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
Susie
That’s just warped.
Brings to mind why men die before their wives-—because they waaant to.
I have no idea what you’re talking about.
susie
“I Am Not A Lawyer”
You’re not alone.
Ah, thank you! I’ve seen it several times. Trying to keep up, but I’m getting old.... ;)
susie
I think it was an insult, but it was a little obtuse for me...
susie
The sect will have a bucket load of documentation and testimony to just those ends: kids can be spiritually married (just as Nuns are spiritually married) without the legal implications of underage sex. If that is the situation, and there are no dissenters in the flock, the membership has a case.
How they handle a population that includes far more women than men, lots of kids, and communal living, should make for an interesting legal knot. (Largely why it has not been followed aggressively heretofore)
On the other hand (I use that a lot lately), if Male citizen "A" lives in a house with female citizens "b", "c", "d" and so forth, with a dozen or so kids doing the chores - the state has a case for what is in fact a victimless crime.
My point was that polygamy is easier to prove and immediately illegal, even if it could not be proved in court it would make a far better means of access than rumors of child abuse.
The interesting part, aside from the 'communal' element in original Christianity, is that if no one claimed to be married (it's "only" a commune) the government would have to prove some other form of institutionalized rape.
I don’t understand why you are focusing on polygamy, but maybe I’m just tired.
susie
I don’t believe they have separate ‘houses’, like a split level development with regular street addresses. They live in dormatories, that look very much like 2 story motels. From what I saw on an arial photo of the compound, there are 8 dorms that house all the families. So 400+ kids, how many moms and men, say just roughly 600 people, that’s an average of 75 people per building. Probably mail is delivered in bulk to the compound, I doubt they have their own separate addresses. So there’s no way they could target one particular room in the ‘motel’ set up since they probably don’t have room numbers or individual legal addresses.
You’re allowed to do both! ‘Innocent until proven guilty’ refers to the legal system. It means the burden is on the State to prove that the person did indeed do what he’s accused of. They carry the burden of proof. However, ‘innocent until proven guilty’ doesn’t apply to public opinion. Individual citizens are allowed to make any guilty or not decision in their own mind that they want to.
It does not carry the knee jerk response that child endangerment (read - premature sex) guarantees?
Get some rest, we're probably both stressing.
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