Attorneys have filed pretrial motions citing diminished capacity for many of the Branch Davidians facing criminal charges resulting from the government’s failed raid on their compound.

Some attorneys say the move is merely tactical. They faced a mid-June deadline to get in all pretrial motions.

“I was just covering all the bases,” said Houston attorney Steve Rosen, who represents cult member Kevin Whitecliff. “We were ordered to have all our pretrial motions in. I really don’t think any attorney can say what his theory of defense is at the moment. No one knows all the evidence. It’s mind-boggling.”

However, Waco attorney Scott Peterson, whose client is cult member Kathryn Schroeder, said defense attorneys representing the Branch Davidians met and discussed diminished capacity as a defense.

He declined to discuss the particulars of such a strategy.

Brian Serr, a professor who teaches criminal law at Baylor University Law School, said diminished capacity defenses focus on a defendant being insane or mentally incapacitated at the time an offense is committed.

None of the attorneys is claiming their client was insane.

But attorneys for Schroeder, Whitecliff, Brad Branch and Jaime Castillo have filed pretrial motions indicating they may offer evidence relating to the mental state of their clients during the Feb. 28 raid at Mount Carmel—the compound 10 miles east of Waco that housed the sect.

All the defendants are charged with conspiracy to murder federal officers.

Four agents with the Bureau of Alcohol, Tobacco and Firearms died trying to serve an arrest warrant to cult leader Vernon Howell for possessing automatic weapons. Six Branch Davidians also died in the shootout.

Fort Worth attorney Jeff Kearney, representing Castillo, rebuffs claims that he will bring up the diminished capacity issue.

“We’re not going to raise the issue of diminished capacity,” Kearney said. “We’re not going to raise the issue of insanity. Nothing like that.”

But Kearney admits he may stress his client’s state-of-mind.

“There is a possibility we might offer expert testimony regarding the reasonableness of his belief,” Kearney said. “Out of an abundance of caution, because the government might claim it goes to the mind of accused, I made that motion.”

Kathryn Schroeder is in Lexington, Ky., at the Medical Center for Federal Prisoners, where she is undergoing a psychiatric evaluation.

Possibility explored

Peterson admittedly is exploring the possibility of diminished capacity plea. But the government countered by acting as if he filed a pretrial motion to declare Schroeder insane, Peterson said.

“I’ve got a lady being shrunk right now to see if she’s insane,” Peterson said. “She never said she was. They shut her up for 45 days, and now they’re requesting another 30 days. What I think the government is trying to do is sever her from me for 75 days, claiming they need to determine if she’s crazy.

“You call up any psychiatrist in Waco and ask them if they need 75 days to determine if someone is crazy,” he said. “They’ll tell you it can be done in an hour.”

U.S. District Judge Walter S. Smith Jr. of Waco is also considering government requests to have Branch, Castillo and Whitecliff undergo psychiatric evaluations.

None of the Branch Davidians’ attorneys would discuss specifics of their defenses.

“I don’t tell people what my defense will be,” Peterson said.

Worth a try

But attorney Gary Coker, who in 1988 successfully represented Howell and seven followers accused of trying to kill rival prophet George Roden, said the diminished capacity defense is worth pursuing.

“What the FBI said in all the 51 days was that all the members were under the power of an evil genius, that he ensnared all the people there,” Coker said. “It wasn’t done of their own will. It’s a possible defense that the FBI and the press laid the groundwork for.”

However, Serr said, the diminished capacity defense hasn’t won over jurors in the past.

“It almost never works,” he said.

With diminished capacity, you must prove that someone was suffering from a severe mental disease or defect, Serr said.

“It’s been tried before,” he said. “There was the PMS defense and the Twinkie defense, where a guy supposedly had too much sugar in his system. Frannkly, it rarely works. I just don’t see it here.

“If you could get someone to testify the defendants were suffering from paranoid schizophrenia and had an insane delusion this guy was God, which prevented them from determining right or wrong, it might be a defense,” he said. “But the fact you believe someone is the son of God is not enough to prove diminished capacity. There has to be severe mental disease as opposed to poor judgment.”

Under Howell’s control?

Coker wonders if defense attorneys might claim their clients were under Howell’s control.

“All the talk about mind control is true to a degree,” Coker said. “Vernon had the people in his grip to a great extent.”

Peterson filed a motion opposing the government’s request to keep Schroeder 30 more days for additional psychiatric evaluation. Part of his reasoning is that the staff at the federal center lacks expertise in dealing with victims of mind-control.

A psychiatrist at the center admitted as much, Peterson said.

“She was very evasive, at first,” Peterson said. “So I told her that if she was to ask me about taxes, I wouldn’t even be able to spell the word. In light of that, I asked, ‘What would your response be to my question?’ She said, ‘My answer would be about the same as yours about taxes.’”

But Peterson and other attorneys representing the Branch Davidians may have to plow new ground if they intend to wage a defense based on their clients being brainwashed.

“If you commit a crime while sleepwalking, it’s not a crime,” Serr said. “Your actions are considered involuntary conduct.

“To argue that you were so incapacitated that you were not aware that you were committing a crime, it doesn’t seem to be a compelling defense,” he said. “Juries have a hard time accepting that something is beyond someone’s control.”

Read the Tribune-Herald's 7-part investigative series on the inner workings of the Branch Davidians. Hours after Part Two appeared in print, the ATF raided the group's compound.

Read the Tribune-Herald’s account of the ATF raid on the Branch Davidian compound on Feb. 28, 1993. Four ATF agents and six in the compound were killed in the gunfight.

Read the daily news accounts of the 51-day siege at the Branch Davidian compound near Elk, which began Feb. 28 and lasted until April.

Read the accounts of April 19 and beyond: FBI agents began inserting canisters of tear gas into the Branch Davidian compound in the early morning hours. By noon, it was on fire.

Federal officials left the compound site in late May 1993. As identifications of bodies continued, questions about the survivors, the compound and the cult itself began to emerge.

As the world began to take a critical look back at the events and legal proceedings continue, the ATF's bombshell report forces a shakeup at the top after the raid gone "tragically wrong."

The 1987 Rodenville shootout and trial, the end of the world in 1959 and more coming soon.