Judge May Limit Waco Evidence

Friday, June 16th 2000, 12:00 am
By: News On 6

WACO, Texas (AP) — Accusations that government gunfire contributed to deaths at the end of the fiery Branch Davidian siege will probably not be allowed in members' wrongful death lawsuit, the judge said.

The Davidians' lawyers have until next Friday to offer ``any additional evidence'' to support their claim that repeated flashes on an FBI infrared videotape recorded in 1993 came from government gunfire, U.S. District Judge Walter S. Smith Jr. ruled this week. Otherwise, he will issue a ``summary judgment'' barring that the argument that agents fired guns.

Smith, citing the May report of a court-appointed expert that the flashes came only from sunlight and heat reflections, wrote this week that ``the court is persuaded that the issue ... may best be resolved through summary judgment.''

Government lawyers said Thursday they are now hopeful that Smith will dismiss accusations that they have maintained are baseless and outrageous.

``We think that the evidence is overwhelming that there is no gunfire, that the court-appointed experts confirm what was already very clear, and that a summary judgment order should be granted,'' said U.S. Attorney Michael Bradford, who is helping represent the government.

Plaintiffs' lawyers objected Smith's ruling unfairly burdened them in advance of next week's trial, before they could fully question the court's experts.

The chief analyst for the British company appointed by the court to study the issue, David Oxlee of Vector Data Systems, has been ill and unavailable to come to the United States to testify. Vector was retained at Waco special counsel John C. Danforth's recommendation to help resolve the gunfire issue, assisting in a March field test at Fort Hood.

``We offered to go to London and take Mr. Oxlee's deposition so we could present this issue to the jury,'' plaintiffs' attorney Michael Caddell said. ``I find this order surprising and very strange, to suggest that this issue could be decided on before we ever get to question him.''

A fire engulfed the Davidians' compound on April 19, 1993. Leader David Koresh and some 80 of his followers died — some from the blaze, others from gunshot wounds. Flames broke out six hours into a tear-gassing operation designed to flush members out.

Trial in the wrongful death suit is scheduled to start Monday.

Smith also ruled this week that just one example of each type of weapon owned by the Branch Davidians can be introduced during the trial. The government may show photos of other weapons recovered from the compound, the judge ruled.

Bradford argued during a June 12 pretrial hearing that jurors needed to see all the weapons to understand why the FBI was reluctant to bring in firefighting equipment. But the judge agreed with Caddell that a large number of guns could inflame jurors.