No sanctions are warranted against the government for its handling of evidence in the wrongful-death lawsuit filed against the government by surviving Branch Davidians, U.S. District Judge Walter S. Smith Jr. of Waco ruled Wednesday.
"Although there may be some indication of mishandling and/or mislabeling by the FBI, there is nothing to indicate that this was a result of anything more than mere negligence," Smith wrote in a four-page order.
Houston attorney Mike Caddell, who asked Smith for the sanctions, said he expected the ruling.
"Our purpose in filing the motion more than anything was to educate the court on some of these issues," said Caddell, lead plaintiffs attorney. "It was clear from the beginning that absent smoking-gun evidence, such as a video of an FBI agent destroying evidence, it was unlikely the court would find that the FBI intentionally destroyed or tampered with evidence. But we also felt there were enough troubling aspects to the government's handling of the evidence that we couldn't let it pass without comment."
Both sides were in Waco last month for a sanctions hearing. Caddell charged that the government dumped evidence on the plaintiffs at the last minute and may have altered evidence, such as possibly stripping the audio off the infrared videotape taken at Mount Carmel on April 19, 1993. A fire that day led to the deaths of David Koresh and 75 followers.
Michael Bradford, U.S. Attorney for the Eastern District of Texas, called Smith's order significant.
"It reinforces that the FBI was not involved in wrong-doing," Bradford said. "It also clears the way for evidence to be introduced that seriously harms the claims made by the plaintiffs in this case. It's significant for both those reasons."
Bradford said he thinks the plaintiffs' call for sanctions was a "backhanded" attempt to strike evidence they feel damages their case.
"For example, they accuse the FBI of tampering with the Title 3 tapes, which record the Branch Davidians talking about setting their compound on fire," Bradford said. "That's damaging to their case."
Caddell dismissed Bradford's argument.
"He's wrong," Caddell said. "There are so many problems with their expert's transcription, we haven't gotten to the issue of whether they're authentic or not. Frankly, the tapes won't hurt us."
While ruling for the government, Smith noted in his order that he believes the government failed to act with "due diligence" in providing discovery to the plaintiffs. However, Smith wrote that the postponement of the trial date from May 15 to June 19 addressed any possible harm done to the plaintiffs' case
Law enforcement agencies are starting to address public safety issues that might come up during the trial of the Branch Davidian wrongful-death lawsuit against the government.
Representatives from eight local, state and federal law enforcement agencies met last week at the Waco Convention Center to begin preparations for the June 19 trial in Waco's federal court.
"We basically met to share information," said Waco Assistant Police Chief Dan Hetherington. "The main thing is to coordinate resources and to come up with a plan so we can be ready should we need it. So far, we haven't gotten any information about any problems. But we need to have a plan in place because we know the trial is going to attract a lot of attention, probably some national attention, and we want to know that we are prepared to deal with anything that comes up."
Officials from the Waco and Woodway police departments, McLennan County Sheriff's Department, Texas Department of Public Safety, U.S. Marshals Service, U.S. Secret Service, Bureau of Alcohol, Tobacco and Firearms, and the federal Drug Enforcement Administration attended the meeting, Hetherington said.
"We hope that the plan and all these efforts are for nothing," Hetherington said. "But we want to be ready should something happen. It is not the time to start preparing once something happens. We are just taking precautionary measures."
Chief Deputy U.S. Marshal John Butler of San Antonio, whose agency is responsible for federal courthouse security, said the meeting was for "brainstorming and to discuss security issues."
"We do this on a routine basis," Butler said. "We will be prepared for whatever we are faced with."
While Butler expects a large field of media representatives to cover the trial, he said he isn't sure who else might be attracted to the trial. Members of a Michigan militia group attended the April 19 dedication of the new church that volunteers built at Mount Carmel for the seventh anniversary of the fiery deaths of Branch Davidian leader David Koresh and 75 of his followers.
"This is a civil trial," Butler said. "This doesn't draw the same kind of caliber of fringe people."
Woodway Public Safety Director Yost Zakhary said his department was invited to the meeting because his agency has a special response team, known in some departments as a SWAT team, that could be called upon if needed.
"We are one of two special response teams in McLennan County," Zakhary said. "We have one and Waco has one, and we work very closely together. We stand prepared to assist our neighbors in Waco any way we can."
The FBI might have been negligent in handling some evidence from the Branch Davidian case, but there was no indication that the agency or others in the federal government intentionally destroyed or altered key evidence from the 1993 siege, a federal judge in Waco has ruled.
The four-page order issued Tuesday by U.S. District Judge Walter Smith rejected arguments from plaintiffs' lawyers in a wrongful-death lawsuit that the government should be sanctioned for its handling of evidence in the seven years since the incident near Waco.
"Although there may be some indication of mishandling and/or mislabeling by the FBI, there is nothing to indicate that this was the result of anything more than mere negligence," the order stated. "The court has been made fully aware of the thousands of items of evidence involved in this case. It is possible that other reasonable collectors, collators, etc., would have done no better."
The judge also refused a request by the plaintiffs' lead lawyer for fines to punish the government's delays in turning over documents for the lawsuit.
"Although the court is persuaded that the government failed to act with due diligence in providing discovery, any harm to the plaintiffs has been ameliorated by the continuation of the trial date," Judge Smith wrote.
The case, originally set to go to trial this week, is now scheduled to begin June 19 in Waco.
Lawyers for families of Branch Davidians who died in the 1993 incident argued in a hearing last month that the government had engaged in deliberate efforts to withhold or alter still photos, infrared videos and other key evidence from the last day of the siege.
More than 80 Branch Davidians died April 19, 1993, in a fire that consumed their compound. The blaze broke out about six hours after FBI agents began bashing the sect's building with tanks and spraying in tear gas to try to force an end to the 51-day standoff.
Lawyers for surviving sect members and families of those who died have alleged that the FBI's actions caused the tragedy - a charge that the government has adamantly denied.
The pending wrongful-death lawsuit alleges that an infrared videotape recorded from an FBI airplane during the final assault captured repeated thermal images of government gunfire.
Government officials have insisted for years that no one on their side fired a single shot on the last day of the siege, and that sect members deliberately set fire to their own building and shot one another instead of surrendering. Justice Department lawyers have contended that the government should bear no responsibility for the tragedy.
Court-appointed infrared experts selected by Judge Smith and Waco special counsel John C. Danforth to help resolve the gunfire issue recently issued a report stating that they found no scientific evidence to support claims of government gunfire.
Lawyers for the sect and some government critics have said they plan to dispute that finding in the upcoming trial, noting that several retired U.S. defense experts and an infrared analyst who recently died of a heart attack had each found that the infrared recordings showed government gunfire.
The court-appointed experts, British employees of Vector Data Research, will be questioned by both sides during a two-day round of depositions scheduled for next week in Washington, D.C.
During last month's sanctions hearing, lead plaintiffs lawyer Mike Caddell of Houston argued that accounts from all of the FBI agents who operated the infrared camera and the plane that carried it on April 19 supported his recording expert's finding that videotapes from that day had been tampered with. The plane's pilot testified in last month's hearing that he believed the audio was recording that day, and the FBI employees who operated the infrared camera testified in earlier depositions that they also were surprised to learn that the tape made during their flight contained no audio.
A recording expert hired by Mr. Caddell's firm to study the tapes testified in last month's hearing that he had found evidence that someone had erased audio tracks from a key videotape taken just before the fire.
But Judge Smith noted in his Tuesday order that a former FBI recording expert who studied the issue for the government had rejected that analysis. The judge said that expert's testimony "was more persuasive."
"The evidence does not support plaintiff's claim of erasure, but rather indicates that the audio was never turned on," he wrote.
The judge also rejected arguments that the government had altered or withheld still photographs taken from another FBI airplane in the last hours of the siege. The judge wrote that an FBI photographer testified that he did not believe any rolls of film were missing.
The judge's order also noted that the photographer testified that gaps between his pictures may have occurred when he changed film, when the aircraft banked away from the compound or when the plane's pilot took breaks from holding open a window to give the photographer an unobstructed view.
"Therefore, there is nothing to indicate that any film or negatives have been intentionally lost or destroyed by the government," the judge wrote. "In support of this, the court notes that there is no motive identified for the government to have destroyed one roll of film, particularly when the activities on April 19 were captured on the [infrared] tapes and by news photographers."
U.S. Attorney Mike Bradford of Beaumont, one of the government's lead defense lawyers, said the judge's order echoes the government's longstanding position that its agencies did nothing improper in their handling of siege evidence.
He noted that the infrared tapes being challenged in the sanctions hearing show fires breaking out simultaneously in several parts of the compound, and FBI surveillance tapes also challenged by the plaintiffs captured voices of Branch Davidians planning and setting the fires.
"It appears that this claim of destruction or altering of evidence is just a backhanded attempt to get this evidence damaging to their case suppressed," Mr. Bradford said. "The judge's order is important from the aspect that the FBI did not do anything wrong. ... Secondly, it opens the way for this evidence to come into trial, which is very, very damaging to the plaintiffs."
Mr. Caddell said he knew from the outset that his sanctions motion had little chance of success and was surprised that the judge granted a hearing. As with the larger allegation of government gunfire, he said, "at the end of the day, without a smoking gun, [Judge Smith] ... is going to conclude that the FBI just didn't do it. The nice thing is with two other major issues in our case - the demolition of the building and the lack of firefighting equipment - we do have smoking guns."
The Branch Davidians' case also alleges that government officials violated a Washington-approved plan by prematurely ordering tanks to begin demolishing the compound and violated the attorney general's orders by failing to have any firefighting equipment on hand before starting the tear-gas assault.
WACO, Texas (AP) - The FBI may have mishandled some key evidence related to the deadly 1993 Waco siege, but Branch Davidian lawyers failed to prove the government intentionally altered or destroyed any items, a federal judge ruled Wednesday.
U.S. District Judge Walter Smith, who is presiding over a wrongful-death lawsuit set to begin June 19, said there is ``no basis'' for him to order the government ``to turn over any additional evidence or to impose sanctions for actions which apparently occurred over seven years ago when the evidence was first collected and collated.''
Lawyers for the Branch Davidians, in a motion filed earlier this year, contended that the government withheld, destroyed or tampered with evidence crucial to their lawsuit.
Michael Caddell, the Davidians' lead counsel, asked Smith to review the complaint and to sanction the government.
During a daylong hearing last month, Smith heard testimony from a pilot and photographer who were at the site on April 19, 1993, as well as audio experts for both sides.
Among other things, plaintiffs contended that some of the Forward Looking Infrared, or FLIR, footage bore signs of the audio having been erased.
Caddell said on one tape, someone can be heard asking for the audio to be turned off.
But Smith, in his order, said: ``The evidence does not support erasure, but rather indicates that the audio was never turned on.''
The government, for seven years, has staunchly denied that its agents fired any shots or that it bears any responsibility for the fire that raced through the compound several hours into an FBI tear-gassing operation designed to flush out the Davidians.
Davidian leader David Koresh and some 80 followers died that day, some from the fire, others from gunshot wounds. The government contends they perished by their own hands. The Davidians say the government bears some responsibility.
The demise of infrared expert Carlos Ghigliotti isn't a deathblow to plaintiffs in the wrongful-death lawsuit filed by surviving Branch Davidians against the government, but it's a major setback, according to lead attorney Mike Caddell.
In little more than a month, June 19, the trial starts in Waco.
Ghigliotti had worked for the House Committee on Government Reform, which is preparing to review what happened at Mount Carmel seven years ago, and told The Washington Post last fall that he believes the infrared tape taken on the last day of the Davidian siege captured evidence of government gunfire.
"From my personal observation of Carlos Ghigliotti's work, he had done more than anyone who has looked at this subject," Caddell said. "He not only did more work, but he also had better equipment: a bank of monitors, slow-motion tape machines, the ability to do split-screen analysis to compare videotapes for similarities or differences. He was head and shoulders above everyone else.
Caddell said Ghigliotti brought more than technical expertise to his investigations.
"Ghighliotti also had invaluable field experience," Caddell said. "He was a pilot. He had sold FLIR (Forward-Looking Infrared) systems. He had worked with the FBI. It's a tremendous loss."
An FBI spokesman said the agency consulted with Ghigliotti on environmental crime investigations in the Baltimore area.
Police in Laurel, Md. found Ghigliotti's decomposed body at his place of business, Infrared Technologies Corp., on April 28. A preliminary autopsy determined that Ghigliotti, 42, died of a heart attack.
Caddell said he met with Ghigliotti at his workplace outside Washington, D.C. a couple of weeks before he died. Ghigliotti showed him enhanced versions of the infrared tape from Mount Carmel, taken by cameras that record images based on an object's heat signature.
Ghigliotti's analysis of the tape contradicted the report released by Vector Data Research, according to Caddell.
Vector, working under the auspices of U.S. District Judge Walter S. Smith Jr. of Waco, concluded the flashes in the Mount Carmel infrared tape are not from guns. The firm also stated that no people are seen on the ground until after the start of the fire that led to the deaths of David Koresh and 75 followers.
"We're going to have the opportunity to explore these issues in a couple weeks," Caddell said. "Then we'll let people judge for themselves."
Caddell is working with Laurel police to gain access to Ghigliotti's workplace. He expects to be given permission to enter the facility next week. In addition, Caddell will take the depositions of Vector's infrared experts, possibly in early June.
David Hardy, the Arizona attorney who successfully sued the government for access to Davidian evidence, shed a little more light on what Ghigliotti believed he had detected in the infrared tape.
"The guy had spent Lord knows how much time analyzing every detail of that tape and correlating it to the tapes made by media," said Hardy, who had visited Ghigliotti's studio. "He had found all these events, hatches opening on tanks and people moving around on the ground."
Hardy questioned whether the plaintiffs will be able to use Ghigliotti's work without him.
"A lot of the stuff you had to have him around to show you," Hardy said. "Losing him is critical."
The plaintiffs had already notified the Waco federal court that they planned to use Ghigliotti as an expert witness. He was to replace Edward Allard, a physicist who worked 10 years at the Army's Night Vision Laboratory. In the documentary, "Waco: Rules of Engagement," Allard said the flashes in the April 19 infrared tape were gunshots. This spring, however, Allard suffered a stroke. Friends have said that Allard is making a remarkable recovery. However, it's questionable whether he'll play a role in the upcoming trial.
"Anything about Waco we try to keep from him," a relative said.
Plaintiffs got some more bad news last week about another infrared expert.
"Not only do we lose Ghigliotti, who was very good, but we've been harmed for the 21/2 months we've been without Allard," Caddell said. "And the next guy we were were talking to told me the FLIR company he works with refuses to let him work with us."
Caddell said the company has government contracts.
"We're not giving up, but I don't know how we'll replace Carlos Ghigliotti," Caddell said.
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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