Eldorado, USA - Texas authorities used a hoax call about abuse at a polygamous sect's Texas ranch as a pretext for an "unlimited, general search" in April 2008 -- a search law officers "had wanted for years to conduct," an attorney contends in a new court filing.
The size and scope of the investigation showed from the outset it was not about checking the well-being of a single abuse victim and her child, and authorities failed to make even basic attempts to corroborate claims made in the hoax calls, the 100-plus-page brief filed Monday by attorney Gerald Goldstein on behalf of Frederick Merril Jessop states. They also made misstatements in affidavits used to get court orders to enter the ranch, the attorneys argue, among them that the abuser was at the ranch and that child welfare investigators had been denied access to the community and alleged victims.
"In this case, there can be little doubt that the law enforcement authorities who engaged in this unprecedented raid were aware of popular misconceptions about the beliefs and practices of the FLDS Church, and acted on such misconceptions rather than on the facts," the filing states.
The brief argues that based on testimony presented during a four-day court hearing in May, all evidence seized during the investigation at the sect's Yearning For Zion Ranch should be suppressed in upcoming criminal trial of Jessop. Attorneys expect to make the same argument for 9 other FLDS defendants.
The motion does not include cases of two other men: Lloyd H. Barlow, a physician charged with misdemeanor counts of failure to report child abuse; and Warren S. Jeffs, the convicted prophet of the Fundamentalist Church of Jesus Christ of Latter Day Saints, who faces multiple felony charges based on allegations of spiritual marriages to underage girls.
There is no indication when 51st District Judge Barbara Walther will rule on the suppression motion; she also must rule on whether the men have standing, and thus an expectation of privacy, to fight the seizure.
A pretrial hearing set for the 10 men on July 23 and the first criminal trials are scheduled for October. They face a total of 19 criminal counts on charges ranging from bigamy, sexual assault, tampering with evidence to conducting a prohibited ceremony.
Texas authorities entered the ranch after a San Angelo domestic violence shelter received several distress calls from a purported 16-year-old named "Sarah Jessop Barlow" claiming abuse by her husband, Dale Evans Barlow. During the May hearing, a Texas ranger acknowledged the calls were a hoax staged by Rozita Swinton of Colorado.
Child welfare officials removed 439 children from the ranch and kept them in state custody for two months before higher court rulings returned them to their parents. Law officers also seized some 300 boxes of documents, photographs and other items during the investigation at the ranch, material now being used to prosecute the FLDS men.
In the joint brief, defense attorneys say the mens' Constitutional and state-protected rights were violated during the search of the ranch.
Texas Ranger Brooks Long and other officers failed to make a single call to corroborate or verify the caller's information and left out critical information about the caller in his affidavit seeking a search warrant, the brief states.
In that affidavit, Long also stated Dale Evans Barlow was at the ranch, though he had not confirmed the man's whereabouts and knew, as a condition of probation for a previous offense, was not allowed to leave Arizona.
Long also knew, but failed to tell the judge, the caller had only confirmed her husband's name after a hotline worker supplied it. Officers also did not check out her claims of having been treated at a local hospital and even had "no idea" what the victim looked like, the brief states, despite Schleicher County Sheriff David Doran's "great contacts" with former FLDS members.
By April 6, 2008, when officers sought a second search warrant to enter the sect's temple, they knew but failed to disclose that Dale Evans Barlow was not at the ranch and that they had not located anyone named Sarah Barlow.
The original search warrant itself was overly broad and failed to list which of the 19 residences at the ranch were to be searched; instead it treated the ranch as a single household, the brief states.
The order given to Texas child welfare investigators, like the warrant, authorized officials to gather information related to Sarah Jessop Barlow, her infant and Dale Evans Barlow. But Child welfare investigators told law officers they had a court order to interview all girls at the ranch between the ages of 7 and 17.
"CPS agents and their lawyer's repeated assertions to law enforcement that they had obtained such an order from this Honorable Court appears to have been fabricated," the brief states.
Law enforcement provided security during those interviews, postponing any search for the caller or her abuser because, as Texas Ranger Brooks Long testified in May, "that was the game plan we set into place." That plan, based on testimony of other officers, was to seek evidence of "any crimes against the children present" at the ranch, the brief states.
Officers began that search only after Child Protective Service workers had interviewed the young girls, read personal journals found in the schoolhouse and informed law officers they had found evidence of underage and plural marriages.
"These revelations changed the entire focus and scope of the ensuring search," the brief states.
"In short, it is clear that the authorities used a hoax phone call as an excuse for staging a massively intrusive raid upon a disfavored religious group," the defense team argues. "Under the guise of looking for a man they knew was not there and a child that did not exist, Texas authorities conducted a general search to see what they could find."
The defense also argues that the seizure and dissemination of church records, including instructions and revelations from Jeffs, violated the mens' religious rights because it "desecrates the divine" and has a "chilling effect" on the seeking and giving of guidance to church members, the brief states.
"Defendants cannot freely exercise their religion if the state continues to retain and/or utilize these religious documents in these proceedings," the defense argues. Nor has the state shown a compelling need to use the information from the records, their brief states.