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Judge Denies Waco Case Dismissal

June 30, 2000

WACO, Texas (AP) _ The ``ground was dancing″ from the bullets that whizzed from the Branch Davidian compound as agents tried to approach it for the first time, 51 days before the compound was destroyed in a deadly fire, a federal agent testified Thursday in a wrongful death case against the government.

``I heard a loud boom and I fell face forward and had been shot in my chest. I thought, ’You need to get up, these guys are shooting bullets at you ... this isn’t a game,‴ said Eric Evers, an agent with the Bureau of Alcohol, Tobacco and Firearms.

Evers was among the first witnesses called by government attorneys as they began presenting their defense in the $675 million wrongful death case filed by raid survivors and Davidian family members.

Plaintiffs’ attorneys wrapped up their case earlier Thursday.

Evers, who was shot in the forearm and whose bulletproof vest blocked the two shots to his chest, testified he never pulled the gun from his holster as he lay bleeding in a ditch near the compound for two hours on Feb. 28, 1993.

``I was too scared to move from where I was,″ he said. ``The ground was dancing and bullets whizzed by.″

Eventually, sect members and the government reached a cease-fire. Once the cease-fire had been called, Evers, still laying injured, said he remembered hearing someone yell: ``Leave our women and children alone! You got four minutes to get out or else!″

Four agents with the Bureau of Alcohol, Tobacco and Firearms and six Davidians died in the raid designed to serve search and arrest warrants on sect leader David Koresh.

Government attorney Marie Hagen then questioned ATF agent Kris Mayfield, who testified he saw Koresh standing unarmed at a door of the complex as agents approached the building.

Seconds later, Koresh entered the building, closed the double doors behind him and gunfire broke out, Mayfield said.

Hagen showed jurors the left side of the battered door which was riddled with 13 bullet holes. Nine holes were from outgoing and four were from incoming shots, she said.

Earlier, a military official testified that three surveillance helicopters were shot at as they approached the compound during the raid.

``One of the pilots made a call that he was taking fire and started to turn away from the compound,″ testified Air Force Col. William G. Petit, who was a passenger in one of the helicopters. ``It took me by surprise because we were not anticipating any fire from the compound.″

Government lawyers presented jurors with a gashed metal panel from the rear of Petit’s helicopter that supposedly was caused by a bullet shot from the compound.

Under cross-examination Petit conceded he could not tell whether the gunfire came from sect members or from friendly fire from other agents.

Plaintiffs claim that during the initial raid federal agents fired indiscriminately.

They also allege that on the day the siege ended, federal agents violated an approved plan when they had tanks punch holes in the building to spray tear gas, contributed to or caused at least some of the three fires that engulfed the compound, and failed to have firefighting equipment at the scene.

After plaintiffs rested their case, U.S. district Judge Walter Smith without comment denied government attorneys’ request to dismiss the case.

U.S. Attorney Michael Bradford claimed that evidence presented since June 19 when the trial began failed to prove the government shares responsibility for the deaths of more than 80 people killed in the raid and seven weeks later on the final day of the sect’s standoff with the government.

Bradford estimated the government could wrap up its case in two weeks.

A five-member jury will act only as an advisory panel to Smith, who will deliver the verdict. Separately, Smith will consider the question of whether federal agents shot at Davidians during the siege’s fiery end.