Three additional indictments were reportedly handed down today in San Angelo, Texas, in connection with the FLDS case. What do they mean? That depends. Betcha haven’t heard that one before!
While I’m not the first, let me join the chorus in saying that there’s no way that Judge Walther will exclude evidence gathered pursuant to the warrants she signed to approve the April raid on the YFZ ranch. Walther has too much of her own credibility invested in an unhappy outcome for the FLDS to exclude — at least on grounds related to probable cause or scope of the warrants — any significant evidence that prosecutors drag into court. That means that the results in this case will rest entirely on the jury and the appellate courts.
Given the relatively small size of San Angelo and the ubiquity of the media coverage of the case, it’s hard to imagine how San Angelo could empanel a truly impartial jury. But truly impartial and legally impartial are often not the same thing. My sense — open to correction by locals — is that there are significant numbers of potential jurors in Schleicher County who are already strongly for and against CPS in the case. Probably very few in the jury pool have no opinion about how the case should end.
In some communities not all that far from Schleicher County, juries convict always just as a matter of tradition. Last week, I spoke with a defense attorney from Louisiana who told me that in his community, there have been only two acquittals in the past twenty years and those were true flukes. The people there just take as truth everything prosecutors say no matter how ridiculous or internally inconsistent.
I don’t know what the acquittal rate is in Schleicher County. And given the hotly divisive nature of these prosecutions, it’s not clear that historical trends will hold here. Nevertheless, I think those under indictment should be building their cases for the appellate courts. At this stage, this means focusing, as Rod Parker commented yesterday, on two key issues, the legality of the search warrants and jurisdiction:
Rod Parker, an attorney for the FLDS, said Wednesday that his side has two fronts to fight: suppress the evidence by proving the search was illegal; and raise jurisdictional questions that would make prosecutors prove that if there was illegal activity, it took place in Texas.
Worth noting here is that Parker (who may not represent any of the individual criminal defendants, for all I know) seems to be conceding big-picture, document authentication issues. That is to say, it doesn’t appear that the FLDS defendants have a coordinated strategy to challenge the authenticity of the documents confiscated in the raid. I’m guessing that they will enter authenticity and privilege objections on a spot basis.
But the money game revolves around probable cause, scope of the warrants, and the situs of alleged illegal acts. In addition, as Bob has commented on the blog, the defendants would be wise to get into the trial record facts supporting constitutional violations and malicious prosecution. I said before that the case can be made that the Texas legislature crafted their bigamy and age-of-consent laws for the specific purpose of snaring one religious group — the FLDS. And that would arguably invalidate these statutes as unconstitutional.
Readers who would like to educate themselves on the question of whether the warrants in this case were overbroad might start by reading Wikipedia’s commentary on the U.S. Supreme Court’s decision in Stanford v. Texas. You can read the full opinion at Findlaw. And it’s just a start. ht: TBM
{ 25 comments… read them below or add one }
rikitikitavi1 08.21.08 at 9:57 pm
Rod Parker is not licensed in Texas, so he is not representing anyone in the criminal cases here. Gerry Goldstein is, however. Don’t forget about transfers of venue in the criminal cases as well.
kbp 08.21.08 at 11:49 pm
Being one that has not had to borrow funds for any investments made within the last few years, imagine how badly my day started when the good ol’ banker told me of all the BS they need to finance speculative properties now. More new rules & regulations.
This banker then told me of his recent interview / interrogation by the FDIC inspector. He was asked to provide HIS list of all suspicious transactions that did NOT require being reported.
Imagine that, a list of those guilty because they ALMOST were suspicious.
I immediately wondered if TBM or a sibling of his was an inspector for the FDIC!
That crappy day ended well when I saw a hat tip for TBM on this blog.
I LMAO!!
My day was not so bad after all, as I realized things COULD be worse for me!
Thomas Forguson 08.22.08 at 1:33 am
It made me absolutly sick to read about the CPS taking Barbara’s daughter. NO wonder they ducked the media.
Doran Williams 08.22.08 at 7:40 am
This is only slightly off-topic.
“State settles lawsuit over closure of Bastrop County camp.” From the August 13, 2008 Austin American-Statesman, at http://www.statesman.com.
The operator of the Camp sued Texas DFPS in federal court. The State settled after trial had started, but before the case was given to the jury to decide. Expect something of the same with FLDS/YFZ.
Doran Williams 08.22.08 at 7:53 am
Maury Maverick, Stanford’s lawyer, was a San Antonio lawyer, one of Texas’ best known liberals, and a fine human being. If someone has not written his biography, then someone needs to get to work on it.
Melvin L. Wulf was an ACLU lawyer, and at one time, the ACLU legal director. He helped when liberals in Texas were suing the Texas Rangers because of their behavior toward Mexican Farm Workers Union members in the Farm Workers’ strike in the lower Rio Grand Valley of Texas. I was honored to have met him and worked with him.
Strange, in a way, how Eastern liberals, such as Wulf and Bill Kuntsler, and Texas liberals, like Maury Maverick, had so much in common and a real affinity for doing the same things.
Is it txbm’ opinion that STANFORD is still the law on general warrants?
kbp 08.22.08 at 8:23 am
From an article related to that Doran commented on;
Ex-camp director gets $300,000 settlement from the state
“….The boy who had made the abuse allegations testified this week that he had told state investigators that the allegations were untrue but that investigators didn’t believe him”
Judging by the settlement size, for conduct that shut down a “camp near Smithville cared for more than 500 abused and troubled adolescent boys”, I’d say the case was not real strong. Keep tossing in “good faith” in efforts to explain away any action that may be corrupt and the case is often weak.
txmom77 08.22.08 at 9:03 am
Why are Texas authorities being so secretive about the indictments this time around? Abbot held a huge press conference last time and this time nothing.
marttie 08.22.08 at 9:14 am
In attemtping to read a recent comment by TBM I accidently clicked on his name. At first I thought, whats this? and read with an open heart subconsciously thinking I was still on I Percieve. I soon realized something was wrong. AHHHHH go back, go back!! I believe that I have been permanently damaged. To be fair some of what was said was true. All Pertaining to law and what it upolds is true. TBM sounds like a very good lawyer. I mean that as a compliment.
To TBM: Look in to some of the lawsuits that resulted from the 1953 raid and before. Vergal Jessop was sent to jail for “hauling a truck load of furniture over the state line” Which belonged to his LEGAL wife. They lived in the twin cities which the border goes right throughthe middle You have to cross the state line to get to the Store!! His Parol officer allowed him to cross the state line at will after he showed him a map of the city! That’s about all I can remember on the subject.
TxBluesMan 08.22.08 at 9:28 am
Stanford v. Texas, 379 U.S. 476 (1965) is still good case law, although it has been distinguished in several areas.
First, Stanford dealt with the search and seizure of papers, etc, of a political party (the Communist Party) and the only crime dealt with the adherence to the philosophies of that party.
Second, this case particularized the type of items to be seized, in accordance with 5th Circuit case law, which stated:
“In circumstances where [**6] detailed particularity is impossible, generic language is permissible if it particularizes the types of items to be seized.” United States v. Kimbrough, 69 F.3d 723 (5th Cir. Tex. 1995), reh’g denied, distinguishing Stanford.
The language of the current warrants follow the language of the warrant in Kimbrough, rather than the language of the warrant in Stanford, so they are not overly broad or general in nature.
In addition, the 5th Circuit has held:
“The materials specified in the warrant were all directly related to the unlawful activity of the appellants. The warrant clearly identified the documents subject to seizure, all of which were financial records related to tax fraud. The items actually seized, such as the false refund claims and bogus W-2 Forms, fell squarely within the scope of the warrant. Unlike Stanford, the warrant in the instant case was not too general.” United States v. Cantu, 774 F.2d 1305 (5th Cir. Tex. 1985).
Again, like Cantu, the language of the warrant was looking for evidence of specific crimes, to wit: Bigamy and Sexual Assault of a Child, based upon the observations of the officers, and limited the search that could reasonably be expected to provide evidence of those crimes. Stanford, on the other hand was a fishing expedition, that had no limits on what was to be seized. The present case is clearly distinguishable from Stanford.
So, while Stanford is still good law on general warrants, it does not apply to the present case…
Kurt, surely you knew that I would be prepared for that argument…
TxBluesMan 08.22.08 at 9:38 am
****limited the search to those items that could****
Joey 08.22.08 at 10:30 am
If you’ll notice that “bigamy” is thrown in to the affitdavit for the search as more of an after thought. It would be like saying to a judge, we know there’s statutory rape going on in Colorado City, give us a warrant to search the whole city for evidence of that, and for bigamy as well (because we know that if some houses don’t engage in stat rape, they certainly do in bigamy). Quite a farce wouldn’t you say? I’d say the above is completely contrary to the Fourth Amendment requirements related to specificity.
TxBluesMan 08.22.08 at 10:52 am
Joey,
Please provide some basis for claiming a general warrant - the warrant in the current case alleged specific crimes and limited the search to specific items, at a single, specifically identified property.
jj - a desert critter 08.22.08 at 12:03 pm
TxBluesMan
And the scope of everything seized on that property is going to prove the two individuals claimed to have done the dirty work was the truth? And justify taking ALL the children?
TxBluesMan 08.22.08 at 2:08 pm
JJ,
The warrants were not the basis for the emergency removal of the children and they were not seized on that basis, but under the FC, authorizing removal without an order.
Thomas Forguson 08.22.08 at 7:40 pm
Three charges of bigamy. This is underwhelming.
TxBluesMan 08.22.08 at 7:51 pm
Thomas,
Several of those charged with Bigamy are facing life in prison due to the charge…
Not exactly what I’d call underwhelming…
Thomas Forguson 08.22.08 at 9:28 pm
If it is because of bigamy, this is truely an atrocity . The Texas authorities and our compliant media implied for several days that the FLDS faced a massive wave of indictments. You must be disappointed. You told Kurt you has to use a pseudonym. You can call yourself Clyde Cadillihopper for all I care.
TxBluesMan 08.22.08 at 9:41 pm
Thomas, I don’t have to, I choose to use a pseudonym.
And why would I be disappointed? The Grand Jury is still in session…
txmom77 08.22.08 at 9:51 pm
Tx:
You know and I know they aren’t going to get life in prison. Give it up. Everyone in the free world nows that. Murders and Rapist don’t get life. A man sexually abused young little girls for years (who were like 7) in my neck of the woods, and he got 40 years for that. Please just give up the life in prison crap.
CurioiusTexan 08.23.08 at 3:16 am
CPS Employee Handbook
http://www.dfps.state.tx.us/Handbooks/CPS/Files/CPS_pg_3150.asp#CPS_3152_1
3152.1 Transferring From Family-Based Safety Services to Substitute Care
CPS June 2008
Removing a Child From the Home
CPS staff and the family examine together the issues of and alternatives to removing a child from the home, whenever possible.
CPS staff explore every reasonable alternative for keeping the child safe from abuse and neglect in the home. The child is removed only when there is no other reasonable way to protect the child from abuse or neglect in the immediate or near future.
When family-based safety services are provided and the family is still unable to protect a child from abuse or neglect in the immediate or near future, CPS staff initiate an emergency or court-ordered removal of the child from the home. Substitute-care services are then provided to the child and family.
DFPS Rules, 40 TAC §700.705(b)
Steps for Documenting Removal
The worker completes a safety evaluation and risk assessment before documenting the removal information in the IMPACT system.
On the day the child is removed or placed, or by 7 p.m. the next calendar day, the worker documents in IMPACT information on the child’s:
· removal;
· initial and subsequent placements; and
· medical consenter.
Entering the information in IMPACT automatically opens subcare stages for the family and child. For details on entering removal and placement information, see 6317 Make the Placement.
For details on entering medical consenter information, see 6521.16 Documenting in IMPACT.
The subcare stages must be reassigned in IMPACT and the FBSS stage closed, as explained in 3152 Closing a Stage and Transferring a Case.
The FBSS worker completes Form 2630 Removal Checklist and Form 6589 Post-Removal Staffing.
The case must be transferred to conservatorship 14 days after the removal.
For information about court-ordered removals and substitute-care placements, see:
5200 Court-Related Services for Children at Risk of Abuse or Neglect
6300 Placement Actions in Substitute Care
5221 Types of Involuntary Removal
CPS 98-1
Management Policy
An involuntary removal is the removal of a child from his parents or caretaker without the parents’ or caretaker’s consent. The Texas Family Code gives DFPS the authority to carry out three types of involuntary removal:
· a court-ordered removal after a full adversary hearing,
· a court-ordered removal after an emergency ex parte hearing, and
· an emergency removal without a court order.
CPS must give preference to those types of removal in the order they are listed. In other words, to the extent consistent with the child’s need for protection, CPS must pursue the type of removal that provides the parents with the greatest opportunity to be heard in court.
Approval
A CPS supervisor must approve the decision to request a court order to remove a child from his home. If no supervisor is available, a program director or his designee must approve the decision.
Note: When an emergency removal without a court order is necessary to ensure a child’s safety, the worker must not postpone the removal in order to secure supervisory approval for requesting a court order.
5222 Legal Bases for Involuntary Removals
CPS March 1, 2006
Alternatives to removing a child from the home should always be considered, as long as the alternatives provide sufficient protection in a timely manner. For example even though a child may have been sexually abused, there may be a protective adult who can be included in developing a safety plan for the child if the court will issue a temporary restraining order to keep the perpetrator from coming into contact with the child.
[That's easy... the "perpetrator" is already incarcerated.]
Appropriate Circumstances for Removing a Child:
When a CPS worker removes a child from a home without the parents’ consent, the removal must have one of the following legal bases. See also:
5210 Protective Court Orders
5211 Ex Parte Temporary Protective Orders
5212 Removal of the Alleged Perpetrator From the Home
Court-Ordered Removal After an Adversary Hearing
After securing a court order at the conclusion of a full adversary hearing, CPS removes the child from the home. See:
Texas Family Code Chapters 153 and 161
5230 Court-Ordered Removal After a Full Adversary Hearing
Emergency Court-Ordered Removal
After securing an emergency court order at the conclusion of an ex parte emergency hearing, CPS removes the child from the home. See:
Texas Family Code §262.102
5240 Court-Ordered Removal after an Emergency Ex Parte Hearing
Emergency Removal
CPS removes the child from the home without parental consent and without a written court order only when:
· there is no time to obtain an emergency court order as specified above in “Emergency Court-Ordered Removal,” and
· at least one of the following circumstances exists:
· There is an immediate danger to the physical health or safety of the child.
[What was the immediate danger to the kids in the first raid?]
· The child has been a victim of sexual abuse.
· The parent or person who has possession of the child uses a controlled substance as defined by Chapter 481 of the Health and Safety Code, and the use poses an immediate danger to the child’s physical health or safety.
OR
· The parent or person in possession of the child has allowed the child to remain in a place where methamphetamine has been manufactured. See:
Texas Family Code §262.104(1)-(5)(b)
5252 Emergency Removal From the Child’s Parents Without a Court Order
TxBluesMan 08.23.08 at 12:00 pm
CuriousTexan,
Exactly what is your point?
Emergency removal is not what the latest action was - it was under an entirely different section of the FC, and doesn’t have the same requirements.
jj - a desert critter 08.23.08 at 12:27 pm
TxBluesMan { 08.22.08 at 2:08 pm } JJ,
The warrants were not the basis for the emergency removal of the children and they were not seized on that basis, but under the FC, authorizing removal without an order.
Doesn’t that all by itself solidify that this was really a “fishing expidition”?
TxBluesMan 08.23.08 at 8:24 pm
Nope.
The warrants were to find evidence of crimes (i.e., indictments).
The emergency removal is a civil matter.
jj 08.24.08 at 12:12 pm
Extremely UNcivil. Changing the definition of bigamy to remove the deceit should put at least two thirds of the state in prison for their deceit. I know as well as you that these are EXTREMELY convoluted laws. That does not justify all this! You can just argue all day long on some “other” reference where this just might fit. That will not bring justice! There is no reprehensable view that targets religion. The dishonesty in this will bite everyone that walks that line.
Everything, not withstanding, has a direct influence.
The Gospel is a gospel of restoration. You and I will be restored to the place we create in our heart in our intent for others. Our blessings or cursings never depend on someone else! When we create to; or impose on others our own will, we are overriding the laws that the Great God of this earth (to whom we will all have to account) gave us live by. The words of the Holy Bible are just as true today as they were before they were written. If we are removing the right to live by Gods Law, through man’s law, we are creating evil. That needs to be turned around so people can LIVE!
Live evil = live godly without evil.
jj 08.24.08 at 12:15 pm
the greater and less than signs did not go through between Live and evil.