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April 22, 2008
FLDS: THE VICTIM THAT WASN’T
Houston Criminal Defense Attorney John Floyd Discusses Developments in FLDS Case; Anonymous Hoax Caller Used to Support Warrant Illustrates Why Probable Cause Requires More Evidence
The largest child custody case in Texas began with at least two telephone calls on March 29, 2008 from a terrified voice claiming to be a victim of sexual and physical abuse at the Yearning for Zion ranch by members of the Fundamentalist Church of Jesus Christ of Latter Day Saints in Eldorado, Texas. The calls made to a local hot line crisis center triggered a massive military-styled police raid on the YFZ compound several days later that resulted in mothers being separated from children and fathers accused of being “pedophiles” for allegedly marrying girls as young as thirteen.
The rest of the nation has looked upon the FLDS raid and its staggering outcome with a mixture of outrage and horror against both the religious fundamentalists who practice polygamy, often with teenage wives, and Texas law enforcement and child protection services officials who have approached this case with a “police state” mentality. In the wake of the raid, some 437 children (more than 300 of whom are four years old or less) were snatched from their grieving mothers and now face the very real prospect of being forced into that too-often “horrible system” known as “foster care.”
Whatever one’s view may be about religious fundamentalists, including those like FLDS who practice polygamy, the practice of teenage marriage is a Texas institution. The lawful age of marriage in Texas today is 16, and until 2005, it was 14. The Texas Rangers and the Texas’ Child Protection Services were not in Austin lobbying against these “teenage” bride laws before their self-righteous military-style assault on the YFZ compound.
After hearing evidence for several days, San Angelo state district judge Barbara Walther ruled on April 18 that Child Protective Services had presented enough evidence to convince the court that the seized children would be at the “risk of abuse” if they were returned to the YFZ ranch with their parents. Walther ordered the children held into state custody until each child could be given an individual hearing by June 5, 2008.
“We are very, very pleased with the judge’s decision,” Marleigh Meisner, a CPS spokesperson, commented after the ruling.
The ruling was a devastating blow to the parents of the children who now face the real prospect of losing their children to foster care. Dr. Bruce Perry, a prominent Houston psychologist and the State’s “star witness” at the hearings, told the court that only “post-pubescent” girls would face what the Houston Chronicle called the “danger of being sexually abused in a culture that believes in spiritual marriages between underage girls and older men” while younger children might be subject to what Dr. Perry called “potential emotional abuse.”
The Texas Legislature permits the marriage of “post-pubescent” teenage girls and Child Protective Services has a long, sordid history of ignoring, even excusing, the “potential emotional abuse” of hundreds of thousands of children living in dysfunctional Texas family environments – not to mention the thousands who are sexually and physically abused on a daily basis in those environments often with the knowledge of CPS workers.
The Texas FLDS case is really about society’s inherent fear and distrust of what it perceives as a “cult religion” whose practice of polygamy offends Christian doctrine. It is not about “protecting” teenaged girls from “marriage” to “older men.” There are thousands of Texas teenaged mothers who have been impregnated by “older men” and neither CPS nor the Texas Rangers have launched military-style police raids in mostly impoverished communities to find the “older men” who impregnated them. Scores of teenaged mothers are throwing their babies into dumpsters or trying to flush them down toilets while CPS wrings its hands in despair and refuses to engage in the “cultural war” necessary to stop it.
Perhaps more significant than religious and cultural debate spawned by the raid on the YFZ ranch is the legal basis put forth for the raid: the mysterious anonymous caller. As it turns out, the caller may not be so “anonymous.” The Texas Rangers now believe the caller may be Rozita Swinton, a 33-year-old black woman arrested in Colorado Springs, Colorado on April 16. The Texas Department of Public Safety said the Rangers are “actively pursuing Swinton as a person of interest regarding telephone calls to a crisis center hotline in San Angelo.”
Swinton apparently has some psychological problems when it comes to reporting abuse. She was arrested two months ago in Colorado Springs for falsely reporting abuse to authorities. When Colorado Springs authorities searched Swinton’s residence in connection with her latest arrest, they found evidence linking her to telephone calls to FLDS compounds in both Texas and Arizona.
Apparently concerned about adverse public reaction, the Texas Rangers sought and secured a court order to seal the records in the latest Swinton case.
Linda Walker, a former FLDS member and founder of the Phoenix-based Child Protection Project, recorded calls to the group at the request of the Texas Rangers. Walker and CPP Executive Director Flora Jessop expressed amazement to the media when they learned the caller was Swinton.
“In her little baby voice, she said, ‘If you recuse me, and I get out of here, do you think the black people will hurt me?’” Walker was quoted by the Chronicle. “She had done her homework. She knew it was a racist cult. We know that these kids are very frightened of black people.”
There is no more evidence that the FLDS is a “racist cult” than is the Trinity United Church of Christ formerly pastored by the infamous Rev. Jeremiah A. Wright. The fact that the Chicago-based predominantly African-American United Church of Christ subscribes to a set of “Black Values” that promote “black culture” as a religious doctrine does not make it a “racist cult” like Walker labeled the FLDS.
“The Texas Rangers told us she was obsessed with the FLDS,” Walker continued. “They confiscated tons of material on the FLDS [in the search of Swinton’s home]. She even gave real addresses and real names of FLDS people.”
Both Walker and Jessop stopped short of saying Swinton was the “anonymous caller” who triggered the FLDS raid in Texas.
“Regardless of who made these calls, the system worked exactly as it was supposed to work,” said Jessop, a former FLDS member whose cousin runs the YFZ ranch in Eldorado. “A call came into the hot line from a little girl who said she was being brutalized. They turned this information over to Child Protective Services and to proper authorities. These authorities went in and did their job. They found systematic abuse in there, which is what we have been saying for years.”
Jessop’s statement flies in the face of the evidence produced at the court hearings. There was no judicial finding of “systematic abuse” nor has CPS developed evidence of “systematic abuse.” The court concluded only that the children faced the “risk of abuse” if they remained in the custody of their parents at the compound – and Dr. Perry confined this “potential” abuse to only post-pubescent girls. The famed doctor also added that these girls are “likely to be more damaged by being placed into foster care [than] returning to their parents.”
In a nutshell, the State of Texas will do more psychological damage to them in “foster care” than they would ever incur in “spiritual marriage” at the YFZ compound, despite the dire claims of “systematic abuse” by former FLDS members like Walker and Jessop and CPS social workers.
In a previous column (April 13, 2008), the John T. Floyd Law Firm pointed out that the Texas Court of Criminal Appeals generally requires more than “an anonymous phone call” to establish probable cause to conduct the kind of police raid launched against the YFZ ranch. See: Amores v. State, 816 S.W.2d 407, 416 (Tex.Crim.App. 1991).
This position is supported by Houston attorney Charles Portz who recently told the Chronicle an “anonymous call” is not sufficient “probable cause.”
“What other proof do they have?” he asked.
Jim Harrington, the head of the Texas Civil Rights Project, agreed with Portz.
“The officials have a duty to investigate and make sure that there’s a reasonableness and the credibility to that [anonymous] call,” he told the Chronicle. “The general rule is that you cannot have a warrant based solely on an anonymous call.”
But at least one legal scholar disagrees with the issue that an anonymous call cannot establish probable cause. Sandra Carnahan, a criminal procedure teacher at Houston’s South Texas College of law, told the Chronicle: “[An anonymous call that turns out to be a hoax] is completely after the fact. The issue will be whether the (search) warrant is valid on its face.”
Jack Sampson, a professor at the University of Texas Law School’s Children Rights Clinic, informed the Chronicle that CPS should have investigated the anonymous caller’s claims of abuse as a civil matter.
“We don’t know who the father is,” Sampson said. “But we do know that if the father is more than two years older (than the underage mother), that there’s been a crime.”
CPS spokesman Darrell Azar dismissed legal concerns about whether the original calls turns out to be a hoax. “What matters is what we found there,” Azar told the Chronicle. “We found a number of children as young as 13 who were being married and were giving birth to children and who were sexually abused and the judge agreed.”
A criminal district court judge will examine the “anonymous call” by a different standard than the one pronounced by Azar or Carnahan. The issue will be examined beyond the narrow standard of whether the search warrant was valid on its face. A criminal court will examine the “totality of the circumstances” at the time the anonymous call was made – not by what was subsequently discovered at the FLDS compound. See: Royas v. State, 797 S.W.2d 41, 43 (Tex.Crim.App. 1973)
The evidence in the public record make two things quite clear about the FLDS case: law enforcement approached the YFZ compound raid as a “military” operation and former FLDS members working with CPS officials have a secret agenda to bring down the FLDS based on social views that have nothing to do with legitimate law enforcement interests.
One FLDS mother asked the poignant question: “Does CPS have such power that they can come in and take your children?”
In an April 17 article, the Chronicle reported that “the move to take so many children at once coupled with the fact that the 16-year-old [anonymous caller] has neither revealed herself or surfaced anywhere, has this [FLDS] community of roughly 200 adults upset.”
“Every mother in America should be concerned,” one FLDS mother said.
The FLDS raid has indeed raised a litany of social concerns in addition to significant legal questions. For example, urban law enforcement officials know that certain areas in a city, such as Los Angeles or Philadelphia, are controlled by violent street gangs. These gangs are involved in murders, narcotics trafficking, extortion, neighborhood intimidation, and violent initiation rituals that require new members as young as ten to kill. The social damage caused by these street gangs, including the sexual abuse and exploitation of young teenage girls, has not produced sufficient law enforcement concern to launch military-style raids on their “compounds” or to collect the DNA of older gang members to determine which ones have impregnated underage teenage girls.
This website does not endorse the right of the FLDS to practice polygamy or the practice of its older members “spiritually” marrying young girls. But three out of four children removed from the YFZ ranch were four years of age or younger. The State of Texas has taken these children from their parents and is preparing to place them in “foster homes” with people who are not their biological parents. This kind of sweeping police power cannot be endorsed by reasonable, family-conscious people. The powers of the State, including its judiciary, are being used to wage a “social experiment” by CPS social workers spurred on by former FLDS members.
There are laws to punish those who engage in polygamy or engage in sexual relationships with underage girls (no matter if sanctioned by “spiritual” marriage). But is not a crime to be a member of the Texas FLDS or to worship its religious tenets anymore than it’s a crime for the Trinity United Church of Jesus Christ in Chicago to worship its “black values” or Protestants in Mississippi to believe that the Catholic Church is evil and the Pope a pagan. The First Amendment’s freedom of religion clause protects the right of worship in America – or at least it did until Texas’ Child Protection Services convinced a court that innocent children would be a risk because their parents are FLDS members.
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