Lawyer Reveals Expert Witness Findings



David Hardy
April 30, 2000


David Hardy is an attorney who has been involved in civil litigation relating to the Waco raid of 1993. Hardy had significant dealings with Carlos Ghigliotti, an expert Congress had hired to review infrared film taken during the FBI raid of the Koresh compound. For the first time Hardy reveals what Ghigliotti told him about the film.


For the last year I have been privy to certain secrets which I was sworn not to reveal. For reasons I'll mention later, I am now released from my promise of secrecy.

The presence of FBI gunshots on the Waco FLIR [Forward-Looking InfraRed] videotapes has been news for the past few months, but the story had been sitting on media shelves for years before that time.

The FLIR videotapes were made by an FBI aircraft orbiting the Davidian building and show the scene as if it were a black and white video, in terms of heat and cold. The most important tapes were made on April 19, 1993, the day of the fire.

On that day, FBI swore again and again it did not fire a single shot and tried its best to keep Davidians from burning in the blaze.

My involvement in the Waco matter began in 1995, when a friend of mine contacted me about the case. Apparently "60 Minutes" had taken an interest in the aerial infrared footage and sent it to be analyzed by a private firm called Infraspection. While experts at Infraspection determined the blips of light on the footage were gunfire, "60 Minutes" decided not to air the story at that time.

I contacted Infraspection and they offered me the names of other infrared specialists who might be willing to take on the work.

They highly recommended Ghigliotti, who ran a lab in Laurel, Md.

Ghigliotti said that before he would put his name on an opinion, he would need a first-generation copy of the original FBI tape; he would stake his reputation on nothing less than the best material. At that point, the best we had were third-generation copies in VHS, so we had to let the matter go.

Three years later, in late 1999, I got a call from Ghigliotti. He needed some other Waco videos which I had pried out of the FBI and ATF.

He related that he had been retained by the House Government Reform Committee, chaired by Congrssman Dan Burton, and was examining the FLIR tape under their authority.

Ghigliotti added that he had obtained a remarkable copy of the FLIR, a quantum leap above what anyone else possessed. He had discovered that, even when the FBI said it was passing out a first-generation copy, it was in fact giving out a copy, not of the original tape, but of a digitized "master copy."

Knowing that digitization compresses the image and discards detail, he had demanded and gotten a copy of the original 1993 tape, made in Super VHS with some format specifications which ensured it had all the sharpness and quality of the original.

By good fortune, I was flying to his area on some work anyway, so I arranged to visit him in his lab.

It was impressive. He had a bank of Super VHS recorders feeding a row of large monitors, and tapped into a pair of the hottest computers I'd yet seen. With this, and some hardware he had personally designed, he could coordinate two, three, or four different videos and show them in parallel, frame by frame; thus an infrared image could be played alongside a simultaneous video made in visible light.

He was a pilot, and used the arrangement to track things such as illegal water pollution (the polluting water is generally warmer than the river or bay into which it flows, and thus shows up on infrared, while the coordinate visible image makes it easy to spot the location.).

Ghigliotti had no politics that I ever noted, he was proud of his skill, and he was rigorously honest. He staked his reputation on every opinion, and made sure that it was unimpeachable.

In fact, he once mentioned, he'd been hired by the FBI in the past, and cited them as a reference. He would let the chips fall where they might.

Sitting there in his lab, I was a bit cautious about asking his opinion of the Waco tape. I got a feeling, though, when he remarked, "The only thing that pisses me off over this, Dave, is when I hear government officials lying about things that I know happened, because I've seen the evidence."

It was perhaps typical of him: A lack of honesty was more offensive to him than the prospect of official abuse or even homicide. Carlos lived by the truth and could not condone any failure in that arena.

Carlos Ghigliotti did offer me a few previews. He ran a portion of the FLIR video, which depicted events after an FBI tank had demolished the large room, commonly known as "the gym," at the back of the Davidians' home.

By this point, the gym was a field of construction rubble loosely attached to the main building. In the midst of the image a strange flash occurred, perhaps ten feet long.

I asked what it was — clearly it was too long for a gun flash.

"That's a bullet in flight," Carlos said. I knew that a bullet after firing is far too hot to pick up, but I'd never realized they could be seen in infrared. I asked him if he was sure.

"I've imaged them when I've flown over shooting ranges. I know what I see there," was his reply.

Carlos rewound the tape.

"Now, let's see what he was shooting at." He pointed to a spot in the gym wreckage. The unmistakable image of a human being was there, jumping up from behind the cover of one pile of wreckage and sprinting to dive behind another.

The bullet flash came just after he dove down.

"Missed him by half a second," Carlos said.

I almost gasped. On my FLIR copies — previously described as first generation, the best you could get — the flash was visible but the man was not.

Carlos' copy, and equipment — and his eye for detail — had found the holy grail.

He had proof that the FBI was lying.

FBI agents had dismounted from the tanks and engaged in a foot assault, invading the building.

"Yes," Carlos said, "they're lying."

He showed me another preview. This one was from ordinary color video, shot by telephoto media cameras from their position miles away. It was shot aftter the fire was already raging. The images were blurry and the angle shallow — bushes and tanks blocked part of the view of FBI agents moving around.

I'd seen the tape before, but Carlos' eye had seen what mine had not.

"Watch this guy here," he said, pointing to a specific human image on the other side of the parked tanks.

The agent moved, stopped ... and took a shooting stance. You couldn't see the weapon, but it was the stance of a man shouldering a rifle.

Then he turned his head toward the cameras, saw that he was on a line-of-sight with the media positions, and suddenly ducked down and lunged in front of one of the tanks.

That wasn't all. Carlos showed me another of the conventional video sequences.

From in front of one of the tanks came a long bright streak of fire, looking like a large tracer bullet.

"That's not a sunlight flash. I've imaged the same flash from videos taken at two ... no, three ... different angles," Carlos said. "I think it's the fuse on a pyrotechnic grenade."

The "pyros" are teargas shells, well known for starting fires.

I noticed that the angle of the flash was decidedly downward. Carlos explained that the FBI was shooting down into the Davidians' underground storm shelter, sometimes called "the pit."

I said wait a second ... the pit was the exit of the underground tunnel leading out of the Davidian house.

The tunnel was where the FBI (incorrectly) thought the women and children had been placed. So now the FBI is gassing what it thought was their only escape route out of the fire. Carlos nodded affirmatively.

Before I left that day, Carlos gave me another tip.

There is a soundtrack on the last FLIR tape — I should listen to it carefully. When I got back to my office, I did just that.

Before I was through, my jaw was sagging. FBI officials had admitted they stopped fire engines from responding to the fire, but only for a few minutes, until they thought it was safe for the engines to go in.

The soundtrack of the FLIR picks up their radio traffic that day. On the soundtrack, the commander at the scene is calling for fire engines, being told they are on the way, and hearing reports that none are arriving.

He finally gets so upset that he screams into the radio, "If you have any fire engines down there, get them up here immediately!"

He is told they will be there momentarily ... and none arrive.

Either he had been overruled by higher command, or the agents had gone insubordinate and were making sure the Davidians would burn. There was also a strange conversation about someone outside the building, and then pops that sounded like gunfire, and the FLIR aircraft pilot's asking another crewman "did you hear that?"

Carlos and I stayed in touch by telephone and e-mail. I sent him useful data when I found it, and kept my mouth shut.

By the end, Carlos told me that he had spotted nearly 200 likely gunshots, many at full auto.

The FBI hadn't merely fired shots on April 19, it had hosed down the back of the building with rapid gunfire.

Carlos had carefully plotted the movements of each shooter. He could now show shots from one location, the shooter moving to another, and shots from his new site.

At least two individuals were shooting, close in to the building, with others lending support from a distance. And, all the while, the FBI was giving out press statements claiming that the flashes could not be gunfire because no shooters were visible near them.

The FBI was digging itself deeper and deeper into the hole.

Carlos also told me that he'd seen FLIRs from nights before the gassing assault, and that it was apparent that the FLIR aircraft was being used to monitor the Davidians' water supply.

The water was stored in those big plastic tanks at the rear of the building, and the coolness of the water inside showed up as a darker area. It was apparent that the water supply was shrinking, and by April 19 was almost gone. He had heard the aircraft crew talking about it and noting that the level was going down.

So, essentially, they knew that thirst would force an end to the siege within a few days of April 19. Which also meant that the FBI officials had lied to Reno when they said the Davidians had plenty of food and water and the siege was unlikely to end soon.

During this time-frame, Carlos's name first cropped up in the press, as an expert for the House Government Reform Committee who had opined that the FBI fired shots. Strangely, the Committee distanced itself from its own expert, stating in the same article that his opinion was based on regular video rather than FLIR — which wasn't the case.

I asked Carlos if the Committee was abandoning him and covering matters up.

No, he replied, it was quite the opposite. He was briefing them on virtually a weekly basis.

They had uncovered a lot more information than he had. What he knew he couldn't talk about, except that one tiny part of it was that, not only the initial ATF raid, but the entire siege, had been funded out of money dedicated to the war on drugs.

One might say that the entire Waco affair was funded by official embezzlement, since all legal guidelines for use of those millions had been violated by ATF and FBI.

There were other things, he added. But these could simply not be let out.

They were sufficiently shocking to where the Committee was genuinely concerned that, if known, they might inspire violent retribution from radicals.

I said I'd heard statements like that — the truth about Waco could not be explored, for fear of violence, but discarded them as agency excuses.

Carlos said no — the fear is real, and it's not poppycock. The truth is really that grim. The Committee had not yet figured out how to reveal the truth without running this risk, and until it did, it had to disavow his work and sit on the other information.

Much of the data was in the hands of certain key reporters (a few of whom he named), and they were sitting on it for the same reason. But it would come out in time.

In March of this year, Carlos called with several more discoveries that truly sealed the matter.

He'd managed to spot when a hatch opened on the tank at the back of the building, and when a crewman got out of it.

That crewman then fired at an image of a man who fled back into the burning building. Carlos had said that the House Government Reform Committee knew the name of the FBI agent under that hatch. When his testimony was taken, he denied everything — but began shaking violently as he did so.

Carlos had another breakthrough. I'd spotted a strange flash on the tape, and for once had found one that he'd missed. While he was looking for that, however, he found some other flashes.

He told me that he could now link, by time and place, one of the conventional video images of an FBI agent taking a shooting stance, to the FLIR image of a gun flash at the same location and instant in time. The case was now open and shut.

Then, sometime in March of this year, his relationship with the Committee began to break up. I have only his side of the story on this. Apparently, the committee staff wanted quick results.

His response was that he had cataloged nearly 200 likely gunshots. To pin down each one to the certainty he required would take some more months. He wanted, not merely to say something looked like a gunshot, but that after examining every other possibility, after tying in the media videotapes and soundtracks, that there was no possibility it could be anything else.

He had reached that certaintly with some gunshots, but not with the rest. The staffers got into arguments with him. They wanted results, right then.

Some threatened not only to stop payment, but to sue him for what he'd already been paid. Chairman Burton himself called and tried to chew him out.

I urged him to stay on with them — this was vital, and politicos were often hard to work with, you just had to put up with them. He called back a day later and said he'd thought it over and, no, he had better things to do than work with people who threatened him.

He was going to give a preliminary report, brief majority and minority staff, finish his report on the gunshots of which he was certain, and present that with a list of all the things he had not been able to analyze.

On March 18, he faxed me a copy of his preliminary report, identifying when the FBI agent (described simply as an "unknown subject") exited the tank hatch, and the gunfire of which he was certain, together with a brief outline of the movements of the FBI shooters. (As it turns out, this fax is apparently the only surviving copy of that preliminary report, other than those given to the Committee.) In late March, he briefed the staffs.

It goes without saying that by this point, Carlos had become a rather dangerous commodity.

He had found the most solid of evidence that implicated virtually the entire FBI Hostage Rescue Team, and the FBI's high command, in clear perjury.

To the extent they were shooting and gassing in order to pin people in the fire, they were tied in on attempted murder, and accessory after the fact to attempted murder, as well.

Men were collecting government pensions who deserved to be in prison. The survival of HRT — the reputation and perhaps survival of the FBI — were on the line.

This was far worse than J. Edgar Hoover's COINTELPRO, far worse than Watergate, and after years of covering up, the entire agency hierarchy was now stuck to the tar baby.

Now Carlos was no longer under the Committee's control; he was free to talk to whomsoever he chose. Indeed, he had already briefed one of the Davidians' attorneys, and was mulling over whether to testify in the wrongful death suit they had brought.

I've said that I had sworn secrecy, and that I'm now released from that promise. This is a rather long article, but there is a reason. It's in part a memorial for a feisty and totally honest guy I came to like a good deal.

On April 19 of this year, from a hotel room in Waco, I called Carlos to report a minor discovery I had just made at the scene. I got his answering machine, but when it came time to leave a message, the tape just said "tape finished. Thank you for calling."

I thought he'd run out of tape — never happened before, but who knows?

I tried again from time to time, with the same result. I sent e-mail asking him to call. No reply. Well, maybe he was out of town. He did have other court cases going, and had been talking about taking a vacation,

Early on April 29 I tried again, and this time nothing picked up; the phone just rang off the hook.

That afternoon I received a call. Carlos had been found dead in his office. (The press reports said in his apartment, but the address was that of his office; it was on the third floor of an office building, and had no living quarters.)

Perhaps his time was up. He was only 42, and looked in excellent shape (I bet he worked out), but he did have a Type-A personality. Whatever it was, the man most dangerous to a very powerful agency and scores of its agents had been removed from the scene.

The next day the House Government Reform Committee was quickly distancing itself from its own expert, a man who had been briefing it for months, had submitted his preliminary report a few weeks before, and had been briefing its staffs within the past two weeks.

An AP story quoted committee staff as saying that "Ghigliotti's work for the committee ended some time ago." Rumors were quietly placed that he was "controversial" and had been "fired by the Committee."

Let me set the record straight: I owe it to that honest man. In my phone log I have two calls from him, sometime between March 18 and March 23 (I often overlook writing in the new day). These are about 3-4 weeks before his death:

Notes on first call:

Kevin Binger, chief of staff to Burton, wanted report rewritten his way. Carlos needed stuff from locker (presumably Rangers' evidence locker or locker in custody of court) and committee refused to send him (Carlos) down there. [Again, the indication is that he's not fully broken off relations.]

Notes on second call:

Shots from side of tank. He had been showing the FLIR of a tank hatch opening and a guy coming out of the CEV to the Demo staff members; they agreed that the hatch opened but some didn't agree they could see the person. They knew by name the person under that hatch. Guy dismounts and shoots at a Davidian. Something about audio track at another point says tank is in pursuit of an unidentified subject. [Word unclear, begins with C, likely "Congress"] only wanted his anomaly list [i.e., his list of thermal anomalies, rather than a study of each]. Over a hundred of those. Something about four gunshots. He suggested Demos might pay for analysis of the rest. Demos unaware. [As I recall, he said the minority staff had been kept apprised only of the major developments, and were surprised to learn of all the details.]

I had placed high hopes on the Congressional inquiry, but my trust level is rapidly declining.

Carlos had said that the Committee would let it all out eventually, that they were just keeping a distance from him in the press reports until that time.

But now he's dead, and the Committee is claiming falsely that he was fired and had not worked for them for some time. But for his fax, and a phone log, the story might pass muster and his discoveries be buried with him.

I'm beginning to wonder if Carlos wasn't a bit too trusting of his employers. There are ways to silence congressional oversight.

J. Edgar Hoover was a master of that ... it was amazing what a few files on the pecadillos of congressmen could do. And so far, for all the thousands of pages of documentation the Committee has gotten — for the secrets they had uncovered, that Carlos takes to his grave, but considered so damning of the agencies that it might inspire another Oklahoma City — not one word has been revealed to the public, and no hearings are scheduled.

Nobody ever said that politics is conducive to honor. But Carlos deserved better — he was a genuinely honorable man.




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