Will Texas Have Better Luck with Warren Jeffs?, by Hilary Hylton, TIME, July 28, 2010

Will Texas Have Better Luck with Warren Jeffs?

By Hilary Hylton
TIME
July 28, 2010

http://www.time.com/time/nation/article/0,8599,2006999,00.html?xid=rss-topstories

Warren Jeffs appears in a Las Vegas court on Aug. 31, 2006

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. (See pictures of families excommunicated by Warren Jeffs.)

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. (See the strange legal trip of Warren Jeffs.)

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." (Comment on this story.)

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. (See the top 10 religion stories of 2009.)

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. (See the top 10 crime stories of 2009.)

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.