3 Dec 2008

Jeffs' attorneys file Utah Supreme Court appeal

Salt Lake Tribune - December 3, 2008

by Brooke Adams

Faulty jury instructions and a juror's substitution are among errors alleged in a Utah Supreme Court appeal that seeks a new trial for polygamous sect leader Warren S. Jeffs.

The appeal, filed last week, asks the court to reverse Jeffs' convictions and order a new trial or require 5th District Judge James Shumate to reconsider a motion for retrial after hearing jurors testify about the status of their deliberations before an alternate was seated.

Jeffs, leader of the Fundamentalist Church of Jesus Christ of Latter Day Saints, was convicted on two counts of rape as an accomplice in September 2007 based on a marriage he conducted in 2001 between Elissa Wall and Allen Steed. Shumate denied a motion for a retrial in April.

The appeal alleges errors involving: Inadequate and improper jury instructions; replacement of a juror after deliberations began; an unconstitutionally vague definition of enticement in Utah's rape statute; and the consecutive, rather than concurrent, 5-to-life sentences Jeffs received.

Among the instructions Shumate rejected was one requiring the jury to find Jeffs "knew that the sexual intercourse was without consent and that he intended that the result of his conduct would be that Allen Steed rape Elissa Wall."

Jeffs neither decided it was time for Wall to marry or that Steed should be the groom, states the filing by defense attorneys Walter Bugden, Tara Isaacson and Richard Wright. Rather, Fred Jessop, Wall's stepfather, was the primary force behind her placement marriage to Allen Steed; her mother and sisters, among others, supported it. The filing also says there is no evidence Jeffs, simply by performing her marriage or giving the couple advice, intended for unwanted sex to occur.

The appeal claims the prosecution's "fundamental flaw" is that Jeffs used "common religious language" in performing the ceremony and "made up nothing. He said nothing new. He was but a mouthpiece for a long-standing patriarchal doctrine" that is shared by various religions.

Because of overly broad enticement language in Utah's rape statute, "parents who encourage their pregnant minor child to marry the father who is an adult three years older may be guilty as accomplices" if additional intimacy occurs, the appeal states.

Likewise, a marriage counselor or rap singer might be liable as accomplices based on advice or songs that encourage sexual intimacy, the appeal argues.

"Indeed, Dr. Ruth's on-air advice on sex might fall within the broad scope of this statutory interpretation," the appeal says.

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