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
Same, you know people do that. That’s why the Good Lord gave us minds—so we can think about things. We read articles, we think about them, we come to conclusions.
But we’re just people posting on a message board here. We’re not a jury. We can think what we want, make up our minds as we please. We can be prejudiced for or against the cultists, and it won’t matter.
We don’t know. We haven’t been privy to all of the evidence, just what’s been released to the media. It’s quite possible that they have a LOT that they haven’t released yet.
It happens all the time, no matter what the government haters around here say, although they aren’t going to say it is overstepping to investigate.
That’s why I included “family law” which covers wives of all ages and even occasional husbands.
Hospital records are confidential.
Children’s hospital records even more so.
When my granddaughter had a burst appendix, and my daughter wanted me to explain the chart, she had to sign permission in front of the supervising nurse, I had to present ID.
No problem. But they ARE confidential.
The state can and does review them though.
Understood on the evidence, was also wondering if anyone else had thought about it.
If they lied about their names, and they paid in cash, it might be difficult to track.
Maybe not. How many broken ribs were there that day? ERs usually copy id and someone had to sign.
True, the state does. But not for the media, and we should really never know what the records hold.
You seem to be very invested in this topic. Is your faith in government agencies so strong that no one should question the government? Almost 220 years of laws have evolved to protect the citizenry from an over reaching government.
Do you remember the McMartin family? I have asked this before and no one wants to respond. If you don’t remember, google it up. What CPS and the government did to those people was horrific and reprehensible. I don’t know anything about the FLDS or how true the charges are, first hand. But, I am a true believer in due process. If there was wrong doing down there, it will be found out. Why not do it the right way? The whole application for a search warrant has a smell about it. And, piggybacking a second warrant based on information found executing the first, leaves many wondering why it could not have been done without the shell game.
Correct. However the law requires notification in abuse cases.
Yes, absolutely.
...and sometimes, we read aticles, we think, Hmmmm.
And we don’t make up our minds.
This cult seems like a sorry group, IMHO.
And I think they may win a LARGE tort against TX, also IMHO, for the abuse of law that we see.
We are for the rule of law, right? Are we?
A search warrant usually names a house to be searched, people of interest, etc.
Not, for instance, “The City of Philidelphia - and, finding an underage pregnant girl therin, all domiciles within the city limits, with all children to be seized, until the DPS declares otherwise.”
Fair enough.
But if little girls are being raped, then when the govt raids the place, they damn well better get valid evidence for conviction.
OTOH, if these people are just weird, then some folks at CPS ought to lose their livelihoods to offset the damage they did to the children’s families.
Might find out that it’s some of both. Damn shame.
Actually, I question the government all the time. I frequent the jack booted thugs threads, and am usually NOT on the LEOs’ side.
THIS case has been handled according to law. People around here act like no warrant has ever been based on a call. Some are based on anonymous calls. Obtaining a deeper warrant because of observed lawbreaking also happens all the time.
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.
They are investigating at this point. I don’t see how you think they could have just left the rape victims there to be raped some more while they toddled off and tried to investigate from the outside.
If they had dragged the men off (illegal), or even asked them to leave, y’all would be screaming about THAT.
Flying Immans Ping
I don’t believe she identified the hospital. Who knows how far they would have driven to confuse the issue.
Actually, if you don’t let them in, they either go get the police and try to intimidate their way in, or go to your kid’s school and interview them there, without you knowledge or consent.
And if they find anything, and they will if they want to, your kids simply don’t come home that day. You have no idea where they are because social services won’t give you the name of the foster parents to protect them.
I have broken my ribs twice - never bothered a doctor about it. Not much they can do for you, outside an ace bandage and a large bill.
So put a bandage on it, and drive on.
Oh, wait - some fundementalist idiot went to the hospitol for a broken rib?
Ummmmm....I have problems with suspension of disbelief.
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