"Evidence delay angers siege judge -U.S. marshals wait to act in Branch Davidian case"
by Lee Hancock ("The Dallas Morning News", September 10, 1999)
A federal judge was furious Thursday after U.S. marshals in Waco hesitated to carry out his order to seize the contents of an entire government office and massive storage lockers holding evidence from the Branch Davidian standoff.
U.S. District Judge Walter Smith ordered the seizure Thursday morning and was "infuriated" after the chief U.S. marshal for his district spent hours consulting with his agency's headquarters in Washington and the U.S. attorney's office in San Antonio before executing the raid on the Waco office of the federal Bureau of Alcohol, Tobacco and Firearms, officials said.
"He was livid," said one source who spoke on condition on anonymity. "It appears that the marshals refused to execute his order until they went to Washington."
The seizure is the latest development in an escalating skirmish over who will control and investigate the vast array of evidence tied to the Branch Davidian standoff.
Judge Smith, a conservative judge normally considered to support law enforcement agencies, has been at odds with the Justice Department, which has reeled from crisis to crisis in the weeks since it admitted that pyrotechnic devices were used by its agents in Waco on April 19, 1993.
Observers say Thursday's incident is remarkable because Judge Smith's rulings relating to the 1993 tragedy have long shown little patience for criticism of government law enforcement actions against the Branch Davidians.
A Justice Department spokesman in Washington declined to comment. But an ATF spokesman in Washington confirmed that Judge Smith issued the order after hearing that the agency had recently begun discussing closing the office. The judge acted to ensure that the office's contents would be preserved.
"There was, I guess on his part, some concern that the office might be closing," said Jeff Roehm, public affairs chief at the agency's headquarters. "It was pretty much expected."
The seizure came one week after Judge Smith flatly rejected a plea by the U.S. Justice Department, parent agency of the U.S. Marshals Service, not to take control of the government's evidence.
It also comes eight days after the Justice Department dispatched marshals to the FBI to seize previously undisclosed videotapes showing that government agents used pyrotechnic tear gas against the compound - something the U.S. government denied for six years.
The Waco ATF office was set up to help coordinate federal prosecutions after the standoff.
The siege began Feb. 28, 1993, when a gunfight erupted as ATF agents tried to arrest Branch Davidian leader David Koresh and search his compound for illegal weapons. Four ATF agents died.
A ensuing standoff ended 51 days later when a fire erupted hours after the FBI assaulted the compound with tanks and tear gas. Mr. Koresh and more that 80 followers died in a blaze the government says was started by the Branch Davidians.
Judge Smith presided over the criminal case arising from the standoff, a 1994 trial in which eight Branch Davidians were convicted on charges ranging from manslaughter to weapons violations.
The ATF's Waco office that was opened to prepare for that trial included a large collection of case files, work papers and other documents amassed by ATF agents involved in the Branch Davidian investigation. The office also had custody of tons of debris, spent ammunition and other items from the siege not considered crucial to the federal government's criminal investigation of the sect.
Sources said the marshals obtained the judge's order before lunch Thursday and spent several hours consulting with their superiors about whether to execute it.
The judge, furious because his directive had been issued under court seal, then told the chief U.S. marshal for the district that the agency must comply immediately, officials said.
Only then did the marshals carry out the order, seizing files and taking custody of keys to the storage facilities that hold what has been called "junk evidence."
Mr. Roehm, the ATF spokesman, said the agency had decided to keep the office open until the end of an upcoming wrongful-death lawsuit focusing on the government's handling of the 51-day siege. Judge Smith is also presiding over that case.
Lawyers for the Branch Davidians have alleged that the government's negligence and deliberate actions caused the 1993 tragedy. For several years, they've claimed projectiles and shell casings found in the compound rubble include pyrotechnic tear-gas grenades and incendiary devices. They have also alleged that government officials have worked for years to hide such evidence.
Use of devices
Federal officials only recently conceded that federal agents used anything capable of sparking a fire on the day the compound burned. They made that admission after a former senior FBI official told "The Dallas Morning News" that use of pyrotechnic tear-gas shells on April 19 was "common knowledge" among members of the bureau's hostage rescue team.
And last week, a Waco federal prosecutor faxed a five-page letter to warn Attorney General Janet Reno that he had recently been shown documents suggesting that Justice Department lawyers had long withheld information about the use of pyrotechnic devices.
Last Friday, Judge Smith had to intervene before the ATF allowed the Texas Rangers access to the Waco storage facility containing the massive collection of evidence.
The Rangers had asked to enter the facility to search for items relating to pyrotechnic tear-gas devices fired by the FBI.
The Rangers have been involved in the case since they were brought in as independent criminal investigators in the first weeks after the siege began.
They have kept key trial evidence in their Austin evidence lockers ever since, at the request of Justice Department officials.
The Rangers launched a new inquiry early this summer to determine the nature of some of the evidence in their custody after questions arose about whether the evidence might contradict the government's account of its actions.
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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