Saturday, October 03, 2009

Walther sticking to guns on sweeping warrants that launched Great Eldorado Polygamist Roundup

Despite the fact that she was apparently misled by law enforcement, I'm not much surprised that San Angelo District Judge Barbara Walther signed off on the constitutionality of the search warrants she issued for the YFZ Ranch that launched the Great Eldorado Polygamist Roundup. The warrants were based on the flimisiest possible "evidence." As the Headmistress wrote over at The Common Room last spring,"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."

But Judge Walther appeared to take personally the Third Court of Appeals rebuff of her similar legal reasoning in the CPS cases, so I expected she'd try to take another bite at the apple when the search warrant was tested on the criminal side. Personally I thought the judge's rulings on this overreached from the beginning and are largely to blame for the ensuing legal, political and logistical fiasco.

The Third Court of Appeals and the Texas Supreme Court benchslapped Walther last time, declaring that the entire ranch could not be considered a single household. IMO the same thing should happen on these search warrants, at least if the Fourth Amendment still has a shred of validity at all, especially the part about warrants "particularly describing the place to be searched, and the persons or things to be seized."


Anonymous said...


Gritsforbreakfast said...

Unfortunately "benchslapped" is not original. I appropriated (stole?) the term some years ago from the now-defunct blog "Underneath Their Robes."

Anonymous said...

OK, I don't find much worthwhile in this blog, but I did like "benchslapped". Every now and then a made-up word profoundly describes an unusual set of circumstances. "Benchslapped" does the job.

Anonymous said...

How about an update on this case (and the other cases):

A TYC investigation determined that a guard at Brownwood repeatedly gave drugs and candy to least three girls, one as young as 15, in exchange for sex.

The guard, Allen James Sullivan, resigned in 2005. Brownwood police say his case is still under investigation.
Dallas Morrning News 2007

Anonymous said...

Dangerous legal precedent if allowed to stand. No U.S citizen will be safe in their home.


TxBluesMan said...

Despite the fact that the FLDS attorneys stated that they had "no evidence" that LE knew the call was a hoax...

Try reading the order.

The defense presented "no credible evidence" of misconduct. If it is so clear, then why did the defense try to sneak in a photo from a raid in South Carolina as part of their motion?

You are also confusing criminal law with civil law. What does "one household" (a civil term) have to do with a criminal search warrant? Nothing.

You do know that the appeals will only be possible AFTER the defendants are convicted, right? There is no interlocutory appeal for the defense, and mandamus doesn't apply in this type of issue. You also mis-state the jurisdiction, since SCOT does not have jurisdiction to hear the matter.

I also noted that during the last week, some of the evidence that Doran Williams said would never get into evidence, did in fact get in - and not as an exception to hearsay either, but as a category that is not hearsay, period.

I find it humorous that you are whining about this.

Anonymous said...

I've always said it would come in, but always said it would cause any ensuing conviction to be overturned. Walther didn't learn her lesson last time, but she will next time.

Also, what does one household have to do with the fact that the complainant said she was raped by one man, but they went and loaded up every kid in the place? Well, a whole lot. It;s no surprise you're not worried about this. Just imagine that all those kids were guns, and act like the 2nd Amendment is at issue. I bet you'd care then.


Anonymous said...

I cant find a way to get in touch with you via email from Finland so am writing this here in your comment section.

Are you planning to write anything on the new TX law that went into effect on Sept 1, 2009 regarding pregnant inmates?

I am the mother of a 22 yr old who is 8 months pregnant and in a county jail in Texas.

please let me know if you have covered this issue alreay. My thanks, Trish

Please delete my email as well as this post when you read this....since I know it obviously has nothing to do with a polygamist roundup.

doran said...

Tx, maybe I said such evidence would never get in, but I doubt it and I can't take your word for it. Please direct us to my alleged statement.

I probably said it should never get in, if the judge were to rule correctly. Or something to that effect. In fact, I probably said it would get in, because Judge Walther would never over-rule her own self. She was snookered by a Texas Ranger, and she was not about to admit to that. I probably also said that in a jurisdiction where fairness was the standard, a different judge would have heard the defense motions to quash the fruits of the illegal search.

But, if I said something along the line you said I did, show us.

Anonymous said...

As ever, very informative and insightful. I have repeatedly found your take on events a sheer pleasure to read and relay.


TxBluesMan said...


I'll look and find the links where you said that, and where I pointed out that there were numerous exceptions, such as the one used last week.

Remember, under the Texas Rules of Evidence, a statement of a co-conspirator is admissible. The records were, as I said they would be, authenticated by LE from the search.

BTW, exactly what is the MTS ruling going to be overturned on? The appellate court will defer to Judge Walther's findings of fact - and the conclusions of law are solid, clearly supported by case law.

What is the basis for your argument, besides your obvious disdain for law enforcement and judges who apply the law dispassionately?

The ACLU fairy isn't going to wave his or her wand and make this go away.

doran said...

Tx, either by design or clumsyness, you are conflating two distinctly different issues. One is that of whether the fruits of the search warrant should have been suppressed because the affidavit by The Long Ranger was insufficent to support the search. The other is that of whether some of the seized papers were properly authenticated.

Which of these do you claim I had made some sort of early-on statement about which has now been shown to have been grossly incorrect?

doran said...

BTW, Tx. I don't believe in fairies.

I believe in the revolutionary genises and intelligent design of the United States Constitution.

I believe the 4th Amendment prohibits searches not supported by probable cause or a warrant.

And I believe that wrong-headed, authoritarian, counter-revolutionary, police state oriented judges and their jack-ass supporters and enablers among law enforcement will always, ALWAYS, be looking for ways to subvert the 4th Amendment.

Eternal vigilance, etc etc.

doran said...

I also believe that I spelled genesis incorrectly.

Hook Em Horns said...

Lets ask Sharon Keller what she thinks.

Gritsforbreakfast said...

Boyness, that's exactly my fear. The CPS cases went to the Texas Supreme Court after the Third Court of Appeals. The warrants in criminal cases will go to the Texas CCA, and they never saw an overbroad search warrant they didn't like. My guess is Judge Walther is counting on that change of venue to help her losing arguments from last time prevail in the criminal cases.

TxBluesMan said...

Doran said,

Tx, either by design or clumsyness, you are conflating two distinctly different issues.

Gee, I thought since Grits was, 'either by design or clumsiness, conflating two distinctly different issues' (that of "household" - a civil law term defined in the Family Code; and that of "premises to be searched" - a criminal law term), we were all supposed to do that. So of course, in my innocence, I assumed that he wanted all of us to follow his example.

Which of these do you claim I had made some sort of early-on statement about which has now been shown to have been grossly incorrect?

One place you spoke of the authentication and hearsay problem was on my blog.

And here on this blog you said: "Us lawyers, you and I, know that such records are hearsay and inadmissable..."

Uh, wrong.

And, like I asked before, on what basis will a successful appeal be based? The finding of facts? You and I both know that the appellate court will almost totally defer to the trial court's opinion as to the facts. I invite your attention to findings #33, #37-40, #42, #45, #55-60, and #65-66, which stated that the defense presented "no credible evidence..." over and over and over again. Or to findings #10 and #61, where the defense team attached incorrect affidavits or photographs that were not at all connected with the raid - enough in and of themselves to deny credibility to the defense team efforts.

You and I also know that there is total deference to the trail courts determination of credibility. The trial court is free to not believe the BS put forth by the defendants.

Exactly what basis will be used to overturn her decision?

A general statement as to the Fourth Amendment is as likely to work as there is a chance that the ACLU fairy will show up...

Anonymous said...

Per Crawford V. Washington...

Something of this nature should have never got as far as it did. I don't care what you might think of the LDS people or their beliefs; an anonymous tip is not allowed as probable cause for any sort of Criminal or Quasi-Criminal investigation or seizure warrant. It runs afoul of the Confrontation clause of the Sixth Amendment.

The Warrant was defective out of the gate. They KNOW it was defective. Doesn't matter what else there is as evidence- the failure to investigate the source of the call and to obtain the person as a possible witness at the ensuing Civil hearings as well as any possible Criminal trials stands as evidence of wrongdoing on the part of the CPS people.

TxBluesMan said...


This was wasn't an anonymous tip. The caller left a name - ergo, not anonymous.

And Crawford v. Washington, 541 U.S. 36 (2004) isn't even close to being on point - it is a Sixth Amendment Confrontation Clause case. The opinion doesn't even mention "anonymous" or "tip" - or anything else that has a bearing on the FLDS case.

I need to buy more Alcoa stock - the tinfoil hat business is well on its way to recovery.

doran said...

Tx, my comments on your blog, to which you linked, do not support your assertion that I said the MTS would be granted. It is so obvious that I did not say that, that you did not cut and paste that material into this thread. In fact, what happened is exactly what I predicted would happen:

"There is, as defense lawyers sometimes put it, enough air in this case to float a large ship. The only way the State will win at trial is by the presiding Judge exercising his or her "discretion" at every single turn in favor of the State. That means over-ruling every defense strike for cause at the jury selection stage, over-ruling the motions to quash, over-ruling each and every objection to evidence, and allowing the State every possible opportunity to put on irrelevant testimony, hearsay testimony, and unauthenticated documents. This will be a circus of a trial, as well as a sham.

Where is Bill Kuntsler when he is really needed....."

Your second link also fails to connect to anything I said or wrote that indicated that I thought the MTS would be granted:

"By the way, I just saw a short blurb on Fox News. Some additional papers in the so-called Bishop's Records have been found. One that Fox showed on the tube had the "head of family" identified as txbluesman. Some jerk with 5 teen-age wives and 18 kids. Us lawyers, you and I, know that such records are hearsay and inadmissable in a well-run court. But there you go.....if it says txbluesman is the perp, then it must be true. Right???"

You are sounding pretty antsy about this, Tx, and shrill, too. And getting desperate. I'll betcha that you are seeing this whole thing fall apart at the Third Court of Appeals, and are hoping and praying it gets to the CCA before some of those people get defeated in elections.

doran said...

BTW, Tx, neither the Fourth Amendment to the US Constitution nor Article 1, section 9 of the Texas Bill of Rights use the term "premises to be searched" as you implied in one of your comments here.

Article 1, section 9 says:

"The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation."

The Fourth Amendment to the US Constitution says:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized."

Tx, what is it you, and I guess Judge Walther, don't understand about "particularly describing the place to be searched, and the ...things to be seized"? I know you are aware of the case law dealing with general search warrants; why are you apparently in denial about the general nature of the warrant used at Eldorado?

And why, Tx, why have you thrown in with a bunch of people who apparently hate the Fourth Amendment and are busy night and day subverting it?

BTW, if you'll send me a mailing address, I'll send you a copy of the US Constitution with all the amendments, in a neat little pamphlet. It is embossed with my name, even. Bought a bunch years ago when West Publishing was offering them. You can carry it around with you everywhere, as I do, for those special occasions when you really do want to know what the Constitution really says and cannot take a chance relying upon misrepresentations by Constitution haters on the internet.

Anonymous said...

Uh Tx... If you can't produce the witness it's still an anonymous tip.

Crawford v. Washington is explicit. If you can't be confronted by the "witness" at trial time (Just because they gave a "name" doesn't mean was a false name and they didn't check up on that part...) you can't USE it- period. It's anonymous even if it's got a name if it's not the name of the person and you can produce them.

Anonymous said...

@doran: TX's apparent problem is that he thinks they're guilty. Doesn't matter if they're guilty or not. The CPS people didn't do their jobs (they were well outside thereof...but we won't go into some of that right now...) and broke a bunch of the rules, such as the Fourth and Sixth Amendments (I didn't know the Warrant was defective...but it doesn't surprise me...seems this is a common thing these days...). If you can't abide by the Bill of Rights (and the States are largely and explicitly held to the same by the 14th.) then you should have them slip through your fingers as you're not doing your job right. Those Amendments are there and they have the specific effects they do for a reason- to help to prevent the innocent get chewed up by good intentioned, perhaps well meaning, people that get carried away with their job to "find the perp" and "put them away".

At the FLDS compound, they did nothing that abides by the Constitution to arrive at what they did- and then apparently broke the rules further in the process of their resultant action.

The big problem is people want "justice" to be served and don't get that things like what happened at ElDorado isn't that, wasn't that, and couldn't have ever really been that.

TxBluesMan said...

Anon 7:47,

You'll have to do better than that. First, like I said, Crawford v. Washington, 541 U.S. 36 (2004) does not apply to this case. The State has not offered up the caller as a witness, nor is the State entering any statements of the caller into evidence. Hence, no Confrontation Clause violation. Try talking to someone that actually knows the law.

LOL @ Doran,

Actually, I'm just setting back and enjoying this. Like I thought, you have no real basis for an appeal, other than a general distaste for law enforcement.

In Judge Walther's finding of facts (para. 13-15, 17-21), she finds that:
- it was one property, owned by one entity and not further subdivided
- there was no evidence that individual defendants owned or controlled any of the structures
- the defendants own affidavits identified their residences as the "YFZ Ranch" without further identification as to a particular structure
- there were no street names or numbers to identify the individual structures

The only case on point for this type of compound search is United States v. Butler, 793 F.2d 951 (8th Cir. 1986). The case is directly on point for this type of search, and the judge's findings match the requirements in that decision. Do you have something that would show that this is not correct? You know, like case law? Something besides you just whining that it ain't right...

The warrant in question met the requirements of the Fourth Amendment, despite your protests to the contrary.

I, like others, support the Bill of Rights, we just don't make up stuff that isn't in the Constitution to go along with what our opinion is on a specific matter.

Anonymous said...

Really, TX?

If the probable cause was an anonymous tip or a witness that can't be produced, it does apply. If the basis of the case provides fruit of the poison tree, the whole case dies. There's already been cases thrown out in varying areas by presenting the decision of Crawford as reason for a Motion to Suppress.

And while I do not work in Law, I just won a case based off of Fourth Amendment rights violations for that very reason. No, I didn't commit a crime, but the County was dead-set on trying to make it one and went so far as to break the rules to do it. I'm unfortunately very familiar with how the law works on this stuff. Just because you work in the space, doesn't make you right any more than I am. You just understand how to apply what's there better than I in more cases.

TxBluesMan said...

Anon 12:14,

While I have no doubt that you stumbled through your own trial, it is clear that you do not understand what happened, in much the same way that a blind pig can find an acorn.

The Confrontation Clause is the 6th, not the 4th Amendment.

You also don't understand the actual law. If the State presents a witness, the defendant has a right to cross-examine them (confront). If the State produces a statement by that witness, but not the witness themselves, the defendant is denied that right.

If the State does not call a witness, there is no issue of confrontation, since there is no testimony or evidence to confront. The defendant is free to call and subpoena their own witnesses - nothing is preventing that.

The 6th Amendment does not apply to this case.

doran said...

"If the State produces a statement by that witness, but not the witness themselves, the defendant is denied that right."

Sounds like hearsay to me, Tx. Did you LE guys do away with the hearsay rule without talking to me first about doing so?

TxBluesMan said...

ROTFLMAO @ Doran...

Did you even read Crawford? In it, the statement of the spouse of the defendant was introduced at trial - gee, I guess it got in under one of the many ways that you can get around the hearsay rule. You do know about exceptions to hearsay, right?

You know, you can look it up on the internet - the TRE is available on the Texas courts site...

BTW, I have a primer on the FLDS chances for appeal on my blog. You may want to study up on it.

doran said...

Tx, take a break. First you say:

"You also don't understand the actual law. If the State presents a witness, the defendant has a right to cross-examine them (confront). If the State produces a statement by that witness, but not the witness themselves, the defendant is denied that right."

Then you say:

"If the State does not call a witness, there is no issue of confrontation, since there is no testimony or evidence to confront. The defendant is free to call and subpoena their own witnesses - nothing is preventing that."

Of course some testimony is admissable as an exception to the hearsay rule. But not most testimony. Your statement of the law leaves the impression that there are many ways "around" the hearsay rule. Just the opposite is the case; the ways "around" are limited, subject, of course, to the trial court's bias in favor of the prosecution...

You are wrong when you say a defendant cannot cross examine a witness whose statement is produced in court. Of course the defendant can, if they can produce the witness. Or, they can impeach that unavailable witness by proof of prior inconsistent statements; that is, by producing another statement of the nonavailable witness that contradicts the statement produced by the prosecution.

Tighten up your prose a bit, Tx. You won't sound so goofy if you'll do that.

TxBluesMan said...


Since you obviously have not read the case, and don't understand the background, let me lay it out for you.

Crawford and his wife went to Lee's home, where Crawford confronted Lee over Lee's attempted rape of Crawford's wife. During the course of the confrontation, Crawford stabbed Lee and was arrested. During the initial investigation, Crawford's wife made a written statement.

At trial, Crawford invoked spousal privilege to prevent the testimony of his wife, as authorized under state law. The State then, under an exception to hearsay, got the wife's statement admitted into evidence.

SCOTUS held that this was a violation of the Confrontation Clause of the 6th Amendment.

What anonymous was saying was that if the State did not call Rozita as a witness, then it was a violation of the 4th Amendment, citing Crawford.

Obviously he is an idiot, but you should know better, and had you read the case, you would have seen the issue I was addressing, and been able to place it in the proper context.

You are correct in that I should have tightened up my prose.

doran said...

Tx. What the hell are you talking about? I haven't said or blogged a damn word-one about Crawford, other than to quote you. I've been addressing generally cross examination, hearsay, and maybe tangentially the lack of probable cause to support the search warrants that got the LE Army through the gates.