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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
Apparently this is off of Nancy Grace tonight:
SUSAN ROESGEN: Got to say something about the toys. We’ve been told by a Warren Jeffs biographer, people who’ve studied his patterns and his rules there that he doesn’t like toys, that he outlawed toys, that the only kind of toys he would let the kids have would be trampolines, and we know for a fact, Nancy, that when those children were taken here to the coliseum behind me, the volunteers who came to help the children and make them feel at home showed them crayons and the kids didn’t even know what a crayon was.
*****
What is this guy, the Bergermeister Meisterberger? (Obscure reference from Santa Claus is Coming to Town.....)
George Mason.
Fine. I’ll just have to respect you for some of your other qualities that I like. :D
in an answer yes....with regards to validity of the warrant
and the evidence obtained with faluty warrant
and it will take a Fed judge to rule this probably....some state robe will probably punt it
now a crafty county attorney-AUSA might be able to wiggle some of what they found into evidence
some sort of plain sight or preponderence or collateral cause argument
Oh, sad....
You know, kids can play, and do very well without actual toys.......but crayons seem *ahem* elementary....
My question the local sheriff claims to have had an informant on the ranch for the last 4 years if this was going on why did not the sheriff take action one case at a time.
if it was and the sheriff ignored it he should be shot if not then the lying needs to stop
Having run into him on abortion threads, I can tell you he has formidible reasoning capacity. But this thread was a bit over the top.
As it should be
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Kids have too many toys today. They expect to be entertained. We used to find our own. A barrel to walk, trees to climb, mowed grass to build stuff with...This is a none issue as for as I’m concerned. I know it wasn’t funny but I had to chuckle when I read that they gave the girls dolls. If what is reported is true...I would have ran the other way if someone wanted me to play more house:’)
What topic? We don't have a ping list for JUST the FLDS situation. I have been trying to keep all the threads I see sorted by adding "FLDS" or "Polygamy" as a keyword.
If that is the only topic wanted, that will bring up more threads than you can shake a stick at ;)
But a ping list would be great.... PM, feel free to start a ping list...if you like I will FM the Inmans to FM you if they want on a separate list.
I wondered why she was taken to a clinic also. I'm not gonna lose any sleep over it though. If she did go, CPS knows by now.
Then why’d you bring up the legal age of marriage in NH and NC?
Not much math is needed here. Sorry. All you need to be able to do is subtract 13 from 50 or add 1 plus 7.
If some old geezer tells me he disapproves of my children having toys, I’m going to tell him to take a flying leap.
Is that a tenet of the “religion”?
That is just nuts.
since when, you can’t even search a hotel like that. Each address needs its own warrant. I have seen local police in Virginia get tripped up by that. This is just one of the problems that are going to come up at trial.
You know I’ve been bored without my beloved FRed ping list....
:(
You know, an interesting thing has happened on these threads.
People have been slamming the government for not handling this *properly*. They keep saying that the government should have collected more evidence. Some have suggested wire tapping and infiltration.
Now here we have a situation where infiltration has happened and now what are we hearing? Criticism of why it was let go for some long.
The government is damned if it does and damned if it doesn't. This goes to show that for the government haters, NOTHING the government can do is right, ever, Even when the government does what the haters have suggested, its being castigated for it.
The problems with an informant is that they cannot make it obvious that they are collecting information. Not only would that tip the leaders off, they'd very likely be taking their lives into their hands.
So they just have to lay low and collect what they can as the opportunity presents itself.
Now if they did start dealing with it one at a time, as it happened, that would certainly tip off the leaders as well, again rendering the informant ineffective.
LOL
You complain about some people prejudging this case, and yet you are doing the same thing to CPS workers....
susie
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