By: Houston Criminal Defense Attorney John Floyd
and Mr. Billy Sinclair


The grand jury is a powerful weapon in the hands of state and federal prosecutors. An old legal adage says that a prosecutor can get a grand jury to indict a ham sandwich if it the “target” of a criminal investigation.


Since state and local law enforcement authorities stormed Yearning for Zion Ranch owned by the Fundamentalist Church of Jesus Christ of Latter Day Saints in Eldorado, Texas, last April and unlawfully seized more than 450 children from their parents, the leaders and members of the church have been “targets” for grand jury indictment.


The grand jury hammer finally fell on July 22, 2008 on five members of what the Houston Chronicle called “a West Texas polygamist sect” who were indicted on sexual assault of a child charges and a sixth member for failing to report child abuse. The “polygamist sect” designation in the mainstream media, fueled by the arrest and conviction last year of FLDS leader Warren Jeffs in Nevada on two counts of being an accomplice to rape, has lent unwarranted credence to the efforts of Texas Attorney General Greg Abbott to indict and prosecute adult FLDS male members for what has been described as imposing “forced spiritual marriage” on underage FLDS girls.


“There will be an aggressive effort to apprehend them,” Abbott was quoted by the Chronicle as saying shortly after the grand jury indictments were announced.


The only named person indicted was Warren Jeffs because, as Abbott said, he is already in custody. The Attorney General said the names of the other indicted five FLDS members would not be released until they were arrested. The only information released was that one of the five was charged with bigamy while another was charged with a misdemeanor offense of failure to report child abuse.


The FLDS church gained national notoriety in 2004 when Jeffs, the church’s prophet and president, was placed on the FBI’s “Ten Most Wanted” list for allegedly forcing young girls to marry older men as part of the church’s accepted “spiritual marriages.” At the time the FLDS church was headquartered in the twin cities of Hildate, Utah, and Colorado City, Arizona. After Jeffs became a “most wanted” fugitive, the FLDS purchased the 1,700-acre Yearning for Zion ranch in Eldorado and relocated many of its members there.


Eldorado residents were initially suspicious as the FLDS erected more than 35 buildings and constructed a massive white temple for worship. Several hundred people lived in the sprawling religious community, including more than 450 children. Eventually the local townspeople grew accustomed to the religious group whose members rarely ventured into Eldorado, according to Mayor John Nikolauk. The mayor said it was widely suspected that 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 Chronicle. “It’s a closed society. Everyone has empathy for the kids, that they’ll get the breaks a normal kid would have.”

While the church has acknowledged that spiritual marriages between underage girls and men have occurred, the unions are infrequent and are at the girl’s choice. The FLDS has said that no such marriages have occurred since Warren Jeffs’ conviction because only the church’s prophet can preside over such marriages.


The “FLDS 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 that she had been a victim of sexual and physical abuse at the YFZ ranch by members of the church. Those anonymous telephone calls triggered a massive military-styled police raid on the YFZ compound several days later resulting in tragic images and stories 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.


The anonymous telephone calls were a fraud, and the ensuing law enforcement raid on the YFZ ranch was a fraud, and it appears that the latest grand jury indictments are nothing more than a political effort to perpetuate the law enforcement fraud that launched this case. Immediately after the raid Texas Child Protective Services started leaking reports to the media that painted a public picture of the YFZ Ranch as a horrific place of polygamy, sexual and physical abuse of children, and forced “spiritual” marriages between older FLDS men and underage girls. These “abuse” images became part of a hysterical national political and social debate about what should be done with the “FLDS sect,” particularly with respect to the alleged but unfounded sexual and physical abuse of the church’s children.


This hysteria was so immediate and intense that a local state court ordered the removal of 468 children (300 of whom are four years old or younger) from their parents and placed in foster care facilities based on speculative evidence, at best, presented by CPS officials that the children were in “immediate danger.” Thirty-eight mothers of the seized children challenged these findings through mandamus proceedings to the Third Circuit Court of Appeals in Austin.


While this court appeal was pending, the Texas Department of Public Safety on May 2, 2008 rescinded its arrest warrant for Barlow with the following statement: “The arrest warrant for Dale Barlow is no longer active. [We] have no further information on this.” Then on May 22, 2008, the appeals court ruled that the state court did not have sufficient legal or factual evidence of the FLSD children’s health and safety was in imminent danger to warrant their removal from their parents.


It appeared at the time that the rule of law had finally prevailed over the rule of social hysteria. But the media frenzy continued unabated. One national news pundit immediately criticized the decision as “judicial activism” and another said it was “too legalistic.”


Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of “Justice Denied: What America Must Do to Protect Its Children” (Cambridge 2008). She is a regular contributor to Findlaw and a harsh critic of the FLDS. In a June 26, 2008 Findlaw column, she wrote:
“Recent reports indicate that the state of Texas spent many millions handling the events involving the FLDS compound in Eldorado, Texas. The money went to pay for attorneys’ fees for the state’s lawyers and the private lawyers appointed to represent the children, for DNA testing, and for the costs of overseeing foster placement for the over 400 children from the compound while they were being protected by the state.
“The implicit message of the headlines about these costs is that this is a large and perhaps unacceptable amount to spend in this context. But how much money would be too much to spend to protect hundreds of children from pervasive statutory rape, sexual abuse, underage polygamous marriage, and a system of grooming boys to participate in abuse?
“Or let me put the question more bluntly – for those implying that the rescue of these children was not worth the cost: Do you mean to say that Texas should have saved its money by ignoring what everyone knew was happening to these children? There is little question that the Yearning for Zion Ranch was a hornet’s nest, once jostled never to be made the same again, but that does not mean it should have been left to its crimes against children. The choice of insularity does not confer legal immunity.”


It is these kinds of media misrepresentations by “experts” like Hamilton that have created a national climate of bias against the FLDS. Hamilton said that “hundreds” of children at the YFZ ranch needed protection from “pervasive statutory rape, sexual abuse, underage polygamous marriage, and a system of grooming boys to participate in abuse.”


First, of the more than 450 children at the YFZ ranch, two-thirds of them were five years of age or younger and there was not even a slightest indication that any of them had ever been subjected to any physical or sexual abuse. Furthermore, of the recent six grand jury indictments, only four of the indictments charged some form of alleged “sexual abuse” of children. In effect, after spending more than $12 million on the “FLDS case,” the State of Texas managed to secure four indictments charging sexual abuse at a cost of nearly $3 million per indictment.
In her June 26 Findlaw column entitled “Why the Costs of Sexual Abuse and the Costs of Non-Enforcement of Anti-Sexual-Abuse Laws Are Too High,” Hamilton wrote about 2007 Minnesota study that focused on the cost of sexual violence:

“In 2007, Minnesota estimated the state’s costs of sexual violence in 2005 at almost $8 billion, or $1,540/resident. According to the report, moreover, these are a ‘fraction of the true costs.’ Child sexual abuse was a significant component of the study; the costs of child sex abuse were deemed to average $184,000/victim, exceeding the cost of adult rape, which averaged $139,000/victim. And those are just the immediate costs arising out of a self-contained event of abuse, not the long-term and astronomical costs generated by continuing effects. Suffice it to say that, when we fail to deter or stop sexual abuse, we pay. A lot.”
Hamilton then extrapolated these findings on the FLDS case, saying:


“Familial abuse (which includes abuse by family members and close family friends) is the largest category of childhood sexual abuse. Even self-contained groups, like the FLDS, impose costs on the rest of us. Girls are forced to start having babies as soon as they physically can. They are taken out of the minimal education provided, which means all of their resources are turned primarily toward one end – the production of numerous babies – and away from any other gifts or talents they might have. There is another cost arising from their large, polygamous families as well. Often, all but a man’s first wife find it necessary to apply for welfare to support their many children. (They apply as ‘single mothers.’) Whatever potential skills they might have contributed to society are snuffed out by their obligation to bear babies for the glory of their men in heaven, and like actual single mothers, they face substantial barriers to breaking free from the welfare cycle. There is also the cost imposed by the FLDS on the rest of us when they abandon boys on city street corners to keep the odds in favor of the men. Meanwhile, the group rests on the assumption that the government will pay for this lifestyle.”


There is not a single shred of evidence to support any of these sweeping conclusions drawn by Hamilton. The FLDS does not ask the government for any kind of financial support. FLDS children, who receive an education comparable or superior to the education provided by the nation’s public school system, are not the recipients of welfare. FLDS children do not turn to prostitution, drugs, and crime as so many “runaway” kids from middle and upper class families do.
And what about the children who are reared in violence-and-drug infested public housing projects that instill in them a survival belief system that violence is a natural response to personal crisis? And what about the children who are suckered into the violent “lifestyle” of the “rap culture” that promotes sexual abuse and violence of women as a masculine mantra? And what about the children whose American parents feed the world’s violent drug cartels with their need and abuse of cocaine, marijuana, and heroin?


Hamilton reported in her June 26 column that one in five boys and one in four girls in this country are the victims of sexual abuse. But after a military-styled police raid, the seizure of thousands of pages of documents, hundreds of interviews with children and parents, and more than $12 million spent, the grand jury and Attorney General Abbott could find sufficient evidence to bring indictments charging sexual abuse of only 4 girls out of the 468 children living at the YFZ ranch at the time of the April raid. That’s one in every 117 children who were allegedly subjected to sexual abuse – and these four indictments involved girls 15 and 16 years of age.


Twelve million dollars spent to find out that approximately four older men had consensual sexual intercourse with 15 and 16 year old girls. That is what the FLDS case is about, pure and simple. Critics like Marci Hamilton, Geraldo Rivera, and Nancy Grace can try to make the FLDS case about the “sexual abuse of children” but it’s not. The “evidence” is in the indictments – older men having consensual sex with teenage girls in “spiritual marriages.” The FLDS case is not, and has never been, a case simply about “pedophiles” molesting children for perverse sexual gratification.  It is about hysteria caused by the unknown, the different and this Country’s unquenchable obsession about sex.  In no other church sex scandal has the government swept in, using such extreme Big Brother tactics, and removed all the children in a congregation from their parents based upon an anonymous tip that one of its members had sexually assaulted a child.


The FLDS is not some mysterious, evil satanic “sect.” It is a church – just like the Catholic Church, Baptist church, Methodist church, and a litany of other denominational churches.  The ministers and leaders of these latter churches have inflicted more sexual abuse on their “children” than could ever be charged against FLDS church ministers and leaders. These are the real facts lost in the hysteria of criticism created, and cherished, by “social” experts who want to view and define “issues” through the lens of a particular political agenda.


The brutality the government has inflicted upon all the members of the FLDS church at El Dorado, Texas, based upon allegations that some of its members may have committed crimes is un-American. And that is the bottom line reality in this entire “FLDS” debate.