Sunday, October 04, 2009

The Colorado Long Shot

Which could be called the Musser/Long/Doran/Flora/Whoever longshot as well.
Witnesses hostile to the FLDS such as Rebecca Musser could very well provide evidence for the defense. Musser is supposed to have testified in Las Vegas on the last day of September. I haven't heard whether she did actually testify, or not. I always assume that hostile witnesses are communicating amongst themselves and it's probably no accident that Musser succeeded in putting off her time before the defense until two days before Walther ruled on the evidence. Assuming Musser was provided with a transcript of her testimony, or even if she simply has a good memory, she could have been "debriefed" and the prosecution (Walther et al) could have decided nothing earth shattering was given to Piccarreta and company.

Pre Trial hearing.

Motion to Suppress denied.

Rules as to what will be admitted as evidence are as far as I can tell, "rules of the court" for trial purposes.

Bottom line?

They cannot be appealed prior to the completion of the trial. The reasoning behind this long standing rule of jurisprudence (assuming I have it right) is that you're not harmed if the evidence included fails to result in your conviction. In a sense, so what if it was illegally obtained and you go free? No harm, no foul. Only in the case that you are convicted would a higher court be interested in the evidence rules used in a lower court.

It has been my opinion all along that what Walther has wanted to do in the trials, is expose the media, the potential jury pool and potential appeals judges to all the negative publicity possible, all the salacious details, and put a 40+ year old man in front of an appeals court, convicted of a crime involving pedophilia, and say "There, reverse that."

Of course, I have hoped, and at one time I was actually marginally hopeful that Walther would back away from the case, but she didn't. I have never been in any sort of delusional state about what her game plan has been since the get go.

Of the girls/women supposedly molested or in danger of being molested by the FLDS men in question, only Merrianne Jessop is in theoretical need of protection from her informal husband, that being Warren Jeffs. Warren, for the time being at least, is safely tucked behind bars, and he can't get at Merrianne, for now. Even if the tide begins to turn wildly in favor of the FLDS, the prospects of him being sprung in the next 2 and a half to 3 years is pretty small, so we can consider her safe if we are worried about actual adults molesting actual children by the definitions of law. It's not going to happen unless Merrianne is "unfaithful."

The rest of the defendants are "married" or consorting with women now, all of whom are of age, and none of whom wish to escape their "brainwashing." The primary reason their unofficial husbands are being prosecuted is that those husbands seem to have children with those women. Those women certainly have children with somebody. I have little doubt that the men charged are in fact the fathers. The state is attempting to break up a father and his child, separate the mother from the father, and destroy the family unit to make a point that is essentially, "we don't like the FLDS" because until the FLDS showed up, the laws in Texas were actually a bit friendly towards the practices of the FLDS, which was one of the reasons Warren set up shop there.

This also brings up the question of the difference between a real pedophile, in terms of psychological makeup, and a technical pedophile, namely the sort that these men will be, if they are convicted.
"According to the Diagnostic and Statistical Manual of Mental Disorders (DSM), pedophilia is specified as a form of paraphilia in which a person either has acted on intense sexual urges towards children, or experiences recurrent sexual urges towards and fantasies about children that cause distress or interpersonal difficulty." - (Wikipedia)
I contend that based on their other patterns of behavior, and fertility with women of greater age, that you couldn't call this the difficulty of most of the defendants. You could only say that they fit the legal definition.
"In law enforcement, the term 'pedophile' is generally used to describe those accused or convicted of the sexual abuse of a minor (including both prepubescent children and adolescent minors younger than the local age of consent)." - Wikipedia
What I am doing here, in a sort of eliptical way, is leading up to a point about what is, and what is not going on here. We're dealing with people who will be legally classified as pedophiles, not people who are predisposed to a disorder (for which there is no treatment) that is refered to as pedophilia. The equivocation that follows this case around, in the press and in the publicity generated by the prosecution, confuses. It is meant to. It is meant to put pressure on the public conciousness to keep slavering drooling cruel old men off the young virginal bodies of girls, who have no brains, no volition and no ability to resist their organized plundering of those girls sexual bounty.

I word it that way because I am convinced that part of the "horror" surrounding the case is actually a vicarious thrill and a sort of perverse jealousy that may indeed be more akin to the medical definition of pedophilia that we are supposed to believe is present in the FLDS. We want to see pictures of the young girls kissing Warren, with their faces blanked out. We want to see pictures of his daughter, Teresa Jeffs, young, attractive, spunky. Because WE want them. I say "we" but I think the difficulty is largely with FLDS haters, not me for instance. I consider Teresa Jeffs a beautiful strong willed young woman, and another man's wife, and of another faith, and have no interest in her for the reasons of prior claim (marriage) and faith. Same goes for Merrianne Jessop.

The above discourse I think describes the set stage for the trials. For the FLDS to win, they must win by "not guilty" verdict, which may flow from "jury nullification" or win on appeal which will be performed under the pressure of equivocating technical legal pedophilia with the actual sexual predilection. Remember though, it will be a lot harder to turn a well publicized "pedophile" loose, even by right application of the law, than it was to turn children back to their mothers.
US - "Late last year, a California Appellate Court ruled that a Defendant was not entitled to a new hearing on a suppression motion at the retrial, unless the defendants could present additional evidence that would justify a different ruling. A court will not question the discretion of another magistrate, or their position on the credibility of witnesses or evidence that was presented at a suppression hearing. If a magistrate has already heard your case, and ruled against you, it’s generally a closed issue.

However, in some cases you may be able to bring a second suppression motion if it is based on 'newly discovered evidence.'

To be considered newly discovered evidence, you and your criminal appeals lawyer will have to show that at the time of the original hearing, the defense was unaware of this new evidence. If you can convince the judge on this point, then the judge has the legal discretion to permit you a new hearing.
USA vs Hassan Karim Muhammad - "However, '[i]f new facts come to light at trial, the trial judge in the exercise of his discretion may consider anew the suppression issue.' Id. In United States v. Simms..."
New evidence is what will ultimately (I think) be the best chance of early freedom for the FLDS men on trial. The best chance for their wives to be reunited with their husbands, the best chance for their children to have contact, with their fathers.

That new evidence may come from depostions of Sam Brower, or Rebecca Musser or others, or perhaps revelations about Rozita Swinton and her associates. There are a lot of questions still out there about Rozita, how she has managed to travel around the country, access expensive out of state medical care and even exist for the past year and a half. There are now a lot of questions about what she's been doing for the last 15 years of her life, and if it involved a close association with a local Law Enforcment agency, that may be shown to have protected her.

The above two quotes show that the evidence question can be reopened with new evidence. I hope that what I have investigated and found, mostly in the last two weeks, and all the way back to January of this year, will prove useful to the defense. If it is shown that there was some sort of protection of Rozita, a sort of negligent encouragement of her bad behavior, or even perhaps a contracting with her to produce a "cry for help" then the game may be changed. Almost certainly it will be in the case of an intentional manufactured "cry for help."

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