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"Government presents evidence at trial that Branch Davidians set fire to their complex"

by William H. Freivogel ("St. Louis Post-Dispatch," July 8, 2000)

WACO, Texas - * Texas Rangers say they found a makeshift torch and cans used to store flammable liquid in a dining room, one of the locations where the fatal fire began. Agents say they rescued a woman who is suing them.
The government presented evidence Friday that the Branch Davidians set fire to their complex and that FBI agents rescued those escaping the flames, including a woman who is suing the government.
The testimony was given at the end of the third week of the trial of the civil lawsuit filed by the Branch Davidians against the government. The Davidians are trying to hold the government responsible for the deaths of some of the approximately 80 Davidians who died during the 1993 siege.
On Monday, the government plans to play tapes of unidentified Davidians inside the complex talking about setting the fire.
Texas Rangers testified Friday that they found a makeshift torch and four scorched cans used to store flammable liquids in the dining room, one of the locations where the fatal fire began.
Sgt. Bobby Grubbs testified that Clive Doyle, one of the Davidian survivors, told him in the hospital the day after the fire that "the fire was started with Coleman fuel. He said that Coleman fuel had been distributed through the compound." But Doyle, whose hands were badly burned, would not say who started the fire, Grubbs testified.
Mike Caddell, the main lawyer for the Davidians, pointed out during cross-examination that lab reports on the "torch" had not shown evidence of flammable liquids and that the Davidians used Coleman fuel for lanterns. Lanterns were found in the dining room near the burned gas cans.
Mark E. Tilton, of the FBI's Hostage Rescue Team, described the beginning of the fire, just after noon April 19. A converted tank that the FBI used to insert tear gas into the complex had just torn open part of the front. Tilton, who was in a nearby Bradley Fighting Vehicle, testified that he could see that a staircase in the complex remained intact.
Caddell has maintained that tanks knocking into the building had blocked the Davidians' escape.
Tilton described how the crew of his vehicle rescued Marjorie Thomas, one of the survivors who is now suing the government. One agent used a fire extinguisher to put out the fire on Thomas' body. When it reignited, Tilton said he used a square of carpet to beat it out.
Earlier in the day, government lawyers read into the record the statements made by 28 agents from the Bureau of Alcohol Tobacco and Firearms after the raid Feb. 28 that began the 51-day siege. The statements had not previously been public. All of the agents reported that the Davidians fired on them as they approached the complex.
Roland Ballesteros, the first ATF agent to reach the door, testified in court that he confronted David Koresh, who was standing in the door. "I yelled 'police' a couple of times. He asked what was going on. I said, 'Police, this is a search warrant. Lay down.'"
Ballesteros testified that Koresh slammed the door. "I tried to open the front door," he said. "At that time, there was a burst of gunfire. I felt a burning sensation and looked down and saw my thumb had been shot essentially in half."
Ballesteros dived off the porch as automatic weapon fire blew through one of the front doors. That door is missing from evidence. The Davidians maintain it only had bullet holes from the outside going into the building.

"Rangers testify of gas, torch"

by Lee Hancock ("Dallas Morning News," July 8, 2000)

WACO – Texas Rangers said that they found a blackened torch and four fuel cans in the Branch Davidian compound's dining room and were told by a surviving sect member that the fire that consumed the building was fueled by Coleman gas.
An FBI agent who was just outside the compound on the day it burned also described Friday how he and other agents tried to rescue sect members during the blaze. At one point, the agent testified, he left an armored vehicle to extinguish the flaming clothes of Branch Davidian Marjorie Thomas, a fire survivor and a plaintiff in the sect's wrongful-death lawsuit.
FBI Agent Mark E. Tilton also acknowledged that he never saw anyone inside start a fire and never detected any gunfire in the hours before the blaze as agents assaulted the building with tear gas.
One Ranger also conceded under cross-examination that no flammable substance was detected on the torch found after the fire, and another acknowledged that some of the gas cans were found near two piles of lantern parts. Surviving Branch Davidians have said they used Coleman lanterns as a light source in the compound and also used Coleman stoves to cook their food after authorities cut their electricity.
The testimony came as government lawyers began focusing on what caused the blaze that gutted the compound on April 19, 1993. Government fire investigators ruled that it began in three places, including the first-floor dining room area. More than 80 Branch Davidians died amid the fire, which ended a 51-day standoff with the federal government.
Lawyers representing survivors and relatives of those who died have challenged the government's fire investigation as hopelessly flawed. Their $675 million wrongful-death lawsuit alleges that government actions sparked or helped spread the fire.
Texas Ranger Bobby Grubbs testified that he was assigned to interview surviving Branch Davidian Clive Doyle at Parkland Memorial Hospital in Dallas on the day after the compound fire and managed to coax some information from him about what had happened. Mr. Doyle, one of nine fire survivors and one of the plaintiffs in the lawsuit, had been flown to Parkland after the fire to be treated for third-degree burns on his hands.
"He told us the fire was started with Coleman fuel. He told us that Coleman fuel had been distributed throughout the compound," Ranger Grubbs said.
He added that the 59-year-old Branch Davidian also told how his hands "were actually in flames" before he managed to get out of the burning building. Mr.. Doyle denied starting the fire himself, but refused to answer when asked whether it was accidental or whether he knew who might have ignited it.
"He told us he needed to talk to his attorney first," Ranger Grubbs said. "I felt like he had information. He just wouldn't give it to us."
The Ranger said he was also bothered that Mr. Doyle failed to mention anything about his 18-year-old daughter Shari, who died in the fire, but seemed particularly agitated about losing his pet dog in the blaze. "He put a lot more emphasis on his dog than he did his daughter," Ranger Grubbs said. "That made a lasting impression on me."
Mr. Doyle's elderly mother, Edna Doyle, who lives with her son at the site of the ruined compound, was in the courtroom Friday and repeatedly muttered "you're a liar" during the ranger's testimony.
Mr. Doyle testified last week that his hands were burned as he was driven to the floor of the compound by the heat of the fire. He said he refused to answer the Rangers' questions when they tried to interview him at Parkland, in part because he was heavily medicated at the time.
He also testified that he knew of "no plan" for setting a fire and never saw anyone doing anything to start one before he escaped through a hole in the compound's chapel wall. But after Mr. Doyle acknowledged that he had worn a blue nylon jacket on April 19, a government attorney grilled him on why its sleeves were covered with flammable liquids.
"It could have come from constantly filling lanterns. ... I don't know," Mr. Doyle testified.
One Houston arson investigator involved in the Waco fire inquiry told Congress in 1995 that the substance on Mr. Doyle's jacket was charcoal lighter fluid.
The '94 criminal trial
Mr. Doyle was among 11 sect members tried in a 1994 criminal trial. He was among three acquitted of all charges, in part because prosecutors could never prove he had or used a weapon during the siege.
But with his testimony about having worn a blue jacket found just outside the compound on April 19, government lawyers have been able to prove that he was carrying one hand grenade in his pocket. Three bullets were also found in the pocket of a camouflage jacket he also discarded after fleeing the fire, and government witnesses testified earlier this week that a second hand grenade was found just under his blue nylon jacket.
One of the eight Branch Davidians found guilty of weapons and manslaughter charges in 1994 was convicted on the strength of evidence that he carried a hand grenade out of the burning building at the end of the siege.
Accusing the FBI
While questioning government witnesses in the wrongful-death trial, lead plaintiffs attorney Michael Caddell has repeatedly tried to suggest that FBI agents might have sparked the fire in the dining room by firing in pyrotechnic tear-gas rounds. The fire broke out about six hours after FBI agents began bashing the building with tanks and spraying in tear gas to try to force the sect to surrender.
On Friday, Mr. Caddell got Texas Ranger Lane Aiken to acknowledge that the torch was only found after search teams had finished combing through rubble in the dining room and started a cleanup operation.
Ranger Aiken acknowledged that no one tried to pinpoint where they found what they believed was a torch – a broken broom or mop handle wrapped in cloth on one end and stuck in mud near the back wall of the dining room.
Though he conceded it had no detectable trace of accelerants, Ranger Aiken said, "it looks like a torch to me. ... I can't imagine it being used as anything else."
Friday's proceedings marked the end of more than a week of government testimony on the gunbattle that sparked the 1993 siege. Shooting erupted as 76 heavily armed ATF agents in paramilitary gear arrived at the compound on the morning of Feb. 28, 1993, to try to search for illegal weapons and arrest Branch Davidian leader David Koresh. Four ATF agents and six Branch Davidians died that day.
The wrongful-death lawsuit alleges that ATF agents fired indiscriminately. But the nine agents called to testify by the government and more than 20 agents whose post-raid statements were read to jurors have insisted that they were ambushed and fired only to defend themselves. All of the agents have said that the compound erupted in gunfire shortly after they arrived and that they were pinned down for several hours by gunshots that blasted through first- and second-story windows, doors and even the building's walls.
The final ATF agent called to testify on Friday, Houston Agent Roland Ballesteros, said he had only taken one or two steps out of the cattle trailer that brought him and other agents to the compound when he heard gunshots. He added that the shots rang out steadily as he ran toward the building, and he said the sound came from the compound.
Mr. Ballesteros testified Friday that he initially thought the shots came from agents subduing the sect's dogs. But he added that he decided the shots must be coming from the compound after noticing that agents assigned to that task were running near him and weren't firing weapons. As he approached the front door, Mr. Ballesteros said, he saw Mr. Koresh open it. "I was yelling at him. I shouted 'police' a couple of times. I observed Mr. Koresh look toward his left. ... and [he] turned back and asked me, 'What's going on?'" he said, adding that he responded, "Search warrant! Lay down!"
He said Mr. Koresh smiled and slammed the door, and it immediately exploded with outcoming gunshots. As he reached for the door, the agent said, one bullet nearly severed his thumb.
He said he dived for cover and lay on his face for more than two hours under a window constantly erupting in gunfire. He said he never returned fire.
Under questioning
Prompted by U.S. Attorney Mike Bradford, Mr. Ballesteros told jurors that he had brought Snickers candy bars in his raid vest that day in hopes that he might calm any Branch Davidians in the compound who were frightened by the ATF operation.
But under cross-examination, Mr. Ballesteros conceded that his testimony included notable differences from his seven previous sworn statements about the incident. Citing 10 discrepancies between his Friday testimony and his earlier statements, Mr. Caddell noted that the agent said only days after the gunbattle that he had heard a few distant, faint gunshots when he ran through a gate near the compound front door. He noted that the agent had said in his earliest statements that he believed the first gunshots he heard were from the ATF's dog team.
All of the other ATF agents who have testified in the wrongful-death trial said they did not know who started the shooting. Most said the first shots they heard were sporadic pops of semi-automatic fire that they thought were from their dog team.
No 'peaceful entry'
Mr. Ballesteros finally conceded Friday he also didn't know where or who fired first. He also acknowledged that he and the other agents involved in the raid never tried "a peaceful entry" into the building. The government's opening argument asserted that the ATF was trying to peacefully serve a warrant when they were ambushed.
The agent acknowledged that he was carrying a shotgun with a barrel so short that it would be considered illegal for civilians to own without a special federal license, and he said he pointed it "in the general direction" of Mr. Koresh as he appeared at the doorway.
The agent also conceded that the raiding team had planned and even practiced retreating from the building if they did hear gunfire that didn't come from their agents.
"And yet, despite your training, despite your practice, you didn't retreat?" Mr. Caddell said.
"No, sir," the agent responded.

"Government says it did not try to trick Davidian into implicating himself in fire"

by Mark England ("Waco Tribune-Herald," July 8, 2000)

The government denied trying to "trick" a plaintiff in the Branch Davidians' $675 million wrongful-death lawsuit into implicating himself in setting the fire that destroyed Mount Carmel seven years ago.
In a motion filed with U.S. District Judge Walter S. Smith Jr. of Waco, the government said it's entitled to an adverse inference that Derek Lovelock helped start the fire at Mount Carmel because of his refusal to read alleged statements about lighting a fire that were picked up by surveillance devices planted inside the building.
Lovelock, a British resident, was one of nine Davidians to escape the fire that led to the deaths of David Koresh and 75 followers.
"... the plaintiffs were on notice of the United States' position that the Branch Davidians started the fire, and they had access to the tapes prior to the deposition," the government motion said. "Thus, plaintiffs' claim of unfair prejudice and surprise or lack of notice is baseless."
Mike Caddell, lead plaintiffs attorney, said Lovelock did not help start the fire. His refusal to say various phrases - such as, "Spread the fuel" and "Light the fire" - merely reflect his fear of the United States government, Caddell said.
Lovelock's previous experience with the government came during the siege, Caddell said.
Caddell accused the government in a motion filed two weeks ago of deliberately springing its request on Lovelock. It expected Lovelock to refuse to repeat what was on the tape, Caddell said, allowing government attorneys to ask the court for an adverse inference.
But a government motion filed Thursday claims that Lovelock could have just declined to say the words on the tape. Instead, Lovelock invoked his right not to incriminate himself.
It acknowledges the right to invoke the Fifth Amendment, the government stated. However, when that privilege is asserted during a civil case, a court has the right to draw negative inferences, according to the government motion.
The government accused the plaintiffs of trying to use the Fifth Amendment privilege as "both a shield and a sword" to present only favorable testimony from Lovelock.
Partial transcripts of Lovelock's deposition show that a government attorney warned Lovelock of his rights before seeking to depose him. Plaintiffs had argued otherwise. Government attorney James Touhey told Lovelock, "... if you said something or testified to something that was incriminating, that could be used against you in a criminal prosecution. Do you understand that?"
After consulting with his attorney, Joe Phillips, who works for Caddell's firm, Lovelock took the Fifth Amendment.

"Government seeks permission to use surveillance tapes in Davidian lawsuit trial"

by Mark England ("Waco Tribune-Herald," July 8, 2000)

A motion filed Friday asked Waco's federal court to permit the playing ofsurveillance tapes that allegedly recorded various Branch Davidians discussing setting fire to Mount Carmel.
Government attorneys asked U.S. District Judge Walter S. Smith Jr. to let the advisory jury in the Davidians' $675 million wrongful-death lawsuit against the government hear the voices of unnamed Davidians allegedly say such things as "Pour the fuel," and "Light the fire."
The April 19, 1993 fire led to the deaths of David Koresh and 75 followers.
Plaintiffs opposed the playing of the surveillance tapes - picked up by tiny eavesdropping devices slipped into Mount Carmel by the government inside objects such as milk cartons - in a June 29 motion, arguing among other things that it amounted to the introduction of hearsay testimony.
The government denied the charge in its four-page motion:
"Plaintiffs' arguments that the information on the tapes is hearsay is incorrect, because the recorded statements - for example, about spreading the fuel and starting the fires - are admissions (analogous ) ... at a minimum, to statements by co-conspirators."
Even to the extent the surveillance tapes are hearsay, they fall within applicable hearsay exceptions, according to the government motion.
"For example, statements about pouring fuel or lighting fires reveal the state of mind, intent, plan and motives of the individuals recorded," the motion said. "... Some of the statements are excited utterances and present sense impressions as they recount simultaneously, or virtually simultaneously, actions and observations within the compound relating to the preparation for the fire and the fire."
Plaintiffs' attorneys Mike Caddell and Cynthia Chapman also argued in their motion that the surveillance tapes should not be played unless the government can identify the speakers.
"Absent voice authentication, the tapes are not admissible for any purpose," they argued. "At a minimum, the defendant must present testimony from one or more witnesses able to identify the speakers based on his familiarity with their voices."
The government, however, countered in Friday's motion that the Federal Rules of Evidence allow the introduction of statements made while a declarant (the person speaking) was "perceiving the event or condition ... regardless of the declarant."
A government spokesman said that can mean whether an individual's identity was known or not.
"Thus, plaintiffs' allegations that the tapes are inadmissible because the speakers from within Mount Carmel are not identified must fail," the government's motion stated.
Caddell said Friday that the government may present surveillance tapes that captured the voices of people not inside Mount Carmel on the day of the fire.. Government officials have said some of the tapes they want to play are recorded conversations that took place before April 19, 1993.
"We don't know," Caddell said. "The people on the tape may be Brad Branch and Kevin Whitecliff who were not even in the building on April 19th. They've had seven years to figure out who these people are."
Chapman said the government wants to use the tapes to prejudice the advisory jury against all the Davidians.
"If you notice, they never have a child talking," she said. "If it's a female, she's saying something like, 'Hi.' It's a couple of unidentified males talking."
Government co-counsel Michael Bradford said he believes the surveillance tapes are relevant regardless of when the conversations occurred.
"The fact that people inside the compound were discussing setting fires is significant evidence to present to the jury," he said.

Waco, FBI and the Branch Davidians: Updates

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