Years After Davidian Cult Fire, Legal Battles Gather Force

New York Times November 26, 1999
By Ross E. Milloy

AUSTIN, Tex. -- Six years after David Koresh's strange ministry of God and guns ended in flames at the Branch Davidians' compound near Waco, more questions than answers continue to rise out of the ashes.

And the legal battle that has kept the case alive has gained steam in the last week, with a federal judge stepping in to settle disputes over evidence and issuing rulings that are providing new insights into the case.

Last week the Senate Judiciary Committee and the Justice Department's special counsel sparred over who should get first access to potential witnesses in two new inquiries into the destruction of the Davidians' compound. At the same time the federal government, responding to a demand by Judge Walter S. Smith of Federal District Court, completed delivery to the courthouse here of a mountain of evidence related to the 51-day standoff and fire in 1993 in which Koresh and about 80 others died.

Judge Smith is supervising a wrongful-death civil lawsuit filed against the government by the survivors of Branch Davidians who were killed in a federal weapons raid at the sect's Mount Carmel compound in February 1993 and in the subsequent fire on April 19, 1993, which started during an F.B.I. assault with tanks and tear gas.

The lawsuit is to be heard in May, and Judge Smith has been moving to gather all of the evidence under his control, in part because of assertions by the United States attorney formerly handling the case that the government might be withholding data from the plaintiffs.

William Johnston, the United States attorney for the Western District of Texas who made the contentions, was removed from the case in September.

On Wednesday, Judge Smith ordered that shell casings taken from a farmhouse near the scene be turned over to a special counsel appointed by the Justice Department. The counsel's office will conduct ballistics tests that could help determine whether federal sharpshooters fired into the compound, as asserted by the plaintiffs' lawyers.

"We're never going to know the entire truth about Mount Carmel," said Michael Caddell, a lawyer for the plaintiffs. "But can we answer the question of whether or not the government fired on the Davidians? I think we can, and I think we will in the course of this lawsuit."

The Justice Department had twice resisted both the wide-ranging nature and the timetable for producing all government-held documents in the case. But Judge Smith set a deadline of Nov. 15 and signaled his displeasure with the slow pace of the government's compliance.

"The court is not unmindful that the government waits not only until the last day, but until the last minute, to respond to every order this court has issued," the judge's order said. "That practice causes the court to be suspect of the government's desire to comply with its orders."

In August, Judge Smith took possession of materials gathered by the Texas Rangers from the wreckage of the fire revealing that the F.B.I. had apparently misled government officials about the possible use of pyrotechnic tear-gas canisters on the final day of the siege

That information, and reports that the Defense Department's Delta Force had been more heavily involved in the standoff than was previously known, led Attorney General Janet Reno to appoint John C. Danforth, a former senator from Missouri, as an independent special counsel to re-examine the government's role in the siege. The Senate Judiciary Committee has also begun its own inquiry, under a subcommittee led by Senator Arlen Specter, Republican of Pennsylvania.

Six people, including four federal officers, were killed in the initial raid by agents of the Bureau of Alcohol, Tobacco and Firearms that sparked the standoff. Fifty-one days later, Koresh and dozens of followers died as fire swept through the compound when the F.B.I., which had assumed control of the operation, used tanks to pump in tear gas in an effort to end the standoff.

In gathering material on the siege from government agencies, Judge Smith has demanded original documents, which could be important in analyzing infrared images that the plaintiffs' lawyers think are essential to their case.

More than 20 of the bodies found in the wreckage of Mount Carmel showed evidence of gunshot wounds. The F.B.I. has maintained that no government officials fired their weapons during the standoff and subsequent fire. They say that panic, fear of death by fire, or fear of capture led the Branch Davidians to kill each other.

Lawyers representing the survivors say that infrared videotape shot from a plane in the last hours of the standoff shows flashes of automatic weapon fire directed toward the compound from government positions.

"You don't see these telltale flashes any other time; you don't see them any at other location; there's no other explanation for them other than gunfire," Caddell said. "Even the government's own experts have no explanation for it."

He said the videotape would answer conclusively whether there was government gunfire.

Caddell said electronics experts hired by the plaintiffs' lawyers had found that portions of the tapes they had received from the government had been erased or altered, making access to the originals crucial to the case.

Federal officials have said the flashes were probably reflections of mud puddles or pieces of metal.

In October, Caddell challenged the government by asking Judge Smith to supervise a re-enactment of the April 19 events at a Dallas firing range to determine whether the tapes actually indicated gunfire. The Justice Department refused to cooperate in such a test, but on Nov. 5, Danforth's office, saying the issue was significant to the special investigator's mission, joined the plaintiff's lawyers in seeking a re-creation.

Last week Judge Smith sided with the plaintiffs and the special counsel's office, ordering all parties in the lawsuit to participate in the re-enactment. On Monday the government appealed the order, saying a re-creation would add "more confusion than clarity."

Court filings indicate that the materials now in the Texas court's possession include thousands of audio- and videotapes, computers and computer disks, nearly 171,000 pages of documents from the F.B.I., 588 White House documents and 37,000 pages from the Department of Defense, 7,000 of which remain classified.

The Bureau of Alcohol, Tobacco, and Firearms, which conducted the original raid to arrest Koresh on automatic-weapon violations, turned over 134 boxes of materials, 9 of which were sealed for review by the judge.

Court filings show that at least some original documents will not be made available to Judge Smith: a private contractor hired to duplicate at least 750 pages from the F.B.I. sent them by mistake to a landfill near Washington.

The contractor kept three copies of the documents, however, and at least one was forwarded to the court.



To see more documents/articles regarding this group/organization/subject click here.