Oklahoma Criminal Defense Blog

Warren Jeffs was lord of his realm.  He was head of the Fundamentalist Church of Jesus Christ of Latter Day Saints.  He was exalted by the 10,000 members of his sect, a radical offshoot of the Mormon Church.  Unfortunately, what he called religion included his taking 78 wives, in addition to his legal spouse, 24 of whom were under the age of 17.   Not just polygamy, but  requiring multiple children to be his wives and requiring other children to be the wives of other men.

A raid in 2008 on the religious group’s Yearning for Zion Ranch in Eldorado, Texas, a West Texas ranch found women dressed in 19th century hairdos and frontier-style dresses.  That was odd, but much more incriminating were several pregnant girls who were obviously underage.  It turned out the hotline call that led to the raid was baseless.  However, as any criminal defense attorney will tell you, evidence discovered based on what facts that constituted probable cause at the time will stand as lawfully obtained evidence, admissible in trial.

That trial just concluded last week in San Angelo, Texas, with two verdicts finding Jeffs guilty of child sexual abuse.  The jury will now hear the separate penalty phase from which Jeffs could receive up to life in prison.   Jeffs had fired a number of criminal defense lawyers over the months leading up to the trial and so ended up representing himself throughout the trial.  He may have heard, but did not believe the old axiom someone who represents himself has a fool for a client.  As usual, the serial lawyer changes slowed down the proceedings, but, as usual, once the trial got underway, the trial proceeded to the complete puzzlement of Jeffs, in spite of Jeff’s occasional outbursts.  He declined to make an opening statement, declined to cross examine witnesses, and, for, closing argument, Jeffs stood silent for all but the last few minutes of his half hour allotted time.  For most of the trial, Jeffs just sat silent, although he did go berserk on a few instances, yelling and lecturing the judge at length, on occasion reading a proclamation “from God.”

Last year, Jeffs got lucky.  He had been convicted by a jury in Utah, but his two sentences of up to life imprisonment were reversed by the Utah Supreme Court.  Jeffs had been found guilty of being an accomplice to the rape of a 14-year-old girl.   The girl testified Jeffs pressured her to marry a 19-year-old man, one of the “husbands” of Jeffs sect.   The appellate court reversal was based on the trial court’s failure to instruct the jury that for a verdict of guilty, the jury had to find the defendant had the specific intent for the husband to have non-consensual sex with the girl.   Upon the reversal, while the Utah cases were reset on the trail dockets, Jeffs was then extradited to Texas for the trial arising from the 2008 raid.

Jeffs had been indicted in Schleicher County, Texas, of sexually assaulting an under-age girl and tried in San Angelo.  DNA evidence was introduced at the trial to prove he fathered a child with a 15-year-old girl and audio tapes were played.  Interestingly, neither of the underage girls with whom he was accused of having sex testified.   He also was indicted on separate bigamy charges, which also arose from his time at the church compound that was raided.

Among the objections Jeffs made to the trial judge, District Judge Barbara Walther,  during the trial was for her recusal from the case based on the fact that this judge had approved the search warrant for the raid on the ranch in 2008.   It is a perfectly logical objection, that the judge who already found probable cause for the issuance of the warrant might be invested in the process, and a different judge sitting for the trial would avoid “the appearance of bias.”  But that logical approach would be contrary to the law in Oklahoma.  This issue was raised and found wanting by the Oklahoma Court of Criminal Appeals in 2001.  Raising this issue was apparently one of the few things Jeffs did that made sense.  His outbursts and threats of “the wrath of God” which he leveled at the judge and sermons defending polygamy were made right in front of the jury.   This is apparently how he would ordinarily act, so the presence of the jury did not make any difference to him.

The U.S. Constitution guarantees the presumption of innocence for one against whom criminal charges are filed.  So why does the public really not believe people who are charged are really innocent?  One is the drumbeat of crime, crime, crime, especially on the television nightly news that always follows the dictum, “If it bleeds, it leads.”    Then there is the plethora of crime reality shows that show the perpetrator in the act of the crime yet always ends with a mechanical disclaimer “all suspects are presumed innocent until proven guilty in a court of law.”  (We just saw who did it, so that makes a mockery of the so-often recited presumption.)  Then there are the routine police touches of leaks to the press and the perp walk.

All this played out as usual in the case of the French diplomat, Dominique Strausse-Kahn.  He was accused in May of sexually assaulting a maid at Sofitel New York where he had a suite.   The authorities in New York declared they had an air-tight case against Strausse-Kahn and demanded he post bail in the amount of $1million.  The District Attorney, Cyrus Vance, Jr., spoke on the courthouse steps and described the charges as “extremely serious” and said the “evidence supports the commission of nonconsensual forced sexual acts.”  Of course, the police added their “perp walk” to give everyone the impression the man they arrested is, of course, guilty, followed by leak after leak.

The case exploded in France, where Strausse-Kahn had been expected to run for the presidency as a Socialist against incumbent President Sarkozy.  Among the shock the French that their respected politician had been accused was shock in the way the American justice system treated the accused as already guilty.   But as the New York charges made news in France, women in France came forward to accuse him of such acts against them in the past.   And more in France rose up to question the routine treatment of women in French society.

Now everyone has held their breath.  Prosecutors have announced that, “whoops,” maybe their case is not so strong.  They have discovered serious problems in the case, serious enough that the defendant has been released without any bail.    To their credit, it was the prosecutors themselves who revealed the problems to the defense, something criminal defense lawyers do not always encounter.    Sometimes prosecutors hide evidence they don’t like, but the prosecutors  immediately brought it to light here.

The complaining witness, a native of Guinea, has repeatedly lied to police since her initial interview.  Within a day of the attack she claims Strausse-Kahn made upon her, she had a phone conversation discussing the possible benefits of pursuing the charges against him.   The conversation was recorded.   The man with whom she had this conversation had been arrested on charges of possessing 400 pounds of marijuana and is one of several who have made deposits totaling $100,000 into the woman’s bank accounts over the last two years.  Also the woman has been paying hundreds of dollars every month in telephone charges for someone.  What on earth is going on here ?  This does not sound like the meek housemaid who had no criminal record, who just worked hard and minded her own business, the perfectly credible witness the New York police had portrayed.

Also the woman told investigators she had mentioned a previous rape in her application for asylum to the U.S., but that application reveals no such mention.  That could be a small thing, but since the woman’s credibility is the heart of the case, any inconsistencies, especially about her sexual past, could become huge.  Police originally described her as a hard-working housekeeper with no criminal record.   No wonder the French thought New York was in a rush to judgment.

Forensic tests showed evidence of a sexual encounter with the Guinean maid.  But the only thing that proved that encounter was nonconsensual was the testimony of the housekeeper.  Therefore, her credibility is crucial.  Now, who knows?  Of course, Strauss-Kahn has already resigned from the post he was serving at the time, chairman of the International Monetary Fund, and a replacement has even taken over his office, France’s former Finance Minister Christine Lagarde.    Some give Strausse-Kahn a chance to return to a position to influence French politics, perhaps in the coming October elections, but he is seriously wounded – both in the public esteem and in politics – especially in light of the allegations of his prior inappropriate and aggressive acts against women.

It may be telling that Strauss-Kahn’s replacement was a woman because no matter what the result of the prosecution of Strausse-Kahn in New York, the current of discussion about women in France appears to continue on its own.  The merits of that issue do not require Strausse-Kahn to be found guilty of anything.