Davidian Plaintiffs' Gun Test Nixed

The Associated Press, October 26, 1999
By Michelle Mittelstadt

WASHINGTON (AP) - The Justice Department has brushed aside a challenge by lawyers for survivors of the 1993 Branch Davidian siege to participate in a demonstration that the lawyers contend would prove federal agents fired shots during the standoff's final hours.

In rejecting the offer, a legal team representing the government in a massive wrongful-death lawsuit headed to trial next May cited that litigation and uncertainty over the validity of the demonstration.

Lawyers for the Branch Davidians contend that infrared aerial surveillance footage shot by the FBI on April 19, 1993, proves that shots were fired by government agents into the compound near Waco, Texas - a contention bureau officials deny.

The plaintiffs' lawyers offered last week to put their theory to the test. They proposed a demonstration in which weapons similar to those carried by Davidians and federal agents alike would be fired at a Dallas-area firing range while a plane mounted with an infrared camera similar to the one used by the FBI would record the demonstration.

Federal officials have long insisted that no shots were fired into the Branch Davidians' retreat by government agents during the final hours of the 51-day siege. They also deny that their actions sparked the inferno that consumed the compound. Cult leader David Koresh and some 80 followers died during the blaze, some from the fire, others from gunshot wounds.

Frustrated by the government's refusal to provide information about the infrared videotaping performed at Waco, the plaintiffs last week invited investigators for the government, Congress and the special counsel investigating Waco to witness the proposed demonstration.

That offer was rejected Monday by Justice Department attorney Marie Louise Hagen.

"You and your experts are free to conduct whatever test you desire, based on whatever information you choose to believe to be accurate," she wrote Houston lawyer Michael Caddell, who represents most of the surviving Davidians and relatives of the dead in the lawsuit.

"Although it does appear from your letter that several of your assumptions about the facts, the science and the experts are in error, and may render useless any conclusions reached, it is your choice to proceed."

Bureau officials cautioned last week that it would be "near impossible" to duplicate conditions, particularly since they say the plaintiffs lack crucial information about the altitude of the FBI plane that flew over the compound, the infrared camera's design specifications and film speed.

Caddell, in an interview, said his experts know the film speed and altitude of the FBI "Nightstalker" plane, lacking only confirmation of the type of infrared camera used. The government has rejected several requests for that information, saying it is classified.

Caddell wrote Ms. Hagen on Tuesday that he was "disappointed" by the Justice Department's refusal to join in the test. "You and your superiors at the Department of Justice continue to treat this matter as some sort of game," he said.