No new tricks up Michael Emack's sleave, he goes No Contest

Michael Emack pled "nolo contendere" but preserved his right to appeal, answering a question on my mind:

The San Angelo Standard-Times - Judge Barbara Walther of the 51st District Court asked (Michael) Emack if he understood what the plea allowed him to do.

'I believe it helps me maintain my dignity,' Emack said.

He also said he understood that it allowed him to appeal. The court recognized that Emack reserves the right to appeal only in certain cases.

One case regards the lawfulness of search warrants that law enforcement personnel used to raid the Yearning for Zion Ranch outside Eldorado in April 2008 on the basis of what later turned out to be a hoax call of a girl claiming she was abused inside the community."

I had wondered about this. If you plead "no contest" can you re-open the case if the evidence is disallowed later and the answer is "yes." Depending on how long those appeals take, Michael may be out about the same time they get processed through our legal system. It apparently took making a special stipulation to reserve that right for Mr. Emack who will get seven years.

He also gives up his "right to remain silent" among others which I don't know exactly how to take. The waiver stipulation worries me:

"(Judge Barbara) Walther had Emack agree to a 'waiver of stipulation of the evidence,' saying that the evidence was accurate and could prove the case beyond a reasonable doubt."

I honestly don't know. Does this now constitute a form of testimony that can be used in other cases? Namely, that the evidence is "accurate?" Judge Walther is not a great jurist, but she is not a stupid woman either, and I'm sure the prosecution had influence on what it would accept from Mr. Emack. Greater legal minds than mine (there are quite a few) will chime in on this development and reveal what it means to it's fullest extent.

As always, it happens late on a Friday. For now it seems though, that Michael avoids the meat grinder trial, the publicity and the "perp walk." If the appeal goes badly, he won't spend too much more time behind bars than he would if it's successful.

This also means that in general, procedural issues with regard to appeal have been covered by the first two trials. There was no "grand stand" left to make at this trial, that wasn't made in the first two.

There is this fascinating tidbit as well:

"Emack has a pending bigamy case against him, and he said he intends to plead no contest to that as well for seven years to be served concurrently with his sexual assault sentence.

(Michael's) defense lawyer, Abilene attorney Randy Wilson, will reserve the right to appeal that bigamy case, stating that Emack intends to be a part of a joint motion of FLDS members that will challenge the constitutionality of Texas’ bigamy statutes."

Interesting. Plead out so that you can challenge the constitutionality of a bigamy law. My work may be done soon.

The constitutionality angle will burn the candle at one end, the evidence challenge at the other. Eventually, if the evidence challenge fails, but the constitutional angle does not, it will be argued that Texas married young women right up to the point of the raid, that were of similar and younger age than the informal brides of the FLDS. I suppose the argument would then be, "I wasn't asking to do anything wrong, I was just forbidden to do what was my right by the state of Texas." Texas can hardly argue it doesn't want young girls having sex, when it's marrying them off. All they can say is they don't want young girls having sex with older men who have another wife, and that will be an unconstitutional restriction.

More →

Sphere: Related Content

Michael Emack gives up on his Neighbors, no new trial for Raymond

The next FLDS trial, will be in San Angelo.

The San Angelo Standard-Times - "In a pretrial hearing on Thursday, the prosecution, headed by attorney Eric Nichols, and the defense, led by Abilene attorney Randy Wilson, agreed to the change of venue from Schleicher County. The prosecution had pushed for the change of venue for the previous trials of FLDS members Raymond Merril Jessop and Allan Eugene Keate, but the trials were held in Eldorado."

Whatever value the FLDS has assigned in the past to being at home, they've given up on now. I guess you have to figure 33 years is bad enough, and it can't get worse going to Tom Green county.

"Earlier in the morning, (Barbara) Walther denied a motion for a new trial for (Raymond) Jessop, who was convicted of child sexual assault in November. A defense attorney argued that the Schleicher County grand jury selection process was unfair to Jessop."

We do get a view though, of another appeal angle. Regardless of what was agreed to by the defense regarding the composition of the jury, they clearly took umbrage and now they're griping for the record. I'm not going to pretend to know the ins and legal outs of procedure, but this process has stunk up the place, it only works if you don't care how you "get 'em" but just want to "get 'em."

"Gerald Goldstein, who stood in for Mark Stevens as Jessop’s attorney, was displeased that Walther presided over the hearing because she was involved in the grand jury selection process.

'This should be heard by a different court,' Goldstein said at the beginning of the hearing."

Some FLDS arguments I am sure are exotic and far fetched. That is normal for a vigorous defense. I'm sure that attorneys have touched bases for all forms of appeal during the trial and will be trotting them out out one by one or in a bunch.

I don't think it's possible for trials to go so seamlessly for the prosecution when there were so many well known question marks about the raid in the first place. Walther makes a better driver, than she does a judge.

Nice that they got this out of the way, before Rozita's first appearance.

More →

Sphere: Related Content

33 Years. That's life.

Only an appeal of the method by which the evidence was obtained will give Allan a chance to see the outside of a prison:

The Eldorado Success - "Allan Keate, 57, was sentenced to 33 years in state prison by Schleicher County jurors moments ago. He was found guilty Tuesday on a charge of Sexual Abuse of a Child. Under Texas law Keate could have received 99 years in jail and a $10,000 fine. The jury deliberated just over 5 hours before reaching their decision."

I know murderers, plenty of them, who get less time.

CNN - "As her minister husband lay dying from a shotgun wound to the back, Mary Carol Winkler wiped the blood bubbling on his lips and apologized, according to a statement read Friday in court.

'He asked me, "Why?" and I just said, "I'm sorry," ' she told police in the statement. 'I told him I was sorry and I loved him.'

Winkler, a 32-year-old mother of three, gave the statement March 24, two days after prosecutors say she shot her 31-year-old husband, Matthew, in bed in the parsonage of Selmer's Fourth Street Church of Christ." October 3rd, 2006

I guess if you're sorry, that makes it not so bad. Mary Carol Winkler? She's out of jail, and has full custody of her three daughters. She did, after all, tell her dying husband she loved him.

Oh wait, her husband was a man. Death, was too good for him I guess. Allan's a man too. I guess that explains everything. And Mary's husband? He was involved in RELIGION. So was Allan. Those evil bastards. Probably both men believed that religious stuff too.

More →

Sphere: Related Content

Keate's Sentence up the the Jury Now

Frankly, I don't think it looks good for Allan.

The jury was apparently "shocked" to know he had also married of his daughters young. The state made the punishment about his religion, and about polygamy.

More →

Sphere: Related Content

Keate Guilty

From the Texas Attorney General's office:

"Allan Eugene Keate found guilty of sexual assault of a child in Eldorado, TX. Keate in custody pending punishment."

Found here.

Next up? Michael Emack, January 25, 2010, "sexual abuse of a child."

More →

Sphere: Related Content

The Prosecution rests

DNA evidence has been presented that almost certainly established paternity in the eyes of the jury and then:

"Law professor John J. Sampson of the University of Texas then testified that the alleged victim was not married to Keate. Sampson said he is a tenured professor and that he operates a children's rights legal clinic where he and two other lawyers supervise law students that advocate on behalf of children.

Sampson then said that he had reviewed evidence in the case and expressed his opinion again that the alleged victim was absolutely not the legal wife of Allan Keate." - The Eldorado Success.

The case seems to be pretty simple. Keate is the father, this is his child, this is his mother, they are married, she's too young. Randy Wilson preserved his appeal options by moving to dismiss, which I would have denied, had I been the judge, but Randy has to do his job.

Whatever defense there is, will commence tomorrow morning.

More →

Sphere: Related Content

Walther Threatens to Sequester Jury?

The only available place to do so, in Eldorado, is described as a "hole in the wall."

A source tells me that yes, there had been some report of unfortunate conversations/communication involving one/some of the jury. I imagine they will seek to behave themselves.

Judging for the speed of the last conviction, and judging from the report that Walther cautioned against visiting "Blogs" and judging from question 14 of the Jury questionnaire, Walther would not be so much concerned about them visiting THIS site, but "those other ones" who have Allen Keate tried and convicted.

More →

Sphere: Related Content

Something is up at the Keate trial (UPDATED)

Something with the jury. (Rumor to follow) First:

The Polygamy File/Brooke Adams/Twitter - "Texas jury in Allan Keate case is in recess until Monday after hearing some testimony from Rebecca Musser, according to Steve Anderson."

And then:

"(T)he judge is interviewing each juror individually in chambers before dismissing them. (The) question: Is something amiss?"

Just when you thought it was going to get dull.

The pattern of jury surveillance in the various trials has been to clean them up to keep the prosecution safe. I honestly don't think Walther cares if there is someone on the jury that hates the FLDS, unless she thinks it might taint the verdict later.

It could just be that Barbara is telling them to behave over the weekend.

RUMOR - The rumor is someone shot their mouth off about something after being selected as a juror. In Eldorado, that kind of news would get around very fast.

More →

Sphere: Related Content

We have a jury

No word on it's composition:

The Eldorado Success - "La(w)yers for the prosecution and defense agreed moments ago to a jury panel of 36 members. Judge Walter called for a 30-minute recess after which both sides will be allowed to strike 10 members from the panel. Given that a jury must have 12 members and 2 alternates, it appears that a jury will be seated this evening."

IF there were 13 FLDS members among the 36 (which I doubt) the jury will contain a member of the FLDS.

More →

Sphere: Related Content

Attorney General Abbott to question Jurors

(UPDATE: Jury Selection Recessed until 9am tomorrow) Not only was the showing a surprise, but the AG will conduct juror interviews, showing that perhaps Texas doesn't think this will be a slam dunk or that a sympathetic juror might slip through. Maybe he's just trying to get the trial moved.

The Deseret News/AP - "Texas Attorney General Greg Abbott made a surprise appearance Tuesday at the trial of a polygamist group member, to question potential jurors in the sexual assault case."

Here is the questionnaire, courtesy of the Eldorado Success:

"1) How long have you lived in this county?
2) have you ever served in any branch of the military? If yes, what branch? If yes, were you honorably discharged?
3) Please list the organization to which you belong, in which you participate, or in which you have ever held any office. For example, service clubs, governmental bodies, unions, professional organizations, volunteer activities, educational groups, political parties or political groups.
4) Have you ever served on a grand jury?
5) Have you ever been called as a witness in court or given a statement in any legal proceeding?
6) Do you have any close relatives or friends who are at the present time, or in the past employed by any state or federal agency, district attorney, lawyers, judges or employed in any job within the legal profession. If yes, list the names, relationships and occupations.
7) Have you ever had any legal training?
8) Have you or any close relatives or friends ever been the victim of a crime?
9) Have you ever been a witness to a crime, or ever been questioned by a law enforcement officer about a crime?
10) Have you ever filed a complaint against someone with law enforcement?
11) have you or any close relatives or friends ever been charged with or accused of a crime?
12) Have you or any close relatives or friends ever worked in law enforcem4ent, such as for a police department, county sheriff, highway patrol, or the attorney general?
13) Have you or do you have any close relatives or friends who have ever worked as a probation officer, parole officer or in the prison system?
14) Have you ever participated in 'posting' or 'replying' on any internet sites or 'blogs'? If yes, please list the name or 'handle' you post under and specifically which sites or 'blogs' upon which you post or reply.
15) Have you participated in any activity related to the care, transportation, feeding, housing, or clothing of any members of the FLDS?
16) Have you had any contacts or dealings with any person you understood at the time or now understand to be living at the YFZ Ranch in Schleicher County, Texas?
17) have you had any contacts or dealings with any person you understood at the time or now understand to be a member of the FLDS?
18) Please state your religious preference. State which church or synagogue you attend, if any."

AG Abbott is concerned it would seem, about the bloggosphere. See question 14.

More →

Sphere: Related Content

Attorney General Abbott shows up for Jury Selection

Nothing like showing the flag:

The Eldorado Success - "Abbott's presence in the courtroom would seem to indicated the importance he is giving the Keate prosecution."

Nothing like having your boss stare over your shoulder. I guess he wants the jurors to see him.

More →

Sphere: Related Content

Up until midnight, Stalin's trains must run on time. "Git 'er Done!"

Why no news all day yesterday on the various motions before the court?

The San Angelo Standard-Times - "Judge Barbara Walther, known for marathon courtroom sessions, presided over a joint consolidated motion by the defense attorneys for 10 members of the Fundamentalist Church of Jesus Christ of Latter Day Saints on Monday in the same makeshift courtroom where last month Raymond Merril Jessop was convicted of child sexual abuse and sentenced to 10 years in prison by a Schleicher County jury.

Keate is the second of the 10 to go to trial on a charge of child sexual abuse based on evidence acquired during the state's historic raid in April 2008 on the Yearning For Zion Ranch, the 1,700-acre community near Eldorado operated and inhabited by members of the polygamist sect.

Attorneys for the sect members argued Monday that the indictments against their clients should be quashed because the Schleicher County grand jury that issued the indictments did not have enough Hispanic members to represent the community profile in accordance with the accused men's civil rights. Walther denied the motion in a hearing that ended a few minutes before 11 p.m."

There is a complete dearth of information in the press on who the Judge would be that would rule on the motion to recuse, according to "Ron" who supposedly is an attorney and lives in Houston:

" 'That motion will be denied counsel" only takes about 3 seconds to say."

I have heard from a variety of sources, some fairly reliable, the names of two judges. That of Judge John Hyde and later a poster I don't know anything about claimed it was Judge Dean Rucker who ruled on the motion to recuse Judge Walther.

Bill over at "Free the FLDS Children" says Judge Walther just ignored the motion, but the San Angelo Standard-Times article says no, but doesn't give any detail:

"An earlier ruling by another judge denied a motion to disqualify Walther on the basis that she might be called as a witness in the grand jury challenge. The FLDS legal team, led by Jerry Goldstein, had argued that Walther should not be allowed to hear the motion against the indictment because she had a role in selecting the grand jury commissioner."

3 seconds? Apparently the court needed more, Ron.

At some point someone on the defense is going to raise the issue of the quality of the decision based on the "ram it, jam it, 'git 'er done" sort of pushiness that Walther is exhibiting. There are complex issues in all of these trials and they are in a lot of ways, unprecedented, but Walther proceeds by imposing deadlines and limiting testimony.

It has been remarked that it is a bad strategy in Iraq or Afghanistan to name a withdrawal date for our troops, and instead we should wait until the job is done. "Git 'er done" is a dangerous methodology when thoroughness is needed. "Git 'er done" is generally the mentality of a bull in a china shop.

More →

Sphere: Related Content