It Gets Weirder

I, like nearly all lawyers, have had cases where judges made bad rulings. Bizarre rulings. Incomprehensible rulings. Rulings completely unmoored from either the facts or the law. But I can safely say that in nearly ten years of practice, I have never seen a judge stomp out of the courtroom and flat-out refuse to rule, as Judge Barbara Walther did Friday in the increasingly unhinged FLDS case. If you don't want to make the hard calls, especially when the heat is on, then don't run for judge. More from the Common Room.

Supremes Uphold Overturning of YFZ Removal Order

Grits, as always, has the full story. It is not, however, the end by any stretch of the imagination. The DFPS suit continues, the agency can and no doubt will proceed on their safety plans, and they can still seek termination though the likelihood of that being granting without removal is pretty remote. Nor does this foreclose the possibility of criminal prosecutions, even with the investigation in a shambles and the evidence hopelessly contaminated. FLDS lawyers should make sure their clients are aware that DFPS will be watching them like a hawk, and can still try to remove the children if they are exposed to "alleged abusers," even though no such abusers have been positively identified to date.

YFZ = NDN?

I initially resisted comparisons between what the YFZ families are going through and the Indian experience of the last two centuries. Tim Giago's column makes a good case, particularly in the context of Indian boarding schools, however I still think the comparison is a strained one. An argument can be made that both the FLDS and Indians were targeted by the government due to their religion and culture, true, but one raid, however mismanaged and ham-fisted, hardly compares to 200 years of cultural genocide. The FLDS lived on that ranch because they wanted to, not because the Federal government seized their homes and herded them there. The FLDS are considered human beings under the law, a distinction not bestowed on Indians until 1879. Family members who objected to the removal of their children were not indiscriminately mowed down by Army howitzers. So, while I continue to believe the FLDS families have been treated badly by the State of Texas, I cannot concede that their level of suffering has approached anything like that which Indians have endured since the founding of America.

It Became Necessary to Destroy the Children...

...in order to save them. The Common Room on several MHMR worker's scathing criticism of DFPS in the YFZ Ranch case. I can't ever recall a time I've seen MHMR caseworkers level this kind of accusation at any other agency, even DFPS. Or vice versa.

UPDATE: Grits has the actual statements from Hill Country MHMR. It is some of the most wrenching testimony I have ever read and is a damning indictment of the State of Texas. One worker's commentary stands out: "I have worked in Domestic Violence/Sexual Abuse programming for over 20 years and have never seen women and children treated this poorly, not to mention their civil rights being disregarded in this manner. It makes us all wonder how safe anyone is who has children."

Politics & Religion

From the Washington Post, Texas now appears determined to argue that the FLDS Religion, in and of itself, is harmful to children and therefore warrants termination, a strategy that has failed miserably in Arizona and Utah. Now think about that a minute. Indians are used to this sort of attack; US Army fears of Wovoka and his Ghost Dance led to the assassination of Sitting Bull and the Wounded Knee Massacre. But what about the rest of the country? Do you really want the government deciding whether or not your religion is good or bad for your children? Think carefully before you answer. Again, I'm not arguing that child abusers shouldn't be punished. They should. But this kind of standard, having the government judge your religious beliefs, ought to scare Hell out of anybody.

The Latest from Eldorado

Grits and I have been arguing for some time that the warrant used to justify raiding YFZ Ranch had some problems. Apparently, we were right. In fact, it seems to me that the original warrant strains the "good faith exception" into "deliberate and willful ignorance," i.e., "we can confirm that Dale Barlow is a convicted sex offender but we were shocked, shocked and appalled to discover he was in Arizona at the time!" However, given the current climate in Texas criminal appellate law ("the only error is harmless error"), I'd say the chances are good this warrant would hold up, assuming we even get to the stage of holding criminal trials. Right now, we don't even have any alleged perpetrators named (other than Barlow, of course), much less any arrests. And, of course, the warrant is meaningless for purposes of removal, since DFPS doesn't need a warrant, valid or otherwise, to remove children.

And from the Common Room, excerpts from an interview with the Schleicher County Sheriff. This bit...

Mankin: That’s a big operation to put together in three days, surely law enforcement must have had a preliminary plan in place ready to deal with this kind of eventuality?

(Sheriff) Doran: Let’s just say that law enforcement was and is prepared to answer a cry for help at the YFZ Ranch.

...tends to confirm my suspicion that this was a law enforcement operation with a CPS removal attached, and not the other way around.

Bloggers on Eldorado Raid

Although I think Cicero lists them in his link farm, I'd like to single out Guy Murray at Messenger & Advocate, a Mormon blog, for his excellent coverage and thoughtful commentary on this issue. Also, Headmistress/Zoo-keeper over at the Common Room, a home schooling blog, who has been analyzing the case from the perspective of homeschoolers.

And to all you liberal hooligans who normally hang out here, both of these bloggers are nice people and rather conservative, so be on your best behavior; i.e., wipe your feet, say "please" and "thank you" and don't start calling people "fascist theocrats."

UPDATE: From Grits, so just how many kids are there, anyway?

Eldorado Round Up

My ideological evil twin brother, Cicero at Red State, has shown typical conservative thoroughness (no doubt due to the invisble hand of the free market, unencumbered by burdensome regulations) in providing a link farm on this developing story.

As for the removal being granted, no one who has experience with CPS cases is surprised. Typical Removal hearings are held so quickly (it used to be within 24 hours) that there is very rarely any reliable evidence for the judge to hang a ruling on. As a result, much like with applications for protective orders, judges tend to err on the side of caution, knowing that he or she will have several opportunities in the future to return the kids if the agency still hasn't managed to dredge up anything. In fact, in nearly ten years of CPS cases, I have only seen a judge deny a removal petition exactly once, and that was only after I (as ad litem for the children) demonstrated that the CPS caseworkers (who were from out of county and declined to even show up for the hearing) had committed perjury in their affidavits. In this case, the Removal hearing took longer to set up, but the sheer overwhelming numbers made it extremely difficult to get any straight answers, especially when CPS insists on calling "expert" witnesses who freely admit on cross-examination that everything they know about the case in general and the FLDS in particular comes from watching television. Stay tuned.

Fiasco in Eldorado

From Grits for Breakfast, a comprehensive round-up of stories and issues surrounding CPS' raid on the FLDS compound in Schleicher County. The sheer level of incompetence displayed here by the State continues to flabbergast and enrage me. Who the hell was in charge of planning this disaster? Who signed off on warehousing babies in a 140 year old cavalry fort? Why did no one even bother to check if the guy named in the warrant was even in Texas (he wasn't; he's in prison in Arizona)? Why did CPS let some of the mothers go with their children (almost unheard of in a removal case), then strip them of their cell phones, and now kick them out (after they complained to the Governor) unless they have children under four? Did it not occur to anyone to see if there were even enough lawyers in a five-county radius to represent all these children (there aren't)? Did anyone check to see if it was feasible to have one district judge (responsible for five counties) shut down all her operations just to deal with one case? Once again, Texas state government shows it couldn't pour piss out of a boot if the instructions were printed on the heel.

UPDATE: Grits has more from today's hearings, including links to other coverage and other perspectives. Unsurprisingly, several aspects of the story that were conveniently linked to the media (such as accusation of wide-spread "child bride" arrangements) are coming up short of supporting evidence. The tragedy here is that the State's ham-handedness, and the flagrant scramble for publicity (by, among others, Greg Abbott, who really needs to stay off television until he learns at least the basics of the Texas Family Code) is liable to torpedo any criminal prosecutions of child abusers in this case.