Polygamist's prosecution, defense likely to be complex
 
The Associated Press
KVOA News 4 - Tucson
 
ST. GEORGE, Utah -- In court Wednesday, polygamist sect leader Warren Jeffs said he's shopping for a Utah attorney to defend him against charges of rape as an accomplice for his role in arranging a spiritual marriage between a teenage girl and an older man.

What he'll need is someone able and willing to wade through some dicey legal arguments over intent and the idea of marriage, Brigham Young University law professor Marguerite Driessen said.

"The theory is that what Warren didn't do himself, he assisted others to do," Driessen said. "He can simply say that he had no idea that (the couple) would actually consummate their marriage."

Or prosecutors would have to prove Jeffs intended that a rape occur when he performed the "spiritual marriage" ceremony for the couple, she said.

Jeffs, 50, is the leader of the 10,000 member Fundamentalist Church of Jesus Christ of Latter Day Saints, a sect based in Hildale, Utah and Colorado City, Ariz., which practices polygamy, including some marriages involving underage girls.

On the FBI's 10 Most Wanted List since May, Jeffs had been a fugitive for more than a year when he was arrested north of Las Vegas on Aug. 28 in a traffic stop. He was extradited to Utah on Tuesday to face two first-degree felony charges which could net him a life sentence to prison.

He is being held without bail in the Purgatory Correctional Facility in nearby Hurricane.

Jeffs, who is currently being assisted by Las Vegas attorney Richard Wright, appeared for an initial court appearance via closed-circuit TV from jail, with Judge James L. Shumate about 15 miles away at the Washington County courthouse in St. George.

A preliminary hearing is set for Sept. 19. A status conference is also set for Monday to see if Jeffs has hired an attorney. Wright doesn't have license to practice here and can't defend Jeffs on his own.

Last week, Shumate granted a request from County Attorney Brock Belnap to temporarily revoke a $500,000 bond request. The prosecutor, who has called Jeffs a flight risk, wants bail yanked permanently.

Washington County prosecutors contend Jeffs forced a teenage girl from his sect who was under 18 to marry and have sex with an older man, commanding her to "give herself "mind, body and soul to your husband like you're supposed to."

That "marriage" could provide defense attorneys with an additional strategy, Driessen said.

"They could argue that that the underlying sex was not rape because (the couple) considered themselves married even though they lacked a legal marriage license," she said.

The polygamy practicing FLDS typically participate in legal, civil ceremonies with first wives, but have only religious ceremonies when entering into subsequent marriages.

"And (prosecutors) haven't charged (the husband) with rape and that will leave the defense with a wide open avenue to ask why," Driessen said. "You cannot be an accomplice to a crime that did not take place."

Precedent for the case against Jeffs comes the 1997 rape as an accomplice conviction of John Perry Chaney. A jury found him guilty of forcing his 13-year-old daughter to marry a 48-year-old man. The appeals court upheld the conviction, rejecting Chaney's argument that he expected the girl to wait until turning 16 to consummate the marriage. She disputes the claim and said her father provided her with instructions for the "marriage bed."

Chaney's Provo attorney Randy Spencer said the Jeffs case may turn on the issue of consent.

In Chaney the victim was a minor under age 14, while in the Jeffs case the victim is said to be only between 14 and 18, and that could make all the difference. For example, if the girl was of legal age to be married - 16 in Utah with parental permission - she would then be legally able to consent to sexual relations with her husband, Spencer said.

Spencer believes that to convict Jeffs, prosecutors will have to prove Jeffs' state of mind when he performed the marriages and the state of mind of the (husband) whom Jeffs is accused of aiding.

After that, the question will be "to what degree did the alleged victim consent," Spencer said.

Belnap has made a point of saying his office is not attacking Jeffs' religion or the practice of polygamy.

"People have a right to whatever religious beliefs they may hold. However, religion is not an excuse for criminal conduct," Belnap said at a news conference last week. "This case is about someone in a position of power and authority committing a crime against a vulnerable young girl."
 
KVOA.com
Originally published September 6, 2006
 
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