Davidians' arguments are rejected by judge

He says there is no sign of evidence-tampering

The Dallas Morning News, May 18, 2000
By Lee Hancock

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.