Monday, August 29, 2011

3rd Court of Appeals ignores own, prior ruling to approve Great Eldorado Polygamist Roundup

As foreshadowed in this Grits post, the Third Court of Appeals okayed the search warrant that spawned a series of bigamy, statutory rape and child molestation charges after the Great Eldorado Polygamist Roundup back in 2008. But remarkably, their opinion did so without addressing at all what this blog and many other legal observers considered the core issue in the case: A sweeping search warrant that allowed law enforcement to search multiple individual family households without any particularized suspicion.

The ruling strikes me as extraordinary because the same Third Court already ruled that Judge Barbara Walther abused her discretion on the civil side by authorizing a search of the entire community instead of specific, particularly identified residences. The entire ranch could not be considered a single household, the Third Court found, just like an apartment complex with a single property owner doesn't eliminate Fourth Amendment rights of individual apartment dwellers. Footnote 10 to the court's mandamus order specifically declared that:
The notion that the entire ranch community constitutes a "household" as contemplated by section 262.201 [of the family code] and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department's witnesses acknowledged that the ranch community was divided into separate family groups and separate households. While there was evidence that the living arrangements are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community is a "household."
That's why Grits had written back in May, "It's difficult for me to imagine how the court could decide the search warrant is valid without contradicting its own ruling on the civil side, particularly regarding the 'particularity' requirement in the Fourth Amendment. In a mandamus order (pdf) requiring CPS to return YFZ children to their parents, the Third Court ruled (and the Texas Supreme Court later agreed) that the entire ranch couldn't be considered a single 'household.'"

So how did the Third Court get around this seeming contradiction? The answer to me is downright bizarre: They simply ignored the argument. It was just not addressed. To call it an elephant in the room doesn't do it justice. The opinion declares that, "Although the State does not question appellant's showing of standing to contest the validity of the searches conducted pursuant to the April 3 and 6 warrants, the State contends that appellant failed to establish his standing to challenge the interviews conducted by the DFPS caseworkers acting pursuant to the order in aid of investigation." And with that little trick, they banished the sweeping nature of the YFZ Ranch warrants completely under the rug.

IANAL, but I see one big problem with that: The DFPS caseworkers weren't there in a vacuum. They came in droves as soon as the cops executed the warrant as part of a single, grand police action coordinated across multiple agencies, including DFPS. To claim they were there independently of the police search-and-seizure of the property is akin to the naked emperor's courtiers loudly admiring his wardrobe. DFPS is the fig leaf with which the court attempts to screen from view the state's small and shriveled excuse for ignoring the particularity requirement in the Fourth Amendment, but a fig leaf is all it is, and one fluttering in the breeze, at that.

Even if we accept this unlikely, concocted legal fiction, as hard as it may be to swallow, the opinion simply does not ever address head on the same court's earlier finding that "the evidence was not legally or factually sufficient to support a theory that the entire ranch community is a 'household.'" The 3rd Court of Appeals didn't change its mind, then, so much as ignore their previous ruling in a bow to political expediency. For that reason, Grits considers this not just a bad but a shameful opinion (authored, for the record, by Chief Justice Woodfin Jones and signed by Justices Henson (no relation) and Goodwin.

Regular readers will recall that at oral arguments the state claimed they needed just one warrant to search every home and building on the 1,600+ acre ranch because there was a single corporate property owner and only one name on the utility bill. The logical extension of that line of reasoning would be that a particularized search warrant is unnecessary for people living in all-bills-paid apartments, for example, and that an alleged crime by one apartment-dweller would give police the right to enter and search every apartment in the complex. Clearly that would be absurd, but that's precisely what the Third Court has allowed here. This sets an unbelievably terrible precedent, demonstrating once again how unusual circumstances so often make for bad law.

I can't improve on Grits earlier assessment: "As far as I'm concerned, Judge Walther not only abused her discretion, as the Third Court has already ruled on the civil side, but that abuse began with the issuance of what amounted to a colonial-style 'writ of assistance' of a type not seen in America arguably since the 1760s." Not to get hokey about it, but in a real sense allowing these warrants to stand is an affront to the core values this nation was founded upon. According to this source, "On the night before the Declaration of Independence was published, John Adams  cited the 'argument concerning the Writs of Assistance … as the commencement of the controversy between Great Britain and America.'" (As a curious aside, though, with few exceptions our modern Tea Partiers have so far seemed immune to Fourth Amendment concerns, for reasons that remain mysterious to me.)

The question now becomes: Will the Texas Court of Criminal Appeals be as firm in upholding the particularity requirement to the Fourth Amendment as was the Texas Supreme Court? The latter justices agreed with the Third Court's earlier ruling that the whole ranch couldn't be considered a "household." But the CCA, as regular readers know, is led by a self-described "pro-prosecution" presiding judge (Sharon Keller) who is more or less the quarterback of a faction that habitually sides with government in nearly every case. God knows whether they can muster five votes to overturn the Third Court's ruling; I certainly wouldn't put the odds above 50%. Indeed, it wouldn't surprise me if this case ended up on the US Supreme Court's docket somewhere down the line.

Either way, if this search warrant is allowed to stand it sets a terrible precedent - not just because it may set the stage for future, over-broad search warrants (the unusual circumstances could give future judges an excuse to view the ruling as a one-off), but because Third Court justices so brazenly allowed the ends to justify the means, perhaps fearing a backlash from West Texas voters (for whom the FLDS polygamist sect are much-hated pariah) in future elections. I haven't been as disappointed in a group of Texas judges in a long time, and that's saying something.



Alan said...

This ruling is as twisted as Urban Dictionary's definition of the acronym you used, IANAL. I was unfamiliar with it, so now I know it's a sex toy designed by Steve Jobs.

Gritsforbreakfast said...

For the record, I intended the first definition! :)

rodsmith said...

as far as i'm concerned this ruling makes this judge and any other who went along with it a TRAITOR to this country and deserving of the punishment given in the constution for TREASON in wartime!

rodsmith said...

of course like with you grits! it's no suprise. Once they said it's for the CHILDREN! all bets were off and anyting was now legal as far as the govt was concerned no matter what the LAW and the U.S. CONSTUTION really says!

Rick Perry's Evil Twin said...

"this ruling makes this judge and any other who went along with it a TRAITOR"

Come on, you mean to say Woodie Jones is as bad as Ben Bernanke? ;)

Hook Em Horns said...

Is anyone else suspicious that the evidence used to convict Jeffs, i.e. the tape of the "sex sessions" was found in his car when he was stopped in Nevada?

How convenient that it was "discovered" during an otherwise lawful search of Jeffs vehicle.

Gritsforbreakfast said...

Hook 'em, I'm not so much suspicious of the evidence, just how it was obtained under this search warrant. In fact a big part of my frustration is that because of the evidence from Jeffs' stop in Nevada, etc., they didn't need the YFZ raid evidence to convict him.

Clearly they've been out to get him, and from the evidence presented at his trial he's a bad guy. But bad guys already do enough damage, we shouldn't destroy the constitution on their behalf as well.

Anonymous said...

In many countries where there is a military coup, the first thing that occurs under the new regime is a suspension of the constitution, and then a rewrite.

In many countries where a dictator assumes power, the first thing that occurs under the new leadership is a suspension of the constitution, and then a rewrite.

Rick Perry has stated that if elected president he will work towards rewriting the constitution. And from what I've seen thus far, I don't think he'll have a problem doing it.

I hate to be accused of Godwinning this blog, so I'll leave it up to the readers to make the connection...

Red Leatherman said...

Reference to Godwin's law is good enough. Therefore, Godwin in 8.

Gritsforbreakfast said...

Hell, Red, we got to "treason" in three, and the first two comments referenced anal sex toys. This string got off to a rocky start from the beginning, didn't it? ;)

Red Leatherman said...

Scott: My nose is still sore from the coffee coming out the wrong way after reading the Alan's post and your retort yesterday when they were the only two.
But it's Threads like this that keep me coming back :D
I probably should have at least voiced my opinion instead of just sitting here nodding from my seat behind the keyboard.
This tossing of constitutional rights seems to be accelerating but recent cases have come to light that give me hope. you may have read about cases in the past weeks, affirmed with strong wording asserting the right to record police. I believe two landmark cases were in Massachusetts where it was beginning to look like they had almost successfully redefined the wiretap law and another in Illinois.
While I agree that Phelps was breaking the law and morally he was scum. There was and is no reason to violate the rights of everyone to make the case against him.

Hook Em Horns said...

Grits, unless the evidence was obtained at YFZ but for purposes of expediency, whomever found it will swear it was found in his car.

1.) The Texas Ranger said, under oath, it was found in Nevada.

2.) Was he there?

In my experience cops have been known to lie about where evidence was obtained. I am not suggesting that happened here but I find the correlation between the testimony of a Texas Ranger about evidence "allegedly" found in Nevada to be suspicious.

Anonymous said...

Basically the courts said the children's rights were violated in the course of the investigation but Mr. Emack doesn't have legal standing to vicariously question those rights. There must be some child sex abuse clause to the 4th amendment we don't know about.

Sheldon tyc#47333 said...

“But bad guys already do enough damage, we shouldn't destroy the constitution on their behalf as well. “
Well written Grits.
It’s a shame what length human beings will go to in order to destroy other human beings if they practice religious beliefs different from the ruling party’s religious belief. What’s worst is how some human beings will stand idly by and watch, right up to the point the ruling party comes after them. In keeping with Godwin’s law let me ask the question, if Gd forbid, Rick Perry becomes president is it safe to assume that all those private prisons will be converted to death camps for people who are not white evenchingalas?

And if these people who are perverting the fourth amendment in the name of saving the children, then what about our state sponsored pedophilia in the Texas Youth council/commission? How about those kids Rick Perry?!

rodsmith said...

sorry 04:00pm but in my book if your an elected offical who has taken an OATH to UPHOLD the CONSTUTION and it says you are REQURIED to do X.Y.X and instead you ignore that and do A,B.C your a traitor and considering president bush's so-called war on terror is still in place liable for execution for treason in wartime!

maybe if we actualy ENFORCED it once or twice these ignorant and crimnal politican MIGHT GET THE MESSAGE!

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