Sunday, May 10, 2009

Getting creative on polygamy prosecution

It being Mother's Day, let's turn our attention to the legislative aftermath of the 2008 Great Eldorado Polygamist Roundup, where more than 400 children were taken from their parents at a West Texas ranch run by a polygamous Mormon sect, the Fundamentalist Latter Day Saints (FLDS).

This time last year, FLDS children were separated from their mothers based on a creative legal ruling that the parents' religious beliefs constituted per se abuse; appellate courts later overturned those interpretations and ordered the children's return. Now the Texas Legislature is flexing its own creative muscles trying to salvage prosecutions from this fiasco.

Legislation to lengthen the statute of limitations on bigamy passed the Senate and will be heard this week in the House Criminal Jurisprudence Committee. Apparently, since authorities couldn't prosecute polygamists at the YFZ Ranch in West Texas as they'd prefer, they now want to give prosecutors up to seven years to pursue bigamy cases, ten if they involve a minor (although no victims are clamoring for prosecutions). The current statute of limitations for bigamy is just three years, as is the case for most felonies.

A different House committee already heard related but much broader legislation that has not moved nearly so far along in the process, so if this gets to the floor, I'd expect Reps Harvey Hildebran and Drew Darby to try to load it up with all the extra mischief in their bill. Sometimes you really have to get creative if you want to use the force of the state to impose your personal moral code on others but can't figure out how to do so within the constraints of their constitutional rights.

The blogger at Sore Toes and a Bleeding Heart yesterday blogged about the creative lawmaking that changed Texas' marital laws in 2005 to target polygamous Mormons who'd recently moved to West Texas. "Toes" pulled the money quote of the hearing from state Rep. Harvey Hildebran, who told the committee that any abuse report "has to come from inside, so we’ve got to be a little bit more creative in how we get the report."

Given what transpired after that, with more than 400 children seized on the basis of a hoax phone call, this is one of those quotes that makes you go, "Hmmmm." After all, the search warrant on which the raid was based was full of official "creativity."

Over at The Common Room, the Headmistress Zookeper further analyzes details from the original affidavit used to obtain the YFZ search warrant, noting that we now know a worker at a women's shelter suggested the name "Dale Barlow" to Rozita Swinton, the hoax phone caller (who claimed she'd been married three years but didn't know the name of her husband), after finding it on an Internet search while they were talking. The Headmistress also points out that Rozita's claim to have been treated at the local hospital was checked out by the Texas Rangers before the raid but couldn't be confirmed.

"There doesn't seem to have been any single identifying information in Ranger Brooks' application for a search warrant that he or somebody else didn't find via googling," she concludes. In other words, as Grits first suggested three days after the raid, the Great Eldorado Polygamist Roundup was a "setup job."

None of this inspires confidence. What's needed at this point to reestablish trust in the system are fewer "creative" efforts and more respect for the law and individual rights by Texas' political leadership.


Anonymous said...

The good news is that this is the best legislative session Texas has ever had.

Only one statute passed, and most will die without a vote. They have to be debated on the floor by this Thursday or they die. For bills that have yet to even be voted on in committee, there's not much hope that they'll make it out of both houses and get signed this year.

Informed Citizen said...

Attorneys and those employed in government know that THE STATE OF TEXAS was creted for their benefit. This created a lot of benefit for them. "CREATIVE PROSECUTION". That's what it's all about. Depriving the people of Texas of protection, under the COLOR or DISGUISE of protecting them. The LAW is whatever they choose to make it. ---------
Just ask our Legislators. They will tell you they make the statutory laws, but they don't understand (cannot interpret) the laws they make. They create the color, and the Exec & Judiciary add some more color to it so that it remains undefined, impossible to interpret (understand).
YOU, cannot 'know' or 'understand' right or wrong, lawful or unlawful. But you WILL be subjected to it. THEY, on the otherhand, can plead "good faith" ignorance in the event any try to hold them accountable for what they are paid to know. It's a benefit of employment at public expense.

Anonymous said...

Who needs due process? Justice...Texas Style!

Anonymous said...

Grits you say that trust or confidence needs to be instilled back into the system; however I offer this, This one instance is not the only reason the faith is gone in the system.

Far more work has to be done before people's ideal of how the system should be will be met, or even gotten close to. This incident is crushing for some that still had hope, but fixing the reasons it occurred is still a long way from making things right in most of our eyes.

Anonymous said...

"The blogger at Sore Toes and a Bleeding Heart yesterday blogged about the creative lawmaking that changed Texas' marital laws in 2005 to target polygamous Mormons who'd recently moved to West Texas."

Fact check: They weren't Mormons (who have renounced polygamy). They were FLDS, right?

Gritsforbreakfast said...

11:06 - That's a distinction the mainline LDS church is concerned with, not me. The phrase "polygamous Mormons" IMO is historically accurate. But to answer your question, Yes, they were FLDS.

TxBluesMan said...

Since the hearing on the Motion to Suppress is this week, don't you think it might be prudent to see what happens?

I'll lay odds that the MTS is denied...

Hugh McBryde said...

I find it interesting that Harvey Hilderbran's site, is down. Previously you could confirm all that was also disclosed during the recorded testimony, with crowing claims of great good done by Mr. Hilderbran, in Mr. Hilderbran's own website, in the form of a press release.

Now it's all gone. How strange.

Unknown said...

400 men, women and children rounded up and forced to give their DNA to authorities, all on the word of one unsubstantiated anonymous call, which later turned out to be a hoax? It's hard to imagine that this type of fascism exists in a country that bills itself as the "leader of the free world". I have two questions:

1) Do the victims of this Nazi-style roundup have any plans to sue the state of Texas for this incident?

2) Can any collusion be found between the prank caller and authorities or Texas Child Protective Services?

Hugh McBryde said...

Ian, why not ask her?

It's probably her.

Matt said...

So...Texas officials knowingly denied due process to hundreds of our fellow citizens and made there lives a living hell? Liars and cheats manipulating the system. LOCK THEM UP. Not the polygamists, the morons who staged this!!

TxBluesMan said...

Gee Matt, although there is no evidence (other than blog supposition from Grits and others) to support any allegation that the FLDS was denied due process, you are willing to lock them up?

Doesn't due process apply to everyone?

The FLDS has received due process, and will continue to receive due process. The court hearing on the Motion to Suppress the warrants is being held this week (tomorrow if I recall correctly). The FLDS defendants will get a chance to prove that the warrants were not valid, and if they do, the evidence will be suppressed.

If the warrants are upheld, like I anticipate they will be, they can still attack them (if necessary) after conviction in the 3COA, SCOT, and then SCOTUS.

Gritsforbreakfast said...

Bluesy, more red herrings?

The 3rd Court already said the FLDS were denied due process from the get go! (No individualized 14-day hearings, etc.) That's why they had to let all the kids go (and I recall you stridently predicting the 3rd would rule the other way).

I don't doubt that Judge Walther will arrogantly uphold her own warrants and defy the appellate courts to overturn them. That's been her M.O. all along - violate the Constitution and hope nobody calls you on it. But the Third Court didn't go for that "one household" foolishness before and I'm pretty sure they won't this time, either.

Hugh McBryde said...

If the object is the destruction of the FLDS, whether the men are convicted or not, the evidence upheld or not, it will largely be accomplished (financially) when this is all over.

Why do you Blues, gleefully anticipate conviction based on bad evidence that will later be thrown out afterward? Certainly it would be better to go to trial on what evidence can be legally brought before the jury. Why burden the upper courts with appeals because Walther simply CAN?

Save the taxpayers a lot of money. There has been a lot wasted already. Let them GO. Try again with better evidence. I never understood why they just didn't go in and charge all the adults they could find with bigamy, and subsequently search each individual residence.

Perhaps that doesn't square with the all out attack on every front that the four states involved, and the federal government have been using, not to find wrong doers, but to DESTROY a group of people.

In Canada, they pursue Winston Blackmore in an orderly fashion. In Texas, they can't do anything without a wild west show.

TxBluesMan said...


Where exactly did the 3COA state that they had been denied "due process"? It does not appear in their opinion, nor does it appear in the SCOT opinion. The opinion of the 3COA states that "the district court abused its discretion in failing to return the Relators' children" which is the grounds for a writ of mandamus.

By the same token, SCOT did not affirm the 3COA opinion (as pointed out by Judge McCown in House testimony), but merely ruled that the 3COA had not abused its discretion, and refused to issue a mandamus to the 3COA.

I think that it will play out differently on the criminal side than you believe. First, 'household' deals with a civil petition under the Family Code, not the search of one property under the PC and CCP. Second, case law, such as United States v. Butler, 793 F.2d 951 (8th Cir. 1986), supports the issuance of a warrant for the entire property, including all buildings and structures therein. Third, despite your assertion to the contrary, there has been no Constitutional violation.

Even if the 3COA were to overturn her decision (which can only be appealed after a final judgment since only the state can make an interlocutory appeal on a Motion to Suppress), it would still have to go before the CCA. Do you really think that the CCA would quash the warrant?


Probably because I don't think that it is bad evidence.

Hugh McBryde said...

Hopefully we're all still around to see the day someone collects on that bet.

Our first indication as to whether or not the evidence will fall will be in Arizona. Judge Conn politely told (in my humble view) Judge Walther to deal with her own business. He'll let her have that chance, but if she doesn't rule as a judge, but instead rules as a political partisan, Judge Conn will chime in with his opinion.

I don't think it will be in favor of the evidence, but we will see. Necessary or not Blues, I think his ruling against the evidence, provided he does so as I expect, starts a chain reaction that eventually disqualifies it in Texas.

TxBluesMan said...

Texas judges don't typically listen to judges from other states.

If you are counting on her suppressing the search because of what an Arizona judge may or may not do, you will be in for a surprise.

Gritsforbreakfast said...

Bluesy, the 3rd Court said Walther didn't give individual 14-day hearings - that IS the due process she violated. If that specific phrase wasn't used, it doesn't mean that's not what the ruling means. That's HOW she abused her discretion.

As for the rest, time will tell. One thing for sure: Given your track record of incorrect predictions and bogus legal analysis in these blog comments on this topic, the fact that you say the search warrant will definitely be upheld on appeal makes me think more strongly than ever that it's likely to be overturned.

Hugh McBryde said...

I think we can just shorten that to "Texas Judges Typically Don't Listen."

So, give up, and nominate Blues to be a judge. He seems ideally qualified for the job.

TxBluesMan said...


That's not what the opinion said. Even the headnotes on Lexis don't reflect any due process issues, nor any 14-day hearing issues. The record that the 3COA refers to is from the 14-day hearing, and there is no criticism in the opinion over that hearing.

Try re-reading the opinion. It stated that in the hearing that CPS did not make its case for immediate danger, nor did they show that they had taken reasonable steps to avoid removal. That is the abuse of discretion found by the 3COA, not a denial of due process.

The grounds cited are very different than a denial of due process. If you have difficulty understanding case law, get Doran to explain it to you.

Since you are not aware of my record in correctly predicting the outcome, I'll forgive you for your slight (right now I'm running at about 75% - for specifics, you can check my blog)...

I would be willing to wager with you on the suppression hearing - if you are right, I'll post a public apology and not blog or post for a month... and if I'm right, you would do the same. Unless of course you are not sure of the outcome... or doubt yourself...

Anonymous said...

Legal brains doing battle.

Matt said...

Of course this was a set up and the only people clamoring for prosecution are the good ole boy yay-hoos who started this in the first place.

If this is what passes for due process in Texas, it's a damn shame. A hoax phone call, a suspect not even in the state and cops in armored cares and tanks. Overkill, Waco -oops- Texas style!

TxBluesMan said...

Last chance for the wager Grits... if I don't here something prior to the hearing, obviously the bet would be off...

I'm willing to put my blog on the line, are you?

Hugh McBryde said...

What? Bet that Law Whore Walther will actually rule constitutionally against illegal search and seizure? The best that can be hoped for is an attempt to confine the "illegal search" idea to one aspect of the search which then excludes some of the evidence. I have no idea how that could be accomplished but the temptation to throw the opposition a "bone" will be strong, so as to put up the appearance of fairness.

TxBluesMan said...


The law does not require that the defense be thrown a 'bone.'

They will either win or lose their motion.

If they win, the State will likely make an interlocutory appeal on the suppression.

If they lose, they will go to trial (since the defense does not have the right to make the appeal until final judgment).

Hugh McBryde said...

Blues, play it stupid if you want to but what the law requires is not what politics require. The laws of politics are not found in a book.

If a "bone" is thrown it is because this is political. It will still be political if there is no bone, but such an act would be complete proof that this is political.

If this was by the law, there would be no case at all. If a mistake was made and Walther ruled by the law, the evidence would be thrown out. Walther wants no evidence thrown out so she plays it politically, which means, she does what serves her ends, because she can.This is what makes you an annoying non player in the whole mess. You fail to give the slightest ground in any way shape or form. Clearly there are two sides to the issue or it would have dried up and blown away a year ago with all the FLDS kids in custody to this day. That did not happen, there are two valid sides to the dispute. Which side will win has yet to be seen.

For you to play your "ROTFL" games shows that you haven't an ounce of honesty about this. I'm RIGHT. You're WRONG. This is POLITICAL. In that it IS POLITICAL a totally NON LAW RELATED decisions MAY BE MADE because it's POLITICS.

Walther's decision will only be in accordance with "the Law" if it just so happens that ruling by the law serves her purposes. She will have no problem ruling outside it, as it has UTTERLY BEEN PROVEN BEYOND A SHADOW OF A DOUBT BY YOUR STANDARDS. THE REVERSAL LAST YEAR PROVES THAT SHE RULES OUTSIDE THE LAW.

Will she do it again? I don't think anyone will be surprised if she does. When she does, you will trumpet it as some great legal vindication when we all know that Walther has lost her serve before.

Matt said...

"Blues, play it stupid if you want to but what the law requires is not what politics require. The laws of politics are not found in a book."

ABSOLUTELY RIGHT! This is the part previous posters just don't get. The "law" in Texas has been destroyed by good ole boy politics. That's what this whole mess is about.

Wake up, dust off your cowboy boots, and realize this great State of Texas is flawed, seriously flawed.

Anonymous said...

Good old cow poke p-o-l-i-t-i-c-s! Any questions?

TxBluesMan said...

Well, we won't know today, it is continuing tomorrow morning.

As a side note, Merril isn't having a good day, he was served today... don't know what for yet, but it can't be good (for him)...

Hugh McBryde said...

Serving Merril is mere grandstanding. Get him in public while he's at the hearing so everyone can see.

We all know the ruling will be "bad news" for the FLDS, and it will probably come late on a Friday so that any possible objections can be put off as far into the future as can be.

I'm sure Athaliah (uh Barbara) Walther would like to put it off until the 22nd, because that's an even longer weekend.

These things are so predictable.

TxBluesMan said...

It is even better than that...

Carolyn Jessop is suing for current and back child support - and her lawyer is Natalie Malonis...

This is too much fun...

More at my blog.

Anonymous said...

The Pharisee said...

Serving Merril is mere grandstanding. Get him in public while he's at the hearing so everyone can see.


No, its not grandstanding, its being legally served. Since he lives behind fenced and gated walls, and is only in public for such grand occasions, these are "his public moments" when he is in the real world and "servable".

Notice if you will, per TBMs site, Willie tried to interfere and Merril tried to ignore, in bain, his serving.

Too bad Willie didnt touch Doran - he looks like he could use a good tazing!

- Stamp

Anonymous said...



Ya gotta love GoldBottom dredging up fake force pics from the internet for a show and tell with the judge.

This an FLDS attorney ploy or what?

- Stamp

Hugh McBryde said...

I've been served before, gated communities don't stop a process server, they only alert the prospective recipient that the process server is coming.

In the two times it's happened, once it happened right out in front of my place of business, by a smiling woman who was clearly enjoying doing it in public.

Hugh McBryde said...

Fascinating, isn't it? Colorado Springs Police officer Maggie Santos is personally linked to Rozita Swinton.


A sure way to cover your tracks is to hide the details until you can cover-up. but that is tried by businesses and they are taken down for that...usually.

Hugh McBryde said...

Walther rules for inclusion of the evidence.

Stamp said...


Its been crickets over here ever since the trials, convictions and sentences have been coming down the pipe.

Have you dropped the rope?

That Tony Alamo sentence really rang the bell too, it didn't pave the way for these girl wranglers!