U.S. Supreme Court will hear appeal from Branch Davidians

Waco Tribune, January 14, 2000
By Mark England And Tommy Witherspoon

The Supreme Court Friday agreed to hear the appeal of five Branch Davidians challenging lengthy prison sentences for using enhanced weapons during a gun battle with the government at Mount Carmel.

Four ATF agents and five Davidians died in the Feb. 28, 1993 shoot-out. The Davidians argue they shouldn't have been given longer sentences for carrying machine guns or grenades because the San Antonio jury hearing their cases never decided what kind of weapons they had.

Presiding juror Sarah Bain agrees with them. "That's been one of my bones of contention from the beginning," Bain told the Tribune-Herald . "It was a question never put to the jury. It was not in any of the matters we had to determine as a jury. I felt like the judge overstepped himself in making determinations we weren't even asked to consider."

Surviving Davidians had differing reactions to the court's decision.

"This is wonderful," said Sheila Martin, a Branch Davidian who left Mount Carmel days after the ATF raid. "This means so much. This will give encouragement to the men that their waiting and hoping was not in vain. They just want to have a chance."

Clive Doyle, who was acquitted at the trial, was less enthusiastic. "We have been pitching not to get the case reviewed or to get another trial but to get them out, because I don't think they should even be in there," Doyle said. "But this is a start in the right direction anyway." After the 1994 trial, Davidians Jaime Castillo, Brad Branch, Renos Avraam and Kevin Whitecliff were convicted of voluntary manslaughter. Graeme Craddock was convicted of possession of a grenade.

The jury also found the Davidians guilty of possessing a firearm while committing a violent crime.

U.S. District Judge Walter S. Smith Jr. of Waco, however, initially set aside the latter, arguing the convictions were inconsistent with the jury's acquittal of the defendants on the charge of conspiracy to commit murder. Smith, however, reinstated the convictions after prosecutors argued that inconsistent verdicts were still valid legally because each individual charge was like a separate indictment.

Although the jury wasn't asked what weapons the Davidians used, Smith determined they had enhanced weapons (machine guns or grenades) through use of the so-called "fortress theory." It's based on a defendant's access and proximity to weapons during a crime. Smith subsequently tacked 30 years onto the sentences of the four Branch Davidians also sentenced to 10 years in prison for voluntary manslaughter.

Craddock, given a 10-year sentence for possession of a grenade, received an additional 10 years on the weapons charge.

"This is a very good day," said Waco attorney Richard Ferguson, who is handling Brad Branch's appeal. "When you have been fighting for a client for five years and getting nowhere and then you finally have some hope, it is a good day. We are just pleased that some court is finally willing to take a look at our issues. We feel we have a very good chance at success." Waco attorney Stanley Rentz, who represents Craddock, called the court's decision "a big step."

"It is an issue that needs to be resolved as to whether or not you are carrying a weapon that carries a 30-year sentence or one that carries a five-year sentence and who determines it: whether it is a jury or a judge," Rentz said. "I think it will help in a lot of different cases. The unfortunate thing about it is that they can only review part of the overall case."

Doug Tinker, the Corpus Christi attorney who represented Brad Branch at his trial, said no evidence was presented six years ago to connect Branch with a machine gun.

"There's evidence that he had a firearm," Tinker said. "But it was clear from listening to the witnesses who cooperated with the government that it could not be classified as a machine gun." Bain, too, doesn't believe the evidence showed the Davidians carried enhanced weapons.

"I think there were automatic weapons on the premises," Bain said. "It's not something the jury was asked. But whether someone used them or carried them, that wasn't substantiated during the trial to my thinking." Bain said she's always regarded the weapons-charge count given jurors as "crazy."

"We had to find them guilty if we believed they used or carried weapons," Bain said. "To me, there's a lot of difference between moving around a box of grenades and pulling the pin on one and throwing it. But the law gives them the same weight."

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