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


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