“Texas Has Its Own View of Polygamists”: The Texas FLDS Raids and Trials

By Ken Driggs

Driggs-ariel

The 2008 Raid and Search

 

ON 3 APRIL 2008 at 9 a.m., a force of Texas Rangers, sheriff’s deputies, other law officers, and Texas Child Protective Services (TCPS) representatives entered the Yearning for Zion Ranch (YFZ) with the first of two broad search warrants signed by 51st District Court Judge Barbara Walthers.1

The officers believed they were searching for evidence of a sexually and physically abused teenaged plural wife who had recently called the New Bridge Family Shelter hotline. The caller, a woman claiming to be a sixteen-year-old mother named Sarah Jessop Barlow, said that her husband, whom she identified as Dale Barlow, was sexually abusing her and keeping her in a small room with boarded-up windows somewhere in the Yearning for Zion Ranch, a community of FLDS members near El Dorado, Texas. The call center contacted law enforcement and Texas Ranger Brooks Long was assigned to the matter.2

The 6 April search warrant “ordered a search of the YFZ Ranch for evidence of marriages between females under the age of seventeen and adult males, and of pregnancies and births by females under the age of seventeen.”3

The call turns out to have actually originated from a mentally unstable woman.4 The Texas Third District Court of Appeals in Austin later wrote: “the hotline employees who took the March 29 and 30 telephone calls believed that they were genuine. In truth, however, the calls were a hoax. There was no sixteen-year-old mother named Sarah Jessop Barlow. Instead, the calls were made by a woman named Rozita Swinton, a resident of Colorado, who apparently made the calls from that state. The hoax was discovered on April 13, 2008, after the searches in question had been conducted.”5 The supposed husband, Dale Barlow, was a real person who lived in Arizona but who had never been to the Ranch.6

 

THE YEARNING FOR Zion Ranch consists of approximately two square miles of rough scrub land located about four miles outside the village of El Dorado—population 1800 and shrinking. The Ranch’s formal address is 2420 County Road 300 (Rudd Road.) The closest sizable city is San Angelo, 45 miles south, with a population of about 110,000.

The Ranch’s location was chosen in December 2003 as “a place of refuge” through two revelations received by Warren Jeffs, the FLDS prophet.7

Since fundamentalist Mormons broke away from the Church of Jesus Christ of Latter-day Saints (LDS) in the 1920s,8 the FLDS has been one of the larger and more reclusive organizations because of their isolation on the remote Arizona Strip in Short Creek, high birth rates, and the practice of “placement marriage” where the prophet would receive revelations about who should be married to whom.9 However, this custom has not been adopted by other fundamentalists except occasionally among the Davis County Cooperative. But since Warren Jeffs assumed leadership with the 2002 death of his father, Rulon Jeffs, the FLDS have become the most controversial of the polygamous break-offs because of his promotion of child-bride “placements.”10

The first outsider to glimpse the Ranch was Texas game warden Marco Alvizo. In February 2004, he pulled over a pick-up truck driven by William B. Johnson for having an obstructed license plate. When Alvizo noticed blood in the bed of the truck he wanted an explanation. Johnson said he’d been hunting and reluctantly brought the game warden into the Ranch to prove it. Alvizo noticed that the women inside the Ranch wore long “prairie dresses” and did not cut their hair. Men wore long pants and long sleeves, were clean shaven, and presented themselves differently than what Alvizo was used to. They obviously did not want to be seen by this outsider. Alvizo later told an Associated Press reporter he thought, “Holy cow, what’s going on here?”11

The Ranch had been rapidly built up as a self-sufficient community of several hundred people, complete with a school, industrial buildings, a dairy, a limestone quarry, grain silos, a commissary, a series of large two-story, log-cabin style homes, and many mobile homes. Texas Ranger Nick Hanna, who participated in the April searches, testified that there were about “40 substantial structures” at the ranch, 25 of which had bedrooms.12

The most impressive structures were a large, three-story, white limestone temple and nearby temple annex, separated by an access road and surrounded by ten-foot stone walls. The temple vaguely resembles the St. George, Utah LDS temple. According to testimony from Texas rangers, the first floor was “very church like” with lots of “earth tones.” The second was painted a bright sky blue. The third was described as “blinding white” in every aspect. The Temple Annex was described as having blue and white themes.13

The seizure and evacuation of 468 children from the Ranch garnered worldwide news coverage and had much to do with turning public opinion against the “well armed” police action.14 Completely overwhelmed, the State’s child welfare system placed the children in foster care hundreds of miles from their parents, often separating siblings, and occasionally losing track of the children all together.15 An executive at the Austin-based Parent Guidance Center said of the raid: “They’ve really botched this.”16

Under the direction of Salt Lake City lawyer Rod Parker, who had represented FLDS interests for a couple of decades, the FLDS undertook a media campaign, making themselves available for interviews and appearing on television shows such as Oprah and Larry King Live.17

driggs-huggingThe children were returned to their parents by the courts within two months, though in order to claim them, parents were required to submit DNA samples.18 A determined cadre of legal services lawyers argued that Texas authorities had not followed required legal procedures in seizing the children.19

Since there were no street names or building numbers in the Ranch, officers spray painted numbers on the ground in front of buildings. Officers then divided up into teams and numbered the rooms in each building.20 Searching every living space, they found documents and snapshots which they photographed and bagged as possible evidence. Officers also seized computers and digital storage devices. The evidence was loaded into several trailers that had been brought to the compound. They were eventually driven to San Angelo.21

While searching the temple annex and the temple, the officers’ attention quickly focused on some locked vaults protected by large metal doors and 18–24 inch walls. The authorities entered the temple annex by breaking a window next to the vault door. FLDS members standing nearby were outraged at what they saw as a violation of sacred space. They refused to cooperate with the searches in any way but offered no physical resistance.

Once inside, officers encountered a 12-inch-thick Hamilton class one vault door which they tried to dislodge with a jackhammer, but eventually they resorted to drilling a hole in the wall beside the metal door. After the wall had been breached, a smallish Texas Ranger lieutenant named Jesus “Jesse” Valdez stripped off his outer garments and wiggled through the hole, a flashlight in one hand and a pistol in the other.   The vault was finally opened and found to be filled with boxes of religious records labeled “Priesthood Records,” “Priesthood History,” “Transcript Project 1999–2002,” “Training Transcripts,” and “Archived Meeting Minutes.” Several were marked with family names.22

The Rangers brought a master locksmith in from San Antonio to tackle the temple vault, and after two days, he achieved a much cleaner entrance.

Elsewhere in the temple, searchers found several beds, one with disturbed linens and a long strand of hair believed to be a female’s.23 The media immediately suggested that marriages were consummated in these beds.

For more than two years, Ranger Hanna and Texas Attorney General Investigator Wesley Hensley combed through and organized what was variously reported as 400 to 1,000 large boxes of seized materials. Material pulled from digital storage, reportedly six terabytes worth, added greatly to the documentary evidence.24

Several witnesses testified at later trials that the FLDS place great emphasis on keeping records of community, family, and individual life. “If it wasn’t recorded on earth, it wasn’t recorded in heaven,” Rebecca Musser said.26 These records were considered sacred and to be kept in the temple, “literally to be handed to God.”27 The most sacred of these were the “Priesthood Records,” a collection of Warren Jeffs’ thoughts, musings, conversations, travels, and directions to members.28 These were published in a two-column format with dates, times, locations, and paragraph numbers, very much like LDS editions of the Doctrine & Covenants.

 

Relevant Texas Law

 

IN 2005 WHEN the FLDS community first started arriving in Texas, the state legislature reacted by rewriting its statutory rape and bigamy statutes to specifically address FLDS practices.28 Utah Attorney General Mark Shurtleff came to Austin to assist with these rewrites. In addition to the usual crime of fraud—multiple marriage licenses with unknowing parties—Texas defined bigamy as when someone is legally married then “lives with a person other than his spouse in this state under the appearance of being married.”29

Texas calls unlawful sex with underaged girls “sexual assault” rather than “statutory rape” as some states label it. Under the revised statutes, sex with a child age 14 to 17 years old carries a maximum sentence of 20 years.30 Sex with a child under age 14 is defined as aggravated sexual assault and carries a sentence of 25 years to life.31 This new aggravated sexual assault law became effective 1 September 2007. Under it, conducting a prohibited marriage became a misdemeanor, and if a minor was involved, the act became a third-degree felony carrying a maximum sentence of ten years.32

 

Texas Prosecutions Begin

 

Erich Nichols
Erich Nichols, lead prosecutor for the FLDS trials.

THE LEAD PROSECUTOR for the FLDS cases was Eric Nichols, who for four years served as Deputy Texas Attorney General for Criminal Justice. He had an impressive legal pedigree, graduating from the University of Virginia and then the University of Texas Law School where he was editor of the law review. He clerked for United States District Court Judge David Hittner of the Southern District of Texas.33 By his seventh FLDS trial, Nichols had become intimidatingly machine-like in his command of the witnesses, evidence, and jury.

The cases began with a four-day, eleven-hour joint suppression hearing in May 2009, participated in by ten defendants who challenged the legality of the Ranch’s search, particularly the searches of the temple and the temple annex. They also challenged the legality of DFPS interviews with mothers and children, but the trial court allowed the State to use all the evidence it had acquired. The appellate courts agreed that these FLDS defendants did not have “standing”: a personal protected right to privacy that would have allowed them to complain about the interviews and the search of public buildings.34

Because the marriages under question all occurred within FLDS communities, it was difficult for prosecutors to find witnesses willing to testify to a jury that the marriages took place. The “victims” of the underage marriages did not see themselves as victims and would not willingly cooperate with the State. The alleged child brides disappeared once they had secured the return of their children. The prosecution tried to address this gap at the trials by offering Salt Lake City psychologist Dr. Larry Beall, who testified that girls raised in the FLDS community had been brainwashed and were incapable of seeing themselves as victims.35

The prosecution was also helped by the hearsay exception for “Records of Religious Organizations.” Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history contained in a regularly kept record of a religious organization36 are considered by the State to be inherently reliable and generally free from bias. (Hearsay is the testimony of a witness about things which he or she has not personally observed or heard.  It is generally prohibited in trials with certain limited exceptions.)

Evidence of these unlawful marriages was found among the thousands of pages of church and personal records seized at the Ranch. And it was Rebecca Musser who  would testify at the trials to this religious records keeping, allowing these records to be introduced under the religious records exception.

Musser’s maiden name was Wall. Her father was Lloyd Wall and her mother was his plural wife Sharon Steed. Musser grew up in Sandy, Utah, a suburb of Salt Lake City, enrolling with 200 other FLDS children in Alta Academy located in the Rulon Jeffs compound at the mouth of Little Cottonwood Canyon where Warren Jeffs, who had never gone to college, was headmaster of the school from 1976 to 1998. The curriculum was heavy on religious indoctrination. Musser graduated when she was 17, at which time school enrollment had grown to about 500 children of all ages. After graduation, she was invited back to teach reading, math, spelling, and writing in the fifth grade.

In September 1995, she was “placed” with the prophet, Rulon Jeffs, as the nineteenth wife of an eventual sixty-five. She briefly lived at the Jeffs compound in Sandy, then moved to Jeffs’ “much larger home” in Hildale. She received constant religious instruction in the Jeffs home and observed religious records being completed and transcribed by sister wives assigned the task. After Rulon Jeffs’ death, Warren Jeffs tried to marry her along with some of his father’s other younger widows. But Musser refused and left the community for good on 3 November 2002 after having lived in FLDS culture for 26 years.37

Warren Jeffs consults with an attorney during a St. George, Utah trial.
Warren Jeffs consults with an attorney during a St. George, Utah trial.

The Warren Jeffs Cases

 

AS LEGAL PRESSURES on Warren Jeffs mounted, he went “underground,”38 traveling around the United States and staying in FLDS-operated safe houses. In May 2006, he was placed on the FBI’s Ten Most Wanted List, $100,000 being offered for his apprehension.40

Four months later (28 August 2006) at 9 p.m., a burgundy Cadillac Escalade driven by Jeffs’ brother Isaac Steed Jeffs, then 32, with passenger Naomi Jeffs, also 32, was pulled over for obscured tags. Warren Jeffs was sitting in the back seat wearing shorts and a T-shirt—attire he would have condemned on other FLDS members. He did not immediately identify himself but he did not resist arrest. News accounts reported that a search of the car produced 27 bundles of $100 bills—each bundle being worth $2,500—14 cellular phones, a radar detector, two global positioning units, wigs and disguises, credit cards, and digital storage devices. Only Warren Jeffs was arrested during the stop.41

Utah Attorney General Shurtleff gloated over Jeffs’ arrest in a New York Times article. “Part of his mystique was that God was protecting him and he couldn’t be taken. . . . Our hope is that those who fear him will see he’s not as fearsome as they thought, and maybe they can come forward now and provide evidence to us.”42

On 5 September 2006, a helicopter delivered Jeffs to the Washington County Jail in Purgatory, Utah. The following day, a Washington County judge denied him bail.43 Later, he was passed on to Kingman, Arizona, where he also faced charges. After being confined in prison for months, the Arizona charges were dismissed because of “witness reluctance and other problems” and Jeffs was passed back to Utah.

In September 2007, Jeffs was tried in Utah as an accomplice to rape. The case involved 14-year-old Elissa Wall who was “placed” in a marriage with her 19-year-old cousin whom she disliked. Before the marriage, she reportedly begged both Rulon and Warren Jeffs to not go through with the ceremony, and then after the ceremony to be released from the marriage.44 Though the marriage was not consummated for some months, the act came under circumstances Wall experienced as rape. She eventually agreed to be part of a prosecution, and later wrote a memoir about her life in the FLDS community.45 A Washington County jury convicted Jeffs and sentenced him to five years to life in prison. But the trial judge had adopted the State’s theory of vicarious criminal liability law in his jury instructions and Jeffs’ lawyers argued that these instructions were so broad as to almost dictate a guilty verdict. The Utah Supreme Court agreed and the conviction was reversed.46

In July 2008, Jeffs was indicted in Texas for sexual assault and aggravated sexual assault on a child for having sexual intercourse with two of his under-age brides.47 Despite a last-ditch appeal to the Utah Supreme Court to avoid extradition, Jeffs was sent to Texas in December 2010.

For a few weeks Jeffs hired and then fired a succession of criminal lawyers. Finally, in January 2011, Jeffs retained Jeff Kearney and Reagan Wynn, experienced criminal defense lawyers from Ft. Worth, and the trial was set to begin 25 July in San Angelo. On 6 July, Kearney and Wynn abruptly filed a motion to withdraw as counsel of record, writing that they had been discharged that morning via a telephone call from a Warren Jeffs “representative.” In a detailed response, the State opposed the motion as a delaying tactic, and the trial date remained in place.

On 26 July 2011, a jury of ten women and two men, with two men as alternates, was selected. An amended motion to suppress was heard the next day where defense lawyers, brothers Robert and Gary Udashen of Dallas, argued that significant evidence had not been presented to Judge Walther earlier. “Those facts were recklessly admitted to mislead the court. They did not tell the court the whole story,” the two argued. The judge was not persuaded.48

Before the trial began, the State sought subpoenas for 78 FLDS women from the Ranch, some of whom were said to be Jeffs’ wives, but would not be able to produce any of them.49

The trial took place in Courtroom A, the largest courtroom in the 1928 classic revival-style Tom Green County Courthouse in downtown San Angelo “which looks a little like a Greek Temple with good carpet.”50

On 28 July, Jeffs again announced that he was firing his legal team and that he would be representing himself.51 One reporter described this pro se request as “a mostly incoherent 30-minute speech.”52 However, Deric Walpole of McKinney remained with Jeffs, telling reporters “I’m not leaving the man’s side. I will be ready to step in should I be asked to do so.”53 Judge Walther reluctantly agreed but denied Jeffs’ request for a continuance to prepare. The court “will not recess proceedings for you to go to law school” she said.54

The trial began with Jeffs offering no opening statement. The prosecutor led off with a “virtual tour” of the YFZ Ranch, projecting photographs and diagrams onto a large screen behind Jeffs and the defense table. The photographic tour was guided by Ranger Hanna who recounted the search of the Ranch and the penetration of the temple annex vault.55

The next day, Jeffs brought a fifteen-page motion to recuse with an attached revelation that he read to Judge Walthers: “I, the Lord God of Heaven, call upon the court to cease this prosecution against my pure, holy way . . . I shall let all peoples know of your unjust way . . . I shall send a scourge upon the countries of prosecutorial zeal to be humbled by sickness and death.” Jeffs’ revelation also seemed to comment on Judge Walther being a survivor of childhood polio and walking with a leg brace by saying, “I have sent a crippling disease upon her which shall take her life soon.” Jeffs’ motion was denied, and the judge levied sanctions against him, ordering that he pay the costs of hearing the motion.56 She also warned him to not threaten the jury. Jeffs responded “I’m not threatening, only relaying a message.” “Well, don’t relay the message,” she replied.57 At another point, Jeffs stood up and made a 55-minute objection to the testimony of an FBI agent testifying for the State, ending with “Amen.”58

The State’s case included recordings of Jeffs instructing young girls on sex, “telling a group of women to disrobe and giving instructions about how to be sexually with him,” as one newspaper described it.59 Jeffs stood to object many times as the recording was being played. By the end of the day Jeffs had, in the words of the local newspaper, “continually disrupted court proceedings.”62

The jury later heard a muffled audio recording of what prosecutors said was Jeffs having sex with a 12-year-old child bride, taken from a recording device seized from his car outside Las Vegas.61 The jury also heard DNA testimony linking Jeffs to a child born to the bride in the indictment.62

Musser later took the stand, setting out her own life story as it intertwined with Jeffs’, explaining FLDS doctrine as she understood it, and identifying the 12-year-old girl kissing Jeffs in a much publicized wedding picture presented to the jury. Jeffs was mostly silent during Musser’s testimony. She was followed by Ranger Valdez testifying about the results of the temple and temple annex searches.63 Then the jury was presented with a 2005 document attributed to Jeffs which read, “If the world knew what I was doing, they would hang me from the highest tree.”64

After Judge Walthers gave Jeffs a few hours to prepare his defense, he presented the court with a lengthy discourse on religious and American history. He then called one witness, J. D. Roundy, who brought a set of LDS scriptures67 and his own attorney to the stand. For four and a half hours, Jeffs walked Roundy through readings from the scriptures. One reporter counted 25 State relevancy objections. For his closing argument, Jeffs stood silent for 23 minutes, then said, “I’m at peace.”

The jury deliberated for a little less than four hours before returning guilty verdicts on both counts.66

With permission from the court, Jeffs left the courtroom during the two-day punishment phase and stayed in a holding cell, leaving Deric Walpol to cross examine State witnesses.67

Prosecutors presented two former Alta Academy students who testified that Jeffs had sexually abused them when they were children. Brent Jeffs, a nephew, told of being raped in a school bathroom when he was five. The nephew said Jeffs had warned him “If I told anyone, I would burn in hell.” As an adult, he had sued Jeffs, settling for an award of land. He subsequently wrote a book about his experience. Another woman testified that Jeffs had sexually molested her when she was eight.68

Ezra Draper testified that under Rulon Jeffs, placement marriages did not occur if the female was under age 20, a policy that changed under Warren Jeffs. Carolyn Jessop corroborated his testimony, describing the sharp drop in placement marriage ages.

Using the documents Ranger Hanna and Attorney General Investigator Hensley had uncovered, the State argued that Jeffs was involved in 550 bigamous marriages, 67 of which involved child brides. Jeffs had 78 “unlawful wives,” 24 of them child brides at the time of the marriage. Of the 78, 29 had previously been wives of his father Rulon Jeffs and therefore Warren’s stepmothers. Thirty-five had been students at the Alta Academy. Among his many brides, he had married two 12-year-old girls on 16 December 2005, one of whom was allegedly the girl heard on a sex tape played for the jury. FLDS records also showed Jeffs expelling 67 men from the community between 2003 and 2006.69

Jurors deliberated less than half an hour before returning a sentence of life plus twenty years.72 One juror who spoke to reporters afterwards said the sentence was not a difficult decision. “I didn’t feel like he was a man of God at all.”71 Utah officials were generally thrilled.72

Within minutes of his sentencing, Jeffs was flown to the Byrd Unit in Huntsville for processing. Jeffs became one of only 85 inmates (out of 156,235) to be celled in protective custody. He was assigned to the Powledge Unit in Palestine, about 110 miles southeast of Dallas, which houses about 1,100 inmates. Jeffs was allowed to leave his cell for recreation and showering, but was kept away from other inmates.73

On 29 August 2011, Jeffs, sleeping in a medically induced coma, was brought to the East Texas Medical Center in Tyler. He was reported “in critical condition after fasting in the weeks since receiving a life sentence.” A day later, he was flown to the University of Texas Medical Branch in Galveston—primarily a prison hospital—and upgraded to serious condition.74 Jeffs eventually returned to his solitary cell.

After his fast, Jeffs became very active, newspapers reporting that he was imposing new rules on his flock, expelling many believers, and requiring significantly increased donations.75 His telephone privileges were suspended for 90 days because corrections officials believed that some of Jeffs’ calls to approved individuals “were broadcast on a speakerphone to his congregation.” After an investigation, two people were removed from Jeffs’ approved list.76

During the same time frame, Jeffs and his supporters began mailing printed revelations to government officials, courts, and major newspapers around the country. The revelations purport to be God instructing mankind to repent or be destroyed. Ads with similar content appeared in the New York Times, the Salt Lake Tribune, the Washington Post, and other news outlets.77 The New York Times ad, appearing in the international news section, announced “Revelation of the Lord Jesus Christ Given to President Warren S. Jeffs” followed by general calls for the world to repent. The ad then listed six numbered revelations for sale through “Patriarch” Vaughn Jeffs of Colorado City along with his telephone number.78

One revelation, dated 1 November 2011, from Palestine reads: “I have commanded my servant to no longer be of an answering to court prosecuting power; to now silently witness my God send forth the greater humbling of nation of prosecution against my church and my priesthood . . .” [sic].

Jeffs did file a timely pro se notice of appeal but failed to retain an appellate lawyer or take any other steps to perfect his appeal. Many months later, on 29 March 2012, Chief Justice J. Woodfin Jones dismissed Jeffs’ appeal “for want of prosecution.”79 After that, Jeffs started directing his revelations to the Texas Court of Criminal Appeals (CCA), the next step up the appellate ladder. One was labeled a divine mandate ordering that Jeffs and his followers be released lest “whirlwind judgments” follow.80 On 15 May 2012, the CCA followed in the footsteps of the district court of appeals and denied Jeffs’ appeal. Texas Tech University criminal law professor, Patrick Metze, told the San Angelo newspaper “the guy has no earthly idea of what he is doing when it comes to the law.”81

Jeffs still had an unresolved bigamy charge in Schleicher County, but the Attorney General’s Office dismissed the charges after his conviction for sexual assault.82

 

Other Texas Defendants

 

LIKE WARREN JEFFS, all FLDS defendants appeared in the Texas courts with retained counsel. None pled indigence, meaning they had to finance their own trial and appeal costs. Each asked that a jury, rather than a judge, sentence them if convicted.

A few pled no contest and generally received lighter prison sentences than those who contested their charges. None received probation. A list of defendants and their sentences are listed in Table 1. Keith W. Dutson Jr. was the only defendant who did better going to trial.83

 

Wendell Loy Nielsen Trial

Wendell Loy Nielsen
Wendell Loy Nielsen

 

THE LAST TRIAL was that of 71-year-old Wendell Loy Nielsen, a life-long member of the FLDS who had held positions of authority under Rulon Jeffs. One trial witness who grew up among the FLDS said, “when you saw Rulon you saw Wendell . . . He was looked at as having influence . . . he was aware of how Uncle Rulon thought so people looked up to him.”84 He became First Councilor to Warren Jeffs and at one point filed papers with the Utah Division of Corporations identifying himself as president of the FLDS Church.

Based on religious records seized during the 2008 raid, Nielsen was indicted on three counts of bigamy, though there was no suggestion of child brides. Perhaps because the State had proof problems, Nielsen was allowed to plead no contest and was sentenced to ten years probation in October 2011.85 However, one condition of probation was that Nielsen have no contact with the four wives in question. He attempted to live with a son in Colorado, but that state refused the transfer of his supervision. A month later, he withdrew his guilty plea and asked for a trial.88

The defense argued that the jury pools in Schleicher and surrounding counties had been exhausted by previous FLDS trials, so the trial was moved to Midland and a new judge assigned.

Nielsen’s defense lawyer David Botsford’s trial strategy was to persuade the jury that the religious ceremonies of the FLDS, though usually called “celestial or spiritual marriage” in the courtroom, were never intended to replicate civil or legal marriages. Instead they accomplished the religious purpose of allowing women to follow “priesthood men” to the celestial kingdom, the highest level of exaltation in Mormon cosmology.87

Much of the prosecution’s case focused on demonizing Warren Jeffs and then emphasizing Nielsen’s close connection with him.

At trial, Nielsen was a mild, polite, balding, stooped man with health problems. He was accompanied in court by three attentive adult sons each day. The sons would leave the courtroom when the evidence turned to something they considered sacred, such as when a priesthood record dictated by Warren Jeffs was offered.

The jury deliberated for about 90 minutes over two days before finding Nielsen guilty on all three bigamy counts on 28 March 2012.

The most dramatic evidence presented during the punishment phase was a pair of charts described as showing “all of Wendell’s marriages and stuff.” They included his legal wife and the three women in the indictments along with another 30 women, none of whom were underage. The chart showed Nielsen as having children by five of his wives. Prosecutor Nichols walked through all 34 with the jury, showing driver licenses and other public records on big screens in the courtroom.88

Nichols next presented a chart of 327 “illegal” marriages that Nielsen had allegedly participated in—either as a witness or as “mouth,” performing the ceremony. No child brides appeared on the list until 16-year-old Ruth Stubbs was married to Hildale police officer Rod Holm on 11 December 1998 which had resulted in a major Washington County, Utah, trial in August 2003.91

The list included one 17-year-old, thirty-two 16-year-olds, ten 15-year-olds, two 14-year-olds, one 13-year-old, and four 12-year-olds. Of these, Warren Jeffs was the husband of the 17-year-old, eight of the 16-year-olds, the 13-year-old, and the 12-year-olds. Of the 40 underage brides, 35 came after the 2002 death of Rulon Jeffs.90

Nichols also introduced letters signed by Nielsen and other FLDS leadership protesting the Texas raid and criminal prosecutions—in particular letters to Texas Governor Rick Perry and President Barak Obama.91 Nichols argued that these protest letters were proof that Nielsen would not conform to the law.

“This is an offense against the family; this case is about the protection of the family,” Nichols told the jury during his closing argument. Nielsen was part of a “system he used to exploit” the faithful under his control. “Those like Wendell Loy Nielsen came to our state . . . the strongest possible message must be sent.”

Defense lawyer Botsford countered that Nielsen was “not the one who determined what the prophet said and ordained.”

The jury sentenced Nielsen to the maximum of ten years in prison and a $10,000 fine. He was handcuffed and taken into custody immediately after the verdict.92

One of the ironies of Nielsen’s trial was that, under Lawrence v. Texas, had Nielsen and his four wives met, engaged in all sorts of sexual conduct without so much as learning each other’s names, so long as all participants were of age and not coerced, and no money was exchanged, they could not have been prosecuted. But the minute they decided to make their relationship stable or permanent by pledging themselves under the appellation of marriage, they could be thrown into prison under anti-bigamy laws.93

Prosecutors have argued that the FLDS trials were not an attack on the religion but on individual conduct. In spite of that claim, one appellate court wrote: “Evidence of appellant’s FLDS membership was obviously unfavorable to appellant, but we conclude it was not unfairly prejudicial. . . . All of this evidence, taken together, revealed a man whose life was centered around a belief system that, in practice, regularly and routinely involved actions that resulted in crimes against children.”94

Since 2008, Texas has invested around $19.5 million into its raid on the Yearning for Zion Ranch in Schleicher County and its aftermath. The Los Angeles Times termed it an “aggressive raid” which “contrasted sharply with the approaches of Arizona and Utah, which have looked the other way for decades while the FLDS put underaged girls into ‘spiritual marriages.’”95 In trials costing $4.5 million, roughly $200,000 a day,96 Texas secured the longest prison sentences for polygamy ever imposed.

Overall, the raid and the subsequent trials seem to have been successful in the State’s eyes. FLDS leadership is in disarray, and the number of underage brides has likely diminished substantially. In 2012 the State of Texas moved to seize the YFZ` Ranch and other FLDS assets as the fruits of a criminal enterprise.

 

NOTES

 

1.  The 51st District Court covered Schleicher County where the YFZ Ranch was located as well as Tom Green County where San Angelo was located. FLDS trials were also held in Midland and Lee Counties.

2.  Michelle Roberts and Paul J. Weber, “Ranger provides insights into raid on polygamous ranch,” San Angelo Standard-Times, 12 August 2011, 1A.

3.  Michael Emark, 354 S.W. 828, 831 (Tex. App.—Austin 2011).

4.  Arian Campo-Flores and Catharine Skipp, “Rozita Swinton’s Bad Call,” Newsweek, 4 August 2008, 34–35.

5.  354 S.W.3d at 833

6.  Ralph Blementhal and Gretel C. Kovach, “Sought in a Texas Raid, A Suspect Lives in Arizona,” New York Times, 8 April 2008, A21. An Arizona probation officer confirmed that Dale Barlow was on probation for his marriage to a 16-year-old plural wife, then 25, and reporting daily by telephone and once a week in person.

7.  State’s Exhibits 17, 17b, 17f, and 17g, from the Wendell Nielsen trial in March 2012.

8.  For a book-length history of Mormon Fundamentalism see Brian C. Hales, Modern Polygamy and Mormon Fundamentalism: The Generations after the Manifesto (Salt Lake City: Kofford Books, 2006); for a history of the FLDS see Ken Driggs, “‘This Will Someday Be the Head and Not the Tail of the Church’: A History of the Mormon Fundamentalists at Short Creek,” Journal of Church and State, 43(Winter 2001): 49–80.

9.  Marianne T. Watson, “The 1948 Secret Marriage of Louis J. Batlow: Origins of FLDS Placement Marriage.” Dialogue: A Journal of Mormon Thought, 40 (Spring 2007): 83–136. See also Marianne T. Watson, “Short Creek: ‘A Refuge for the Saints,’” Dialogue: A Journal of Mormon Thought, 36 (Spring 2003): 71–87.

10.      Michael Janofsky, “Mormon Leader Is Survived by 33 Sons and a Void,” New York Times, 15 September 2002, A16. Warren Jeffs was born in California on 3 December 1955. He was Rulon Jeffs’ fourteenth child, born to his fourth wife. He was born two months premature and was considered something of a miracle child as a result. He graduated from Jordan High School in Salt Lake Valley in 1973.

11.      Will Weissert, “Game Warden Got Peek Inside Polygamous Ranch,” San Angelo Standard-Times, 25 July 2011, 6A.

12.      From his 22 March 2012 testimony at the Wendell Nielsen trial in Midland, Texas.

13.      Testimony of Texas Ranger Aaron Grigsby, Nielsen trial on 23 March 2012.

14.      Ralph Blumenthal, “52 Girls Are Taken From Mormon Sect’s Ranch in Texas,” New York Times, 5 April 2008, A11; Jennifer Dobner, “Police Well Armed for Raid on Polygamist Sect,” The Intelligencer, 16 April 2008, A8.

15.      Kirk Johnson, “Far-Flung Placement of Children in Texas Raid is Criticized,” New York Times, 20 May 2008, A16; Leslie Kaufman and Dan Frosch, “Sect Mothers Say Separation Endangers Children,” New York Times, 29 May 2008, 14A.

16.      April Castro, “Texas Says Boys May Have Been Abused by Polygamists,” Atlanta Journal-Constitution, 1 May 2008, A10.

17.      “PR Storm Unusual for Polygamous Sect,” Washington Times, 21 April 2008, A3.

18.      “DNA Samples Taken From Polygamists’ Kids,” New York Daily News, 21 April 2008, http://www.nydailynews.com/news/world/dna-samples-polygamists-kids-article-1.282424 (accessed 27 June 2013).

19.      Kirk Johnson and Gretel C. Kovach, “Sect’s Children Returned to Parents, but Inquiry Continues,” New York Times, 3 June 2008, A14; Ralph Blumenthal, “Court Says Texas Illegally Seized Sect’s Children,” New York Times, 23 May 2008, A1; Wendy Koch, “Court Says Texas Took Sect Kids Illegally,” USA Today, 23 May 2008, 3A; Michelle Roberts, “Raid Targeting Sect Ruled Illegal,” Atlanta Journal-Constitution, 23 May 2008, A3; Brooke Adams, “Texas Attorneys: Law Eventually Prevailed,” Salt Lake Tribune, 26 September 2009, B3. See: In re Steed, 2008 WL 2132014 (Tex. App.—Austin 2008, orig. proceeding) (memorandum opinion); In re Texas Department of Family and Protective Services, 255 S.E.3d 613 (Texas 2008).

20.      State’s Exhibit #7e in the Nielsen trial.

21.      Testimony of Texas Ranger Nick Hanna on 22 March 2012, in the Nielsen trial.

22.      Testimony of Texas Ranger Jesus “Jesse” Valdez on 22 March 2012, in the Nielsen trial.

23.      Emack, 354 S.W.3d, 842.

24.      People with far more computer savvy than I advise that, depending on the mix of documents, pictures, video, and audio, this could amount to literally “billions” of pages of text.

25.      Matthew Waller, “Witness ID’s Girl, 12, Prosecution Alleges as Victim,” San Angelo Standard-Times, 2 August 2011, 1A.

26.      See testimony of Rebecca Musser on 26 March 2012, of the Wendell Nielsen trial.

27.      Nate Carlisle, “Leader Kept Records of Sex Acts,” San Angelo Standard-Times, 9 August 2011, 1A.

28.      See the testimony of University of Texas law professor Jack Sampson in the November 2010 trial of Keith William Dutson Jr.

29.      Texas Penal Code 25.01.

30.      Texas Penal Code 22.011.

31.      Texas Penal Code 22.021.

32.      Texas Family Code 2.202(d).

33.      See Matthew Waller, “Prosecutor Highly Regarded,” San Angelo Standard-Times, 24 July 2011, 1A.

34.      Emack v. State, 354 W.S.3d 828, 834-839 (Tex. App.—Austin 2011). See also Lehi Barlow Jeffs aka Lehi Barlow Allred v. State, no. 03-10-00272-CR (Tex. App.—Austin 24 February 2012) (unpublished opinion), 6.

35.      Case records indicate Dr. Beall was paid $125,639.75 for his testimony and consultation in six trials.

36.      Waller, “Witness ID’s Girl.”

37.      See Musser’s testimony of 23 March 2012 in the Nielsen trial and the Frederick Merril Jessop trial of 2–3, 7 November 2011.

38.      A nineteenth-century Mormon term for being on the run to avoid prosecution, often with the help of fellow believers.

39.      “FBI Ups Reward for Fugitive Polygamy Leader,” Salt Lake Tribune, 18 January 2006, B8; Justin Hill, “‘We Will Catch Him’, FBI Chief Says of Warren Jeffs Pursuit,” Salt Lake Tribune, 8 June 2006, http://archive.sltrib.com/
article.php?id=3912419&itype=NGPSID&keyword=&qtype=
(accessed 27 June 2013).

40.      Dennis Wagner, “Fate of Polygamy Sect Unclear as Leader Held,” USA Today, 30 August 2006, 3A.

41.      Kirk Johnson, “Leader of Polygamous Mormon Sect Is Arrested in Nevada,” New York Times, 30 August 2006, A11; Dennis Wagner, “Fate of polygamy sect unclear as leader held,” USAToday, 30 August 2006, 3A.

42.      Johnson, “Leader of Polygamist Mormon Sect Is Arrested in Nevada.”

43.      Ben Winslow and Nancy Perkins, “Jeffs to Appear Before a Judge in Utah Today,” Deseret News, 7 September 2006, http://www.deseretnews.com/
article/645199136/Jeffs-to-appear-before-a-judge-in-Utah-today.html?pg=all
(accessed 27 June 2013).

44.      Elissa Wall was married to her cousin Allen Steed on 23 April 2010. She avoided sexual relations with her husband for a few months, mostly by staying with her mother. See Elissa Wall with Lisa Pulitzer, Stolen Innocence: My Story of Growing Up in a Polygamous Sect, Becoming a Teenaged Bride, and Breaking Free of Warren Jeffs (New York: Harper Collins, 2008). See also Kevin Jenkins, “Judge Weighs Possible Dismissal of Rape Case,” The Spectrum [St. George, Utah], 31 January 2010, http://www.thespectrum.com/
article/20100130/NEWS01/1300310/Judge-weighs-possible-dismissal-rape-case
(accessed 27 June 2013).

45.      Wall with Pulitzer, Stolen Innocence, 2008.

46.      Utah v. Jeffs, 2010 Utah 49, 243 P.3d 1250 (2010). Utah later decided not to retry Jeffs. Paul Foy, “Utah dropping charges against Jeffs,” San Angelo Standard-Times, 10 November 2011, 5A.

47.      Michelle Roberts, “Polygamist Indicted for Child Sexual Assault,” Atlanta Journal-Constitution, 23 July 2008, A4.

48.      Matthew Waller, “Judge Thwarts Jeffs, Allows Evidence,” San Angelo Standard-Times, 28 July 2011, 1A.

49.      Matthew Waller, “Length of Trial Is Not Known,” San Angelo Standard-Times, 1 August 2011, 1A.

50.      Rick Smith, “Courtroom at Times Is Captivating,” San Angelo Standard-Times, 31 July 2011, 7A.

51.      Russell Gold, “Polygamist Leader Fires Lawyers, Takes on Own Case,” Wall Street Journal, 29 July 2011, A2; Matthew Waller, “Jeffs to Represent Himself,” San Angelo Standard-Times, 29 July 2011, A1.

52.      Kiah Collier, “Jeffs’ Rambling Provides Courtroom Theater,” San Angelo Standard-Times, 31 July 2011, 1B.

53.      Matthew Waller, “Jeffs No Longer Silent in Trial,” San Angelo Standard-Times, 30 July 2011, 1A.

54.      Waller, “Jeffs to Represent Himself.”

55.      Ibid.

56.      Waller, “Jeffs No Longer Silent in Trial.”

57.      Ibid.; Collier, “Jeffs’ Rambling Provides Courtroom Theater.”

58.      Smith, “Courtroom at Times Is Captivating.”

59.      Matthew Waller, “Jurors Hear Audio Sex Tape,” San Angelo Standard-Times, 4 August 2011, 1A.

60.      Matthew Waller, “State’s Case Nears Close,” San Angelo Standard-Times, 3 August 2011, 1A.

61.      Waller, “Jurors Hear Audio Sex Tape.” The jury was also given transcripts of the tape prepared by Ranger Hanna.

62.      Matthew Waller, “Week 1 of Jeffs’ Trial Offers Unexpected,” San Angelo Standard-Times, 30 July 2011, 1A.

63.      Matthew Waller, “Jeffs Fails a Third Time to Have Judge Removed,” San Angelo Standard-Times, 2 August 2011, A1.

64.      Paul J. Weber, “Jury Hears Disturbing Tape,” Orange County Register, 4 August 2011.

65.      These would be the Book of Mormon, the Doctrine and Covenants, and the Pearl of Great Price which reportedly were entered into evidence.

66.      Matthew Waller, “Guilty on Both Counts; Sentencing Phase Begins,” San Angelo Standard-Times, 5 August 2011, 1A; “Polygamist Convicted of Sexual Assault,” Los Angeles Times, 5 August 2011, AA2; Will Weisset, “Jury Convicts Jeffs of Child Sexual Assault,” USA Today, 5 August 2011, 2A; “Texas: Polygamist Leader Convicted,” New York Times, 5 August 2011, A11.

67.      Matthew Waller, “Time for Jeffs’ Attorney to Mitigate the Penalty,” San Angelo Standard-Times, 8 August 2011, 1A.

68.      Ibid.; and Brent W. Jeffs with Maia Azalavitz, Lost Boy (New York: Broadway Books, 2009).

69.      Matthew Waller, “Photos Show Jeffs, Girls,” San Angelo Standard-Times, 9 August 2011, 1A.

70.      Matthew Waller, “Life Plus 20,” San Angelo Standard-Times, 10 August 2011, 1A; Paul J. Weber, “Jeffs Gets Life in Prison,” Atlanta Journal-Constitution, 10 August 2011, A2; “Texas Polygamist Leader Gets Life Sentence,” New York Times, 10 August 2011, A13.

71.      Matthew Waller, “Juror: Sentence not a Difficult Decision,” San Angelo Standard-Times, 11 August 2011, 1A.

72.      Matthew Waller, “Utah Officials Celebrate Jeffs Verdict,” San Angelo Standard-Times, 11 August 2011, 1A.

73.      Matthew Waller, “Jeffs Receives His Own Jail Cell,” San Angelo Standard-Times, 24 August 2011, 1A.

74.      Michael Graczyk, “Polygamist Sect Leader in Critical Condition,” Atlanta Journal-Constitution, 30 August 2011, A4; Matthew Waller, “Jeffs Doing Better, Listed as ‘Serious’, Official Says,” San Angelo Standard-Times, 31 August 2011, 8A.

75.      Matthew Waller, “Jeffs Ups Demands for Giving,” San Angelo Standard-Times, 7 December 2011, 8A; Matthew Waller, “Division in FLDS After Deadline,” San Angelo Standard-Times, 6 January 2012, 1A; Jennifer Dobner, “Jeffs Keeps Grip on Sect from Prison,” San Angelo Standard-Times, 16 January 2012, 1A.

76.      Michael Graczyk, “Polygamist Leader’s Phone Use Suspended,” San Angelo Standard-Times, 5 January 2012, 6A; Matthew Waller, “Jeffs Not Allowed to Dial for 90 Days,” San Angelo Standard-Times, 10 January 2012, 8A; and Matthew Waller, “Jeffs’ Phone Privileges Restored,” San Angelo Standard-Times, 7 April 2012, 5A.

77.      Matthew Waller, “Officials Receive FLDS letters,” San Angelo Standard-Times, 7 December 2011, 1A; Matthew Waller, “FLDS Starts Media Blitz,” San Angelo Standard-Times, 27 January 2012, 7A.

78.      “ADVERTISEMENT Jesus Christ, Son Ahman,” New York Times, 20 January 2012, A10.

79.      Jeffs v. State, no. 03-11-00568-CR (Texas 3d App—Austin, March 29, 2012) (unpublished opinion).

80.      Matthew Waller, “Criminal Court Gets Mandates from Jeffs,” San Angelo Standard-Times, 27 April 2011, 3A.

81.      Matthew Waller, “Warren Jeffs’ Appeal Is Rejected by State Court,” San Angelo Standard-Times, 15 May 2012, 5A; Lindsay Whitehurst, “Texas High Court Rejects Jeffs’ Appeal,” Salt Lake Tribune, 16 May 2012, http://
www.sltrib.com/sltrib/news/54127230-78/jeffs-court-appeals-appeal.html.csp,
(accessed 27 June 2013).

82.      Paul J. Weber, “$4.5M Spent on Texas FLDS Prosecution,” San Angelo Standard-Times, 4 April 2012, 3A; “Prosecutors Request a Delay in Jeffs Case,” San Angelo Standard-Times, 31 December 2011, 5A; and Matthew Waller, “Bigamy Pretrial for Warren Jeffs Canceled,” San Angelo Standard-Times, 5 January 2012, 6A. The indictment alleges that Jeffs married “M. Jessop” on or about 27 July 2006, at a time when he was legally married to Annette Barlow.

83.      Matthew Waller, “Jeffs to Join Associates Prosecuted by State,” San Angelo Standard-Times, 24 July 2011, 9A.

84.      Carolyn Blackmore Jessop, testifying for the State on 29 March 2012.

85.      Matthew Waller, “Ex-president Avoids Prison,” San Angelo Standard-Times, 27 October 2011, 1A.

86.      Matthew Waller, “Ex-president Backs Out of Plea Deal,” San Angelo Standard-Times, 29 November 2011, 1A.

87.      This was the same defense offered in the Utah trial of Rodney Holm. State v. Holm, 2006 Ut. 31, 137 P.3d 726, 733-736 (Ut. 2006).

88.      Testimony of Attorney General Investigator Sgt. Wesley Hensley on 28 March 2012, and SE 1006a in the Nielsen trial.

89.      Holm v. State, 2006 Ut. 31, 137 P.3d 726 (Utah 2006); Elizabeth Neff and Pamela Manson, “Court Rejects Polygamy Defense,” Salt Lake Tribune, 17 May 2006, A1.

90.      See State’s Exhibits 1006a and 1006b and Matthew Walter, “More Marriages Alleged in Nielsen Case,” San Angelo Standard-Times, 30 March 2012, 10A.

91.      States Exhibits 84 and 85, introduced at the Nielsen trial through Ranger Hanna on 29 March 2012.

92.      Matthew Waller, “Nielsen Gets Max Sentence,” San Angelo Standard-Times, 31 March 2012, 1A. This newspaper account indicates Nielsen was not handcuffed on the spot, but I observed it happen.

93.      Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).

94.      Jessop v. Texas, no. 03-10-00078-CR (Tex. App.—Austin, 19 April 2012) (unpublished opinion). Students of legal history will notice the obvious similarity between this reasoning and the United States Supreme Court finding the LDS Church to be not a religion but a criminal combination in The Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States, 136 U.S. 1, 10 S.Ct. 972, 34 L.Ed. 478 (1890).

95.      Miguel Bustillo and Nicholas Riccardi, “Texas Has Its Own View of Polygamists,” Los Angeles Times, 12 April 2008, A1. Recent Los Angeles Times coverage of Fundamentalist Mormonism has generally been hositle.

96.      Paul J. Weber, “$4.5M Spent on Texas FLDS prosecution,” San Angelo Standard-Times, 4 April 2012, 3A; Paul Weber, “Polygamous Sect Raid, Jeffs Prosecution Cost Texas Nearly $20 Million,” Salt Lake Tribune, 4 April 2012 http://www.sltrib.com/sltrib/news/53848544-78/jeffs-million-spent-texas.html.csp (accessed 27 June 2013).

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