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
Hoax callers cost taxpayer dollars and are guilty of crime[s] against the state.
Anonymous calls are allowed because nobody rats on a rat better than another rat.
Selective enforcement occurs all the time, for various reasons from the logistics of manpower right on up. We have a good legal system in this country—not a perfect one, but good. When they go totally rogue, as they did at Ruby Ridge and Waco, that is when we should gather up our tar, feathers and pitchforks. But when there is a valid and legal warrant, as there was in this case, maybe we should let this play out and see what the courts find.
“They should go after all of them, independent of race, PC class, etc.”
‘Go after?’ Without cause? For no reason? Did it not occur to you that the cops outside the mosque in the DFW area were there because the mosque ASKED them to be there?
__________________________________________________________
“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?”
First of all, ‘reluctance’ is not in the job description of a LEO. Secondly, the phone call was not found to be fraudulent until after the fact. FYI, the order of action when CPS gets a complaint is to verify the complaint, not the caller. And verify it, they did.
The phone call hasn’t even been found fraudulent, period. They’re still investigating. And, as I read the articles, there was a series of phone calls to a womens abuse hotline before the raid. After the raid, some crazy liberal from Colorado called and pretended to be the original caller. Presumably she will continue to be a delegate for Obama, but they certainly did not raid the place because of her phone call.
That is exactly my point as well.
I repeat:
* If there was child abuse going on there, then the CPS and LEOs DAMN WELL better have done their jobs and have their case solid against the perps enough to get them convicted in court.
* If there wasn't, then the people at CPS who auth'd this should lose their jobs...not just let us taxpayers take the hit on paying out the 400+ lawsuits.
* Meanwhile, the pitchforkers who want to string these people up before they're tried need to, as you say, 'let this play out in court' before they start the bonfire.
No, people have minds, and they WILL make them up one way or another. If you want mindless robots who don’t come to conclusions until someone tells them what to think, maybe you’re on the wrong site.
Nope,
no pitchfork here. And I’ll argue constitutional rights with you all day.
My focus is on the rights of the children and ‘wives’ in the compound and the the violation of their freedoms under the constitution. Call it what you will, but it’s slavery in the 21st century.
Sterious 5 minutes later: "No, people have minds, and they WILL make them up one way or another. If you want mindless robots who don't come to conclusions until someone tells them what to think, maybe you're on the wrong site."
Are you arguing with yourself?
Not to my knowledge. Why? Are you saying you can have an opinion, but I can’t? How very....fLDS of you!
PM, my comments page is overloaded now, so I won’t ask to be on the FLDS list, but if there is something really new or different, will you ping me to specific threads? Thanks.
You can have all the opinions you want, indeed!
They would be easier to discuss if they didn’t change from post to post.
I think we actually agreed for about two consecutive posts.
You can have the last words on any thread you find me on. Gday!
Thanks for clarifying. IIRC, the calls to the hotline were received by Flora Jessop [related to Carolyn Jessop?] who said, “oh my! It’s them!”
Of what I’ve read, it’s disturbing that an LDS member left after he thought what he’d been asked to construct was a crematorium. That young men are ‘cast out’ when they begin to grow hair. And what they do with females is beyond scary.
Sam, a person can have an opinion, and still let it play out in the court! Geez. I’m not on the jury, after all. (Nor will I ever be, since I’m in a whole other state.)
Explain “valid and lawful”. What is valid about obtaining a warrant on gossip.
Your position is the same one that the McMartin family faced. That case was fraught with this kind of stuff. Google up the McMartin case and see for yourself what our government is capable of when left unchecked. That will give you a working definition of “fascist.”
I’m for convicting every prep down there. Just do it with the due process that will stand up to challenges in the courts.
It wasn’t gossip. Anonymous calls are used to report crimes all the time. People aren’t convicted on the basis of an anonymous call—they’re convicted on any evidence gathered as a result of that call.
An anonymous call, not vetted, IS by definition gossip. Dang!
That is not a legal definition, and wouldn’t hold up as an argument in most (maybe not any) courts.
I did address your points...such as they were.
You, without proof, claim that Texas didn’t do this “the right way”.
I claim that they followed established law, and covered their bases. Two search warrants AND an unnecessary court order proves that.
The fact that there are multiple pregnant children, and a temple doucument listing underage “marriages” is CERTAINLY sourced creditably, using court documents.
Stop that. I’m starting to like you.... :p
Besides, this is a tiny area. Blaming “selective enforcement” in other areas on them is not fair.
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