ISABEL G. ANDRADE, et al. Plaintiffs,
v.
PHILLIP J. CHOJNACKI, et al. Defendants

Judge Atlas  (Note: Now Judge Walter J. Smith)

CIVIL ACTION NO.  H-94-0923
and consolidated actions:
Holub v. Reno             H-94-2153
Ferguson v. Reno          H-95-0218
Brown v. U. S.            H-95-0587
Riddle v. Reno            H-95-0602
Gyarfas v. U.S.           H-95-1142
Martin v U.S.             H-95-4246

             My name is RICHARD L. SHERROW and am President of RICHARD L. SHERROW and Associates in Mesa, Arizona. I am a former Fire and Explosion Investigator with the Bureau of Alcohol, Tobacco and Firearms, United States Department of Treasury, and retired as a Senior Explosive Ordnance Disposal Technician from the United States Army. I
have more than thirty years experience as an explosives and arson investigator, have been involved in over 40 major fire investigations, and have qualified as an expert witness in federal and state court in 18 states. In addition to arson, fire and explosion expertise, I have served as a Staff Instructor at both the U.S. Army Chemical Center and School and Redstone Arsenal and have been a technical writer and instructor in the use of chemical and biological weapons, including riot control agents.
              In addition, I have received training from the BATF, FBI, U.S. Army,  U.S. Navy, U.S. Air Force, DuPont and the Federal Law Enforcement Training  Center (FLETC). I have attended the Ohio Fire Academy and the National Fire  Academy (NFA). I am also a graduate of the Police Academy at Jacksonville  State University, Jacksonville, Alabama. I am a past member of the  International Association of Bomb Technicians (IABTI).
               I have made a preliminary investigation into the cause, origin,  nature and growth of the fire which consumed the Mount Carmel Center near  Waco, Texas, on April 19, 1993, and where members of the Branch Davidian  religion perished as a result of said fire. This preliminary investigation  was based upon the Forward-Looking Infrared (FLIR) video, still photographs  extracted from the FLIR, still photographs taken from the air and from the  ground during the fire, broadcast news video, videography taken by a  private investigator while the government was in control of the Mount  Carmel Center, signed statements and interviews of Branch Davidians who  survived the fire, official reports and case notes of federal and state law  enforcement agents, the reports of the United States' fire investigators  (namely Paul Gray and James Quiontere) and from my own personal inspection  of the fire site.
             Based upon this preliminary investigation, I am able to conclude,  within my professional opinion, that it is consistent with this evidence  that the fire originated from a single point and spread throughout the  Mount Carmel structure. It is also consistent with evidence that the  original fire was started by a M728 CEV striking the southeast corner tower  of Mount Carmel. These conclusions are as consistent with the evidence as  the conclusions reached in the Gray and Quientere reports and they are in  direct contravention to conclusions reached in the Gray and Quientere  reports.

              Mount Carmel Center was a multi-storied, wood-frame building of  irregular construction. It was built of about half used lumber and building  materials cannibalized from houses that had existed on the property  previously and from new materials purchased for its construction. The  building was constructed haphazardly over time without any attention to  fire safety. Some of the building's interior lacked wallboard or finishing.  Those areas of the building which had been finished were completed with  highly flammable materials.
              Contained within the building on the first floor were the living  quarters. dining and kitchen areas, several storage rooms, a chapel and  gymnasium. A four-story tower was located near the center of the structure  and contained a reinforced-concrete room used to house a walk-in cooler for  food storage. This concrete structure was built in the 1930's and had  survived a previous fire some years before.
              The second floor was contiguous over the first and also contained  living quarters. Both corners of the building in front contained a third  story. Moreover, the four-story tower had a fourth floor directly over the  third.
               Foundation, slabs and piers were homemade with unreinforced concrete  and did not contribute significantly to the building's resistance to  mechanical shock. The roof was of decked plywood construction, overlaid  with asphalt composition roofing materials.
               External electrical power was turned off to the structure prior to  the fire but a diesel generator of unknown capacity was present within the  structure and had been known to be energized intermittently between  February 28 and April 19, 1993. Moreover, several storage areas and rooms  were known to contain large amounts of highly flammable and combustible  materials, including, but not limited to, gasoline, kerosene, lamp oil,  Coleman lantern fuel, paint, petroleum distillates, tar and roofing  materials, acetylene and oxygen containers, gunpowder, metal shavings, and  a large quantity of small arms ammunition.
               Internal heating and cooking fires were provided by improvised  wood-burning stoves and propane fueled gas ranges, respectively. Due to the  lack of external electrical power, internal lighting was accomplished with  Coleman-type gas pressurized lanterns and glass oil-burning wick lamps.
               It is known that a large, commercial-type gas range was located in  the kitchen/dining area adjacent to the four-story tower. This range was  fed by a large, 100 pound propane tank located externally to the dining  room. The propane was conducted through the wall at that location by a  conduit pipe. The tank appeared to be nearly full of propane as evidenced  by a spectacular boiling liquid expanding vapor explosion (BLEVE) during  the fire.
               Mount Carmel Center was occupied as a multi-family residential  building with shared common areas, including a commercial-sized kitchen,  and compartmented into many smaller rooms used for personal quarters.

              On April 19, 1993, at approximately 6:00 a.m., agents of the Federal  Bureau of Investigation began executing a plan to introduce a riot control  agent, ortho- chlorobenzalmalononitrile (CS).
               CS is a micro-pulverized particulate riot control agent designed for  crowd dispersal in open areas. Although no open or closed cup flash point  has been determined for CS, it is a combustible solid. Published  information on CS by the National Institute for Occupational Safety and  Health (NIOSH) states that the ceiling exposure limit for CS is 0.05 parts  per million (ppm) or approximately 0.2 milligrams per cubic meter (mg/m3).  The ceiling exposure limit is not to be exceeded at any time. NIOSH  information lists CS as having an immediate danger to life and health  (IDLH) exposure limit of 2 mg/m3. Information contained in the U.S.  Justice Department report on Waco states that 10 mg/m3 is the  concentration of CS which will deter trained troops. Moreover, powdered CS  may be a fire hazard in concentrated quantities and can produce a flammable dust.
               During the next six hours, the FBI utilized M728 Combat Engineer  Vehicles (CEV) to breach the outer walls of the building and to inject CS.  A CEV is a large armored vehicle, weighing in excess of 50 tons, is  equipped with a 165mm demolition gun and is modification of the M60A1 Main  Battle Tank, The CS was injected by use of a Mark V delivery device. The  MK-5 delivery device consisted of several bottles of pressurized carbon  dioxide which was used to entrain the particulate CS in a gaseous stream,  This stream was injected into the structure through a nozzle located on the  end of a boom connected to the CEV.
               In addition to the CS injection utilizing the Mark-5 delivery systems  on the CEVs, FBI agents in Bradley Infantry Fighting Vehicles (BIFV) fired  SGA-400 Ferret barricade penetrating cartridges into windows and areas not  reachable by the CEVs. A Ferret is a 40 mm projectile containing  particulate CS and a liquid suspension agent, methylene chloride. The  Ferret is a non-pyrotechnic munition specifically designed for barricade  situations. At least 400, and possibly more, of these Ferret rounds were  fired in and at Branch Davidians during the breaching and CS insertion  operation.
               Besides the SGA-400 Ferret cartridges, information from documents  obtained from the FBI through the United States Department of justice  indicates that military pyrotechnic munitions may have been fired into  Mount Carmel. Documents disclosed indicate that agents could not penetrate  either the underground shelter roof or the top of the rear four-story  tower with Ferrets. Therefore, they fired at least one "military" round and  referred to this munition as a "bubblehead." As a retired U.S. Army senior  explosive ordnance disposal technician, I am unaware of the nomenclature  and function of a "bubblehead" nor can I find any reference to such a  munition in official military publications. However, I am familiar with a  device known as a "bunker buster," which is a munition about the size of a  softball and designed to penetrate fortifications. I recall that this  munition was of foreign manufacture and filled with plasticized high  explosive (HEP). It may have had other fillers, including chemical riot  control agents. The exact identity of a "bubblehead" would have to be  determined before any possible contribution to the fire could be  established.
               In the event that members of the Branch Davidians contemplated or  began to execute a mass suicide, it was the plan of the FBI Hostage Rescue  Team (HRT) "to disrupt any suicide attempt with flash-bangs." "Flash-bang"  generically refers to pyrotechnic stun munitions designed to temporarily  incapacitate or disorient personnel by producing a loud report and blinding  flash. These munitions contain an explosive/incendiary pyrotechnic  composition. A number of these munitions manufactured by the Nico  Corporation were known to be fired during the 51 day standoff and were in  the possession of the FBI HRT on April 19, 1993. Use of stun munitions in  barricade situations is extremely hazardous due to the potential of causing  an accidental fire.
               In addition to the CS and methylene chloride introduced by the above methods, the Gray report refers to the induction of choloracetophenone  (CN), another riot control agent. CN comes in both liquid and powder forms:  CN-B is a mixture of CN and benzene and CN-C is a mixture of CN and  chloroform in a liquid state. CN is highly flammable in its liquid state;  in its powdered state, CN has a flashpoint of 59 degrees C.
               It is known that many of the Branch Davidians were in possession of  protective masks. Therefore, the effective use of CS or CN would require  the introduction of quantities of these agents far in excess of that  required to deter trained troops (10 mg/m3 for CS) and well past the  levels required to pose an immediate danger to life and health (2 mg/m3 for CS). Calculations by engineers for an independent casualty laboratory,  Failure Analysis, Inc., have concluded that the average concentration of CS  inside of Mount Carmel was 10 to 90 times that necessary to deter trained  troops (100 to 900 mg/m3 ). In my professional opinion and based upon my  experience with the use of these riot control agents, the concentration of  CS and/or CN introduced was designed to overcome the protective masks by  rapidly debilitating their filters and posed an immediate threat to the  life, health and safety of those inside Mount Carmel, especially the  unprotected children.

               During the six hours of the escalated plan to introduce CS (and  possibly CN) into the Mount Carmel Center, CEVs made numerous breaches in  the exterior walls of the structure. The purpose of this breaching was  ostensively to provide openings for members of the Branch Davidians to  "escape" the building. However, these operations significantly damaged the  structure, causing numerous internal load-bearing failures and resulted in  restricted egress from the structure.
               As an example, the area immediately over the trap door leading to the  buried school bus and external underground storm shelter was obstructed by  debris. Further, both staircases leading to the upper floors were disrupted  or destroyed by the CEV breaching operations. At one point, a significant  portion of the building can be seen to be off its foundation because of the  repeated collisions of the CEVs with the structure. These breaching  operations probably resulted in sprung doors, destruction of flooring and  creation of attendant falling and entrapment hazards and probably prevented  normal communication between adjacent areas of the structure.
               Despite the claim that the purpose of the breaching operation was to  secure exits for the Branch Davidians, in reality the CEVs began to  systematically dismantle the building as evidenced by the destruction of  the gymnasium immediately prior to the fire.
               During the breaching operation, one of the CEVs (CEV-1) was ordered  to penetrate the structure from one side to the other. CEV-1, with its  bulldozer blade pushing debris in front of it, penetrated to the base of  the four-story tower, making contact with the concrete storage structure at  the tower's base. This structure was already in a weakened condition from a  previous fire as noted above. The contact, made by such a large and  powerful vehicle, probably caused a structural failure and resulted in an  internal avalanche of the room contents and partial failure of the concrete  ceiling. This entrapped numerous people, mostly women and children, who had  taken refuge therein.

               At about 12:06 p.m., CEV-1 was dismantling the southeast corner tower  of the exterior wall at the ground level. At 12:06:24, CEV-1 departed the  southeast corner, possibly clipping the edge of the structure as it turns  away. At approximately 12:07:41, a small heat signature is observed on the  FLIR in the second floor window of the southeast corner tower, less than  two minutes (and possibly as little as one minute, seventeen seconds) after  the CEV had made violent contact with that area of the building. This heat  signature is described by the Quientere report as a 100 kilowatt fire,  consistent with a "wastebasket" size fire and was estimated to be one-half  meter in diameter (about a foot and a half). This is consistent with a  small incipient smoldering fire that has erupted to produce visible flame.
               Survivors of the conflagration reported that a lit Coleman lantern  was located in that immediate vicinity. Coleman-type lantern becomes  extremely hot in operation, reaching as much as 700 degrees Fahrenheit.  This temperature is sufficient to cause ignition of combustible material  even in absence of an external flame source. Moreover, if the flame of the  lantern had been extinguished, the fuel would continue to be expelled from  the manifold under pressure from the tank. Personal conversations with the  manufacturer indicates that combustible materials should not be placed with  one foot from the lateral sides of an operating lantern and no closer than  four (4) feet from the top side due to heat production and risk of fire.
               If a lit Coleman-type lantern, which had been operating for some  time, had been knocked over by CEV contact with the building or shaking of  the building by vibration from the operation of the CEVs outside, the heat  from the lantern chassis, the mantle flame, and the continued production of  atomized fuel could cause a fire consistent with that observed on the FLIR  at 12:07:41.

               On April 19, 1993, the day of the fire, the government was operating  a United States Customs Cessna Citation jet aeroplane equipped with a  Forward-Looking Infrared (FLIR) video camera. A FLIR camera detects  infrared (heat) radiation, both that which is reflected, such as sunlight,  and that which is emitted from objects which are "hotter" than their  background. These differences are referred to as "heat signatures." A FLIR  camera cannot distinguish between reflection and emission or between  visible flame and hot smoke and gas. Further, there are no industry  accepted standards for use of this technology in fire cause and origin  determination.

               The following is the sequence of the fire as it appears on the FLIR:

12:06:24            CEV-1 leaves structure, possibly clipping southeast corner tower while turning away.

12:07:41            A small heat signature is observed in the southeast corner tower window, second floor, immediately over where CEV-1 had been operating a minute or so before.

12:08:49            A large heat signature is observed at the rear of the dining area and at the base of the tower.

12:08:56            As the FLIR aircraft circles the structure, sight is lost of the southeast tower but an explosion of hot gas is observed emanating from the southeast side. This appears to be consistent with a flashover and/or backdraft of the room of original fire origin. However, a flashover may have occurred earlier while outside the visual range of the camera.

12:09:12            A large heat signature appears in the front windows of the southeast tower. A long heat signature is observed streaming in the wind and spreading to the adjoining roof of the front of the structure.

12:09:31            A very large heat signature, consistent with fire and hot smoke, is seen breaking out around the eaves of the southeast tower.

2:09:44              A very large heat signature, consistent with hot smoke, gas or flame, is seen at the rear of the structure in the vicinity of the dining room area.

2:09:50              A small heat signature is observed in the windows of  the chapel on the southeast side of the structure.

12:10:00            A small heat signature is observed in the windows along the back of the front corridor of the structure and is consistent with hot gas, smoke and possibly flame travelling down the corridor.

12:10:22            A growing heat signature is observed in the wreckage of the gym and is consistent with fire growth from the chapel.

12:11:02            A very large heat signature emanates from the southeast corner, dining area and gymnasium. Hot fire brands are seen blowing off of corner tower roof and landing in vicinity of the dining area.

12:11:05            Firebrands are seen blowing off of the southeast corner tower roof and are sucked into hole in chapel area wall by ambient external wind and internal venturi effects.

          1.            At the time of ignition, there were ambient winds in excess of 25 knots gusting to 40 knots (28.7 to 46 mph). These extremelyhigh winds are quite significant with respect to the firegrowth and spread. The angle of the wind to the structure,from southeast to northwest, is in direct line with the fire growth and propagation as would be expected.

            2.            There were two large holes made in the front of the structure by the CEVs; one through the front of the double doors and one directly in the center of the building. Both of these breaching operations caused considerable structural damage to the flooring of the second story, opening that story to the one below. Moreover, high winds were able to enter through these breaches and create a venturi, or wind-tunnel effect, in the transverse corridors in the front of the building. This venturi effect created a negative pressure zone in the interior and pulled air from the southeast corner of the building toward the west and north sides. The velocity of the airstream was considerable according to eyewitness survivors. Further, an additional venturi is created by the demolition of the gymnasium and breaching of the exterior wall directly behind the chapel on the southeast side of the structure.

              3.            Despite the conclusions articulated in the reports authored by Gray and Quientere stating that the wind had nothing to do with the fire growth and propagation, another arson investigator retained by the United States to investigate the Mount Carmel blaze testified at the criminal trial that:
 

...what I believe to be substandard construction and the fact that some of its integrity had been compromised by the tanks, the building was well ventilated. Once the fire started, there was no reason the fire... could not just burn unheeded.

I might also add that the wind was a very real contributory factor to the... spread of the fire and to its intensity.

... what that would do, it would introduce a whole volume of air that may not have been available to the fire, and as the fire burns it needs that air to sustain itself. Not only would the construction or the fire load, whatever furniture may be inside the building, add to it, the holes were going to create a cross ventilation, which are also going to spread the fire in the direction of the wind.

          The National Fire Protection Association (NFPA) Publication 921,  Guide for Fire and Explosion Investigations, 1995 edition, gives standards  regarding opinions expressed by fire investigators. When forming opinions  concerning the cause and origin of a fire, an investigator should set  standards for the degree of confidence in those opinions. There are four  levels of confidence that can be regularly applied to such opinions:

          (a)       Conclusive. At this level of confidence, the hypotheses has  been tested and withstood all appropriate challenges while  all reasonable alternatives to the hypotheses have been  considered and eliminated due to their failure to withstand  a valid challenge, leaving only that hypothesis under  consideration as true.

          (b)       Probable. This level of confidence corresponds to being more  likely true than not. At this level of confidence, the  chance of the hypothesis being true is more than 50 percent.

          (c)       Possible. At this level of confidence, the hypothesis can be  demonstrated to be feasible but cannot be declared probable.

          (d)       Suspected. This level of confidence corresponds to a  perception that the hypothesis may be true, but there are  insufficient data to draw a conclusion to the exclusion of  any other reasonable conclusion.

          If the confidence level of the opinion is only "possible" or  "suspected," the cause should be listed as unknown, undetermined, or under  investigation. However, the following scenario and the opinion expressed  herein is consistent with the data available to me at this time. The degree  of confidence which I set for this opinion is possible.
            After reviewing the evidence, I have reached a preliminary conclusion  on the cause, origin, nature and growth of the fire. This opinion is only  preliminary as much additional evidence is required before any conclusion  can be reached which has a confidence level greater than possible.

          1.      The fire originated in the southeast corner tower from the  tipping of a lit Coleman-type lantern which fell onto  combustible materials, most likely bedding materials, as the  room was utilized as sleeping quarters, and was most likely  caused by violent contact or mechanical shock associated  with the CEV removing the corner of the southeast tower  directly under the point of origin. The time of origin could  have been as late as 12:06:24 p.m., but could have been  earlier.
          2.      The fire smoldered, producing toxic and combustible gases in  the room. As these gases collected, the combustible  materials ignited, producing visible heat and flame. This  ignition Is first detected by the FLIR at 12:07:41 but may  have been burning for some time prior to this.
          3.      A flashover of the second floor room of southeast corner  tower occurs, This appears on the FLIR at 12:08:56 but  appears to be already in progress. The flashover could not  have been observed earlier because the FLIR operator had the  southeast corner tower out of the field of view.
          4.      At the time of ignition, there were ambient winds in excess  of 25 knots gusting to 40 knots (28.7 to 46 mph). These  extremely high winds are quite significant with respect to  the fire growth and spread. The angle of the wind to the  structure, from southeast to northwest, is in direct line  with the fire growth and propagation as would be expected.
          5.      There were two large holes made in the front of the  structure by the CEVs; one through the front of the double  doors and one directly in the center of the building. Both  of these breaching operations caused considerable structural  damage to the flooring of the second story, opening that  story to the one below. Moreover, high winds were able to  enter through these breaches and create a venturi, or  wind-tunnel effect, in the transverse corridors in the front  of the building. This venturi effect created a negative  pressure zone in the interior and pulled air from the  southeast corner of the building toward the west and north  sides. The velocity of the airstream was considerable  according to eyewitness survivors. Further, an additional  venturi is created by the demolition of the gymnasium and  breaching of the exterior wall directly behind the chapel on  the southeast side of the structure.
          6.      Approximately ten minutes earlier, CEV-1 attempted to make a  through and through penetration from the front of the  structure to the rear. During this penetration, CEV-1 struck  the reinforced concrete structure at the base of the center  four-story tower wherein most of the women and children had  taken refuge. This deep penetration severely disrupted the  building structure and opened the ceiling of the dining area  to the second story hallway.
          7.      As the fire flashes over in the southeast corner tower, the  fire is pulled into the second story transverse hallway by  the venturi created by the ambient winds. Hot, burning and  combustible material is sucked by the wind and negative  pressure into the hallway and transported rapidly  throughout. Once these firebrands encounter the obstructions  in the middle of the building from the CEV-1 penetration,  they are ducted into the dining area by the breach in the  floor.
          8.       At 12:08:49, approximately a little over one minute, a heat  signature is observed at the rear of the dining area which  appears to be fire. Most of the heat signature appears to be  outside of the building at this point. The signature is  unique in that comparisons with visible light video show it  producing a white vapor which is consistent with burning  propane. Moreover, much combustible material, petroleum  distillates, paints, and lantern fuel were stored in the  rear of the dining area according to witnesses.
          9.       In addition to the venturi ducting down the transverse front  corridor, the fire grows because of the flashover from the  southeast corner tower fire and spreads rapidly through the  attic of the adjoining chapel. A surviving witness has  stated that he heard a cry of fire coming from the second  floor and went up into the chapel attic to investigate,  crossing a causeway built over the rafters. The chapel attic  and causeway were contiguous with the second floor front  corridor and separated only by a blanket. When the witness  arrived at the junction of the transverse corridor hallway  and the chapel attic, he observed a "wall of fire" traveling  down the corridor. The witness stated that:

I'm a drummer in a rock band. The fire was blowingdown the hall like a blowtorch and was the loudestsound I've ever heard. There was no way I could getinto that hall and couldn't stay  there because ofthe intense heat.

          The conclusions of the Government's experts assert that the occupants  of the building could have escaped the fire had they wanted to. In fact,  the Gray report states that occupants had up to five (5) minutes from the  ignition of the fire to exit the building. This is not consistent with the  fire spread or known reactions of fire-related human behavior.
          As noted above, the breaching operations of  the CEVs caused  considerable disruption and mechanical failure to large portions of the  structure; in fact, the entire southeast side of the building was knocked  off its foundation by action of the CEVs. This disruption probably created  multiple hazards including entrapment, crushing, and restrictions of egress  and community between floors. Early breaching operations are known to have  occluded access to the trap door leading to an underground shelter.  Eyewitness testimony and statements establish that CEV operations destroyed  or significantly damaged the two stairways leading from the upper floors,  trapping those occupants to the upper levels of the structure. Moreover,  doors were known to be sprung and were unable to be opened because of  structural distortion.
          The noise generated by the high winds blowing through the building  and that from the unmuffled CEV engines also would inhibit the spread of an  alarm. In fact, eyewitness interviews establish that the alarm of fire,  first broadcast from the site of origin, was not transmitted to the other  occupants because of noise interference and attenuation or acoustic  disruption due to structural damage.
          Many of the fire victims, mostly the women and children, died inside  or in close proximity to the concrete structure at the base of the four  story tower. This is the same structure which had been in the path of CEV-1  during its deep penetration. The actions of CEV-1 in making this  penetration had bulldozed large amounts of material, if not against, then  in front of the door, limiting egress. Witnesses believe that many of the  women took their children into the walk-in cooler to protect them from the  effects of the CS. The cooler had an air-tight door and was not  electrically energized.
          The injection of CS had occurred numerous times during the day. Each  injection filled at least part of the building with a dense cloud of  particulate matter, limiting breathing and visibility. When flashover  occurred in the southeast corner tower, the combustion products were  rapidly distributed throughout the building. This initial warning was  ignored by some occupants because they mistook the fire products as another  CS injection, delaying their apprehension of danger and severely limiting  their time for escape.
          As with all fires, the combustible products, including carbon  monoxide, carbon dioxide, hydrogen cyanide (all of which were found in the  Branch Davidian victims who died by smoke inhalation), deprive the brain of  oxygen and cause confusion, limiting a fire victim's ability to apprehend  danger and to execute a plan of escape. Moreover, the toxic combustion  products produced by the injection of methylene chloride into the  structure, phosgene (PG) and chlorine (CI) gas, could have rendered large  numbers of people unconscious and prevented their escape from the fire.  According to the Material Safety Data sheet and hazardous chemical data  published for methylene chloride, the vapors can readily accumulate and can  cause unconsciousness and death in confined and poorly ventilated spaces,  it is an eye, skin and respiratory tract irritant. Toxic, methylene  chloride is a narcotic in high concentrations and is metabolized by the  body to form carbon monoxide. Moreover, methylene chloride is flammable in  its vapor state, and may have contributed to the spread and rapid growth of  the fire.
          Taken in a totality, the government experts' claim that the occupants  of Mount Carmel Center could have escaped and that they had at least five  minutes to do so is not supported by the evidence. In fact, one expert  testified at the criminal trial that:
          Q. All right. But in any event -- but prior to it being -- and all of it's involved, and so people that may have been in there at the time of the fire's beginning were in serious trouble within two minutes of the start of that fire, weren't they, from the smoke and whatever else was going on?

          A. Probably two minutes and thereafter, yes.

          Some consideration must also be given to the psychodynamics of the  group considering their subjugation to psychological pressure tactics,  sleep deprivation and general apprehension and fear of the government  agents outside contributing to their delay to exit the building. The  behavioral response of an individual's awareness of the initial fire  incident cue (odor or visible smoke) often is a determinant outcome of the  fire incident. The manner in which an individual is alerted to the  occurrence of a fire may predispose the perception of the threat involved.
          Processes of social inhibition, diffusion of responsibility, and  mimicking appear to be primarily responsible for the inhibition of adaptive  and assistance behavior responses (rescue of self and others) by  participants in emergency situations. The inhibition of behavioral  responses in the early stages of a fire incident (when the fire incident  cues are relatively ambiguous) may predispose participants to a nonadaptive  type of behavior (failure to rescue self or others) since the available  evacuation time has been expanded.
          Thus, the psychological condition of the occupants after 51 days of  siege, the excessive introduction of CS or CN and any attendant toxic  effects, general and pervasive fear of external conditions and induced  group social dynamics most likely led to a delayed perception of danger  with tragic consequences.

          Before an expert opinion can be rendered in this case, much  additional discovery information is required. Much could be learned from  examination of the forensic evidence in the hands of the investigators,  including in situ photographs, fire pattern analyses, aerial video other  than the FLIR (there must be some), the original FLIR, identification of  all munitions and ordnance used, audio and video surveillance recordings  prior to and at the time of the fire, tactical and voice traffic logs and  recordings, sketches, drawings, line-sight diagrams, etc.
          Moreover, before an opinion can be rendered about the efficacy of  using FLIR technology to determine the cause, origin and growth of the  Mount Carmel fire, the exact manufacturer and nomenclature of the FLIR used  and the altitude of the orbiting aircraft would have to be known to  determine the FLIR's capabilities and resolution.
          At this point in time, since the fire scene has been completely  destroyed by the government, it is impossible to form an opinion on the  cause and origin of the fire with any degree ofcertainty greater than  possible without unrestricted access to the forensic information available  to and relied upon by the government's fire investigators. Until such time  as this information is available, no opinion can be expressed other than a  tentative, preliminary opinion as contained in this declaration.

          The accepted rule in fire investigation is to look for arson as the  cause only after all other sources of ignition have been eliminated. It  appears from an examination of the Gray andQuientere reports that they  proceeded in reverse fashion: determined that the fire was arson and set  out to prove it. Moreover, much valuable evidence was destroyed at the  direction of agents of the United States by the subsequent and needless  destruction of the fire scene by bulldozers.
          There are many occasions where suspicious, multiple origin fires were  initially thought to be arson but later were confirmed to be accidental.  For example, a large fire in Hialeah, Florida had multiple points of  independent origin and was ruled arson. Subsequent investigation showed  that the initial investigators where wrong in their conclusions and the  fire was determined to be accidental electrical in origin.
          It also appears that the initial investigation at Mount Carmel did  not attempt to rule out all possible causes of accidental origin as is  required in any fire cause and origin determination. In 1986, a large  loss-of-life fire occurred at the DuPont Plaza fire in San Juan, Puerto  Rico, in which myself and the United States' expert, Dr. Quientere were  involved. Despite the highly suspicious origin of the fire, an exhaustive  search was made for possible accidental origins prior to focusing on arson  as the cause. I do not believe this was done in this case.
          Based upon the information and evidence available to me, that  published by the United States Departments of Justice and Treasury, and  that submitted in the United States' Motion for Summary Judgment in the  above-captioned case, it is my expert opinion as a fire and explosion  investigator that no opinion could be reached by the government's  investigators which has a confidence level greater than possible as  explained above.
          The preliminary opinion expressed in this declaration is just as  consistent with the evidence and as plausible a scenario as that postulated  by the reports authored by experts for the United States. However, only  through the examination of additional forensic evidence believed to be in  the possession of the government's experts can a probable or conclusive  cause and origin determination be made.
          I declare under penalty of perjury that the foregoing is true and correct with in my personal knowledge except where such is based upon  information and belief, in which case I believe it to be true.

          Executed on January 17, 1996

RICHARD L. SHERROW
President
Richard L. Sherrow & Assoc. Fire & Explosion Investigator

Note: There have been  several updates to this orginal Declarations.