There seem to be almost daily announcements of new developments as lawyers for the Branch Davidians and the federal government make motions in the wrongful death suit filed by Branch Davidians, stemming from the 1993 siege at Waco.
The federal judge presiding over the lawsuit denied the Justice Department’s (DOJ) request to throw out most of the plaintiffs’ claims on April 24.
The government had asked US District Judge Walter Smith to reject three of the five major aspects in the civil lawsuit—that federal agents erred in not bringing in armored firefighting equipment; that they wrongly held back firefighters as the compound burned; and that using tanks to push into the compound deviated from the operations plan the attorney general approved.
Smith’s order, released at the close of a pre-trial hearing dealing with alleged evidence tampering, said: "The court has determined that too many material fact issues are presented to justify dismissal or summary judgment as to the claims remaining in the lawsuit."
Trial on All Issues
Michael Caddell, lead counsel for the Branch Davidian plaintiffs, said: "This means we will go to trial on every issue, including gunfire.
Earlier, Smith confirmed that a preliminary review of infrared videotapes recorded during the final hours of the 1993 siege found no firearm muzzle flashes from either federal agents or sect members.
Preliminary results from the court experts’ analysis, which compared the 1993 aerial footage to recordings made during a March 19 field test at Fort Hood, showed the flashes most likely were sunlight reflecting off debris, not government gunfire, the judge said.
Smith said he did not consider the findings "conclusive evidence" and will consider testimony from other experts during this summer’s wrongful-death trial being brought against the government.
Negatives Missing
The DOJ admits it cannot find the original negatives of an important roll of film taken on the last day of the siege of the Branch Davidians’ complex, The St. Louis Post-Dispatch reported on April 18.
But the DOJ says it hasn’t tampered with those photos or with infrared and electronic surveillance tapes of the 1993 episode that left about 80 Davidians dead.
The government acknowledged in a court filing that it is missing 30 original negatives from the first of at least seven rolls of film shot by an FBI photographer who circled 1,000 feet above the complex in a Cessna surveillance aircraft.
But the government does have prints of the missing negatives and the original contact sheet of the negatives.
An April 21 court filing also says that the FBI ignored a California company’s offer of remote-controlled armored firefighting equipment less than two weeks before the deadly fire that ended the siege, according to Associated Press.
On-Scene Commanders
And, the plaintiffs said as part of their wrongful-death lawsuit against the government, that the FBI’s on-scene commanders also did little to prepare for the possibility of fire despite Attorney General Janet Reno’s directive that they be ready for all emergency contingencies.
They point to a memo jotted down in the FBI’s Washington command center 10 days before the siege’s fiery end advising that the two on-scene commanders had decided "there would be no plan to fight a fire should one develop in the Davidian compound."
The local volunteer fire department’s personnel and fire trucks were kept away from the burning building—a decision that FBI special agent in charge Jeffrey Jamar told Congress he made out of concern that the firefighters could be hit by Davidian gunfire or exploding ammunition.
Sentencing Appeal
Meanwhile, the US Supreme Court on April 24 questioned the way a judge sentenced Branch Davidians who are seeking to cut 25 years from their prison terms for their part in the Waco saga, according to The Dallas Morning News.
The justices will decide whether the judge or jury should have decided whether machineguns were involved in the deaths of four agents with the Bureau of Alcohol, Tobacco and Firearms.
Smith, who also presided at that trial, included that finding in sentencing four defendants to a total of 40 years in prison and a fifth to 20 years. The offenses included voluntary manslaughter and use of a machinegun during a violent crime.
In appealing to the Supreme Court, a defense attorney said the jury never got the chance to decide whether machineguns were used.
That finding by the judge constituted 30 years of the 40-year prison sentences; crimes with unspecified firearms normally require only five years, which would reduce the sentences to 15 years.
"Firearm type is frequently contested at trial, and it’s usually an issue for the jury," attorney Stephen P. Halbrook told the court during an hourlong hearing.
A Justice Department attorney said Congress gave judges wide discretion in applying federal sentencing guidelines.
"There’s strong evidence of the use of machineguns and destructive devices," assistant attorney general James K. Robinson said.
The Supreme Court will decide the case by early July. If the justices side with the defendants, all five would be eligible for release in 2008; otherwise, four would serve until 2033 and a fifth until 2013.
Five Davidians were convicted in 1994 of voluntary manslaughter in the slayings of four federal agents during a botched ATF raid on the sect’s compound. 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 machinegun.
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 machinegun or destructive device.
Smith’s ruling was upheld by the 5th US Circuit Court of Appeals. But the high court justices appeared concerned on April 24 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.
Murder Count Outcome
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 machineguns, 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, TX. "We didn’t know anything about the five years to 30 years."