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About The Battalion. (College Station, Tex.) 1893-current | View Entire Issue (Nov. 23, 1999)
Page 8 • Tuesday, November 23, 1999 s TATE The Ik Government counters Waco survivors offer, proposes to create own simulation of siege WASHINGTON (AP) — In the latest tit-for-tat over the controversial issue of whether federal agents fired gunshots on the final day of the 1993 Branch Davidian siege, the government countered the survivors’ offer of an outdoor gunfire-and- videotaping simulation with a testing proposal of its own yesterday. The question of government gunfire is a key piece of the wrongful-death lawsuit filed against the gov ernment by Branch Davidian survivors and relatives of those who died during the standoff — and has be come a central focus for the special counsel re-in vestigating Waco. Federal officials have long insisted that no shots were fired by government forces on April 19, 1993, when the 51-day siege ended in a deadly conflagra tion. Davidian leader David Koresh and some 80 fol lowers perished during the blaze, some from the fire, others from gunshot wounds. The government said the Davidians died by their own hand. The plaintiffs, however, contend that information collected by the FBI itself — aerial infrared surveil lance footage — offers definitive proof that federal agents fired into the Davidians’ compound on the fi nal day. Arguing that rapid bursts of light on the infrared tapes represents machine-gun fire, they proposed to stage a demonstration in which guns like those carried by fed eral agents and the Davidians themselves would be fired while an infrared camera similar to the FBI’s would record the action from an overhead plane. The Justice Department summarily dismissed the proposal when it was first made, offering to do a pri vate test for the special counsel investigating Waco. Troubled by the dueling test proposals, special counsel John Danforth earlier this month asked the federal judge presiding over the wrongful-death case to supervise an impartial demonstration. "/Vo attempt at 'recreation' of the events meet the test of reliability ... In short, it would produce more confusion than clarity." — Justice Department Lawyers U.S. District Judge Walter Smith, who has set the trial’s start for mid-May, agreed and asked the gov ernment, plaintiffs and Danforth to agree on a pro tocol under which an infrared demonstration would be conducted. The Justice Department, in a 10-page filing with the court yesterday, suggested that the full-scale simulation proposed by the plaintiffs could not replicate the sun, wind, temperature, heat source and soil moisture condi tions present that day. “No attempt at ‘recreation’ of the events would meet the test of reliability because it could not replicate and take into account all of the operative facts,” the Justice lawyers wrote. “In short, it would produce more con fusion than clarity.” Instead, they proposed a test that would deter mine whether gunfire can be detected by the Forward Looking Infrared technology deployed at Waco at specified spectral ranges. And they suggested that the testing protocol agreed to by the judge and the oth er parties examine other “possible sources for the flashes that appear on the FBI FLIR tape.” The plaintiffs’ lead counsel rejected the govern ment’s offer as a “shell game.” “If you read between the lines, what they want to do would not involve the original camera and would not involve the original aircraft — both of which they have,” Houston lawyer Michael Caddell, said. “They claim that a more reliable test than using the same camera and the same airplane is using two different pieces of equipment? That’s the silliest thing that I’ve ever heard of.” The government said details of the infrared cam era and FBI Nightstalker airplane, which are “often used in foreign counterintelligence investigations,” must remain classified. And, the Justice lawyers said, the FLIR camera used at Waco has been “modified and upgraded significantly” since 1993. “The camera is modified, but frankly it doesn’t ap pear from what we can tell, that it’s modified in any significant way ... I think what they are trying to set up now are maybe some excuses that would give them some wiggle room,” Caddell said in response. Judge rejects woman’s attempt to subpoena tobacco files HOUSTON (AP) — In a case combin ing a bitter divorce and the state’s tobac co settlement, a district judge yesterday dealt a setback to the ex-wife of a lawyer who will share a $3.3 billion award. Dawn Nelson claims that prominent Houston defense attorney John Eddie Williams Jr. hid the size of his poten tial tobacco-settlement fee when the couple divorced in 1997. She asked the court to issue a subpoena for letters and audits related to the negotiations. Assistant Attorney General Andy Taylor said he could not comply with the subpoena because Williams has never turned over paperwork from the settlement, in which cigarette makers agreed to pay the state $17.3 billion over the next 25 years for treating smoking-related illness. Taylor asked Judge Doug Warne to or der Williams to turn over the records. But the judge blocked the efforts of both the ex-wife and the attorney gen eral’s office by simply quashing her subpoena and refusing to order Williams to turn over anything. Last Friday, the lawyers agreed to accept a $3.3 billion award set by an arbitration panel and waive their effort to collect more from the state. Attorney General John Cornyn, a Republican, is investigating the 1996 hiring of the five private attorneys by former Attorney General Dan Morales, a Democrat. “We’ve made countless requests for our file by telephone, in person and in writing, but to no avail,” Taylor said yes terday. “They won’t give us our file; they won’t cooperate with our investigation.” Michael Tigar, a former University of Texas law professor who represents the five lawyers, said they are willing to cooperate with the investigation. The case file is ex pected to contain money records, as well as letters between Williams and Morales. The question of whether the tobacco records belong to the state or to the lawyers themselves is being debated in a Texarkana federal court, the attorneys said. Cornyn tried to move the case to the state courts, but the state Fifth Court of Appeals in Texarkana denied his request. Williams’ attorneys were incensed at Taylor’s appearance at the divorce pro ceeding yesterday. “[The attorney general’s office] ought to be ashamed of themselves,” Jack O’Neill said. “By coming in here today without any prior warning, they violated every code of ethics and cour tesy among lawyers.” News in Brief Escaped convicted rapis recaptured in Oklahoma TYLER (AP) — A convicted rapist who es Sept. 21 from the Smith County Jail in Tyler has recaptured in Oklahoma. Investigators said Terry Lynn Rhodes andhisj friend were selling stolen merchandise. Wouldt)t'| ers became suspicious and called law enforceT; officers. Rhodes and Rhonda Fields were arrestee terday in Idabel, Okla. Fields is formerly a guard at the Coffield prise Texas, where Rhodes was serving a 45-yearsentef for raping a woman at knifepoint in a 1996attac> Rhodes had been transferred to the SmithCo; Jail to face a theft charge when he fled. Rhodes and Fields are expected to face Mi burglary charges in Oklahoma before being reb to Texas. Jury sentences convicted killer to 3rd death sentence FORT STOCKTON (AP) — A West Texas jury (&■ ed last week that a thrice-convicted cop killerslrl die for his crimes — the suspect’s third death™ tence in 10 years. The 12-member panel deliberated for lessfl three hours before deciding Charles Edward S«H should die by lethal injection for the 1988shoc:| death of a Pecos County lawman. Smith, from Kansas, showed no reaction Thuj as District Judge Brock Jones read his order top™ Smith on death row. Defense attorney Martin Underwood saiefe planned to appeal the sentence. The Texas Court of Criminal Appeals hasalJ overturned Smith’s two previous death sentencesl ter Thursday’s punishment was handed down,Ur® wood said he would file another appeal with the® er court in “a couple months.” Pilot hurt after falling fror an airport boarding ramp GRAPEVINE (AP) — An American Airlines pilot J critically injured yesterday when a stairway outsi:; boarding ramp at Dallas-Fort Worth Internationa ? port shifted, hurling him and a flight attendantto:! tarmac. Capt. Jay Straub, 41, was in critical condition Parkland Health and Hospital System in Dallas.r: pital spokesperson April Foran, said. American spokesperson John Hotard said the p ; fell on his face, while flight attendant Ricky Phillips,? suffered a bump on his head and a sprained ankle The two had just arrived on American Rights; from Tulsa, Okla., and were descending thestairsc. side the boarding ramp when the accident haDpene: Hotard said. Q: What should I wear today? 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