16 Dec 2010

Utah Supreme Court decides to not protect FLDS girls from forced marriage, overturns Warren Jeffs' accomplice to rape convictions

TIME - July 28, 2010

A Polygamist's Win: Will Texas Have Better Luck with Warren Jeffs?

By Hilary Hylton / Austin

Almost four years ago, the lanky, pale-skinned, wide-eyed "prophet" of a polygamist sect stepped out of a red Cadillac Escalade during a routine traffic stop just north of Las Vegas and said, "I am Warren Jeffs." In little time, FBI agents arrived to cuff the man who had shared a slot with Osama bin Laden on the most-wanted list that summer. With that arrest, the then 50-year-old Jeffs took his first step into a four-year legal maze that this week produced yet another surprising twist: the decision by the Utah Supreme Court to throw out the only successful conviction of the self-styled seer.

Jeffs once foretold that he would be in a long fight against dark forces — and he seems to have won a major victory in that war. He has suffered for it: his health debilitated by frequent hunger strikes, his knees cankered with sores from long sessions of prayer, according to prison officials. But the war between the prophet and the law is not over. While Utah prosecutors ponder their next move and consider whether to retry Jeffs, the state of Texas is in hot pursuit.

The Utah high-court ruling stunned prosecutors and prompted cries of vindication from Jeffs' legal team. In 2007, Utah won a conviction on charges that Jeffs was, in effect, an accomplice to rape when he performed a marriage between Elissa Wall, 14, and her then 19-year-old first cousin, Allen G. Steed — both members of his Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS). Steed was charged with rape only after Jeffs' trial — an anachronism emphasized in the Utah high-court ruling — and the younger man's case has yet to go to trial.

The high court declared that jury instructions delivered by the trial judge and authored by the prosecution were wrong. "The question of accomplice liability cannot enter the equation until after a determination has been made that a crime has been committed," the opinion read, noting Steed was not facing rape charges when Jeffs was charged. The high court also noted the Utah criminal statute calls for the "actor" in a rape to be in a position of "special trust" with the victim. In the jury instructions, prosecutors defined Jeffs as the "actor" who held a position of trust over Wall. But Jeffs' appellate team argued the instructions were erroneous and "focused the jury on Jeffs' actions and position of special trust, rather than on Steed's, for the purpose of determining whether Wall consented."

The ruling drew fire from Marci Hamilton, a lawyer who specializes in church-state relations and who holds the Paul R. Verkuil Chair in Public Law at the Benjamin Cardozo School of Law. She has been an outspoken critic of the pace and dearth of prosecutions in polygamy cases in Arizona and Utah. "It's not terribly surprising" Hamilton told TIME. "Their reading of the statute strikes me as mechanical." She notes that, although the opinion expressed sympathy for the victim, the unanimous opinion did not invite the state legislature to revisit the statute to make prosecutions in child-marriage cases easier. Hamilton says the politics of Arizona and Utah — where an estimated 10,000 members of the FLDS live and polygamy has a long, complicated history — have made prosecutions and even civil cases against the FLDS difficult. Local prosecutors "are awful on these issues," Hamilton says, adding that federal authorities have failed despite numerous violations of the Mann Act — the 1910 so-called "white slave" trade act enacted to fight interstate human trafficking.

State prosecutors in several western states have promised to pursue the FLDS in child-marriage cases, but prosecutions have been difficult given the tight-knit FLDS community, in which members are closely related by blood and tied together by business. As for federal prosecutions, they have not been forthcoming, despite lingering rumors of a federal grand jury seated somewhere in the west. When FBI agents accompanied Texas Rangers on the 2008 raid of the FLDS Yearning for Zion Ranch in Eldorado, longtime FLDS observers speculated that the federal authorities might be investigating the group.

Utah's attorney general Mark Shurtleff said he was "disappointed" in the ruling. His office will consult with prosecutors in Washington County, where Jeffs was convicted, to determine whether to ask for a rehearing on the appeal — unlikely, legal observers say — or go forward with a retrial. But the ruling may be a barrier to a retrial. "It is going to make it difficult ... in cases where some of these men are in positions of power, almost [complete] power like Warren Jeffs, to prosecute them for forcing these girls into these marriages," assistant attorney general Laura Dupaix said.

Roger Hoole, a Salt Lake City attorney for Elissa Wall, the alleged victim in the Jeffs' trial, said his client is willing to endure another trial if prosecutors go ahead. Just last month, Arizona dropped two cases against Jeffs, one involving Wall and another of Hoole's clients, Susie Barlow. The alleged victims agreed to the move because Jeffs had already served more time in Utah's Mohave County jail than he would have received if convicted in their Arizona-based cases. And Wall and Barlow had apparently been under huge stress. "They have been reviled. They are hated and they have been scapegoated" in the FLDS community, Hoole claimed.

The best bet for those in pursuit of Jeffs may be the pending Eldorado charges in Texas, where he is facing trial for bigamy, sexual assault of a child and aggravated assault. "Texas is the place for justice on these issues," says Hamilton. "He is more likely to get serious jail time." Texas prosecutors have been racking up a list of successful prosecutions against 12 FLDS members, based on evidence obtained in the Eldorado raid and DNA samples from FLDS children taken into Texas custody. So far seven men have been found guilty of various child-abuse, bigamy and other felony charges with sentences ranging from seven to 75 years. Jeffs is alleged to have performed and blessed the marriages involved in these cases.

The Utah high-court ruling came down on the same day Jeffs was scheduled to appear in court in an extradition hearing. But after the high-court ruling, Texas pulled down its paperwork on a technicality: it had been requesting temporary custody of Jeffs under an interstate agreement relating to prisoners and, at least technically, Jeffs is no longer a convicted prisoner. A spokesman for Texas attorney general Greg Abbott said the papers are being redrafted and the attorney general was committed to seeing Jeffs stand trial in Texas.

For now, Jeffs will be transferred from Utah state prison back to the Washington County Purgatory jail as Utah prosecutors mull over their options. They have 14 days to seek a rehearing on the appeal and 30 days to announce a new trial. Jeffs' attorneys are pressing for a decision before that and Wednesday, Judge James Shumate, who presided over Jeffs' original trial, granted their request for a speedy trial hearing now set for Aug. 18. If prosecutors opt for a retrial, the case will be sent back to the trial court, according to high-court spokesman Nancy Volmer, and the judge will set a hearing to determine if Jeffs will be detained or released on bail. Given his fugitive history, Hamilton says, Jeffs is likely to be deemed "a huge flight risk." Meanwhile, the clock also is ticking for Texas prosecutors and Jeffs' lawyers have promised a vigorous fight. But Texas only has to confirm Jeffs' identity to a Utah court, not the merit of the charges. As long as they know where Jeffs is, it is likely Texas will get its man.

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CNN - July 27, 2010

Utah Supreme Court overturns Jeffs convictions, orders new trial

By Ashley Hayes | CNN

(CNN) -- The Utah Supreme Court has reversed Warren Steed Jeffs' two convictions on charges of rape as an accomplice and ordered a new trial, saying that instructions given to jurors were erroneous.

Jeffs, the "prophet" of the Fundamentalist Church of Jesus Christ of Latter-day Saints, or FLDS, was sentenced to two consecutive terms of five years to life after he was convicted in September 2007. He was accused of using his religious influence over his followers to coerce a 14-year-old girl into marrying her 19-year-old cousin.

"We regret the effect our opinion today may have on the victim of the underlying crime, to whom we do not wish to cause additional pain," the court said. "However, we must ensure that the laws are applied evenly and appropriately, in this case as in every case."

In Jeffs' trial, Elissa Wall testified that she repeatedly told him at the time that she did not want to be married and was uncomfortable with sexual advances from her husband, Allen Steed. She said Jeffs advised her to pray and submit to her husband, learn to love him and bear his children, or risk losing her "eternal salvation."

Wall was 21 at the time of Jeffs' conviction in 2007. Her attorneys made her name public at the end of the trial, with her consent. She is married to someone else and has left the FLDS.

The first count of rape as an accomplice against Jeffs was alleged to have occurred shortly after Wall and Steed were married, when the two first had sex, the Utah Supreme Court opinion said. The second was alleged to have occurred after Jeffs refused to "release" Wall from her marriage and told her to "give herself to [Steed] ... mind, body and soul."

Prosecutors relied on three separate portions of the law defining the circumstances under which sex is non-consensual, the opinion said. Under those portions, the victim must express a lack of consent through words or conduct, the victim must be younger than 18 years, and "the actor" must be in a position of special trust in relation to the victim.

"Jeffs argues that the instruction erroneously focused the jury on Jeffs' actions and position of special trust, rather than on Steed's, for the purpose of determining whether Wall consented," the opinion said.

The justices agreed, saying the jurors should have been asked to consider whether Steed was in a position of special trust and whether Steed lured or induced Wall into having sex.

"The state interprets the term 'actor' to mean the 'defendant,' " the opinion said. "We conclude that the state's interpretation is erroneous."

"We're thrilled," said Jeffs' defense attorney, Wally Bugden. "We're overjoyed. We're ecstatic that the Supreme Court agreed with us. ... The state just had the wrong legal theory."

Jeffs is "an unpopular religious figure in our state," Bugden said, and the media have "had a field day portraying him as an evil, horrible, pernicious individual." The court, he said, was able to put that aside and base its decision on the evidence and legal theories, not on emotion, and determine that the erroneous instructions led jurors to "an erroneous result."

The defense has always maintained that marrying someone, encouraging them to make their marriage work and "be fruitful and multiply ... that is not the same thing as saying to a husband, 'I'm encouraging you to rape your wife,' " Bugden said.

He said he had not had a chance to speak to Jeffs but planned to do so Tuesday afternoon.

Assistant Utah Attorney General Laura Dupaix told CNN affiliate KSTU that the opinion is "going to make it difficult, I think, for us to do future prosecutions in cases where some of these men in positions of power -- almost complete power, like Warren Jeffs is -- to prosecute them for forcing young girls into these marriages. I think that's really the part of this opinion that is most disappointing for us."

The justices sent the case back to the lower court for a new trial.

The state has 14 days to request a rehearing with the Utah Supreme Court, said Nancy Volmer, spokeswoman for Utah state courts. The justices would then grant or deny that petition. If a request is not made, the case will be sent back to the trial court within 30 days, and the lower District Court then has 30 days to schedule a hearing.

Jeffs is being held at the Utah State Prison in Draper, about 30 miles south of Salt Lake City. The issue of whether he should be released pending a new trial would be addressed at the District Court hearing, Volmer said.

However, Bugden said, Jeffs will be transferred back to Washington County in southern Utah, where he was convicted -- and closer to the FLDS community. "We will be asking for bail," he said.

He said he expects Washington County prosecutors to decide quickly whether they want to proceed with the case.

Jeffs had been awaiting trial in Arizona on four charges of being an accomplice to sexual conduct with a minor. But last month, a judge dismissed those charges. Matt Smith, the Mohave County, Arizona, prosecutor, had asked the court to throw out the charges, citing "much more serious charges" against Jeffs in Texas and the desire of his alleged victims that he "face these more serious charges as soon as possible."

Jeffs was indicted in Texas in 2008 on a felony charge of sexual assault of a child. An indictment accuses Jeffs of assaulting a child "younger than 17 years of age and not legally married to the defendant" in January 2005. If convicted on the Texas charges, Jeffs could face a maximum penalty of five to 99 years or life in prison and a fine of $10,000.

The FLDS drew national attention when Jeffs was arrested during a routine traffic stop in August 2006. At the time, he was on the FBI's Ten Most Wanted list.

The sect is a 10,000-member offshoot of the mainstream Mormon church. Its members openly practice polygamy at the Yearning for Zion Ranch in Eldorado, Texas, and in two towns straddling the Utah-Arizona state line: Hildale, Utah, and Colorado City, Arizona. Critics of the sect say young girls are forced into "spiritual" marriages with older men and are sexually abused. Sect members have denied that any sexual abuse takes place.

Jeffs had led the sect since his father's death in 2002.

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