Houston Chronicle - May 17, 2011
FLDS member 1st to appeal Texas conviction
By PAUL J. WEBER Associated Press
AUSTIN, Texas — A member of a polygamist church was set to challenge his sexual assault conviction Wednesday in the first appeal stemming from the 2008 raid on a Texas ranch that put more than 400 children in temporary state custody and led to criminal charges against sect leader Warren Jeffs and nearly a dozen followers.
Michael Emack, 60, pleaded no contest last year to sexually assaulting a 16-year-old girl. The Fundamentalist Church of Jesus Christ of Latter Day Saints has characterized that plea as a legal strategy, saying Emack never would have received a fair trial in the rural Texas county where jurors have swiftly sentenced sect members.
Emack is scheduled Wednesday to finally get his appeal in the 3rd District Court of Appeals. His attorneys have denounced the search warrant that led to the raid on the Yearning for Zion ranch as invalid, arguing that reams of evidence seized are therefore tainted.
At the heart of Emack's appeal is that the phone calls that initiated the raid didn't come from a girl inside the ranch as originally thought. A Colorado woman was later suspected of making the "outcry" calls that alleged sexual and physical abuse in the West Texas ranch.
"The 6-day siege of the YFZ Ranch community in April of 2008 was a law enforcement debacle of unprecedented scope and magnitude," wrote Gerald Goldstein, Emack's attorney, in a 49-page brief filed last month.
Oral arguments were set for Wednesday, but the appellate court likely won't issue a ruling for weeks.
State prosecutors responded in court filings that the trial judge in Schleicher County already denied earlier attempts to suppress evidence from more than 900 boxes and 66 computers seized at the ranch. They also described Emack as paranoid that state officials targeted his church solely because of their religious beliefs.
"(Emack) plainly sees evidence of his persecution in everything; in every act of every state actor involved in his ultimate arrest and prosecution, at every stage," prosecutors wrote.
Emack had a child with the teenage girl after the church wed them in a "spiritual" marriage, according to prosecutors, and he was sentenced to seven years in prison. His attorneys allege that state District Judge Barbara Walther made 21 errors in failing to uphold their motion to suppress evidence collected from the raid.
The Texas attorney general's office hasn't lost a criminal case against the FLDS since the 2008 raid. Seven followers of Jeffs, the ecclesiastical head of the FLDS, have been prosecuted since last year, and all have been convicted. Only in one case have jurors deliberated more than two hours.
Jeffs was extradited to Texas last year but appears unlikely to stand trial anytime soon on charges of bigamy and sexual assault. He has appeared in court with four different attorneys and seen his trial date pushed back twice, and the court has yet to rule on substantial motions such as where the trial will even take place.
The FLDS is a breakaway sect of the Church of Jesus Christ of Latter-day Saints, the Mormon church, which renounced polygamy more than a century ago.
Search warrant used to raid FLDS Texas ranch challenged
BY LINDSAY WHITEHURST | The Salt Lake Tribune
Austin, Texas • In a hearing that could affect a dozen criminal cases connected to alleged underage marriages, a polygamous sect member on Wednesday challenged the search warrant that allowed a massive 2008 raid on the group’s West Texas ranch.
Attorney Robert Udashen told Texas 3rd District Court of Appeals judges the search warrant was illegally obtained because it was based on a hoax call from a Colorado woman pretending to be an abused 16-year-old plural wife trapped on the ranch.
“If law enforcement had just done a little investigation, they could have figured out … this call wasn’t true and it would have taken them little time to do it,” Udashen said in representing Michael Emack, a 60-year-old contractor serving seven years in prison after pleading no contest last year to sexual assault and bigamy charges.
But attorneys for the state of Texas said police had good reason to believe there was an abused girl, and that they got a second search warrant after seeing evidence of other underage marriages and polygamy after entering the Fundamentalist Church of Jesus Christ of Latter-Day Saints’ Yearning for Zion Ranch in Eldorado.
Authorities “did not put any deliberate falsehood and did not act in reckless disregard for the truth,” said prosecutor Eric Nichols, of the Texas Attorney General’s Office.
Fifty-first District Judge Barbara Walther found that the warrant was legal during a suppression of evidence hearing in 2009.
If the appeals court rules that the search warrant was illegal, it could bring into question the cases of all 12 FLDS men who were charged with crimes related to alleged underage marriages following the raid — including sect leader Warren S. Jeffs, 55, charged with sexual assault and bigamy.
Five FLDS men have filed appeals after being convicted; one other entered a no contest plea and is also appealing. Five more are awaiting trial; Jeffs’ trial is set for late July.
If the court were to side with Emack, who spiritually married a 16-year-old girl, the effects on the other men would have to be decided on a “case-by-case basis,” but “there is no doubt the warrant at issue is the same one … it’s very important,” Nichols said.
The evidence in all those cases was collected in the week-long raid, in which authorities also removed 439 children who were later returned to their parents. It started in the late afternoon of April 3, 2008, when authorities arrived at the YFZ Ranch looking for 16-year-old Sarah Jessop Barlow.
That girl doesn’t exist. Authorities have said the calls claiming abuse came from then-33-year-old Rozita Swinton, who has a history of making fake abuse calls. She has not been charged in connection with the call, which was placed to the NewBridge Family Shelter in San Angelo. Shelter workers then called police.
Calling the raid “a law enforcement debacle of unprecedented scope and magnitude,” Emack’s attorneys argued that the caller named her husband only after being given “multiple choice options” by shelter workers.
But Nichols countered that the caller’s omissions, including a blocked number and a reluctance to reveal personal information, fit the profile of a domestic violence victim.
Once authorities entered the ranch, Udashen said they overreached when they collected all the 7- to 17-year-old girls in the community and kept them overnight in a schoolhouse for questioning, then began searching the community house-to-house to find the victim.
Nichols said that was reasonable in the approximately 1,600-acre ranch, which has no street names or house numbers.
“You have a situation in which there are no street names, no house numbers,” he said. “It was reasonable under those circumstances for those officers to ... look for her wherever she might be found.”
But Udashen argued that those actions were overly general.
“I’m not sure where the state gets off saying because they were looking for Sarah Barlow, they had a right to go into Michael Emack’s home,” Udashen said. “Where in the world does that come from?”
Willie R. Jessop, the onetime spokesman for the church, attended Wednesday’s hearing. He called the search warrant challenge “a civil rights issue.”
The raid “was a terrible trauma to the children. It could happen to any community in any city in America if it is tolerated in West Texas,” he said.
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Stop Polygamy in Canada website has notes taken by observers in the courtroom as well as links to most of the affidavits and research the court is considering in this case.
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