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Supreme Court Decision Could Cut 
Jailed Davidians' Sentences!

Written By TOMMY WITHERSPOON  -  6 June 2000

Supreme Court decision could cut jailed Davidians' sentences

By TOMMY WITHERSPOON 

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. 

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