "unsupported and irrational."

FBI and Department of Justice officials have repeatedly stated under oath that FBI agents did not fire a shot in the 51-day standoff and used no pyrotechnic devices on April 19, 1993, the day that the compound burned. Federal officials have noted that arson investigators concluded that the fire was set by Branch Davidians.

Mr. Francis said his effort to get the federal court to take the evidence was prompted in part by concerns that some of it raised questions about the FBI's account of what happened.

Mr. Francis refused to elaborate but acknowledged that he recently told the agency not to allow anyone, including the FBI, access to any of the evidence.

Other officials confirmed the Texas Rangers have launched an inquiry to determine what the questioned evidence was and how it was used on April 19.

Texas officials have said that DPS learned about the questioned evidence from Michael McNulty, an independent researcher preparing a documentary on the standoff.

Despite their policy blocking public access, some Justice Department officials recently allowed Mr. McNulty to view the evidence.

He then told authorities that he found 40 mm munitions that appeared to be pyrotechnic devices used by the FBI on April 19.

Mr. McNulty said he met this week with some members of a House of Representatives subcommittee that held lengthy 1995 hearings on the incident.

Mr. McNulty said he has shown Congressional officials portions of his new film, including a section in which a defense expert alleged that flashes on an FBI infrared video from April 19 were federal gunfire.

He said the segment included infrared video footage with near-identical flashes recorded during a 1993 U.S. Army firefight in Somalia -- flashes that the defense expert characterized as gunfire.

Government lawyers have dismissed the defense expert's infrared analysis as "junk science" and FBI officials have said the flashes were caused by reflected sunlight.

But in his recent ruling on the wrongful death case, Judge Smith cited the defense expert's analysis and another scientist's study dismissing the FBI's explanation as scientifically impossible. Those studies "present at least some evidence to support their (the Branch Davidians') claim" of FBI gunfire into the compound," the judge wrote.

(c) 1999, The Dallas Morning News.