Judge Barbara Walther: Texas-Sized Mike Nifong or Madame Defarge?

The tricoteuses—that is, Frenchwomen who attended the Convention [of the French Revolution] knitting, and encouraged the Commune in all their most bloodthirsty excesses. Never in any age or any country did women so disgrace their sex. E. Cobham Brewer

Never, that is, until the year of our Lord 2008 in which Judge Barbara Walther set her sights on a small religious minority in the otherwise unremarkable town of Eldorado, Texas. So much about this FLDS case smacks of official malice or malpractice, it’s hard to decide where to start deconstructing.

To get some sense of the concentration-camp-like horrors inflicted in this case by Judge Walther, you might start with the independent eye-witness accounts of mental health care workers who were hired (in form only, it turns out) to emotionally triage the FLDS mothers and children after they were taken by force from their homes in the middle of the night. Several of their letters are now linked to this blog here. Once you have read these accounts, you might take time to read the analysis below.

Before reading on, consider this: CPS and Judge Walther in this case actually thought that they could get away with this atrocity because they do this same kind of thing every day to individual families who have insufficient knowledge, resources or press coverage to defend themselves. For them, this was all hum-drum, business as usual. It came as a huge shock to them that the Texas Supreme Court disagreed.

[The reminder of the post was written on April 27, 2008, long before the Texas Supreme Court ruled.]

One thing’s for sure: judges who decide child abuse and deprivation cases should be subject to severe sanction, I think including imprisonment, for violating due process as they go about breaking up families. The personal and societal havoc wrought by a single rogue judge is catastrophic, akin in some ways to murder. When a judge takes a child away, it is to parent and child as a death in the family. We agonize for years over the execution of a single convicted murderer. In stark contrast, we allow unsupervised small-time judges and CPS hacks to murder families on the basis of flimsy rumors. This should not be.

Walther and the State are now drawing fire from the ACLU, American Bar Association, law professors and child advocacy experts for due-process violations in their sweeping invasion of homes at the YFZ Ranch and “removal” of all 462* FLDS children from those homes earlier this month. The warrant used as the basis for the police raid on the FLDS Ranch — which was not issued for individual homes or residences located on the Ranch even though some or most FLDS families lived in clearly separate residences — now appears to have been based on a fraudulent phone call.

Unable to locate the “girl” who supposedly called a shelter complaining of “abuse,” authorities are now investigating as the likely hoaxster the Arizona woman pictured below whose phone number was used in calls to the shelter. Records of this investigation have been sealed by Arizona authorities at the request of the State of Texas. Don’t expect the CPS to go away quietly. It’s not the CPS way. Once they’ve taken a family apart, you can be sure they’ll lie, intimidate and emotionally torture the children — by, among other things, telling them that they’ll never see their parents again — to get “evidence” to support their own negligence or venality.

Now on the defensive, CPS authorities insist that they were entitled to raid all of the families (not just one or two) no matter how vague and illegitimate the phone call on which the raid was based because CPS believed at the time that the call was legitimate and, when they did break into those homes in the middle of the night, they say they found what was first described in non-committal terms as “possible evidence of abuse”.

As proof that CPS has and will lie in pursuit of this case, as of April 27, at 3:55 p.m. EDT, the Texas State DFPS (aka “CPS”) website continues to falsely publish as fact the following:

March 29-31

Over the weekend, a 16 year-old girl called a domestic violence shelter and reported that she had been sexually and physically abused in the past by her 49-year old “husband.” The girl reported living at the YFZ (Yearn for Zion) Ranch, an outpost of the Fundamentalist Church of Jesus Christ of Latter Day Saints, in Eldorado, Texas. The shelter called in a report to SWI (Statewide Intake), the CPS Hotline, and CPS investigators were assigned to the case.

CPS has never known that it was a 16-year-old who called or that she said she had been sexually assaulted. All they knew was that a shelter told them that a person claiming to be such had called in a long-since discredited accusation. A public company president who publishes such misleading information could be sent to prison for a decade. CPS, however, can and will mislead with impunity. Whatever it takes to save face, no matter the cost to families and society.

Can you say “Mike Nifong and Duke University rape investigation”? Raise the harm done by Nifong in that case to the power of 100 and you might be in the ballpark playing with Judge Walther.

These same CPS authorities, while demonizing the entire FLDS community (and by false extension the unrelated Mormon Church), have so far made no specific accusation of any kind against any individual. No one has been charged. Casting more doubt on the basis for the case, attorneys representing many of the children have remarked at how well the FLDS parents have cared for them. The AP reports that “CPS officials have conceded”

. . . there is no evidence the youngest children were abused, and about 130 of the children are under 5. Teenage boys were not physically or sexually abused either, according to evidence presented in a custody hearing earlier last week, but more than two dozen teenage boys are also in state custody, now staying at a boys’ ranch that might typically house troubled or abandoned teens.

Despite all this, a succession of CPS spokespersons have marched out on stage attempting to allay growing public criticism of the statutory, constitutional and moral legitimacy of summarily bursting into private homes and depriving all FLDS parents and children (no matter their ages) of their family relationships.

So far, in clear violation of the 5th and 14th Amendments to the Constitution of the United States, no individual parent or child in the case has been afforded the bare elements of due process: a meaningful opportunity to (a) learn what accusations have been made against him or her individually, apart from mere belief in a religion that disturbs small minds in rural West Texas, or (b) respond individually to those accusations. In fact, Judge Walther has deliberately interfered with attorney-client communication in the case, taking away the mothers’ cell phones.

Sidebar: Does anyone but a Scientologist really think that Scientologists should be allowed to raise their own children? Tom Cruise is a flaming nut case, a clear and present danger to children, at least emotionally and psychologically. Watch the video evidence here. Why no raid on Tom?

The Austin-American Statesman reports:

Robert Doggett of Texas RioGrande Legal Aid, which represents about four dozen of the mothers in the sect, questioned the wisdom of separating all the young children from their parents.

A 6-month-old boy, he said, is not in immediate danger of indoctrination into what CPS has characterized as a widespread practice of forcing underage girls to have sex with older men in “celestial,” or spiritual, marriages.

For such children, “how in the world could the judge have found imminent risk of physical harm?” Doggett asked. “Courts are supposed to be a check on the government. That system has totally broken down.”

My own experience is that judges — especially local, popularly elected ones like Judge Walther — are heavily biased in favor of the government agents who make a living tearing families apart.  Without families to tear apart, these parasites on society would have to find a real job. It’s difficult to get an unbiased hearing in a child abuse or deprivation case because popular hysteria about child abuse, coupled with the “zero-tolerance” fad that today permeates every corner of U.S. society, drives decision makers as if by an unruly mob.

The political downside of a single child fatality or abuse incident is far greater for a local judge than is the life-long emotional and psychological scarring to thousands of kids and parents wrongly separated from each other across the country each year. Society screams for blood over the first, private type of abuse. It largely ignores the second, state-imposed form of abuse. Family law judges and CPS-like agents see each other constantly and get to know one another. They go along to get along. It’s a psychological fact that parent defendants arrive in court as outsiders in a system already stacked against them.

In this case, there are other political complications. Walther operates under the shadow of a glaring conflict of interest. She has made her career since 1992 from this job as the only judge in the multi-county district 51. She reportedly “comes from a long time San Angelo family” where her “prominent radiologist husband” practices medicine. For her to rule in favor of local polygamists would be political suicide and the early end of her cushy tenure on the area’s only bench. It would also likely impact her “prominent husband’s” income. Little wonder that she has been so one-sided in her approach to this case.

More from the AP:

Texas law has a “very low burden for removal of children from a parent’s home, at least temporarily,” said Jessica Dixon, director of the child advocacy center at Southern Methodist University’s law school in Dallas.

But the broad sweep [in the FLDS case] – from nursing infants to teenagers – is raising constitutional questions, even in a state where authorities have wide latitude for taking a family’s children.

The move has the appearance of “a class-action child removal,” Dixon said.

“I’ve never heard of anything like that,” she said.

I have. The Egyptian Pharaoh did it to the Israelites. Later, Adolf Hitler did it to the Jews. Today, it happens all the time in Communist China where parents are told by the state how many children they can have and mothers who try to have more are forced by the government to abort them. But even the Chinese Communists, brutal as they are, don’t force abortions on the basis of religion. There, everyone gets the same intrusive deal. Not so in Eldorado, Texas, a community seemingly bent on winning a place in history’s pantheon of war criminals and ethnic cleansers.

[In Texas] . . . state authorities are supposed to keep the children in their homes unless “a person of ordinary prudence and caution” believes there’s a continuing and immediate danger to their safety.

“There was a systematic process going on to groom these young girls to become brides,” said CPS spokesman Darrell Azar, noting that the state had no way to protect from possible future abuse if they stayed on the ranch.

“Removal is always the last option,” he said. “In this case, there was no other choice.”

Mr. Azar, pictured below, is now claiming, according the Austin-American Statesman, that investigators

. . . found clear evidence [as opposed to merely "possible" evidence] of a pattern of sexual abuse, including 20 girls who had been impregnated between the ages of 13 and 16 and boys who were being indoctrinated to become adult perpetrators of sexual abuse . . . .

Notice in the quote above how the writer leads the second sentence with what appears to be a fact — “clear evidence” of a “pattern of sexual abuse” — yet pushes to the very end of the sentence the key mitigating modifier that this “evidence” is all just the word of one man speaking for the State of Texas, the good faith and competence of which are highly questionable. Yet no one has proven anything or even alleged misconduct by any individual. In fact, as the Salt Lake Tribune reported yesterday:

An attorney for FLDS families in Texas challenged the state’s allegations of a “pervasive pattern” of underage girls having children, saying the state’s own documents show just three teenagers in custody are pregnant.

Of those girls, one will turn 18 in a few months and another merely refused to take a pregnancy test, said Rod Parker, a Salt Lake City attorney representing families at the YFZ Ranch. “That leaves us with one,” he said.

Parker also said Friday that one state document includes a woman whose first child was born more than a decade ago. He said he based his statements on a copy of a list created by an investigator for Texas Child Protective Services. “I
challenge CPS to come forward with the pregnant minors,” said Parker.

So do we all. So do we all.

As to “options,” it would appear that CPS had plenty of them, including leaving the mothers with their children in their own comfortable, clean, safe homes under State supervision. But CPS pointedly refused to consider this option not because the children might be at risk but because doing so would make it harder for CPS to “investigate” the bogus abuse claim and because, once the families have been separated, it will be easier for CPS to argue that the children should not suffer the further emotional disruption necessary to reestablish relationships with their rightful parents. This is a classic tactic by “child protective” authorities everywhere. The longer the kids are away from their mothers, the harder it is to bring them back. And if they do, the children will never know how much they can trust the permanence of the renewed parental relationship because it will have failed them once already. It is a horror that no parent and child should ever have to endure.

CPS and Judge Walther chose the most destructive possible approach, nearly guaranteeing that these children will be emotionally and psychologically scarred for life by her decision. As a result, they will be more likely to be unhappy, unproductive and dysfunctional as adults, amplifying whatever ills the State attributes to their parenting. Valuable insights into the damage Walther has chosen to inflict on the kids is offered by Red Davis.

Texas CPS and Judge Walther are in the process of destroying by illegal means what should be of utmost value to every American: the relationship between parents and children. While it is possible that CPS might have evidence of wrongdoing by some FLDS (as well they might by some local Baptists and Catholics), Judge Walther and company have overreached and overreacted by attacking the entire FLDS community. No one is safe with such people roaming the streets or haunting court rooms under color of law.

The disdain for due process shown by Judge Walther, Texas CPS and Governor Perry himself should concern every parent in the United States. Walther looks — in some pictures — like a sweet, grandmotherly figure. However, “thin-slicing” — a concept discussed at length by Malcolm Gladwell in his book, Blink — suggests Walther is a more sinister player, perhaps more like the mafiosa persona in the photo at the top of this entry.

The thin-slicing principle is that human beings are capable of making sense of situations (and accurately sizing up people) based on razor thin slices of experience or exposure. You shouldn’t need a long court hearing to decide every individual’s case, but you do need a hearing for each one. Badly done thin-slicing can send innocent men to death row or the children of good, loving parents (who may have unusual religious beliefs) into America’s foster care gulag. Effective thin slicing can quickly and accurately identify a perpetrator.

Walther may claim that she is using thin slicing to stereotype all FLDS as victims or “perpetrators.” (I rather doubt that she’s read Gladwell’s book, but who knows.) However, thin slicing in this case would require that Walther have at least a small “slice” of experience with each parent and child under her jurisdiction. The record indicates Walther hasn’t heard — and hasn’t really wanted to hear — from the vast majority of her victims. Therefore, she isn’t in a position to thin slice them. What she has done might be fairly described as familial butchery.

We can evaluate Judge Walther based on slices of her behavior recorded in newspaper articles and her decisions from the bench. The following three examples demonstrate in three “blinks” Walther’s disdain for due process, her breathtaking ignorance about the history and context of the people over whom she sits in judgment, and her evident lack of human compassion. Walther looks like a grandmother but some might say she would fit right in with The Vengeance and Madame Defarge, knitting and grinning while the figurative blood of families runs through the streets of San Angelo.

1. As one example of Judge Walther’s sneer at due-process, the Deseret News reports that at the end of a Monday, April 21 hearing:

. . . an attorney asked the [Judge Walther] to consider her motion to stop the separation of mothers from their children. The judge said she hadn’t seen the motion, noting that she had a large stack of motions to go over.

When the attorney pressed her to consider it immediately, Walther stood up and announced, “Ladies and gentleman, this hearing is concluded,” and abruptly left the bench.

In the motion, attorney Andrea Sloan asked the judge to allow the women and children 30 minutes in the morning and again at night to pray in private. “Without exception, respondent mothers have reported that the department will not let them pray without being monitored by the department,” Sloan wrote.

And American Bar Association Journal reports:

. . . Kevin Dietz, an attorney with Texas RioGrande Legal Aid who represents 45 mothers from the Fundamentalist Church of Jesus Christ of Latter Day Saints, said some of his clients did not even receive notice of the legal proceedings, let alone have a chance to tell their side of the story.

They had no meaningful way to participate, and no evidence was presented against them,” he says.

I think it is an incredible and astounding exercise of police power,” James Harrington, a civil rights attorney, tells the Dallas newspaper. “You can’t take away a kid from their parents by saying, ‘Hey, maybe later on there might be some abuse.’ It’s a way of flipping the Constitution around so that they now have to prove they’re innocent instead of the state having to prove they’re guilty.” . . .

2. Later, responding to the private prayer question, Walther had the combined audacity, gross cultural insensitivity and historical ignorance to ask attorneys in the case to find out whether local leaders of the Church of Jesus Christ of Latter-Day Saints (the “Mormons,” from which Church the FLDS revolted roughly a century ago) “would be willing to monitor the prayer services of the [FLDS] women and children who remain in the shelter.” Deseret News. This would be tantamount to the King of England asking the Pope (yes, the Pope) to “monitor” the prayers of a bunch of renegade protestants. It was an absurd proposal by any measure. A judge the least bit informed about the facts of the case would never have suggested it. Walther’s ignorance on this issue points to broader lack of understanding about the people and issues she is dealing with. If she is the best that the Texas bench has to offer in a case like this, God help Texas.

3. Time Magazine’s May 5 edition (although full of other inaccuracies) reports how, when FLDS mothers remonstrated over the Walther’s order that they be separated from their nursing babies, Walther coldly shot back, “Every day in this country there are thousands of mothers who, after six weeks’ maternity leave, must go back to work–and they deal with this issue.” As if . . . as if all of those thousands of working moms who toss their babies into day care have been ordered, like the FLDS moms, at the point of gun to separate themselves from their darlings. How dare Walther suggest such a false moral equivalency? She dares because she has no morals herself.

Walther ordered the separation at the coliseum which CPS misleadingly described as “orderly and calm.” Eye witnesses, including attorney Rod Parker, says the separation was exactly the opposite: a horrifying scene of “complete pandemonium”:

As the children, all younger than 5, figured out what was happening, they started screaming and CPS workers had to pry many away from their mothers. “This is inhuman. This is un-American,” said Parker, who also said a civil rights lawsuit is possible.

What a cruel and inhuman way to treat fellow Americans, no matter what their religious beliefs. Having done no wrong, they are tortured and driven like cattle. And all of this at Walther’s order. This is the behavior of a sociopath, not a serious jurist sensitive to the nuances and profound gravity of the case before her. And how preposterous of CPS to pretend that the little children would happily be separated from doting mothers by people who barged into their homes in the middle of the night, forcing them to live for weeks in a filthy coliseum.

He [Parker] also said CPS assured nursing mothers they would be able to take breast milk to their infants but, as of early Friday, had been given no information on where the children had been taken. They also were told sibling groups would be kept together. Thirteen children from one family were sent to five locations, he said.

The emotional and psychological blood of these families is on Walther’s hands, yet she is unmoved. Thanks to a system twisted for years by so-called “liberals,” for most purposes, this Republican judge is entirely unaccountable. She can never go to prison for violating constitutional rights. The worse that she might suffer is disbarment or election out of office.

But Walther, like Madame Defarge, cannot work alone. Darrell Aznar, CPS spokesman appears at the right. He and his Texas CPS colleagues are play an important role in bringing so much misery to so many.

What they have done to the FLDS, they can just as easily do to anyone. With incompetent or complicit judges, all that is necessary to have your children taken from you is political unpopularity and a fraudulent abuse accusation — against someone in your neighborhood or apartment block — phoned in by a fraudster sitting in another state. Rick Fisk, in Austin, Texas has a worthwhile related post.

“But,” you object, “I haven’t done anything wrong. They wouldn’t find any evidence of abuse in my case and my kids would never lie about me to the authorities.” Don’t bet on it. Once your kids are 500 miles away under brights lights, they’re likely to say anything it takes to get some relief. And chances are that the courts will ignore the illegality of the warrant in deciding who gets your kids.

Children live from day to day. Their concept of time and relationships is very different from that of adults. They figure out reward systems very quickly. Once told they’re never going home, they quickly become demoralized and adjust to the changed incentives. This leads them to respond in unexpected ways. Eventually, the Stockholm Syndrome may set in and you’ll find your children bizarrely siding with their CPS captors against you, their parents. It is a viscious process that plays out in hundreds or thousands of cases every year in this country. In a way, Judge Walther’s “bloodthirsty excess” in this case may be a godsend to other similarly violated families throughout the land by drawing attention to a serious societal pathology. As Stephanie wrote in Friday’s Wall Street Journal:

Even if some underage girls are forced into marriages, does it follow that all children raised in the church are in danger, simply because they may be taught that such unions are good and godly?

“Can the government interfere with how you raise your kids?” asks Kevin Hasson, president of the Becket Fund for Religious Liberty, which represents clients of all faiths in religious-freedom claims. “Except in extraordinary circumstances, the answer is no.”

Mr. Hasson added that “it’s unfortunate that this is coming up in a situation [involving] people in strange clothes raising kids in a compound in rural Texas that practices polygamy. That makes this seem like a fringe concern, when in fact it’s a very serious, very mainstream question.”

We’ll close today’s post with part of the Texas ACLU’s understated yet clear official statement of concern about Walther’s handling of the case:

While we acknowledge that Judge Walthers’ task may be unprecedented in Texas judicial history, we question whether the current proceedings adequately protect the fundamental rights of the mothers and children of the FLDS,” said Terri Burke, Executive Director of the ACLU of Texas.

As this situation continues to unfold, we are concerned that the constitutional rights that all Americans rely upon and cherish – that we are secure in our homes, that we may worship as we please and hold our places of worship sacred, and that we may be with our children absent evidence of imminent danger – have been threatened,” Burke said.

Due process is the guarantor of everything it means to be an American citizen. Without it, the promise of “life, liberty and the pursuit of happiness” is a chimera. Those accused of crimes must be punished AFTER they have been found guilty through a fair, open and speedy trial.

In this case, Judge Walther has reversed the order, arguably violating due process left, right and center, effectively sentencing hundreds of parents and children to painful separation before any trial of their case. This should not be in the United States of America. Shame on Judge Walther. Shame on all who have kept her in office. Shame on Texas. Shame on the United States of America for allowing such hellacious rot to develop in the body politic.

*The Austin Statesman reports today that — according the CPS — the number of children taken by the State was previously underreported as some girls previously identified as adults have since been “determined” to be minors.