div CESNURCenter for Studies on New Religions


"Judges cut terms of 5 Davidians"

by Michelle Mittelstadt ("Dallas Morning News", June 6, 2000)

WASHINGTON - The Supreme Court on Monday significantly trimmed the prison terms of five Branch Davidians, ruling that a judge erred in applying a federal gun law that escalates punishment based on the firepower used.
In a unanimous decision, the nine justices said U.S. District Judge Walter S. Smith Jr. of Waco should have left it to the jury to determine whether the five sect members used machine guns rather than regular firearms during a deadly gunbattle with government agents outside Waco in 1993.
Federal law provides five years in prison for offenders carrying or using a firearm during commission of a violent or drug-related crime. The penalty jumps to 30 years if the weapon used or carried is a machine gun.
In sentencing the five Branch Davidians, Judge Smith made the finding that they had access to machine guns. The jury had found them guilty of using firearms, but did not go beyond that determination.
Judge Smith's machine-gun determination, later affirmed by the 5th U.S. Circuit Court of Appeals, was reversed Monday.
"To ask a jury, rather than a judge, to decide whether a defendant used or carried a machine gun would rarely complicate a trial or risk unfairness," Justice Stephen G. Breyer wrote for the court.
Defense lawyers said the Supreme Court's ruling will lop 25 years each from the prison sentences of Renos Lenny Avraam, Brad Eugene Branch, Jaime Castillo and Kevin A. Whitecliff, who were sentenced to 10 years for voluntary manslaughter in the Feb. 28, 1993, deaths of four federal agents, and 30 years for using machine guns during a violent crime.
The court's action will result in a five-year reduction for Graeme Leonard Craddock, who was sentenced to 10 years for possession of a grenade and 10 years for the machine-gun offense.
The Justice Department declined to comment, but the Davidians' attorneys pronounced themselves happy with the ruling, finding particular significance that the decision was unanimous.
"We are happy for our clients," said Waco lawyer Richard G. Ferguson, who represents Mr. Branch. "They didn't deserve 40-year sentences. To know the evidence against them, it was just ridiculous. And I think justice is what has happened."
Echoed John F. Carroll of San Antonio, who represents Mr. Avraam: "Sometimes the wheels of justice turn slowly, like they did in this case, but they turn."
The five sect members, who have been incarcerated since 1993, could find themselves freed as early as 2006 based on time off for good behavior, their lawyers said, predicting that the men would be resentenced to lesser terms in the next few months. They were convicted in 1994.
The Supreme Court ruling "means that they'll have a life still, I guess," said Mr. Castillo's lawyer, Stephen P. Halbrook, who argued the case before the high court in April. "They will still be relatively young when they get out."
Steven R. Rosen of Houston, who represents Mr. Whitecliff, said his client was incredulous when told of the court's ruling. "He couldn't believe it," Mr. Rosen said. "We would just continue to be hammered every time we turned around, starting at the trial."
Mr. Halbrook and the other lawyers have long accused the government of drumming up the firearms violations at the 11th hour, after a jury had acquitted the Davidians of the major charges against them: conspiracy to murder federal agents, or aiding and abetting the murder of federal agents.
"There was a temptation to stick it to the defendants to basically nullify the jury verdict convicting them only of relatively minor charges compared to what they could have been convicted of," said Mr. Halbrook, a Virginia lawyer.
In arguing the case before the Supreme Court, the Justice Department said Congress gave judges wide discretion in applying federal sentencing guidelines. The government also argued that the type of weaponry used is a sentencing factor to be determined by the judge, not an element of the offense that a jury must find beyond a reasonable doubt.
The justices rejected the sentencing factor argument. The fact that the punishment for the machine-gun offense is six times greater "points to the conclusion that the difference between the act of using or carrying a 'firearm' and the act of using or carrying a 'machine gun' is both substantive and substantial - a conclusion that supports a 'separate crime' interpretation," Justice Breyer wrote.
"We believe that Congress intended the firearm type-related words it used ... to refer to an element of a separate, aggravated crime," the court found.
The gunfight between the Davidians and agents of the Bureau of Alcohol, Tobacco and Firearms began a standoff that ended seven weeks later with a fire that destroyed the sect's retreat.
More than 80 Davidians died during the inferno, which is the subject of congressional inquiries, a special counsel investigation ordered by Attorney General Janet Reno and a lawsuit that heads to trial this month.

"Juror in sect members' federal trial applauds Supreme Court decision"

(Associated Press, June 6, 2000)

AUSTIN - A juror in the Branch Davidian criminal trial praised a ruling Monday by the U.S. Supreme Court reducing the sentences of five Davidians on weapons charges.
"Oh, it's a wonderful relief," said Sarah Bain of San Antonio, the jury foreman in the 1994 criminal trial of followers of religious leader David Koresh.
Ms. Bain, a retired schoolteacher, remains outspoken on the legal plight of the convicted Davidians. She traveled to Washington to observe the Supreme Court arguments on their behalf this spring.
In a unanimous decision, the court ruled that a federal judge misused an anti-gun law when he increased the sentences of five survivors of the 1993 siege at the Davidian compound near Waco.
Four Davidian defendants were given additional 30-year sentences for use of illegal firearms on top of their 10-year sentences for voluntary manslaughter in the deaths of four federal agents.
A fifth who was sentenced to 10 years for use of a grenade got 10 years added on to his sentence.
"I really was just very upset by the sentences," Ms. Bain said in a telephone interview. She explained that the jurors, who had acquitted the Davidians of the more serious murder and conspiracy to commit murder charges, expected the convicted defendants to receive relatively light sentences.
Federal law subjects anyone who uses or carries a "firearm" during a violent crime to five years in prison, but the sentence length jumps to 30 years if a machine gun is used.
When she attended the sentencing before U.S. District Judge Walter Smith, Ms. Bain said she was surprised he added the extra years for use of machine guns.
"That had been nothing that the jury had been asked to decide," she said. "Apparently the judge was using a guilt by association. ... The defendants were never specifically tied to the use of illegal weapons."
Jurors, not the judge, should have been permitted to determine whether machine guns were used in the crime, the Supreme Court ruled.
The fact that the sentences were reduced restores "a sense of justice" to the Branch Davidian legal proceedings and underscores the constitutional right to a trial by jury, said Stephen P. Halbrook of Fairfax, Va., the lawyer who argued for the Davidians before the Supreme Court.
Mr. Halbrook said he hopes the ruling will bring some closure to the division in the nation over the 1993 deadly raid in Waco and the ensuing 51-day standoff that ended in the fiery deaths of Mr. Koresh and some 80 followers.
"Here you have the highest court in our country standing up and saying, 'Look, these people were not treated according to the law,'" Mr. Halbrook said.
The Justice Department had no comment on the court's ruling Monday, nor did the judge's office in Waco.
The case is expected to be returned to Judge Smith's court. Mr. Halbrook predicts the five Davidians will be resentenced to five-year terms for the firearms charges on top of their initial 10-year sentences.
Ms. Bain said she continues to question whether government officials acted properly in leading the raid by the Bureau of Alcohol, Tobacco and Firearms in Waco.
"I keep waiting for those that did the provoking - in other words, the government - to have to face similar charges," she said.
Branch Davidian survivors and relatives have filed a wrongful-death lawsuit against the federal government over the raid. A trial is scheduled to begin June 19.

"Supreme Court decision could cut jailed Davidians' sentences"

by Tommy Witherspoon ("Waco Tribune-Herald," June 6, 2000)

The U.S. Supreme Court Monday reversed the lengthy prison terms given to five Branch Davidians in 1994 and sent the cases back to a federal judge in Waco.
The unanimous opinion could cut the sentences of four of the five sect members from 40 to 15 years and the fifth from 20 years to 15.
The ruling also settles a conflict among the nation's federal appellate courts by stating that prosecutors must prove to a jury what type of firearm was used in a violent crime if that is an element of the offense. A judge cannot sentence defendants based on his own determination of the type of gun used, the court said.
Davidian defense attorneys Monday said U.S. District Judge Walter S. Smith Jr. will now have to drastically reduce the sentences he imposed six years ago. However, it was unclear whether the judge has the option of submitting the weapons issue to another jury.
The court ruled that Smith erred when he determined that the Davidians used machine guns during the Feb. 28, 1993, government raid on David Koresh's Mount Carmel compound near Waco and bumped the sentences of some of them from five to 30 years on the weapons count.
The high court ruled that the firearm issue must be decided by a jury, which was not asked in the Branch Davidian criminal trial in 1994 to determine what types of weapons were used.
"There is no reason to think that Congress would have wanted a judge's views to prevail in a case of so direct a factual conflict, particularly when the sentencing judge applies a lower standard of proof and when 25 additional years in prison are at stake," Justice Stephen G. Breyer wrote for the court.
Federal law calls for mandatory, five-year prison terms for those who carry or use a "firearm" during a violent crime. That term can jump to 30 years for those convicted of carrying or using machine guns or what are known as "enhanced" weapons.
"This is a victory for justice," said Stephen P. Halbrook, the Fairfax, Va., attorney who argued the case before the Supreme Court in April on behalf of the Davidians. "It vindicates our system of a right to a jury trial and the right to know what you are charged with. The decision was nine to zero. That tells you that the court thinks it was an easy case for them, and that has implications that I won't go into about what happened below in the trial court."
Judge Smith was out of town Monday and was not available for comment on the court's ruling or how he intends to act in accordance with the ruling.
Waco attorney Stanley Rentz, who represents Davidian Graeme Craddock, said he believes handing the issue back to another jury would be unconstitutional double jeopardy. He likened that scenario to a defendant being tried once for manslaughter and then prosecutors electing to try him later on more serious charges.
Sect members were tried in San Antonio in 1994 on various charges, including conspiracy to murder federal agents, stemming from a gunbattle at Mount Carmel in which four agents from the Bureau of Alcohol, Tobacco and Firearms and five Davidians were killed.
Four members were acquitted of all charges stemming from the gun battle and a fifth was convicted of a weapons count. Six others were convicted of manslaughter and carrying or using a firearm during a crime of violence.
Davidian attorneys believed the firearm charge carried a mandatory additional five-year prison term.
However, Smith, responding to a motion by federal prosecutors, found that the Davidians had used machine guns and increased their prison sentences from five to 30 years on the weapons charge.
The question of what kind of weapons the Davidians used was not alleged in the indictment and was not presented to the jury.
Smith sentenced Kevin Whitecliff, Jaime Castillo, Renos Avraam and Brad Branch to 30 years on the weapons charge and stacked on that additional 10-year terms for manslaughter. Graeme Craddock, who was sentenced to an additional 10-year term for possession of a grenade and using a firearm during a crime, could get his sentence cut by five years.
Davidian Livingstone Fagan, who also is serving 40 years, elected not to appeal his sentence. However, that could change in light of the Supreme Court ruling, Halbrook said.
Whitecliff, 38, in a telephone interview with the Tribune-Herald just minutes after hearing the news from his attorney, Steven (Rocket) Rosen of Houston, said he was "elated."
"I'm still feeling it right now, it has just been a minute. I'm sure it will take a while to sink in, but I now see some light at the end of the tunnel," he said from a federal prison in Beaumont, Texas. "I had some hope that it would happen after the Supreme Court agreed to hear it. It made no sense to me for them to hear it and not to make a decision on it in our favor. "
Whitecliff, who like the others has been in custody since 1993, still must serve from six to eight years more in prison, attorneys in the case said.
He said he has no plans for after his release.
"There's light, but it's still a pretty long tunnel," Whitecliff said. "I'm open to suggestions."
Rosen predicted after oral arguments in the case April 24 that the Supreme Court would order the sentences reduced.
"Justice triumphs," Rosen said Monday. "I feel good for the Whitecliff family. They will have a bright, sunshiny day today. This will probably put a smile on their face for the first time in eight years. We knew we were right and it finally came to fruition."
Former U.S. Attorney Bill Johnston of Waco, who helped prosecute the Davidians at the 1994 trial, said he was not "overly surprised" by the Supreme Court order.
"It was always a very divisive issue, one that was a close call at best," Johnston said. "Because the law has gone back and forth on this and it was never a sure thing. There was a very credible theory that under the Pinkerton Doctrine of accountability that if the defendants in a conspiracy use a machine gun, which they did, that that conduct would be attributed to all members of the conspiracy."
Johnston said he thinks the sentences were justified "for the killing of those agents."
"But it was always an open question of law. There was always a question of whether the law could be applied that way," he said.
Waco attorney Richard Ferguson, who represents Branch, and Rentz, Craddock's attorney, disagree with Johnston.
"We are happy for our clients because the 40-year sentences were just an unjustified sentence, and I think that so many people agree with that," Ferguson said. "This will at least get it back within some semblance of reason, not that I think they deserve 15 years. But this is more reasonable. They have done seven years, and I think that is long enough, in my opinion."
Rentz said he is glad that his client will be able to return to his native Australia sooner.
"It's been a long, hard journey," Rentz said.
Sarah Bain, a retired teacher from San Antonio who served as presiding juror in the criminal trial, has made no secret of her disdain for the judge's decision to bump the sentences up to 30 years for the weapons counts. She traveled to Washington in April to attend the Supreme Court oral arguments, saying she hoped to personally witness the overturning of the sentences.
"Needless to say, I am elated," Bain said Monday. "I believe that the Supreme Court did what should have been done all along. The firearms statute as it was written was a little too vague to determine if it was up to the jury or the judge to determine what type of firearm was used. Now that the Supreme Court has said that is a jury issue, I think that is totally proper.
"We did determine that firearms were used, but we were never asked to consider the type of firearms. Then the judge determined that illegal firearms were used. I don't have any idea what we would have done had we been asked, but it should have been the jury's decision," Bain said.

"Davidians' Sentences Set Aside"

by Richard Carelli (Associated Press, June 6, 2000)

WASHINGTON (AP) - The Supreme Court today set aside the lengthy prison sentences given to five Branch Davidians who survived a 1993 siege at the sect's Waco, Texas, compound. The court ruled that a federal judge misused an anti-gun law to increase their punishment.
The unanimous decision makes it harder for courts to find lawbreakers deserve extra time behind bars because they used or carried machine guns during their crimes.
A federal law subjects anyone who used or carried a ``firearm'' during a violent or drug-related crime to five years in prison. The term jumps to 30 years for anyone who used or carried a ``machine gun'' during that same crime.
Federal appeals courts had split on whether determining use of a machine gun is an element of the offense a jury must find beyond a reasonable doubt, or merely a sentencing factor a judge gets to determine by a preponderance of the evidence.
The nation's highest court said use of a firearm must be determined by the jury.
``We believe Congress intended the firearm type-related words it used ... to refer to an element of a separate, aggravated crime,'' Justice Stephen G. Breyer wrote for the court.
Five Davidians were convicted in 1994 in the killings of four federal agents during a botched Bureau of Alcohol, Tobacco and Firearms raid on the compound outside Waco.
The raid led to a 51-day standoff that ended when flames swept through the compound. David Koresh and some 80 followers died during the inferno, some from the fire and others from gunshot wounds.
A federal jury acquitted the five Davidians of murder and conspiracy-to-murder charges but convicted them of voluntary manslaughter. Each was sentenced to 10 years in prison for that conviction. The jury also found them guilty of using firearms.
The presiding judge tacked on 30-year sentences for four of them and a 10-year sentence for the fifth after finding that each had used a machine gun.
Renos Avraam, Brad Eugene Branch, Jaime Castillo and Kevin Whitecliff drew the 30-year sentences; Graeme Craddock the 10-year term. Craddock also was sentenced to a consecutive 10 years for using a hand grenade.
The jury never had been asked to determine what types of firearms the five had used. The judge made that determination during sentencing.
In appealing their sentences, the Davidians relied heavily on a decision in which the justices last year said carjackers cannot be given tougher sentences unless a jury, not a judge, determines that victims were seriously injured during that federal crime.
The case presumably will return to a federal trial court where new sentencing hearings will be conducted. Today's decision did not suggest appropriate new sentences.
The case is Castillo vs. U.S., 99-658.
On the Net: For the decision: http://supct.law.cornell.edu/supct/ Click on ``this month's decisions'' or http://www.supremecourtus.gov

"US high court overturns Branch Davidians' sentences"

(Reuters, June 6, 2000)

WASHINGTON (Reuters) - The Supreme Court overturned Monday the long prison sentences for five Branch Davidians for using machine guns during a shootout with federal agents in 1993 at the cult's compound near Waco, Texas.
The unanimous high court, in an opinion by Justice Stephen Breyer, said a federal judge had been wrong to use a federal firearm law to increase their sentences. Breyer said the jury should have considered the matter.
Under the law, Breyer said the type of weapon, such as a machine gun, used during a violent crime was an element of an offense to be decided by the jury and was not a sentencing factor to be determined by the judge.
Four federal agents and three Branch Davidians were killed during the Feb. 28, 1993, shootout that started when federal agents tried to arrest cult leader David Koresh. A standoff developed, and 51 days later Koresh and about 80 followers died in a fire after agents injected tear gas into the building.
Nine Branch Davidians who escaped were arrested and then put on trial.
Jaime Castillo, Brad Branch, Renos Avraam and Kevin Whitecliff received consecutive terms of 10 years in prison for manslaughter and 30 years for using machine guns during a violent crime. Graeme Craddock received 10 years for using a grenade and a consecutive 10 years for using a machine gun.
The firearm law imposes a five-year sentence but allows a 10-year term if the weapon was a semiautomatic firearm and a 30-year term for use of a machine gun or grenade.
The ruling sends the case back to the judge for a new sentencing.

"Supreme Court slashes sentences of Davidians who killed ATF agents"

by Steve Lash ("Houston Chronicle," June 5, 2000)

WASHINGTON -- The Supreme Court on Monday substantially reduced the prison terms of four men convicted of killing federal lawmen at the Branch Davidian compound near Waco in 1993.
In their 9-0 decision, the justices said U.S. District Judge Walter Smith of Waco improperly lengthened the sentences of the men found guilty of slaying four Bureau of Alcohol, Tobacco and Firearms agents.
Smith had increased the killers' imprisonment from 10 to 40 years after concluding that they had used automatic weapons to kill the officers. Under federal law, a judge can add 30 years to a convicted killer's sentence if the slaying was committed with an automatic weapon, rather than a less deadly firearm.
But the high court, in striking down Smith's enhanced sentence, said the type of firearm used is a factual question that a jury must answer, not a judge. The jury had concluded only that the men had used firearms before Smith determined on his own that they had fired automatic weapons, the court said.
Stephen Halbrook, an attorney for the men, hailed the court's decision as a reaffirmation of the right of defendants to have juries, rather than a single judge, decide important factual issues at trial.
"The right to a jury trial is supreme," said Halbrook of Fairfax, Va. "That's what distinguishes our legal system from other countries."
The attorney for Kevin Whitecliff, one of the four men, said his client was "ecstatic" with the court's ruling.
"It's a good day today," said lawyer Rocket Rosen of Houston. "Justice finally triumphed."
The Justice Department, which prosecuted the case, had no comment on the decision.
The four men -- Whitecliff, Jaime Castillo, Brad Branch and Renos Avraam -- are expected to be resentenced to 15 years each in prison, based on the initial 10-year sentence and a five-year boost judges are permitted to impose if any type of firearm is used.
A jury had convicted each of voluntary manslaughter and firearms possession in the shooting deaths of ATF agents Steven Willis, Conway LeBleu, Todd McKeehan and Robert Williams.
A fifth defendant, Graeme Craddock, was convicted of possessing a destructive device and sentenced to 10 years. Smith had added 10 years to the prison term after concluding that Craddock had possessed an automatic weapon.
His sentence is expected to be cut to 15 years, based on the initial 10-year sentence and five-year boost.
The New Orleans-based 5th U.S. Circuit Court of Appeals had upheld Smith's increased sentences last June, prompting the appeal to the Supreme Court.
In ruling for the men, the high court said Congress never intended to give judges the authority to decide for themselves whether a killer used an automatic weapon or a revolver.
Instead, lawmakers made the type of firearm used an element of the crime that must be determined by a jury beyond a reasonable doubt, Justice Stephen G. Breyer wrote for the court.
The slain ATF officers were part of a team sent Feb. 28, 1993, to arrest Branch Davidian leader David Koresh on weapons charges at the cult's compound at Mount Carmel, outside Waco. Twenty-two other agents were wounded when cult members fired on the officers during a two-hour gunbattle.
Six Branch Davidians were killed in the gunfire.
The fatal shootout was followed by a 51-day standoff between federal agents and cult members that ended April 19, 1993, when fire engulfed the compound after FBI agents flooded it with tear gas. At least 75 Branch Davidians, including Koresh, were killed by gunfire and the blaze.
Branch and Whitecliff had left the compound during the standoff on March 19, 1993, and were captured. Castillo, Avraam and Craddock fled the facility during the final blaze and were apprehended.
The end to the standoff has sparked an independent federal investigation into what role, if any, the FBI played in starting the deadly fire.
In addition, cult members who survived and the relatives of those killed have sued the federal government, alleging that officials bear culpability for the deaths.

"Davidian jury to serve in advisory role"

by Mark England ("Waco Tribune-Herald", June 4, 2000)

While there will be a jury in the June 19 trial on the wrongful-death lawsuit filed by surviving Branch Davidians against the federal government, U.S. District Judge Walter S. Smith Jr. of Waco won't have to follow its verdict.
By statute, the jury will be a so-called advisory jury.
"It is as if the jury does not exist from a legal standpoint," said an attorney familiar with federal civil procedure.
The role of such a jury is solely to advise a judge. On appeal, for example, the judge's findings entirely displace those of the advisory jury.
Smith announced last week that he'll seat a jury for the lawsuit trial.
Both sides in the lawsuit had expected Smith to hear the case. When FBI sniper Lon Horiuchi was dismissed from the lawsuit in March, only the federal government remained as a defendant. Federal law doesn't provide for a jury hearing in civil cases not involving individuals.
"The judge has the discretion of impaneling an advisory jury, and he can treat the findings of the advisory jury as though they were the findings of a jury in a case where there was a right to a jury trial," said Bill Underwood, the Leon Jaworski professor of practice and procedure at Baylor University School of Law.
The Federal Rules of Civil Procedure (39c) authorize the use of advisory juries.
"In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury...."
Advisory juries are common in cases involving issues of community standards, such as obscenity laws.
How much judges rely on advisory juries varies, according to an article in the Harvard Law Review .
Some judges will sustain an advisory jury's verdict if it isn't "clearly erroneous," according to the article. However, other judges treat an advisory jury's verdict as an additional piece of evidence and "only part of the data taken into consideration in arriving at the court's independent conclusion."
Having a jury — even an advisory one — changes the dynamics in the courtroom, said Dick DeGuerin, the Houston attorney who represented David Koresh during the siege.
"It's a different ball game," DeGuerin said. "With a jury, you have a cross section of the community. They're somewhat less predictable than a judge. A judge, no matter how fair they try to be, they get reputations, proclivities, after they've been on the bench for awhile. They become defense-minded or plaintiff-oriented. Judges are subject to prejudices just like any other individual.
"With juries, you've got a group mentality. You've got to convince everyone or none."
U.S. Attorney Michael Bradford of Beaumont, who will help defend the government, said having a jury will force government attorneys to change their tactics.
"We are still going to try to streamline the presentation as much as possible, but, inevitably, I think we will have to present some more information because the judge has a great deal of information about this case that the jury, presumably, won't have," Bradford said. "... We want to make sure that the jury will have the necessary background."
Bradford declined further comment on Smith's decision to impanel a jury.
Smith's May 26 jury order did not lay out his reasoning. However, Smith did note that he made the decision after having "considered the importance of the issues involved in this case..."
Houston attorney Mike Caddell, the lead plaintiffs attorney, thinks having a jury will help win public acceptance of any verdict, given that Caddell expects the government to "retry" the 1994 criminal case. Smith was the presiding judge at the San Antonio trial of 11 Branch Davidians.
"Their approach to this whole case is that they (Davidians) were a bunch of bad people and they deserve whatever they got," Caddell said. "That is the government's case in a nutshell, and I think because Judge Smith presided over the criminal trial, it was wise for him to bring in a jury."
Baylor's Underwood discounts speculation that having a jury takes the heat off Smith.
"From what I know of Judge Smith, I don't think he's ever been afraid of any heat," Underwood said. "I just think that whatever the decision, it will be more widely accepted if there is a jury."
In some ways, the difference between having a regular jury and an advisory jury is illusory.
Federal judges, if they don't like a verdict, already have the authority to toss out a regular jury's decision. Smith has done that several times in the past.
In 1989, Smith tossed out a jury's $250,000 award against the Salado Independent School District and ordered the plaintiff, former superintendent Nolan Kinsey, to pay the school district's court costs. Smith ruled that Kinsey, suspended by the school board for supporting a slate of opposing school board candidates, did not have his right to free speech violated, arguing that it wasn't protected since it was only voiced in an attempt to save his job.
Three years later, Smith voided a jury's award of $1.4 million to former Waco police sergeant Mike Nicoletti, who sued the city for what a jury determined to be a punitive transfer. Smith labeled the jury's award "excessive." He ordered a trial only on damages, which led to Nicoletti getting about $35,000.
Opinions differ on which side in the lawsuit will benefit by having a jury.
"We're very happy at having a jury," Caddell said. "I think people in the Waco area have changed their minds about the Davidians after seven years. That doesn't mean they condone their lifestyle. But I do think they're absolutely convinced after all that's come out in the last year that the government bears some responsibility for what happened at Mount Carmel."
DeGuerin, however, doesn't think having a local jury will favor the plaintiffs.
"Look at how a Waco jury would not even give Clive Doyle and the Davidians their very own land back," DeGuerin said. "... I think there's a lingering resentment because Waco was put on the map in a way it didn't want to be put on the map."

"Davidians ask court to set aside sentence"

("USA Today," June 3, 2000)

WASHINGTON (AP) - The 30-year prison sentences given to four Branch Davidians who survived the 1993 Waco siege should be struck down because a judge improperly applied a firearms law to enhance the penalty, their lawyer told the Supreme Court Monday.
The law allows for stiffer sentences for defendants who carry certain types of weapons, including machine guns and bombs, during a violent crime.
The Davidians' lawyer, Stephen Halbrook of Fairfax, Va., argued the sentences were inappropriate because no jury ever determined the type of weapon carried by the defendants.
''There is no evidence that ties a machine gun to any of these petitioners,'' Halbrook said.
Assistant Attorney General James K. Robinson defended the law, saying Congress intended to give judges leeway at sentencing to provide more substantial punishment. Prosecutors only were required to prove that the Davidians committed a violent crime, he said.
The five Davidians were convicted in 1994 of voluntary manslaughter in the slayings of four federal agents during a botched Bureau of Alcohol, Tobacco and Firearms raid on the sect's compound outside Waco, Texas. The raid led to a 51-day standoff that ended with a fire that killed Davidian leader David Koresh and some 80 followers.
Each of the five Davidians was sentenced to 10 years in prison. The presiding judge tacked 30 years more onto the sentences of four men - Renos Avraam, Brad Branch, Jaime Castillo and Kevin Whitecliff - after finding they had carried firearms during commission of a violent crime.
A fifth Davidian, Graeme Craddock, was sentenced to 10 years for using a grenade and was handed a consecutive 10-year term for using a machine gun.
The jury never was asked to decide what type of firearm was used. U.S. District Judge Walter Smith did not determine whether the defendants had used machine guns during the Feb. 28, 1993, gun battle but said the weapons had been available to them.
The firearms law allows a judge to add a five year sentence for carrying a weapon during commission of a violent or drug-trafficking crime; 10 years if the weapon is a semi-automatic firearm; and 30 years if it is a machine gun or destructive device. Smith's ruling was upheld by the 5th U.S. Circuit Court of Appeals. But the justices appeared concerned Monday by the sentence-enhancing aspect of the firearms law and the authority granted to judges to substantially inflate sentences without a jury determination.
''We're all obviously struggling with the way to approach this case,'' Justice Stephen G. Breyer said. Halbrook said later that the government only pursued the firearms violation option after failing to secure convictions against the Davidians on the far more serious counts of murder and conspiracy to commit murder.
''This is a case where the prosecution decided since they could not give stiff sentences for murder, then they would think up a new theory and say, 'Well, these people were carrying machine guns, let's give them a 30-year sentence,'' Halbrook told reporters. ''This was an afterthought to stick it to them.''
The five Davidians should serve no more than 15 years, Halbrook argued: 10 years on their original convictions and five years apiece for carrying a weapon during commission of a violent crime.
The jury's forewoman, who traveled to Washington to observe the case, said they were troubled when the judge tacked on the firearms sentences.
''We were absolutely shocked at the severity of the judge's augmentation of what we thought was going to be a slap on the wrist of the defendants,'' said Sarah Bain of San Antonio, Texas. ''We didn't know anything about the five years to 30 years.''
The case is Castillo vs. U.S., 99-658.

"Branch Davidians' lawyer asks judge to impound work of deceased expert"

("Dallas Morning News," June 2, 2000)

The lead lawyer in the Branch Davidians' wrongful death lawsuit asked a federal judge Monday to impound all information relating to the 1993 siege of the sect's compound from a Washington-area office where an infrared expert was found dead last week.
Mike Caddell of Houston said he sought emergency intervention from the court in Waco to ensure that all significant information was preserved from the Laurel, Md., office and home of Carlos Ghigliotti.
Police were still investigating the cause of Mr. Ghigliotti's death Monday. An official with the Maryland medical examiner's office in Baltimore, where an autopsy was performed over the weekend, said the inquiry remained pending Monday afternoon.
Police found Mr. Ghigliotti's decomposed body in his office on Friday after being called by a building manager, who had become concerned that the 42-year-old infrared analyst had not been seen for several weeks.
Mr. Ghigliotti gained attention last fall after being hired by the House Government Reform Committee to review an FBI infrared videotape taken on the final day of the Branch Davidian siege.
He told The Washington Post that he had determined that repeated flashes on the video came from government gunfire - an assessment that mirrored the analysis of two retired Defense Department experts the sect's lawyers hired.
Government officials have said no one on their side fired any shots on April 19, 1993, the day that a federal tear-gas assault ended in a fire that destroyed the compound. More than 80 sect members were killed.
British infrared experts retained by the federal court in Waco and the office of special counsel John C. Danforth to conduct a field test to help resolve the issue recently told U.S. District Judge Walter Smith that they believed none of the flashes on the video came from gunfire.
Judge Smith told both sides in the case that the British firm, Vector Data Research, would submit its final report on May 8 and would provide "conclusive evidence" linking each flash to a specific cause, such as sunlight reflecting off broken glass.
Some other experts, including those retained to help defend the government, had previously said that the flashes on the video were caused by falling debris, sunlight reflecting off objects on the ground or the movement of FBI tanks that were injecting tear gas into the compound that day.
But Mr. Caddell and other lawyers representing surviving Branch Davidians and families of those who died have questioned Vector's conclusions, particularly the finding that no people were visible on the infrared video until well after the sect's compound began burning.
Mr. Caddell and another lawyer, David T. Hardy of Tucson, Ariz., said Mr. Ghigliotti had recently shown each of them repeated examples of what he said were images of people visible in the vicinity of some of the unexplained flashes that appeared on the film in the hour before the fire.
Mr. Caddell wrote Mr. Danforth's office on April 17 and asked investigators to interview Mr. Ghigliotti, saying that the analyst had shown him one particularly compelling image on the video in which the hatch of an FBI armored vehicle "clearly opens, and it appears someone emerges from that tank."
Mr. Caddell's letter stated that image appeared as the compound began burning and only seconds before a series of flashes appeared near the same armored vehicle.
"I have been trying to reach him for the last few days, but he is apparently out of town," the April 17 letter stated. "In any event, his work is by far the most impressive I have seen in terms of analyzing the April 19 . . . [videotape], and I do not think you can fully appreciate his work unless you visit his lab and spend several hours with him reviewing key points."
Mr. Caddell also told the court last month that he planned to hire Mr. Ghigliotti to replace his principal infrared expert, who recently suffered a stroke.
"Mr. Ghigliotti's work product on this issue is extremely important to plaintiffs and to the court's analysis and conclusions," Mr. Caddell's Monday motion stated.
"Accordingly, plaintiffs seek an order from the court preserving the completeness and integrity of that work product. Without such an order, plaintiffs have no assurances that third parties will not lose, damage or destroy (innocently or intentionally) irreplaceable work product by Mr. Ghigliotti."

"JP plans inquest into Davidians' 1993 death"

by Mark England ("Waco Tribune-Herald," June 1, 2000)

Justice of the Peace David Pareya of West said he still plans to hold an inquest into the 1993 death of Branch Davidian Michael Schroeder, but it won't be until after the upcoming wrongful-death lawsuit filed against the government by surviving group members.
Schroeder, a Davidian, was shot and killed trying to enter Mount Carmel several hours after a deadly shoot-out between the Davidians and the Bureau of Alcohol, Tobacco and Firearms.
"There is going to be a lot going on at the trial that will be of interest to me," Pareya said. "I'm interested in what Danforth does as well. I prefer to wait and see what actions they might take and the information disseminated before holding an inquest."
Special Counsel John Danforth is investigating the FBI's actions at Mount Carmel for Attorney General Janet Reno.
Pareya announced last November that he would hold an inquest into Schroeder's death.
"We don't have a budget for this type of process," Pareya said. "There is no people power on this other than myself and my staff. It's left up to us to deal with it and the rest of our docket."
A review of his files showed the Schroeder case to still be pending, Pareya said. He was one of four local justices responsible for determining the cause of death for the 82 Davidians who died at Mount Carmel on Feb. 28 and April 19, 1993.
The inquest would lead to an official ruling on the manner of Schroeder's death, Pareya said.
Pareya declined to comment on whether he would test the cap that Schroeder was wearing when he was shot and killed.
Schroeder, Woodrow Kendrick and Norman Allison were at a repair shop called the Mag Bag owned by the Davidians when the ATF raided Mount Carmel on the morning of Feb. 28, 1993. Later that day, all three men tried to sneak into the compound. Schroeder allegedly fired shots at patrolling ATF agents and was killed when they returned fire. The ATF agents who shot Schroeder maintain they identified themselves before firing. They claim Schroeder shot first.
An autopsy showed Schroeder was hit by at least seven gunshots. Two gunshots were to the head, including the right ear. The autopsy found no evidence of powder tattooing or soot deposition, which would point to a shooting at close range. No tests were conducted on a watch cap worn by Schroeder, however.
The cap disappeared until Mike McNulty, who produced the film "Waco: Rules of Engagement," reported seeing it while visiting the Texas Department of Public Safety evidence locker last year. He said the hat contained visible residues.
"They hid the hat Mike was wearing when he was shot," Schroeder's mother, Sandra Connizzo, wrote the Tribune-Herald in an e-mail. "Thanks to Mike McNulty there is hope because he saw it in the evidence locker. That hat was photographed on Mike when he was on the ground and counted in his list of possessions. Then, at the medical examiner's office, it was no longer part of the effects.
"This could be a very significant cover-up because the hat was never tested to see if Michael was shot in the head from a close proximity."
Pareya said he hopes to hold the inquest before the end of summer.
He has received assistance from Danforth's office in getting records related to the scope of the inquest, but Pareya declined to elaborate.
"We've asked for assistance in getting some documentation," Pareya said. "They've got their own project, of course. We've asked them to go outside of their routine on some issues. We're waiting for them to get back to us. I'm the last guy on the totem pole. I understand that."

Waco, FBI and the Branch Davidians: Updates

CESNUR reproduces or quotes documents from the media and different sources on a number of religious issues. Unless otherwise indicated, the opinions expressed are those of the document's author(s), not of CESNUR or its directors

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