Wednesday, April 16, 2008

More law blawggers need to weigh in on West Texas polygamy case

Robert Ambrogi at Legal Blog Watch graciously acknowledges Grits' coverage of Texas' raid on the Eldorado polygamist compound, but rightly questions why,
as the biggest legal story in recent weeks moves forward, one involving hundreds of lawyers and affecting the lives of many hundreds of women and children, the legal blogosphere seems blind to it all. As one who has come to look forward to blog commentary for insight and perspective, I am disappointed.
For the most part, I'd have to agree, especially since Texas enjoys an exceptionally robust legal blawgosphere. A few have offered excuses, but for the most part our Texas blawggers, like those nationally, have remained mute (if I missed your post, please let me know). One exception is The Local Crank, a frequent Grits commenter and one of the 400+ attorneys who has accepted volunteered for an ad litem appointment in the case. He called the situation a "fiasco," and concluded with the colorful observation, "Once again, Texas state government shows it couldn't pour piss out of a boot if the instructions were printed on the heel." (Regardless of your views on the raid, that's a great line!) He added here in Grits' comments:
Did no one think in advance to look if there were enough lawyers in a five county radius to serve as ad litems? Or if it was even feasible for one district court to shut down all it's operations to devote to one case? Or if there was even a courtroom big enough? And now, after letting some mothers come along with their children (admittedly an unusual act in a removal case), then stripping them of their cell phones, now they decide to kick them out unless they have kids under 4? This sort of screaming incompetence is going to permanently scar these children AND risk destroying any criminal cases that might be made. It's just beyond belief.
That agrees essentially with my assessment so far. I fear this overreaction by the state will make it impossible to pursue real abuse cases, and simply cause more harm than it cures.

Non-lawyer bloggers continue to offer some interesting thoughts. JourneyGal wonders "How many great-great grandmas do you have?," adding "I have a lot, because my great-great-grandpa had four wives." She supports the raid, but adds that, "I feel sad for women in Texas losing their children for crimes they either do not understand or do not believe they have committed. ProfessorUnc supports polygamy for adults but thinks FLDS' particular practices amount to "systematic rape." The MSM on this case, perhaps because of the salacious nature of the topic, is doing a more thorough than usual job. For example, I was humored to see an MSNBC story about the Pentagon contracting with a company run by the FLDS sect in Utah for military parts.

Ambrogi's right, though, that more law blawggers need to weigh in. For my part, I've written so much about the case because I've found the whole situation fascinating, a wild intersection of a whole slew of conflicting rights, values and interests on many, many levels. It's a situation where it's very difficult to decide what's right, so a more substantive debate among knowledgeable, thoughtful writers in the legal community would indeed be quite welcome.

UPDATE: Mark Bennett points me to a post yesterday from Ron's Insanity, by a family lawyer and regular Grits commenter from Houston, in which Ron concludes:
Here's my take on the FLDS organization. (I'm actually getting pretty disgusted with even calling them a religion.) They damage the lives of girls by turning them into child brides. They discard their male children because they're ultimately competition for sexual partners.

The Constitution is not an easy document. If you're a constitutional lover, it's easy to say that the First Amendment should control. However, like much in life, it's just not that tidy.

However, I'm still not certain that CPS will cause less harm than that organization would in the lives of those 416 children.
MORE: Here's a good analysis from ABC News about the upcoming court hearing Thursday morning to determine if the YFZ kids will remain in state custody.

17 comments:

Anonymous said...

Not a lawyer, but fyi, I've been advised that some children will be taken to be sheltered as far as Montgomery County, north of Houston. CPS seems intent on insulating them from any parental contact. Number of kids not known by me, but told it is a 'large' number.

Anonymous said...

Not a lawyer either, but find this story very troubling on several levels. With no evidence of physical abuse, why separate the children from their mother's and increase the emotionaly damage?
Definitely not agreeing with the practices, this "nation" was founded on the principals of religious freedom, and should we return to the Puritan practice of tarring and feathering Quakers or worse(both in my heritage)practiced before we became a "nation", simply because we don't agree?
Juliette was only 14, and much of the world still establishes puberty as adulthood. Because our ideas have changed, is it morally wrong to arrange a marriage at that time? I say this even tho' I find it repugnant, but "civilization" operated on that principal a lot longer, than the dubious, chaotic, and by some definitions, pologamist modern way.
Enough said, my heart goes to the children, they do not understand, and the damage to them is unimaginable.

rage said...

Well, as crappy as the State's actions have been, nobody wants to give too much attention to the rights of known child molestors.

Did the state overreach? Absolutely. Are these people diddling kids? Almost certainly.

This is kind of like giving Hermann Goering a fair trial. You don't want to, but you do, but you gloss over the things that might go wrong during the process because he's such a bad person.

Anonymous said...

"Why separate the children from their mother's and increase the emotionally damage? "

Because they're the government and they can do such a thing if they want. It's the CPS turn to abuse the children now.If people have a problem with that, they can face the boot thugs from the DPS. I'm sure you remember what happened at the Branch Davidian's in Waco.

Daniel Baker said...

This post said "I fear this overreaction by the state will make it impossible to pursue real abuse cases, and simply cause more harm than it cures."

I totally agree with that statement on several levels ranging from the damage done to these children and parents, to the concern that DPS and CPS will feel justified in going after other religious groups they happen to take a dislike to, to the additional distrust this case builds against the government's competence. After all some of their official pronouncements on the children's happiness are just totally unbelievable as is their action in this case.

I also am disturbed by the brazen bigotry evidenced in many blogs and comments.

I cannot claim divine wisdom in what would have been the best way to proceed in this matter, but the way the Texas government has handled it is certainly not it.

A very sad time for this country and for these children.

Anonymous said...

This is the most confounded story I've tried to follow in the post www era [circa 1993]. There is just no end to what's out there. What is missing is reporting on the decisions that were taken at the highest levels in Austin, when they were taken and how they were coordinated. I'm wantng to see reporting on the planning that transpired BEFORE March 29th when the abuse call from "Sarah" was received by the New Bridge Family Shelter in San Angelo

txnailpounder said...

I've had my suspicions about the phone call and the confidential informant used as a basis for the second search warrant from the get-go. I have a couple tidbits of info posted on my blog here.
Draw your own conclusions.

Anonymous said...

The CPS makes any agency in the Texas criminal justice system look like a well oiled machine. How they managed to take in 400 kids overnight is not believable.
If they were 400 innner city black or latino children, CPS would just not seem to be able to remove them from their parents, or some other bureaucratic crap like that.
However, 400 white children all dressed like they came from central casting for Little House on The Prairie?

kbp said...

First, Thanks Grits!

Great blog here.

All conduct was initiated through a phone call from one they cannot locate or identify;

The call was allegedly made to some protective service facility (careful there!);

Claims were made of childbirth by a 14-15 YO, sexual abuse and that a beating took place this past Easter (do they celebrate Easter or am I confusing them with the JW's? Oh well!);

The alleged last call, of two received, came a few days before the raid; while in the last call she took all she told them back;

Persons familiar with the verbiages that a FLDS member would use questions if the call is even from a member (including former members that oppose the sect);

The affidavit did NOT tell of any call records that identified where the call came from or any effort to obtain such records (maybe it will come out tomorrow);

Skipping on past the question of probable cause for a search, we witnessed a raid that started Thursday April 3rd;

The LE officers involved are doing their job under the directions of (or with approval by) others;

That would include all SEVEN HUNDRED of them that brought all their war game toys along to play with;

Everything seems to be going well at this point, just like the FOUR YEARS of planning was set for it to happen;

We're now aware that a local prosecutor has been involved in the background, as revealed in a few comments she made to the press;

Leading this action appears to have been handed off to Marleigh Meisner (along with Patrick Crimmins), of the Department of Family Protective Services, AKA the Child Protective Services (CPS) (not sure if that's a division or common name used);

The local judge issued a Search and Arrest Warrant to proceed on (this judge appears to handle everything from warrants down to checkout at the department store);

News then came out that they are looking for the wrong man (evidently confirmed later);

It's sourced by fairly reliable links that the "husband" is actually closer to the alleged victim's age (never confirmed in any way);

The man on the arrest warrant, the 50+ year old, has been reporting to a probation officer in AZ since last August (and the affidavit for the warrants look to describe him down to exact shoe size, well, not quite, but...);

The Texas authorities started hauling off 200+/- kids into state custody about 4/4 (416 total by 4/5-ish)(using Baptist buses which was not PC!);

The CPS keeps telling us the children in custody is because of an "imminent" abuse, a qualifying term added in their responses to the media;

Then we had an Affidavit from a Lynn McFadden fall out in the media, someone from a CPS safe shelter type place;

This Affidavit was from April 6th, 3 days after the raid started, 2 days after they started taking the kids into custody (must admit that may be the process there, break down the doors and provide a touching narrative to explain why at a later date)

The reason given for this new affidavit popping up appears to be to provide a probable cause for taking the kids, new born through 18 year old boys and girls;

This new affidavit worked well to publish that narrative which stirred public emotions (all joyous to get those "imminent" dangers out of the way).

Next the authorities holding the children and mothers in custody started confiscating phones around 4/9, not allowing communication with the outside world (date rumored, but we did see more action there AFTER that rumor surfaced);

CPS spokesperson tells the public the women with the children in custody DO NOT WANT TO TALK TO THE MEDIA;

The women place THEN cell phone calls to discuss the case with the media;

The CPS then gets a court order on 4/13 or 14 to have officers search for and confiscate all electronic means of communication (phones...);

The good news here is that there is no worry now about the mommy's calling attorneys to represent them;

The bad news is it sounds fishy when you add together the chances that moms may not know they are faced with a custody problem, they are told stay here or never back, that attorneys could NOT visit them... the CPS then appears to be withholding access to counsel (if moms even understand what's up!);

Though some claim the mothers volunteered to go, we do not know how many went just to be with their children, as most mothers would, but we need to keep in mind the mothers may have went to get away from that ranch (time will tell here);

To many it's of no matter, for the CPS decides less than 3 days before the hearing on custody to separate mothers from their children if the kids in question are >5 YO;

Most would presume that with there being an upcoming hearing that may give the kids back to their mommies, it would be silly to start the 'get-over-it' process at this point, but the state assures us it was the right decision;

How the decision factored in mothers of children <5 who also had children >5 I'm uncertain, but with all that's happened so far I feel safe assuming there is some sort of partial or half custody that will illustrate children under 5 cannot be abused by this type of mommies, a flowchart to determine the why's & what-for's or just whatever (obviously it's over my head!).

That's my summary pieced together from what has been published. All my slanted, non-attorney view of the situation.

Now on to what my opinions are here.

I believe before this is over, we'll find out why the prosecutor and LE officers have stayed in the background, and we may learn it was to allow them to shift all blame on the CPS if the method used to take so many into custody does not all pass the legal smell tests and that most at the CPS were happy as can be when they started (then national press!!).

The players of higher grade than CPS have been working on this for some time and they may find out that is exactly the same game plan the higher ups on the opposing side wanted to see. The higher ups in the courts will tell us who won 5-10 years from now.

Going after all that violated laws which harmed others in this situation, IF all conduct in the process involved in accomplishing such is legal, is a good thing. I also admire the fact it will help some that may be endangered or were too scared to leave on their own. Still waiting on both to happen.

The big game after the custody matter will be all the CYA I anticipate. We'll need more fall guys on both sides before this is over.

Now the authorities are also asking for or have obtained an NIO or NTO (order) for DNA samples to be taken from all in custody and on the ranch to determine parentage. They need to be very careful fishing for crimes they do not know are crimes. It starts to resemble an action that allows all (through orders forcing such) to prove they are innocent, a pattern that conflicts with constitutional rights and could haunt the authorities.

At the same time it indicates they at least have women they suspect were too young to pass the age rule about getting pregnant, but only if the ages are correct and it was not young boys that did the job (some news on CPS not believing claims of age).

However it ends, if there is evidence of abuse that is uncovered legally, the next raid should use this one as an example to plan better.

The Local Crank said...

In fairness, I should point out that I volunteered to serve as an ad litem but haven't heard back. Maybe CPS reads my blog, too. The more I read about this story, the more it sounds like law enforcement, and not CPS, was running the show. For one thing, CPS doesn't need a warrant to remove kids, just an affidavit. For another, as much as I criticize CPS, the ones I have worked with have willingly slept in their own offices several nights in a row (without pay) to keep an eye on kids who can't be immediately placed in foster care; I can't imagine them warehousing children in century-old forts or football stadiums.

kbp said...

Thanks Crank!

"For one thing, CPS doesn't need a warrant to remove kids, just an affidavit."

How do you spell "after-the-fact-affidavits" in Latin?

Ron in Houston said...

Grits

I think one thing people need to realize is that CPS is prone to high degrees of overreaching when it's just Joe and Sue Smith who have some kids and a meth problem.

However, when they are subject to intense media scrutiny, they are very careful to make sure they have legitimate grounds for the decisions they make.

They have a PhD who worked with kids from the Branch Davidians at Waco. He's likely telling CPS that these kids have been "brainwashed" and he probably has some very valid points.

Whether you like how they've done things or not, by now, they have credentialed experts willing to say that what they're doing things in the psychological best interests of the children.

My biggest question with the agency is even if some expert says it's in the children's best interests, do they really end up making the problem better?

These cases need strong and fearless judicial oversight. Again, whether that's possible with 416 children is a whole other question.

kbp said...

After seeing Crank's comment on what is required to remove kids, I feel i should clarify my notes/opinions above. A good portion of them had been transcribed as the events were reported. I did make an effort to edit them as time passed and again when I posted here, also adding more for that string of comments.

The original intent of my notes was to review the W's (who, what...) of the Search and Arrest Warrant that led to 700 storm troopers raiding the ranch. The custody issue quickly folded into the mess, which led to the mess developing in my notes.

Though I tried to stay focused on looking for/at any inappropriate conduct by authorities, my comments can easily be taken to indicate I disapprove of all their actions or even approve of illegal conduct by sect members. Sorry if it was taken that way, it is not my position to approve of any crimes committed at the YFZ.

While I'd say it is safe to assume crimes of some level were committed, the process being used to uncover them is at the very minimum questionable, while possibly being an abuse of authority.

I should also point out that the 04/06/08 affidavit was filed in "Support of Original Petition", an "original" in which I have not seen unless it is refering to the 04/03/08 warrant that related ONLY to finding the caller and the out-of-sate husband she identified.
I hope what followed "Now on to what my opinions are here" helped to convey what I was seeing as problems in this case!

Thanks to Grits and Crank!

Anonymous said...

"They have a PhD who worked with kids from the Branch Davidians at Waco. He's likely telling CPS that these kids have been "brainwashed" and he probably has some very valid points."

I have a feeling that this same PhD might also think that taking your kids to church and having nightly family Bible reading and prayer is also brainwashing.

I've had a few cases with DFPS and seen their "investigations". Not only are they incapable of pouring piss out of a boot, when their lips move their noses should be growing at the same time. Anyone who hasn't dealt with these people should be extremely skeptical of them.

Anonymous said...

Texas DFPS has a media documented, frequent and repeated history of being a unfit guardian for children's safety. Very recently even but somehow in the hype, that mention is very neglected. I wish a reporter would pick up on that angle. Not that I want these children to be left until DFPS is perfect. But this idealized rescue is fiction.
This whole thing makes me sad.

Anonymous said...

Where to start? The first problem is a judicial system that operates and makes decisions that are for the most part not necessarily in "the interest of the children". They are in the interest of their constituents. Never forget they are elected officials. That does not place them above corruption, but rather right in the midst of it.

And then we have CPS involved. I can not begin to tell you the misjustices that I have seen at the hands of this government entitity. For those who don't understand this system, "grants" are awarded for different phases once this agency intervenes. So much money for removal, more money to show that the children have psychological or medical needs (so guess what, after CPS's shrinks see the kids they all require medication.) And rest assured that if the children in question are white or hispanic they are considered to be more "adoptable" so the chances of termination of parental rights sky rocket. I have personally seen afro-american children left in dispicable living conditions, because for lack of a better way to put this - they are hard to adopt out. There are waiting lists for white or hispanic or asian children...not for black children.

For the legal system one of the main stumbling blocks is going to be discerning the amount of brain washing that occurs at the hands of this "religeon". Aspects of this religeon have been proven over and over not to have any factual or archeaological basis. It is a fake religion whose main purpose seems to be the doctrine of "plural marriage". Which assures them "Celestial Marriage" once they reach the realms of Heavan.

Now for years, we as a nation have stood by an watched in awe choosing to focus only on the parts of this religeon that redeem it as such in our eyes. We thought the occasional victimization of underage girls and the fact that the young boys were "driven" from them for supposed violations of the faith were just a part of it - that these were uncommon occurences - and we accepted it.

Because the "husband" is only legally married to one of the spouses this allows them to skirt around the polygamy issue. For a religion to truly be a "Bible" believing and teaching religion one shouldn't need to hide the truth of their beliefs. Therefore, FLDS and LDS (in my humble opinion) qualify themselves as a cult or a sect.

Anything that must be conducted in secrecy is not something that my God condones or approves of.

And then there is the often secret ritual of "blood atonement" which is practiced by these cults. Anyone choosing to challenge the doctrines and chooses to leave the church, whether or not they speak out about that belief system lives in fear of "blood atonement". Which is exactly what the name suggests. They kill those who speak against it with first hand knowledge. "Joseph Smith, the founder of the Mormon religion and its first prophet, taught that certain sins were so so serious as to put the sinner "beyond the reach of the atoning blood of Christ." For these fallen sinners, their "only hope" lay in having "their own blood shed to atone", this is taken from Blood Atonement and the Early Mormon Church. No wonder these people stay and keep their mouths shut!

We should have acted years ago. We as a nation are quick to jump on the bandwagon of prosecuting other countries based on their "human and civil rights" violations, yet for hundreds of years we have stood back and watched this happen within our own borders. I fear we have been silent too long.

Oh, by the way, I'm not a lawyer either, but I worked for many years in legal field and saw the travesties carried out daily in the name of justice.

Anonymous said...

TEXAS CAME AFTER ME, A MOM, IN ANOTHER STATE

My 16 year old stepdaughter told school administrators in Texas that I was abusing my 4 children (I live in another state). She was mad at her father and me about going to boarding school in Texas, so she made up wild accusations of abuse. Texas CPS called CPS in my state and they sent the police to my home, as well as social workers. It was very traumatic to my young children. They were taken away from me, interviewed separately (ages 2, 4, 6, 8). CPS finally concluded that there was no abuse. But meanwhile my children had to experience this traumatic event.

Why is it that if a teenager feels like calling in a prank, the full force of law will come bearing vengefully down with out any corroboration? Is this America?

I think everyone appreciates the fact that children need to be protected and sometimes there is real abuse. But there needs to be some circumspection. Each woman in Texas needs to be treated as a separate case and no child should be taken from his/her mother unless there is corroborating evidence of abuse.

Child Protective Services needs to ferret out REAL cases of abuse by a systematic process.