Posted on 04/22/2008 3:40:19 PM PDT by BGHater
Legal experts disagree over impact on future prosecutions
With evidence suggesting the anonymous calls that triggered a massive raid on a West Texas polygamist compound could have been a hoax, legal experts disagree on the effect a fabricated story could have on future criminal prosecutions.
Some lawyers believe any criminal charges of child sexual abuse would face tough legal scrutiny if the calls turn out to be phony, but some law school professors believe the state should prevail.
Calls to a San Angelo crisis center from someone who said she was 16 and had been beaten and raped by her much older husband resulted in Child Protective Services removing more than 400 children from the ranch outside of Eldorado. Authorities have found no trace of the girl.
Texas Rangers have since identified Rozita Swinton, 33, of Colorado Springs as "a person of interest" in the West Texas case after hearing recorded calls she made to a former member of the Fundamentalist Church of Jesus Christ of Latter Day Saints.
In those calls, Swinton pretended to be the 16-year-old twin sister of "Sarah," the girl whose distress calls resulted in the raid of the Eldorado compound. In her calls, Swinton pretended to be in the same predicament as Sarah, the subject of unwanted sex with a much older husband.
She made the calls to Flora Jessop, a former FLDS member who now runs Child Protection Project, which helps girls and women escape from the sect. Jessop said the Rangers told her that Swinton had volumes of material related to the sect inside her apartment.
Texas Department of Public Safety officials will only say that they had interviewed Swinton and were evaluating evidence taken from her apartment.
They would not say if they now think the Texas calls were a hoax.
If the calls turn out to be fake, some criminal defense lawyers said they doubt any criminal charges that may be filed in the case would stand up in court.
An anonymous call is not sufficient to grant a search and seizure, Houston lawyer Charles Portz said. "That's not probable cause. What other proof do they have?" he said.
"Are they DNA testing for sexual contact or to see who the parents are?" Portz asked.
Jim Harrington, head of the Texas Civil Rights Project, said it will matter if the original call was legitimate or a hoax.
"The officials have a duty to investigate and make sure that there's a reasonableness and the credibility to that call," he said. "The general rule is that you cannot have a warrant based solely on an anonymous call. There has to be other factors that come into play that demonstrate the reliability of the anonymous call. Otherwise you could imagine the havoc from people filing these false (reports) all the time."
State officials are confusing family law standards governing the interests of children with criminal conduct involving abuse with children, Harrington said. The state is misguided to separate children from mothers instead of removing older men suspected of sexually abusing children, he said.
But some law school professors disagree.
An anonymous call that turns out to be a hoax "is completely after the fact and has no legal relevance," said Sandra Carnahan, who teaches criminal procedure at Houston's South Texas College of Law. "The issue will be whether the (search) warrant is valid on its face."
The judge may have had enough reason to sign a warrant if the anonymous caller, whether legitimate or not, provided ample detail about conditions inside the compound, Carnahan said.
Jack Sampson, a professor in the University of Texas Law School's Children's Rights Clinic, said CPS workers were obligated to investigate the allegations as a civil matter. Whether it turns into a criminal issue is to be decided.
"We don't know who the father is. But we do know that if the father is more than two years older (than the underage mother), that there's been a crime," Sampson said.
CPS spokesman Darrell Azar said it doesn't matter if the original call turns out to be a hoax.
"What matters is what we found there. We found a number of children as young as 13 who were being married and were giving birth to children and who were sexually abused and the judge agreed," Azar said.
"So it doesn't really matter what happens with that situation. Once we get a report, we're obligated — legally and morally — to investigate," he said.
Also Monday, authorities in San Angelo began fingerprinting, photographing and taking DNA samples from the children seized from the Yearning for Zion Ranch.
DNA tests, conducted with cheek swabs, will begin on the parents today.
On Friday, a state judge ordered the children and their parents to undergo the tests so authorities could determine family connections.
Test results should be completed in a little more than a month, said Greg Cunningham, a spokesman for the state's Department of Family and Protective Services.
In a sign of continuing chaos surrounding the case, DFPS on Monday revised the number of children in protective custody from 416 to 437.
"We didn't get a good count. They were moving around, some of them were in different rooms when we were counting," explained Shari Pulliam of DFPS. And some teens said they were adults when they were really minors.
With some playing soccer and kickball on Monday, the children were adjusting to life at their makeshift shelters as well as could be expected, said Cunningham.
But they face another major challenge: In a few days, when all the DNA testing is done, they will be put into foster care. The ones who are 4 and younger have had their mothers with them since they were taken from the ranch. Their mothers will have to remain behind.
gscharrer@express-news.net lsandberg@express-news.net
I keep thinking that the call that started this whole thing had info that came from somewhere. So to the people who say its a hoax I wonder how this caller knew all about that ranch....I don’t see what the LEO should have done differently. Its a huge mess when you have people unwilling to be honest. I think the DNA is going to prove some of these children do not belong to their so called mothers but that is just my personal opinion.
On a serious note though, a leader that would decide what the kids could play with, has way too much control over the "flock". What is wrong with these women? They out number the men. As a collective group they could have taken these men down.
I hear that there were actually two calls. They’ve revealed that the one is likely a hoax and are being REALLY quiet about the other one.
Isn’t it strange that the people who think the media is trying to snow us about what really went on in that compound, jump on the tidbit about it being a hoax when it comes from the same media, like its the Truth; written by the finger of God on tablets of stone?
I think you are right. I read a strange article today where a “former” member at another compound came to Texas to get tested so he could claim his boys. He was upset that they were taken to begin with. Why would his boys have even been there?. This seemed to indicate to me that somewhere they have documentation about who came from where or belongs to who.
I'm interested in the fact that there is a group of Freepers here who are more knowledgeable about the law than lawyers or judges. In fact, I asked one if he was a lawyer. He told me no, but that he had read all about the law and was sure he could pass the bar....
susie
Apparently not....
susie
>>>>>>>>>>>>>>>>>>>>>>>
Well thats the first good laugh I have had all day. Thanks. Pandy
Then you haven’t heard of many child abuse cases. They take ALL of the children in the home when abuse is suspected. Now, you may not like that law, but it is how it’s done. The only difference here is the number of kids involved.
susie
So, you are a lawyer?
susie
As for the supposedly hoax call, on Nancy Grace this evening, she seemed to be saying that the call from the person of interest came in AFTER the raid. I was sure that was what I heard her say. Did anyone else hear this?
susie
Someone on Nancy Grace (honestly, I rarely watch her!) today said that the best wives and ALL of the children had been taken to the YFZ Ranch. If so, that would explain why many of the parents don’t want to be DNA tested. They are NOT the parents...
susie
I wanted to correct myself here. I heard 3 dormitories, but just did a little googling and there may have been as many as 11 of them.
susie
Glad to be of assistance. And...the funniest thing is, I didn’t make it up!
susie
My neighbor says each & every single call that comes into their office will & must be checked into. Even if its a fake call. Thats how they work & they do talk to children in school without a parent's permission. Sometimes thats they only way they can get the children to tell them what is really going on. She is watching this TX FLDS case with much interest because she feels it may affect her job in the future. So many calls are false made my fighting friends that it is a big waste of her time & the taxpayers money. NJ DYFS is a big mess & has been being overhauled for years.
I just hope that if there is a Sarah that CPS has her. Someone earlier posted something about a girl that the FLDS wants an adult lawyer for. Sounds like they might be concerned.
It’s sure looking that way, isn’t it?
Lock ‘em up ... throw away the keys.
Bingo
I watched her too. Yes, ALL the kids came from the other compound. Or that’s what was reported. So did the second tier in Utah/Arizona have to start all over again making babies? If this is true, then there wouldn’t be any children over the age of 5 in the other compound.
Time Utah and Arizona get into the act here. The wink wink/look the other way has gone on long enough. Arresting Jeffs was the tip of the iceberg. He’s still calling the shots from his cell.
I’m sure there are so many problems in these systems that it would be a frustrating job. And a thankless one since so many people assume all govt workers are evil. And of course, the parents are rarely happy with you, and I bet most of the kids don’t want to be removed from their homes, even when abuse is going on.
Nothing human beings do will be perfect, but I also don’t see masses of people having their children removed because the govt doesn’t like their religion or their politics.
susie
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