Wednesday, April 09, 2008

Search warrants for polygamist compound may be invalid

UPDATE: FLDS defense attorneys withdrew their objection to the search warrant today, avoiding a direct ruling by the judge on its legality.

Increasingly I'm coming to think that the case against the Eldorado polygamist compound may be a setup job. Certainly the warrants used to sweep into the compound and remove more than 400 children by force seem inadequate, and the church will ask a court today to quash them.

I have no idea what would happen then to the 400+ kids taken from the compound. What a mess!

Why could the warrants be tossed out? For starters, the initial warrant named the wrong person. Dale Barlow, the 50-year old man who an anonymous phone call accused of marrying and assaulting an underage girl. Barlow is actually on probation living in Arizona, says he's never met the girl in question, and has not been arrested. According to the Salt Lake City Tribune:
Joni Holm, who has helped children leave the FLDS, said the teenager who called officials on March 29 and 30 and claimed she was abused is married to a different, younger man. The girl's husband is in his late 30s, is related to Dale Barlow, shares his surname and has a similar sounding first name, Holm said.

"I know they're looking into the wrong one," Holm said.
Indeed, they can't even find the 16 year old girl who's phone call set off the whole chain of events. None of the information on which authorities based the raid appears to have panned out. The error regarding Barlow in the warrant could easily wind up creating a "fruit of the poisonous tree" situation where none of the evidence from the compound searches can be used in court. Again from the SLC Tribune:
The first warrant identified Dale Barlow by name and his birth date. The copy on file in court does not list the name of the investigator who petitioned for it.

A second and more expanded warrant, signed Sunday night, was based on observations and evidence found by law enforcement and child services workers inside the compound, according to court documents.
So if the first warrant targeted the wrong person, and the second, expanded warrant was based on observations from the first, I don't see how these warrants stand up in court, though maybe some attorneys in the crowd have additional thoughts. Several criminal defense lawyers interviewed on CNN also questioned the breathtaking scope of the warrants.

Not only that, though, some of the laws the sect has been accused of violating appear to have been passed specifically to target their religious beliefs, making previously legal activities illegal in order to penalize this particular organization. According to the Houston Chronicle:

In 2005, the sect's relocation to his district prompted Rep. Harvey Hilderbran, R-Kerrville, to push for changes in the marriage law, including increasing the minimum age at which teenagers can marry to 16, if they get parental consent or a court order. Previous law allowed someone as young as 14 to get married with parental consent.

"Had this bill not passed, there would have been quite a few of them that were married and were pregnant for instance or married with kids that were under 16 that they could not have done much about," Hilderbran said. "I've got some pride in it. It's one of those things I knew it was the right thing to do."

So how does that jibe with the plain language text of the US Constitution's first amendment, which declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"? I'm quite surprised my former employers at the ACLU of Texas haven't jumped all over this. I believe Hildebran may well have crossed the line by passing laws specifically aimed at a religious group.

Don't get me wrong: True pedophiles should be prosecuted to the full extent of the law. But that's a little different than changing the law to redefine historic religious practices by a particular sect as "pedophilia," which is what Rep. Hildebran did. Similarly, there's a big difference between investigating an individual, anonymous complaint from a single teenager, and forcibly taking 419 children away from their homes based on guilt by association.

I'd feel the same way if the state decide to seize all the children of parishioners in a Catholic church whose priest had been accused of pedophilia. What's the difference between that and what's happening in West Texas based on allegations against one man?

As Fox News' Greta Van Susteren declared, "being weird isn't a crime." And the alleged crimes of one man don't justify violating the rights of hundreds. When we identify "weird" people whose religious beliefs we don't like and pass laws criminalizing that behavior, as Hildebran did, to me that borders on "prohibiting the free exercise" of religion. This whole episodes strikes me as grandstanding and overkill.

UPDATE: According to "The Polygamy Files," the Salt Lake City Tribune's blog on "the plural life," some people familiar with FLDS are questioning whether the call was legitimate:
Why? Much of the verbage is wrong for the FLDS sect. For example, they don't refer to ''the outsider's world.'' Non-FLDS members are ''gentiles,'' the caller pointed out.
See more excellent coverage from The Polygamy Files here, here, here, here, here, and here.

RELATED: Is History repeating itself with raid on West Texas polygamist compound? Eldorado incident recalls 1953 "Short Creek" raid

25 comments:

Anonymous said...

How will they stand up? If they do, I suspect we'll end up reading about "harmless error", the catchall of the Texas court system when looking for an excuse not to overturn.

jigmeister said...

Grits,
I would love to see the warrant and affidavit. Those errors you mentioned won't necessarily invalidate it. Its public record, but someone will have to go get it.

Fly on the Wall said...

smoking gun has it:
http://www.thesmokinggun.com/archive/years/2008/0408081texas1.html

Gritsforbreakfast said...

That's the second warrant, fly on the wall. The alleged errors were with the first one against Barlow. I agree, jigmeister, the errors mentioned don't necessarily invalidate the warrant, but they easily could.

Texas just passed a Very Bad Law last year allowing search warrant affidavits to be sealed for up to 60 days, so I'm not sure if it's public yet or not.

Anonymous said...

What about the participation of the Baptist church in this police-state invasion and reports of Baptists "witnessing" to these girls. This whole thing stinks.

Gritsforbreakfast said...

I did notice that some of the buses used to transport the women and kids away were from local Baptist churches, which seemed a bit odd. That also could strengthen the implication that there's a religious persecution angle here, that one local religion is teaming up against another.

I hadn't heard tell of "witnessing" to the FLDS youth, but from my own experiences with extremist Mormons, my guess is that wouldn't turn out exactly like the Baptists might hope!

Anonymous said...

I've been hearing about the FLDS fairly regularly over the last few years, and I really wondered when someone was going to finally step in and do something about this, because it's long overdue.

Lets be frank here, this is absolutely a situation where the government needs to step in. Female teenagers are being forced into marriages with middle-aged and older men, under threat of being abandoned somewhere and never being allowed to see their family again. Once married, their husbands see them as property, and rape them with impunity. Once they're old enough that they might be able to fend for themselves in the world, to get out and never look back, they tend to have children to look after. It's difficult enough to escape from these places when you're alone, but when you're trying to bring along young children?

Male teenagers are made to follow a very strict code of conduct, not necessarily because of any intrinsic religious beliefs, but for the simple fact that, in a community where men may have 5 or more wives, a problem of too many men can arise. These boys are raised in an environment where they're told they can't trust the outside world, that only church members are to be trusted. They're forbidden from watching movies or TV, from going to public school, and are entirely sheltered.

Then, in order for a 50 year old man to have more wives to choose from, they may be put on a bus at 13 years old, sent into the nearest city with no money and no food. If they attempt to contact their family back home, the family is forbidden to speak to them. They are left entirely alone, left to deal with a world they've been raised to think is corrupting. Their entire world has collapsed, and their mind has been poisoned to believe that any help available to them is sinful and evil.

A former member of the church told the Phoenix New Times that Warren Jeffs has repeatedly talked to his congregation about the concept of blood atonement, which means that a person has committed a sin so serious that the only way for the sin to be cleansed is for the sinner to die. Not that the sinner has to come to want to die, just being killed is good enough. This same church member also reported that he was asked to build a thermostat for a high-temperature furnace, which was to be used for burning items with DNA evidence tied to the ritual of blood atonement.

Which will make it all the worse if the raid was based on invalid documents. These people are committing illegal acts, doing real and measurable harm. Religious freedom is a good thing, but religious freedom is not a license to commit child abuse(among other things). If they can't practice their religion without doing as such, they deserve to be shut down. And if the police in El Dorado have botched this, then it will become measurably more difficult to stop the abuse being committed on the FLDS compound.

I don't want anyone to misunderstand me, to think that I'm advocating fudging the paperwork to get this done, because I'm not. If the warrants are invalid, then they're invalid, and everything seized from the raid should be excluded. It just means that they are going to need to go back, gather new evidence, and start again at attempting to get the abuse that occurs in the FLDS church stopped. It is a necessary task, and it will be considerably more difficult the second time around.

Thomas said...

Eldorado, just Eldorado. Not El Dorado.

Guy Murray said...

Nice Coverage. Keep up the good work.

Anonymous said...

anonymous, your speech is so far out. When are we going to hear it from someone that really knows and not just someone that is angry because they didn't get what they wanted and just want to say something sensational to be heard. Lets look for facts not hearsay, for instance Flora, Carolyn, both angry and don't have facts togather, I will not Identify myself, but I talk with knowledge not from someone I heard. This people's rights are being abused.

Gideon said...

Scott, the CNN link is actually a link to a Foxnews story about Greta's interview with Howard K. Stern.

Gritsforbreakfast said...

That's really weird, Gideon, I used that link to get the story myself several times today, but you're right it's been changed. I can't find it now on CNN's site at all, but found a cache of the story here and have changed the link in the text.

Thanks!

Gideon said...

Scott, I found it. Here's the link:

http://www.cnn.com/2008/CRIME/04/09/polygamist.lawyers.ap/index.html

And I don't know if it did this for anyone else, but when I clicked on "According to the Salt Lake City Tribune", it loaded the story and then the link went nuts, asking me to download some anti-virus software, refreshed three times and did that and each time I clicked on the "x" to close the window and finally it went back to the news story page.

Gritsforbreakfast said...

Gideon, that's a different story than the one I linked to in the cache, though it's a good one.

And on the SLC Tribune story, I just don't get that problem and when I click it goes straight to the story.

Has anybody else had that happen? I don't want to be sending folks to Viruslandia, and figured the Salt Lake City daily would be a reliable site. Let me know if it's happened to anybody else and I'll find another link for that. My apologies - I was apparently a little sloppy with the links on this one!

Anonymous said...

What is going on here is child sexual abuse. I am shocked at your concern for the inconvenience experienced by a community that endorses systematic child sexual abuse. Religious rights.Please. How about those children's rights?

Anonymous said...

Smells like they're burning the witches again. not to mention that it was legal in Utah for 14 yrs old to marry (with parental consent) until about 2 yrs ago when the lesbians, feminists and their enablers got attorney general mark "zeig heil" shurtleff to raise the age.

oppressors always resort to making the religion of their enemies a crime. Isn't that what happened in babylon under nebachadnezer? weren't the jews almost exterminated because they refused to worhip the king ahead of god? note: the enemies of the jews had nebachadnezer enact a law requiring that only the king could be worshiped. it was the death penalty to worship god.

if it was okay to marry a 14 year old two years ago then it is okay today--the only thing that has changed is that the lesbians and feminist managed to amend the marriage statute. well...it is time to amend it back.

Gritsforbreakfast said...

"lesbians, feminists and their enablers" - can they really be a powerful force in Utah?

In Texas it was legislators more associated with the religious right, ironically, who redefined marriage laws in an overt effort to target this specific religious sect.

Anonymous said...

Whether or not the causes for the raid and CPS effectively seizing over 400 minors stand up;

has any entity filed for seizure and forfeiture of the property?

Anonymous said...

Charles Kiker here:

This thing smells bad, and as with most foul smelling stuff, the odor does not get better as the days go by. It smells like a setup from folks who want these people out of their backyard.

Where is the girl who made the anonymous phone call from a borrowed cell phone?

Forfeiture and seizure, Anonymous 10:26? That would certainly violate 1st Amendment. This is a bona fide religious group which parted ways with the LDS when LDS gave up polygamy so that Utah could become a state. I'm neither a Mormon nor a polygynist, but I do want my first amendment rights respected. And if mine are respected, everyone else's must be.

Anonymous said...

9:59/

The religion here is not the crime.

Hey if a bunch of adult women want to marry the same dude. fine.

Leave the children out of it.

Anonymous said...

Follow this link and see if our own contry is not guilty of genocide in this instance!

http://www.preventgenocide.org/genocide/officialtext.htm

George Dewey said...

Yes, this entire incident is a complete travesty of justice. One, we have problems with the incident that sparked the whole thing. It appears to have been a prank call. Two, how do you justify raiding an entire community with assault vehicles based on one allegation about one family? Three, have we thought about how these children have been impacted by a military invasion of their homes; being whisked away from their homes, separated from their mothers, interrogated by strangers; then, thrown into a courtroom; and, now, poked and prodded with needles?
I hope that someone with a grudge never prank calls any of my neighbors. I'd hate for the whole zip code to be overrun with S.W.A.T. and my son taken away because we live nearby.

George Dewey said...

As far as the International legal definition of genocide goes, here are the bits which jumped out at me:

the mental element, meaning the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such"

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

George Dewey said...

As some of you may know, the ACLU is now involved. In reading up on this, I also came across this online petition, in case anyone is interested:

http://www.thepetitionsite.com/2/free-the-innocent-flds

Anonymous said...

With respect to the subject of allegations of child sexual abuse, a certain measure of “hysteria” exists among child protective agencies, the courts, and a significant segment of our population. As a direct result of this hysteria, innocent parties are found to have perpetrated the sexual abuse of a child when in fact no such sexual abuse has taken place. This happens in civil cases in the context of domestic disputes, and increasingly, in criminal actions. Thus the false allegation of child sexual abuse has become a strategic weapon in the arsenal of some, and in other cases, persons of good intent have been seduced into the hysterical atmosphere that characterizes the false allegation. It is generally agreed that at least one-third of child sexual abuse reports turn out to be “unfounded”.