Wednesday, November 4, 2009

Supreme Questions

A friend of mine attended the Utah Supreme Court appeal hearing yesterday regarding Warren Jeffs' rape-as-an-accomplice conviction. Apparently, Wally Bugden made some compelling arguments against the legitimacy of the charges and convictions. Before I elucidate, I want to make a comment about our sense of justice in America.

I don't really like Shaquille O'Neal. I don't know him at all, although I saw him in a bad movie once. Truth is - I dislike him because he never played for my favorite team. I think that a lot of Americans can build up a similar, simmering hatred for people on the opposing team, or for people who are different. I think that we Americans like to be polarized, and to see things as black-or-white. There is no gray. It is this social phenomenon that makes it easier for us to throw our consciences out of the window and let the end justify the means. We violate our own principles due to our desperate need for victory. It is the necessary drawback of the Jeffersonian polemic model.

Tom Green's unlawful-sex-with-a-minor trial was a media circus. His "wife", Linda (of 17 years), had borne him seven children, and is presumably happily still with him to this day. The complexity of Tom's case was that Linda was "married" to him and impregnated with her first child when she was 13 1/2 years old. Now, back then (circa 1986), marriage in several states was perfectly tolerated at 13, so the question of propriety depends on how you view things and on local history and traditions.

The prosecutors (David Leavitt and Monte Stewart) faced the challenge that so many years had passed since the time of the alleged offense that the statute of limitations had already run. In 1986, the statute was 'eight years from the date of the offense'. At the time of the trial the statute had already been changed to 'four years from the date the offense was reported to law enforcement'. Neither provision could catch Tom, but, since the prosecution was hell-bent on a conviction, it brought in a string of witnesses to testify that they "didn't report the crime" (so that Tom couldn't claim that the statute of limitations clock had already started to run in 1986). The judge cooperated, and, through an amazingly creative contortion of the statutes, Tom was convicted and incarcerated. Today, he his back with his family, even perhaps continuing to do some of the things that got him arrested in the first place. So why won't the prosecutors arrest him again? You already know the answer - POLITICS.

So Wally Bugden argued yesterday that Warren Jeffs was charged with the wrong crime. Instead of arresting him for solemnizing the (void) marriage of a minor to a young man, they arrested him for aiding and abetting a rapist and for abusing his special position of trust as a minister. Bugden made the interesting point that the prosecution had completely omitted at trial to introduce any evidence that Jeffs had coaxed Allen Steed to have non-consensual sex with Elissa Wall. He only encouraged the alleged "victim" to follow through consensually with her marital duties. Based on this, Jeffs cannot be charged either as the rape's actor or as the aider and abettor. Further, Bugden argued that, since no rape conviction was achieved for Steed, the presumed 'rapist', it is absurd to convict Jeffs for having been an accomplice to a rape that has not legally been shown to have occurred.

Now, if it is true that Elissa was coerced against her will at the tender age of fourteen into a monogamous (and non-legal) "marriage" with a young man she did not love, then that is sad. Whoever did the coercing should acknowledge his or her error and make amends. This is one of the many accusations leveled at Warren Jeffs. Bugden apparently also asked if Elissa's family was not eminently more implicated in choreographing the wedding - and why are they not in prison instead?

My point is this - Utah politicians have made great publicity out of demonizing Warren Jeffs and painting him as a perverse, megalomaniacal despot. This was enough to get him on the FBI's 10-most-wanted list. Mormon politicians = good; Polygamists = evil. I wonder if it is that simple. Even if Warren Jeffs is different or eccentric, or even an iron-fisted leader, why does that excuse society in locking him in the stocks and throwing rotten vegetables at him for days? Why is it okay to charge him with a laundry-list of crimes that do not fit his actions? Is he so vile that we must throw truth and justice to the wind and punish him by any means available to us?

I believe that the State's attorneys don't care. I believe that they hate the FLDS and Warren Jeffs so much, that they don't care about following the spirit of the Constitution and good laws. They just want to "get them" at all costs. Why else would they try to get Texas to change its laws just so that it could ensnare the residents of the YFZ Ranch? Why else would they side with the angry enemies of the FLDS and condone Wisan and Lindberg's shameless plundering of the UEP? Maybe we all sleep easily because a reportedly evil man was crucified or tarred and feathered. That is not justice - it is brutality.

Addam Swapp blew up an LDS chapel in 1987. 22 years later, he still sits in a prison with no hope of a parole date. Ironic, wouldn't you say, when the average murderer serves nine years? This all stems from Utah's intense animus against Fundamentalist Mormons and polygamists. Why does the legal system tolerate such barbarism? You already know the answer - POLITICS. I am reminded of the state-sponsored raids and massacres of the early Mormons.

In yesterday's hearing, Chief Justice Christine Durham asked deputy A.G. Laura DuPaix if a Baptist minister should be incarcerated for counseling a member of his congregation to stay with her husband after complaining that she doesn't love or desire him anymore. Bugden wondered if parents who take their 15-year-old daughter in for contraceptives should not also be prosecuted for aiding and abetting non-consensual sex for a minor who legally cannot consent to it.

I pray that the Utah Supremes will see the State's naked malice and bad faith inherent in the Jeffs prosecutions and overturn them. If he really did commit a crime, then charge him with the crimes he truly committed - not some craftily twisted contortion of a wildly inapplicable statute because you hate him. This nation is fixing to undergo a dramatic metamorphosis (see Isaiah's "marvelous work and a wonder"), and such heavy-handed abuses of power might just bite some of the rest of us if we don't look out.

I am sickened when I think back to the remarks of Justice Nehring when he concurred in the Rodney Holm decision. In one of the most pathetic, milque-toast utterances I have ever read, he wrote:

I also suspect that I have not been alone in speculating what the consequences might be, were the highest court in the State of Utah the first in the nation to proclaim that polygamy enjoys constitutional protection. . . . . .

It would be a violation of my oath of office to permit my apprehensions about the public reaction to any ruling of this court to participate in my decision-making effort or to influence in any way my vote on a case. Moreover, I do not intend to suggest that the majority opinion is in any way shaped by fears of a public backlash against sanctioning polygamy.

If this kind of waffling is indicative of how Nehring will rule in Jeffs' case, I fear the worst. I fear also that, if Warren is forced to take his case to the next higher Court, it won't be around by the time he gets there.


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