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
How were they supposed to check out the call without trying to find the girl?
*Sigh*
What, after everyone called me an arrogant snot last night?
Hard to believe.
I suspect that CPS does indeed go into those homes if they get reports of abuse, incest, adult men having sex with minor children, etc. To say that it goes on is one thing, to say that Texas ignores it when they can prove it is something else.
susie
An excavation undertaken in May 1990 claimed to reveal tunnels under the McMartin Preschool.[19] Relevant quotes from the summation are written as follows:
“The results of the survey by Ground penetrating Radar proved consistent with discoveries of the subsequent excavations, all of which confirmed not only the basic descriptions of children but also specific details of location, interior features and putative function. If the stories of the children were bogus fantasies, there is no excuse for the tunnels discovered under the school. If there really were tunnels, there is no excuse for the glib dismissal of any and all of the complaints of the children and their parents.”
[source: wikipedia]
While you would have each and every ‘piece of gossip’ reported to LEO dissected for authenticity, I suggest to you that any real victims would be profoundly more at risk from the time the ‘gossip’ is received to the time they in fact discern that it was, in fact, REAL.
You just ran into an emotional meat grinder here.
I've been called everything under the sun over the past week. But, when I see even one reasoned post it's enough. And when I find myself not squelched or banned even though my position is anything but popular then that speaks well of the site monitors. And, heck maybe I'm in the wrong here, I donno.
If this were any other site and your position was as unpopular as it is, they likely would have banned you. Just go to kos or huff post or, actually any liberal site, and see how peeps just get labeled troll and banned for presenting nothing more than facts which contradict the party line.
Peeps are mixing up concerns for due process with support for evil. Or they aren't mixing them up but just don't care to hear about due process where they think something bad is happening to children. As a parent I can understand this reaction. And for this reason while I believe there are a lot of constitutional problems with what went down in TX, I'm happy it happened. And I'd wish it to happen again and I'd again question the governments actions. Come on, did you ever cheer when Jack Bauer ran roughshod over suspected terrorists and their constitutional rights in the 24 series? Even after saving the whole of the USA though I'd still have Jack prosecuted for violating the constitution - hoping the whole time for a presidential pardon or something.
Actually, I'm assuming something. I'm assuming that children were in fact raped. I have yet to see proof of this fact. I have yet to be provided with:
Who was raped? By whom was she raped? How old was she? How old was he? When did this happen? Did the other mothers know of this happening? Was this a common practice? If so who else?
Merely seeing a child underage who is pregnant is not enough. The father could also be underage. So the mere fact of underage pregnancy is not proof certain of the fact of rape. My gut says that bad stuff was happening out there. I'd bet 50 to 1 that evidence will ultimately reveal that child abuse was occurring. But my gut is not evidence. And this is the problem I have with the raid and the wholesale taking of children from their parents. I want to see concrete evidence, specific to this case, not some book written by a former member or some other collateral source regarding what happened in the past.
I can’t imagine it would matter.... As long as law enforcement did not know the call was fake at the time and they did not create the fake call themselves.
The call gave them probable cause for the warrant, the warrant was legally executed, then if evidence of criminality was found on its execution its hard to argue “fruit of the poisoned tree” when none in the legal chain knew that anything about their probably cause was faulty or false.
I suppose, and would assume, if the tips that lead the warrants were fake, that lawyers for the sect would attempt to make that argument, but I don’t see how they can make it stick. Unless you can show that law enforcment/judge knew the information was not legitimate and acted anyway, I don’t see anything that would short circuit the evidence of crime, if any, that was found.
They weren’t marriages they were spiritual unions.
And even though I disagree with you can I be on the ping list too :)?
I guarantee you, that’s how it works in Texas. I know; I was a welfare worker. Different department, but they all work the same. You get a call, you make a report, send an investigator, whatever it takes.
You're committing an age old error by presuming that our leaders know what's best for us and will always act in our best interests. Far apart from tin foil fantasies, it's a bit off key to hear posters on FR simply assume that what we don't know is sufficient to justify questionable actions.
I know that once the authorities use words like child endangerment half the public accepts the guilt of the accused - I watched it happen to a friend, I worked blocks away from the McMartin day care center, and we all watched Waco burn.
Despite my current and hopefully impermanent irritation with 'the Christian Right' (Huckabee) I cannot help but remember a history of burning convents and persecuting Jews because of rumors of weird rites. I know that DeMolay burned for alleged perversions and not because he controlled one of Europe's greatest treasuries and an army not directly beholden to any crown.
You are looking at a (a) self segregated, (b) apparently wealthy, (c) religious sect, that (d) supports polygamy, and has recently taken up (e) highly visible residence on (f) apparently prime land in a (g) fairly small, (h) semi-rural community. "Strangers" in all regards. I'm not ready to assume that ONLY high motives are driving the action and I'm not naive enough to presume that 'the phone call' didn't come from a desk at the Sheriff's office.
If the state wanted to do something they could have acted on the adult males in the compound based on their own statements or doctrine - polygamy is illegal. If consumated marriage below legal age, including possible 'parental consent' loopholes, came out in investigation, they'd have their case. Hauling out the kids and making sure folks could watch the show isn't my idea of pursuit of justice.
Legally, yes. But morally? It sure sends a chill down my spine to think that the State is going to make decisions to raid and swipe based on morals! My first question is "who's morals?". Am I wrong?
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What is the state's interest in outlawing rape? Doesn't that involve a moral judgment? Many laws are concerned with immoral behaviour. Laws against murder, for example. Against robbery.
A former member of the FLDS church, Jessop recorded nearly 40 hours of conversation with Swinton, who said her name was Laura, and contacted law enforcement.
“She claimed to be the twin sister of Sarah, who made the initial call in Texas,” said Jessop.
Swinton got most of the details of the sect right, Jessop said. She knew specifics of the religion and culture, used common FLDS surnames and provided specific addresses of homes in Hildale, Utah, and Colorado City, Ariz., where she said she was being held.
“She was good,” said Jessop. “Apparently she was doing her research.”
Other things - calling her parents “Mom” and “Dad” instead of “Mother” and “Father” as the FLDS do - were suspicious, Jessop said.
Jessop won’t comment on whether she believes Swinton made the telephone call that triggered the Texas raid.
“I’m not going to speculate,” she said. “I’m going to trust that the Texas authorities are doing their job.”
Authorities in Colorado confirmed Swinton has a history of making false reports.
[source: star-telegram.com/448/story/511228.html]
Aragon, the questions you asked were addressed in the phone calls from “Sarah” who called CPS and said she was pregnant by a 50-year-old man. That you didn’t read it doesn’t make it not so.
Since you are interested in facts, but apparently not in the pursuit of them, I’m going to send you a link to the tragic deformities caused by these unholy and illegal unions.
I have a weakness for a smart aleck.
I appreciate the sourcing of your information. It really does firm up the dialog. Your Wikipedia source only points up how tough it is to get at the truth, even though it was the most expensive trial to that date.
To assuage your angst concerning the victims, I do believe that the police can proceed under the “Exigent Circumstances” theory.
Exigent circumstances may make a warrant less search constitutional if probable cause exists. The existence of exigent circumstances is a mixed question of law and fact. United States v. Anderson, 154 F. 3d 1225 (10th Cir, 1998) cert. denied 119 S. Ct. 2048 (1999) (citations omitted). There is no absolute test for determining if exigent circumstances exist, but general factors have been identified. These include: clear evidence of probable cause; the seriousness of the offense and likelihood of destruction of evidence; limitations on the search to minimize the intrusion only to preventing destruction of evidence; and clear indications of exigency.-Wikipedia
As you can see, even “exigent circumstances” has its problems. Going the full mile would sure bolster the legal basis for searching the ranch. Not doing so, leaves the case on appealable ground. To get convictions that can be overturned later serves no greater good.
As for:
“While you would have each and every ‘piece of gossip’ reported to LEO dissected for authenticity,...”
Dissecting complaints, legit or not, for authenticity, is exactly what Law Enforcement Officers do.
lol
“Dissecting complaints, legit or not, for authenticity, is exactly what Law Enforcement Officers do.”
If I call the dispatcher and tell them someone is attempting to break into my house, they are not going to do a wiretap before they send someone out. Only after they secure the premises will they go about determining if I made a prank call. I have been a government employee. You have to be able to prioritize and you have to take every report at face value.
I have to be brief because we’re about to get hit by a severe storm—so in short, No, I do NOT believe our leaders know what’s best for us. I do, however, respect that the warrants were valid and the raid was done legally. There’s a difference. You can disagree with what the law is, that’s fine, and if you do, you should work to get it changed. Or if you really, really don’t like it, the “other country” option is always open.
Gadz, must you always infer bad motive.
Sarah who?
Where is Sarah?
With whom did she have sex?
When did she have sex with this person?
Unfortunately, I can't link to the site you referenced but thank you for the reference nonetheless.
The only Sarah I am aware of is:
“Claiming to be the 16-year-old mother of an 8-month-old infant and already pregnant again, “Sarah” said she had been forced into a “spiritual marriage” at the FLDS compound when she was only 15. Her parents had brought her to the site when she was 13, “Sarah” said in a series of late-March calls to the hotline, and now she was being held captive as the seventh wife of 50-year-old convicted sex offender Dale Barlow, who she said had once beaten her so badly she suffered broken ribs.”
http://www.spectator.org/dsp_article.asp?art_id=13085
And it appears that Sarah was Swinton, a 33 year old.
Here is the affidavit concerning Sarah a/k/a Swinton. http://messengerandadvocate.files.wordpress.com/2008/04/flds-affidavit.pdf
So apparently there is another Sarah, but, we have no details on this other Sarah?
Again,
Sarah who?
Where is Sarah?
With whom did she have sex?
When did she have sex with this person?
And if you have any other reference please pass it on. I do wish to get the facts straight.
I am genuinely confused.
There are laws against rape and I, like everyone else, expect them to be enforced. That was not my question. My concern is what moral decisions they will decide to investigate next. The person's statement was that they have a moral obligation to investigate any report that they receive. Does that mean that we are setting the stage for raids and removal of children from parents that don't agree with their neighbor's morals necessarily, but the neighbor calls and makes a report that is otherwise unsubstantiated?
A law involving morality that comes about as a result of society deciding that an act should be illegal are what this country is all about. However, if what I allow my children to watch on television may cause my neighbor to file a report and my children are removed -- pending investigation of what kind of parent I might be -- the line may has been crossed. Like I stated, who's morals are being enforced here?
Which brings me back to the case at hand. I have no problem on the face of things for authorities to investigate a charge of beatings and/or rape against a young girl. But the authorities in this case RAIDED ... with swat-like teams including an armoured vehicle ... and removed 437 children, probably well over 300 of those did not even come close to matching the given description of the child the investigation should have centered on.
Now, it must be said that I have not followed everything on this case closely. I know what I have heard in passing on TV and the limited threads I have read on FR concerning this subject. But it would seem to me that the government has made a HUGE leap in this instance, and that leap is being applauded by a large number of folks. I believe that applause is mostly due to information that they have heard or, for some other reason, believe because the FLDS live very oddly and against the norms of our society.
I have questions. That doesn't mean that I support the FLDS or that I agree with the government. That means that I am attempting to have an honest discussion of what is being done here and if it represents a slippery slope that we might think twice about before sliding on down.
*******************
And yet rape is the issue here.
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