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May 5, 2008
FLDS: A TEXAS-SIZED LEGAL DILEMMA
Houston Criminal Defense Attorney John T. Floyd Continues the Discussion about Government Raid at Yearning For Zion and the Potential Criminal Charges to be Filed Against FLDS Members
There have been a series of startling developments in what has become known as the “FLDS case.” This unprecedented child custody case began on March 29, 2008 when an anonymous female caller, identifying herself as a pregnant 16-year-old, reported twice to a hot line crisis center in Eldorado, Texas that she had been a victim of sexual and physical abuse at the local Yearning for Zion ranch by members of the Fundamentalist Church of Jesus Christ of Latter Day Saints. Those anonymous telephone calls triggered a massive military-styled police raid on the YFZ compound several days later resulting in mothers being separated from children and fathers accused of being “pedophiles” for allegedly marrying girls as young as thirteen.
Texas law enforcement officials now believe the anonymous caller was actually a 33-year-old African-American woman named Rozita Swinton arrested in Colorado Springs, Colorado on April 16. For whatever reason, Swinton has a morbid interest in the FLDS because law enforcement reportedly found a volume of evidence when they searched her Colorado residence linking her to telephone calls to the FLDS compound in Texas. Texas law enforcement and Child Protective Services authorities learned that the woman has a history of making anonymous telephone calls falsely reporting abuse to authorities.
In the calls to the Eldorado crisis center, the anonymous “16-year-old” told a terrified tale of being forced into a “spiritual” marriage to a man named Dale Barlow who frequently beat and raped her. The anonymous caller said she was forced into this marriage at age fourteen, had an eight-month-old child, and was pregnant again by Barlow.
In response to these anonymous calls, Texas law enforcement authorities and CPS secured an arrest warrant for Barlow and a search warrant for the YFZ ranch. Barlow was quickly located in Colorado City, Arizona where he lives. He was one of several FLDS member arrested in Mohave County, Arizona, in 2005 on a number of sex related offenses with minors. He pled guilty last year to one count of conspiring to have sexual contact with a minor and was placed on probation. Conditions of his probation require that he report to his probation officer twice a month, register as a sex offender, and secure a permit to travel before leaving the state of Arizona.
Arizona authorities quickly investigated Barlow and concluded that he had nothing to do with the YFZ ranch or any 16-year-old girl being kept there against her will. On May 2, 2008 the Texas Department of Public Safety finally rescinded the arrest warrant it had issued for Barlow with the following statement: “The arrest warrant for Dale Barlow is no longer active. [We] have no further information on this.”
It is now abundantly clear that the April 3, 2008 raid on the 1,700-acre YFZ ranch, the subsequent removal of 463 children (300 of whom are four years old or younger) from their parents, and the search and seizure of reported evidence of criminal wrongdoing at the FLDS compound were all based on two false anonymous telephone calls by a deranged individual.
What does this fact do to possible future criminal prosecutions in the case?
This column has reported previously that the general rule of law in the State of Texas is that an anonymous telephone call does not provide sufficient probable cause to conduct the kind of law enforcement raid and search as carried out at the FLDS compound. See: Amores v. State, 816 S.W.2d 407, 416 (Tex.Crim.App. 1991). A criminal court will examine the “totality of the circumstances” at the time the anonymous call was made – not what was subsequently discovered at the FLDS compound – to determine whether there was sufficient probable cause to stage the raid and conduct the search. See: Royas v. State, 797 S.W.2d 41, 43 (Tex.Crim.App. 1973).
Eldorado Mayor John Nikolauk said shortly after the YFZ ranch raid that it was widely suspected FLDS members practiced plural marriages, some with minor girls.
“We suspected it was going on, but without a complaint, you’re not going to get in there,” the mayor was quoted by the Houston Chronicle. “It’s a closed society. Everyone has empathy for the kids, that they’ll get the breaks a normal kid would have.”
The mayor and Eldorado residents had reason to be suspicious. In 2004 Warren Jeffs was placed on the FBI’s Ten Most Wanted List for a laundry list of sex offenses, including accessory to rape, sexual conduct with a minor, and incest. He remained a most wanted fugitive for two years until captured in Las Vegas in August 2006. In September 2007 Jeffs was convicted of two counts of being an accomplice to rape and sentenced to ten years to life in prison. He is currently sitting in the Mohave County Jail in Kingman, Arizona awaiting trial on other sex charges, including incest and sexual conduct with a minor.
So why didn’t the Texas Child Protective Services conduct a legitimate inquiry into suspected wrongdoing at the FLDS compound? Why did local and state law enforcement, along with CPS, wait until a local hot line crisis center received two anonymous calls from a disturbed individual to get a search warrant to act?
The practice (albeit religious) of polygamy is barred by laws prohibiting bigamy. These laws are considered “neutral” protecting the government’s interests to regulate social behavior over any claimed religious interests. See: Employment Div. v. Smith, 494 U.S. 872, 881-82 (1990). The Supreme Court has consistently rejected constitutional challenges to anti-bigamy legislation. See: Davis v. Beason, 133 U.S. 333, 347-47 (1890); Miles v. United States, 103 U.S. 304, 310 (1880); Reynolds v. United States, 98 U.S. 145, 166 (1879).
Tex. Family Code § 2.001 requires a man and woman entering into a “ceremonial marriage” to obtain a marriage license from the county clerk of any county in the state. Tex. Family Code § 2.002 requires that the man and woman appear before the county clerk to provide proof of identity and age before the license will issue.
It is safe to assume that no men and women from the FLDS compound applied to the county clerk for a marriage license. While the State of Texas recognizes a “legal common-law marriage,” a legal impediment to any lawful marriage is created when one party is married to someone else. See: Ballesteros v. Jones, 985 S.W.2d 485, 490 (Tex.App.-San Antonio 1998, pet. denied). See also: Dorre v. State, 2000 Tex.App. LEXIS 695 (Tex.App.-Dallas 2000).
Texas law, therefore, is quite clear: a lawful marriage, even in common-law, can exist only when a man and woman are singularly married. See: Phillips v. State, 701 S.W.2d 875, 893-94 (Tex.Crim.App. 1985). The State of Texas does not recognize plural “spiritual” marriages. See: Howard v. Howard, 459 S.W.2d 901, 904 (Tex.Civ.App.-Houston [14th Dist.] 1970, no writ).
Child Protective Services officials have recently released bolstering reports to the media that as many as 60 percent of the 14 to 17 year old girls taken into protective custody since the FLDS compound raid are pregnant or have had children. CPS believes these pregnancies were brought about by older FLDS members. Many of these teenage girls have refused to take pregnancy tests. Other CPS leaks to the media have revealed that the agency is “investigating” whether “young boys” were also sexually abused at the compound. These investigations were spawned by “discussions with the boys” and “journal entries.” Another suspicious CPS report said that 41 percent of the FLDS children had incurred “broken bones.” There was no indication by the CPS reports that these injuries occurred as the result of parental physical abuse.
CPS and law enforcement officials have taken DNA samples from FLDS members to determine who impregnated the teenage girls and fathered the children born to some of the teenage girls. There are a number of criminal sexual abuse charges the State could bring against older FLDS members who engaged in sexual activity with these underage girls.
An individual can be convicted of aggravated sexual assault if the person intentionally and knowingly engaged in sexual conduct with a child younger than fourteen years of age and who is not the spouse of the individual. See: Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii) (Vernon Supp. 2006). See also: Johnson v. State, 2007 Tex.App. LEXIS 128 (Tex.App.-Dallas 2007).
An individual can be convicted of sexual assault if the person intentionally or knowingly engages in sexual conduct with a child. See: Tex. Penal Code Ann. § 22.011(a)(2)(A) (Vernon 2006). A “child” under this statute is a person younger than 17 years of age who is not the spouse of the individual. Id., § 22.011(c)(1). See also: Johnson v. State, supra.
An individual can be convicted of indecency with a child if the person engages in any sexual contact with a child or causes the child to engage in sexual contact, and the child is younger than 17 years of age and not the individual’s spouse. See: Tex. Penal Code Ann. § 21.11(a)(1) (Vernon 2003). Sexual contact is defined as any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child if the act is committed with the intent to arouse or gratify the sexual desire of any person. Id., 21.11(c)(1). See also: Johnson v. State, supra.
The alleged sexual misconduct in the FLDS case occurred over a period of years involving numerous instances of abuse. How will the state ultimately know how to charge any of the older FLDS members with misconduct involving underage girls or boys that took place during this period?
The State is not bound by any offense date alleged in an indictment. The State may prove any date--before, on, or after the date alleged in the indictment--as long as the date proved is before the indictment was presented and within the limitations period. See: Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997) ["on or about" language in indictment authorizes State to prove date other than date alleged in indictment as long as date is before indictment presented and within limitations period]. See also: Garcia v. State, 981 S.W.2d 683, 685-96 (Tex.Crim.App. 1998)[ (indictment does not have to specify precise date when offense occurred because (1) time not ordinarily material element of offense; (2) primary purpose of specifying date to show offense not barred by limitations, not to give defendant notice of date of offense; and (3) may be impossible for State to know exactly when offense occurred]. The State knows the FLDS settled in Eldorado in late 2003. December 31, 2003, for example, could be cited as the date in any indictment.
It should be pointed out that multiple sexual assaults committed over a period of time against the same victim constitutes separate offenses under Texas law, subjecting a defendant to separate prosecution and punishment for each offense. See: Vick v. State, 991 S.W.2d 830, 832-33 (Tex. Crim. App. 1999). The district attorney can elect to indict these multiple offenses in separate counts under one indictment. Id., at 834.
Texas appellate courts have strongly recognized that the state’s sexual assault statutes involving a child serve the state’s legitimate interest in protecting children. See: Scott v. State, 36 S.W.3d 240 (Tex.App.-Houston [1st Dist.] 2001).
It is probably safe to assume that results from the DNA testing will establish that some of the older FLDS members impregnated underage girls at the YFZ ranch. Marriage is a defense in these cases. However, since Texas law does not recognize FLDS “spiritual” marriages, any marriage to a minor outside the provisions of the Texas Family Code would not constitute a defense. For example, Tex. Family Code § 2.102 requires any person 16 years of age or older but under the age 18 applying for a marriage license to provide the country clerk with proof of parental consent. Therefore, there could not have been any lawful marriages between an adult and a minor at the FLDS compound.
The State can make its case of unlawful sexual abuse based solely on the victim’s testimony and DNA evidence. Whether or not the State will be allowed to use evidence obtained through the search warrant issued on the basis of the false information provided by the anonymous telephone calls is the subject of serious legal debate. Writing in a May 2, 2008 Findlaw column entitled “The Rescue of Children from the FLDS Compound in Texas: “Why the Arguments Claiming Due Process Violations and Religious Freedom Infringement Have No Merit,” Marci Hamilton said that the anonymous caller was not the issue but whether the government engaged in misconduct in getting the warrant. The Princeton University professor explained:
“There are now allegations that the calls to the authorities spurring the raid were placed by a woman who was not within the YFZ compound. Even if proven, however, this claim would not affect the validity of the authorities' actions. Absent clear evidence that the state fabricated the call or misled the judge who granted the initial search warrant, neither of which seems remotely plausible, the entry cannot be faulted on constitutional grounds. Once the authorities were inside, the evidence of criminal behavior was so plainly apparent that further investigation was more than warranted.
“No self-respecting child protective agency could have departed from that compound without taking all of the children away as well. The authorities revealed this week that 31 out of the 53 underage YFZ girls have been pregnant and/or are pregnant now. Imminent risk of harm, the legal standard that bound the authorities, was apparent, and indeed, a decision to leave the children in that setting would have opened up the state to liability. The key point here is that children were being abused, and were very likely to be abused in the future, and, worse, this was occurring in an atmosphere where the adults seemed incapable of apprehending the depth of the criminal behavior they were committing.
“It is just as though the state had entered a drug den on the basis of reports about one child's abuse, and discovered a bevy of children in a position likely to lead to neglect and mistreatment. In such a hypothetical, surely no one would contest the appropriateness of removing children from that setting. The religious cloak here does not forestall the proper operation of the child protective authorities.
“Despite the large number of children who were taken, what happened in Eldorado is really no different than any other situation where the state investigates alleged abuse, substantiates a risk of harm, and takes action to protect all those children who might be subject to such harm. Arguments that children should not be separated from their mothers simply have no purchase in a circumstance where it is apparent that the mothers are incapable or unwilling to protect their children from sexual or other abuse.
“Before criticizing the Texas authorities who have witnessed the operation of the FLDS firsthand, one must stop to think with a clear head about what was going on in this compound. This is a conspiracy of adults to commit systematic child sex abuse, where the men and the women force their girls to be "married" to much older men in order to have their many children, and where they groom their boys to be the next generation of abusers, and then abandon some of their own boys in order to keep the numbers favorable for the abusing men.”
Professor Hamilton makes a compelling argument, but the question of governmental misconduct and bad faith are inevitable. Before the anonymous telephone calls, authorities had ample evidence of possible criminal wrongdoing warranting, at a minimum, some kind of CPS intervention. None other than the mayor of Eldorado believed that there was criminal wrongdoing taking place at the YFZ ranch against children. Whatever her motives, the anonymous caller may have felt compelled to make the false reports because CPS had done absolutely nothing before the raid to “protect the children.” The official failure to act before the anonymous calls and the eventual decision to act based solely on those calls creates, at a minimum, an appearance of governmental misconduct.
Whatever the final outcome of this matter, the government and CPS have made a debacle of this investigation. Reliance on the anonymous caller was absurd and should provide fertile ground for suppression of much of the evidence seized from the YFZ compound. CPS should have handled this complaint like any other. They should have investigated the complaint thoroughly, made civil attempts to interview parents and children and conducted a targeted investigation. A military style raid followed by a massive and traumatic kidnapping was surely not in the best interests of the children. If CPS suspected particular men were abusing children, they should have sought their voluntary removal from the property until the CPS investigation was complete. It is obvious that prejudice toward the secretive society on the YFZ compound caused the local government to react prematurely and in doing so created potentially detrimental legal obstacles to any future prosecutions in this case. At a minimum, the government violated the spirit of the constitutions of both the State of Texas and the United States of America and an exhaustive contest into its actions must be made by the lawyers representing the individuals now being persecuted by its agents.
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