"Branch Davidians Remains Sought"

by Michelle Mittelstadt (Associated Press, January 22, 2000)

WASHINGTON (AP) - The special counsel re-investigating the government's conduct during the 1993 Branch Davidian siege asked a federal judge Friday to grant him temporary custody of tissue and bone samples.
The human remains are needed ``to verify the toxicological work previously performed and stated in the autopsy reports,'' Special Counsel John Danforth's office said in a filing in federal court in Waco, Texas.
The samples are in the custody of the Armed Forces Medical Examiner, which earlier tested the remains for drugs, carbon monoxide, cyanide and benzene. No traces of drugs were found in any of the bodies; while carbon monoxide, generated by fire, and cyanide, a byproduct of the massive quantities of tear gas pumped into the Davidians' compound, were found in some of the .
remainsThis isn't the first time the special counsel has sought independent testing.
Danforth, a former Missouri senator appointed last September by Attorney General Janet Reno to resolve unanswered questions about the final hours of the 51-day standoff, previously moved to gain custody of 12 bullet shell casings found at the scene. U.S. District Judge Walter Smith granted Danforth's request for independent testing of them.
Danforth also weighed in last November on the side of the Davidian plaintiffs whose wrongful-death lawsuit against the government goes to trial in mid-May, joining their request for a field test that could resolve the question of whether federal agents fired shots into the Davidian compound.
The plaintiffs contend aerial infrared surveillance videos taken by the FBI prove government agents fired into the retreat as it burned. The judge has ordered a re-creation, with the same camera the FBI used, to determine whether gunshots are captured on the infrared as bursts of light similar to those that show up on the 1993 videos.
Federal officials have long maintained no shots were fired by federal agents on April 19, 1993, when the compound was consumed by fire during the FBI's tear-gas assault. Davidian leader David Koresh and some 80 followers perished, some from the fire, others from gunshot wounds the government insists were self-inflicted.
The Davidians' lawyers wrapped up a second round of depositions in Washington this week, interviewing FBI operatives who were in Waco. After a few moredepositions, Davidian lawyer Michael Caddell said he hopes to depose Reno and the FBI commanders who supervised the operation in Washington and Waco.
This week, lawyers for the Davidians released the depositions of two U.S. Army Delta Force technicians who were present on the final day. They testified that they had no direct knowledge of any Delta Force participation in the final assault or any gunfire from government positions. The third Delta Force operative who was present has yet to be deposed, Caddell said.
The Pentagon has acknowledged some military personnel were in Waco during the standoff, but said they were only observers. Federal law bars the military from active participation in civilian law enforcement operations.

"Danforth seeks tests on remains of Davidians: Questions raised about tear gas"

by Lee Hancock ("The Dallas Morning News", January 22, 2000)

Waco special counsel John Danforth asked a federal judge Friday for permission to conduct toxicology tests on tissue and bone samples from the Branch Davidians killed in a 1993 standoff.
The tests could address allegations that some of the Branch Davidians suffered cyanide poisoning as the gas pumped into the compound by federal authorities burned and broke down, and that some of the sect's 17 children had been sedated by the Branch Davidians when fire swept through their compound.
Mr. Danforth's filing came as lawyers representing the sect released transcripts from the December depositions of 19 FBI agents and two Special Forces soldiers involved in the final days of the 1993 incident.
The FBI agents who made airborne infrared videotapes during the last day of the Branch Davidian siege denied that repeated rhythmic flashes captured during the crucial last hours before the compound burned could be gunfire.
But none of the agents, including some of the bureau's most experienced pilots and infrared camera operators, could say why the bureau has recorded nothing else like them on its infrared videotapes - including those made in dozens of earlier recordings during the Branch Davidian siege.
And the agents could only offer one other explanation for the flashes: that they were caused by sunlight reflecting off debris created by the movement of government tanks into and around the Branch Davidians' rural home - a theory already dismissed by independent experts and some senior FBI officials.
On Friday afternoon, the special counsel filed a three-page motion in U.S. District Court in Waco seeking custody of tissue samples stored at the U.S. Armed Services Institute of Pathology in Maryland.
Mr. Danforth has previously sought custody of bullet shell casings found in a sniper post manned by the FBI during the siege and the FBI's infrared videotapes shot April 19, 1993, for scientific tests.
In Friday's pleading, Mr. Danforth told U.S. District Judge Walter Smith that an independent toxicologist would need the samples for three months to verify previous testing done during 1993 autopsies by the Fort Worth medical examiner's office.
Those toxicology tests found that some sect members who died on April 19 had abnormal levels of cyanide in their blood. More than 80 sect members died after the compound caught fire as FBI tanks sprayed in powdered "CS" tear gas.
Some government critics, including several scientists who testified at a 1995 House investigative hearing, have alleged at least some Branch Davidians may have been incapacitated as the fire caused the gas mixture to break down and release lethal levels of the cyanide.
Experts brought in by the government for the 1995 hearings have disputed that, but the allegation has continued to be raised by critics of the government's actions in Waco.
The new testing also could address stories that some of the sect's children were drugged in the final hours of the standoff.
Earlier tests found high levels of carbon monoxide, a product of the fire, but no traces of drugs in the bodies.
But at least one surviving Branch Davidian told investigators after escaping the fire that the sect's children were given medication "to make them sleep," in the final hours before the compound burned, government reports indicate.
A wrongful-death lawsuit filed by surviving Branch Davidians and families of those who died alleges that government negligence and wrongdoing caused the massive loss of life.
The federal lawsuit, which Judge Smith has set for trial in May in Waco, alleges that government agents fired into the compound as FBI tanks assaulted it with gas. The government has denied that any FBI agents fired shots during the 51-day siege.
And government lawyers have argued that the sect's allegations of federal wrongdoing are also baseless because government arson investigators ruled that the compound fire was set by Branch Davidians. More than 20 of those who died, including leader David Koresh, died of gunshot wounds, which the government says were planned murder-suicides.
But lawyers for the sect say that the repeated, unexplained flashes captured on the government's infrared recordings on April 19 support their theory that someone from the government's side shot repeatedly at the compound just before it burned.
Two former Defense Department infrared experts hired by the sect's lawyers to study the recordings say the flashes could have been caused only by government gunfire. Some independent scientists have echoed that assessment, including an analyst working for the House Government Reform Committee.
The question of what caused the flashes has become so heated that the Waco special counsel weighed in last fall, asking Judge Smith to authorize a court-supervised infrared field test.
Federal officials confirmed Friday that representatives from the FBI traveled last week with members of Mr. Danforth's staff to the country where the FBI's infrared camera was manufactured to try to borrow a camera identical to the one used in Waco for a field test.
The officials declined to name the country, but experts in infrared technology say the FBI's camera is a British-made "Sprite" forward-looking-infrared or FLIR device. The federal officials said that their negotiations were positive and that they are close to completing arrangements for a test in March at Fort Hood. The test would use both the FBI's current infrared camera and the foreign camera matching its 1993 model, which is now part of a foreign government's military inventory.
Many of the agents involved in making the April 19 infrared tapes acknowledged in December depositions that they could not identify the cause of the flashes and had not seen anything like them - despite months of trying to find similar white blips on other FBI infrared recordings.
"We have not seen any flashes like Mount Carmel. At least, I have not seen flashes like that on Mount Carmel," testified an FBI pilot who has flown several hundred missions involving infrared videotaping. "Since I'm not an expert in FLIR, I don't know what it is." The agents said they had found one tape recorded in an unrelated 1993 kidnapping case that included unexplained white flashes that appeared to emanate from a suspect's car fender. But they acknowledged that tape did not have the repeated, rhythmic blips recorded in Waco by the FBI's heat-sensing camera.
But the agents insisted that the flashes could not be gunfire - in large part because no gunmen were visible on the infrared camera. They argued that humans would be visible because the camera makes a video image by registering minute differences in temperatures.
"In my opinion, I do not believe that there was an individual on that tank firing a weapon. Therefore, the fact the flash occurs is an unexplained anomaly," said an agent who described himself as the FBI's most experienced infrared camera operator. "Based on what I see on that picture, right, a flash occurs. I do not see a body there. . . ." Under sometimes heated questioning by lawyers for the sect, the agents said they were puzzled and stunned at the large gaps in the audio tracks on the videotapes presented to a federal court as the original infrared recordings taken April 19. The audio tracks that remain contain discussions from the plane's occupants and radio communications between FBI commanders and agents on the ground.
An audio and video recording expert hired by the Branch Davidians' lawyers has issued preliminary findings that even the videotapes termed originals by the FBI appear to have been edited or deliberately altered.
"I wish I could explain," said one senior FBI pilot, who flew the bureau's Nightstalker aircraft and supervised the crucial last hours of the FBI's infrared recordings in Waco. "All I can do is tell you that normally the audio is on. There are certain times - there are - under certain conditions, where we might turn it off. I cannot explain why it's been off. " "You know how bad this looks, don't you?" prodded Branch Davidian lawyer Mike Caddell of Houston, noting that previous daily infrared recordings during the siege had no similar audio gaps or flashes. "You know how suspicious this looks, don't you?" "I would agree that it would raise a question of suspicion," the pilot responded. "I'm telling you: I cannot explain it." The pilot noted that the audio on the FBI's infrared camera is sometimes turned off during a mission while pilots discuss changes in the plane's altitude, information that could reveal classified operating capabilities of the FBI infrared camera.
He and others speculated that the audio also might have been cut while someone in the plane asked others a question. The pilot also said one of the agents helping with the camera that day, a trainee, may have inadvertently turned off the audio because he was unfamiliar with the equipment.
But agents could not explain why the audio was repeatedly turned on and off during key periods of the final FBI assault, including the entire hour and 45 minutes when the flashes appeared on the rear side of the compound. Those flashes erupted repeatedly in the one area of the building not visible to media cameras and the bureau's own closed-circuit TV system, and they occurred within an hour before the compound burned.
During that period, FBI tanks demolished the compound gym and drove deep into the building, and the building was engulfed in flames.
The sound resumed about 15 minutes after the fire erupted, capturing the voice of the FBI pilot ordering his colleagues to make sure that audio was on as the plane circled the burning building.
But the pilot reacted angrily when a lawyer for the sect asked if someone might have deliberately deleted portions of the tapes' audio track after the incident ended.
"I would not say that's possible," the pilot said. "I know the people I work for, and it's not something the FBI's inclined to do."

"Danforth seeks custody of human remains from Waco"

by Terry Ganey and William H. Freivogel ("The St. Louis Post-Dispatch", January 22, 2000)

Special Waco investigator John Danforth has asked for the custody of all tissue and bone samples of human remains recovered after the deadly siege on the Branch Davidian complex in 1993.
Danforth's request, filed Friday, is designed to review the government's toxicology tests that were conducted on the remains shortly after the Waco disaster. Danforth intends to use an independent expert toxicologist to perform new tests on the evidence.
Some Branch Davidians and their lawyers have questioned the government's findings on the causes of death.
Danforth's request was made of U.S. District Judge Walter Smith Jr., who has control of all evidence relating to the siege in which about 80 people died.
While most of the evidence is in the basement of the federal building in Waco, Texas, the frozen human remains are stored at the Armed Forces Institute of Pathology in Rockville, Md.
Danforth's request, filed by special deputy Edward Dowd Jr., said the new tests will deplete to a degree what remains of the tissue and bone samples. "In fact, the testing could use the entire amount of any one particular sample, if it is very small," Dowd said.
Attorney General Janet Reno appointed Danforth in September to reinvestigate what happened when the government assaulted the Branch Davidians' complex, known as Mount Carmel. FBI agents driving tanks attempted to force the sect's members out using tear gas. After about six hours, a fire broke out, destroying the entire complex.
A Justice Department report issued in 1993 listed causes of death for 73 people: 41 from smoke inhalation or fire; 17 from gunshots; 10 from suffocation; one from a fall; two from blunt blows to the head; one from a stab wound; one unknown. The assault followed a 51-day siege that began with a raid by government agents searching for illegal weapons. Six Branch Davidians and four agents were killed in a gunbattle that followed the raid.
Danforth also asked the court for permission to photograph and catalog with a computer all the physical and documentary evidence stored in the Waco federal building basement. Danforth said he needed access to the physical evidence to determine what is available and whether his office would need it to be analyzed by independent experts. He said the documentary evidence was sought to create an inventory of records to compare against documents Danforth's office has already collected from other government agencies.

"2 say unit had minor Waco role: No direct Delta Force involvement recalled"

by Lee Hancock ("The Dallas Morning News", January 21, 2000)

Depositions of two U.S. Army Delta Force technicians offer the first detailed public accounts of the secret unit's role in the 1993 Branch Davidian siege.
The special forces soldiers testified that their primary mission was helping the FBI use sophisticated surveillance gear from their unit and that they had no direct knowledge that any Delta Force personnel participated in the FBI assault that ended the standoff.
Transcripts of the depositions, taken last month in Washington, were released this week by lawyers for the sect. Under an agreement with the government, all names of government personnel involved in Waco and most references to the Fort Bragg, N.C.-based special operations unit were blacked out before the transcripts were released.
FBI agents testified in separate depositions that they knew of no active Delta Force involvement or shooting by anyone on the government side during the FBI's tank-and-tear gas assault. By law, the military cannot directly participate in civilian law enforcement.
"To the best of my knowledge, nobody inside - nobody . . . nobody that I was there with ever entered nor ever even came very close to the compound," said one soldier, a 32-year-old sergeant who described himself as one of only three special forces personnel in Waco in the last five days of the standoff.
"I don't believe there would have been other personnel from my organization there without my knowing it," the sergeant said.
Despite allegations from the Branch Davidians' lawyers that FBI agents shot into the compound during their final assault, the soldier said he had no direct knowledge of that. The two soldiers who were deposed last month testified behind screens and said their unit was so secretive that they could not divulge its name and or its commanders. Even plaintiffs' lawyers have not been provided the identities of the special operations soldiers involved in the siege.
Lawyers representing the sect in a wrongful-death lawsuit contend that the depositions of the soldiers and 19 FBI personnel raise significant questions about the government's account of what happened April 19, 1993. The Branch Davidian compound burned that day with leader David Koresh and more than 80 followers inside.
Government investigators have said that the Branch Davidians set the fires. But lawyers for the sect have alleged in the lawsuit that the government's actions contributed to the tragedy.
They contend that infrared videotapes taken that day by an airborne FBI camera show that government agents fired into the building, preventing women and children from escaping.
They and some other government critics, including a former CIA employee and a former congressional investigator, have also suggested in recent months that Delta personnel may have played an active role in the final FBI assault.
Government officials have said that no FBI agents fired a shot during the 51-day standoff.
The Branch Davidians' lawyers say the role of Delta Force personnel in the final FBI operation remains unclear, in part because a Delta Force combat arms specialist in Waco at the time wasn't seen by fellow special forces soldiers until hours after the assault. The Delta Force electronics technician deposed last month testified that he did not recall anything about the combat expert's whereabouts. A second soldier, a now-retired radio technician, testified that the man showed up red-eyed, tired and somewhat disheveled several hours after the compound fire.
The radioman, who now works as a government contractor, said the combat sergeant reported getting drunk the night before, oversleeping and missing everything.
"He looked like he had been drinking the night before and looked like he had just got out of bed," the former radioman said of his combat colleague, who has retired.
The technician said he did not question the sergeant's story because he "was known as a pretty heavy drinker" and appeared to be hung over.
Defense Department officials have confirmed that three special forces soldiers were in Waco to watch FBI operations April 19. But defense officials have declined to name their unit or even to acknowledge the existence of Delta Force.
But Defense Department documents indicate that the soldiers sent to Waco were from Special Forces Operational Detachment-Delta, the U.S. military's elite counterterrorism combat team known as Delta Force.
The December depositions suggest that the Delta Force soldiers worked closely with FBI technicians and electronics experts but had little contact with FBI commanders - even those who ran the bureau's elite paramilitary hostage rescue team, or HRT.
Asked, "What interaction was there between these observers and the HRT command structure?" the electronics technician replied: "We were largely ignored." The soldiers testified that they were among 10 members of their unit who rotated in and out of Waco beginning March 2, just after the standoff began.
The siege was touched off by a gunbattle that erupted as agents of the federal Bureau of Alcohol, Tobacco and Firearms tried to search the compound and arrest Mr. Koresh on weapons charges. Four agents and several sect members died. The FBI was then asked to try to resolve the standoff.
Senior U.S. military leaders immediately sent equipment and special forces advisers to assist the FBI. The two soldiers testified that most of the personnel sent from the secret military unit were technicians assigned to advise the FBI on how to use borrowed military motion sensors, microwave transmitters, thermal-imaging cameras and specialized video and optical equipment.
The two soldiers acknowledged that one sergeant sent in initially and a sergeant there at the end were combat arms specialists.
"My understanding was that he was just to observe and just give advice on how they may do different types of scenarios that he was familiar with as far as tactics," the retired radio expert said of one combat sergeant.
The special forces specialists helped install military equipment, including ground sensors designed to detect footsteps or movement and a "thermal imager" mounted on a water tower about 1,500 feet from the compound, the two soldiers and some FBI technical experts testified.
Most of the electronic surveillance equipment used by the FBI in Waco was military, in large part because the FBI's was not as good, the soldiers said.
The soldiers helped maintain the equipment and wereassigned to a small trailer beside the FBI's "forward command post." That was more than a kilometer from the compound, the soldiers said.
One FBI agent testified that he worked closely with the soldiers but never saw them with weapons. And unlike FBI law enforcement personnel, who dressed almost exclusively in combat fatigues, the Delta Force soldiers always wore civilian clothing.
Even FBI technicians who worked directly with some of the special forces soldiers said they did not report to the bureau's command structure in Waco. "They were pretty much allowed to come and go as they pleased," the FBI agent testified.
That sometimes meant the soldiers would refuse to identify themselves, even to the FBI. In one instance, an FBI bugging expert testified, he was startled when he spotted a stranger installing what appeared to be a microwave antenna and video equipment on a stone pillar near the compound.
The man stood out, the agent recalled, because he was extremely fit, wore civilian clothing and was behind a perimeter accessible only to law enforcement. The man would say almost nothing about who he was or what he was doing, the now-retired FBI agent said.
"It was a difficult conversation. You know, he didn't really want to much talk to me," the former agent said. "The answer to, 'What are you doing?' was . . . 'Well, you know, I'm putting up a microwave antenna for video.' That's about as much as I got out of him on that deal. And then as far as, 'Who are you?' after a lot of screwing around there, finally he said, 'Well, I'm DOD [Department of Defense].' " The two soldiers in Waco in the last week of the siege testified that they never got closer to the sect's building than their small trailer beside the FBI's forward command post.
One said that he was expressly forbidden even to enter the FBI command post, where bureau technicians had set up an array of TV monitors for the closed-circuit television cameras and thermal cameras aimed at the front and sides of the Branch Davidian building.
"We were told from the onset we would not be exposed to any of the video coming from the remote OPs [remote observation post cameras]," the electronics technician said.
On the day of the FBI assault, he said, he and the military radioman went to the trailer to watch because they had been told the previous afternoon that an operation was planned.
But he contended that he and his colleague could see little. "There was not a whole lot of observing going on that far away," he said.
From where he was, the soldier said, he couldn't see anything on the back side of the compound - the area where flashes that appear on FBI infrared tapes occurred. Several FBI technicians confirmed in separate depositions that the area was the one not covered by a closed-circuit TV camera system that ringed the compound during the entire siege.
But the soldier added that he knew of no instance in which anyone from special forces was inside the tanks that FBI agents used to circle and assault the compound.
"I can only speak from the time frame I was there, which was the 14th to the 21st of April, and I never saw myself nor SF Soldier 2 or 3 ride in the armored vehicles," he said, using the code required by government lawyers for special forces personnel. "As I said, I knew of no other unit members there."

"Missing Delta Force member arrived after fire at Waco, colleague testifies"

by William H. Freivogel and Terry Ganey ("The St. Louis Post-Dispatch", January 21, 2000)

The whereabouts of the Delta Force commando assigned to provide tactical assistance to the FBI at Waco in 1993 has not been determined for the seven hours leading up to the fire that destroyed the Branch Davidians' complex.
One of the three Delta Force members present that day testified in a deposition that the tactical expert showed up after the fire had destroyed the complex, explaining that he had gotten drunk the night before and slept through the entire operation.
Michael Caddell, the attorney for the Branch Davidians, released the testimony Thursday but said he found it hard to believe. "To think that a guy as highly trained as that and considered one of our nation's best somehow goes out and gets drunk and sleeps through the whole show, that is just not credible. Remember that was Sunday night in Waco." The Branch Davidians claim that government agents fired into the complex during the April 19 assault, which ended in a fire and the death of about 80 members of the sect. They have claimed that members of the Delta Force might have been involved. The government denies that any government agents fired their guns.
The Pentagon has acknowledged that 10 members of the secret Delta team visited Waco to provide advice during the siege. They were present in teams of three, each team including a technician, a communications specialist and an expert in tactics and weapons.
In the slang of the Delta Force, the tactics and weapons expert is known as an "operator, shooter, door knocker, or FAG" - the latter short for "former action guy."
But the communications specialist, whose name is not given in the deposition, says that the operatons expert showed up after the fire on April 19 looking "hung over, just kind of red-eyed." "The conversation was that he had gone out drinking and had been up most of the night and had just gone to bed ... and when he came out, all this had happened," the communications specialist testified. He said he did not know where the operator had gotten drunk or with whom he had spent the night.
Caddell has not yet been able to depose the operator, who is out of the country.
The depositions also show that the FBI agents in the tanks at the back of the complex did not see any gunfire from government agents. Caddell says he no longer expects to find an FBI agent who will testify to government gunfire.

"Davidian lawyers demand answers in inquiry - Justice Department concedes it has missed judge's deadline"

by Lee Hancock ("The Dallas Morning News", January 19, 2000)

It is the key question in the Branch Davidians' wrongful-death suit against the federal government: Did anyone under U.S. control shoot at the sect's compound during the fiery ending of the 1993 standoff?
Lawyers for the sect told a federal judge Tuesday that Justice Department lawyers must be forced to provide complete written answers because they have dodged the question for months, failing to make good on promises to fully respond.
Mike Bradford, one of the lead lawyers on the government's Waco trial team, declined to comment on the plaintiffs' latest pleading. But he said U.S. officials have not altered their position that no government agents or employees fired guns at the Branch Davidians on April 19, 1993.
The legal skirmishing came as lawyers for the sect began a new round of government depositions and the Justice Department acknowledged that it was still days away from complying with a Jan. 15 court deadline for turning over government documents.
In a caustic five-page pleading, Mike Caddell of Houston, lead lawyer for the sect, asked U.S. District Judge Walter S. Smith Jr. to force the government to provide complete sworn answers to his questions about government gunfire.
He argued that a full answer is even more crucial in light of recent sworn admissions by two U.S. Army Delta Force technicians that a Delta colleague trained in close-quarter combat could not be accounted for after the Branch Davidian compound burned.
The two soldiers said last month in depositions that the Delta combat expert was not seen until several hours after the compound burned and appeared " 'tired,' 'somewhat disheveled,' and 'red-eyed.' " the pleading stated.
Defense Department officials have said that no military personnel were actively involved in the FBI's tank-and-tear-gas assault on the compound. The assault ended when the compound near Waco erupted in flames, consuming the building with sect leader David Koresh and more than 80 followers inside.
Government arson investigators ruled that the fire was set by Branch Davidians, but the sect's lawyers contend that government actions kept occupants from escaping the blaze.
Mr. Caddell argued that the government's failure to answer questions about gunfire is especially troubling because hostage rescue team records indicate that the FBI's plan for assaulting the compound with tanks and tear gas included a close-quarter battle plan.
An unsigned, handwritten checklist found last fall at the hostage rescue team's headquarters indicates that the FBI agent assigned to see that the close-quarter combat plan was "in place" was the same hostage rescue team member who led government operations on the back side of the compound.
When asked late last summer in pleadings known as interrogatories whether anyone from the government or under its control fired, Justice Department lawyers responded that no one from the FBI or under FBI control shot on that day.
Only lawyers for the FBI provided signatures, as required by court rules, swearing that the government's responses about gunfire were true, Mr. Caddell noted.
He added that lawyers from the Defense Department, the Bureau of Alcohol, Tobacco and Firearms and the Justice Department have failed to do so, despite having sworn to the veracity of other government interrogatory responses.
Complete answers to the gunfire questions are important because of the unresolved issue of what caused repeated flashes on an FBI infrared videotape shot on April 19, Mr. Caddell contended.
His pleading noted that the flashes seemed to come from government positions on the back side of the compound - the only area not visible to TV and still cameras.
"Despite having spent hours searching . . . at the request of DOJ lawyers," eight FBI personnel who helped deploy the FBI's airborne infrared camera said in recent depositions that they could not find any similar flashes on infrared videos recorded earlier in the 51-day standoff, the pleading stated.
The only explanation they could offer for the flashes was sunlight reflections - a theory that senior FBI officials previously publicly dismissed as scientifically invalid, the pleading said.
Judge Smith issued an order last Friday backing plans submitted by independent counsel John Danforth for field tests aimed at determining what could have caused the gunfire.
Also Tuesday, Justice Department officials acknowledged they are still scrambling to ship documents to lawyers for the sect three days after a court deadline to complete the turnover.
Mr. Bradford said he cannot say when the government will finish.
He said that more than 50 boxes of materials were shipped over the weekend but that government lawyers are reviewing thousands of pages more.
Judge Smith last week declined government requests for three more weeks to finish document production.
Mr. Bradford said that at least 2,500 classified military documents are still being reviewed to determine whether they can be declassified for release to the Branch Davidians' lawyers. Another 31 boxes of materials - mostly photographs and computer records - are being processed because a contractor failed to copy them earlier, he said.
In a separate pleading, Mr. Caddell complained Tuesday that the government may not have given the court 200 FBI photo negatives taken at the end of the siege.
Last summer, Judge Smith ordered the surrender of all original government documents and other evidence connected with the standoff.
But Mr. Caddell noted that an FBI memo filed last week suggested that the 200 negatives, shot from an FBI airplane, may still be at FBI headquarters. The memo stated that copies of the negatives were being prepared for the court.
A video expert for the plaintiffs has said his preliminary studies that some FBI videotapes sent to the court as originals appear to have been edited. Mr. Caddell's pleading said the problem of editing could extend to the FBI's still photos, but that could only be detected through examination of the original negatives.
Mr. Bradford said FBI officials confirmed Tuesday that all original negatives taken by its agents were being sent to the court.

"New Evidence on Waco? Lawyers Suggest Delta Force Fired on Davidians"

by Lorraine Adams and David A. Vise ("The Washington Post", January 19, 2000)

Attorneys for Branch Davidians suing the federal government over the deadly siege near Waco, Tex., say they have developed evidence that suggests a Delta Force agent may have fired on the compound, according to filings made yesterday in the case.
The attorneys cited depositions of Delta Force agents taken last month in Washington and a "growing number of independent experts" who have identified gunfire from government positions on April 19, 1993, when fire engulfed the compound and 75 people perished.
They also filed a motion in U.S. District Court in Waco asking the judge in the case to compel the Defense Department to answer an interrogatory it has failed to answer after repeated requests: whether Defense Department agents fired at the compound.
The question was first posed to the government in August 1999. The FBI responded in September, saying that "no person in the employment of the FBI or under the supervision, direction, or control of the FBI, directed gunfire at the Branch Davidians." Since then, in a series of letters and phone calls, Justice Department lawyers have promised they would supplement their original answer, but so far they have been unable to produce answers from the Bureau of Alcohol, Tobacco and Firearms and from the Pentagon, according to plaintiff's filings yesterday. Justice Department officials--who are overseeing the government's defense of the case--did not respond to requests for comment last night.
ATF spokesman Jeff Roehm said that no ATF agents fired on the compound April 19 and that the interrogatory has not been answered because "it's a complex administrative process that just hasn't been completed yet. It's no big deal." Pentagon spokesman P.J. Crowley said, "We have . . . no information to suggest that any DOD personnel fired any weapons at Waco." The evidence developed by the Branch Davidian attorneys is another development in the case that suggests--but does not prove--that government gunfire was leveled at the compound on the day the siege ended in the deadly blaze. The case is scheduled for trial this spring and has been delayed by special counsel John C. Danforth's probe, which also is trying to answer the question of whether government agents fired.
Last month's depositions in the case featured some new information on the role of the Defense Department's Delta Force agents during the final siege.
"There was testimony that at least three Delta Force team members were at Mt. Carmel on April 19, 1993," the filing stated. Two of the three were technicians, but a third was a combat specialist.
Deposition testimony placed this agent in the back of the compound, "not visible to the media, and the side on which flashes from the ground" have been identified as gunfire by experts for the Branch Davidian plaintiffs.

"Plaintiffs Want Feds' Waco Evidence"

(Associated Press, January 19, 2000)

WACO, Texas (AP) - Relatives suing the government over the deadly Branch Davidian standoff claim they are getting stonewalled on a key question in their wrongful death case - whether anyone under the direction of U.S. authorities fired shots on the compound.
Plaintiffs' attorney Michael Caddell on Tuesday asked a federal judge to order the government to provide broader answers to requests for evidence in the case.
The Justice Department has never completely answered whether personnel from the Defense Department, the U.S. Bureau of Alcohol, Tobacco and Firearms or other agencies fired weapons in the siege's final hours, Caddell said.
The Justice Department did not immediately return a call seeking comment on the accusation today.
Government attorneys also failed to meet a deadline to turn over evidence sought by relatives of those who died in the confrontation, Caddell said.
U.S. Attorney Michael Bradford said the government produced 50 boxes of materials over the holiday weekend, beating Tuesday's deadline. But he said an additional 2,500 pages of documents must be declassified first.
He said government attorneys also must reproduce and hand over items from 31 boxes of materials, which were surrendered to the Waco federal court last fall at the direction of U.S. District Judge Walter Smith.
The Justice Department and FBI long have denied that federal agents fired shots on April 19, 1993. But the government's sworn answer to the plaintiffs' question of whether ``any person under the employment, agency, control or direction of the U.S. or any other government, agency or organization'' fired shots is incomplete, Caddell wrote.
In its response to the question, the Justice Department said: ``No person in the employment of the FBI, or under the supervision, direction or control of the FBI, directed gunfire at the Branch Davidians on April 19, 1993,'' according to Caddell's court filing.
Caddell says the U.S. Army Delta Force may have played a role in the final hours of the siege, and that the Justice Department's response to his question does not answer that allegation. Military officials have said Delta Force members were present as observers only.
The deadly standoff began Feb. 28, 1993, when federal agents raided the rural compound of Branch Davidian leader David Koresh and his followers. The siege ended in a fire that killed Koresh and about 80 followers, some of whom were shot.
The government says the Davidians died by their own hands. Trial is set for May 15.

"Gov't Misses Waco Evidence Deadline"

(Associated Press, January 18, 2000)

WACO, Texas (AP) - Government attorneys failed to meet a federal judge's Tuesday deadline to turn over all evidence sought by relatives suing for wrongful death in the Branch Davidian inferno.
U.S. Attorney Michael Bradford said although the government sent 50 boxes of materials to plaintiffs' attorneys over the holiday weekend, an additional 2,500 pages of documents must be declassified before being sent.
He said government attorneys also must reproduce and hand over items from 31 boxes of materials, including photographs and computer disks, which were surrendered to the Waco federal court last fall at the direction of U.S. District Judge Walter Smith.
A private contractor the government hired had overlooked the materials and is making copies for delivery Wednesday, Bradford said. The Justice Department had sought a two-week delay, but Smith rejected their request last week.
Lead plaintiffs' attorney Michael Caddell said last week that he had ``zero sympathy'' for the government's argument that it cannot meet court-imposed deadlines because it has limited resources to cull through the requested information.
``There are over 9,000 lawyers in the Justice Department,'' he said. ``They can put as many lawyers on this project as they feel appropriate. If this were something that were important to the Justice Department, they would man up and get the job done.'' Smith set a May 15 trial date.
Also Tuesday, Caddell filed a request for Smith to compel the government's lawyers to answer more completely the question of whether any government personnel - military or civilian - fired shots during the deadly siege's final hours.
The Justice Department and FBI long have denied that federal agents fired shots on April 19, 1993. But the government's sworn answer to the plaintiffs' question of whether ``any person under the employment, agency, control or direction of the U.S. or any other government, agency or organization'' fired shots is incomplete, Caddell wrote.
The deadly standoff began Feb. 28, 1993, when federal agents raided the rural compound of Branch Davidian leader David Koresh and his followers. The siege ended in a fire that killed Koresh and about 80 followers, some of whom were shot.
The government says the Davidians died by their own hands.

"U.S. misses deadline for documents in Waco suit"

by William H. Freivogel ("The St. Louis Post-Dispatch", January 19, 2000)

After round-the-clock work sessions last weekend, Justice Department officials mailed out 50 boxes of documents related to the government siege at Waco, Texas. But the government failed to meet Tuesday's deadline for full disclosure.
J. Michael Bradford, a U.S. attorney in Texas, said that the government still has not provided 2,500 previously classified documents from the Department of Defense and about 31 boxes of photographs and computer disks from the files of the office of the U.S. attorney in Waco.
The Department of Defense is completing the declassification of the 2,500 Pentagon documents, he said. The 31 boxes from the U.S. attorney's office in Waco had been overlooked by a copying firm that was duplicating records for the government. These boxes will be copied by today and then have to be reviewed for privileged conversations, Bradford said.
Last week, U.S. District Judge Walter S. Smith Jr. rejected the government's request for a three-week delay in the production of the documents. Smith is presiding over the Branch Davidians' wrongful death suit against the government. He made no immediate response to the government's failure to meet the deadline. Smith could penalize the government for the delay.
Meanwhile, Michael Caddell, attorney for the Branch Davidians, asked the court to compel all government agencies to sign a statement that no government agent fired a gun April 19, 1993, the day about 80 Branch Davidians died after a fire destroyed their complex. In support of the request, he cited additional evidence that he thinks supports the claim of government gunfire.
Caddell said the government has not accounted for the whereabouts of one of the three Delta Force members at Waco. Two of the Delta team members were in the command post working on electronic surveillance. These two electronics experts testified that the third Delta soldier was not seen until after the fire had destroyed the complex. Then, Caddell said, he turned up looking "tired, somewhat disheveled and red-eyed."
Caddell said that this third Delta team member was a combat specialist, known in Delta Force slang as a "shooter, operator, door knocker and beserker."
In addition, Caddell said, the FBI's infrared film experts admitted in recent depositions that they could not find flashes on tapes of 20 infrared videos taken of the Branch Davidian complex before the final assault. He said this bolsters the Branch Davidians' claim that flashes on the final tape - during the assault - are from government guns.
Caddell also demanded the original negatives of about 200 photographs taken by a retired FBI employee who was a special agent at Waco.
The Post-Dispatch published one of those photographs last week. It appeared to show that no government forces were standing in the place where flashes show up on the infrared tape. Caddell said he needs original negatives, not copies, to determine whether the photos had been doctored.

"Local U.S. attorney new co-counsel in Waco siege case"

by Jim McElhatton ("The Enterprise", January 14, 2000)

BEAUMONT - East Texas' top federal prosecutor, U.S. Attorney Mike Bradford, has been named as a lead lawyer to defend the government's actions in the 1993 siege of the Branch Davidian compound near Waco.
Bradford, 47, who spent most of the past six years behind the scenes plotting legal strategy and supervising 60 federal prosecutors, will have a much more visible role in his new job as a courtroom attorney.
"It's something that was brought up a few months ago," Bradford said Thursday.
"I was concerned obviously about all the obligations being met in this office, but I felt this was a very important case. It would be hard to walk away from it." Survivors of more than 80 Branch Davidians who died as a result of the standoff there with federal officers filed the case scheduled to begin in May Government critics, including some in Congress, have questioned whether the ATF and FBI caused the fire in the compound that killed followers of cult leader David Koresh.
In September, Bradford was appointed to handle discovery motions handled by the Western District of the U.S. Attorney's office.
But Thursday's announcement puts Bradford in a much more prominent role in the wrongful death lawsuit.
The case is biggest in Bradford's career, despite his involvement in several high-profile trials, such as the Jasper dragging death and conviction of a Dallas City councilman on fraud charges.
Bradford is two decades removed from his first ever case as an appointed defense attorney in a simple burglary case in State District Judge Leonard Giblin's courtroom.
He started his career in Austin after graduating University Texas Law School as a law clerk for the Texas Court of Criminal Appeals.
In 1979, Bradford came to Beaumont as a partner in a firm with James Mehaffy, now a state district judge in Beaumont.
He then worked as executive assistant in the U.S. Attorney's Office prosecuting mostly white-collar crimes.
After two years as U.S. Magistrate, Bradford in 1989 became a state district judge in Beaumont.
He was appointed U.S. Attorney for 43 East Texas counties in 1994.
"I can't imagine a better job than working with people dedicated to protecting the public in the criminal justice system," Bradford said.
Lamar University professor Dr. Stuart Wright, who wrote a book highly critical of the government's role in the Waco standoff, said Bradford's appointment could be related to his being a native Texan.
"I think anytime you try a case, you want people that look familiar to a jury," he said. "You don't want an outsider from Washington or somebody with a New York accent. That might turn a jury off.
"Mike brings that Texas persona to the table. This is a career-making kind of case for him." But Wright said it's very possible that the case could be settled.
"I would be very surprised if this made it into the courtroom. The government does not want to lose this case." As for the upcoming trail in Waco, Bradford said, he enters the proceedings "late in the game." Bradford said for the next five months, he will be reading over legal documents and meeting with other attorneys in Washington, D.C.

"Deadline upheld on Davidian documents: Despite government efforts, judge says he won't postpone depositions on siege"

by Lee Hancock ("The Dallas Morning News", January 14, 2000)

In another rebuke to the Justice Department, a federal judge refused Thursday to postpone depositions or a Friday deadline for surrender of documents regarding the Branch Davidian siege to the sect's lawyers.

Related stories

U.S. District Judge Walter Smith also issued a separate order Thursday rejecting government arguments that the bulk of records disclosed to lawyers for the Davidians in an ongoing wrongful death lawsuit must be kept confidential to protect the safety and privacy of federal agents.
Lawyers for the sect and two media organizations, The Dallas Morning News and the St. Louis Post-Dispatch, filed motions last month challenging the Justice Department's secrecy bid.
The judge gave government attorneys until Jan. 24 to convince him why he should not approve a proposal by plaintiffs' lawyers for broad public access to federal documents in the case.
Mike Bradford, one of the lead government lawyers, said federal employees will work "round the clock" to try to meet the court's discovery deadline.
Also Thursday, the office of special counsel John Danforth asked the court for the original infrared video recordings shot by the FBI on the final, fiery day of the 1993 standoff.
Davidian leader David Koresh and more than 80 followers died on April 19, 1993, as their compound burned around them. The fire began six hours after FBI agents began ramming the compound with tanks and spraying in tear gas.
Government arson investigators ruled that the sect set the fires. But lawyers for the sect have alleged that an airborne infrared camera circling the compound captured flashes of government gunfire that day. Their lawsuit contends that the gunfire kept innocent women and children from escaping the burning building.
FBI officials have insisted that their agents did not fire a shot during the entire 51-day siege. Citing bureau experts and scientists hired to help defend government actions in Waco, they say the flashes recorded on April 19 are electronic anomalies from a camera that was too far away to capture heat signatures of gunshots.
But both infrared experts hired by the sect and some independent scientists, including an analyst working for the House Government Reform Committee, have said the flashes could have only come from gunfire.
Government lawyers agreed last month to participate in court-supervised field tests in an effort to determine whether the flashes came from gunfire. Thatagreement came only after Justice Department lawyers spent several months trying to discredit the idea, which was first proposed in late October by lawyers for the sect.
The government's agreement to cooperate also came only after Mr. Danforth's office asked the court to supervise a field test, and Judge Smith agreed.
On Thursday, deputy special counsel Edward L. Dowd told the court that his office needs custody of the original infrared tapes for 60 days to help its experts prepare for the upcoming field test.
The special counsel's office also would conduct "independent tests" on the videotapes, Mr. Dowd's four-page request stated.
Although the request did not elaborate, it is an indication that the special counsel's office may be planning to try to determine whether the tapes have been altered or edited.
The videotapes have been in Waco since last November, when the government completed the turnover of all government evidence and documents relating to the standoff.
Judge Smith issued an unprecedented order last August taking control of all government records relating to the incident, including information that would not have to be disclosed in the wrongful death lawsuit. His order stated hewas acting to ensure the integrity of all evidence relating to the siege and quiet concerns about the appearance of a government cover-up.
Government lawyers tried to fight the order until the judge threatened to hold them in contempt, then they sought repeated delays in surrendering their records until he again threatened a contempt proceeding.
A former Secret Service audio and video expert hired by lawyers for the sect has said he has found evidence that the tapes and other FBI recordings may have been edited or partially erased.
The expert, who spent a week last year examining the original infrared videotapes, has issued preliminary reports, saying that even infrared tapes the FBI has said were originals appear to have been tampered with.
Mike Caddell, lead attorney for the Branch Davidians, said the expert is particularly concerned about lengthy gaps in the audio track on the infrared videotapes. FBI agents in the airplane that carried the camera that day have said in depositions that they were surprised to learn about the gaps and cannot explain why they occurred, Mr. Caddell said.
The attorney said he welcomed more testing of the tapes and is also pleased that Judge Smith appears poised to allow broad public access to information that the government is producing in the ongoing civil case.
Government lawyers had argued that disclosure would pose significant risks for agents who had been involved in the standoff. Waving off those objections, Judge Smith's Thursday order endorsed a proposal by Mr. Caddell that would allow broad public access to most documents after personal information is redacted.
Last month, the plaintiff's attorney complained that many documents that had already been released in an earlier criminal case were being marked "confidential" and "attorney's eyes only" before being turned over in the civil case.
Mr. Bradford, the U.S. attorney for the eastern district of Texas, acknowledged that some documents may have been designated confidential "because of concerns about one part" and a desire to get the records to Mr. Caddell as quickly as possible.
"Trying to get the documents produced and going through this process of screening . . . to see what should be released and what should be protected, that's going to be a time-consuming process," Mr. Bradford said. "I guess if we have to do it, we have to do it.".
The government now faces a new round of depositions in Washington next week and a Friday deadline for surrender of a massive trove of documents to the Branch Davidian lawyers.
Government lawyers had filed a lengthy motion earlier this week arguing that they need until Feb. 4 to complete the turnover.
Mr. Bradford said the Justice Department will now "make every possible effort to comply" with the discovery deadline set by the court last October. "Hopefully, we'll get through it.".
The judge's orders did not address Mr. Caddell's request earlier this week for $50,000 in fines and other sanctions against Justice Department lawyers for their failure to comply with the court's discovery deadlines.
"I think he's going to wait and see how long it's going to take them," Mr. Caddell said. "The Justice Department has failed to meet a single deadline in this case. The message that they've sent to the judge is loud and clear: Your orders don't matter.".
"In 20 years, I've never had this experience. I just don't deal with people this difficult. They have forgotten who their client is," Mr. Caddell said.
"They've forgotten that their client is the American people, and they've forgotten what their client wants is the truth. That's the whole problem."

"Justices To Review Davidians Appeal"

by Laurie Asseo (Associated Press, January 14, 2000)

WASHINGTON (AP) - The Supreme Court agreed Friday to review an appeal in which five Branch Davidians challenged their sentences for using firearms during a gun battle that began the 1993 standoff at the cult's compound near Waco, Texas.
The court said it will hear the Davidians' argument that they could not be given longer sentences for using machine guns, rather than some other kind of firearms, because a jury never decided what type of weapons were used.
A decision is expected by July.
Four federal agents and six Davidians were killed during the Feb. 28, 1993, shootout that started when federal agents tried to arrest cult leader David Koresh. Fifty-one days later, Koresh and some 80 followers died during a fire after agents injected tear gas into the building. Nine Davidians who escaped were arrested.
After a trial, Jaime Castillo, Brad Eugene Branch, Renos Lenny Avraam and Kevin A. Whitecliff were sentenced to consecutive terms of 10 years in prison for manslaughter and 30 years for using machine guns during a violent crime. Graeme Leonard Craddock was sentenced to 10 years for using a grenade and a consecutive 10 years for using a machine gun.
The firearm law set a five-year sentence but allowed a 10-year term if the weapon was a semiautomatic firearm and a 30-year term for use of a machine gun or grenade.
The jury was not asked to decide what type of firearm was used. The judge made that determination during sentencing.
The five Davidians challenged the firearm sentences, saying the type of weapon should be considered an element of the offense that must be submitted to the jury.
The 5th U.S. Circuit Court of Appeals ruled against them, saying the type of weapon need not be decided by the jury.
In the appeal acted on Friday, the Davidians' lawyers said the firearm law's sentence-enhancing provision was similar to one in the federal carjacking law allowing longer sentences in cases of serious injury. Last year, the Supreme Court decided the serious-injury issue was an element of the carjacking crime that must be submitted to the jury.
Justice Department lawyers acknowledged that federal appeals courts had differed on the firearm law. But they added the law has been revised to clarify that the type of weapon was a sentencing issue and need not be decided by the jury.
The case is Castillo vs. U.S., 99-658.

"Government's chief lawyer in Waco suit has critics among FBI and Davidians"

by William H. Freivogel and Terry Ganey ("The St. Louis Post-Dispatch", January 14, 2000)

Branch Davidians and FBI agents agree on at least one thing about Waco: That the Justice Department has been too slow in releasing information about the 1993 assault. The difference is that the lawyers for the Branch Davidians see a cover-up and think the information will prove that government agents fired shots at the Branch Davidians. The FBI thinks the evidence will show no shots were fired. They're worried that the reluctance of the department's lead attorney, Marie L. Hagen, to release facts in the case is playing into the hands of members of the public who suspect the worst.
"I'm afraid she is going to win the battle in court and lose the war," said one FBI official who asked not to be identified. "In fact, we may already have lost it."
The rift within the Justice Department and the chasm between the Justice Department and the Branch Davidians helps explain several new developments in the Waco story this week.
On Tuesday, the Post-Dispatch published a previously undisclosed photograph that appears to show that there were no government agents standing at the spot where the Branch Davidians claim that the government opened fire on the complex. Hagen had apparently hoped to keep the photo under wraps to use in the upcoming trial of a wrongful death civil lawsuit filed against the government by survivors of the Branch Davidians who died at Waco.
Tuesday afternoon, the lawyers for the Branch Davidians asked the federal court in Waco to punish the government for its slow pace in turning over documents.
Wednesday, the government quietly announced that it was reorganizing its legal team to install a U.S. attorney from Texas, J. Michael Bradford, as co-lead counsel with Hagen, a move designed to add home-grown know-how to the defense, which has been made in Washington.
At the center of these disputes is Hagen, an intense, publicity-shy career lawyer in the Torts Branch of the Civil Division of the Justice Department.
Any government lawyer handling the Waco case would be subject to strident criticism. But fueling that suspicion are several episodes in which Hagen appeared to hold back important information, in particular the FBI's use of a pyrotechnic tear-gas device that the government had previously denied using.
The House Government Reform Committee staff interviewed Hagen for two days in the fall. She brought along her own lawyers to represent her.
The committee, which is planning hearings on the Justice Department's handling of the case, would not comment on the interview. But Hagen said that she had not realized until last summer that the military-style tear gas could cause a fire and therefore had not realized the potential significance of its use.
Disclosure of the use of the pyrotechnic device prompted Attorney General Janet Reno to appoint former Sen. John C. Danforth, R-Mo., to investigate.
But that device was shot at a bunker some distance from the complex; experts agree the device had nothing to do with the fire that consumed the building later in the day and killed many of the about 80 Branch Davidians who died in the assault.
Hagen declined to comment for this story and refused to furnish a photograph.
Her boss, acting Assistant Attorney General David W. Ogden, defends her handling of the Waco case.
"This is a complex and important case," he said. "Ms. Hagen and the trial team are working diligently and professionally to represent the United States with integrity and in a manner consistent with the obligations of the department."
Hagen, a graduate of Cornell Law School, has represented the government in cases ranging from the Tailhook sexual harassment scandal to a suit involving the death of 47 sailors on the U.S. battleship Iowa in 1989. She is a mid-career prosecutor in her mid-40s and is described by an adversary as at the "top of her game" as a lawyer.
Her husband served in the Navy judge advocate general's office, and she headed up the Justice Department's day-care center.
In court, she is all business, speaking in a rapid-fire monotone. "There's no joking around," says one associate.
Hagen's handling of the Iowa case prompted some criticism similar to that made about her handling of Waco. Kreig Brusnahan, a lawyer from Cleveland, filed a suit on behalf of the family of Clayton Hartwig, an enlisted sailor originally accused of having sabotaged the guns on the ship because of a thwarted homosexual affair. Even after the Navy officially apologized for placing the blame on Hartwig, Hagen argued that the Justice Department still thought him responsible.
"It baffled my mind that she would say this in court after the Navy had apologized on national television," Brusnahan said in an interview. Magistrate Judge David Perelman criticized Hagen for holding back documents on "lessons learned" by the Navy.
"Were the lessons learned by the Navy ... the positive ones to be more vigilant and precise," asked the magistrate, "Or were they perhaps the less laudable ones, such as not to engage in a cover-up after a screw-up?"

Missing page

The missing last page of a 1995 report to Congress about the Waco deaths is one example of disclosure problems cited by critics. Hagen was among those at the Justice Department who supervised the disclosure of documents to Congress during hearings in 1995. One document was a 49-page report that mentioned the use of military-style tear gas on the last page.
The mention of the tear gas was potentially significant because the report was issued four years before the Justice Department publicly admitted the use of tear gas that could potentially cause a fire. Copies of the report that Hagen turned over were missing that last page.
The omission would be evidence of an illegal cover-up if it had been intentional. But Hagen says it was not. The Justice Department also points out that other copies of the report furnished to Congress and to the plaintiffs contained the last page and that nobody noticed.
In 1997, lawyers for the Branch Davidians filed statements in court claiming that a 40mm pyrotechnic device had been used at Waco and had caused the fire that consumed the complex.
In a memo responding to that and many other allegations, Hagen said that the claims that the government could have caused the fire were "speculation and hearsay." This was not an inaccurate statement because even now the pyrotechnic tear gas is not thought to have started the fire that destroyed the complex.
But Michael Caddell, the lead lawyer for the Branch Davidians, thinks that was not a forthright reply because Hagen did not admit the existence of the pyrotechnic tear gas. He says Hagen "has tried at almost every step to delay and obstruct. She has played a lot of games in terms of the evidence. There is no question but that she views her role as the defender of the government right or wrong. This is antithetical to the role of a public servant."

An angry call

Another controversial episode occurred last year when filmmaker Mike McNulty obtained the aid of an assistant U.S. attorney in Waco, Bill Johnston, to obtain access to crime scene evidence. Johnston, one of the prosecutors in the criminal case against the Branch Davidians, agreed to help McNulty because he thought the government lid on the evidence made it look as though there was something to hide.
In a visit to the government evidence room, McNulty found a pyrotechnic tear gas canister.
One Saturday morning last June, an angry Marie Hagen called Johnston to complain. "Ms. Hagen was extremely upset with me," he later wrote. "She demanded to know whether or not I had allowed Mike McNulty to view the Davidian evidence. ... She ended the conversation unquenched in her anger."
At the end of August, the Dallas Morning News reported the use of the pyrotechnic device. Hagen turned up three memos in department files showing that an FBI agent had told Johnston in a 1993 interview that a "military gas round" had been used.
Those documents contain the notations "privileged" and "do not disclose," written, sources say, in Hagen's hand.
The three documents were faxed to Johnston. Some at the Justice Department saw this as simply an attempt to inform him of documents that had been unearthed. Johnston interpreted the action as a shot across the bow, warning him that he stood to be blamed for not disclosing the use of pyrotechnics because he had conducted the 1993 interview.
Johnston, like Hagen, says he did not know a "military round" of tear gas could cause a fire.
Discovery of the pyrotechnic device led to the appointment of Danforth as special counsel to investigate the Waco siege.
In September, headquarters ordered Johnston taken off the case. Hagen continued as the lead government lawyer but has had some rocky moments.
At a mid-October status conference, the parties were discussing a proposal by Danforth to test whether flashes seen on an infrared tape of the Branch Davidian compound area are from guns. Tom Schweich, a top Danforth aide, was representing the special counsel's office. Hagen looked down the table at Schweich and demanded, "Is the OSC litigating now?" - suggesting that Danforth had shifted from investigating to pursuing action in court. Those present say Schweich raised his hands, as in self-defense, and said no.
Federal Judge Walter S. Smith Jr., who is presiding at the Waco trial, was also put off by Hagen's conduct at the status conference, participants say.
Hagen suggested a schedule that would have put off the trial to 2001. She said one reason for the delay was that Johnston had been taken off the case.
That angered Smith, who is close to Johnston. "That's your problem, not mine," Smith shot back. He scheduled the trial for May.
Apparently criticism of Hagen was loud enough that the department assigned Bradford, the U.S. attorney in Beaumont, Texas, to serve as special counsel and share the leadership of the case with Hagen.

"Gov't Request on Waco Papers Denied"

by Susan Parrott, (Associated Press, January 13, 2000)

DALLAS (AP) - A federal judge on Thursday denied government requests to delay the handover of documents in the wrongful-death case filed by Branch Davidian survivors.
U.S. District Judge Walter Smith turned down the two-week delay requested by the Justice Department and ordered it to produce reams of evidence and turn it over to the plaintiffs' lawyers. Justice lawyers had argued that competing demands would not allow them to meet Saturday's deadline.
Smith also said he will not allow government lawyers to put on hold a second round of depositions scheduled for next week in Washington with FBI agents involved in the siege.
The deadly standoff near Waco began Feb. 28, 1993, when federal agents raided the rural compound of Branch Davidian leader David Koresh and his followers.
Federal officials insist government forces fired no shots when the seven-week siege ended in an inferno. Koresh and some 80 followers perished during the blaze, some from the fire, others from gunshot wounds. The government says the Davidians died by their own hands.
Earlier this week, the plaintiffs' lead counsel, Michael Caddell, asked Smith to sanction the government $50,000 for delaying the surrender of the documents.
U.S. Attorney Michael Bradford has said the government was slowed by competing demands for information from the judge; special counsel John Danforth, who is conducting an independent probe of the matter; and the congressional committees re-investigating the siege.

"Lawyer for Branch Davidians wants negatives of FBI surveillance photos"

by Terry Ganey and William H. Freivogel ("The St. Louis Post-Dispatch", January 14, 2000)

The lawyer for Branch Davidians suing the government in a wrongful death claim has asked for the negatives of FBI aerial surveillance photographs taken during the government's final assault on the sect's complex on April 19, 1993.
Michael Caddell, the lawyer representing the plaintiffs, asked the federal court in Waco, Texas, on Thursday to allow him to make enlargements from the FBI's original negatives. Caddell said an FBI photographer told him in a recent deposition that 10 to 12 rolls of 36-exposure film were shot in the final hours of the siege on the complex.
The pictures were taken from a surveillance aircraft that was circling the Branch Davidians' complex in Mount Carmel, Texas. At the same time, a higher flying FBI "Nightstalker" surveillance plane was recording the event on infrared film.
Some infrared analysts contend that flashes recorded on the infrared film represent gunfire from government positions. The FBI has denied firing guns during the siege.
The FBI's still photographs taken by the second surveillance airplane may help resolve the issue.
The government has supplied Caddell with dozens of 4-by-6-inch photographs that were out of sequence, he said. Caddell contends that without the negatives, there is no way of determining if he has a complete set of photos.

"U.S. accused of stalling on Waco Papers - Texas prosecutor joining Justice Department's trial team"

by Lee Hancock ("The Dallas Morning News", January 13, 2000)

Government lawyers came under attack from Branch Davidian attorneys and congressional investigators Wednesday as they told a Waco court they need more time to surrender documents related to the 1993 siege.
The latest skirmishes came as a Texas prosecutor confirmed that he has been asked to help lead the government's defense in the Branch Davidians' wrongful-death lawsuit.
In a move that follows months of rocky relations between Justice Department lawyers and the federal judge in the case, U.S.
Attorney Mike Bradford of Beaumont said late Tuesday that he would share lead counsel duties with Justice Department lawyer Marie Hagen. He said a civil litigation specialist from his Texas office would also join the eight-lawyer Justice trial team.
"I'm coming in to add a perspective on Texas practice," said Mr.
Bradford, who was asked last fall to oversee the turnover of the government's Waco documents to a U.S. District Court in Waco.
His appointment came as Justice Department lawyers told Waco federal Judge Walter Smith Jr. that they could not meet a Friday deadline and needed until early February to surrender government documents to lawyers for the sect.
In an angry response, lawyers for the Branch Davidians argued that the department's request was only the latest in a pattern of government stalling, delays and excuses.
Senate investigators said they have been frustrated by slow production of government documents, and a House Government Reform Committee spokesman blasted Justice officials.
"We sent a subpoena on September 7, 1999, with a due date of the 17th of September, and they have still not complied," said committee spokesman Mark Corallo. "The FBI did prepare much of the information that we had sought from them back in December. Main Justice has still not agreed to let us see it, and their excuses are vague and unacceptable.
"This has been carrying on for 6 1/2 years. We still don't have a full accounting from Janet Reno's Justice Department. Because of that, the American people still have a lot of questions about what happened at Waco," Mr. Corallo said Wednesday evening.
A Justice Department spokesman said Wednesday that "we are all working extremely hard to meet the demand."
"We've already turned over thousands of pages of documents to Congress, and we're continuing to work to comply," said spokesman Myron Marlin.
Earlier Wednesday, Justice officials confirmed that Fort Hood, Texas, is being discussed as the probable site for a court-supervised field test to determine whether an FBI infrared camera recorded government gunfire on the final day of the Branch Davidian standoff.
More than 80 sect members died that day when a fire erupted during an FBI tank-and-tear gas assault on the compound.
Government arson investigators ruled that the fires were set by Branch Davidians and that the government's actions played no role in their deaths.
Officials also denied that any FBI agent fired a shot during the entire standoff. But video footage shot by an airborne FBI infrared camera captured repeated, rhythmic flashes near government positions on April 19. Government experts and officials have said the flashes are electronic anomalies, but experts working for the sect and some independent scientists say they could only have come from gunfire.
Judge Smith endorsed a proposal by Waco special counsel John Danforth late last fall for court-supervised field tests to help resolve the issue.
Mike Caddell, lead lawyer for the Branch Davidians, said he was recently told that a Fort Hood shooting range would be used for the test. The Houston lawyer added that he met Wednesday afternoon with Mr. Bradford to discuss how both sides could better cooperate in the case, set for trial in mid-May.
The meeting came a day after Mr. Caddell asked Judge Smith to impose sanctions and a $50,000 fine to punish the government for repeated delays in turning over documents.
On Wednesday, government attorneys responded with a request for a three-week extension of the court's discovery deadline. They wrote that they have been swamped by document requests from the Waco special counsel, Congress and the court, and each has required separate, "time-consuming" reviews of hundreds of thousands of pages of material.
Government lawyers predicted that they would produce most of the documents sought by the Branch Davidians' lawyers by late January. But they asked to be given until Feb. 4 to complete a review and production of 146,250 pages of criminal trial files and 15,000 pages of military records - including about 2,500 pages of still-classified information.
But Mr. Caddell told Judge Smith Wednesday that the repeated Justice Department requests for more time "are part of a persistent pattern of delay, obfuscation and discovery abuse."
In an interview Tuesday, Mr. Bradford said that the Justice Department trial team has been "stretched incredibly thin" by the unprecedented demands of document reviews, production requests, depositions and case preparation.
"It's a very complex case, and the people in Washington have been working an enormous number of hours," said Mr. Bradford, chief federal prosecutor in East Texas since 1994.
Mr. Bradford's appointment to the Waco trial team has prompted speculation that Justice officials want to repair relations with Judge Smith.
In September, Judge Smith threatened to hold government lawyers in contempt after they tried to fight his August order taking control of government documents related to the standoff.
He threatened again in November after they repeatedly sought delays in surrendering the Waco documents and evidence to his court, noting "the government waits not only until the last day, but until the last minute" to comply with his orders.
Ms. Hagen and other members of the Justice trial team have been grilled by congressional investigators over the agency's handling of the case, especially its failure to disclose internal records dating to 1993 documenting the use of pyrotechnic tear gas.
But Justice officials said the appointment of Mr. Bradford, a former Texas state district judge and civil litigation specialist, should not be viewed as a sign they're having concerns about their Washington-based trial team.
"The reason this is being done is that Mike has got local knowledge and great trial experience, and Marie's got seven years of experience with this case," said Mr. Marlin. "They're both essential to this effort, and that's why they'll be co-lead counsel."
But after meeting with the federal prosecutor, Mr. Caddell said, he doubts that Mr. Bradford "will be anything more than a front man.
"I think there's a real question about how much control Mike Bradford will have," he said. "It appears that the same people are still in control, and he is being used to put a nicer face on the government's defense."

"Fort Hood could be site for Waco test: Court orders re-creation of Branch Davidian events"

(Associated Press, January 13, 2000)

WACO - The field test that may resolve the question of whether federal authorities fired gunshots into the Branch Davidian compound in the waning hours of the 1993 standoff is likely to be held at Fort Hood in March, the Davidians' lead attorney says.
Michael Caddell, the Houston lawyer who represents most of the Davidian plaintiffs in their wrongful-death suit against the government, said the Central Texas Army post would be an ideal location for the demonstration ordered by the court in advance of the May trial.
Government officials said Wednesday that no definitive agreement has been reached on the date or location of the re-creation, during which an airplane equipped with an infrared video camera similar to one the FBI used in 1993 would fly over an area while weapons are fired.
U.S. District Judge Walter Smith in November ordered a re-creation at the request of Waco special counsel John Danforth, who has said the government gunfire controversy will be among the "dark questions" his inquiry will seek to answer.
The government reluctantly agreed to the infrared video re-creation after first dismissing as invalid any test that didn't precisely duplicate the sun, wind, temperature and humidity conditions that were present.

"Plaintiffs in Waco suit seeking sanctions over evidence delay"

(Associated Press, January 12, 2000)

Plaintiffs in the Branch Davidian lawsuit have asked a Waco federal judge to sanction the government $50,000 for delaying the surrender of thousands of pages of documents related to the 1993 siege.
In a motion filed Tuesday in Waco, lead attorney Michael Caddell of Houston said the government has turned over fewer than 20 boxes of documents, or about 32,000 pages, most of which already are public record.
With a court-imposed deadline of Jan. 15, Caddell said he fears a "last-minute document dump," of hundreds of thousands of pages of materials, as plaintiffs prepare for a May 15 trial.
The $50,000 would allow the plaintiffs to hire additional staff to sort through the materials, Caddell said in the motion.
"It is clear that the government's lawyers have taken advantage of this court's generous allowance of an additional four months to complete document production in this case by failing to adequately staff document production, or alternatively, by stockpiling reviewed documents in order to deluge plaintiffs' counsel with thousands of pages of materials," he stated.
Caddell said U.S. Attorney Mike Bradford told him most of the documents would be produced this week but that the government would seek an additional two weeks to complete the job.
Bradford said Tuesday night that the government may request a delay but is making a "good-faith effort" to produce the documents as they become available.
"There isn't a basis for a sanction," he said. "There's been no intention to hold back documents and produce them all in one group in order to disadvantage" the plaintiffs.
Bradford said federal agencies also are having to duplicate documents for investigations by Congress and special counsel John Danforth. Bradford said he didn't know how many documents still must be produced for the Branch Davidian lawyers.
U.S. District Judge Walter Smith previously has shown little patience with government delays. In November, Smith threatened to hold Bradford in contempt for delaying the surrender of evidence to his court.
Surviving Branch Davidians and their relatives have filed the wrongful death suit against the government.
The deadly standoff near Waco began Feb. 28, 1993, when federal agents raided the rural home of Branch Davidian leader David Koresh and his followers. Four agents and six sect members died in the gunbattle.
Government agents have denied firing shots on the final day of the 51-day standoff. Koresh and some 80 followers perished during the blaze.

"Waco Photo Appears To Bolster FBI"

(The Associated Press, January 11, 2000)

ST. LOUIS (AP) - An FBI photograph seems to discredit claims that flashes of light filmed during the 1993 assault on the Branch Davidian compound were gunfire from government agents, the St. Louis Post-Dispatch reported Tuesday.
The Post-Dispatch said the surveillance photo appears to have been snapped within seconds of the time when a flash appears on a separate infrared tape at 11:24 a.m. on April 19, 1993.
The Branch Davidians and their experts claim flashes on the infrared film are muzzle flashes from FBI agents' guns. But the surveillance photo shows nobody in the vicinity of the flashes.
It is part of a batch of photos the government recently turned over to John C. Danforth and U.S. District Judge Walter S. Smith, who is presiding over a wrongful-death lawsuit filed by Branch Davidian survivors.
Danforth was appointed last year to investigate whether the FBI tried to cover up is actions at the group's compound near Waco, Texas.
The FBI has admitted it fired incendiary tear-gas canisters into the compound the day a fire killed about 80 members of the group but contends that people inside started the fire and that agents did not fire weapons at the people inside.
Until recently, the infrared tape taken aboard one FBI plane flying about 9,000 feet over the compound and photographs taken aboard another plane at a lower altitude had not been compared.
The surveillance photographs were timed by the damage depicted on the infrared tape.
Mike Caddell, the lead awyer for the Branch Davidians, said he has not yet seen the still photographs because the government has not handed them over to the plaintiffs, but he was not impressed by the comparison.
``There were a lot of times when that tank went in and out of the building,'' he said. ``Being able to identify what time it is and whatever the precise moment when someone was firing from the rear of the tank is very suspect unless you've got a complete roll of film and you can see the entire sequence.''

"FBI photograph apparently undermines claims that government forces fired on Branch Davidians"

by Terry Ganey and William H. Freivogel ("The St. Louis Post-Dispatch", January 10 2000)

A newly released FBI photograph appears to undercut claims that government forces opened fire on Branch Davidians during the assault on the compound outside Waco in 1993.
The photograph, which was obtained by the Post-Dispatch, is part of a batch of photos the government recently turned over to Special Counsel John C. Danforth and to U.S. District Judge Walter S. Smith, who is presiding over a wrongful-death suit filed by Branch Davidian survivors.
If accurate, the photo could help Danforth determine whether agents fired shots, which is also one of the key claims in the separate civil suit in Waco.
The FBI surveillance photo appears to have been snapped on April 19, 1993, within seconds of the time when a flash appears on a separate infrared tape at 11:24 a.m. The Branch Davidians and their experts claim that flashes on the infrared film at that time are the muzzle blasts from the guns of government agents. The surveillance photo shows no one in the vicinity of the flash.
The flashes on the infrared tape have been the strongest evidence to date that government forces fired on the Branch Davidians. Danforth thinks the flashes are important; at his request, the judge has ordered a court-supervised test by an independent expert to determine if small arms fire shows up as flashes on infrared tape. Fort Hood, Texas, is under consideration as the site for the test.
The FBI has always said its agents did not fire any guns during the siege on the complex. In answers to recent questions from investigators and plaintiffs' lawyers, FBI agents have continued to say they did not fire guns at Waco. The FBI has said it cannot explain the cause of the flashes on the infrared tape.
Mike Caddell, the lead lawyer for the Branch Davidians, said he had not seen the photograph the Post-Dispatch had obtained for the comparison. He said a fair comparison required seeing all the photographs, which he has requested but not yet received.
"Seeing one or two or 10 photographs doesn't tell you a whole lot," Caddell said.
Two FBI planes were flying over the Branch Davidian complex on the day of the assault. One, an FBI Nightstalker, was circling at about 9,000 feet taking infrared tape of the scene. This plane was using Forward-Looking Infrared (FLIR) technology on which hot items appear white and cold items appear dark.
Meanwhile, a second plane, flying lower over the complex, was snapping still photographs, including the batch that has now been turned over to Danforth and Judge Smith. Thousands of government photographs of the Waco events have been in the FBI files for years, and some of them have been shared with Congress and were used in a 1994 criminal trial. Until recently, they have not been compared to the Nightstalker's FLIR tapes.
One key comparison is about 11:30 a.m., when FBI agents driving a tank began destroying the back wall of the gymnasium at the rear of the Branch Davidian complex. The FLIR tapes record the tank plowing into the back of the gym and backing out. When the tank enters the structure at 11:24:31, a flash is observed on the FLIR tape off the right rear corner of the tank.
The surveillance photographs do not have time signatures, but one photo appears to have been taken at about 11:24 a.m. but from a slightly different angle. The time comparison can be estimated by comparing the level of damage to the gym shown in the surveillance photo with what is depicted on the FLIR tape.
The surveillance photo shows the tank partially in the gym, either driving into it or backing out. If the picture was made as the tank was driving into the gym, it might have been made at the moment of the flash. If it came when the tank was backing out, it was shot about 35 seconds later. In either event, no figures can be observed in the surveillance photo in the area off the right rear of the tank.
Edward Allard, the Branch Davidians' FLIR expert, has pointed to the flashes at 11:24 a.m. as evidence of automatic weapons fire. Allard, who read FLIR tapes for the Pentagon's night vision lab, has said the gunfire appeared to be directed toward the complex's dining room where many of the Branch Davidians had gathered.
Caddell, the Branch Davidian lawyer, was not impressed by the comparison of the surveillance photo with the FLIR.
"There were a lot of times when that tank went in and out of the building," he said. "Being able to identify what time it is and whatever the precise moment when someone was firing from the rear of the tank is very suspect unless you've got a complete roll of film and you can see the entire sequence."
No figures appear in the FLIR tape at the time of the 11:24 flash. Allard has said that black blobs appearing off the right rear of the tank are the people firing the guns. However, humans seen in other parts of the tape appear as shadow figures with arms and legs. The blobs do not appear on the surveillance photo.
Allard also has said that when the tank backs over the black blobs the agents may be getting back into a hatch at the bottom of the tank. But the FBI's clearest version of the FLIR tapes -- a digitized version of the originals -- appears to show the tank tracks running directly over the blobs as the tank backs over them five times.
Other investigators who have been trying to determine if the blobs are people say they tend to think they are not. "Allard may have made a mistake on that," said one investigator who believes there may have been gunfire.
The FBI's copy of the tapes also has an interesting portion about 11:28 a.m. The FLIR shows the tank knocking down a big door or a wall on one end of the gym. Seconds later a few flashes appear nearby, fueling speculation that the flashes may somehow have resulted from the destruction of the building. But the FBI, whose previous explanations of the flashes have not held up to scrutiny, says it does not know what caused the flashes.


Waco, FBI and the Branch Davidians: Updates

CESNUR reproduces or quotes documents from the media and different sources on a number of religious issues. Unless otherwise indicated, the opinions expressed are those of the document's author(s), not of CESNUR or its directors.

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Mon, Mar 13, 2000