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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Friday, April 27, 2012

Worst Appellate Petition Ever

No blog about courts and writing can ignore what is, to my recollection, the worst appellate petition I have ever skimmed: Warren Jeffs's petition for discretionary review to the Texas Court of Criminal Appeals (after he basically skipped Austin's Third Court of Appeals).  Taking the claims of the brief at face value, an omniscient god would address a revelation to the proper court, and would otherwise be fluent. The Apostle Paul did better. Compare Acts 25:11b-12. An omnipotent god would just direct a whirlwind at the Powledge Unit, rather than directing a whirlwind judgment at the Judges of the Texas Court of Criminal Appeals. Compare Acts 16:26. Thanks to Lindsey Whitehurst, polygamy blogger of the Salt Lake Tribune. Hey old guys, this is not an effective way to have sex with extremely young girls in Texas.


  1. The two last words in your post are key: "in Texas". On behalf of hundreds of people interested in protecting children from pedophiles hiding behind their faith, I'd like to express my appreciation for the Texas legal system.

    In Utah, when presented with the audio tape of Jeffs' raping his 12-year-old "bride", two separate judges acted quickly to keep the tape out of the hands of prosecutors. One, Judge Dee Benson, ruled that it was a "sacred religious document" and sealed it.

    Jeffs pulls this stuff because it worked for him for years in Utah. Thank God for Texas!

  2. We have a lot of problems with our legal system in Texas, but being insufficiently tough on child sex offenders is generally not one of them.
    As a former prosecutor in a Texas county that prosecuted statutory rape vigorously, I say on behalf of the State of Texas, "You're welcome."

  3. As someone who has prosecuted statutory rape cases in Texas, I'm curious to know what you think of the Utah Supreme Court opinion that overturned Jeffs' Utah conviction for statutory rape. Actually - he was charged with accessory to rape - for forcing a 14-year-old to marry her adult cousin.

    I'm not qualified to evaluate the legal arguments. I'm mostly outraged that the court offers no suggestions for how the case might be successfully retried. There is no sense of urgency around protecting other young girls from forced or coerced marriage - even though the case itself revealed a culture in which men gain status and power through multiple marriages - and find young girls raised in the sect to be the easiest source of compliant brides. (The justices accepted that Jeffs forced the child into marriage - as a favor to another powerful man in the sect.)

    If you have the time and interest in reading the opinion, I'd be interested in your thoughts. Would the Texas Supreme Court have handled the legal argument differently ? I'm certain they would have found a way to successfully convict Jeffs - but I'm interested in whether you think the Utah Supreme Court decision is credible on its own merit.

    My untrained impression is that, according to this opinion, there is no law in Utah against forcing a child to marry an adult.


  4. 1. I've never prosecuted a statutory rape case in Texas. My boss, the elected district attorney, quite properly did not entrust those cases to me, but tried them himself with the first assistant.
    2. I'm not a Utah lawyer. Its possible, but unlikely, that there's some law that all Utah lawyers take for granted that I don't know about.
    3. One of the most common legal errors that results in a trial judgment reversal is jury charge error: putting the law improperly or putting the wrong law into the jury's instructions. If the jury is not asked the jury questions properly in the trial, their answers are of no value. The jury instructions in Jeffs's Utah trial would have been complicated. Jeffs was the defendant as an accomplice to Steed, who inserted his sexual organ into Wall's. According to the opinion,one way that a person may be convicted of rape in Utah is by violating special trust against a person less than 18 years old. That Jeffs was in a position of special trust as to Wall, doesn't necessarily make for special trust rape. It would only be special trust rape if Steed were in a position of special trust as to Wall. I understand that the Utah Supremes' fear is that the jury instructions would allow Jeffs to be convicted of special trust rape even if the jury believed that Steed was not in a position of special trust, which would not be proper.
    3. Texas's highest criminal court is not the Texas Supreme Court, but the Court of Criminal Appeals. In Texas, Jeffs's appeal would be to one of our courts of appeals, which would have treated jury charge error like that in Jeffs's case like the Utah Supremes did. I flatter myself to think, though, that Texas trial prosecutors would never have made such a mistake. I feel sure my old boss never would have.
    4. Maybe Jeffs didn't follow through on his Austin Third Court of Appeals appeal, because he didn't understand that for his Texas case, it was the equivalent of the Utah Supreme Court. The Utah Supreme Court has to hear or send to its Court of Appeals all rape appeals. The Texas Court of Criminal Appeals doesn't have to hear any noncapital trial appeal it doesn't want to. (His CCA petition indicates either that he has completely lost touch with reality or that he has given up hope and intends to spend the next 39 years playing the martyr in Texas prisons.
    4. It seems to me pretty clear that on retrial Jeffs would be found guilty as an accomplice to Steed's statutory rape. Put another another way, Jeffs violated Utah law by helping to entice Walls, who was between 14 and 18, to have sex with Steed, more than five years her senior. I'm not sure that Jeffs did that just by marrying Walls and Steed, but he violated the law by hassling Walls so much about it.

  5. On Jeffs CCA petition: I'd go with the martyr theory. He is still manipulating his followers - something he would not be able to do if he had lost it completely. We pagans can't see the truth in his message because we are outsiders. True believers understand...

    On Jeffs being found guilty on retrial: I hope that is the case. The AG's office decided not to retry, saying they did not feel they had enough guidance to move forward successfully. Of course Texas had already made a claim - so Jeffs wasn't going to go free. I'd like to think they would have made more of an effort otherwise.

    It does seem odd to me that forced/coerced marriage is not illegal all on its own. It is a violation of the UN Charter of Human Rights. It seems to me that the right to choose who, when and if one marries - is a fundamental enough right to deserve legal protection.

    As bizarre as Jeffs' rantings seem - he appears to get some traction from his argument that he is simply seeking to practice "God's Pure Holy Celestial Eternal Marriage". The fact that one party is often manipulated or coerced into participating doesn't seem to trouble many folks. We seem to have a hard time balancing respect for religious freedom against the rights of children raised without the option to choose a life outside the sect.

    Fortunately, most people do draw the line at 12-year-olds...

  6. 1. A forced marriage, that is a marriage under physical duress, absent some other subsequent confirming action by the forced party is a nullity, and would generally be a crime: sexual assault under the law of parties (also known in Utah as accomplice to rape), assault, terroristic threat or extortion, etc., depending on state statutes.
    2. A marriage, not forced physically, but caused by psychological coercion, psychological manipulation, is very difficult to legally define and legally prove. A nontrivial number of marriages that most people would find unobjectionable are caused in part by psychological coercion and manipulation.

  7. What about financial threat? If a religious leader, say, threatens to kick a family out of their home and destroy their livelihood if they do not deliver their underage daughter for marriage: Any laws against that?

  8. TeriPatrick- sorry I only just found out about your comment. If there is a quid pro quo, a trade, and one side of the bargain is that some person facilitates statutory rape, that transaction is rape by accomplice (Utah) or sexual assault under the law of parties (Texas). These same actions could well constitute criminal conspiracy to commit rape/sexual assault, engaging in organized criminal activity and a violation of the racketeer influenced and corrupt organizations act.

  9. NBC Dateline's story about Warren Jeffs and YFZ Ranch, etc. http://www.nbcnews.com/id/3032600/#53004763