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Burden of Proof

Waco Simulation: Burning Questions of the Branch Davidian Fire

Aired March 23, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

MIKE BRADFORD, U.S. ATTORNEY: We are very pleased with the results of what we have seen so far, and there are some particular matters that we think are important and confirming our position that the FBI was not firing at the back of the compound.

MIKE CADDELL, BRANCH DAVIDIAN ATTORNEY: I believe -- I am hopeful that the FBI leadership will acknowledge that gunfire and will commence an internal investigation to determine who was firing and on who's orders.

(END VIDEO CLIP)

GRETA VAN SUSTEREN, CO-HOST: A live-fire simulation of the tragic events in Waco and both sides claim victory. Today on BURDEN OF PROOF: The burning questions of the Branch Davidian fire.

ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. Roger is off today.

Last weekend at Fort Hood in central Texas, a British company conducted a simulation to answer questions about the FBI's activity during the 1993 siege at Waco. The exercise, which was off-limits to the media, was supervised by former Senator John Danforth. Danforth is leading the Justice Department's special investigation into the Branch Davidian tragedy. After the test, both sides claimed victory. Lawyers for the Branch Davidian survivors who claim reckless action by the FBI said the exercise supported their case.

(BEGIN VIDEO CLIP)

CADDELL: It clearly demonstrates that there was government gunfire on the back of Mount Carmel on April 19, 1993.

(END VIDEO CLIP)

VAN SUSTEREN: Government lawyers, as well, said they were encouraged by the test.

(BEGIN VIDEO CLIP) BRADFORD: We believe that it confirms our position and hopefully, as we've said before, will put an end to this claim that the FBI was shooting behind the compound that day.

(END VIDEO CLIP)

VAN SUSTEREN: Joining us today from Dallas, Lee Hancock of "The Dallas Morning News." From Houston, Mike Caddell, who's the lead attorney for the families of the Branch Davidians. And in Austin, Texas, Byron Sage, who's the former FBI chief negotiator at Waco. And here in Washington, Allison Turner (ph), fire protection engineer Doug Carpenter, and Jennifer Rehfeld (ph). And in our back row, Ressa Ewalt (ph), Wess Mitchell (ph) and Leslie Hunter (ph).

And also here in Washington, CNN Justice correspondent Pierre Thomas with the latest on the White House e-mail case.

Pierre, what is the latest on the e-mail case?

PIERRE THOMAS, CNN JUSTICE CORRESPONDENT: Greta, CNN has learned that the Justice Department has begun an investigation looking at why White House e-mails concerning campaign finance, perhaps the Monica Lewinsky scandal and other scandals were not produced two years ago when they were subpoenaed.

Now, there is also an allegation that White House officials may have threatened the contractor who was doing the work on these particular e-mail messages. Information was developed that these e- mail messages were not produced, and apparently there's an allegation that once the contractors discovered that these e-mails were not produced, that they were told by White House officials not to produce them.

So that's the allegation. The Justice Department just put out a court document a little while ago acknowledging that there is a criminal investigation into this matter.

VAN SUSTEREN: Pierre, when you say may have threatened, in what form do they say these threats came? I mean, were they subtle threats, direct threats? What kind of words were used, if we even know at this point?

THOMAS: Well, Greta, there's a hearing ongoing now at the House Government Reform and Oversight Committee, and one of the people who apparently was threatened said something about spending time in jail if these e-mails were produced. So it's that fairly specific allegation that has Justice Department officials concerned.

Now, again, they don't have any specific evidence of wrongdoing, but they want to know some key questions: Why weren't these e-mails produced and what would lead a White House official to threaten this contractor if it indeed did happen.

VAN SUSTEREN: All right, thanks to Pierre Thomas who's our Justice correspondent.

We're going to now turn the corner and talk about the simulation in Waco, Texas.

Mike Caddell joins us.

Mike, you're one of the lawyers for the plaintiffs in the Waco litigation, the civil cases. You were present at the reenactment. What did you see?

CADDELL: Well, what we saw, what the observers saw, was simply the series of shooters who were firing various weapons at stationary targets. They advanced through a series of exercises so that their actions could be recorded on the video from the infrared cameras that were being operated in the British helicopter and in the FBI Nightstalker.

VAN SUSTEREN: Mike, how do you know that this was a reenactment? And to what degree must this be sort of a mirror image of what happened on April 19, 1993 in order to have any value to either side?

CADDELL: Well, I think the term reenactment is probably a misnomer. It was not intended to be a reenactment. It was intended to be an opportunity to gather data that both sides could use in developing opinions, or expert opinions, about whether there was gunfire on April 19 or whether some other phenomena caused these flashes. So what we were doing was testing various things to see if they created flashes on the infrared videotape similar to the flashes from April 19.

VAN SUSTEREN: Byron, you were present at the time of the Waco fire in 1993. And Mike corrected me. It wasn't a reenactment, it was a simulation. What -- do you recall there being any gunshots being fired from the FBI?

BYRON SAGE, FORMER FBI AGENT, CHIEF NEGOTIATOR AT WACO: From the FBI, no. There was a tremendous amount of gunfire all morning long from the Davidians towards the FBI's position.

VAN SUSTEREN: How can you be so certain of that?

SAGE: Well, I was out front. I was approximately 200 to 300 yards in front of the compound in a position called Sierra 1-Alpha, which was only 30 yards away from Sierra 1, which is one of the positions that's had a lot of focus on it as far as whether or not shots were fired. I would have heard them from that proximity, I'm quite confident.

VAN SUSTEREN: Were you able to see all the FBI on site, Byron, or could FBI have been positioned in such a place that you wouldn't even have seen them?

SAGE: I had a view -- a periodic view. I was in the back of Sierra 1-Alpha and my job was to try to broadcast throughout the morning to try to convince the individuals to come out. We were prepared to stop that tear gassing operation at any time to facilitate their exit. So I had a periodic view of the front of the complex. I did not have a view of the back. But I have talked extensively to agents that I know, that I trust, as to the events that took place. VAN SUSTEREN: Mike, why are you so certain there were gunshots fired by the FBI?

CADDELL: Well, first, let me mention just one thing about what Byron is saying, and I think it's an important point. Byron was on the front of Mount Carmel. He could not see the back, whether there was gunfire on the back, or -- I mean, more importantly, what we do know and is undisputed is that the gymnasium, for example, on the back of Mount Carmel was completely demolished by the gym -- by a tank that was on the back of Mount Carmel. We've recently uncovered documents that say, in fact, that the two people operating that tank were given the mission of destroying the gym.

SAGE: That's simply not true.

CADDELL: Now, at the same -- but the point is, at the same time, Mr. Sage is making announcements from the front of Mount Carmel that are clearly in conflict with what's happening on the back, because he's saying this is not an assault, come out, we are not entering the building. And at the same time he's making these announcements to the occupants of Mount Carmel, the people on the back are tearing the building down. And that, I think, illustrates why we have a problem in this case between what the FBI is presenting as its version of events and what actually occurred. Now, whether that's also true with the gunfire remains to be seen, and that's what the test was about.

VAN SUSTEREN: All right, well let me go to Lee Hancock.

Lee, you've been covering this since about day one. Can you help us out at all in terms of whether or not the FBI fired shots? Is there any evidence that you've uncovered as a reporter?

LEE HANCOCK, "THE DALLAS MORNING NEWS": Well, you know, there is this discussion that's under way about what was on this videotape. You know, certainly there's -- there are compelling things on the infrared videotape shot by an airplane on April 19. You know, the question that's -- they're trying to answer with this test is, what could have caused repeated flashes of light? These occurred only on the backside of the compound. You know, in areas around government tanks, these lights appeared. There were also some flashes on both front and back of the compound from windows. They appeared to emanate from windows towards the tanks.

Now, the question is: Are those gunfires? Mr. Caddell has two experts -- former Defense Department experts who say conclusively they could only be gunfire. The government has its own experts that say absolutely it could not. That's why we were having this test. And certainly, you know, one of the problems is this was a large site where all of this took place. There were many, many people involved.

The FBI would say that that argues against this being gunfire, that this place was ringed by a number of law enforcement agencies. On the other side, we have the fact that it was only FBI and it was only the hostage rescue team that was very, very close in on that building and they were the only ones who could see on that backside. There are no cameras on that backside either for the FBI or the media. That's one of the reasons why this remains a question today.

Yes, there are other problems, there are smaller problems with things the FBI has represented as true about what happened on the 19th. Documents have surfaced, which raise questions about certain small parts of that account. That, to some people, lends credence to this larger allegation about gunfire.

But again, it remains to be seen. And the question now is: Will this test resolve it?

VAN SUSTEREN: And that raises a very important question for our next guest.

When we come back, we will find out: Will flashes of light infrared tests reveal the truth of the fire?

Stay with us.

(BEGIN LEGAL BRIEF)

An Oklahoma judge has docked Terry Nichols' attorney Brian Henderson $92.50 and W. Creekmore Wallace II $33.50 for using court time to argue about who should cut their client's hair.

The attorneys think Nichols, who faces state murder charges for the 1995 Oklahoma City Bombing, looks bad with the standard jail buzz cut.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the World Wide Web. Just log onto cnn.com/burden. We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.

Sunday's simulation of the final showdown at Waco was conducted in a different location, in different weather and with different wind, light and temperature than the original blaze.

Doug, looking at the simulation, can you explain to us what was done?

DOUG CARPENTER, FIRE PROTECTION ENGINEER: Well, basically what they're trying to do is characterize different types of, what I would call, signatures, the gunfire versus reflections. They were trying to develop some data where, perhaps, the analysts can go back and try to characterize the flashes from the muzzles of the gun, that may be, you know, in terms of frequency, intensity and duration, and be able to say: You know, can we see that these muzzle flashes are very different in the characteristics than we would see from the reflection of the objects? VAN SUSTEREN: So, is -- the point is you have to take, what, the infrared tape, that they had from the actual incident, and compare it to what the simulation was? Is that the process? I mean...

CARPENTER: Yes, you are doing, basically, a relative analysis of the two. You're not doing a full re-creation of this; there's just too many variables that have unknowns to them.

VAN SUSTEREN: What are the pros and the cons of this simulation?

CARPENTER: There are some -- you have to be able to produce some control conditions, such as the time of year, time of day, I think is also important in how these simulations were conducted. So, you need to be able to control the variables to be able to...

VAN SUSTEREN: Can you control the variables? I know that one of the variables is the angle of the sun. This test was done last Sunday, I believe. And, of course, this happened on April 19. Is there that much difference in terms of angle of the sun, so it could distort the results?

CARPENTER: It's quite possible, yes. So, what happens is: The test may provide some valuable information if there's a huge difference between the two characteristics, let's say the gunfire and some reflection. If they start to become very close together, then these variables are going to start to play apart, and then the information may not be valuable.

VAN SUSTEREN: Mike, did both sides stipulate to the conditions under which this was done, so that both sides will live in the results -- live with the results? or is that likely to be fertile ground for debate at trial?

CADDELL: Well, I don't know. I mean, I think there are two questions there. One is: We did stipulate to a protocol. The decision to go forward on Sunday, however, was not made by the parties, but by the court-appointed expert. The only real issue on Sunday was the temperature; it was rather cooler than I think we would have wished.

But the second question: Is it going to challenge the validity of the test? I doubt it. I think that there may be issues with respect to the clarity of the film, that sort of thing that we're working on now. But I don't think the conditions, itself -- themselves, will be a basis for challenging the test.

VAN SUSTEREN: Byron, you wanted to address some of the points that Mike made earlier, and I...

SAGE: Well, there were...

VAN SUSTEREN: Go ahead.

SAGE: There were a couple of areas that I would like to point out. The mission of that CEV, when it was -- during the course...

VAN SUSTEREN: What do you mean by "CEV"?

SAGE: The combat engineer vehicle that was out back. And there was two of them: there was one in -- assigned to the first four; one assigned to work towards injecting tear gas on the second floor.

The one that was out back, as I understand it, had its mission to attempt to clear a path to be able to affect the insertion of tear gas into the back of the building. That's what it was doing; it was not there for the sole purpose of dismantling or destroying that gymnasium, but to clear a path.

The other thing that I think is interesting is the portrayal of these flashes only being in the back and that there was no camera coverage. Both of those are not true. There were flashes, if you look at the April 19 tape, that are recorded virtually all the way around the compound as the aircraft that has a camera in it is orbiting. Several of those flashes are on the roof away from windows, some of them are out in debris fields. There was a substantial debris field that was created as a result of the CEV's activity in the back for sure, and there was existing debris from activities of the Davidians well before the initial ATF approach on the 28th of February.

The other one, and I think this is critical, is to say that the activity in the back was not monitored. There was no camera. That's simply not true. There was a color camera taking photographs almost constantly during the course of the operation, in concert with the flare (ph) tape.

Now I would submit to you this: If there was some grand conspiracy to do something that was outside the bounds of the law, would the FBI have intentionally, or any other agency, intentionally recorded that through both color photographs, flare (ph) tapes, it just simply is not -- It is not accurate, we wouldn't have done it in the first place, as far as -- The only effort that we did was to try to bring those people out safely for 51 days. To construe this and these other inflammatory allegation is simply not accurate, and it's an injustice to the American public.

VAN SUSTEREN: And I'm going to let Mike respond to you when we come back. We're taking a break. Stay with us.

(BEGIN Q&A)

Q: Two death row inmates have filed a lawsuit to overturn the Ohio policy prohibiting final oral statements by inmates before they are executed. Why did corrections officials adopt the policy in the first place?

A: In some instances convicts' final statements upset the families of their victims. Written statements are allowed, which are read after a prisoner is executed.

(END Q&A)

(COMMERCIAL BREAK) VAN SUSTEREN: A trial date is set for the 15th of May and a deposition of Attorney General Janet Reno is scheduled for next week.

Mike, before we make a jump to the trial issues, let me give you a chance to make a quick response to Byron, as I promised.

CADDELL: Well, you know, the problem that Byron has is that he's operating on old information, we're six months into the case now. I've taken 60 depositions of FBI agents. There are about five different explanations that have been offered for what the tank was doing on the backside. Last week, we uncovered a document, a request for medals to be awarded to those people and, in that request, it was characterized that they were given the mission of systematically dismantling the gymnasium.

So, you know, I understand Byron -- how Byron would like it to be, but the truth is they decided to demolish the gym, and we have consistent testimony from the FBI leadership that that was not authorized.

VAN SUSTEREN: And ultimately, a jury will decide whether you are right or Byron is right. But let me got to Lee.

Lee, the trial date, is that a firm trial date? Is this a trial we really expect to go forward in May?

HANCOCK: Well, that's an interesting question. When the judge met with the attorneys on both sides on Sunday at Fort Hood, he apparently surprised both sides by saying that the court-appointed expert, Vector Data Systems Limited, would not only conduct the test, supervise it, but also would report to him with a full written analysis of their own of what they, you know, what their judgments were on the data and the test and how it compared to the tape from April 19. He gave them 30 days to do that.

Now, there's an approaching deadline for end of depositions of experts on both sides that comes in mid-April with 30 days for this court-appointed expert to do their report. That raises the question about whether they can meet that last deadline for depositions.

VAN SUSTEREN: And they can just squeeze under the line, based on the calendar that you have laid out. But let me go back to Mike.

Mike, you are going to depose the attorney general of the United States next week. What are the first -- I mean, give me five good questions you are going to ask hear?

CADDELL: Was there any authority for the use of tanks to penetrate the building? Was there authority to commence demolition of the building? Was there an instruction to have sufficient firefighting equipment there to protect those children in case the building caught on fire? Those are the issues we'll be talk about with the AG next week.

VAN SUSTEREN: And don't you worry that the response is going to be: Mr. Caddell, those decisions are made by the FBI. I was overseeing the investigation, but you should ask the FBI?

CADDELL: No, because the attorney general approved a plan. This went all the way up to the top. She approved the plan of operations, after much deliberation, after many meetings, and the actions that took place were not in accordance with her plan. We already have testimony that if those actions taken were as we represent them to be, they were unauthorized. So I expect the attorney general to say the same thing.

VAN SUSTEREN: How long is her deposition going to last, do you think? and how long do you think this trial will last?

CADDELL: I think her deposition will last a couple of hours, I think the trial may last four to six weeks.

VAN SUSTEREN: All right, well, that's all the time we have for today. Thanks to our guests and thank you for watching.

Later today on "TALKBACK LIVE," gay rights advocates protest radio's Dr. Laura. Is it free speech or hate speech? That's at 3:00 p.m. Eastern time, noon Pacific.

And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

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