First FLDS Trial Concludes; Decision Pending (Updated: Judge Removes 1 Child)
[Guest post by DRJ]
The trial in the first FLDS child custody case has concluded and Judge Barbara Walther is preparing to rule. It’s unwise to predict court decisions but, after reading this section of today’s San Angelo Standard-Times’ article, my guess is the court will remove the children from their parents’ custody:
“The children, a 14-year-old girl and an 11-year-old boy, want to be with their mother, attorneys for the children said in closing arguments. Barbara Jessop’s attorney, San Angelo lawyer Gonzalo Rios, argued that Walther could impose additional restrictions on his client, but that she should retain custody of her children.
Walther seemed skeptical of his arguments, noting Jessop had pleaded the Fifth Amendment more than 50 times Monday, including on such questions as whether she believes she should prevent her children from participating in underage marriages.”
UPDATE: Judge Walther has issued a Solomon-like ruling, deciding that the 14-year-old girl will be placed in foster care and the 11-year-old boy will remain in his mother’s custody. Here is what Judge Walther said:
“The court has heard incontrovertible evidence of the marriage of the child,” Walther read from her ruling shortly after noon. “The court is concerned that the mother was unable to provide assurances that she would be able to protect the child in the future.”
Regarding pleading the Fifth in child custody cases:
“Walther seemed skeptical of his [Rios’] arguments, noting [Rios’ client Barbara] Jessop had pleaded the Fifth Amendment more than 50 times Monday, including on such questions as whether she believes she should prevent her children from participating in underage marriages.
The pleas – 56 of them in 57 questions from CPS attorney Jeff Schmidt – seemed particularly damaging because, in civil cases, pleading the Fifth can be used as a factor in reaching decisions.
“It obviously did” hurt Jessop’s case, said Rios after the hearing.”
UPDATE: The Austin American-Statesman reports agreements were approved by the court today authorizing that 5 FLDS girls remain with their mothers subject to CPS supervision. Gonzalo Rios, the attorney for Barbara Jessop, said his client was the only mother that the CPS refused to negotiate with regarding custody.
— DRJ
That’s interesting, so your Fifth Amendment rights are limited in the sense that they only count the first five or ten times you rely on them? After that a presumption of guilt kicks in?
I’m just sayin’, what else could your comment mean?
(I don’t know anything about rights and wrongs of the case.)
ZF (009aa3) — 8/19/2008 @ 10:42 amThat comment about the Fifth really disturbs me, I have to say. I don’t know enough about the details of the case, and don’t particularly trust reporters to get details correct, but the bar should be really, really high on removing kids from their parents. Like ‘imminently going to be hurt’ high. Not ‘they have beliefs I don’t like’.
Skip (ba6438) — 8/19/2008 @ 11:12 amZF, the fifth only works insofar as it protects you from prosecution.
These family courts don’t have presumptions of innocence, and are just making their best sloppy guess as to what’s in the kid’s best interest.
She basically refused to say that she would keep her kids from being raped. While you’re right that it makes no difference how many times she refuses to answer, the number of times shows that the issue came up often.
I understand that there were a lot of flaws in the investigation, but there’s little doubt that this lifestyle is not in the child’s best interest. We can’t legally condemn a religion, but just ignoring that aspect, t it’s still clear that these kids deserve a safer home.
Juan (4cdfb7) — 8/19/2008 @ 11:21 amSo Juan, I suppose that you’re in favor of Texas Child Protective Services basically going in and taking all the kids out of the West Dallas Projects, and all the other slums? Do those kids deserve a safer home as well?
Skip (ba6438) — 8/19/2008 @ 11:31 amI’ve updated the post to reflect the judge’s ruling.
DRJ (a5243f) — 8/19/2008 @ 11:48 amFinally, real due process.
The decision to remove the daughter, who was “married” at age 12, but keep the 11 y.o. boy in the mother’s custody seems very sound to me.
I note particularly that the judge criticized CPS for their stealth behavior. By deciding to keep the boy with his mother, it seems like the judge gave the benefit of doubt to the mother. Well done.
I am deeply sad, however, about the incredible damage done to this girl, and no doubt, others like her. It is tragic that humans, like this mother, are programmed to ignore basic human instincts and needs.
DRJ – pleeeeeeze keep posting developments in this FLDS mess.
Ed (ddaac8) — 8/19/2008 @ 11:49 amSkip, I think it’s fair to say that Texas needs to fund its foster care system appropriately, and much more adequately pay relatives to foster children.
Until it does, then we should focus on the most extreme cases, SUCH AS WHEN KIDS ARE GETTING RITUALISTICALLY RAPED.
But yeah, a lot of those Dallas homes you speak of are full of drugs and other crimes. I think temporary foster care / making the parents get off drugs and take anger management classes is not a bad idea for a sadly large number of homes.
I realize this is counter to basic liberty. I don’t know that I care anymore, having spent a lot of time watching family court proceedings (one near my home, and I am a student in a law school).
It’s grotesque to take kids from parents, and it raises the hottest resolve in our hearts to resist the government. I think I don’t care.
Juan (4cdfb7) — 8/19/2008 @ 12:01 pmI regret to say that so far Judge Walther has not impressed me as a judge who wants to work hard to do justice in accordance with the law and the facts. And it’s a shame. Because that is what is desperately needed in these cases.
nk (3c7a86) — 8/19/2008 @ 1:25 pmNK,
I think she may be trying to follow what she perceives as the direction from the appellate court decisions, but I don’t know if you are referring to that or the illegal search issues.
DRJ (a5243f) — 8/19/2008 @ 1:29 pmnk, I do agree that this case has had enough damn problems and everyone involved needs to be tip-toeing as much as possible.
Am I wrong on the law? Is the evidence problematic in this proceeding?
Juan (4cdfb7) — 8/19/2008 @ 1:35 pmDRJ #9,
Well … she should not have given cause to be reversed in the first place. It does not strike me that she struggled with the case — rather that she took the easy and lazy way with the mass hearings and mass removal of the children. Next, her tantrum in the process of the crafting of the agreement, which should have been a ruling, for the return of the children, upon remand. Now, this bothers me:
“Walther responded by noting the rule allows for the admission of other documents, not just the review, and asked Rios whether he wanted all the documents seized during the weeklong raid of the ranch introduced into the public record.
She then dismissed the court for lunch, telling Rios he could have the recess to think about what he wishes to do.”
It seems to me she should have encouraged any information that would help her make a decision. There is no jury so there is no danger of unfair prejudice. She also has the power to seal all or any part of those documents from public scrutiny.
I’m sorry, bu this judge strikes me as lazy, capricious, not very bright, and not very knowledgeable about the law she is applying.
nk (3c7a86) — 8/19/2008 @ 1:57 pmJuan #10,
On the issue of whether it’s ok to teach girls from birth that they should be the sperm-spittoons of dirty old men, I would want Torquemada as the judge. But that’s not Walther’s job. She is deciding the fate of the innocent children, the victims of the FLDS perverts. What life will she consign them to as an alternative to FLDS? That’s my problem with her competence.
nk (3c7a86) — 8/19/2008 @ 2:05 pmnk, no doubt, these kids will not have a fun bunch of years ahead of them unless they are extremely lucky. I know of kids who have slept on office furniture in Texan government facilities because of how lame our system is (and I’m in Travis County, probably the best CPS/family law area in the state).
But what choice does the judge have? If the parent cannot vouch that she will not let these kids get raped, she needs to find something better. Uday Hussein could arguably be a better parent. If there is some mentally healthy relative out there trying to get custody, and I’m just too brain-dead to know of it, then I apologize. Kids who come out of foster care in Texas are pretty usually screwed for life. I am a fiscal conservative, but enormously improving this system would cut down so many other problems.
I think you’re right that the judge could do a much better job.
Juan (4cdfb7) — 8/19/2008 @ 2:15 pmNK,
I agree with you that the proceedings should not have been handled as one case and that’s where this train came off the tracks. For some reason Judge Walther felt like she alone had to handle this and couldn’t call on other judges or the State Supreme Court for help. I attribute that to the fact this was a complex case and the law requires a hearing in 14 days. It’s no excuse but I think she was overwhelmed and failed to step back and see the big picture.
Having said that, I don’t think her initial mistake damns every action she takes after that. She’s entitled to hear this proceeding and exercise reasonable judgment consistent with the appellate decisions. In my opinion, one lesson of the appellate decisions was to consider each child individually. I think that’s what Judge Walther tried to do here.
As for the question of the documents, I don’t think we know all the story when we read about it in the newspaper, especially with this newspaper. The San Angelo Standard-Times has made a determined effort to cover this story completely and I applaud their coverage, but the one area they have been weak on is the legal issues. I think the reporters are young and don’t have a good background in legal issues, and that’s understandable.
My reading of the discussion between Jessop’s lawyer, Rios, and Judge Walther was different than yours. I think Judge Walther knows exactly what’s in the other documents – there are 4-5 other cases pending in which the CPS has challenged custody, plus she probably saw most if not all of them during the initial hearings. I suspect the CPS only introduced documents concerning the Jessop family in this case and Judge Walther was warning Rios that he might be opening the door to let in additional negative evidence about other families in the community and/or related to the Jessops.
That’s why I think she gave Rios extra time to discuss this with his client and make a decision. Given that the case concluded with oral arguments first thing this morning, apparently Rios decided not to open that door.
DRJ (a5243f) — 8/19/2008 @ 2:22 pmThe point is, Juan, that I don’t see a whole lot of enthusiasm for removing the kids, mostly minorities, from the projects, when the vast majority of them are sexually active at fourteen, but there seems to be some enthusiasm for doing so when the people involved are white, and have a funny religion and that disturbs me. As for your RITUALISTIC RAPE shouts, I suspect that if you did a genealogy for every US reader of this website, far more of them would have an ancestor married at fourteen within three or four generations than would not. People on farms got married early. So some of us who aren’t quite as excitable don’t get worked up about it.
I’m actually far more concerned about the projects problems, because those kids are going to be lost for a generation at least, which isn’t something I see happening with the FDLS.
Skip (ba6438) — 8/19/2008 @ 2:37 pmSkip,
The inner-city kids go to public schools where they can report abuse or get help from teachers, and they can also go to the police or shelters when they need help. The FLDS children can’t do those things and have been conditioned to accept their lives as normal.
DRJ (a5243f) — 8/19/2008 @ 2:40 pmSorry, DRJ, but Rios is not allowed to care about anyone else except his client. If reviewing the documents sends every person in San Angelo County to the gurney, but in his independent professional judgment helps his client, he must review the documents.
Maybe I should have given a more complete quote:
“Rios again objected to the documents, saying he has the right to review all the documents from which the individual pieces were excerpted, under a rule designed to protect defendants from cherry-picked evidence.
Walther responded by noting the rule allows for the admission of other documents, not just the review, and asked Rios whether he wanted all the documents seized during the weeklong raid of the ranch introduced into the public record.
She then dismissed the court for lunch, telling Rios he could have the recess to think about what he wishes to do.”
If the judge has seen documents, as you suggest, that the defense has not, that’s not right either. And I do not understand how review by the defense puts them into the public record but review by the judge does not.
nk (3c7a86) — 8/19/2008 @ 2:49 pmAnd am I suggesting, “Fight me and you lose both kids because I’m the trier of law and fact and the standard of review is abuse of discretion”? Yes.
nk (3c7a86) — 8/19/2008 @ 2:51 pmI didn’t mean Rios was worried about what the evidence would say about others. I think Rios was worried that the other evidence would damage his client’s case by demonstrating she not only tolerated the underage marriage of her child but was part of a community in which underage marriage was a widespread practice.
However, I agree Rios should look at the documents if he hadn’t already seen them, if for no other reason than to make sure they were accurately presented.
DRJ (a5243f) — 8/19/2008 @ 2:59 pmJudge Walther and her fans chose to ignore the fact that there is an ongoing criminal investigation. Barbara Jessop needed to take the fifth becuase she has no guarantee on where that investigation is headed. Furthermore Judge Walther and the CPS conspired to fix the outcome of the hearing by suspending the right of discovery. Any evidence that did not fit the JUdge’s and CPS preferred version was kept out of court. Lastly, the CPS is required by law to see first if the child can be kept in the home before removal. CPS just demanded the children. I do not approve of 12 year olds getting married. In their campaign against the FLDS the CPS and their judge have repeatedly ignored due process of law. Furthermore, i have angered by reports that some of these children are so traumatized they run and hide when the door bell rings. CPS should not have custody of any children. Some people dont care about this.
Thomas (147e8a) — 8/19/2008 @ 3:21 pmI think Rios was worried that the other evidence would damage his client’s case by demonstrating she not only tolerated the underage marriage of her child but was part of a community in which underage marriage was a widespread practice.
If the judge thinks that’s helpful to her making a decision she should consider it no matter what the defense fears.
And now I’ll stop. And say that just because I don’t think you should like Judge Walther does not mean that I don’t like you. 😉
nk (3c7a86) — 8/19/2008 @ 3:24 pmThomas, you say you don’t approve of the kids being married off. But it’s a bit disjointed. What are the consequences of that position?
The CPS cannot ensure for certain whether or not everything will be perfect, but had plenty of evidence (and the parents have done a great job helping recently) of showing that these kids are not safe. So what do we do? You say CPS shouldn’t have custody. That would be nice, I agree. But what do we do? Leaving the kids with those sick parents is probably unwise unless they can assure the world they will protect the kids from rape. Am I wrong about that?
Juan (4cdfb7) — 8/19/2008 @ 3:30 pmI know, NK. I never take it that way.
However, I don’t think the Judge could consider evidence about other families in light of the appellate history of the case. The whole point of having a global hearing was to treat the community as one household. The appellate courts told her she couldn’t do that, and that’s why I think she was reluctant to let Rios bring the evidence of widespread underage marriage in through the back door.
Frankly, I can’t imagine any reason Rios would want to do that. The appellate courts found the evidence unpersuasive the last time but lightening rarely strikes twice in the same place.
DRJ (a5243f) — 8/19/2008 @ 3:36 pmThomas – I’ve been outspoken in this forum in decrying the tactics of CPS, the State of Texas, and this judge. What they perpetrated was a travesty.
But, it seems like there is significant evidence that this singular girl was subjected to abuse by marriage. There may be others for whom this is/was true. This court, this judge, at this time, simply must remove the girl from this situation, mother included. You can rest assured that this appeal will receive the strictest scrutiny by the Appellate Court. I just don’t see a reversal or remand for re-hearing.
NK – thank you so very much for your learned take on the “fine print” of the proceedings. I appreciate it and you.
Ed (ddaac8) — 8/19/2008 @ 3:53 pmAs best as I understand the law, the appellate court will apply “clear and convincing evidence” on whether there was neglect or abuse of the child, but “abuse of discretion” on disposition. Which makes the quality of the trial judge all important.
nk (3c7a86) — 8/19/2008 @ 4:36 pmNK,
Sorry to belabor this but I don’t think I understood your point regarding what the Judge did wrong. My impression is that the question before the court was the admissibility of documents, not discovery. I would be concerned if she prevented the attorney from seeing relevant documents but I’m not convinced that’s the issue.
Will you run it past me one more time?
DRJ (a5243f) — 8/19/2008 @ 5:51 pmI took
“Rios again objected to the documents, saying he has the right to review all the documents from which the individual pieces were excerpted, under a rule designed to protect defendants from cherry-picked evidence”
to mean Rios was not given all the documents — just those portions which the State introduced into evidence.
nk (3c7a86) — 8/19/2008 @ 7:27 pmI suppose a reasonable question is did he try to get them through discovery or by a subpoena, or did he just wait until “Your Honor, we hereby ask that this be marked People’s Exhibit A for identification and tender it to the defense.”
nk (3c7a86) — 8/19/2008 @ 7:42 pmI can’t believe an attorney in a civil case wouldn’t seek discovery of documents or that a judge in a civil case would let one side use documents that weren’t produced to the other side, so I assumed this was an inartful way to describe a ruling on admissibility of the document. Obviously it’s wiser to assume people say what they mean but I’m not sure reporters always understand and accurately explain the legal process.
DRJ (a5243f) — 8/19/2008 @ 7:59 pmSkip, I assure you that I would be just as appalled if these children at FLDS chapel were black. And I think there’s a pretty big difference between black children having sex at 14, and 12 year old girls being forced to marry old men by a literal patriarch before being traded again and again. Sorry, but if you think there’s parity there, we just disagree.
I kinda doubt your statistic that black kids having sex is a dominant trend, but I don’t know for sure. What I do know is that I argue for a consistent CPS policy, and from what I’ve seen, you’re completely wrong on the facts. It’s always been my impression that minority children are much more likely to be taken from their parents than whites (and I even think racism is part of the problem).
Regardless, if I were dictator, I can assure you that my policies would protect child-rape victims as much as possible, regardless of any racial factor. Good grief.
Juan (4cdfb7) — 8/19/2008 @ 10:11 pm