Judge Walther Denies Jessop Motion to Suppress: Due Process Shorted by Long Affidavits?

Predictably, on Friday, October 2, in the ongoing FLDS under-age-marriage controversy, Texas Judge Barbara Walther issued a 28-page order denying Raymond Merril Jessop’s various motions to suppress evidence seized by the State of Texas from the FLDS-owned YFZ Ranch, on April 3 and April 6, 2008.*

Texas authorities seized the evidence under the aegis of two search warrants issued by Judge Walther herself. While her decision in the case will eventually be appealed, it raises disturbing questions about the meaning of due process and casts doubt on the extent to which ordinary Americans, not just disfavored religious minorities, are protected from the whims of busy bodies and do-gooders right and left.

The first of the YFZ warrants has been the most controversial because it was issued on the basis of an affidavit sworn out by Texas Ranger Leslie Brooks Long who relied on what with minimum effort Long and other Texas law enforcement personnel could have discovered were blatant lies.

According to the findings of fact included in the Order, it all began when a female caller rang up a local family violence “shelter” telling whoppers about the supposed misdeeds — on the YFZ Ranch — of a man, Dale Evans Barlow, who was demonstrably not in the State of Texas at the time the alleged misdeeds allegedly occurred.  No matter, the shelter called Sheriff David Doran who then called Ranger Long.  Long then “interviewed” the shelter workers who took the call.

Here, the findings (at para. 44) take an awkward twist.  Before Judge Walther signed Long’s search warrant — exactly when “before” the findings do not say — Sheriff Doran received a cell phone “communication” from a “caller” who claimed to be Dale Evans Barlow.  Instead of engaging the communicator to verify the story, Doran waved him off:

[Doran] instructed the caller [sic] to contact the law enforcement where he was located within 30 minutes of said phone call. Notification of such contact within that time frame, if any, was never received by Sheriff Doran.”

Notably at this point, Doran himself made no attempt to call the law enforcement authorities “where [the caller] was located” to determine what they knew about Barlow’s physical location. If he had done so, he would have then been in possession of information that would lead any reasonable person to conclude that the call to the shelter was a hoax.

Neither did Sheriff Doran inform Ranger Long or Judge Walther of the call from Barlow. (We are left to assume the caller was Barlow since the Order offers no contrary indication.) Instead, the Order gives us to believe, Doran withheld his knowledge of the Barlow call from Long and Walther, effectively providing both of them “plausible deniability” so that they could “legally” proceed with what from all appearances was a long-contemplated (no pun intended) invasion of the YFZ Ranch.

Meanwhile, Ranger Long, apparently satisfied himself that the shelter workers “believed” the hoax caller was “believable”:

The shelter workers believed that the telephone caller was believable, that she needed help, and that she needed to be removed from the YFZ Ranch…

Long — neatly kept in the dark by Doran — got the Judge to sign off on the warrant.  Against this backdrop, the very Judge who signed the warrant** intoned in her Order:

The Court concludes as a matter of Law that the evidence that Defendants presented at the Motion to Suppress Hearing failed to prove by a preponderance of the evidence that [Ranger Long's] Probable Cause Affidavits contained deliberate falsehoods and that they were not made with a reckless disregard for the truth.

While on the surface it seems a fair statement that Long himself uttered no deliberate falsehoods and did not himself act recklessly, his first affidavit certainly relies on the deliberate falsehoods and/or recklessness of others.  There is no question that the issuance of the first warrant precipitated the brutal, shameful traumatization of hundreds of innocent men, women and children.

Doran’s failures to (a) dig just a bit deeper and (b) inform Long and Walther of the Barlow contact were in my view at least reckless. Under such highly-charged circumstances — in which officials from the Sheriff to the legislators to the Governor had publicly voiced the desire to hound a religious minority out of the State — should not we as Americans demand that law enforcement authorities take more care to ensure that searches and seizures are based on fact, not defamatory fantasy?  Should not due process extend this far?

Perhaps more to the point, is there anyone in Texas who believes that Sheriff Doran would not have personally gone to considerable pains to notify Ranger Long of the Barlow contact and to follow up with the Mohave County authorities if the original caller had implicated his neighbor or a fellow member of whatever church he attends?

As the aggregate definition of “criminal activity” continues to expand in what was once called the “land of the free” — think “terrorism,” health care, child neglect, gun control, animal rights and CO2 emissions — it is vitally important that law enforcement be restricted by due process expanding at the same rate.  Otherwise, we will all be at the mercy — right, left and center — of “shelters,” sheriffs and TSA agents enabled by irate neighbors and hoax callers.

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ht: Brooke Adams, for posting Judge Walther’s order

*Because I do not yet have access to a transcript of the related suppression hearing, these comments are based on the contents of the Order itself and other evidence that has previously come to light.

**A question for another day is the wisdom of allowing judges, in this setting, to sit in judgment on the legality of warrants that they themselves have signed.  Whatever happened to the maxim, “No man should be a judge in his own case”?