Waco saga moves into courtroom

January 10, 1994|By New York Times News Service

HOUSTON -- Ten and a half months after the apocalyptic ministry of David Koresh became known around the world with a deadly gun battle between his followers and federal agents, 11 surviving members of his sect are to go on trial today to face murder charges.

Although even prosecutors have suggested that there is much confusion about who actually fired the fatal shots -- and though three defendants were not present during the gun battle -- the 10 men and a woman are all accused of being part of a broad conspiracy to kill federal agents during a raid Feb. 28 by the Bureau of Alcohol, Tobacco and Firearms.

The shootout near Waco precipitated a 51-day standoff between federal agents and Koresh's followers, the Branch Davidians. The standoff ended with a tear-gas assault on the group's compound, followed by a conflagration on the Texas prairie in which Koresh and more than 80 sect members died.

But while the trial in San Antonio may officially center on the defendants, all of whom indicated continued allegiance to Koresh and his teachings during pre-trial motions, the case will also inevitably amount to a trial of the government's actions and tactics.

Federal authorities were stunned last year when a jury largely acquitted Randy Weaver, a white separatist who engaged federal agents in a smaller-scale shootout and standoff in northern Idaho. So prosecutors in the Texas case are under extra pressure to demonstrate that the government was justified in sending more than 100 armed agents to carry out its raid on the Branch Davidians, a hitherto obscure and reclusive group.

In their indictments and pre-trial motions -- including a request that they be allowed to show the jury some 11 tons of guns, ammunition and grenades that they say the Branch Davidians stockpiled at their compound -- federal prosecutors have outlined arguments that the group had a clear and much-rehearsed plan to kill the agents who showed up that day.

The agents who carried out the raid had a warrant contending that many of the sect's weapons had been acquired or made illegally.

But the 16 lawyers representing the defendants are expected to argue that the Branch Davidians' response to the raid was a classic case of self-defense by people fearing for their lives and their home.

More broadly, some lawyers and religious scholars not connected with the trial say it could evolve into a major examination of just how far the members of any religious group, even one with unorthodox or apocalyptic views, may go to express those views or act upon them. The Branch Davidians are by no means the only fringe religious group in the nation to arm themselves in response to prophesies of a confrontation with the forces of evil.

"I regard this case as a real tragedy, unprecedented in America," said James E. Wood Jr., a religion professor at Baylor University in Waco who studied the Branch Davidians long before the raid made them famous. "It was an assault on a religious community."

But prosecutors and other lawyers have suggested that such reasoning is absurd. The issue at hand, they say, is simply whether the Branch Davidians violated federal weapons laws and whether a jury will believe that they conspired to kill the agents.

Jury selection starts today, and the trial itself is expected to last two months or longer. The judge hearing the case, Walter S. Smith Jr., moved the trial to San Antonio from Waco and has promised to assemble an anonymous jury.

Even before the trial begins, there have been several unusual motions.

In one, a defense lawyer sought to bar prosecutors from using the word "cult" during the trial, arguing that the word had a "negative and dangerous connotation." After perusing various definitions of "cult" in a dictionary, Judge Smith rejected the request.

One of the many paradoxes of the trial is that defense lawyers may seek to use government findings to bolster their clients' case. A series of official reviews of both the Feb. 28 raid and the April 19 fire than ended the siege concluded that there had been serious errors of judgment and lapses in supervision.

Top officials in Washington at the firearms agency and the FBI, as well as Attorney General Janet Reno, could all find their actions during the entire Waco affair subject to more scrutiny in the course of the trial.

At least one defense lawyer has filed a motion to compel testimony in San Antonio from Ms. Reno and Stephen Higgins, the former head of the firearms agency who was forced out largely because of the debacle. Judge Smith has not ruled on the request.

Another lingering question is whether any of two dozen children who lived at the compound will be asked to testify about what Koresh told their parents about preparing for a gunfight.

Prosecutors for the U.S. attorney's office, led by a husband-and-wife team of former top FBI lawyers, Ray and LeRoy Jahn, are also expected to produce some of the dozens of audiotapes made by eavesdropping devices during the siege.

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