The lawyers argued in San Antonio before a panel of the 5th U.S. Circuit Court of Appeals that the five Branch Davidians neither used nor carried automatic weapons during the deadly shootout with federal agents.
Four of the five Davidians are serving 40-year sentences - 10 years for man- slaughter and another 30 years tacked on by federal Judge Walter Smith when he ruled that the Davidians used machine guns. Smith gave the fifth defendant a 10-year sentence on the use of an automatic weapon.
But defense lawyers say evidence is scant that the five - Renos Avraam, Brad Branch, Jaime Castillo, Graeme Craddock and Kevin Whitecliff - employed automatic weapons.
They also argued that the five should have been formally charged with the weapons violation and that Smith should have left the decision to the jury.
"We feel the judge does not have the decision-making power; the jury does," said plaintiffs' attorney Steven Rocket Rosen, according to the Houston Chronicle's early Wednesday edition.
Lawyers appealed the decision in 1996, two years after 11 Branch Davidians were tried in San Antonio. In that case, all 11 were acquitted of conspiracy and murder, but eight were convicted on lesser charges. Of the eight, six appealed, and after hearing their arguments, the 5th Circuit asked Smith to reconsider whether the cult members used automatic weapons.
Smith ruled that they had used automatic weapons. Lawyers for five Davidians then appealed back to the 5th Circuit.