WACO A former television news reporter who saw most of the gunbattle between Branch Davidians and federal agents during a failed raid Feb. 28, 1993, testified Friday that the shooting erupted as soon as he arrived.
"It just seemed to all start at once. I saw some of the law enforcement officers ... they were running for cover ... As they were running, they appeared to be returning fire at the building,'' testified John McLemore, a former reporter for Waco television station KWTX.
Taking cover behind a bus on the property, McLemore watched the gunbattle between agents and the Davidians. He saw agents run toward the building with a ladder, climb onto the roof and enter the complex by smashing through a window on an upper floor.
"After three of the agents had gone in the window, there was one agents left on the outside there, and I saw gunfire come through the building wall and one or two shots came up through the roof at the agent,'' McLemore said.
McLemore testified as the second week of trial was winding to a close in the $675 million wrongful-death lawsuit filed by surviving Davidians and family members against the federal government.
McLemore, who was on the property for the entire 21-2-hour ordeal, called for help from his news vehicle.
Three of the injured agents were carried off the compound in the media vehicle. "We were the last ones off the property,'' said McLemore.
Plaintiffs' attorneys wrapped up their case Thursday morning, and government lawyers began presenting their case that afternoon.
Four agents were killed and 16 were wounded during the gunfight, which broke out as Bureau of Alcohol, Tobacco and Firearms agents tried to serve search and arrest warrants on sect leader David Koresh. Six Davidians also died as a 51-day standoff began. Koresh and about 80 followers perished as a fire destroyed the compound near Waco on April 19, 1993.
Plaintiffs say the agents, who raided the complex to search for illegal weapons and arrest Koresh, fired indiscriminately into the building. Government attorneys say the agents were ambushed by sect members and were defending their lives.
Lead plaintiffs' attorney Michael Caddell asked McLemore if he ever saw any guns or Davidians at the compound, to which he answered no. McLemore also said he never heard anyone yell "police'' or "ATF'' until the gunfire already had started.
Plaintiffs contend federal agents violated an approved plan on the standoff's final day, when they used tanks to punch holes in the building, contributed to or caused at least some of the three fires that engulfed the compound, and failed to have firefighting equipment at the scene.
A five-member jury will act only as an advisory panel to U.S. District Judge Walter Smith, who will deliver the verdict in the case. Separately, Smith will consider the question of whether federal agents shot at Davidians during the siege's fiery end.
WACO, Texas (AP) - A retired federal agent testified Friday that the Branch Davidians put up much stronger resistance than expected when he and other agents tried to serve warrants for cult leader David Koresh in 1993.
Kenneth King, formerly of the Bureau of Alcohol, Tobacco and Firearms, was shot six times and four other agents were killed when gunfire erupted during the failed raid at the Davidian complex. That led to the 51-day standoff that ended with the compound going up in flames.
Survivors and relatives of the more than 80 Davidians who died in the raid and the fire are suing the government for $675 million. King was the last government witness to testify as the second week the trial came to a close Friday.
King described how agents climbed a ladder and smashed through an upper window to gain access to the compound in order to serve the warrants for suspected gun violations.
``We started receiving heavy gunfire from inside the room,'' King said. ``I could remember seeing holes in the walls.''
After King was shot he moved onto the roof for cover, but was shot two more times through the roof. He lay in a courtyard inside the compound for 2 1/2 hours until a cease fire was reached and officers were able to drag him to safety.
He said he never pulled his gun from his holster, and hadn't expected anything more than a physical confrontation before the raid began. Other agents also testified they did not expect a gun battle.
``Not in our wildest dreams did we expect the resistance we got,'' King said.
Earlier, ATF agent Robert White testified that at most he expected ``fisticuff type of resistance.''
The plaintiffs' lead attorney, Michael Caddell, countered by asking whether he and other agents had their blood types written on their necks with a marker. White said yes.
The plaintiffs say the agents fired indiscriminately into the building. Government attorneys say the agents were ambushed by Davidians and were defending their lives.
But none of Friday's witnesses could say who fired first.
Under cross-examination by Caddell, King said he thought the first gunshots he heard came from agents shooting cult members' dogs, not from inside the building.
He also said his team didn't announce its entry into the upper-floor window because that was being handled by agents with warrants at the front door.
The government also called to the stand a former TV news reporter who witnessed most of the gun battle and said the shooting erupted as soon as he arrived.
``It just seemed to all start at once. I saw some of the law enforcement officers ... they were running for cover ... as they were running they appeared to be returning fire at the building,'' testified John McLemore, a former reporter for KWTX in Waco.
He also said he never heard anyone yell ``police'' or ``ATF'' until after the gunfire started.
U.S. District Judge Walter Smith recessed court at noon Friday for the holiday weekend. The trial will resume Wednesday morning.
A five-member jury will act only as an advisory panel to the judge, who will deliver the verdict. Separately, Smith will consider the question of whether agents shot at Davidians during the siege's fiery end.
WACO, Texas - A Treasury agent testified Thursday that gunfire exploded from behind the closed front doors of the Branch Davidians' complex as he approached to serve search and arrest warrants in 1993.
Kris Mayfield of the Bureau of Alcohol, Tobacco and Firearms said he dove for cover behind a compressor as bullets came through the doors and the wall beside it.
"It was like pieces of the door, splinters of the door ... were being blown out in my direction," Mayfield said. He said he could not see who was shooting at him but he fired back through the door and wall.
"I started returning fire where I was receiving fire," Mayfield said.
Mayfield was the last of five witnesses the government called to testify in the first day of its defense in the trial of wrongful death claims filed by the Davidians. Survivors of the siege and relatives of those who died claim actions by federal agents led to deaths and injuries.
Four agents and six Davidians were killed during the raid Feb. 28, and 20 more agents were wounded. About 80 Davidians died during a government tear-gas assault 51 days later.
The government's opening witnesses described the raid in which 75 agents disembarked from two cattle trailers as part of a "dynamic entry" to serve search and arrest warrants on the sect's leader, David Koresh.
One of the agents, Eric Evers, said he was running around the side of the complex when bullets started "dancing" around him.
"As soon as I came round the corner of the building - boom, I fell on my face. I had been shot in the chest," Evers said.
He hid in a ditch as bullets whizzed overhead. His protective vest had stopped two rounds, but Evers had been wounded in the shoulder and arm. He stayed in the ditch until a cease-fire was arranged.
Mayfield was with a group of other agents heading for the front of the complex. He saw Koresh standing, unarmed, in the open front doorway.
At that moment, Mayfield said several things happened almost simultaneously. He said he heard a "whoosh" as other agents used fire extinguishers to scare off dogs in the front yard; agents were yelling but he couldn't tell what they were saying; shots were coming from his left; the front double doors closed; and bullets started flying.
"There were shots coming out of a number of windows across the bottom floor," Mayfield said. "If somebody fired through a window or a wall, I would return fire there."
The gunfight continued intermittently for more than an hour. Mayfield said he fired at windows where he saw guns and once threw a "flashbang" distraction device in one of them. He saw one of his fellow agents, Robert Williams, jerk back with a fatal shot to the head.
The Branch Davidians had been alerted that agents were coming, but who fired the first shot during the raid is disputed. Mayfield said the agents knew they had lost the element of surprise but went ahead with the raid anyway because it was the agency's job to serve the warrants.
"We never ever expected to get shot at," Mayfield said. "The very most I expected was that a number of people would meet us at the front door and there were be a physical confrontation but not a gunfight."
Mayfield said he could hear people yelling from inside the complex, "get off our land. We will kill you." Eventually a cease-fire was arranged to allow the federal agents to back off. That led to the FBI siege that ended in a fire on April 19.
Three pilots testified that their Texas National Guard helicopters took gunfire as they approached the complex during the raid.
Government lawyers launched their defense after U.S. District Judge Walter Smith Jr. rejected their arguments that the Davidians had failed to prove their claims during more than eight days of testimony. The Davidians say government agents fired indiscriminately during the initial raid.
Their claims also allege that the FBI tank and tear gas attack violated Attorney General Janet Reno's orders by demolishing the complex and failing to have fire trucks available. The Davidians say the government had no firefighting plan.
In his argument to the judge, U.S. Attorney Mike Bradford said on-scene commanders had discretion under federal law to carry out their orders as they saw fit. His said this discretionary exception gave them the option to hold back fire trucks for fear of gunfire from the complex hitting firefighters. He said Reno ordered only that "sufficient" emergency equipment be available and did not specify what kind.
"The whole point is you don't have lawyers in court seven years later second-guessing that plan," Bradford said. He also said because the Davidians started the fire, the case should not be allowed to go forward.
Judge Smith disagreed, and the government began its defense, which is expected to last about a week.
WACO The gunbattle that began the 1993 Branch Davidian siege started with a distant pop of gunshots, followed by an explosion of bullets through the front door of the sect's compound, one federal agent testified Thursday.
Federal Bureau of Alcohol, Tobacco and Firearms agent Kris Mayfield said a hail of machine-gun fire ripped through the door within seconds after Branch Davidian leader David Koresh stared at approaching ATF agents and then slammed it shut.
"It was coming out fast," Mr. Mayfield said, adding that shots zigzagged through both sides of the double door and through parts of the adjoining walls. "It was like pieces of the door, splinters of the door was being blown out."
A second ATF agent, Eric Evers, said he was knocked to the ground by a gunshot as he was running around the side of the building, and then saw the ground dance with bullets as he tried to avoid the line of fire.
"As soon as I came around the corner of this fence, I heard this loud boom. I fell forward, face forward. I'd been shot in my chest," said Mr. Evers, who was wounded in the forearm and shoulder when the bullet bounced off his bulletproof vest.
After briefly blacking out, he said he regained consciousness, thinking "'You need to get up. These guys are shooting at you. These guys are going to put a bullet in your head.'" The two agents were among the government's first witnesses in its defense against the Branch Davidians' $675 million wrongful-death lawsuit. Attorneys for surviving sect members and relatives of those who died during the 51-day standoff rested their cases early Thursday morning.
U.S. District Judge Walter S. Smith rejected government arguments that the plaintiffs had failed to offer enough evidence of government negligence or wrongdoing to allow their case to go to a jury. After hearing a lengthy oral argument from U.S. Attorney Michael Bradford of Beaumont, the judge tersely denied the government's dismissal motion without waiting to hear a plaintiff response.
The lawsuit alleges that ATF agents used excessive force and fired indiscriminately during their Feb. 28, 1993, raid on the compound. It charges that FBI commanders then failed to follow a tear gas plan approved by Attorney General Janet Reno to try to force the Branch Davidians to surrender. The lawsuit alleges that the FBI's Waco commanders ordered tanks that were used to spray in tear gas to prematurely demolish parts of the compound, thereby touching off a blaze that leveled the building.
The lawsuit also charges that the on-scene commanders violated Ms. Reno's specific directive for adequate emergency equipment when they failed to obtain fire equipment and decided they wouldn't try to fight a fire if one broke out during the April 19, 1993, assault. More than 80 Branch Davidians died amid the blaze.
Government lawyers say the allegations are baseless, countering that Branch Davidians ambushed ATF agents as they came to search the compound and arrest Mr. Koresh for weapons violations. Four ATF agents and six Davidians died that day.
"They have not proven that the ATF initiated this and was provoking this situation rather than responding to it," Mr. Bradford told the judge Thursday morning. "They have not proven that there is indiscriminate gunfire."
Lawyers for the sect have disputed that, noting that sect members who have offered testimony have said that the first shots they heard sounded like they were coming from outside the compound building.
On Thursday, lead plaintiffs' lawyer Michael Caddell tried to suggest that Mr. Evers could have inadvertently started the gunfight with a discharge from his own handgun.
"It'd be horrible to feel responsible for unleashing that," Mr. Caddell said after reciting the number of people injured and killed on both sides.
"I didn't unleash anything," Mr. Evers responded.
Mr. Evers testified that he had his pistol in a holster and was carrying a baton when the first gunshots rang out. He said he didn't run toward the compound carrying his gun because he was assigned to subdue any men who were outside working and that there were two agents running behind him who were providing him with adequate cover.
He said he only drew his gun after jumping into a ditch, where he lay bleeding for almost three hours before the gunfight subsided. He added that he never fired, even when a sect member charged at an agent coming to his rescue after a cease-fire.
"You knew that these people had guns, bad guns, bombs and knew how to use 'em?" Mr. Caddell prodded, noting that all of the ATF agents had been warned that the sect had been tipped off to their raid. "You want the jury to believe that you were carrying your baton. ...You didn't unholster your weapon?"
Mr. Caddell also noted that the agent's first statement to a Texas Ranger, recorded 16 days after the raid, included Mr. Evers' description of running "to take a cover position" before any gunshots rang out. "I 'covered down' on any windows and doors on the side of the structure," he told the Ranger in March 1993.
In that statement, the agent added that he assumed the first shots he heard came from agents shooting the compound's dogs, because "they had told us to be ready for gunfire or bangs or flash bangs."
"You don't 'cover down' with a baton, do you?" Mr. Caddell prodded, prompting Mr. Evers to ask if there was "any chance" he might be questioned instead on a later statement in which he removed any reference to the phrase, "cover down."
But he later conceded that "'cover down' is where I'm holding a firearm down at somebody."
Surprised by gunfire
Under government questioning, both agents said they were surprised at hearing the first gunshots, even though they knew that the Branch Davidians knew they were coming.
Asked why they went ahead with the raid after learning the sect had been warned, Mr. Mayfield said, "It was still our job to serve warrants, and we never ever expected to get shot at doing our job and our duty."
Four Texas National Guard pilots also testified Thursday, describing taking ground gunfire as they ferried ATF raid commanders toward the compound in three National Guard helicopters during the Feb. 28 raid. Each said their aircraft did not return fire but took six gunshots before landing.
Col William G. Petit said the largest aircraft, a Blackhawk flying in the middle of their formation, reported taking fire as they got within 1,200 or 1,500 feet from the building.
Blackhawk pilot Scott Huntley confirmed under cross-examination that he heard seven or eight gunshots explode "from out his left door" just after hearing one round slam into his aircraft. "I heard what sounded to me like seven or eight shots coming from a small caliber weapon," he said. "It was like a pop, pop, pop, pop, pop."
But he resisted Mr. Caddell's suggestion that they could have come from an ATF agent who was sitting behind him. "I knew it wasn't," the pilot responded, adding that he said he believed the sounds came from a tree line several hundred yards from the compound. While he conceded those shots could not have come from the compound, he said: "the shot that hit the helicopter came from Mount Carmel."
Government lawyers displayed a gashed metal panel from one of the damaged helicopters. The five-member jury also was shown the bullet-riddled front door from the compound, which bore four incoming and nine outgoing bullet holes. The adjoining double door was never found after the fire.
But Mr. Mayfield admitted under cross-examination that there would be no way to tell when any of the bullet holes were made.
"Which of these bullet holes were in the door on Feb. 28, and which were put in sometime later, like say April 19," Mr. Caddell asked. "You think somebody might have shot through the door at a tank as a tank was about to come through that door?"
"I wouldn't be able to determine," the agent responded.
The plaintiffs in the Branch Davidians' wrongful-death lawsuit against the government are fighting an attempt to depict Derek Lovelock as having helped set the fires that destroyed Mount Carmel.
Lovelock was one of nine Davidians to escape the blaze that led to the deaths of David Koresh and 75 followers.
The government accused Lovelock of implicating himself by refusing to read the alleged statements about lighting a fire picked up by surveillance devices inside Mount Carmel on April 19, 1993, according to Houston attorney Mike Caddell, lead plaintiffs attorney.
The government wants U.S. District Judge Walter S. Smith Jr. of Waco to interpret Lovelock's refusal as proof he made the statements, Caddell said.
"They just sprung this on the guy," Caddell said. "He was supposed to go back to England the next day. He didn't know what to do. He didn't have a criminal lawyer. He had to get advice from a civil attorney. He went ahead and gave his deposition, which some criminal lawyers have said was a stupid thing to do."
Government officials refused to comment on the pending matter.
In a motion asking Smith to block the government's legal strategy, Caddell accused the government of "ambushing" Lovelock.
"The government could have requested this sample through written discovery, giving Lovelock and his counsel a reasonable opportunity and time to consider and discuss it," Caddell wrote in his motion. "Instead, his civil attorney, who has no criminal law experience, was forced to recess the deposition, to hold a quick conference and provide some superficial advice to a frightened and confused client."
Caddell said the government's motive in requesting a voice sample from Lovelock was clear.
"It expected Lovelock to refuse, and his counsel to so advise him, because of the manner in which the request was made" Caddell wrote. "It then knew it could attempt to get a presumption against Lovelock and try to use that to hurt all of the Davidians' cases."
FBI officials have testified that the surveillance devices at Mount Carmel delivered into the building through items given to the Davidians picked up the voices of various Davidians saying such things as, "Spread the fuel," "Have you poured it yet?" "I already poured it," and "Light the fire."
In his motion, Caddell said Lovelock was not afraid because he made the statements heard in the government bug tapes.
"Rather, it was the government's approach to this request which frightened him," Caddell wrote. "Mr. Lovelock's previous experience with the U.S. government was the FBI's assaults and the siege at Mount Carmel. At his deposition was a representative of the same FBI. Whether the court finds Lovelock's fears and suspicions of the federal government reasonable, they are real to him."
The government should not be allowed to profit through its "discovery stunt," Caddell said in his motion.
"Ultimately, Mr. Lovelock is no different than the FBI agents who refused to take a polygraph exam," Caddell wrote. "Plaintiffs have not attempted to use their refusal to establish substantive points, and the court should not permit the government to do that with Mr. Lovelock."
Caddell said if the court accepts the government's presumption regarding Lovelock, he will be forced to call James Touhey, the government attorney who deposed Lovelock. Touhey would be asked if he read Lovelock his rights, Caddell said, and whether the matter was turned over to a U.S. attorney for evaluation of prosecution.
"The Supreme Court on Monday reaffirmed the Miranda decision," Caddell said. "They should have read the guy his rights if they wanted to do something like that."
Jurors in the Branch Davidian wrongful death lawsuit shifted their focus Thursday from inside the sect's compound to the outside as the government began presenting its side of the case.
Helicopter crew members who escaped Davidian gunfire and a Bureau of Alcohol, Tobacco and Firearms agent who was wounded during the Feb. 28, 1993, raid at Mount Carmel opened government testimony.
After plaintiffs' attorneys concluded their cases Thursday morning, U.S. District Judge Walter S. Smith Jr. rejected a motion by government lawyers to dismiss the lawsuit by Branch Davidian survivors and family members.
In testimony Thursday afternoon, ATF agents Eric Evers and Kris Mayfield testified that they never expected to be met by such strong resistance as they arrived at David Koresh's compound to arrest the sect leader on weapons violations charges and search the building.
Evers, who was wounded, told jurors that he was riding in the cab of the first of two pickups that pulled cattle trailers filled with ATF agents up to the front door of the complex. Mayfield was riding in the back of the second trailer, he said.
Evers' assignment that morning was to run around to the side of the compound and handcuff anyone who was working near an underground pit area, he said. Mayfield was part of the dynamic entry team assigned to rush the front door and announce the agents' intentions.
Mayfield told jurors that he saw an unarmed Koresh for an instant standing in the doorway as he and other agents approached. He said he didn't hear Koresh say anything before the door closed and automatic gunfire shot through the closed door and front wall. Seconds before that, Mayfield said he had heard gunfire on the north side of the compound.
Mayfield, who said he didn't have his pistol drawn when he ran up to the front door, leaped behind a piece of equipment near the front door for cover and said he drew his weapon and returned fire through the front door and a nearby window.
Government attorney Marie Hagen asked why he didn't have his weapon drawn sooner.
"We didn't expect to have anybody ambush us or shoot at us," he said.
Government attorneys carried half of the mangled double front door over to within a few feet of the five-member jury to provide a closer view of the bullet holes. Mayfield said that the bullet holes in the door indicate bullets that traveled in both directions.
Government officials have said they misplaced the right side of the double front door, and Davidian defense attorneys during the criminal trial in San Antonio got a lot of mileage out of speculating why the other half of the door is missing.
Mayfield said the only time he fired was when he saw bullets being directed toward him or other agents. He said he could not see who was firing, but returned fire in the general direction from which the bullets came.
"We were taking a lot of machine-gun fire from the window just above where I was and I fired several rounds into that window so whoever was in there would back off and quit firing," Mayfield said. "It seemed that only caused the gunfire to intensify."
He said he attempted to throw a flash-bang device through the window, but it struck the wall and bounced off.
Hagen asked Mayfield who he saw after the ceasefire was declared and the ATF walked out.
"I saw Steve Willis, a friend of mine," Mayfield said. "I wasn't able to talk to him. He was dead."
Lead plaintiffs' attorney Mike Caddell asked Mayfield during cross-examination to walk over to the controversial front door.
"A little worse for wear," Caddell said. "It didn't look like that on Feb. 28, did it?"
"No, sir," Mayfield said.
Caddell asked Mayfield to count the number of incoming bullet holes in the left side of door. Mayfield counted four incoming bullet holes.
Flipping the door, Caddell asked Mayfield, "Do those look like tank treads to you? Something ran over it."
"Yes, sir," Mayfield said.
Caddell then asked if a Davidian might have fired through the door as a tank barrelled over it. Hagen, however, objected before Mayfield could answer. Smith agreed that the question called for speculation.
Hagen later had Mayfield count the number of outgoing bullet holes in the door. There were 10.
Caddell showed the court a photograph taken during the siege that showed the missing right side of the door. It was peppered with bullet holes. That's the side of the door that Koresh held open when he greeted the ATF.
Surviving Davidians claim it was proof that ATF agents were the aggressors on the day of the raid. Houston attorney Dick DeGuerin, Koresh's attorney during the siege, testified earlier that all the bullet holes in the right side of the door were from incoming shots.
After court recessed, Caddell said the government's introduction of the door backfired.
"Bringing the left-half of the door into the courtroom was not a good move," Caddell said. "It's got tank treads on it. It's got bullet holes that its own witness admits are bigger than the Davidian bullet holes."
And, Caddell said, it raises questions as to what happened to the other side of the door.
"Clearly, I think the right-hand door was lost on purpose," Caddell said. "I don't think there's any other reasonable conclusion."
Evers said he was felled by a shotgun blast that struck him in the chest as he rounded the corner of the building and headed toward the pit. He said he took two rounds that struck his bullet-proof vest, one that struck his shoulder and one to the right wrist.
"I thought, You need to get up. You need to get up. These guys are shooting real bullets. This isn't a game. They are going to drop a bullet on my head," Evers said.
Four ATF agents were killed and more than 20 were wounded during the raid. Five Branch Davidians were killed that morning and another was killed in a separate incident later that afternoon. Others were wounded, including Koresh.
Evers said he climbed into a ditch and stayed there until the ceasefire about 21/2 hours later.
In other testimony, three members of the Texas National Guard testified that they were riding in three helicopters meant to serve as diversions during the raid. All said their aircrafts drew gunfire from the Davidians, forcing them to land nearby.
While ATF agents on board one of the helicopters carried pistols, no shots were fired from the helicopters, they said.
Government testimony will resume this morning.
Waco, FBI and the Branch Davidians: Updates
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