It has been considered and there is a plan, but like the failed federal raid Feb. 28 at the Mount Carmel religious encampment, no one officially wants to talk about it.
But what happens if all 103 or so Branch Davidians who are beginning their 22nd day under siege inside their fortified compound decide to come out at the same time? What happens to be court system? Where will all the people be detained? What charges will they face?
Spokesman with the Bureau of Alcohol, Tobacco and Firearms, the FBI, the U.S. attorney’s office and the McLennan County Sheriff’s Department all say there is a plan, but all declined comment about it.
If the siege ends peacefully, sources say, the 17 children will be placed in the temporary custody of Children’s Protective Services officials and likely housed in a group-home setting.
The 40 men and 46 women will be taken to Texas State Technical College, which has served as the federal command center during the standoff, where makeshift holding cells have been created inside airplane hangars near the campus airstrip, sources have said.
The Branch Davidians would be identified, processed and taken to the McLennan County Jail, sources say. On Saturday night, the main jail downtown and the minimum-security jail on Highway 6 held 497 inmates.
Despite the overcrowded jail conditions, which county officials should be able to find room for cult members without having to ship some of them out to neighboring county jails, sources have said.
There, they will begin their journeys through the criminal justice system, probably starting in U.S. Magistrate Dennis Green’s court.
State and federal prosecutors, along with ATF and EBI agents, have been meeting in daily planning sessions. Among those things being discussed are who to charge and what to charge them with.
The Fifth U.S. Circuit Court of Appeals struck down the federal death penalty in January, so if prosecutors decide to seek the death penalty against any of the cult members, they would have to file capital murder charges in state district court.
However, Baylor University School of Law professor Brian J. Serr said juries might not be likely to recommend death sentences for Mount Carmel defendants.
“However bizarre their religious beliefs might be, the fact that they view themselves as some sort of religious holy war might be taken into account by a jury to be sufficiently reasonable mitigating the death penalty,” Serr said.
Also, in federal court, prosecutors might have broader charging powers. It’s also clear that defendants serve a much longer percentage of their sentences in federal prison than in state prison, he said. State inmates can serve a in about 22 days, while federal prisoners must serve at least 85 percent of their sentences, Serr said.
The first chore, however, for prosecutors might be to determined levels of culpability, Serr said.
“The prosecution has a lot of weaponry at his hands to broadly charge people in the federal system,” Serr said. “Of course, the prosecutor has discretion not to charge.”
“There are all sorts of considerations that might go into not charging certain people. If they don’t come out at once, if they came out in groups, they might want to segregate the least culpable from the most culpable and encourage the least culpable to cooperate against the most culpable.”
The wide-sweeping federal conspiracy and aiding and abetting charges perhaps would cover just about everyone inside, Serr said. But to pin down the more specific charges of capital murder, murder or assaulting a federal officer, prosecutors might have to turn cult members against each other, he said.
An official who asked not to be named likened trying to prove which cult member shot a specific agent during the 45 minute gun battle to trying to prove which Union soldier shot a Confederate soldier during Pickett’s Charge at Gettysburg.
Waco attorney Brian Pollard said authorities at first told cult member Oliver Gyarfas that he would be charged with attempted murder and conspiracy when he came out. However, he said, his client hasn’t been charged yet because most evidence is still in Branch Davidians hands at the compound.
Two elderly women who left the compound in the first week were charged with murder conspiracy charges. Those charges, however, were dismissed the next day and the women were released as material witnesses.
From the defense standpoint, Serr thinks cult leader Vernon Howell will not be able to pursue an insanity defense, if he or his attorney have considered that, because he would have to prove that he has a mental disease that prevented him from knowing right from wrong.