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
What abuse of law? A tort based on what?
Would a pregnancy work for you as valid evidence? Because there's several of those. And it doesn't need a trial by jury to determine pregnancy.
A trial is just to determine the guilt or innocence of any particular man, not that the rape occurred. A pregnant 13 or 14 year old demonstrates that.
Oh, for heaven’s sake.
I can’t believe this has to be said repeatedly on the same thread.
The original search warrant named who/what was being searched for on the ranch property.
They saw evidence of statutory rape. They obtained a second warrant. (If you don’t understand, look up the term “In plain sight”.)
Based on the information and evidence recovered using that warrant, a judge signed a letter of removal, which isn’t even a necessary thing, from what I have read. They went OVER what they had to do.
Which house was named in the original warrant?
What family?
What street address?
How did it expand to an entire town?
What specific charges were made against Joe Blow, the neighbor of the original family under suspiscion, that justified a warrant to search his house, and sieze his kids?
You can drive a military convoy through the legal holes in this.
So you expect them to get evidence on the spot, without questioning the witnesses? If the girls won’t identify the father, then what?
They couldn’t even get their correct names and ages out of these children, let alone much else.
Besides, they found a log book detailing underage “marriages” in a locked safe on the premises.
(ibidinum)
Which house was named in the original warrant?
What family?
What street address?
How did it expand to an entire town?
What specific charges were made against Joe Blow, the neighbor of the original family under suspiscion, that justified a warrant to search his house, and sieze his kids?
You can drive a military convoy through the legal holes in this.
It’s not a town. It’s a single property. They didn’t know exactly where the caller may have been. They had to search the entire compound.
Have you even bothered reading the supporting documents for the warrants?
Ooooh, that explains it.
I guess, if on of my cousins called in a report of abuse from my grandparent’s farm, every house on the original property could be searched. All twelve houses, whatever, no resort to the rule of law. Hell, it must be a compound!
And I will drive a legal truck through that search warrant, even if granny is guilty as hell.
Not all - I have a life, you know. ;)
Fine. Present that evidence to the judge, and convict.
Is it true that New Hampshire still allows 13 yr olds to marry, and North Carolina still allows 14+ etc etc.?
As a fervent opponent of CPS Nazis, I hope the state gets its hat handed to it (or some other, lower part of the corpus) but I am also glad to see that p**** farm shut down. Mormons may have not been too worried about that sort of behavior before, but they will move quickly to repress groups that tarnish the letters “LDS” much more quickly in the future, I think.
What town?
It was YFZ Ranch, 2420 County Road 300, El Dorado Texas, 76936, owned by Frederick Jessop.
http://www.thesmokinggun.com/archive/years/2008/0410081polygamy1.htmlnch, all structures thereon.
Forget the parts you don’t like to read, the editorializing against fLDS, just read the warrant. Read it for yourself.
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?
Additionally, it is troubling that CPS and the Courts are defending the decision to nab over 400 children, including boys, when the allegations in the phone call dealt with early marriage, pregnancy and abuse. This is the darndest 'investigation' of which I've ever heard.
Actually the guy named in the warrant wasn’t there partially because he is on probation for involvement with an underage girl in Arizona. Additionally the girl named in the call does exist, although it is not clear where she is. There are groups in Utah made up primarily of women who have left the FLDS and similar groups who keep track of the girls in the polygamous churches. They are well aware of who she is, who she is actually “married” to (a man related to the man named in the warrant) and the fact she does actually have children already.
There are serious problems from a legal standpoint, but the basic story of what has been going on in the FLDS is very accurate and has been well documented for years. Those are 2 completely seperate issues.
I agree - but, there are legal issues that we must address.
These girls aren’t married. They were raped. The laws of other states have no bearing on the matter.
They will present the evidence when they have collected it all.
Seems like a lot of people would be happy if the state rushed this and goofed up because of it.
The warrant is linked in my post 53 to you. Would you please point out the problems with it, where it is in error?
Sigh, just because you asked so nicely, I will go read it.
But before I do - can a search warrent cover an entire apartment building, even though each apartment is a seperate residence? Even if one guy owns the entire building?
Absolutely, it can.
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