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04/21/93
Cultists' prosecution will be challenging; Few similar cases were as tough, legal experts say
By Victoria Loe / The Dallas Morning News
Waco is still reeling from its 51-day nightmare, but for the authorities charged with bringing the surviving Branch Davidians to justice, an even longer ordeal is just beginning.
Even though David Koresh and most other potential defendants are believed to have been killed in the inferno that consumed their compound, charges have been brought against some sect members and may be brought against others.
And few legal cases, even those arising from confrontations with other disaffected political or religious groups, have been as daunting, say legal scholars and prosecutors, defense lawyers and judges.
"These are the kinds of cases where you really earn your money,' said Morris Arnold, a judge on the 8th U.S. Circuit Court of Appeals, who presided over a high-profile 1988 sedition trial in Arkansas. "They consume your life.'
"We had no concept of how hard it was going to be,' said David Schwendiman, an assistant U.S. attorney, referring to the prosecution of a Utah polygamist clan after a deadly 1988 standoff. Yet, for all its difficulties, that case was simpler than this one, he said.
Challenges to come
Virtually every aspect of the Branch Davidian case presents unique challenges:
* Texas Rangers and other investigators must gather physical evidence from a crime scene that was reduced to smoking rubble by Monday's blaze.
* Investigators must try to piece together a coherent picture from the recollections of more than two dozen surviving Branch Davidians as well as hundreds of government agents.
* Prosecutors must try to persuade cult members-most of whom reportedly remain devoted to their beliefs-to testify against one another.
* Defense lawyers must cope with clients who are hostile to almost everyone outside their own circle and contemptuous of civil authority.
* The judge must maintain order and security at a trial that is likely to attract many ideologically driven hangers-on in addition to hordes of journalists.
* Finally, all parties must gauge the subtle currents of public opinion, seeking to shape that opinion to their advantage.
"There's going to be plenty to worry about,' said McLennan County District Attorney John Segrest, whose office will prosecute any charges brought in state court. "I wish it (the site of the standoff) was in Limestone County.'
As of Tuesday, six Branch Davidians had been charged with federal offenses. Five-Kathryn Schroeder, Brad Branch, Kevin Whitecliff, Woodrow Kendrick and Norman Washington Allison-left the compound during the standoff. The other-Jaime Castillo-escaped Monday and was arraigned Tuesday.
The FBI has portrayed most of those released by Mr. Koresh as unimportant figures within the cult. However, prosecutors said Mrs. Schroeder was a leader among the women, and federal affidavits have named Mr. Whitecliff, Mr. Castillo and two others as members of Mr. Koresh's elite fighting force, known as "mighty men.'
Charges will be brought in state court if authorities decide to seek the death penalty available for murder under state law. The federal death penalty law, as written, can be used only in certain drug cases.
Possible federal charges include murder, attempted murder, conspiracy to murder and racketeering.
Most of the charges lodged so far have been for conspiracy to murder or attempted murder. Prosecutors may have to settle for those charges if they can't prove that any surviving cult members actually fired the fatal shots during the Feb. 28 raid by ATF agents, but they carry lesser penalties than murder.
Who is responsible?
Before anyone can be brought to trial, however, investigators have the gargantuan task of determining who is responsible for the Feb. 28 deaths of four agents of the Bureau of Alcohol, Tobacco and Firearms.
It may take weeks to determine what, if any, evidence survived Monday's fire. The FBI has said it expected the scene to be of little use even before the fire because sect members had weeks to alter or destroy evidence.
After the Utah polygamist standoff, which involved only four defendants and the death of one state officer, investigators spent five weeks "scouring every inch of land' on the 3-acre site, Mr. Schwendiman said.
"What you've got (in Waco) is hundreds of times more complex,' he said.
Even before fire destroyed the compound, ATF spokesman David Troy acknowledged that this will be "one of the most difficult-if not the most difficult' crime scene investigations in the history of the agency.
If physical evidence is scarce, testimony of those who survived the Feb. 28 shootout could become more critical.
But gathering coherent accounts-even from from federal officers
* can be frustrating, Mr. Schwendiman said. It's difficult for even trained officers to clearly perceive events around them in the heat of battle. And once the event ends, Mr. Schwendiman said, they unwittingly begin to embroider it with tales heard either colleagues or through the news media.
Lawyers say much will hinge on the testimony of sect members who were inside the compound. But even though Mr. Koresh is apparently dead, their devotion may prove stronger than prosecutors' powers of persuasion.
"You're not going to see a lot of them turning on each other,' said Fred Metows, one of the defense lawyers in the Utah polygamy trial.
Prosecutors can't let such obstacles stop them, however.
"You take your facts as you find them,' said Susan Barnes, an
assistant U.S. attorney in Seattle who helped convict members of a neo-Nazi group, The Order, on racketeering charges. "Then you get your statute book and find the one most likely to work.'
Like prosecutors, defense attorneys may find the case frustrating.
"They had a strange attitude: None of this really matters, it will
be played out in a higher court,' Mr. Metows said of his polygamist client and his co-defendants.
"Because they didn't recognize government authority, they threatened to turn the trial into a sham,' said Brent Ward, the former U.S. attorney for Utah. "We had to protect their rights for them.'
Especially in light of the standoff's tragic end, defense attorneys may try to portray their clients as victims of an overzealous federal government.
"Some defense attorneys will try to bring in everything- including the kitchen sink,' said Mr. Segrest, the McLennan prosecutor. "If the judge is inclined to let everyone throw up on the record, it could turn into an absolute circus.'
Other difficulties
Regardless of what tack defense lawyers choose, the trial is almost certain to present logistical challenges for the judge.
In addition to providing facilities for multiple defendants and their attorneys, there will be scores of reporters clamoring for a view of the action.
The spectators, too, may create problems. "Religious nuts just came out of the woodwork,' said Mr. Metows, recalling the polygamist trial.
"Management becomes a challenge,' said Judge Arnold.
Because of the highly charged nature of the Arkansas sedition case,
he said, authorities placed 15 to 20 armed federal marshals in the courtroom and tactical teams outside the courthouse.
One intriguing question is whether defendants will assert either insanity or brainwashing as a defense, both of which are difficult to demonstrate, according to legal experts.
To successfully plead insanity, a defendant must prove that a "severe' mental defect prevented his grasping the wrongness of his actions, said Harvey Wingo, a law professor at Southern Methodist University.
Brainwashing is even chancier because it's not generally recognized as a legal concept. In addition, Dr. Wingo said, juries are instinctively hesitant to believe that defendants have been stripped of their free will.
"Brainwashing as a defense has been relatively unsuccessful,' he said.
In the end, much may hinge on the tide of public sentiment that will swirl around the case.
"Most Americans thoroughly approve of giving the government hell,' Judge Arnold said.
And of tolerance toward nontraditional religions.
"So they're kooks, so what?" said David Dunagin, one of the defense
attorneys in the Arkansas sedition trial.
Although jurors will be sworn to disregard philosophical matters, juries often have a mind of their own.
And "all it takes is one juror' to hang a jury, said. Mr. Ward, the former U.S. attorney for Utah.
All these factors may add up to an impossible task for officials charged with balancing the scales of justice. "I don't think we'll ever know the truth,' said Mr. Dunagin.
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