Twelve Branch Davidians will go on trial together on Nov. 8 in Waco’s federal court to face charged they killed four agents of the Bureau of Alcohol, Tobacco and Firearms.
U.S. Judge Walter S. Smith Jr.’s order Monday caught at least one defense attorney off guard.
“Are you kidding me?” asked Steve Rosen, who represents cult member Kevin Whitecliff. “We haven’t seen any evidence yet, other than some things found at the compound. I would think it would be almost impossible to get ready by that date. It may be an effort by Judge Smith to push us, to get us moving. He’s very conscientious. You file a motion and two days later there’s the response. But we are moving. We are working hard.”
Smith also set a Sept. 30 date to hear all pending legal motions in the case. Several defense attorneys have filed — or contemplated filing — motions seeking to sever their clients from the group trial or change the trial’s location.
But the chances for such motions being successful appear slim.
Also issued Monday was an order detailing how defendants, defense attorneys and prosecutors must act in the courtroom. Besides setting standard decorum such as standing when the court opens or adjourns, Smith decreed that only one attorney for each defendant may examine or cross-examine a witness. Only the defense attorney who examined a witness may object to a question during cross-examination.
Besides Whitecliff, the other Branch Davidians standing trial for murder are Norman Allison, Renos Avraam, Brad Branch, Jaime Castillo, Graeme Craddock, Clive Doyle, Livingstone Fagan, Paul Fatta, Woodrow Kendrick, Ruth Ottman and Kathryn Schroeder.
U.S. Magistrate Dennis Green denied Ottman’s bid Monday to get out of jail. She was ordered detained pending the trial.
Besides murder, the 12 defendants are charged with conspiracy to murder federal officers. The charges stem from a failed ATF raid on Feb. 28 that left four agents and at least five cult members dead. Agents attempted to arrest cult leader Vernon Howell for possession of automatic weapons. A resulting 51-day standoff between the government and the Branch Davidians ended April 19. A fire for which each side blames the other started, and at least 80 Branch Davidians died.
Prosecutors have relied on photographs, audio tapes and videotapes compiled on and after the raid to piece together the crime scene. Defense attorneys, however, have only been shown rifle stocks and charred ammunition during discovery proceedings.
“I am always impressed by the government and their thoroughness,” said attorney Buck Harris, who represents Avraam. “It’s kind of like cotton. If it’s there, they will pick it clean. But I will be interested to see how they can determine which round came from which gun from which window. That gets a little difficult to track. At some point in all this, someone has to show a weapon was in a person’s hands and have them firing at an officer.”
Government attorneys refuse to comment on their case.
Defense attorneys, though, worry publicly about the difficulties posed by having so many defendants on trial at once.
Richard Ferguson, a Waco attorney who represents Branch, said he doesn’t see a lead attorney emerging to handle most of the questioning. Attorneys for the 12 defendants will have to cooperate, he said.
Rosen sighs at the prospect.
“It’s going to be very difficult with 12 attorneys, no question about it,” he said.
“We’ve each got our own style, our own egos, and some of them pretty big. But the government is a team, why can’t we be a team? It’s important for defense attorneys to talk, to learn the witnesses, to discuss what we have to find out, what we have to bring out. My gut feeling is if one defendant goes, they’ll all probably go. It’s poison to try 12 defendants at once. You just try to keep it from spreading to your client. You want the jury to consider your client by himself, what he did, where he was. This is going to be a very complicated case.”
Gene Silverblatt, Fagan’s attorney, thinks the government has gotten enough bad press, however, that public sentiment could swing against them in the trial.
“I think the sentiment may not necessarily be pro-Branch Davidian, but it may be anti-ATF,” the Killen attorney said.