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http://www.dallasnews.com/texas_southwest/0728tsw100davidians.htm
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Official disputes FBI account of Davidian fire
Justice Department denies incendiary devices used
07/28/99
By Lee Hancock / The Dallas Morning News
© 1999, The Dallas Morning News
WACO, Texas - The head of the Texas Department of Public Safety said Tuesday that evidence held by the Texas Rangers since the 1993 Branch Davidian siege calls into question the federal government's claim that its agents used no incendiary devices on the day that a fire consumed the sect's compound.
"There's some evidence that is at least problematic or at least questionable with regard to what happened," said James B. Francis Jr. of Dallas, chairman of the Texas Department of Public Safety.
Mr. Francis declined to detail the evidence but said, "With the proper experts analyzing it, it might shed light as to whether an incendiary device was fired into the compound that day."
Myron Marlin, a spokesman with the Justice Department in Washington, D.C., dismissed the allegation.
"It's more nonsense. We know of no evidence to support an allegation that any incendiary device was fired into the compound on April 19, 1993," Mr. Marlin said.
He declined to comment further, citing a continuing wrongful-death lawsuit filed by surviving sect members and families of the more than 70 people who died when the compound burned.
Sources close to the government's Davidian investigation say the current questions center on several 40 mm munitions found in the compound wreckage.
In repeated sworn statements and testimony, FBI and Department of Justice officials have maintained that FBI agents did not fire a shot during the 51-day siege.
FBI and Justice officials have insisted that FBI agents did not use any pyrotechnic or incendiary devices during the tear-gas assault that ended with the compound consumed by fire.
The Texas Rangers have had custody of the evidence from the Davidian investigation since 1993, when they were assigned to investigate the standoff and its fiery ending. The siege began with a firefight and the deaths of four agents from the Bureau of Alcohol, Tobacco and Firearms, which had tried to search the compound for illegal weapons and arrest Branch Davidian leader David Koresh.
Mr. Francis said Tuesday that some FBI officials made statements to Texas Rangers immediately after the fire "that are contradictory" to the federal government's account of what happened.
Complaints studied
Mr. Francis told The Dallas Morning News that he only recently became aware of those statements as he began looking into complaints about the lack of public access to evidence in the Davidian investigation.
Mr. Francis said he became concerned enough to contact U.S. District Judge Walter Smith of Waco, who has presided over all the cases arising from the deadly standoff. DPS recently filed a motion asking Judge Smith to take control of the evidence in the case.
"I took the steps to turn it over to the court so the court could decide what to do," Mr. Francis said. "I think it's very important that whatever the evidence is and whatever it shows, that all of it come out and let the chips fall where they may."
Judge Smith, who heard the criminal case arising from the Davidian siege, is presiding over the wrongful-death lawsuit filed by sect members against the federal government.
In a ruling issued July 1, Judge Smith refused to dismiss Davidian claims that the FBI may have fired at the compound April 19 and allegations that FBI negligence was responsible for the final tragedy. A trial has been set for mid-October, but both sides have said the complexity of the case may mean it will not go to trial until next year.
Mr. Francis said he told Judge Smith that a Justice Department policy blocking all public access to the Davidian evidence had created what amounted to an "absurd" shell game, with the DPS stuck in the middle.
"I said, 'It is in effect a cover-up. It is not intended to be, but in effect it is," Mr. Francis said. "It is a complete stonewall."
Mr. Francis said he doesn't think there was "some grand conspiracy to hide the evidence. I think it evolved into a situation where that was the effect of it."
He said the judge asked only "how much space are we going to need," when Mr. Francis proposed turning over the evidence in the case to his federal court in Waco.
Material gathered
After the siege, about 40 Texas Rangers were assigned to investigate and gather evidence in the case, and their investigation became the backbone of a 1994 criminal trial in which eight Branch Davidians were convicted of charges ranging from manslaughter to weapons violations.
More than 24,000 pounds of evidence was gathered from the burned wreckage of the Branch Davidian compound, and much of that remains in federal storage in Waco.
Evidence used in the federal prosecutions was transferred to DPS headquarters in Austin for safekeeping. Although Texas Rangers had custody of the material, Justice Department officials retained authority over who could see it. They ordered DPS officials to route requests for access to Washington.
Mr. Francis and others in the agency said DPS officials became increasingly frustrated as they learned that Justice Department officials routinely sent those requests back to Austin with the explanation that the evidence was in the custody of Texas officials.
"It was a perfect Catch-22 to block everybody from seeing the evidence," Mr. Francis said. "There is some evidence there that the world needs to see, in my opinion. The government does not want this evidence out, and yet, that's not right."
Justice Department lawyers filed a response Friday asking the judge to delay action on the DPS motion until next week to allow federal authorities to try to negotiate an agreement.
The lawyers declined to comment on the matter Tuesday. But several said privately that the dispute is nothing more than a legal issue.
"It's not a matter of trying to hide anything," one lawyer said.
The issue began coming to a head last spring when DPS officials began fielding complaints that a Colorado documentary researcher had been allowed access to the evidence.
Evidence reviewed
The researcher, Michael McNulty, was a producer and principal researcher in a 1997 documentary that alleged that government agents fired into the Davidian compound and set off devices that started the fire. He is preparing a new documentary on the standoff, with release expected in September.
Mr. McNulty's visits were approved by a Justice Department public-affairs official who has since left the agency, and they were supervised by Assistant U.S. Attorney Bill Johnston, the Waco-based federal prosecutor who handled the Branch Davidian case from its inception.
Mr. Johnston said he supported the decision to give Mr. McNulty access because "I didn't want to be a party to even a perception that we had something to hide."
"Although I may not agree with him on many things, I believe that Mr. McNulty has a right to his opinions," Mr. Johnston said.
In those visits, Mr. McNulty said, he and an expert assisting his film company examined a 40 mm shell casing and two 40 mm projectiles that he contends are pyrotechnic devices.
He said they also found that at least six items listed in Texas Ranger inventories as silencers or suppressors were actually "flash-bang" devices. Those devices are commonly used by law-enforcement officers to stun suspects, and they sometimes ignite fires in enclosed spaces because they emit a loud bang and flash driven by a small pyrotechnic charge.
Mr. McNulty said he thinks those devices could be key evidence because Texas Rangers' evidence logs indicate they were recovered from areas of the compound in which the fires broke out.
Mr. McNulty said he shared his information about the devices with Mr. Johnston and with lawyers representing Branch Davidians in their wrongful-death lawsuit.
"It's our belief that these pieces of ordnance could - and probably did - have an impact on the fire on April 19th," he said.
A fire investigation conducted after the standoff concluded that the fire was set by sect members.
Mr. McNulty said he was contacted last week by Mr. Johnston and asked to speak with a Texas Ranger who questioned him for more than two hours.
Mr. McNulty said the discussion led him to think the Rangers have opened a preliminary criminal investigation.
Mr. Johnston, Mr. Francis and DPS officials in Austin declined to say whether the agency has opened an investigation.
After Mr. McNulty's last visit in March, Mr. Johnston said, lawyers from the Justice Department who are handling the Davidian wrongful-.death lawsuit contacted him to complain that anyone had been allowed access to the evidence.
Dallas Morning News Washington bureau staff member David Jackson contributed to this report.[/quote]
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John/az
"The middle of the road between the extremes of good and evil, is evil. When freedom is at stake, your silence is not
golden, it's
yellow..."
