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
Would you mind adding me to your ping list?
If I have to. :p
:)
They did not “raid”. They were allowed in. There was no shouting, no violence. The armored vehicle was brought in later. I see no reason that the police should be required to
endanger themselves by not taking precautions in an unknown situation.
Saying “I have a moral duty to investigate.” is not related in any way to what is found during the investigation. It means that to leave a possible victim in such a situation would be immoral.
The removal of the children had nothing to do with the original warrant.
They obtained a second warrant after multiple cases of underage pregnancy/rape were uncovered during the questioning of the teen girls.
They then proceeded to obtain an order of removal for the children, which they did NOT have to do. That was extra security in this case.
“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.”
_____________________________________________________________
Do you think this is a accurate analogy to the Eldorado case? What part of the exigent circumstances provision quoted in my post did you not read?
Sarah who? Surname was not given.
Where is Sarah? They are looking for her. That’s why the entered the YFZ ranch.
With whom did she have sex? Dale Barlow.
When did she have sex with this person? Over the past year according to the phone call.
__________________________________________________________
All the answers are in the information posted by you. What you are too [?] to realize/accept is that the CPS is mandated to act on the report, as it stands, and not sift through the issue of motive.
What part of ‘take every report at face value’ do you not understand?
I have no complaint with the concept of leaving innocent people to their privacy. I resourced the McMartin thing that was posted only to find out there’s been no conclusion. It was a waste of time and money.
If you’re correct, that the attorneys for the FLDS can prove there are no exigent circumstances, why haven’t they?
That is pretty much my point and my concern. I guess you phrased it so much more pithy than I. Now ... who's children are next to be removed, even though CPS doesn't really HAVE to, they just WANT to?
Pingy me too, please?
I’d like to point out that there are codes, i.e. state states, involved in both agencies here. The CPS has their code and so do the sheriff’s officials.
At any time during their investigation, should any of the agency officials present observe a violation of the code - and I know they know it backwards, forwards and upside down - or a question of violation, that has to be acted upon. Failure to do so is dereliction of duty.
Actually, I think she gave her name as Sarah Jessop (Barlow).
I think that is what was on the warrant paperwork.
“....that the attorneys for the FLDS can prove there are no exigent circumstances,...”
Guilty until proven innocent?????????
This is getting into the looking glass land.
I have decided that I will wait for the case to be adjudicated.
That isn’t what I said.
They got an unnecessary court order. They had the authority to remove the children without it. They went the extra mile, and had the court order produced.
Are you suggesting that people who disagree with you are fascist? Name calling doesn’t make your position any stronger.
susie
How do you know they were guarding the Mosques from scrutiny? Is it possible they were guarding those who might go worship there from possible retaliation? Perhaps you have an in ad the police dept and could share with us how you know what they were doing there?
susie
I’d have to go back and look at my Freepmail, but it may have been (I tend to not keep much track of who says what, that way I argue the points, not the personality of the posters). I find I usually agree with some things a person says and disagree with others. I probably agree with most of the people on FR on most things. :)
susie
Probably showing my ignorance, but what is IANAL?
susie
Perhaps magic and osmosis! ;)
susie
Of course the raid was legal - the guy with warrant in hand likely did nothing wrong because he had a legal authorization in hand (and because the members provided a token protest to satisfy church law, then stepped aside - wise choice).
Best available way to 'change the law' is to show that it is flawed - otherwise you have to hang out with politicians or lawyers, or both.
I'll stay here thanks, paid the dues, don't want a refund.
There is no polygamy, in a legal sense, going on. The men are only legally married to one woman at a time. The rest are *spiritual* and the state has no way to prosecute that. So...why are you suggesting the state should have acted on that?
susie
There is a thread on FR whereby the USSC has stated that even under an unlawful or false arrest and resulting search is legal. So, even IF the calls were bogus or the initial warrant was bogus, anything the CPS guys say is valid.
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