Tucson optics consultant Barbara Grant used science - not politics - to determine that law enforcement agents likely fired guns at the Branch Davidian compound near Waco, Texas, in the moments leading up to the building burning to the ground.
A November 2000 report said agents fired no shots at Branch Davidians that day in 1993.
Grant spent two years studying infrared tapes taken by the FBI between 11:18 a.m. and 12:15 p.m. on April 19, 1993, from a plane circling 4,000 to 6,000 feet above the compound.
A 51-day standoff between the Branch Davidians and federal agents ended that day after a fire engulfed the compound following efforts to drive the occupants out by using tear gas and demolishing portions of the structure. About 80 people died, and some survivors were severely burned.
Grant, speaking to about 50 people at Thursday's Arizona Optics Industry Association luncheon meeting, showed segments of the FLIR infrared sensor tape that recorded temperature variations at the compound, including several sequences of multiple, sequential high-temperature "flashes" aimed toward the building.
"I believe the most likely explanation of the flashes is gunfire," Grant said.
She said the series of flashes occurred periodically until about 12:10 p.m., when the compound burst into flames. Her research focused primarily on a multiple flash sequence at 11:28 a.m.
A report on the incident, released Nov. 8, 2000, by Waco Investigation Special Consul John C. Danforth, states "unequivocally" that "government agents did not shoot at the Branch Davidians on April 19, 1993."
Casey Stavropoulos, public affairs press assistant at the U.S. Justice Department in Washington, D.C., said late Thursday that she had no information on Grant's investigation.
"I don't have anything to comment on in response to what her findings are," Stavropoulos said.
A Justice Department representative said earlier this week that the agency stands behind the Danforth report's findings.
Other explanations of the flashes have included a malfunction of the FLIR sensor and heat from the sun glinting off debris at the compound.
The Danforth report states: "It is concluded with a confident level of certainty that of all of the analyzed flashes seen on FLIR videotapes from April 19, 1993, between 10:41 a.m.-12:16 p.m. are caused by solar or heat reflections from single or multiple objects.
"The results from this investigation have shown, with a confident level of certainty, that the flashes on the FLIR videotapes from April 19, 1993, between 10:41 a.m.-12:16 p.m. cannot form evidence of gunfire."
Grant said her study showed the sensor malfunction and debris reflection scenarios are far less likely to explain the infrared flashes than the muzzle flash of weapons. "I would discount the first one," she said. "For the second one, in our experiments we found glass gives a pretty awful reflection in the infrared spectrum - not like visual light, it appears as a vague glow, not like the flashes that appeared on the tape."
She said that debris would have to be shiny, elevated and precisely aimed at the FLIR sensor in the moving aircraft to work as an explanation for the heat flashes.
Grant said that unlike Danforth's report, she would not claim to be 100 percent certain of her findings.
"My mind is still open. If someone can come up with a better solution, I will be glad to consider it," she said. "I am saying this is the most likely conclusion."
"It was valid science," Arizona Optics Industry Association member Keith McLeod said of Grant's presentation. "It wasn't schlepping one side or the other. It was simply taking basic high school and college analysis to dismantle the FBI's position."
Kathleen Perkins, CEO and publisher of OpticsReport, said, "This is a fine example of how optical engineers can find thorough solutions to problems."
Grant, a 1989 University of Arizona Optical Sciences Center graduate, is an electro-optical engineer who specializes in radiometric measurement and data analysis. This involves the measurement of light and the analysis of data obtained from optical instruments. She has worked as a Tucson-based electro-optics consultant the past four years.
She said she was drawn to the Waco controversy and wanted to approach it from a technical, analytical angle, avoiding the emotion and politics that had crept into some other investigations.
"I stayed very much in the technical realm. There is more technology here than you can shake a stick at," she said. "I haven't accepted a dime of money from anyone. I wanted to make this as objective as possible."
Grant and local attorney Dave Hardy, who pursued a Freedom of Information Act suit for two years to get the FBI to surrender a copy of the FLIR tape, made their own infrared tapes of weapons firing at a local shooting range for comparison.
These tests at the Desert Trails Gun Club and Training Facilities showed that muzzle flashes could last four times longer than the government said was possible, and helped Grant show that muzzle flashes would appear on the 30-frame-per-second FLIR videotapes.
The State Bar of Texas will take no disciplinary action against Bill Johnston, the former federal prosecutor convicted of a felony earlier this year after admitting that he lied to a federal grand jury.
Johnston, who is in private practice in Waco, said he has heard nothing from the State Bar since pleading guilty in February to misprision of felony and acknowledging that he withheld evidence during Special Counsel John Danforth's Branch Davidian investigation.
He declined additional comment.
Mark Pinckard of the State Bar general counsel's office said that staff attorneys in Fort Worth and Austin have monitored Johnston's case since his conviction in St. Louis and have determined that no action will be taken against Johnston.
Misprision of felony, which typically involves someone who knows of a felony and does not report it, is not an offense that falls under the State Bar's rules of compulsory discipline, Pinckard said. The State Bar does not consider the "underlying facts" of a case, Pinckard said, only the type of conviction.
Johnston knew that when he accepted the plea offer from Danforth's special prosecutors. However, he also was aware that the felony conviction left him open to possible disciplinary action from the bar, including disbarment or suspension.
Broadus Spivey of Austin, State Bar president, said he is pleased that Johnston's law license will remain intact, adding that it was the proper decision "when all the underlying facts are considered." He called Johnston a hero for standing up to the government "when the government was wrong."
"People can say that it's hard to justify a lie, but there are times in reality when a lie is more noble than the truth," Spivey said.
Spivey likened Johnston's situation to World War II-era Nazi Germany, asking what one would do if Hitler put out an edict that all male children be killed and storm troopers are banging on the door.
"You have hidden your children behind a couch. Are you going to say that they are hiding behind the couch? It is a strange thing in this country where you get prosecuted for doing the right thing," Spivey said. "It presents a real interesting conflict.
"I don't know Bill Johnston, but I do know that there were some very bad things that the government was trying to conceal. Perhaps he did violate the law, but I would be very reluctant if I was on a (bar grievance) panel to do anything to a person who has the guts to stand up to the government when the government was wrong. I have to say that the man is a hero in my book."
Spivey acknowledged that it is "very unusual" for the State Bar to take no action against an attorney who is convicted of a felony. However, in Johnston's case, he said it makes him "proud of our grievance process."
Johnston was placed on probation for two years in June. He admitted that he failed to turn over his personal notes that Danforth's investigators have said revealed that Johnston knew at least seven years ago that the FBI used tear-gas devices that were capable of sparking a fire on the final day of the government standoff with David Koresh and his followers.
Revelations in 1999 that those devices were used, which had long been denied by the FBI, led former Attorney General Janet Reno to appoint Danforth to investigate government actions during the siege at Mount Carmel.
Johnston helped prosecute 11 Branch Davidians on murder charges in 1994 and helped draft the search warrant that the ATF used to storm Koresh's compound east of Waco. He has said that if he was told before the Davidian criminal trial that the FBI used incendiary tear-gas devices, the significance of the term "incendiary" did not register with him.
He didn't turn over his personal notes from a pretrial meeting in which he jotted down the abbreviation "incind." because he didn't trust his Justice Department colleagues, to whom he had become a "pariah," Johnston has said.
Johnston wrote letters to Reno about the FBI's use of the pyrotechnic devices because he has said that his supervisors and other Justice Department officials were continuing the cover-up and misleading Reno. He claims that he was wrongfully singled out for prosecution as a whistle-blower, especially when others who also were caught lying were not prosecuted.
Danforth's prosecutors, however, countered that Johnston was not the whistle-blower he claimed to be and was an active participant in the cover-up.
Johnston admitted that he removed pages from his notes before certifying to the Justice Department that he had turned over all materials he had relating to the Branch Davidian case.
Congress and a federal judge in Waco also had ordered Johnston to turn over all related materials. When Danforth's office asked him about the notes, he lied to Danforth's assistants and to the grand jury, special prosecutors said.
As part of the plea bargain with Johnston, Danforth's special prosecutors dropped a five-count indictment that charged Johnston with obstructing justice and lying to the grand jury and Danforth's investigators. A conviction on any of those counts would have resulted in compulsory State Bar discipline.
Assistant U.S. Attorney Jim Martin of St. Louis, formerly a special prosecutor on Danforth's staff, declined comment on the State Bar's decision in Johnston's case, except to say that no one from the State Bar contacted Danforth or his former staff to ask about the facts of the case.
In a motion filed before Johnston's guilty plea, Martin asserted that Johnston incorrectly claimed that the "Texas bar does not consider misprision of felony to involve moral turpitude" and that "the Bar will look at the actual offense of conviction rather than the underlying felony concealed."
Martin cited a 1995 Texas Supreme Court case that held that misprision of felony does not involve moral turpitude per se. However, the court said that the State Bar "could pursue discipline based on the general underlying facts of the attorney's conduct."
"Moreover, the court very clearly stated that 'the willful concealment of non-confidential information would involve moral turpitude,' " Martin wrote.
Waco, FBI and the Branch Davidians: Updates
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