Saturday, November 01, 2008

Facts, Blues, Law, the FLDS and Me.

I confess to a liking for a supporter of Texas and their actions at YFZ. That would be "TxBluesMan," who from all I can gather is a family law lawyer in Texas. Blues is the lawyer, I'm not, but "Blues" is an advocate, and so am I. On that level, we are on equal footing and I have, on my own, defeated my share of lawyers in life. Blues is fond of citing case law by the bucket load, a tactic known as a "document dump." Normally document dumps are intended to obscure the truth by sensory overload. We have another interesting conversation going on here, at his blog. From Wikipedia;

"The primary remedy in illegal search cases is known as the 'exclusionary rule'. This means that any evidence obtained through an illegal search is excluded and cannot be used against the defendant at his or her trial. There are some narrow exceptions to this rule. For instance, if police officers acted in good faith--perhaps pursuant to a warrant that turned out to be invalid, but that the officers had believed valid at the time of the search--evidence may be admitted."


This is why Texas will succeed most likely, or fail. Absent a Perry Mason moment or Col. Nathan Jessop moment, it will be hard to prove bad faith. There is evidence that Sheriff Doran and others ignored real evidence that there was no Sarah or a related problem at YFZ, but really, in view of what they believed, and they did believe FLDS character and behavior were evil, what did you expect them to do? They'd whipped themselves into a snit and had plenty of activists whispering in their ears. It only took one snapping twig to start a shooting war. As bad as we would like to think such people are, in their own minds, they were righteous crusaders, just like the fictional Col. Nathan R. Jessop.

I believe sincerely that the first warrant will be blown up, but that does leave the second warrant. The second warrant is based on the principle shown above in the Wikipedia article. That I think will also be shown to be an invalid warrant. It's a case of What did you see at YFZ officer?

Try and try as "Blues" might, this is not the province of lawyers. Lawyers and writers of the constitution may have defined the game, but it's a game of facts. Bucket loads of case law do not establish an absolute right to search and search and seize forever. You have to stop somewhere. A "feeding frenzy" of righteous law abiding excitement and indignation do not a fact or right make and on these things I argue.

Lawyers are taught, "when the law is on your side, argue the law," and "when the facts are on your side, argue the facts." So we must distinguish how the facts are on Blues side, and the side of Texas, and how the Law is on Blues side and of Texas. Or how they are on mine and the FLDS.

It's a mixed bag. Blues is entirely correct that the indicted men of the FLDS should be under indictment, given the fact set Texas now possesses. Frankly, if I were an officer of the law and had such facts presented to me as legally obtained, I'd have to indict as well. So on this point Blues argues the now known facts, and then the law. This by no means assures a conviction of any FLDS man, because they have not had their day in court and they may have a sound defense.

But the first set of facts is on the side of the FLDS and me. I will argue the law and then the facts. The first warrant just gets Texas in the door. You don't find Sarah in a document. You don't find Sarah in a safe. You find Sarah. The very existence of a second warrant shows that Texas didn't have confidence in the cause of the first to justify an ongoing search. Thus the second. This search comes under the category described here;

"Courts have also established an "exigent circumstances" exception to the warrant requirement. 'Exigent circumstances' simply means that the officers must act quickly. Typically, this is because police have a reasonable belief that evidence is in imminent danger of being removed or destroyed. Exigent circumstances may also exist where there is a continuing danger, or where officers have a reasonable belief that people in need of assistance are present."


The "exigent circumstance" at YFZ was children in danger, pregnant, or having been pregnant evidencing sexual conduct that was, in the view of the officers, almost certainly illegal. I'll grant that for the moment. The evidence of sexual conduct they allege, if involving children, was probably illegal. As we continue to point out on the FLDS side though, it's becoming increasingly evident that there was no such evidence. To date Texas has NOT offered anything other than the "children with children" and "pregnant underage girls" justification as the "Exigent Circumstance."

This is where the law and facts are on the FLDS side. To KNOW the facts that they now know to be ABLE to identify some of the indicted men (Warren Jeffs' "crimes" for instance could not have been evidenced at the raid) they have to have the "exigent circumstance." Facts increasingly say they did not. Since the burden of proof is of a civil nature in child custody cases, someone would have had to have been abused for there to be an exigent circumstance at the time of the raid and that would lead to a CPS Suit that WOULD be sound and in all likelihood, successful.

There is no such case. I've thought it for months. Just as days before the discovery of Rozita, I was saying privately that there was no Sarah. There is now no Ms. "Exigent Circumstance." If there was, we'd know about it. We'd have pictures, with faces pixelated out. We'd have general descriptions. Texas would be loud and proud about it. Instead, we're down to 37 children and two resigned lead counsels that won't discuss the reasons for their resignations.

We now turn to the discussion of the "Fruit of the poisonous tree";

"For example, if a police officer conducted an unconstitutional (Fourth Amendment) search of a home and obtained a key to a locker in a train station, thus obtaining evidence of a crime from the locker, then that evidence would more than likely be excluded in accordance with the fruit of the poisonous tree doctrine. The discovery of a witness is not evidence in itself because the witness is attenuated by separate interviews, in-court testimony and their own statements."


This is in fact almost exactly the circumstance at YFZ. If no "exigent circumstance" is documented, then in an illegal search, Texas busted into "lockers," smashing safes and confiscating records. It is more than a little likely, that such evidence would be excluded.

Facts always precede law or law has nothing to act upon. Law does not exist in a vacuum. The first facts of this case are, there were no facts. All that follows must give way to that reality. Since the above quote says that the evidence most likely would be excluded, I am certain opponents of the FLDS can find cases where it would seem CPS would prevail. I also can find cases where it is likely that the FLDS will succeed. Case law is now bunk for those outside the argument, the proof is in the actual case itself. Who, ultimately, will win? Like the looming Presidential election, ultimately we won't know until it's over, but my money is on the FLDS. At least law has some semblance of consistency and logic.

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8 comments:

ztgstmv said...

Interesting points. I wonder if there has EVER been a case where "exigent circumstances" has justified the raiding of an entire city looking for evidence of, oh say, adultery which is about on par with polygamy on a moral plane. That is the thread the second warrant is hanging on. In the warrant they basically tell the court they need to turn 80 or so family dwelling units inside out, looking for evidence of either underage marriage or bigamy. I guess they threw in bigamy as a catch-all, presuming that, "well, in order to make good on this warrant, we have to find something in all or most of these homes. Given the evidence we've seen we can't conclude that every home has an underage marriage, so we'll just throw in bigamy on the warrant, just to be safe."
Now, regardless of whether or not "bigamy" is a valid reason to search a home based on supposition that the home, due to its proximity to a polygamous church, engages in the practice -- very poor showing of probable cause indeed -- my feeling is that the sheer scope of the search warrant and the blanket nature of the search extending over numerous atomic homes based on pure speculation and no individualized probable cause will indicate recklessness on the part of the officers that requested the warrant. Whether they were acting in good faith or not, they should have understood the necessity of individualized probable cause, and that "good faith" can only apply to searching one family at a time. As for exigent circumstances, like you said, none existed, and the only catch-all reason/probable cause (and pretext) they could offer was bigamy. However, even there, they should have known, given the individual nature of bigamy, that blanket searches could not apply. This was not a community that engaged in a single act of law breaking in mass, such as illegal weapons manufacture. If laws were broken at YFZ, they were broken by individual families not all together. This they should have known. Ignoring the obvious is not the same as acting in good faith.
http://freetoseparate.blogspot.com/2008/09/case-law-dealing-with-flds-warrant.html

The Pharisee said...

I'm wondering if there could be a "bigamy" angle to anything that Texas saw or HEARD from anyone at YFZ. I suppose because it is illegal they could have based their search on bigamy, but they'd have to know it was happening, not just suspect personally that it was occurring.

You can't "see" bigamy.

IF though they DID know bigamy was occurring, in theory they could search for evidence of that bigamy, but as you've noted, does this qualify as an "exigent circumstance?" There would be no "danger" or need of "immediate assistance." Only the "underage" angle creates a "danger" or need of "immediate assistance."

ztgstmv said...

Yes, I don't think a slight probability, based on mere inference, that a house down the road is engaging in bigamy, poses any kind of threat to the well-being of anyone, certainly not enough to stop the world, and suspend the law, to go in and raid the place, as if a war just broke out (if it did it would be because the state started the war -- perhaps they anticipated one?).

Like I said however, even given an exigent circumstance, I doubt there is case law to back up a broad blanket warrant. And I agree with you that proposing to look for documentary evidence of bigamy certainly doesn't portray the reasoning going into a finding of exigent circumstance. Rule that out.
And as I said, if they go for the suspicion of underage marriage line of thinking, they will have to show that they believed every home participated in it. If they believed even one home didn't, then they've overstepped their bounds. I believe that were a deposition were to be given to Doran and Long, they would be forced to admit that they didn't really believe that all 80 families had an underage marriage. If they try to say they believed that, the next question would be: "on what basis?" The conversation would quickly break down, as the facts -- only five currently underage girls were even alleged to be married, let alone polygamously (no evidence even of this at that point, meaning it could have been a legal marriage) -- simply do not support the notion that 80 families engaged in underage marriage. There weren't enough underage girls to go around.

The Pharisee said...

I've made a polite inquiry to the FLDS about the demographics of the remaining 37 children. If they will be so kind as to tell us what the age and gender of those 37 are, then we'll have the number of possible "Children with Children" candidates, and the possible "Pregnant underage girls."

It's now a joke to say that Texas "saw" a pregnant underage girl since no "girls" have given birth in the last 7 months. To point out the obvious, that now means that the only girls seen at YFZ that were pregnant could have been no more than 60 days pregnant and it's possible THEY didn't even know they were pregnant, much less be visibly so.

I'm pounding it into the ground but we're down to "children with children" as the rationale for the continued search. Texas would not "nonsuit" a child with children. Since that's the case, the remaining post mensus girls between (liberally) the ages of 11-18 are the only girls that COULD be the "Children with Children." That number needs to be determined. That question needs to be asked. "Texas, could you please tell us which of these girls were the 'Children with Children' seen at YFZ in April that formed the basis for the second warrant?"

ztgstmv said...

It's a good question. And I find it astonishing that the details of which pregnant child exactly did the state see, i.e. which was used as the probable cause for the second warrant. The second warrant does not provide names and does not name the family of the child in question, which I see as a blatant disregard for the Constitution. These things have to be described in particular detail. But if they were to name the family, than that would obviously restrict the scope of the warrant down to that family's dwelling place.

I also believe that discovery is essential early in the game in a case like this. Obviously the state is desperate to cover its tracks, and might stoop to encouraging particular agents that were on the scene that night to sign additional affidavits saying they believed so and so was pregnant, and so and so told them this, and so on.

If the defense were given access to all the evidence in the state's possession from that night, the state wouldn't be able to fabricate any more to fill in the gaps, as questions arise.

Of course, I don't see how the state is going to dig themselves out of this one. Even getting into more detail, as I said, would only prove their warrant scope was too broad. No. The state will have to attempt to prove, as it has maintained, that the ranch operated as a single family, and committed the crimes of bigamy and underage marriage collectively. But their own evidence contradicts this. The documents of the underage marriages in 2006 indicate a secret wedding that was not even attended by the families of the girls in question. This is evidence that they obtained after assuming (presumably) that the entire ranch collectively engaged in forcing underage girls to subject themselves to rape in a temple.

Christ, I would like to know the origin of that whopper. I think the defense will be entitled to as well. Of course, it's triple hearsay, which leads to another fundamental question, can stories obtained through triple hearsay be valid probable cause?

duaneh1 said...

This interview
with Ben Barlow leaves me with another question. Since his family resided at YFZ but happened to be temporarily out of state at the time of the raid, were his children never taken by CPS or under their supervision? If I, a non-FLDS member, happened to be at the Ranch with my wife and kids, Say I was hired to install some computer equipment, would my kids have been swept up and put in CPS custody along the the FLDS kids?

The Pharisee said...

I think the disturbing answer is that there are no limits other than the literal borders of the state of Texas.

CPS can see and take anyone for any reason. They did it with adults at YFZ, declaring them to be children in the face of clear documentary evidence that they were not an holding them against their will.

That alone should scare people. CPS can just make things up and until THEY relent, it's the way they say it is.

cheese said...

"If I, a non-FLDS member, happened to be at the Ranch with my wife and kids, Say I was hired to install some computer equipment, would my kids have been swept up and put in CPS custody along the the FLDS kids?"

Where have you been duane1? Just be carefull, it could happen right now right where you are. what you're talking about happened.