Sunday, March 1, 2009

Renn sings the Blues

I was pleased to find a well-reasoned counterpoint to the assertions I have made in some of my posts. The author is a certain TXBluesMan. I can tell he is a smart guy. He is vigorous in his defense of the Reynolds decision. I wonder if he would be equally defensive of Davis v. Beason. He makes some intelligent points about Utah's conviction of Warren Jeffs, insisting that the legal reasoning behind the prosecution's "rape-as-an-accomplice" strategy was based in sound statutory language. If he is right, then Jeffs' appeal will not succeed. I still think that the vigorously anti-FLDS prosecution team had to get very creative in concocting an unprecedented, contorted line of reasoning to achieve a conviction, in concert with a globally-tainted jury pool (not unlike the bizarre statute-of-limitations logic used in the Tom Green conviction).

I believe TXBluesMan has done his homework. I believe he genuinely dislikes the practice of polygamy and the Fundamentalist Mormon communities. I honor every American's right to find that lifestyle repugnant, just as I cherish my right to practice it. TXBluesMan insists that we "change the law" and then reassures us that we stand no chance of getting the SCOTUS to overturn Reynolds. I believe that Lawrence v. Texas (June 26, 2003) DID effectively overturn Reynolds. Reynolds says that you can believe what you want, but that the State can step in if what you are doing under the guise of religion (like drinking hallucinogenic tea in a religious ceremony) goes against the State's wishes. TXBluesMan is therefore utterly content that the State of Utah condones promiscuous polygamous copulation among tens of thousands of Utah citizens, but criminalizes such conduct when - a) it is not promiscuous, and b) the actors believe in the theologies of Mormonism.

TXBluesMan, Mark Shurtleff, Thomas S. Monson, many Utahns and probably millions of Latter-day Saints ostensibly DREAD the prospect of a test case making its way to the Supreme Court to invoke Lawrence v. Texas (and Lukumi), to overturn Reynolds and to decriminalize consensual adult, non-legal, cohabitational polyga-bigamy - which is exactly why Utah law-enforcement officials INDIGNANTLY refrain from prosecuting the tens of thousands of polygamists openly walking the streets.

In some ways, I think this whole situation is a bit silly. Utah has laws against public profanity, but Lord Jerry Sloan (UTAH JAZZ coach) gets a waiver.

Alabama has a law against shooting an animal from a moving vehicle (unless it is a whale). STUPID LAWS ARE STUPID LAWS. I know it, and TXBluesMan knows it. He just wants to take an extremely contrary position, because he harbors a deep dislike of our culture and lifestyle. I will fight to the death to defend his right to believe that way, and I am copying his review of my blog below. (Renn)
-------------------------------------------------------

Saturday, February 28, 2009
The Fall of Reynolds? Not Hardly...


There is a new blogger out there using the name Renn Oldsbuster and the blog is named The Fall of Reynolds, an apparent reference to Reynolds v. United States, 98 U.S. 145 (1878). Many of the pro-FLDS types are going ga-ga over his posts, primarily because he agrees with them. It is certainly not because he has a good grasp of the law...

Lets take a look at some of his posts. We'll start with Warren Jeffs - Innocent? In this post, he is under the mistaken impression that accomplice means something other than what the legal definition is. He states:

However, you and I both know that an "accomplice to rape" has to be proximally involved in the rape act - either by physically holding the victim down, or by barring the door so as to prevent his or her escape.

Uh, Renn? That is not exactly the case. Utah Code Ann. Sec. 76-2-202 states:

Every person, acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct.

That's what constitutes an accomplice. In State v. Biggs, 197 P.3d 628 (Utah 2008), the Utah Supreme Court stated (at pp. 631-632):

"To show that a defendant is guilty under accomplice liability, the State must show that an individual acted with both the intent that the underlying offense be committed and the intent to aid the principal actor in the offense."

So then we must look at the Utah Rape statute (Utah Code Ann. Sec. 76-5-402). It states that "A person commits rape when the actor has sexual intercourse with another person without the victim's consent." OK, let's look at consent, defined under Utah Code Ann. Sec. 76-5-406, remembering that the victim was 14 years old at the time of the so-called marriage.

An act of ... rape ... is without consent of the victim under any of the following circumstances: ... the actor knows that the victim submits or participates because the victim erroneously believes that the actor is the victim's spouse...

OK, in Nevada, where Jeffs performed the sealing, there is no common-law marriage, you must have a license (which they did not have). To obtain a license for someone under the age of 16, you must have a court order (which they did not have). Since they were not legally married, but the victim "erroneously" believed that they were, that is enough to prove the crime of rape in Utah. In addition, Jeffs actively encouraged that belief, both in performing the sealing and that she was to give herself to her so-called husband "mind, body and soul."

There is clearly sufficient evidence for the 12 jurors to find Jeffs guilty. In addition, despite some people's contrary views, if Steed is acquitted as the principle in the rape charge, that doesn't do anything for Jeffs on appeal - see Standifer v. United States, 447 U.S. 10 (1980) which stated (at p. 20) that "all participants in conduct violating a federal criminal statute are "principals." As such, they are punishable for their criminal conduct; the fate of other participants is irrelevant." Utah law is no different.

Obviously Oldsbuster doesn't see it that way, but as a long term associate of convicted polygamist Tom Green ("I know Tom Green pretty well...") I would tend to think that he might be a little biased...

As to his main thrust, the Fall of Reynolds, he seeks to explain his position on why Reynolds is not good case law. First, he misstates the background of the SCOTUS decision by Chief Justice Morrison R. Waite as being "summarily" decided. This is clearly a position that is out of touch with reality and the history of the case.

For one thing, polygamy laws were merely one of the weapons that the Federal Government was going to use to bring a treasonable population under Federal authority. One must remember that Brigham Young and 65 other prominent Mormons were indicted for Treason in 1857-58, and only the Mormon capitulation prevented their later arrest and trial, with President Buchanan pardoning the indicted Mormons. This had been a consistent thorn in the side of the Federal government, with the treason case in 1838 failing due to the defendants fleeing the jurisdiction, the 1844 case failing with the death of Joseph Smith prior to prosecution, and the 1858 case ending in a settlement. In 1870, eight "Nauvoo Legion" officers were arrested for treason. Up to the trial of George Reynolds for bigamy/polygamy, the Mormons had opposed the role of the Federal government in almost every aspect. One of the Mormon bishops had gone as far to tell a San Francisco newspaper that "Utah will be admitted as a polygamous State, and the other Territories that we have peacefully subjugated will be admitted also. We will then hold the balance of power, and will dictate to the country." (see Sarah B. Gordon, The Mormon Question, 2002). The Feds didn't much care for this for obvious reasons, especially the fact that both Smith and Young had stated that they were "a king." (Smith in 1844, Young in 1870)

Much like the way the Federal government later used the RICO statute against the Mafia, they used the polygamy laws against the semi-rebellious Mormons. What came of this as far as Constitutional law came from another source.

Justice Waite was well known for his scholarly research, and it was this that turned the initial vote from 5-4 to a 9-0 per curiam decision. Waite had contacted the most prominent historian of the day, Dr. George Bancroft (and author of History of the Formation of the Constitution of the United States of America). One of the key points that Waite noted was that within one year of Virginia passing their religious freedom bill on which the Free Exercise Clause is based is that the Legislature passed the Anti-Polygamy Statute of King James I, and in which polygamy was defined as a capital offense.

Justice Waite, taking to heart the writings of the Founding Fathers and the key issue of the Free Exercise Clause, put it perfectly in his opinion, when he stated (Reynolds, at p. 165):

"Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices."

Remember, when he began writing the opinion, he only had 5 of the 9 justices voting to affirm. Once they saw the outstanding job that he did, it became a unanimous decision.

Next, Oldsbuster states that there was "really no juridical [sic] briefing" which is flat out false. George W. Biddle (Reynolds attorney) submitted a 63 page brief, outlining a strong argument for overturning the conviction on First Amendment grounds. The government brief was 8 pages.

Finally, the court has shown no indication that it will back down from this position. In every single case attacking bigamy or polygamy statutes on Free Exercise grounds, exactly zero have succeeded...
 

Posted by TxBluesMan at 8:01 AM

Labels

10th Circuit 13th Amendment 14th Amendment 1953 Short Creek Raid 1st Amendment 6th Circuit Abortion Abraham Addam Swapp Admiralty adultery Affordable Care AG - Craig Jones AG - Mark Shurtleff Ahmedinejad Al Sharpton Alan Dershowitz Albert Nock Alex Jones Alina Darger Allen Keate Allen Steed Amnesty Anders Breivik Andrew Napolitano Angela Corey Anteater Anthony Weiner Anti-bigamy Apocalypse Arm of flesh Arnold Schwarzenegger Ashton Kutcher Assad atheism B.C. Supreme Court bailout bailouts Barack Hussein Soetoro Obama Barack Obama Barbie BarefootsWorld.net Belief vs. Practice Ben Bernanke Benghazi Bernie Machen Bestiality Betty Jessop Big Love bigamy Bill CLinton Bill Medvecky Blacks and the Priesthood blood Blood Atonement Bolshevik Revolution Book burning Bountiful Boyd K. Packer Branch Davidians Breitbart Brigham Young Brown v. Herbert Bruce R. McConkie Bruce Wisan Canada Canada Reference Carolyn Jessop Casey Anthony Caylee Anthony Chapter 13 bankruptcy Charles Darwin Charlie Hebdo Charlie Sheen Chick-Fil-A Chief Justice Robert Bauman Child-bigamy Chris Serino Christine Durham Church of Jesus Christ of Latter-Day Saints Church Police Civil War CNN cohabitation collaboration Colonia Lebaron Colorado City Communism Conrad Murray Conservative Constitution Country Music CPS Craig Barlow Craig Jones Creston Crimea crooked judge cultural genocide Czar Nicholas D+C 101 Dallin H. Oaks Dan Cathy Darwin Darwin's Black Box Darwin's Doubt Darwinian Darwinism Darwinists David Boies David Koresh David Leavitt Davis v. Beason DCFS Debra Weyermann decertification Decriminalization Democrat Denise Lindberg Depends Deuteronomy 28 Diaper Disodium Guanylate Disodium Inosinate DNA Doctrine & Covenants DOMA Don't Ask Don't Tell Donald Trump Dr. Drew Pinsky Dr. Seuss Dream Mine Dred Scott Drew Pinsky Drones Edom Edomites Egypt El Baradei Elaine Tyler Eldorado Elijah Abel Elissa Wall Enabling Act Entitlement Ephraim eradication Eric Holder Ernst Zundel escape European Union Eurpoean Bailout Eustace Mullins Evolution Ex Parte extradition Ezra Taft Benson FBI Federal Reserve Felony FEMA camp Feminazi First Amendment Flagellum flatulence FLDS Flora Jessop Florida Flying Circus Food waste fornication Fourteenth Amendment Free-Agency Fundamentalist Mormon Fundamentalist Mormons Gadianton Robbers Gary Herbert Gathering Gay Gay Marriage General Conference genocide George Clooney George W. Bush George Washington George Zimmerman Germany Gerunds Glue-sniffing Gordon B. Hinckley Grant Morrison Greece Greg Abbott GritsForBreakfast Gun-Control guts H1N1 Handbook of Instructions Harry Reid Harvey Hilderbran hatred HB-99 HBO Health Care Reform Heber C. Kimball Hildale Hillary Clinton Hippies Hitler Hoax Holding Out Help Holding Out Hostages Holly Madison Holocaust Homeland Security Homeschooling homosexuality Hoole Hosni Mubarak House of Cards Hubris Hugh Hefner Human Nature Hypocrisy hypocrite Idumea illegal aliens Illegal Ceremony IMF Immigration IN TIME incest Intelligent Design International Monetary Fund Iowa Supreme Court Iran Irony Irrevocable Clause Isaac Jeffs Jacob Zuma Jaimee Grubb James Dobson James Rosen Jamie Dimon Jan Brewer Jane Blackmore Janet Yellen Jeff Ashton Jeff Buhman Jeffs Jerrold Jensen Jerry Sandusky Jesse Barlow Jesus Christ Jew Jim Jones Jimmy Oler Joe Darger Joe Paterno John Boehner John Daniel Kingston John F. Kennedy John H. Koyle John Hyrcanus John Kerry John Singer John Swallow John Taylor Jon Krakauer Jonathan Turley Jonestown Massacre Joni Holm Jose Baez Joseph Compton Joseph Henrich Joseph Smith Joy Behar JP Morgan Chase Jubilee Judea Judge Barbara Walther Judge Bauman Judge Clark Waddoups Judge Dee Benson Judge Donald Eyre Judge James Brady Judge Robert Shelby Judge Terry Christiansen Judge Waddoups Julian Assange June 26th Jury Justice Christine Durham Justice Nehring Justice Robert Bauman Justin Timberlake K Dee Ignatin Kathy Jo Nicholson KD Ignatin keep sweet Keith Dutson Ken Driggs Kendra Keystone Kops kidnapping Kiev Kimberly Conrad Kingston Kirk Torgensen knife Kody Brown Lab rats Lance Armstrong Larry Beall Las Vegas Laura DuPaix Laurie Allen Lavar Christensen Lawrence decision Lawrence v. Texas LDS LDS Church Lehi Police Liberal Liberals library Lifeboat Lindberg Lost Boys Love Times Three Lukumi Lyle Jeffs Main Street Plaza Mancy Nereska Marilyn Monroe Mark E. Petersen Mark Shurtleff marriage license Marxist Mary Batchelor Merrianne Jessop Merril Jessop Michael Behe Michael Dorn Michael Jackson Michael Zimmerman middle-class Migraine Relief Mike de Jong Mike Noel military miscegenation missionaries Mitt Romney Modern Pharisee Monkeys monogamy Monosodium Glutamate Monty Python Mormon Mormon Church Mormon Matters MSG Mubarak murder Muslim polygamy Musser Nancy Pelosi Naomi Jeffs Natalie Malonis National Debt National Enquirer Natra-Bio natural selection Nazi Next Generation Ninth Circuit Nobel Peace Prize Norway NSA Obacle Obama Obamacare Obaminacare obesity Occupy Wall Street Oligarchy Open Marriage Orrin Hatch Osama Bin Laden Pakistan Palestine Papandreou Paris France Parker Douglas patriarchy Paul Murphy Paul Ryan pharaoh Planets Planned Parenthood Playboy mansion plural marriage polyamory polygamist polygamous polygamous grouping polygamous sect polygamy polygamy reference Polygamy Task Force Predictor Presbyterian Presidential Election promotional video Promulgate Prophecy Proposition 8 Prostitute Protection of Marriage Punk'd Quantitative Easing race card Rand Paul rape Raymond Jessop Reassignment Recession Reconciliation Relief Mine Religion religious test Rep. John Lewis Rep. Mike Noel Resurrection Revelation 18:3 Reynolds decision Richard Dawkins Richard Nixon Rick Santorum Rights riots Robert Mueller Rocky Ridge Rodney Holm Rodney King Roe v. Wade Ron Paul Rothschild Rozita Swinton Ruby Ridge Rulon Allred Russia Safety Net Salmonella Samaria San Angelo Sargon Sarin Saudi Arabia Schleicher County Sean Reyes Seattle Second Amendment Senator Kevin Van Tassell Shalmaneser Shannon Price Shoshana Grossbard Shutdown Siamese Signature in the Cell Silsby Silvio Berlusconi Sir Evelyn de Rothschild Sister Wives skin color Slippery Slope Socialism Sonny Hostin Soviet Union Spencer W. Kimball Star Trek Stars Stephanie Colgrove Stephen C. Meyer Steven Conn stimulus Stromberg-Stein Survival Suspect Class Swine Flu Syria Tapestry Teen pregnancy Temple Teresa Jeffs termites Texas Texas CPS Texas FLDS Texas Rangers The Fall of Reynolds Theodore Olson Thirteenth Amendment Thomas S. Monson Thurgood Marshall Tiger Woods Timothy Geithner Timothy McVeigh Titanic Tito Valdez TLC Todd Shackelford Tom Green Tonia Tewell Trace Gallagher tracting Trayvon Martin trickle-down economics Trip-Wire Trust TSA twins TxBluesman Tyranny U.S. Bankruptcy. Franklin D. Roosevelt U.S. Supreme Court UEP UEP Trust Ukraine Uncommon Dissent Uniform Commercial Code Universe University of Oslo usury Utah Utah A.G. Utah Amendment 3 Utah Attorney General's Safety Net Utah bigamy statute Utah Legislature Utah Supreme Court Vera Black Vermont Vladimir Putin Waco Wally Bugden Wally Oppal Warburg Warren Jeffs weapon words Wendell Nielsen Whistleblowers Wilford Woodruff William Dembski William E. Jessop Willie Jessop Winston Blackmore Wisan Woodrow Wilson Worf WTC 7 Xenarthra Yams YFZ YFZ Raid YFZ Ranch Zombies