Page 12


The Risk of Acquittal BY DICK J. REAVIS San Antonio CONVICTION FOR a federal crime is nothing to look forward to, but acquittal is certainly worse. This contentionrevolutionary in judicial, law and government circleswas put forward in San Antonio on June 17 by Walter S. Smith Jr., a federal district judge whose theoretical gifts had previously gone unnoticed. Not since Descartes’ famous pronouncement, “Cogito, ergo sum,” had anyone so stunningly changed the structure of our thinking. The eight Branch Davidians who were the object of Smith’s unprecedented demonstration were among the 11 whom a jury had acquitted last February 26 on charges that they’d conspired to murder federal agents and that they had murdered federal agents. Three of the 11 were set free immediately and Judge Smith released the fourth, Canadian Ruth Riddle, the only female defendant in the trial, to the U S Immigration and Naturalization Service for deportation home. But before the INS could board her on a northbound bus or plane, Judge Smith stumbled onto his discoveryand ordered Riddle arrested again. In the new arrest, Riddle was charged with possession of a firearm during the commission of a federal crime. The 12 San Antonio-area jurors who heard the Davidian case had exonerated all of the defendants on charges of conspiracy to murder and murder, but had found six of them, including Riddle, guilty of possessing a firearm in the commission of an unspecified crime. It was this crime whose “matching” led Smith to his proof that conviction is preferable to acquittal. According to the instructions that the jurors had receivedinstructions formulated by Smith, just days prior to his epochal discoverythe jurors were to find firearms guilt only in connection with the murder or conspiracy charges. The situation was like that of having two left shoesmurder and conspiracybut only one right shoe, the firearms charge. According to Smith’s instructions, the jurors were either to match the right shoe with one or both of the left shoes, or produce a barefoot verdict of acquittal. They were, by the terms of the symbolic logic in which Judge Smith was apparently already versed, to place the Dick J. Reavis is aDallas-based freelance writer. He is working on a book about the Branch Davidians. firearms charge in a set populated by at .least one other element, or to place the charge in the null or empty set. On February 26, while considering the jury’s logically inconsistent verdicts, Smith had called both prosecution and defense attorneys to his bench. Still without the benefit of the insight that he would soon acquire, he asked these courtroom antagonists to voice their opinions. The prosecutors advised him to send the verdict back to the jury for matching. Defense attorneys asked him to throw out the firearms finding, to place it in the null set. “…The court will set that finding aside,” the judge had ruled. Two days later, Smith experienced his epiphany and ordered Riddle rearrested. Once his new light was upon him, Smith began to work out his proof in rigorous and unassailable detail. Firearms convictions come in three categories: a five-year sentence for using an ordinary weapon, a 10year sentence for using a sawed-off shotgun and a 30-year sentence for using automatic weapons and grenades. Borrowing precedent from drug war cases, Smith ruled that the accused Davidians were residents of a “fortress” whose purpose was to further illegal activity, and that each of them had access to automatic weapons, even though they may not have used them, or known how to use them or known what one looks like. The “constructive possession” of automatic weapons that Smith established, he found on closer examination, made the defendants guilty, ipso facto, of the 30-year version of the charge. On June 17 at the federal courthouse in San Antonio, the Waco philosopher-jurist called the accused Davidians to the bench and, one by one, explained to them, and the astonished world, how conviction is preferable to acquittal. Smith sentenced five of the Davidians to 10-year prison terms for aiding and abetting manslaughter, the crime that they committed, according to the jury’s verdict. He then sentenced each of them to an additional 30 years in prison for having a firearm in furtherance of the conspiracy to which, the jury had found, they had never belonged. Smith then sentenced Ruth Riddle to five years for possessing a gun during the crime for which she had been declared innocent. He handed down to Australianborn defendant Graeme Craddock a 10-year term for possessing a grenade, the crime for which the jury had found him guilty, and an additional 10 years for having a firearm as part of the conspiracy that didn’t exist. The eight Davidians will now spend a total of 70 years in prison for crimes that the jury found that they committed. And they’ll spend 170 years in prison for possessing firearms during the crimes that, by the jury’s findings, they didn’t commit. Though Smith’s logic is mathematically demonstrable, a sampling of opinion taken outside of the courtroom shows that most laymen do not understand Smith’s genius. Among the doubters was Sara Bain, the New Braunfels school teacher who was the Davidian jury’s forewoman. Immediately after Smith detailed the logic behind the sentence he ordered, Bain complained to the press that “The Judge just kind of overlooked the jury’s verdict.” Judge Smith, of course, had done no such thing. He had honored the jury’s verdict he agreed with, regarding firearms, discounting only the verdicts he disagreed with, regarding conspiracy and murder. Had Smith completely overlooked the jury’s findings and ordered the Davidians convicted of murder and conspiracy, as the government demanded, the Davidians, who will bein their 70s when released from prison, might have wound up serving life sentences! Forty years from today, if the surviving Davidians have taken advantage of their opportunity to spend years studying philosophy and logic, when they hobble or wheel themselves out of prison, they are likely to thank Judge Smith for having spared them the consequences of acquittal. Whether or not it matters that Judge Smith, who is now 53 years old, is likely to expire before 40 years have passed, his motto might be: “Death is nothing to look forward to, but life is worse.” The Reagan appointee no doubt will demonstrate when next he hears a controversial case in court: Several lessons can be drawn from Judge Smith’s spectacular handling of the case. The first of them is that only a fool hires a defense attorney. The defense attorneys often try to win an acquittal or dismissalit is, after all, in their trainingbut, as United States v. Branch Davidians shows, that will only land the accused in prison for a longer stretch than mere conviction. No, pleading guilty is clearly the preferable course of action whenever one is charged with a crime. A guilty plea not only avoids the aggravation and expense of a jury trial, it more importantly insures against the risk of acquittal. THE TEXAS OBSERVER 17