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
If warrants were routinely issued on the basis of an anonymous call (supposedly from another state - like they can't trace a call?) LOTS of us would be in court or in irons today.
It's hard for me to accept that no one (regardless of their bias) sees the linkage between this and Waco...they used the same alibi for search, they presumed that an odd ball cult will have little community support, they didn't bother to build any second level cover - just relied on rumor & expectations to sustain allegations of child abuse.
It may turn out that underage girls are married, literally and / or figuratively, within this sect but remember that one would not be illegal outside and the other raises the Church/State bogeyman that haunts American culture:
So let's let God and Caesar work it out and not pretend that we already know the outcome.
At least this outcome didn't involve screaming bunnies and the National Guard.
This is a bad season for deists, agnostics, and the undecided:
Huckabee's holy rollers turned me off of a lot of today's 'Christian' advocacy, and the rush to convict a tiny spin-off of LDS turns me off of a secular base that would condemn without process.
The call was NOT from another state, and it was not anonymous. You are confusing two sets of calls. The Colorado woman has not been connected to original Texas calls.
In the news 4/23/2008 (today)
Texas Rangers were there for the arrest and have said they seized items from her apartment that indicated a possible connection between Swinton and calls regarding the FLDS compounds in Colorado City and Eldorado. The Texas Department of Public Safety has declined to comment further on the case. Swinton has a prior conviction for making a false report to police.
http://deseretnews.com/article/1,5143,695272959,00.html
A search warrant was issued and items were seized. Sounds like they had probable cause. And now they have evidence, just not saying what.
So? The article is a week old. Texas authorities believe that Sarah is a real person. They don’t even call the Colorado woman a person of interest anymore.
She probably made the Colorado calls, though.
And the source of those original Texas calls was.....?
What law are you referring to? I’d really like to read the text.
LOL—if he was so sure he could pass the bar, maybe he should go for it! I think some people think that if they watch a few nights of Law & Order (they have more fortitude than I), they’re not only legal experts, but completely qualified to argue before the US Supreme Court.
I didn’t see the Nancy Grace show last night, but I’ve both heard it and read it on one of the (many) threads on this topic. Now I’m not sure which thread. Wish FR had a word search for the bodies of the articles.
Thanks for the ping.
Keep in mind: the state must be fairly certain they have a case here. And CPS is fairly certain they do, too. They are two separate issues but with children at the heart of it, they will take it very seriously.
I can’t speak for other states, but in Texas if you go to prison and you are a sex offender, an abuser of children, you are very likely not to survive the other inmates.
It’s quite possible that the state of Texas can go after hoax callers, but the families affected can’t know who they are.
One reason they allow anonymous callers is probably because of the kind of situation we came across in another city some years back. We had some neighbors, two smelly, ugly, creepy guys who “magically” came up with a darling little 5 year old daughter.
Some of us were suspicious, more so when the little girl started describing sexual acts in graphic detail, and approaching other men on the block about “loving them the way she loved her daddies.” So one of the neighbors made a call to the police, and sure enough, the tot was a kidnap victim who was being abused by these creeps.
The two guys (or more likely their lawyers) however found out who called, and one morning we woke up to a huge house fire across the street—arson. Message: if you identify yourself on a call like this, you can lose your house or more.
So in my book, anonymous calls have their place, but if someone makes a false call, they should pay dearly. Only the state can do that.
Lots of ways. You get to make phone calls. You get visitors. Your visitors and your attorneys can carry messages out for you.
“WE”—meaning the media and those of us who are watching and/or reading the media—don’t know who the caller is, but that doesn’t mean the authorities don’t know. Keep in mind, the public is not told everything, especially while a case in the investigation phase. So they might have Sarah hidden away somewhere, or perhaps she’s hiding herself and afraid to come forward—any one of a number of possible scenarios.
That said, it doesn’t matter to the case itself. They went into the ranch in good faith using valid warrants. Although they didn’t find Sarah, while at the ranch they noted other illegalities, got another warrant, and gathered up the kids for their own safety.
You never respond to points brought up in a reply. Your default position is to go home the the salacious and prurient rehash of details not yet sourced creditably. For you to ignore what I have said and try to project the most base intentions on me, smacks of being shrill. Do you expect me to respond to:
“I guess if you had seen a whole gaggle of little rape victims, and a bunch of children who couldn’t identify their parents, you would have tipped your hat and left the rapists to get on with it.”
or ignore it and being smeared by my silence? It’s kind of like me asking you when you quit poisoning your parents.
This particular topic, IMO, should be posted and replied to as a Wikipedia entry. Source the statements, to be fact checked.
And yes,:
“If they had dragged the men off (illegal), or even asked them to leave, y’all would be screaming about THAT.”
If it were done illegally, yes I would protest THAT. For the government to use any means to justify an end, is fascism.
For a site like Freerepublic to have so many fascists posting on it surprises me. I kind of got the idea that this was a law and order crowd. It won’t keep me from lurking and posting on occasion.
Don't forget Muslims with questionable family arrangements, or for sure, 'potential child abuse' in their madrassahs....
I've seen cops at mosques in DFW area sitting outside on 9/11 and other high tension days GUARDING the mosque from any scrutiny.
The worst thing about government is that it's comprised of humans with moral failings like everyone else!
And what most torch-and-pitchforkers don't stop and consider is that the government has the biggest torch-and-pitchfork of all when it comes to witchhunts.
13 from 50? Oh, the ages of the - uh - perp and victom, I guess, is the best way to put it.
I am not defending the FLDS, you know.
Can you please explain what is “facist” about executing a valid (and lawful) warrant?
Was that me? Seems like some arrogant thing I would say.
Comparing this group with other groups (Muslims, etc.) is pretty much saying, Well, if you let the Muslims do it, you should let the fLDS do it. So let’s say the authorities finally see the light, and say:
“By golly, Paine, you’re right, let’s let the fLDS do it—and while we’re at it, other Muslim practices are now legal across the USA too, such as beheadings, honor killings, and explosive vests. And just to be fair, we’re including Santaria practices of sacrificing live animals (you better keep an eye on Fluffy), and the gangbangers quaint customs of drive by shootings. Those who claim to be descendants of the ancient Inca have requested the right to human sacrifice, and in the interests of fairness, it shall be allowed also.”
Do you see, Sam, why just because one group isn’t being CURRENTLY prosecuted for something, it doesn’t mean we shouldn’t go after another?
What sort of planning went into this raid?
I read that the police had an “inside informant” for years.
Based on that, I imagine that they very carefully planned their response, once given an opportunity to intervene.
But, based on the news reports, it seems that they have won the war, but lost the peace.
IANAL, and things can - and I presume - will change as more is learned.
You’ve got your p’s and q’s bass-ackwards.
No, Sterious...I do not see any redemption in selective enforcement, at any time, especially based on PC political groups.
SELECTIVE ENFORCEMENT when there are so many laws that everyone is a potential criminal means that LEO bureaucrats wield all the power over determining who and what is criminal, not the law.
LEOs have finite resources, and nearly infinite statute to harass with.
They should spend their resources on the heinous stuff FIRST (solve {or heaven forbid, prevent} murders, catch terrorists, raid child abusers, thieves, etc) and then spend whatever time they have left sitting under a bridge all day writing speeding tix for 67 in a 65.
At NO time during any of the above occupations should they being apprehending *ONLY* black murderers, or KKK terrorists, or hispanic Catholic child abusers.
They should go after all of them, independent of race, PC class, etc.
Do you really believe LEOs have as much incentive to “be right” when they entered this FLDS place as they would’ve had they been going into a mosque? You don’t think these cops/sherriff would’ve been much more reluctant about breaking down Rev Wright’s church’s door on the anonymous phone call of a non-existant 16 yr old?
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