- The Washington Times - Wednesday, June 7, 2000

The U.S. Supreme Court has undone a great injustice to surviving members of the Branch Davidians, a religious group that has already suffered enough at the hands of the federal government. Convicted on firearms charges in connection with a government assault on their property in Waco, Texas an assault that need not and should not have taken place the Davidians wound up facing lengthy sentences on charges of using machine guns, something the jury in the case had never found.

Recall that originally federal prosecutors had tried to get the jury in the case to convict the Branch Davidians of murdering federal agents. (Four agents and five Davidians died in the February 1993 assault by the Bureau of Alcohol, Tobacco and Firearms.) When the jury declined to return a guilty verdict on the count, prosecutors sought convictions on charges of conspiracy to commit murder. Again the jury declined. But faced with confusing jury instructions, the jury did convict some of the Davidians of using weapons in the commission of a crime that the jury had already found the defendants didn't commit.

The judge, recognizing the contradiction, initially tossed out the guilty verdict. But he reimposed it after hearing arguments from the Justice Department that this was the jury's awkward, amateurish attempt to reach some compromise ruling. The judge further decided that the "firearms" the defendants used in their non-crime were machine guns, which meant additional prison sentences of 30 years or more. The defendants appealed their sentences on grounds that finding someone guilty of a machine gun violation is something for a jury, not the judge, to determine. By a unanimous vote this week, the U.S. Supreme Court agreed.

At issue was whether carrying machine guns was a crime separate from some underlying offense something for a jury to determine or whether it was a merely a factor in sentencing something for a judge to determine. Prosecutors had not indicted the defendants for using machine guns, and they did not ask the jury to decide the question during the 1994 trial.

Arguing the case before the Supreme Court, however, the federal government tried to blur the distinction between machine guns and other kinds of weapons. Wrote Justice Stephen Breyer for the high court: "The Government argues that, conceptually speaking, one can refer to the use of a machine gun as simply a 'method' of committing the underlying 'firearms offense.' … But the difference between carrying, say, a pistol and carrying a machine gun (or, to mention another factor in the same statutory sentence, a 'destructive device,' i.e., a bomb) is great, both in degree and kind. And, more importantly, that difference concerns the nature of the element lying closest to the heart of the crime at issue. It is not surprising that numerous gun crimes make substantive distinctions between weapons such as pistols and machine guns."

For example, Justice Breyer said, it is against the law to transport in interstate or foreign commerce any "destructive device," "machine gun" or similar type of weapon unless the carrier is licensed or authorized to do so. But there is no such prohibition for pistols. Furthermore, he said, "the statute at issue prescribes a mandatory penalty for using or carrying a machine gun that is six times more severe than the punishment for using or carrying a mere 'firearm.' " Given these distinctions, Justice Breyer said, lawmakers no doubt treated machine gun violations as separate offenses to be tried in court rather than mere factors in a judge's sentencing.

Hearing of the Supreme Court's decision, the woman who served as foreman of the trial jury so long ago pronounced herself "elated." Americans who think that even members of unpopular religious groups deserve fair trials should be elated, too.

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