div CESNURCenter for Studies on New Religions


"Davidians: Suit Should Include Agent"

by Michelle Mittelstadt (Associated Press, March 28, 2000)

WASHINGTON (AP) - An FBI sharpshooter who is the only named defendant in the wrongful-death lawsuit filed against the federal government by relatives of Branch Davidians killed in the 1993 Waco siege should not be dismissed from the case, one set of Davidians said in a court filing Monday.
Most of the plaintiffs, who are represented by lead counsel Michael Caddell, moved earlier this month to dismiss their case against Lon Horiuchi, saying there was ``no credible'' evidence he fired shots at the Davidians.
But another group of Davidians, represented by former Attorney General Ramsey Clark, said in a filing Monday in federal court in Waco, Texas, that it would be ``premature'' to dismiss Horiuchi, who gained notoriety in 1992 when he killed the wife of white separatist Randy Weaver during a standoff at Ruby Ridge, Idaho.
``The facts are not fully known and are being developed,'' the motion says, noting the government's conduct at Waco remains under ``intense investigation.''
``It may well turn out that government agents fired at Branch Davidians on April 19, 1993, and engaged in other serious misconduct, including coverup and spoliation of evidence,'' the Clark-represented group contends, offering no evidence to back up their charges.
Horiuchi's government lawyers say there is not a ``shred of evidence'' he fired his weapon on April 19.
Federal officials say their agents fired no shots on the final day of the seven-week siege, which ended when the Davidians' retreat erupted into flames several hours into an FBI tear-gas operation.
Davidian leader David Koresh and some 80 followers died during the inferno, some from the fire, others from gunshot wounds. The government contends they died by their own hand.
The plaintiffs, whose civil suit goes to trial in mid-May, argue that FBI infrared surveillance tapes taken during the final hours offer definitive proof of government gunfire into the building as it burned - a charge the government denies.
The Caddell-represented plaintiffs, in moving to dismiss Horiuchi, said a forensic analysis of spent shell casings found at the outpost occupied by Horiuchi's sniper team indicate the bullets were ``most likely'' fired by agents of the Bureau of Alcohol, Tobacco and Firearms during the initial Feb. 28 gun battle that began the 51-day siege.
Separately Monday, the government asked U.S. District Judge Walter Smith for temporary custody of the FBI's 1993 infrared videotapes, which currently are in the hands of Waco special counsel John Danforth. The move follows Caddell's accusation that some of the evidence turned over by the government has been withheld, tampered with or destroyed.
``Although many of the allegations are baseless on their face, in order to respond, the United States must have its own experts examine the (Forward Looking Infrared) videotapes,'' the motion says.

"Branch Davidian lawyers will get their chance to question Reno"

by Terry Ganey ("The St. Louis Post-Dispatch", March 26, 2000)

Lawyers for the Branch Davidian survivors have longed to know what Attorney General Janet Reno was thinking when she approved a tank and tear-gas assault at Waco in 1993. They will get their chance to find out during a deposition scheduled for Tuesday in Washington.
Mike Caddell, the lead lawyer for the survivors, and Jim Brannon, who represents the estates of three deceased children of sect leader David Koresh, will question Reno about how much authority she gave her FBI commanders at the scene.
One of the key elements of the wrongful death suit against the government is the claim that Jeff Jamar, the special agent in charge of the FBI's Waco operation, and Richard Rogers, the head of the agency's hostage rescue team, went beyond an eviction plan that Reno had approved.
The plan called for the gradual insertion of tear gas over a 48-hour period by converted tanks driven by FBI agents. The tanks used booms to punch holes in the structure to insert the gas. But less than six hours into the plan, the tanks began tearing down the building. A fire broke out, and about 80 Davidians died from the effects of the fire or from gunshot wounds.
Caddell said last week that Jamar and Rogers were frustrated because the Davidians were not surrendering. He said they accelerated Reno's plan, ordering the tanks to destroy the complex.
"I will be stunned if the attorney general says they had the implied authority to do what they did," Caddell said.
Lawyers for the government have said Jamar and Rogers had discretion to adjust the eviction plan depending on conditions. The lawyers have argued that the decision to run tanks through the building was a judgment call based on law enforcement policy and consideration of resources, risk, danger and the urgency of the mission.
Reno has been dogged by the events at Waco for the past seven years. She had just been appointed by President Bill Clinton when she was confronted with making a decision about how to force the Branch Davidians to surrender. They had been holed up in the church's complex since a raid on Feb. 28, 1993, by the Bureau of Alcohol, Tobacco and Firearms left four agents and six members of the sect dead. After the siege ended, Reno said she took full responsibility for the outcome.

"Davidian test copies criticized: Lawyers from both sides want to look at original recordings"

by Lee Hancock ("The Dallas Morning News", March 25, 2000)

Forget the dueling news conferences and public victory dances that followed last weekend's pivotal Branch Davidian infrared field test.
Only five days after all the hoopla at Fort Hood, lawyers on both sides in the Davidian case quietly acknowledged Friday that their experts can't tell what the court-ordered test shows without better copies of the test data.
They filed a rare joint motion Friday asking U.S. District Judge Walter S. Smith of Waco to give both sides access to the actual recordings from Fort Hood because the digitally computerized copies of the test data they were given last Sunday are too poor for valid scientific analysis.
That is a notable shift from Monday, when lawyers for the government and the sect each announced that the test data conclusively backed their opposing sides in the wrongful-death lawsuit arising from the 1993 Waco siege.
The motion also raises questions about whether last week's test at Fort Hood can ultimately sort out whether repeated flashes recorded on an infrared video at the end of the 1993 standoff came from government gunshots or ground debris. The test involved firing test shots with weapons similar to those carried by both sides in the 1993 standoff and maneuvering with personnel and armored vehicles while two airborne forward-looking-infrared cameras filmed overhead.
Government officials said earlier in the week that they were somewhat disappointed in the quality of the test data but confident that it would prove their assertion that no government agents fired a shot at the Davidian compound on April 19, 1993.
U.S. Attorney Mike Bradford of Beaumont, one of the government's lead lawyers, said Friday that, "There's no way to say," whether the government's initial assessment of the test might change until after federal lawyers and experts get access to the original test recordings. "I have no reason to believe it would change our analysis or assessment, but you can't do an analysis until you have the entire tape. . . . We don't know how much [data] is missing."
Michael Caddell, lead lawyer for families of sect members who brought the wrongful-death case, said Friday that he stands by his initial assessment that the test data clearly demonstrated that government gunfire occurred before the Davidian compound burned. More than 80 sect members died amid the blaze, and lawyers for the sect have alleged that the government gunfire kept at least some from escaping - a charge that the government's lawyers have vehemently denied.
Mr. Caddell added Friday that he and lawyers for the government have "had candid conversations" since the test and have voiced shared concerns about the quality of what they got from Sunday's test.
"We wouldn't have a joint motion to get with the original tapes if either side was completely happy with what we received. If either side thought that they could make their case with what they had, they wouldn't be asking for the original data," he said.
Friday's motion included a lengthy statement by an FBI recording expert explaining why the computer technology used to make copies of the test recordings took out "significant" amounts of information.
Images transferred
A British-based infrared firm appointed by Judge Smith to oversee the test took the analog videotapes recorded by two airborne infrared cameras and transferred their images to computer hard drives for both sides in the case.
To make the transfer, the experts used a computer format known as MPEG-2, a format that compresses video images into relatively small digital computer files. The process is commonly used to transfer full-length movies onto DVD disks and to send video images over the Internet.
"Based on my experience, I believe that a significant loss of data occurs in the transfer of data . . . and that this loss would preclude meaningful forensic analysis," wrote the FBI video specialist, Ronald L. Evans. "For scientific and forensic applications, any type of compression should always be avoided due to its effect on picture quality."
"Based on my experience, I believe that a significant loss of data occurs in the transfer of data . . . and that this loss would preclude meaningful forensic analysis," wrote the FBI video specialist, Ronald L. Evans. "For scientific and forensic applications, any type of compression should always be avoided due to its effect on picture quality."
Mr. Caddell said computer experts advising his legal team have estimated that "a minimum of 15 to 20 percent of the data was lost and maybe more," when it was compressed from videotape to computer files.
"That could be very significant. You're talking about data that's not easily seen to begin with," he said. "The flashes on the April 19 FLIR tape are not easy to see. This is not information that is readily apparent or obvious to the naked eye. When you degrade that image 15 to 20 percent, it becomes very difficult."
Jerky images
Another lawyer representing some of the Branch Davidians said the computerized data from the test was so jerky and indistinct that he couldn't see any weapons flashes when he first reviewed it Wednesday.
Lawyers for the government had said they saw some weapons flashes on the test data but argued those supported their case because they all came from weapons that were not used by the FBI in Waco.
The Davidians' lawyer, Jim Brannon of Houston, said he finally did see weapons flashes - including some that the government's lawyers say were not visible on the test recordings - when he watched the computerized footage with Mr. Caddell on Thursday afternoon.
"The film is of very poor quality," he said. "That's what concerns me."
He and others involved in the case have said they fear that the court's scientific expert, British-based Vector Data Systems Ltd., may be using similar computerized copies of the data to interpret the test.
Judge Smith ordered the firm to submit a full report to the court within 30 days.
Mr. Brannon acknowledged that even the poor copy of the data he saw earlier this week includes images that could be useful to each side in the lawsuit. Although he saw muzzle blasts from guns similar to the assault weapons carried by the FBI, Mr. Brannon said the heat-sensing camera also captured images of gunmen test-firing the weapons.
Government lawyers have said that the appearance of gunmen on the test recording should end debate over government gunfire on April 19 because no one is visible in the 1993 video when the repeated flashes appeared.
Mr. Brannon and other sect lawyers have argued that government personnel in Waco could have been wearing camouflage that prevented the overhead infrared camera from sensing and recording their body heat.
FBI officials have ridiculed that theory, noting that their agents wore only fire-resistant "Nomex" clothing and body armor.
Mr. Caddell has said that the infrared camera and a still camera also circling the compound in another FBI airplane captured fleeting images of what he believes were people in some areas where the repeated flashes occurred.
With better copies of the data, Mr. Caddell said he believes that he and government lawyers can agree on what the Fort Hood recording contains.
"At the end of the day, there will not be a disagreement about what is visible and what is not on the tape," he said. "There will be a disagreement on how to interpret it."
Doubts on gunfire
Even so, some federal officials involved in re-examining the Branch Davidian incident say they are increasingly doubtful that government gunfire caused the flashes on the 1993 infrared video.
One said he was skeptical even before watching the field test because he and others investigating the Waco incident recently found that some of the white flashes on the April 19 video occurred after everyone inside the Davidian compound had surrendered or died.
On the April 19 video, a distinct flash appears at 1:03 p.m. in a pile of rubble near where FBI agents and firefighters were standing. Another appears shortly after that as a figure jumps from a nearby armored vehicle.
The official said he did not believe those flashes could possibly be from gunfire or from bullets exploding in the compound fire because the nearby figures did not appear to react.
"By this time, the Davidians are dead or under arrest, so either the FBI just opened fire on the Waco Fire Department and their own agents, or these glints came from something other than gunfire," the official said. "Common sense tells you that other flashes on the April 19 tape could've been caused by something other than gunfire, too."

"Judge To Limit Reno Waco Deposition"

by Michelle Mittelstadt (Associated Press, March 24, 2000)

WASHINGTON (AP) - A federal judge on Friday granted the Justice Department's request to limit the duration of questioning that Attorney General Janet Reno will face next week from lawyers for Branch Davidians who are suing the government over the 1993 Waco siege.
In a brief order, U.S. District Judge Walter Smith of Waco said the Justice Department's request, filed a day earlier, ``has merit and should be granted.''
The judge, who is presiding over the Davidians' wrongful-death civil suit, accepted the government's bid to limit Reno's deposition Tuesday in Washington to two hours.
In seeking the time limit, the Justice Department noted the ``heavy demands'' of Reno's job and said two hours would provide ``ample opportunity'' for questioning.
The plaintiffs' lead counsel, Michael Caddell, agreed to the time limitation. But a second Davidian lawyer, Jim Brannon, rejected the request, describing it as ``wholly unreasonable.''
``You just don't tell a lawyer that he cannot cross-examine a witness,'' Brannon said Thursday. ``Not if you're seeking justice.''
Reached Friday, after the plaintiffs' deposition of former FBI Director William Sessions in San Antonio, Brannon expressed little surprise at Smith's order.
``The only thing I have to say is that I disagree with that ruling and I don't believe that people should be limited in such an important case on such important matters,'' he said. ``But I will, of course, abide by the judge's order.''
The plaintiffs, whose case goes to trial in mid-May, want to question Reno about her approval of the FBI's tear-gassing plan and final assault. The Davidians' retreat erupted in flames several hours into the tear-gas operation, during which tanks tore into the compound.
Davidian leader David Koresh and some 80 followers died during that April 19, 1993 inferno, some from the fire, others from gunshot wounds. The government has long insisted the Davidians died by their own hand.
The plaintiffs contend that the FBI's on-scene commanders deviated from the Reno-approved final assault plan - escalating the tear-gassing and building destruction in ways not okayed by her.
The lawyers also want to question her about any firefighting planning that occurred prior to the 19th.
In earlier depositions, the FBI's Hostage Rescue Team leader Richard Rogers and on-scene commander Jeffrey Jamar, have offered differing assessments as to whether a firefighting plan existed, Brannon said.
Jamar told Congress in 1995 that he held firetrucks back from the blaze that ended the 51-day standoff for fear firefighters might be shot.

"Justice Department asks for time limit to question Janet Reno"

by Tommy Witherspoon ("Waco Tribune-Herald", Narch 24, 2000)

The Justice Department wants U.S. District Judge Walter S. Smith Jr. of Waco to limit attorneys for Branch Davidian survivors to two hours of questioning U.S. Attorney General Janet Reno next week.
Reno is set to be deposed on Tuesday morning at the Department of Justice building in Washington, D.C., in the wrongful-death lawsuit filed against the government by Branch Davidian survivors.
In a motion filed Thursday in Waco's federal court, Phyllis J. Pyles, a Justice Department attorney, asks that Smith restrict Reno's deposition to two hours.
"There is good cause for limiting the attorney general's deposition to two hours because the national interest requires that she be protected from any undue burden on her ability to perform her governmental duties," Pyles wrote.
"Cabinet officers and agency heads have greater duties and time constraints than other witnesses and therefore are not normally subject to deposition."
Reno has agreed to be deposed "despite the heavy demands on her position," according to the motion.
However, while lead plaintiffs' attorney Mike Caddell of Houston has agreed to limit his questions to 90 minutes, Houston attorney Jim Brannon will not agree to a time limit, the motion states.
Brannon, who represents the estates of David Koresh's three children born to his wife Rachel, said Thursday that two hours may be plenty of time, but he won't know until the deposition starts. For that reason, he will not agree to time constraints unless they are court-ordered, he said.
"I don't even know if I need two hours," Brannon said. "The question is, am I going to be permitted to explore the things I need to explore? It may take two hours, it make take 30 minutes, it may take five hours. You never know how dodgy the witness is going to be. But I can assure you that nothing that she has to do is more important that telling us the truth about Waco."
Reno authorized the plan that was designed to force Koresh and his followers from Mount Carmel with tear gas and end the 51-day standoff with federal agents.
Seventy-six Davidians died April 19, 1993, after a fire swept through Mount Carmel as FBI agents crashed holes into the compound with military vehicles and inserted tear gas.
"I am very interested in talking about fire protection with the attorney general and emergency protection and what were the restrictions or limitations on what these people could do," Brannon said. "What were they authorized to do? When you have a written plan that is argued about for weeks and weeks and then you go down there and don't stick with it for two hours, we need to find out who approved the changes."
Plaintiffs have alleged that government officials were negligent in the way they reacted after the fire broke out.
Government representatives have said that they held back firefighters from battling the blaze because Davidians were shooting at agents and vehicles during the tear-gas assault.

"Re-enactment results may aid government's case at Waco"

by Terry Ganey ("The St. Louis Post-Dispatch", March 23, 2000)

The test so aggressively sought by Branch Davidian plaintiffs to prove government wrongdoing at Waco may have produced a boost for the government's claim that no FBI agents fired guns at the Davidians' complex.
Although the videotaped infrared test results have been sealed by a federal judge, those who have reviewed them say the tapes show people firing weapons during the simulation of Waco's conditions. That would seem to bolster the government's case because in the original FBI surveillance tapes made on April 19, 1993, no people could be seen near the flashes that the Davidians say represent gunfire.
Government lawyers have said that the flashes on the original tape could not be gunfire if no person shows up near the flashes. Because the re-enactment tapes were made under similar conditions, if there were "shooters" on April 19, they should have shown up then like they did on the test tapes made Sunday.
One independent observer of the test who spoke on the condition of anonymity said Thursday that it appeared that the test results may help the government.
A lawyer who represents some of the Branch Davidian survivors reviewed the test results Wednesday. He said it was clear to him that people showed up firing weapons during the infrared test.
"There is no doubt that both cameras showed human beings where there are flashes," said Jim Brannon, who represents the estates of three of the deceased children of David Koresh, the Branch Davidian leader who died during the FBI assault.
"Their (the government's) argument is: That being the case, where are the shooters behind the flashes on April 19th?"
Brannon said that the test result did not close the door on the Davidians' claim. He pointed out that technology existed in 1993 for FBI agents to be dressed in clothing that could mask the body heat detected by infrared cameras. He said there were cloaks available then that could be quickly slipped over a person, masking 99 percent of the person's heat and thus making them invisible to infrared detection. Those types of garments were not included in the test.
"Their argument has its force, but it also has an explanation," Brannon said. "Which one you want to believe is up to you."
During Sunday's test at Fort Hood, Texas, an FBI's "Nightstalker" plane and a British Royal Navy Lynx helicopter made two separate infrared recordings of gunfire and debris on the ground. The shooters wore flight suits, camouflage sniper outfits and body armor. The idea was to compare the two new tapes with the 1993 original to see what may have produced the flashes.
The test was ordered by U.S. District Judge Walter Smith Jr., who is presiding over the Branch Davidians' survivors wrongful death suit against the government. Special counsel John Danforth suggested the test and recommended Vector Data Systems Ltd., a British subsidiary of a U.S. defense contractor, to supervise the test. Within 30 days, Vector is to give its report on the test results to the court. After that, according to the judge's order, the test results may become public.
While the judge has closed the test results, he has not prohibited the lawyers from discussing it. On Monday, U.S. Attorney Mike Bradford said the results showed that debris could have caused the flashes on the 1993 tape, and that the muzzle blasts from only two large caliber weapons produced flashes on the tape.
Mike Caddell, the lead lawyer for the Branch Davidians' survivors, said his preliminary review of the results found flashes from four weapons, including the CAR 15, which was used by FBI agents during the siege. Caddell also said he didn't see any flashes from the debris.
On Thursday, Caddell said he believed it was a mistake for both the government and the plaintiffs to put out statements based on their quick review of the results.
"I don't like the fact that we came out with one version and they another," Caddell said. He said he believed that in the end each side will "acknowledge the obvious" and see the same flashes but interpret their significance differently. Thus, government experts may say the flashes from the debris on the test tape are more like those on the 1993 tape, while the Davidians' expert may argue that the test flashes from the gunfire are more like the flashes recorded nearly seven years ago.
Bradford and Caddell both said they saw bodies on the test tapes. Bradford said people were visible when they were moving around during the simulation. He said that in each instance where there is a flash, "individuals are visible, in contrast to the tape made on April 19th." Bradford also said that the people "fade in and out" on the tape made by the British Lynx helicopter. That result will be given more weight because the Lynx was using a camera more like the one the FBI had in 1993.
Caddell said the test tape showed bodies appearing and disappearing.
"There are times when you know there are eight shooters on that tape and you can't find any of them and there are times when you can see seven of them," Caddell said. "What you will see when you look at the tapes, the bodies are warm and visible early in the morning. They become less visible as the ground heats up."
There was nearly a 20-degree difference between the temperature during the test (69 degrees) and on April 19, 1993 (85 degrees). Bradford said the difference in temperature would not have made a difference in the results.
Caddell said that people are visible on the 1993 tape later in the day when they seem to appear and disappear while walking around the charred ruins of the complex.

"Facts amid the spin"

(Editorial, "The St. Louis Post-Dispatch", March 23, 2000)

LAST weekend's Waco simulation proved one thing: You can't trust lawyers to report on scientific results.
Within 24 hours of the test at Fort Hood, Texas, the lawyer for the Branch Davidians had said the test proved that government agents had fired at Waco, and the lawyer for the government said it proved the opposite.
As the case moves slowly on, hope is waning that we will ever know for sure what happened when the 51-day government siege ended in the fiery deaths of almost 80 people inside the Texas complex of Branch Davidian leader David Koresh.
In the coming weeks, the test films will be watched more times than "Gone with the Wind," but only by the parties involved and Vector Data Systems Ltd., a British firm hired to advise Special Counsel John C. Danforth.
U.S. District Judge Walter S. Smith Jr. ordered the test tapes sealed, preventing reporters from seeing for themselves what the lawyers claim they show. This secrecy undermines the goal of explaining Waco to the public.
The test film already has proven experts from both sides wrong. The government previously said that gunfire would not show up on infrared tape, while the Branch Davidians said sunlight wouldn't. Both did. More significantly, the bodies of the soldiers shooting the guns showed up on the test tape. No bodies are visible near the flashes on the 1993 tape.
The test tape will be evidence in the upcoming civil trial in which the Branch Davidians seek to hold the government responsible for the dead. The test also will inform Mr. Danforth's investigation, the outcome of which could restore, or further erode, public faith in government.
Extremists on both sides seem to have already made up their minds. There is probably no test or court ruling that could change them. The rest of us should reserve judgment as we try to separate fact from spin.


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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