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
IANAL, but my first defense would be, you raided his house - you had no authority to raid mine.
And I read your link, and I could drive a legal truck through the State of Texas, and win.
And you passed the bar...when?
Attorneys who HAVE passed the bar have said the warrants were valid. You might not like it, but they were legal.
You asked a very general question.
Now, go ahead and fire up that truck. Let us ALL know where the legal loopholes are in what you read.
I wonder, was it legal for these people to do this with 13 year olds in 1787?
Silly, I already said IANAL...I am a mathematician, and I just finished a graduate course on how to grind a law case into dirt, based on math. Actually, the class was facinating - the Prof is a Prof in Math, and in Law! How odd is that?
Someone wants on a ping list. Do we have an actual ping list for this topic?
Does anyone mind if I start one?
(Ok, Najida, what am I going to call it?)
Probably. So what? It was also legal to beat your wife to death, and own people.
Oh, for those halcyon days when a man could do whatever evil, vile, disgusting things he wanted and get away with it scot free.
Don't have a clue. But it's irrelevant in this case because this has happened in TX and what matters is what Texas says is legal.
So go on. Drive that truck through that warrant. You said you could. I want to see you do it.
Rozita Swinton is a pledged B. Hussein Obama State Delegate.
http://mypetjawa.mu.nu/archives/192369.php
Yes, there is one. A few of us have copies. Me, greyfoxx39, shoot! Don’t remember who else....
Rozita is not named in the warrant.
Well, you have to name it the “Alpo Male” ping list.
You must. :p
Ok - what will you pay me, if I do?
Your delusions of grandeur do not cancel the legalities of what the Texas CPS and Texas Rangers did and are doing in this case. Better luck next time.
Bupkis, braggart. Evidently you don’t have the goods.
“
Your delusions of grandeur”
Go with that.
What’s relevant to the law is the evidence presented in court and current Texas statute.
What’s relevant to community outrage and the court of public opinion is the alleged evidence disclosed by the state in the papers.
The disgust of the community with these people’s cult/religion/way of life as based on news reports and CPS press releases is irrelevant to the law.
Of course not.
You at Penn? Sounds like one of Murray Gerstenhaber’s classes on probabalistic inference in law.
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