The Walther Files: Since when does illegally seizing 400+ kids qualify as 'minimal wrinkles' in Great Eldorado Polygamist Roundup?

Grits has been complaining that the mainstream news media - while trumpeting the most salacious crime coverage they can find to maximize the number of eyeballs viewing their product - have virtually ignored the most important election in the state concerning the criminal-justice system: The race to fill three soon-to-be open slots on the Texas Court of Criminal Appeals where three long-time members are retiring.

Perhaps, though, I spoke too soon. If they're going to flat-out spread misinformation about the races, maybe it'd be better if they said nothing at all. The Dallas Morning News last week endorsed Barbara Walther, the judge who presided over the Great Eldorado Polygamist Roundup, over Bert Richardson, a well-respected Republican out of San Antonio, in the GOP primary for Place 3 on the CCA. That's their prerogative, but the editorial said they endorsed Walther specifically because of her role in the YFZ Ranch fiasco, declaring, "It was an exceedingly complicated case involving 416 children, parents, Child Protective Services and hordes of lawyers. Her ability to keep a semblance of order and dispense justice with minimal wrinkles impressed us as remarkable, given the often chaotic scenario."

That's simply ridiculous given that Walther's own judicial overreach created the "chaotic scenario" in the first place. The Third Court of Appeals ruled (and the Texas Supreme Court agreed) that Walther abused her discretion by ordering more than 400 children to be taken from their parents based on their religious views (a prospect that should worry every religious home-schooler in the state, btw). Since when does a judge abusing her discretion to order 400+ children seized count as "minimal wrinkles"?

The appellate court ruled that Walther erred because she treated the entire 1,700 acre ranch on which many different families resided as a single "household" and failed to require that CPS demonstrate individual children had been abused before taking them from their parents, instead assuming their parents' religious beliefs in and of themselves justified rounding kids up by the busload and dumping them into the foster system. Readers will recall that the entire episode was based on a hoax phone call and Walther conspicuously avoided ever requiring the hoaxer - a woman named Rozita Swinton who called in her false allegations from Colorado Springs - to testify in court. As Grits wrote in 2010:

To repeat what I wrote last year, "why hasn't Rozita Swinton been charged for her instigatory role in the Texas case? I think it's precisely because the last thing Judge Walther and the Texas Rangers want is for her to be cross-examined under oath about who knew what when and how she was able to pull off such a grand imposture." If that were to happen, I suspect it would reveal improprieties by authorities that would invalidate the search warrant used to get onto the property. I continue to believe officials were looking for any excuse to launch such a raid and knew or should have known at the time they went in that the call was a likely hoax.

One of her supporters campaign consultants insisted in the DMN comments that Walther "rescued more than 400 children from sexual abuse," but that's an absurd claim given that the appellate courts reversed her decision and all but a handful of the kids were returned to their parents. They weren't "rescued" from anything, just traumatized by the state for a few weeks and then released. Indeed, a couple of the attorneys assigned as ad litems in the case have expressed to your correspondent that Walther's actions probably prevented saving a handful of children who really were abused because, by issuing such a sweeping order to round up everyone, she made it impossible to separate the wheat from the chaff.

The Great Eldorado Polygamist Roundup is pretty much Walther's only claim to fame and it was a judge-created fiasco on a scale never before seen in the history of Texas jurisprudence. For the Dallas News to use that episode to justify her endorsement either bespeaks a lack of due diligence by the editorial aboard or an explicit ratification of judges abusing their power whenever they decide the ends justify the means.

For fans of limited government and judicial restraint - which in a Republican primary surely should be the proper measuring sticks - Bert Richardson is clearly the superior choice in that race. It's disappointing the Morning News couldn't see that. Let's hope GOP primary voters do.

Why don't Fourth Amendment standards apply to CPS in Great Eldorado Polygamist Roundup?

Photo: Scott Sommerdorf, The Salt Lake Tribune

With its decision last week to approve the admission of evidence from the Great Eldorado Polygamist Roundup in criminal court, the Texas Third Court of Appeals basically said that law enforcement didn't need to justify its initial search warrant because the Department of Family Protective Services went separately onto the YFZ Ranch to round up all the juveniles and haul them away in buses for interrogation about possible abuse, garnering information that independently justified the second of two controversial warrants. In other words, they're claiming law enforcement can get around the Fourth Amendment if they use child protective services as a stalking horse.

A friend of the blog who's a family lawyer, however, as well as an ad litem for one of the FLDS children's cases, can't understand why the court didn't then go into the applicable law on whether DFPS had any right to be there, a subject on which a 2008 Fifth Circuit case decided months after the raid, Gates v. Texas DFPS (pdf), should be controlling. According to that case, "it is well established in this circuit that the Fourth Amendment regulates social workers’ civil investigations," and "Therefore, we will apply the typical Fourth Amendment standards in assessing the defendants’ conduct." So the same standard applies unless there are "exigent circumstances," defined in Gates as meaning, "based on the totality of the circumstances, there is reasonable cause to believe that the child is in imminent danger of physical or sexual abuse if he remains in his home." (The agency issued new policies in the wake of the Gates ruling reflecting that language.)

Was the standard for exigent circumstances met? The same Third Court of Appeals already ruled it wasn't - even by more lax, pre-Gates standards - and that Judge Barbara Walther, the same judge who issued the search warrants in question, abused her discretion in approving DFPS' seizure of FLDS kids. The same standards apply for searches as seizures, which is why Grits had earlier posed the question, "If CPS had no authority to seize FLDS kids, and while it illegally had custody CPS consented, as the minors' (illegal) legal guardian, to interrogation without counsel by law enforcement, will such evidence be excluded as 'fruit of the poisonous tree' from any criminal prosecutions?"

The Third Court of Appeals ruled such evidence could come in, but only by creating a sort of phony Chinese Wall to analyze the criminal search warrants separately, ignoring their earlier decision on the civil side that the judge had abused her discretion. I'm not an attorney, but given the reasoning in its own mandamus order (pdf), as applied via the Gates opinion, I fail to understand how, if there was no exigent circumstance to justify warrantless seizure of the children, information thus obtained in violation of the Fourth Amendment could then be used to facilitate the April 6 warrant? The latest Third Court opinion addresses that conundrum by simply ignoring it.

Reading the governing Fifth Circuit opinion makes me think it even more likely that, unless the Court of Criminal Appeals surprises me and favors litigants with a Gates-compliant ruling, the issues surrounding the YFZ Ranch search warrants may be ultimately decided in federal court. Gates reminds us that "Regardless of what Texas law may authorize, entry into a house by the [state] must satisfy Fourth Amendment standards." And case law, said the Fifth Circuit, "does not support lowering the Fourth Amendment standard for entering houses for the purpose of interviewing children about possible abuse."

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.

Related:

• Will Third Court of Appeals create a creepiness exception to the Fourth Amendment?
• Search warrant challenged in Great Eldorado Polygamist Roundup

Small counties can live off speed traps under new legislation: Report documents bills affecting judiciary

The Office of Court Administration this month "released a Judicial Council report (pdf) identifying all of the recently passed bills that affect the courts," we see from Carl Reynolds at CourTex. It's a lengthy list, and lots of these bills have been discussed on Grits before, but several bills I hadn't noticed caught my eye:

For starters, a new statute will likely turn Texas' smallest counties into full-blown speed traps, allowing commissioners court to make their budgets off of traffic tickets given to drivers passing through town. HB 1517 by freshman Rep. Jason Isaac (Glenn Hegar carried it in the Senate), "Authorizes counties with a population of less than 5,000 to use fines collected for highway law violations for any purpose approved by the commissioners court" up to 30% of the previous year's revenue. According to the drafting manual for the Texas Legislative Council (see here, p. 181) there are 51 counties that can now profiteer off traffic tickets for their entire budget: Armstrong, Baylor, Borden, Briscoe, Cochran, Coke, Collingsworth, Concho, Cottle, Crane, Crockett, Culberson, Dickens, Donley, Edwards, Fisher, Foard, Glasscock, Hall, Hansford, Hardeman, Hemphill, Hudspeth, Irion, Jeff Davis, Kenedy, Kent, Kimble, King, Knox, Lipscomb, Loving, Mcmullen, Martin, Mason, Menard, Mills, Motley, Oldham, Reagan, Real, Roberts, Schleicher, Shackelford, Sherman, Sterling, Stonewall, Sutton, Terrell, Throckmorton, and Upton.  Terrible idea. Grits predicts this will be abused immediately.

HB 2425 requires courts to "give notice to the attorney general of any action in which a party to the litigation files a petition or motion challenging the constitutionality of a Texas statute." After a couple of years or so, that should make for an interesting and provocative list.

Texas passed another statute, HB 253 by Rep. Harvey Hildebran, that's clearly aimed at the FLDS polygamist sect in West Texas but, naturally, will now apply to everybody. It lengthens the statute of limitations for bigamy to the later of ten years from the date of commission or of the victim's 18th birthday. It also raises the penalty for "failure to comply with the duties surrounding filing a birth certificate" from a Class C (ticket only) to a Class A misdemeanor. No off the grid kids: Next they'll want DNA samples from every live birth, or maybe they'll just save time and start tattooing every infant with a bar code.

Finally, a totally unneeded closed records bill: During the special session, SB 1 Article 79A made peace officer travel vouchers and reimbursement records confidential for a period of 18 months for members of the security details of state elected officials. This is all about Rick Perry not wanting to release his schedule to the public or tell them where he's been, who he's visited, etc., until long after the information would be useful to anyone performing a watchdog function. Attorney General Greg Abbott had already said those records from the Governor's office could be concealed, but this bill closes a back door reporters had used to try to access the information anyway. Absolutely absurd that voters can't know where the Governor went on their dime until 18 months after the fact, and downright pathetic IMO that the Governor would seek such an exception, much less that the Legislature would grant it.

Lots of other interesting stuff in the report but I thought I'd point out at least those few items.

Will Third Court of Appeals create a creepiness exception to the Fourth Amendment?

It's been a while since I've paid attention on Grits to the fallout from the Great Eldorado Polygamist Roundup, but now that Warren Jeffs trial is over (and what a lunatic he turned out to be), all that's left is to wait around to determine whether Texas appellate courts will uphold the dubious search warrant underlying the entire exercise. (See Grits coverage of the appellate arguments in May.)

Grits' interest in this case mainly stemmed from two topics: 1) the search warrant amounted to a breathtakingly sweeping, colonial-style writ of assistance of a type unseen in the United States since the overthrow of King George III. 2) Nearly 500 kids were seized from their mothers and sent to CPS, though even under the theory that young brides were being sexually assaulted, the women should have been treated as crime victims and allowed to stay with their children.

I've never had any beef with prosecuting individual pedophiles, which is why (along with a general lack of bandwidth on a one-man blog) Grits did not cover the blow by blow on individual cases from the Great Eldorado Polygamist Roundup after all the kids were sent home. (Anyway, with all cases taking place in Judge Barbara Walther's court, the outcomes were always faits accompli.) As I understand it, seven men including Jeffs have now been convicted of various sex offenses, which is a far cry from the number of perpetrators alleged when all of the kids were seized. But for my part, I'm still eagerly awaiting the Third Court of Appeals' ruling on the search warrant in the case, as are apparently lots of other folks to judge by a story in the San Angelo Standard Times this week, which opens:

Warren Jeffs and seven other convicted members of the polygamous Fundamentalist Church of Jesus Christ of Latter Day Saints challenged search warrants and evidence in court and were flatly rejected, solely by one judge.

But in the weeks and months to come, appellate court judges in Austin will hold the keys to whether the men remain behind bars or get new trials.

State District Judge Barbara Walther signed off on the original search warrants and later upheld them in a court hearing. Then she presided over FLDS members' trials.

One of the biggest arguments now before the Third Court of Appeals in Austin is in the case of Michael Emack over evidence gathered at the Yearning for Zion Ranch near Eldorado in 2008. Emack is one of 12 FLDS men indicted as an outcome of the raid. The evidence stemmed from search warrants that defense attorneys claim relied on faulty information and were carried out too broadly.

An attorney quoted in the article said perhaps the strongest argument against the search warrant is that the "searches were too sweeping and encompassed an entire community of homes rather than targeting a specific place," which has always been Grits' main objection.

The Third Court of Appeals has already ruled on the civil side that the entire community including independent residences could not be considered a single household, 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 (pdf) 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."

If the court applies consistent reasoning to the search warrant on the criminal side, it's hard to see how it stands.

Yesterday, though, I spoke with an attorney knowledgeable about the case who told me he fears this may be an instance where politics and expedience trumps law and common sense. Jeffs the "prophet" was exposed in court to be a depraved and profligate dictator and the grotesque and creepy details of his own exploits with young girls and his now-infamous promotion of child brides among his flock received wide play in the MSM, not just in West Texas but nationally.

The question becomes, will the court decide the ends justify the means? Will they find some odd, narrow excuse to justify this search while trying to pretend it doesnn't create a new exception to the Fourth Amendment to do the same thing elsewhere? The attorney I spoke to feared Jeffs' behavior was so far-out that Third Court Justices won't want to be seen as ruling in his favor and will find some excuse to carve out a narrow exception (for sex offenders? for religious pariahs?) to allow in all the evidence, even if it contradicts the same court's prior ruling in the child custody cases. That would be a disappointment. Exceptional cases too often make bad law, and it'd be unfortunate if this once in a lifetime case were allowed to expand the "particularity" requirement in the Fourth Amendment so dramatically in one fell swoop.

I don't defend Warren Jeffs behavior for a moment, nor anyone else who uses their religious station to perpetrate sexual abuse - whether among polygamists or in the Catholic Church. I just don't believe it's necessary to defenestrate the Bill of Rights for everyone else in order to rein such folks in.

Search warrant challenged in Great Eldorado Polygamist Roundup

Yesterday morning Grits attended oral arguments at Texas' Third Court of Appeals regarding the search warrant(s) that instigated the Great Eldorado Polygamist Roundup at the Yearning for Zion (YFZ) Ranch, which was the part of the case that originally drew Grits attention and got my dander up. Readers will recall that authorities swarmed the ranch and seized more than 400 children based on what turned out to be a hoax phone call alleging sexual abuse.

The Third Court already ruled that Judge Barbara Walther abused her discretion on the civil side based on some of the judgments now being called into question to challenge the search warrant used to invade the ranch (and given what attorney Robert Udashen yesterday called the "armada" of law enforcement that descended on the ranch, "invaded" is the appropriate word). But Judge Walther let the criminal cases continue, racking up several convictions based on evidence seized in the raid. This is the first time an appellate court will directly address the validity of the search warrant.

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 its mandamus order (pdf) requiring CPS to return YFZ children to their parents, the Third Court ruled (and the Texas Supreme Court agreed) that the entire community including independent residences could not be considered a single household, 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."

But that rebuts exactly the argument the state used to justify the search warrant yesterday. They said 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. But since the 3rd Court has already ruled these were separate "households," I don't see how they can accept this argument. 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 if the court allows a search based on that reasoning at the YFZ Ranch, there's no distinction articulated by the state yesterday that would prevent them from using general warrants in urban settings or anywhere else where many families live separately on a single property.

As far as I'm concerned, Judge Walther not only abused her discretion on the civil side, as the Third Court has already ruled, 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. Who knows if the 3rd Court panel will approve the warrant, or for that matter whether the Court of Criminal Appeals will be as firm in upholding the particularity requirement as was the Texas Supreme Court. But if this search warrant is allowed to stand it would set a terrible precedent, letting the ends justify the means.

It should also be mentioned that, though the name "Rozita Swinton" was never uttered, her nutty presence loomed large over the proceedings, and much of the discussion on both sides centered around whether she should be considered an anonymous source or a "named victim." The standard under Franks v. Delaware, the court was told, is whether information included in the probable cause affidavit was a) false and b) included knowingly and intentionally, or with reckless disregard for the truth. The issue arises because of the squirrely nature of the phone calls: They came to a women's shelter, not law enforcement, and a shelter worker fed Swinton key information, including the name of the man she falsely accused of assaulting her (he was an FLDS member on probation in Arizona).

Indeed, not only did they not check out Swinton's story at the time, to this day they haven't fully investigated. To repeat what Grits wrote in 2009, "why hasn't Rozita Swinton been charged for her instigatory role in the Texas case? I think it's precisely because the last thing Judge Walther and the Texas Rangers want is for her to be cross-examined under oath about who knew what when and how she was able to pull off such a grand imposture." If that had happened, I suspect it would have revealed improprieties by authorities that would invalidate the search warrant. Officials were looking for any excuse to launch such a raid and IMO knew or should have known at the time they went in that the call was a likely hoax. In particular:

• Authorities knew before the raid that Dale Barlow was in Arizona, had spoken to him, but made no effort to have him arrested or detained by his probation officer.
• The caller mispronounced the name of the town (there's a long "a" in Eldor-A-do), used terminology that did not match FLDS religious lingo, and only gave details about the group and the ranch that could be easily gleaned online.
• Authorities knew early on the calls to the shelter didn't come from Texas, and with minimalist investigation would have identified the caller as a routine hoaxer.

The Ranger's failure to seek corroboration for the hoax might be justified if he truly thought the caller was in imminent danger. But authorities waited several days to move in with a small army of cops from every jurisdiction from miles around, sweeping up hundreds of children with no particularized suspicion at all, giving them plenty of time to investigate further if they cared to do so.

One strange aspect of the hearing was the assertion by the prosecution that the phone calls had come from a "blocked number," which the state claimed should be considered corroboration because some numbers at the YFZ Ranch were blocked. But that claim runs counter to evidence that law enforcement had those numbers early on. In an arrest warrant affidavit (pdf) for Swinton from Colorado Springs later that year, CSPD Detective Terry Thrumston wrote that:

On April 13, 2008, I was contacted by Sereant Hugh Velasquez (1514D) regarding information he had obtained from Sergeant Sean Mandel. Sergeant Mandel told Sergeant Velasquez he had been contacted by the Texas Rangers in regard to their investigation into the Yearning for Zion (YFZ) Ranch. Sergeant Mandel related Texas Ranger Brooks Long had advised him he had two cellular telephone number listings from the Colorado Springs area (719-351-0913 and 719-243-2866). Sergeant Mandel was aware that the phone number, 719-351-0913, that was possibly related to the reporting party for the YFZ Ranch incident in Eldorado, Texas, was also identified in a prior CSPD case report.

On April 14, 2008, I spoke with Texas Ranger Long and confirmed telephone number 719-351-0913 was in fact a local Colorado Springs telephone number associated with Rozita Swinton. I informed Ranger Long that Rozita Swinton was known to make false reports of sexual abuse to the police and other agencies. The Texas Rangers advised they would be responding to Colorado Springs to conduct further investigation.

Why weren't these phone calls to Colorado Springs made before the raid? Swinton first called the shelter on March 29, 2008, and the raid occurred on on April 3, giving them plenty of time to investigate. And if by April 13 Ranger Long had Swinton's real, not "blocked" phone numbers, why couldn't he have secured them in the days before the raid? The defense didn't question the claim the numbers were "blocked," which startled me given the CSPD's take on Swinton and the ease with which they identified her as a false reporter as soon as Rangers contacted them. While it may be true the Ranger didn't have the information before the raid, it appears he made no effort to get it; at least we know by April 13 he'd figured out how to get that information, and I see no reason the same tactics couldn't have been applied in the days before the raid.

Whether the failure to follow up with available investigative tactics was "reckless" is a matter for the court, but IMO it's just another example of the underlying, opportunistic dynamic in the case. This wasn't a situation where law enforcement was investigating a crime by an individual and uncovered mass wrongdoing. Instead, locals had been seeking ways to drum the FLDS out of the county and leaped on the opportunity to roust them.

MORE: See coverage from the San Angelo Standard Times. AND MORE: The Standard Times had a followup story, "Possible ramifications of FLDS appeal detailed."

AZ court suppresses evidence from search of TX polygamist ranch

I said from the get-go that the search warrant used to get on the YFZ Ranch property in Eldorado back in 2008 was overbroad, based on lies, and that evidence derived from the Great Eldorado Polygamist Roundup should be suppressed in criminal court.

Now an Arizona judge has concluded the same thing after prosecutors there tried agreed not to introduce evidence against polygamist "prophet" Warren Jeffs discovered as a result of information seized during the raid. In Arizona, at least, such evidence will be discarded as fruit of the poisonous tree. The prosecutor may not use the information "directly or indirectly, in his case-in-chief, during cross-examination of any called defense witness, as rebuttal evidence, or for any purpose whatsoever."

San Angelo District Judge Barbara Walther, who approved the original warrant, has continued to stand by it. But I suspect Texas' Third Court of Appeals - which already benchslapped her once over the raid - may agree with the interpretation from Arizona. As Jeffs' attorneys argued to the AZ court, “An investigator of the level of Barney Fife would have recognized the call as a hoax if he had spent an hour or two of proper investigation.”

The convenient failure to prosecute instigator of Great Eldorado Polygamist Roundup

A reader helpfully forwards an article from Colorado Springs about Rozita Swinton, the hoax phone caller whose claims to be an abused polygamist bride launched the Great Eldorado Polygamist Roundup. You may recall Swinton's false claims resulted in what courts later said was the improper seizure by authorities of more than 400 children from the YFZ Ranch in Eldorado, claiming their parents had all abused them.

Swinton has lately been convicted in Colorado of essentially similar charges, but oddly enough nobody in Texas seems interested in prosecuting her or even really finding out her story regarding the phone calls leading up to the YFZ Ranch raid. According to her lawyer,

to his knowledge, his client is not facing any criminal charges in Texas.

“I believe the phone call in Texas resulted in the prosecution of some people who were sexually assaulting young women,” ... “If anyone felt that Ms. Swinton was involved in that, that’s a good thing.”

Texas authorities, however, said they are still looking into Swinton’s role in the case.

“Our inquiry into Rozita Swinton and other aspects of this case is ongoing,” said Jerry Strickland, spokesman for the Texas Attorney General.

To repeat what I wrote last year, "why hasn't Rozita Swinton been charged for her instigatory role in the Texas case? I think it's precisely because the last thing Judge Walther and the Texas Rangers want is for her to be cross-examined under oath about who knew what when and how she was able to pull off such a grand imposture." If that were to happen, I suspect it would reveal improprieties by authorities that would invalidate the search warrant used to get onto the property. I continue to believe officials were looking for any excuse to launch such a raid and knew or should have known at the time they went in that the call was a likely hoax.

The only other reason I can think of for failing to charge Swinton would be if prosecutors simply agree with her lawyer that the end justifies the means and that all the kids CPS illegally seized were acceptable collateral consequences that should be overlooked in deference to the larger goal of driving the YFZ Ranch residents out of Schleicher County. If that's the case, perhaps the Attorney General should just publish a list of unpopular victims - polygamists, illegal immigrants, Wiccans, or whoever - against whom crimes will be tolerated in Texas, just so we can all get on the same page.

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."

CPS raid on Houston's underage moms would dwarf Great Eldorado Polygamist Roundup

Here are a few disparate items to chew on this morning:

Get ready for the CPS raid on Houston
Last year Texas' CPS accompanied by dozens of armed police raided the YFZ Ranch and seized more than 400 children on the sole basis that some of the children had allegedly been married and impregnated as young as 14 (a practice that was legal in Texas with parental consent until 2005). Much to-do was made about how the mere presence of underage pregnant kids necessitated a full-blown military response and mass-seizure of every child within arms-reach. How much more justified, then, would the state be to raid the City of Houston, which leads the nation in the number of pregnancies under age 15? And just as happened at Eldorado, shouldn't the state seize everyone else's kids, too, because they live in a community that tolerates such behavior? If that approach was good enough in the Great Eldorado Polygamist Roundup, after all ...

No Mas! Sheriffs fear immigration enforcement too much to handle
Some Texas border sheriffs are balking at suggestions by the federal Department of Homeland Security that they take on immigration enforcement duties. The Cameron County Sheriff said “There’s not enough jail space to support it.”

Tagged: Offenses added to criminal records with no conviction
Several bloggers have pointed out this Wall Street Journal piece about Texas' new law, promoted vigorously at the Lege by Dallas District Attorney Craig Watkins, tagging in criminal records offenders whose DNA was identified in old rape cases even if the statute of limitations has run out and they couldn't be prosecuted. While this novel concept raises some due process concerns, in practice it can be expected to apply in only a small number of cases.

Kicking a judge out of the club (No, not Sharon Keller)
Reacting to the indictment of a sitting Republican judge in Houston because of "unwelcome sexual advances" to a defendant and the Houston DA's search for additional witnesses, Mark Bennett asks, "Want Revenge? Gain? Attention? Be a Witness!." I guess Don Jackson must not be part of The DA's "Judges Club" that Murray Newman wrote about.

Send 'em straight home
Over the next year TDCJ must begin releasing offenders either from the unit where they served or through regional release facilities instead of siphoning everyone back through Huntsville, reports the Austin Statesman's Mike Ward, who quoted state Sen. John Whitmire declaring, "It's been nuts to take prisoners from 112 units and haul them all the way back to Huntsville from El Paso, then let them out and buy them a bus ticket back to El Paso. This change represents a huge step forward. There's no reason for that long ride back to Huntsville to continue." TDCJ officials say the policy will likely be implemented sooner than later.

Search policies on laptops at the border
CrimProf blog rounds up links on new US policies for searching laptops at border crossings, noting that "The Ninth Circuit has ruled that the constitution does not preclude warrantless and suspicionless searches of laptop computers at the border." ACLU has called for policies limiting laptop searches to cases with "individualized suspicion." At present, though, according to this DOJ press release, only a small number of travelers are searched: "Between Oct. 1, 2008, and Aug. 11, 2009, CBP encountered more than 221 million travelers at U.S. ports of entry. Approximately 1,000 laptop searches were performed in these instances—of those, just 46 were in-depth."

SCOTUS CrimLaw summary in 5 pages
Via White Collar Crime Prof Blog, see this excellent summary from BNA (pdf) of US Supreme Court decisions from the last term dealing with criminal law. Bottom line: It's easier for the state to pursue RICO charges. Requiring cross-examination of forensics will create not-insurmountable headaches in about 2/3 of states (though not Texas). SCOTUS hates the exclusionary rule, or at least five of them do (especially the Chief Justice). Sloppy police databases are fine when they result in illegal searches: Accidents happen! Similarly, supervisors are immune from civil suits if they fail to train prosecutors under them about their Brady obligations to disclose exculpatory evidence to the defense.

Bad CPS bill deserves a good veto

Jerri Lynn Ward alerts me to a bad amendment approved in the legislative session's waning hours heaping new authority on CPS to allow them to undertake child seizures and interrogations without first notifying parents. The Parent Guidance Center issued this press release calling for a gubernatorial veto. See discussions from Tim Lambert of the Texas Home School Coalition and the blog The Travis Monitor. According to Lambert:

the bill was substituted in committee for a very different SB 1064, which was passed out of the Senate and sent to the House. The new SB 1064 gave the court authority to force parents to give CPS access to the child and/or transport the child for "interview, examination and investigation," without a court hearing or notice to the parent. Worst of all, the language in the current statute that requires CPS to prove "good cause shown" was stricken. Thus this bill would allow CPS, during an investigation in which the parents would not waive their 4th amendment rights, entrance into their home, access to medical or mental health records of their children or transportation of the child, on the simple filing of an affidavit by a CPS worker with no hearing or opportunity for the parents or their legal counsel to present their case.

The bill language allows CPS to access records without parental consent or a court hearing and lets them transport a child for questioning based only on an affidavit (without a hearing or a finding of "good cause") if the parents won't consent. Parents must be notified afterward as soon as practicable, but I don't see why it's not "practicable" to notify them beforehand.

This is clearly an overreaction to the fiasco surrounding the Great Eldorado Polygamist Roundup, and an unnecessary one. I'm disappointed in Rep. Patrick Rose and Sen. Kirk Watson for carrying this piece of junk. Ward, Lambert and other conservatives are calling on the Governor to veto SB 1440 and I'd have to agree the bill deserves an ignominious demise.

Follow this link to tell the Governor your opinion.

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.

Did Ranger mislead judge into issuing Eldorado warrant?

It was revealed Tuesday at the Texas House Human Services Committee hearing (see Grits coverage) that a court filing today would provide more detail about the still-murky backstory of what occurred in the five days between the initial hoax phone call to a San Angelo women's shelter and the legal and political catastrophe that became the Great Eldorado Polygamist Roundup at the YFZ Ranch. Here's the initial MSM coverage:

• San Angelo Standard Times: Attorneys: Walther misled into issuing FLDS warrant
• Salt Lake Tribune: FLDS motion challenges Texas' reasons for raiding polygamous ranch
• Deseret News: FLDS challenges Texas search warrants
• AP: Sect's lawyers accuse Ranger of misleading judge
  

Brooke Adams' account in the SL Tribune is typically excellent:

in a sworn affidavit used for the first search warrant, Texas Ranger Brooks Long said Barlow was at the ranch, the motion says. Brooks also failed to disclose he had confirmed with an Arizona deputy sheriff that Barlow needed permission to leave Arizona as a condition of his probation.

In addition, Schleicher County Sheriff David Doran spoke to Barlow by telephone and confirmed he was in Arizona, not Texas.

"Like the clock that strikes thirteen, this fact alone should have called everything they had heard before into question," the motion states.

Long also "failed to even make a single telephone call to corroborate or verify this caller's information" and, despite checking, was unable to verify her claim of recent treatment at the Schleicher County Medical Center, the motion says.

After being told no "Sarah Barlow" existed, officers asked to interview all females between the ages of seven and 17 and were granted access to the ranch. That showed their intent not to "seek evidence of a special crime" but to "check evidence of any crime against the children present," the motion states.

After three days of searching, there was still no sign of "Sarah Barlow, the motion states.

"It is clear that the authorities used a hoax phone call as an excuse for staging a massively intrusive raid upon a disfavored religious group," it says.

The search of the ranch, which is bigger than some Texas cities, based on one "general" warrant "far exceeds that of any reported case in this or any other jurisdiction," it says.

"This wholesale search of an entire village, pursuant to a single warrant, is by far the most sweeping and expansive invasion of our citizens' right to privacy since our founding fathers attempted to do away with King George's 'writs of assistance' more than two hundred years ago."

It contends that the state's "omissions, misstatements, and failure to exercise the requisite diligence, protocol and expertise expected of any reasonably well-trained law enforcement officer" led to "one of the most intrusive, invasive and wide-reaching raids of a religious community in our country's history."

That's quite a ringing critique! Looks like the legal wrangling over these cases may heat back up again while the Legislature is still in session.

I've been beefing about the breadth of that search warrant since right after it was filed, so it will be interesting to see it finally, formally disputed. The Third Court of Appeals has already held the whole ranch was not a single household, so the state begins its reaction to this motion very much on the defensive.

Says the San Angelo Standard Times, "The motion covers 10 of the 12 defendants, excepting sect leader Warren Jeffs, who is facing charges in Arizona, and ranch doctor Lloyd Barlow, who faces only misdemeanor counts."

Related Grits posts:

• Bill targeting FLDS larded with unintended consequences
• Why no prosecution of false child abuse report in Great Eldorado Polygamist Roundup?
• Search warrants for polygamist compound may be invalid

Bill targeting FLDS larded with unintended consequences

UPDATED

The Lege will revisit the Great Eldorado Polygamist Roundup this morning, the Austin Statesman reports:

The House Human Services Committee will meet at 10:30 a.m. in E2.016 to look at how the state handled last year’s child-welfare operation at a West Texas ranch owned by a polygamist sect. The Statesman’s Corrie MacLaggan wrote yesterday on the Postcards blog, “Testimony is expected from people invited by the panel, including Anne Heiligenstein, commissioner of the Department of Family and Protective Services; Willie Jessop, a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints; Scott McCown, executive director of the Center for Public Policy Priorities; and Kevin Dietz of Texas RioGrande Legal Aid, which represented some of the FLDS mothers. Jessop said he plans to tell lawmakers that he takes issue with Heiligenstein’s recent public comments about how she did not think the state made any mistakes in the case and that her agency would respond swiftly to any future abuse allegations.”

MacLaggan also reported, “he human services committee is also scheduled to consider a proposal by state Rep. Harvey Hilderbran, R-Kerrville, that would clarify when Child Protective Services should remove suspected perpetrators — rather than children — from a home. The proposal, a response to the FLDS case, seeks to allow a suspected perpetrator of child abuse or neglect to be removed from the home only if there is evidence that the parent who would remain at home would monitor the residence and report any attempt by the accused to return. It would also enhance criminal penalties for failing to report abuse or neglect. There is a similar measure in the Senate by Jane Nelson, R-Flower Mound. Meanwhile, a Senate panel is considering a separate measure by Nelson that would extend the statute of limitations for bigamy.”

See a discussion of Sen. Nelson's legislation here, the text of which is included in Hildebran's bill en toto.

The invited list of speakers at the Eldorado hearing seems disappointingly slanted, but not nearly as much as Rep. Hildebran's bill, for which an interested reader forwarded me a copy of the committee substitute, calling it " a Christmas Tree of mischief."

The most egregious section of the bill IMO - certainly the most mischevious - would insensibly boost the penalty for parents whose kids play hooky from school from a Class C to a Class A misdemeanor, with a second offense garnering a third degree felony charge.

Talk about unintended consequences! That won't just affect the FLDS but potentially myriad homeschoolers and many thousands of parents struggling to enforce discipline on rebellious youth. Given Texas' high dropout rates, this bill seems likely to fill the jails needlessly with parents who aren't criminals but are simply unable to force their child to go to schools they don't find relevant, useful or engaging. The bill also boosts penalties for students' non-attendance from a C to a B misdemeanor.

This is no solution to any problem that arose in the Great Eldorado Polygamist Roundup. Instead, it uses that event as an excuse for jacking up penalties for petty offenses that, in past generations, wouldn't even be considered a crime.

Similarly, nothing about this case indicates that increasing penalties for failure to report child abuse would have helped resolve the problem, but the bill boosts penalties for that crime, too. Of course, most all the allegations of abuse by Texas CPS turned out to be entirely unsubstantiated - from the initial hoax phone call that launched the raid to repeated overstatements by the agency claiming hundreds of children were abused. So if there was little if any abuse documented, there's scarce reason to think there was some widespread failure to report it.

The bill also eliminates a requirement that CPS - when seizing children without a court order - make "reasonable efforts ... with respect to preventing or eliminating the need to remove a child from the child's home or to make it possible to return a child to the child's home." Under Hildebran's proposed language, "the court may find that based on the circumstances no reasonable efforts would prevent or eliminate the need to remove a child and that the department satisfied the requirements ... even though the department made no efforts to prevent or eliminate the need to remove a child." That essentially guts the requirement that CPS make a good faith effort to keep families together.

Another section of the bill disallows parents from accompanying a seized child, but given how the FLDS kids were treated while in the state's care, this case actually argues for the opposite policy. It was unnecessary and terribly traumatic to take those young kids away from their Moms after storming their home with hundreds of armed men and forcibly removing them based on a hoax phone call. This was only a problem because of the volume and that was a mistake by the state, not something kids or their moms should be punished for.

Hildebran's bill is a laundry list of solutions looking for a problem. But the real problems with the Great Eldorado Polygamist Roundup all involved state overreach, not any deficiency in state authority. The bill boosts penalties for families - as though low penalties were somehow a barrier to achieving state enforcement goals in Eldorado (they weren't) - but does nothing to restrict CPS and in fact further empowers them to override familial rights. This is a bad bill, and a pointless one.

LIVEBLOGGING THE HEARING: I just got home from testifying at the Lege this afternoon and turned on the Health and Human Services Committee hearing (see here) just in time to hear Department of Family and Protective Services Commissioner Anne Heiligenstein say, "Given the extraordinary circumstance, I don't believe the action taken [seizing more than 400 kids] was imprudent." But Chairman Patrick Rose (a former campaign client of mine in a past life) pressed her to reconcile that defense with the Supreme Court's ruling against the actions, insisting she say whether they would do the same thing again if it happened again. She finally acquiesced that the agency would "follow the guidance of the court" in the future and evaluate each case on an individual basis. It seemed like a grudging acknowledgment.

Rose pointed out that Heiligenstein continued to define the term "household" as "the entire compound," which even she admitted "was a bit of a stretch." I'm glad the chairman picked up on that - that mis-definition was a key source of mischief in its own right throughout this fiasco.

Contradicting Heiligenstein, who claimed deceit by FLDS parents was the main reason youth couldn't be treated on a case by case basis, Kevin Dietz of Texas RioGrande Legal Aid said he was not aware that any of his clients had been accused of misrepresenting to CPS whose children were whose. He said it was clear from their first client interview that his clients all had individualized interests, backgrounds and legal issues, and that a key mistake by the department was to treat them as a group instead of as individuals. "It's just bad practice to have removed so many children based on so little evidence," he said. All but one of this FLDS children have now been returned to their parents.

Willie Jessop said there is a suppression hearing tomorrow where more information will likely come out about the hoax phone call from Rozita Swinton that set off this fiasco.

Patrick Rose asked Jessop point blank: Did you tolerate the marriage of underage girls to adult men on your ranch. Jessop wouldn't answer. "I don't live at the ranch," he said. He said he could speculate, but he didn't know. Are there underage marriages in your church, he retorted, and if so should we roundup all the children in every family in the congregation (not a quote, but the gist)? It was an unsatisfying answer to a straightforward question; it seems pretty clear there have been at least a handful of documented cases (several of which have resulted in indictments), though some of those marriages occurred outside Texas many years ago. Rose pointedly said he would respect Jessop more if he just refused to answer the question than if he claimed he did not know. Jessop replied it would be "inappropriate to speculate." "I don't believe that you don't know," Rose concluded.

Jessop did reasonably well but was a little raw, and there were a couple of questions (particularly from Rose) that he couldn't successfully dodge, though I thought he partly rehabilitated his position before he was done by emphasizing the lack of due process and the Kafka-esque position of being asked to account for people who didn't exist based on allegations that turned out to be a hoax.

Former district Judge Scott McCown said, somewhat to my surprise, said he thought no changes were needed to the Texas Family Code in light of the incident. The Family Code, he said, "is not a barrier to removing some of these kids." Maybe it's just his tone, but it seems like McCown's stance has softened somewhat since last year when he was more gung ho. "We can't look to CPS to deal with the issue of underage marriage in the FLDS community," he said. Only "vigorous criminal law enforcement" could solve the problem and CPS doesn't do that. He also said it's a question of whether the Lege would "pony up the money" to investigate and prosecute the statutes on the books.

Rep. Darby tried to get McCown to endorse Hildebran's enhancement bill (to which he's signed on as joint author), questioning whether we care enough to pay "whatever it takes" to prosecute these cases. McCown replied that Texas shouldn't pass new criminal penalties pretending that's what will solve the problem when we know in our hearts that what's really needed is a $10 million appropriation to DPS for enforcement.

Susan Hays, a college pal of mine, testified about her experience as an ad litem for a 2-year old FLDS child and conferring with other attorneys about an array of clients with all sorts of different circumstances. The state made a great mistake, she said, by not knowing a lot more about who they were dealing with. She also said that the "sins of the leadership" shouldn't be visited on the churches congregants and especially the children.

Hays said that the state made a mistake by thinking this was a parallel to the Branch Davidian catastrophe, when really the better parallel was the 1953 raid on the FLDS at Short Creek, Utah, a subject discussed here on Grits last year. "It's their Alamo," she said, and Texas just replicated the scenario for a new generation. "You've got small children who're going to grow up bragging to their grandkids that they were part of the Eldorado raid," she said, adding that Texas' approach reinforced the group's insularity and needlessly traumatized the kids.

Susan said it's true it was hard to tell who was telling the truth throughout the episode, but that CPS' "refusal to communicate with" ad litems was at least as big a source of obfuscation as FLDS-generated confusion about parentage. Ad litems can't represent their clients, she told the committee, if CPS won't tell them why they think their clients have been abused.

The hearing will continue on into the evening but I've got to cook dinner. Go here for the livestream video.

MORE (4/15): Here's the archived broadcast of the hearing.

See MSM coverage (4/15):

• San Angelo Standard Times: Live from the FLDS hearing in Austin
• Dallas News: DFPS: Biggest mistake in polygamist raid was not separating mothers from children
• Dallas News: Polygamist ranch spokesman tells legislators he doesn't know if underage girls forced to marry
• Daily Texan: Bill proposes harsher penalties for child abuse
• Austin Statesman: FLDS Home: Ranch or compound?
• Austin Statesman: Sect members get an earful
• CBS-42: FLDS spokesman tells committee what he thinks went wrong
• AP: State agency defends actions at polygamist ranch
• Texas Observer: 'Lessons learned' after polygamous ranch raid
  

Bigamy, Integrity, Identity debated in senate committee

While I was busy elswhere on Tuesday, the Senate Criminal Justice Committee approved a number of bills worth mentioning at their weekly meeting (see video of the hearing here):

Polygamist Roundup Fallout: Enabling Bigamy Prosecutions
No testimony at all, for or against, accompanied Sen. Jane Nelson's legislation SB 787 extending the statute of limitations for bigamy from 3-7 years, and 10 years after the 18th birthday if one of the partners is a minor. Sen. Nelson particularly cited the Great Eldorado Polygamist Roundup as spurring her desire to change the law. She said she was concerned about "minors forced into polygamous situations," but of course the bigger issue arises with minors of legal marrying age who choose those relationships. They have broken the law, yes, but how long should those involved be criminally liable? Why does the statute of limitations on this crime, in particular, deserve extending beyond other offenses?

This legislation seems premature to me - a half-cocked, git-tuff response to a lingering social conflict between church and state. In many ways it mirrors the ham-fisted approach by law enforcement when they first invaded the ranch looking for a Waco-style confrontation.

Why not see what if anything prosecutors can prove under the current laws before clamoring for tuffer ones? They went through all the marriage and lineage-related documents at the YFZ Ranch, so if it occurred they should be able to prove it. Why not wait to see what happens in those cases and evaluate the situation afterward?

Not an "Integrity Unit," but still a good idea
Sen. John Carona amended his SB 388 to create a "Public Corruption Unit" within the Texas Rangers instead of a "Law Enforcement Integrity Unit" as the bill was originally drafted. (See prior Grits posts here, here, and here, plus coverage from the Houston Chronicle. Discussion of the bill begins at the 45:40 mark.) The bill was also changed to disallow the unit from investigating administrative violations.

In laying out the bill, Carona's main focus was on law-enforcement corruption related to drug cartels. His goal, he said, is not to accuse Texas law enforcement of being particularly corrupt but to "ramp up for the greater threat ahead" from Plata o Plomo style corruption/intimidation of police.

Ana Correa of the Texas Criminal Justice Coalition saidthe bill isn't anti-law enforcement but "quite the opposite," because most good cops don't want their ranks sullied by criminals who're collaborating with those they should be trying to arrest.

Even Tom Gaylor of the Texas Municipal Police Association admitted it's "not the most comfortable position" to oppose the bill, but he worried in particular about creating a unit whose sole "performance measure" would be the number of police officer scalps they'd taken over corruption beefs.

In making his "performance measures" critique, Gaylor actually compared the agency to the old drug task force system, where drug units measured effectiveness based on higher arrest and seizure rates. It was an interesting argument, but Sen. Juan Hinojosa pointed out that no such performance measures were included in the bill.

Personally I don't think they're going to discover a shortage of cases to investigate and if DPS can't figure out the right performance measures for their employees, that's a question to be addressed at the agency rulemaking level. Hinojosa's right that the current bill doesn't speak to the issue one way or the other.

Identify yourself or go to jail
Finally, the committee approved a bill, SB 1175, that would allow police to give a Class C ticket for "failure to identify" when they detain a suspect. (Discussion of the bill begins at the 1:32:00 mark.) Currently, Texans don't have to identify themselves unless they're actually arrested, and it's not a crime if you don't do so. In practice, of course, police can't write a ticket without the identifying information, so this would give them cause to arrest you and cart you off to jail (under authority affirmed by the US Supreme Court in Atwater v. Lago Vista, a Texas case).

What kind of situations are we talking about? Under what circumstances might you be "detained" when police have no cause to arrest you? The examples given were things like "taking pictures in front of a nuclear power plant," but I think the new power would be used more widely than that, and mostly in non-terrorism related cases.

I wrote about a situation last year where I was detained on the street for, essentially, "babysitting while white." Some busybody called 911 because they saw me walking down the street with a two-year old of a different race. Three police cars were sent to detain and question me over this grave matter. That was a formal "detention" and Sen. Patrick's statute would have applied. More than a few commenters were offended that I wasn't more cooperative with police - though I did give my name and address when asked, I refused to answer detailed or personal questions. I thought a lot afterward about why I reacted the way I did. Mostly it's because the officer precisely didn'task for my name at first, but instead asked a series of questions aimed at determining whether I was some sort of child molester or kidnapper.

Sen. Whitmire asked why any law abiding citizen would refuse to identify themselves, and while I can't speak for others, I know why I wouldn't answer questions that day. As I said in reply to a commenter in that post, "Talking to cops who want to investigate you for false allegations of sex crimes has many potential negatives that simply refusing to speak to them wholly avoids." When the conversation starts out with an accusation, it's wholly justified and probably wise from the perpective of a potential defendant to not give police any information at all.

Whitmire himself identified another reason someone might not want to tell police who they were - if they were having an affair or some other "domestic situation." There are many possible scenarios where someone might not want their spouse, their job, etc., to know their whereabouts, but that wouldn't imply a crime was committed. The point is, in a free society, that person has free will to make bad choices as long as they don't harm others or violate the law. "None of your business" is still a valid response.

To demand, "if you don't have cause to arrest me, let me go" IMO is a reasonable exercise of one's rights and shouldn't require subjecting yourself to a check in the warrants database, which is the main thing this is really about at the end of the day. With more than 10% of adult Texans having outstanding traffic warrants, every time someone walks away without running them through the system, police miss a 10% chance they'll owe money that can be leveraged from them with a trip to the jail.

This is not a slippery slope toward a police state but a straight chute. I've joked before how, during the Cold War, we used to consider it the height of totalitarianism that Communist police might stop an average citizen on the street, demand to see their papers, and arrest them if they didn't comply. But that's exactly the kind of power Sen. Patrick's legislation would give police in Texas: Identify yourself or go to jail. "Can I see your papers, comrade?" That's unnecessary. The law's just fine like it is.

Lege to examine Great Eldorado Polygamist Roundup

This is going to be a complete zoo!

Yesterday Rep. Patrick Rose, Chair of the Texas House Human Services Committee, created a subcommittee to analyze the largest child-seizure operation in US history at a polygamist community in West Texas by the state's Department of Family Protective Services (DFPS). Reports the Deseret News:

At the start of a hearing of the Texas House Human Services Committee on Tuesday, Rep. Patrick Rose, D-Dripping Springs, announced the formation of the subcommittee.

"The situation in Eldorado over the interim presented real challenges for the department and real challenges for the state," Rose said. "A lot of us have been talking about those issues during the interim."

Rose said the subcommittee will schedule hearings in the coming weeks and would present a final report to the legislative committee, but he did not say what its specific focus would be.

"Those of us who are on the committee … care deeply about what we can learn, what lessons learned from that experience are," he said.

Members of the Subcommittee on Investigations of Abuse and Neglect of Children and Interagency Cooperation will include Rep. Elliott Naishtat, D-Austin; Rep. Ana Hernandez, D-Houston; and Rep. Drew Darby, R-San Angelo.

"Although it is unlikely that we will see an investigation of this size and scope again, it is important that we hear from caseworkers, law enforcement officers and local elected officials to learn how each of these groups and relevant agencies can better cooperate in investigations of abuse and neglect," Naishtat said Tuesday. "It is important that the state learn from this experience to better protect Texas children."

The Great Eldorado Polygamist Roundup, which garnered international media attention, was set off by a hoax phone call alleging child abuse. The state at one point claimed 466 kids were victims of sexual abuse, but almost all of those cases were later dropped.

Rep. Drew Darby's participation on the subcommittee is especially ironic since he was the "real estate attorney who helped create the YFZ Land LLC to purchase the ranch." Later, however, he was a strong supporter of the raid, declaring "I'm so proud of our state for acting in the manner it has acted." Along with state Rep. Harvey Hildebran, he has vowed to file legislation targeting FLDS.

Thankfully, Austin state Rep. Elliot Naishtat will chair the subcommittee, not Darby, so one hopes that means the hearing won't just be a whitewash session.

Nobody claims there weren't any underage marriages among the Fundamentalist Latter Day Saints (FLDS) in Eldorado, but it soon became clear the raid-supporters' goal wasn't to go after specific allegations of abuse but essentially to run the FLDS out of town. At the end of the day, there's little doubt the state's actions created boatloads more "human misery," to use Darby's term, than it prevented.

The problem arose because, rather than go after individuals on specific charges, DFPS essentially kidnapped every child they could lay their hands on, even when they didn't know who their parents were or any specific information about them at all. Indeed, after months of vetting every single household, DFPS now claims to have identified only 12 underage marriages, seven of which, they say, produced children. Some of those, however, occurred many years ago and outside of Texas.

The Third Court of Appeals and the Texas Supreme Court later ruled the agency had acted unlawfully by claiming that the religious beliefs of parents at the YFZ Ranch constituted per se abuse.

There certainly are a lot of unanswered questions from the raid and its aftermath:

For starters, why hasn't the hoax phone caller been arrested and charged with a crime for her part in launching this mess? I believe it's because her prosecution would reveal incompetence or misconduct by official actors that the state wants to cover up. I'd love to see Rozita Swinton, the hoaxer herself, actually testify at the hearing, but I seriously doubt that will happen. Ditto for Flora Jessop, the anti-FLDS activist who was in communication with Swinton for several days before the raid.

What really happened at the San Angelo Coliseum after FLDS children were taken away from their mothers? The committee should investigate allegations of abuse and neglect by state workers charged with caring for the children.

Relatedly, will the committee hear from MHMR workers who dealt with the kids after they were separated from their mothers and believed the state subjected FLDS kids to abuse? Here are some of their letters:

• "This was a travesty."
• "This situation was a tragedy."
• "It was heartwrenching."
• "Our roles became... confidant and a broker."
• "That is a very good question."
• "Ashamed of being a Texan."
• "I often felt helpless."
• "Vast amounts of hypocrisy."
• "Even to be an observer was difficult."
• "This incident... is not what America or Texas stands for."
• "Even the simplest request was discounted."

Throughout this process CPS put out misleading, inflammatory statements that routinely turned out to be false or grossly exaggerated. Will the subcommittee analyze their myriad debunked claims and hold the agency's feet to the fire for its misrepresentations?

DFPS got approval to hire 90 new staff people to handle the FLDS case. Will the agency keep those positions? What's the status of that impromptu expansion?

More importantly, does DFPS have too much authority to seize children without adequately documenting real abuse? It's not just a problem with polygamist households.

Finally, though the Deseret News said the subcommittee would hear from "caseworkers, law enforcement officers and local elected officials," IMO the witness list shouldn't be so limited. There were many ad litem attorneys appointed to represent the kids in this case and I'm hopeful some of them will show up in Austin to tell the story from their perspective.

Let me know in the comments what other questions you think the subcommittee should address and what witnesses they should ask to appear before them.

Lawyers for polygamist Moms top Texas Lawyer's "Impact Players"

Texas Lawyer magazine has given its annual "Impact Player of the Year" moniker to attorneys they've dubbed "The Mom Squad" who represented the fundamentalist Mormon parents in the Great Eldorado Polygamist Roundup this spring, particularly highlighting the work of Julie Balovich and Amanda Chisholm from Texas Rio Grande Legal Aid. These are well-deserved kudos, properly also shared with the many other attorneys who traveled to San Angelo from all over the state to represent FLDS parents in emergency removal hearings.

I find it fascinating that opinion leaders' views have now shifted so mightily about whether the state was correct to take the kids. Reports TL:

Jack Sampson, a University of Texas School of Law professor who founded the law school's Children's Rights Clinic, says the Supreme Court's opinion drove home a point paramount in all parents' rights cases that will be remembered for a long time in Texas family courts: The state needs evidence of a threat to remove children from their homes on an emergency basis.

The irony: That's a message that was lost on Sampson himself when the event actually took place. During the entire mess, he positioned himself firmly in CPS' and Judge Walther's cheering section and made himself widely available to be quoted in media accounts as an expert on the subject. Balovich, Chisholm, many other lawyers, and also the Third Court of Appeals and the Texas Supreme Court all distinguished themselves in that process, we can now see with the benefit of 20/20 hindsight. But the same cannot be said for folks like Prof. Sampson who crowed to the press about unproven abuse and spun justifications in the media to cover for what was essentially an illegal kidnapping at gunpoint by the state based on false allegations.

Texas Lawyer also published nice features on its runner-up list of "Impact Players" for 2008, which includes:

• Andrea Marsh of the Texas Fair Defense Project, whose first case as an attorney was Rothgery v. Gillespie County which was decided in her favor this year by the US Supreme Court and is presently transforming how Texas counties handle indigent defense.
• Lloyd Kelley, a Houston attorney whose civil suit revealed emails to and from then-District Attorney Chuck Rosenthal that ultimately brought down the powerful DA's administration, only to see his former law partner, C.O. Bradford, narrowly lose the election to succeed his nemesis to Republican Pat Lykos.
• Robert Ryan and Jeffrey Dorrell, two Harris County grand jurors who bucked the DA's office to insist on indicting Texas Supreme Court Justice David Medina for arson.
• Gerry Birnberg, chair of the Harris County Democratic Party whose candidates nearly swept Harris County judicial races and won their first countywide seats - including Sheriff - in many years.
• The prosecution team in the Holy Land Foundation case (more on this in an upcoming post).
• Hurricane Ike.