Texas Legislature Joins the Hunt

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


Besides March winds, April showers, and June humid heat, the one thing you can go to bank on: when state lawmakers, either in Texas or any other state, get involved is trying to legislate religion and morality, you will have a witch-hunt. Lawmakers are generally panderers to public opinion, not servants of public interest. If they believe one vote can be had by manipulating public fears or social outrage, they will get involved in any issue that generates media attention. The Eldorado, Texas-based FLDS (Fundamentalist Church of Jesus Christ of Latter Day Saints), therefore, became an ideal target for legislative scrutiny during this past session.


In April 2008 the Texas Rangers, in cooperation with local law enforcement officials and the state’s Child Protective Services (“CPS”), raided the church’s compound (known as the YFZ Ranch) on the basis of false information received about child sexual abuse occurring at the compound. Specifically, the information reinforced a popular perception that older FLDS men marry teenage girls in arranged “spiritual marriages” and practice polygamy. The raid resulted in 468 FLDS children being forcefully separated from their parents by CPS before being ordered returned to their families by two state appeal courts. Altogether, ten FLDS men were indicted on a litany of charges ranging from sexual assault to bigamy and failure to report child abuse. None of the men have yet to face trial in the wake of the nearly $20 million law enforcement fiasco.


Determined to get something out of the exorbitant expenditures of tax dollars associated with that 2008 raid, the Texas Legislature this past April conducted hearings on a bill introduced by state Rep. Harvey Hilderbran, R-Kerrville that would make child abuse a Class A misdemeanor and send repeat offenders to jail. Hilderman’s bill would also require CPS to remove perpetrators of child abuse, not the child victims of such abuse, from a home.


“The safety of the children is paramount, and that is our first priority,” Hilderbran stated before the House Human Service Committee which conducted those hearings.

But the legislative hearings proved to be nothing more than a horse show with Hilderbran and others trying to pass a jackass off as a thoroughbred Tennessee walking horse. Invitations to testify at the hearings were extended to CPS officials and other supporters of the 2008 raid in a concerted effort to make that fiasco look good.


Anne Heiligenstein, commissioner of the Texas Department of Family and Protective Services, was the first witness to staunchly defend the raid.


“You cannot abuse children in Texas and get away with it, even if you are a large, reclusive, well-organized and funded organization that has a great deal of media savvy,” she told lawmakers and anyone else willing to listen.

Heiligenstein pointed out that nearly 30 percent of the girls between the ages of 12 and 17 had been sexual abused at the FLDS compound. “Of the 43 girls from 12 to 17 years old, there were 12 confirmed cases of sexual abuse,” she said. “One girl told a Child Protection Services worker that no age is too young to get married.”


To context this statement, it must be pointed out that CPS initially told the public immediately after the raid that “hundreds of children” at the compound had been subjected to sexual and physical abuse. Those preliminary charges proved to be unfounded.


As for the ages of the girls allegedly subjected to sexual abuse, the youngest was 12 years of age, and the others were 14 to seventeen years of age. Until 2005, it was legal in Texas for a 14 year old to marry with parental consent which is when the alleged FLDS “spiritual” marriages occurred. They were conducted with parental consent. Yet non-FLDS parents who married off their daughters at 14 were not considered perpetrators of “sexual abuse,” and some of those marriages were “arranged” between the parents of the “children.”


The one consistent aspect of the “FLDS case” has been the persistent flow of misinformation in the media about it. For example, student reporter Nehal Patel, writing for the University of Texas’ newspaper the Daily Texan, wrote a piece on April 15, 2009 which stated: “The [FLDS] case began with a report of a 15-year-old girl living on the ranch who called a family help hot line on March 30, 2008 claiming she had been physically and sexual abused, said Anne Heiligenstein, commissioner of the Department of Family and Protective Services.”


The so-called “15-year-old girl” did not exist. The anonymous caller was actually 33-year-old African-American who had a history of making false allegations of child sexual abuse in Colorado and Florida. Recent legal pleadings by attorneys representing the ten indicted FLDS men revealed that on March 29 and 30, 2008, a “Crisis Hotline” operated by the New Bridge Family Shelter in San Angelo, Texas received multiple telephone calls from a female identifying herself only as a pregnant 16-year-old named “Sarah.” New Bridge employees Alisa Thomas and Jessica Carroll fielded the calls. The caller stated that she had been forced to marry a 5l-year-old FLDS member at the JFZ Ranch named “Barlow.” She stated she was pregnant with Barlow’s child; that she had been sexually and physically abused by him; and that she had been forced to seek medical treatment at a local hospital because of the abuse. She also told the New Bridge employees that Barlow had left the ranch.


Factual misrepresentations and misinformation are the thread that now bounds the FLDS case. For example, an April 16, 2009 Findlaw column, Taking Stock of the 2008 Intervention at the Texas Fundamentalist Latter-Day Saints Compound On Its One-Year Anniversary: The Lessons We Must Learn to Effectively Protect Children in the Future, which was written by author and child advocate Marci Hamilton, stated:


“The Texas appellate courts were as wrong as CPS was right. Essentially, the appellate courts told the girls to just get over it. Sadly, the court decisions were part of our general culture’s deep instinct to wish away the suffering of the children living among us. As a factual matter, the evidence conclusively proves that children who have been sexually violated by adults do not ‘grow out of it.’ To the contrary, their victimization radically alters their horizons forever. And not only did the Texas decisions dismiss the children’s suffering—suffering that may well last a lifetime—but it also laid the groundwork for the children to be returned to the compound, even if CPS lawyers believed that there were strong legal grounds to terminate parental rights.”


This was a distortion of the Texas appellate decisions by a law professor. There was not even the remotest indication from those decisions that the courts told the “girls to just get over it” or that the courts were trying to “wish away the suffering of the children” or that the decisions “laid the groundwork” for the children to be returned to their parents “even if CPS lawyers believed that there were strong legal grounds to terminate parental rights.”


The Texas Court of Appeals held that Section 262.201 of the Texas Family Code requires CPS to carry the following burdens before agency can remove children from their parents: “(1) that there was a danger to the physical health and safety of their children, (2) that there was an urgent need for protection of the children that required the immediate removal of the children from their parents, or (3) that the Department made reasonable efforts to eliminate or prevent the children’s removal from their parents.”


The thirty-eight mothers involved in the case argued that CPS failed to carry this statutory burden and that the state district court abused its discretion in finding the agency had met the burden. Texas laws simply does not allow for children to be forcefully taken from their parents based suspicion or hearsay. The appeals court underscored this point:


“Removing children from their homes and parents on an emergency basis before fully litigating the issue of whether the parents should continue to have custody of the children is an extreme measure. It is, unfortunately, sometimes necessary for the protection of the children involved. However, it is a step that the legislature has provided may be taken only when the circumstances indicate a danger to the physical health and welfare of the children and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary. Section 262.201 further requires the Department, when it has taken children into custody on an emergency basis, to make a showing of specific

circumstances that justify keeping the children in the Department’s temporary custody pending full litigation of the question of permanent custody. Unless there is sufficient evidence to demonstrate the existence of each of the requirements of section 262.201(b), the court is required to return the children to the custody of their parents.”


Marci Hamilton, who is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, should know that it is the responsibility of the courts to interpret the law, not make social policy. This issue had resonated throughout the confirmation hearings for Supreme Court nominee Sonia Sotomayor. The simple fact is that CPS did not follow the law when it removed the FLDS children from their parents—and when given the opportunity to make its case against the parents after the Texas courts remanded the case back to the district court, CPS could not do so under Texas law. All the children, except one, were returned to their parents.


FLDS member Willie Jessop also felt the whip of religious bias when he appeared before the April legislative hearings. He was continuously pressed by committee chairman Rep. Patrick Rose, D-Dripping Springs, about whether underage marriages are still tolerated by the church in the aftermath of the 2008 raid. Jessop refused to answer the questions, saying he did not know the answer to them and, besides, it was not his place to speak for the entire church.

“I just don’t believe you, that you don’t know the answer to that,” Rose told him.


State Rep. Drew Darby, R-San Angelo, was co-author of the Hilderbran bill. In response to a charge by Jessop that the bill unfairly targeted the FLDS, Darby replied that the bill sought only to punish polygamist pedophiles.

“What about the monogamous ones?” Jessop responded.

Rose then called on other FLDS members to testify.


“It appears that this [committee] is not interested in helping us or protecting us in any way, and so we have chosen not to testify at all,” Zavanda Jessop told the committee chairman.


Protecting children from forced “underage marriage” or what Rep. Darby called “polygamist pedophiles” has never truly been the objective of Texas officials. The social and legal bias against the FLDS stems from this nation’s Christian disdain for polygamy. This bias manifested itself in the only U.S. Supreme Court decision to ever deal with the issue of polygamy just as it has in all the state and federal court decisions dealing with polygamy since that 1879 Supreme Court decision. The Texas legislature has never been offended by “underage marriage.” It did not raise the lawful age of marriage from 14 to 16 until 2005 after the FLDS re-settled from Arizona to Eldorado in 2002.


As for targeting and punishing “polygamist pedophiles” suggested by Rep. Darby, we would suggest that the social threat of pedophilia is much greater in the larger monogamous Christian society than it is in the FLDS church. The following data over the last decade from different sources supports this suggestion:


17.6% of women in the United States have suffered a completed or attempted rape. Of these, 21.6% were under the age of 12 when raped and 32.7% was between the ages of 12 and 17. (Prevalence, Incidence, and Consequences of Violence Against Women, National Violence Against Women Survey, November 2000).


Almost two-thirds of all rapes are committed by someone who is known to the victim. 73% of sexual assaults are perpetrated by a non-stranger—friend, acquaintance, intimate partner, or relative. (National Crime Victimization Survey 2003).

One in five adolescent girls becomes a victim of physical or sexual violence, or both, in a dating relationship. (The New York Times 08/01/2001).


44% of rape victims are under age 18, and three out of every twenty victims (15%) are under age 12. (Sex Offenses and Offenders, Bureau of Justice Statistics, U.S. Department of Justice 1997).


Seven percent of girls in grades five to eight and twelve percent of girls in grades nine through twelve said they had been sexually abused. (Commonwealth Fund Survey of the Health Adolescent Girls, 1998).


An estimated 175,000 minors are sexually assaulted each year in the United States. (Journal of Adolescent Health: Sexual Exploitation of Children 2006).


While these statistics clearly demonstrate that child sexual abuse and exploitation is a much greater problem in the monogamous society than it is in the FLDS community in Texas, far more media attention has been devoted to “the FLDS case” alleging such abuse.


This exaggerated media attention was exhibited in a recent Houston Chronicle article (June 23, 2009) about Flora Jessop, a former FLDS member who has co-authored a book titled “Church of Lies.” The newspaper did not report whether the book was self-published or published by a reputable publishing house. What the Chronicle did report is that the book “chronicles Jessop’s life inside the FLDS, the sexual abuse against her that began when she was 8 and the impact of such abuse on children. She also describes her rescue efforts of children still inside the group and the difficulties trying to protect those children.”


Jessop is demanding harsh punishment for the FLDS men indicted after the 2008 raid.


The Chronicle quoted her as saying: “I am hoping against hope that Texas will, upon prosecuting those guys, give them longer sentences than we have seen in Arizona and Utah—13 days, 45 days and nine months, which is the longest sentence, we have seen for one of those guys that has molested children. Will Texas have the guts to give them more?”

While we certainly do not subscribe to sexual abuse or exploitation of anyone at any age, we do believe that polygamy is a fundamental tenet of certain religions and we have no problem with that practice, just as we have no problem with same-sex marriage, civil unions, common law marriage, or state-sanctioned ceremonial marriage. Laws should not be based on religious tenets. Laws should be secular.


Just think how many children have been raped, killed, and starved in Darfur, and how many have been sexually abused by priests, preachers, cops, legislators, judges, and pillar-of-the-community fathers over the past year in America while a $20 million dollar investigation found that 12 FLDS girls between the ages of 12 and 17 were allegedly the victims of sexual abuse through “underage spiritual marriages,” although no one has yet been convicted of any criminal wrongdoing in the case.


And based on the recent motions filed by attorneys for the ten indicted FLDS members seeking to have evidence seized during the April 2008 raid suppressed because of law enforcement misconduct, the men may never face trial, and if they do and are convicted, their convictions will almost certainly face appeals with strong legal grounds. The motion, which was filed in the Schleicher County criminal court this past April, was supported by a 100-page legal brief filed by lead attorney Gerald Goldstein on July 12, 2009.


The pleadings informed Schleicher County Judge Barbara Walther that the Texas Rangers were notified about the anonymous telephone calls in March 2008 to the New Bridge family crisis center. That law enforcement agency initiated an investigation into the matter as a case of an adult sexually abusing a child. The investigation was led by Ranger Brooks Long. The pleadings stated the Ranger was specifically informed by Jessica Carroll that “Barlow” was Dale Evans Barlow who had been convicted in Arizona’s Mohave County in 2007 for an FLDS sex offense and placed on probation. Carroll stated she learned this information from a “Google search” of the name Barlow. Armed with this “Google search”

information, Long secured all the necessary court records from Arizona to verify Carroll’s information. The court documents revealed that Barlow had strict conditions on his probation which restricted him from leaving Arizona without permission from his probation officer. The Ranger then called Mohave County Sheriff Allen Pashano who informed Long that Barlow did not have permission to leave the state. Shortly after this call the Mohave Sheriff’s office notified Schleicher County Sheriff David Doran that it had determined Barlow had never left Mohave County and, in fact, had never been to the Texas FLDS compound. Sheriff Doran shared this information with Long. Finally, Long instructed Schleicher County George Arispe to contact the local medical center to verify the information the pregnant 16-year-old caller had given Carroll about seeking and receiving medical treatment for physical abuse allegedly inflicted by “Dale Barlow.” The medical center informed Deputy Arispe that it had no information on any such pregnant 16-year-old and had not provided any treatment for such a person.

That should have ended “the FLDS case,” right? Not for Ranger Brooks Long. The legal pleadings state that Ranger prepared an affidavit in support of an arrest and search warrant in connection with an alleged sexual assault of a child named “Sarah Jessop” by one “Dale Barlow.” The affidavit informed Judge Walther that Brooks had “credible” information that both the victim and the perpetrator were residing at the FLDS compound. While Long’s affidavit informed Judge Walther that Barlow had been placed on probation for a sex offense conviction obtained in Arizona in 2007, the Ranger neglected to inform the judge that the conditions of Barlow’s probation restricted travel outside of Arizona; that the Mohave Sheriff’s Office had determined that Barlow had never left the State of Arizona; that the Mohave County Sheriff’s Office had provided information to Sheriff Doran’s office that Barlow had never been to the FLDS compound in Texas; that the anonymous caller had told Jessica Carroll that Barlow had left the FLDS compound; and that the Schleicher County Sheriff’s office had determined that the alleged victim had never been treated at the local medical center as she claimed to the New Bridge employees.


In effect, Ranger Long provided the judge with enough false and misleading information to establish probable cause for the issuance of an arrest and search warrant for Dale Barlow. Ranger Long then proceeded to amass an armada of law enforcement officers, SWAT team “precision” snipers, a tank-like armored personnel carrier, a “no fly zone” designation over the area from Homeland Security, and a deployment of military-like surveillance aircraft over the entire area—all this for the single arrest of one suspect who had no history of violence and who reportedly was living among people described by Sheriff Doran as docile and peaceful.


The reality is that the arrest warrant for Dale Barlow became a pretext for a military-styled armed assault not just against the FLDS community with its 468 children but against the religious temple where those people worshipped. Like the Federal Government’s murderous assault on women and children at a religious compound in Waco, Texas in 1994 which will forever stand alone in the tragic “hall of shame,” the Texas state government secured its own deserving place in that sordid hall based on the Texas Rangers misconduct and abuse of power in the April 2008 raid on the FLDS compound.


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