THE federal government will be as much on trial as 11 members of the Branch Davidian group when jurors begin hearing the case, legal observers say. The case was moved to San Antonio after intense publicity surrounding a shootout with federal agents near Waco, Texas, last year. Jury selection began Jan. 10.
Defense lawyers will use the government's own reports in demonstrating ``that the government was in a very large part responsible for the disaster that occurred,'' says Robert Pugsley, a criminal-law expert at Southwestern University School of Law in Los Angeles. ``This will certainly present a significant challenge to the government's case.''
The Bureau of Alcohol, Tobacco, and Firearms (ATF) investigated activity at Mount Carmel, the Branch Davidian compound outside Waco, Texas, for a year before moving in to search for illegal firearms. The Branch Davidians are a small but international religious group that believes it needs weapons to defend itself in a coming apocalypse.
Defendants are charged with conspiracy to murder federal agents in the shootout between group members and 100 ATF agents who had raided the compound after members didn't surrender. The clash left four ATF agents dead and 16 wounded. At least five Branch Davidians were also killed and an undetermined number were wounded.
After a 51-day standoff, Attorney General Janet Reno ordered federal agents to try to roust group members, including children, from the compound with tear gas fired from a battering ram. Instead, more than 80 group members perished in the April 19 fire that ensued.
The federal operation subsequently came under much criticism in a Treasury Department report for being ill-conceived and mismanaged, among other things. Treasury Secretary Lloyd Bentsen replaced ATF Director Stephen Higgins, five other ATF agents, and two Waco raid commanders.
Critics have questioned whether the government needed to stage the assault at all or whether another approach would have allowed federal officers to safely serve the search warrant.
``Another case of the government prosecuting victims to save its own face'' is the way Butler Shaffer, a professor at Southwestern University School of Law, describes the trial.
``It may be that every one of those people gets off scot-free,'' adds Derek Davis, associate director of church/state studies at Baylor University in Waco, referring to the difficulty of bringing proof against defendants.
The sole female defendant is from Canada. The other defendants include two from Britain, two from Australia, and one from Jamaica. Their lawyers say they remain devoted to David Koresh (whose real name was Vernon Howell), the group's leader who died in the fire.
Prosecutors plan to call more than 140 witnesses. One key witness for the prosecution is Kathryn Schroeder. The once-influential member of the Branch Davidians agreed to plead guilty to one count of impeding federal agents with a deadly weapon, which carries a sentence of up to 10 years, in exchange for testimony. Other charges filed against her, some more serious, will be dropped if she ``cooperates fully'' with prosecution of the other Branch Davidians, according to a plea agreement she entered into with prosecutors.
If the defendants - three of whom were not present during the gun battle - are found guilty on the conspiracy charge, United States District Judge Walter Smith could sentence them to life imprisonment.
Some additional charges lodged against defendants include aiding and abetting the murder of federal officers, possession of firearms while committing a violent crime, conspiracy to manufacture machine guns, and unlawful possession of machine guns.
Dr. Davis notes that the conspiracy charge implies premeditation. He says the defense is likely to argue that ``100 ATF agents showed up one day and started firing, and all they could do was shoot back. I can see the [Branch] Davidians making a very good case that they never gave it one iota of thought until the ATF arrived.''
He adds that the public may never know which side fired first, and that federal agents and Branch Davidian members may not know.
Defense lawyers have been prevented by a gag order from discussing strategies. But Davis says they may also invoke religious liberty.
``A violation of law should never be defended by [claiming] religious liberty'' because courts can set limits on this defense when others are hurt, he says. ``But [the prosecution] may have a hard time to get the jury to understand that.''
However, the jury may not be able to get past the 11 tons of arms that the Branch Davidians had stockpiled, and which are expected to be put on display, Davis says.
The tension between law enforcement and the news media at the scene of the Feb. 28 shootout was missing at jury selection.
A few antigovernment protesters and on-lookers appeared at the federal courthouse in San Antonio; but inside, Judge Smith conducted selection in a relaxed manner. The trial is expected to begin this week.