BishopAccountability.org
	Appellate Judges Now Hold Key to Any Appeals By Kelley Shannon San Angelo Standard-Times August 9, 2011 http://www.gosanangelo.com/news/2011/aug/09/jeffs-among-those-who-could-get-new-trial-on/ Warren Jeffs and seven other convicted members of the polygamous Fundamentalist Church of Jesus Christ of Latter Day Saints challenged search warrants and evidence in court and were flatly rejected, solely by one judge. But in the weeks and months to come, appellate court judges in Austin will hold the keys to whether the men remain behind bars or get new trials. State District Judge Barbara Walther signed off on the original search warrants and later upheld them in a court hearing. Then she presided over FLDS members' trials. One of the biggest arguments now before the Third Court of Appeals in Austin is in the case of Michael Emack over evidence gathered at the Yearning for Zion Ranch near Eldorado in 2008. Emack is one of 12 FLDS men indicted as an outcome of the raid. The evidence stemmed from search warrants that defense attorneys claim relied on faulty information and were carried out too broadly. "It's an important search issue that needs to be resolved," said Gerry Goldstein of San Antonio, an attorney for Emack and a past president of the National Association of Criminal Defense Lawyers. Goldstein and his team of attorneys argue that a hoax caller led to an initial Child Protective Services investigation and hours of unlawful questioning of girls rounded up at the ranch. A subsequent "tainted" search warrant resulted in more evidence seized from the property that shouldn't have been allowed at trial, the lawyers claim. More than 400 children were removed from the ranch amid allegations of abuse, but most were later returned. Emack, 60, pleaded no contest to sexual assault of a 16-year-old and bigamy in 2010. He was sentenced to seven years in prison but preserved his right to appeal the search while incarcerated, his attorneys say. The Third Court of Appeals heard oral arguments on the sex assault conviction in May and has not yet issued an opinion. The defense's arguments against the second charge of bigamy are similar, and those were submitted to the court Monday based on previous written briefs. "They both stand or fall on the same issue," Goldstein said. If the search warrant is found to be unlawful, Emack's case could be returned to prosecutors for a new trial. "The question is, would that leave them with any evidence?" A hoax call leading to an initial investigation at the ranch wouldn't necessarily invalidate a search warrant, said Adam Gershowitz, an associate professor at the University of Houston Law Center. The main question is whether law officers and the judge believed there was probable cause for a search, he said. Defense contentions that the searches were too sweeping and encompassed an entire community of homes rather than targeting a specific place seems to be a stronger argument, Gershowitz said. "That is troubling," he said. If law officers executed "blanket warrants," that could violate the U.S. and Texas constitutions. The Texas Attorney General's Office did not return a message this week seeking additional comment on the Emack appeal. Prosecutors have disputed the defense arguments in their legal briefs, backing up the trial judge's findings. Attorneys for 10 men argued in a four-day court hearing in 2009 for suppression of evidence, but Walther denied the motion. The other defendants who joined with Emack in the request could be affected similarly if the search warrant is thrown out, though aspects of their own trials also could come into play in appeals, Goldstein said. Jeffs had not been extradited to Texas at the time of that hearing and has his own legal issues, but an appellate ruling on the search warrant also could affect his case, Goldstein said. Jeffs' attorneys asked at the start of his trial to have evidence suppressed. Walther denied it. A pressing point for Jeffs will be whether he has properly preserved the search warrant and suppression of evidence claim for appeal, Gershowitz said, given that he has fired some attorneys and at times represented himself. "It is generally a terrible idea to go to a criminal trial without lawyers," Gershowitz said. Jeffs was convicted last week of sexual assault of a child and aggravated sexual assault of a child. On Tuesday, he was sentenced to life plus 20 years in prison. As for Walther being the only judge ruling on the evidence question in the multiple cases, both Gershowitz and Goldstein said that is not unheard of in a small community where there are few judges. "In Texas it is certainly not unique and happens more than most of us would think or would like," Goldstein said. Ideally, other impartial judges would have been involved along the way, rather than having the same judge who signed off on the search warrants "grading her own paper," he said. In the case of Emack and the rest of the defendants, the next judges who will have a say are on higher courts. It's not known when a ruling will come from the Third Court of Appeals. Any decision could then be appealed to the Texas Court of Criminal Appeals.
Any original material on these pages is copyright © BishopAccountability.org 2004. Reproduce freely with attribution.