Monday, April 28, 2008

Pennsylvania GOP Voters Reject McCain

The following is taken from (Link HERE):


Pennsylvania Warns Us GOP Still Not Ready for McCain
By Peter J. Wirs
Monday, April 28, 2008

After all is said and done, the April 22nd Pennsylvania Primary didn’t tell us anything we already didn’t know. On the Democratic side, voters are still splintered by age and income; and on the Republican side, the conservatives still have not embraced McCain. Yes, there was a Republican primary in Pennsylvania. And its results don’t bode well for the Grand Old Party. (Snip)

What is more disturbing however, is that on the Republican side, 239,913 or over one-quarter of all Republicans casting ballots, 27.2% to be exact, voted against McCain despite the indisputable fact he is the presumptive GOP nominee. Congressman Paul won 15.9% of the Pennsylvania Republican primary, while former Arkansas Governor Mike Huckabee, without even lifting a finger, won 11.3% of the vote. This is while the Governor was accompanying Senator McCain on the "It’s Time for Action" campaign visits.

Ultra-liberal columnist Frank Rich of the New York Times makes hay out of this point, notwithstanding that most Republicans stayed at home. But 827,000 Republicans did go to the polls, which represents 26% of the 3.1 million registered GOP. Assuming the recent — and downward trending of — GOP turnout in Presidential election years, the primary turnout represents 35% of an expected GOP turnout in November.

Such a rejection does not bode well for McCain. Traveling to Harrisburg two days after the primary, there were still scores of Ron Paul signs on the highway. Conscientious Ron Paul volunteers were even picking up signs off the Interstate. How often do you see this? What motivates Ron Paul supporters to take such measures when the nomination was decided a month and half ago?

What should be more disturbing is that the number of votes obtained by Messrs. Huckabee and Paul, 239,000 is greater than 215,000 margin that separated Senators Clinton and Obama. Given that the 2000 Gore-Lieberman Democratic ticket defeated the GOP Bush-Cheney in the Keystone State by 205,000 votes in 2000 and the Kerry-Edwards ticket won by 144,000 votes in 2004, these are 220,000 voters we Republicans can ill-afford to lose, all the more so since Pennsylvania now has over a million more registered Democrats than Republicans. These figures don’t include independents, no-party and registered Green voters, who could not vote in primary, as Pennsylvania primaries are closed, and as a whole have been migrating toward the Democrats since 2006, particularly in the Philadelphia suburbs.

The GOP gains nothing by swapping conservative votes for Independent votes. McCain can win only if he attracts Independent voters while retaining conservative voters. Unless Bush enters the witness protection program, the fall campaign will be among the most difficult GOP campaigns since Watergate. (SNIP)


Peter J. Wirs is currently the Chairman & Co-Trustee of the Republican Leadership Trust as well as the incoming President of the National Conference of Public Officials.

Copyright © 2008 Salem Web Network. All Rights Reserved. -----------------------------------------------------------

The writer here, while making the perfect case for the notion that the GOP has made a terrible mistake by presenting the electorate with an unelectable GOP candidate, goes on to plead with conservatives to again hold their noses and vote for another wealthy establishment RINO whose positions on key issues are indistinguishable from many Democrats and who arrogantly refuses to even pay lip service to the GOP conservative base. One of McCain's goals for years has been to destroy the influence of the vocal conservative wing of the GOP, especially the theocrat wing in presidential politics. He may accomplish that goal this election cycle but he will not enjoy his victory from 1600 Pennsylvania Avenue.

Friday, April 25, 2008

Judicial Selection May Have Become Less Mysterious in Oklahoma:

The judicial selection process in Oklahoma has always been something of a mystery to the vast majority of the population. Every election cycle, I get calls from friends, family and clients asking me who to vote for in the judicial elections. I never make recommendations and tell them truthfully, "For the most part, I don't know any more about them than you do."

But, if legislation passed yesterday in the Oklahoma House is enacted into law, Oklahoma judicial appointments would have to be confirmed by the Oklahoma Senate in a process similar to the federal system, where judicial candidates are voted upon after confirmation hearings. (Link to NEWSOK story HERE.) Under the bill, the people would be asked to vote to approve an amendment to Article VII of the Oklahoma Constitution as follows:

Any appointment by the Governor to fill a position, as provided by law, on an intermediate appellate court shall be confirmed by a majority of the Senate. Any appointment or reappointment, as provided by law, by the Governor to fill a position on the Workers’ Compensation Court shall be confirmed by a majority of the Senate.

Governor Henry is unhappy with the legislation and stating that measure would politcize the judicial selection process and that no changes are needed since the current system is working fine. Under the current system, the Governor has the final say on judicial appointments.


In a copyrighted story by Michelle Roberts, (LINK HERE) the Associated Press is now questioning the legality of the Texas child seizures:

"...the broad sweep - from nursing infants to teenagers - is raising constitutional questions, even in a state where authorities have wide latitude for taking a family's children.

"The move has the appearance of "a class-action child removal," said Jessica Dixon, director of the child advocacy center at Southern Methodist University's law school in Dallas.

"I've never heard of anything like that," she said.

Rod Parker, a spokesman for the Fundamentalist Church of Jesus Christ of Latter Day Saints, contends that the state has essentially said, "If you're a member of this religious group, then you're not allowed to have children."

"Constitutional experts say U.S. courts have consistently held that a parent's beliefs alone are not grounds for removal. The general view of the legal system is until there is an imminent risk of harm or actual harm, you can't do that," said UCLA law professor Eugene Volokh."

Testimony by sect members is alleging that not all of the families of the sect practiced polygamy and that some of the children taken were taken from traditional nuclear families.

Attorneys are also complaining about the courtroom conditions and the sheer chaos that has resulted from having so many cases going on at one time in a small court not equipped to the handle them.

Texas officials are saying, however, that the fact that the probable cause for the raid was based upon falsified reports will not effect the outcome since they followed the information given by an emotionally troubled informant with a history of making false child abuse reports in good faith. (sarcasm off.)

Thursday, April 24, 2008

Comments Before the Oklahoma Bar Association Bench and Bar Committee

As many of you know already, I was allowed to speak before the Bench & Bar Committee of the Oklahoma Bar Association to relate my concerns about proposed changes to the Oklahoma Code of Judicial Conduct. I know that several of you were praying for me during that time and I want to thank you for that. I am greatly humbled by your support. What follows is not a direct transcription of my remarks. It is a close paraphrase based upon my memory of what was actually said.


Ladies and Gentlemen, I want to thank you for the opportunity to address you this afternoon.

If Rep. Calvey and I had coordinated a little before the meeting, we could have saved each other some time and research. I concur with everything he just said.

I will not attempt to analyze the proposed code changes in ten minutes. You have been provided a copy of my comments which have already been submitted and I trust that you have or will read them before you make your decision. So, with your permission, I will move straight to my “closing argument.

I am concerned that the cumulative effect of the changes will be used by some attorneys and organizations to craft a defacto religious test for Oklahoma Judges.

Last week, I taught a session of a CLE in Tulsa. The lady who introduced me has known me by reputation for years. She is great lady, one of the hardworking people of her section that make the OBA the great organization it is. But, when it came time for my introduction, all she could say was, “I would like to present Bill Kumpe. He is an attorney in Tulsa and ….. (long pause – embarrassed confusion) …. a very nice person.

I had to laugh. I do try very hard to be a “very nice person. I thanked her and started my presentation. But, I knew I had put her in a terrible spot because I didn’t submit a bio as requested. And, the reason I didn’t submit a bio speaks volumes to the issue at hand.

Before law school, I was a computer salesman and even a reporter for a while. But, I was best known for being an ordained, lay teaching elder in my community of faith and for serving on the Board of Directors of one Tulsa’s first and now largest Christian Schools. I am also a published freelance writer on subjects of interest to what used to be called the “Christian Right.

After law school, I was President of the Christian Legal Society of Tulsa and was one of the founders of the Dream Center Legal Clinic in North Tulsa. I am a graduate of a Christian Civil Rights Litigation Academy and have received awards for my pro-bono work. I have actually performed over three thousand hours of pro-bono and reduced fee work. In the past year, I have represented a diverse range of clients from the Speaker of the Oklahoma House of Representatives to Thirteen Baptist Pastors of the Cherokee Nation. Currently, I am serving on Representative Sally Kern’s legal team.

I am not ashamed of my career. Far from it. If I were I wouldn’t be here today telling you about it. But, I didn’t share the details of it for a number of reasons. First, I knew that it might embarrass the people that invited me and I certainly didn’t want to do that. Second, I knew from experience that some members of the audience would choose not to hear a word that I said after hearing my bio. And third, though I am ashamed to say this, I chose not to because I didn’t want to deal with that issue on that day when it had no relevance to what I was going to say. It can be a burden.

One of my favorite tools for evaluating a situation is to apply what I call the “do unto others” test. I mentally reverse the roles and/or facts to try to see the situation from the other person’s point of view.

Let’s suppose for a moment, that instead of being the President of the Christian Legal Society, I had been Chairman of one of the OBA sections. And, let’s suppose that instead of helping to found a faith based legal clinic in North Tulsa, I had helped found a Legal Aid Clinic. Let’s suppose further that I had worked in excess of three thousand pro-bono and reduced fee hours with the ACLU or Legal Aid instead of Christian organizations. And, while we’re at it, let’s suppose that right now, at this moment, I am representing any other member of the legislature other than Rep. Sally Kern. Would I have felt the need to withhold my bio in front of that audience?

Now, going directly to the point at hand, let’s suppose that I am a candidate for District Judge or under consideration for an appointment to fill a judicial vacancy. Would I need to hide those details of my bio? As a matter of fact, even if I were otherwise qualified which I am not, would my name even come up in that context given the contents of my resume’? That’s a hard question.

Under standards that have already been applied by the Oklahoma Supreme Court in an unpublished opinion styled Oklahoma Baptist Homes for Children, et. al v. Donald Timberlake, if I were a sitting Oklahoma judge, the personal details I just shared with you would already disqualify me from hearing a case involving religious organizations even if I had no previous connection with them. This is especially ironic given the fact that on the United States Supreme Court Ruth Bader Ginsburg regularly hears cases involving religious issues and organizations despite the fact that she is the former Chief Counsel of the ACLU.

If we extrapolate this already applied standard just a little farther, suppose that I am a sitting judge and my community of faith does not allow divorce. Will not allow them take communion. Should I then be disqualified from family law cases? And, suppose that my community of faith does not approve of alternative lifestyles. Should I then be disqualified from hearing any case involving people who identity themselves with those lifestyles. If these strategies are allowed (as I am afraid the new code will) they will be used by some attorneys and some organizations to “shop” judges.

I sincerely believe with all my heart, based upon my own personal experience, that that the new proposed code of judicial conduct will be used by some attorneys and organizations to first “shop” sitting judges and then shape judicial elections and thus establish a defacto , as applied, religious test for Oklahoma judges.

The question is straightforward. Will we use the power of the Oklahoma Bar Association to dictate the religious associations (or lack thereof) of the citizens who serve on our benches? I agree with Justice Joseph Story who said, “The rights of conscience are indeed beyond the reach of any human power. They are given by God and cannot be encroached upon by human authority … Our judges did not surrender their citizenship when they took the bench and are entitled to the same rights of conscience, association and free exercise of religion as any other citizen.

Our founding fathers recognized this problem and drafted strong protections into the language of the constitution. Article VI, Para. 3 of the United States Constitution is straightforward: “ … No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. Article 1 § 2 of the Oklahoma Constitution is equally clear: no religious test shall be required for the exercise of civil or political rights.

Ladies and Gentlemen, I ask you to consider carefully how these proposed rule changes may be misused by some attorneys and organizations as you continue your consideration of them.

Thank you.


The Associated Press has filed a motion to unseal the court records concerning Rozita Swinton, a person of interest in false child abuse reports which led to the seizure of over 400 children by Texas authorities. And, it has now been learned that Swinton had a long history of filing such reports. In a copyrighted story, link HERE, the Rocky Mountain News reports today:

The document released today shows Swinton had an extensive record in Colorado Springs of posing as a troubled teen and making false claims. The affidavit connects Swinton to several reports that alerted Colorado Springs officials.

The document links Swinton to calls made throughout October from a "Dana Anderson." The caller claimed to be a young woman being abused by her pastor at Colorado Springs' New Life Church, and later as a 13-year-old student at Liberty High School who said she was being drugged and sexually abused by her father.

In February, a woman calling herself "Jennifer" called 911 from a prepaid Tracphone, claiming that her father had locked her in her basement for days, the document said. Officers linked the calls to Swinton in March.

Texas officials claim that even though the largest government child seizure in American history since the "pacification" of Native American Indian tribes was based upon false information, information gained AFTER DURING AND AFTER THE SEIZURE verified their suspicions about the group and legally justified their actions.

How convenient. This kind of practice has gone on for years in the "war on drugs." Paid informants or informants that are not doing time courtesy of their police handlers will say just about anything against anyone. Just one more reason why the the fruit of the poisonous doctrine is a good idea, even when it lets defendants who truly deserve punishment go free.

The Mosaic Code had it right. Two sworn witnesses were required for a conviction and the witnesses testified under threat of the same penalty as the defendant would receive if convicted if it was found that they had perjured themselves. Works for me.

Monday, April 21, 2008

Correspondence Concerning Proposed Changes to the Oklahoma Code of Judicial Conduct

What follows is online correspondence with the OBA Bench & Bar Committee concerning proposed changes to the Oklahoma Code of Judicial Conduct by the Oklahoma Bar Association:


Professor :

Yes, I do have other concerns:

(1) Comment 2 to Rule 2.2 says in pertinent part, “a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.” I submit that this interpretive comment negates the concept of malum in se and reduces the law to a purely positivist statement of malum prohibitum rulings. There are acts that are always wrong no matter what a superior judge or court has to say about them. And a good judge, in his heart and conscience knows that. This comment would strip Oklahoma judges of their ability to follow their conscience and ask them to sometimes ignore their most deeply held beliefs and values in favor of the black letter of the law. Many legal scholars still believe that valid secular law is a restatement of the natural law which, depending upon your faith, is either gift from God or statement of man’s highest moral aspirations. This natural law is the manifestation of the best of the human conscience at work. This comment would strip Oklahoma judges of their ability to call upon Moses, Aquinas, Justinian, Blackstone and even their own conscience informed by them as they struggle with the most difficult of our legal questions. Dr. Martin Luther King summarized the problem very well in his Letter From A Birmingham Jail:

One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all." Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.. We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal."

(2) Section C of Rule 2.3 requires judge to prevent discrimination or harassment toward several otherwise enumerated classes of people. This of course raises the inevitable question, “Why do we need a rule favoring enumerated classes when a courtroom is already supposed to be a place where justice prevails and no one, protected class or not, is allowed to be discriminated against?” Rules such as this put a huge thumb on the scale of justice in favor of the enumerated class. Rules such as this also dull the edge of some arguments and put all parties on notice that all persons and arguments are not equal in this forum. The real problem with a rule such as this lies in the hypersensitive nature of many the enumerated classes. Suppose for example that the court is hearing an argument concerning the sale or extension of life and health insurance benefits to persons of the green class. Opposing Counsel seeks to introduce valid scientific data that persons of the green class have a life expectancy of twenty years less than other classes, comprise sixty percent or more of all serious sexually transmitted disease cases and are hundreds of times more likely to acquire several specifically identified, incredibly costly diseases. Simple statistical and actuarial data such as this is frequently labeled “hate speech” even though it is scientifically valid and very relevant to the argument …. depending upon who introduces the information.

This point can be best illustrated by a few lines from a very heated online discussion concerning the ABA model code which led up to the proposed revisions to the Oklahoma Code. I posted a redacted version of the AP article and link to its text in a well known secular legal publication. A firestorm erupted almost immediately. A member of the ACLU attempted to come to my defense stating: “The First Amendment issue of a proposed ethical change in American Bar Association guidelines as reported by the Associated Press is properly placed in the constitutional law section. No one, including our friend X, noticed that Kumpe did not offer an opinion a remark or even creative editing and it is linked to a neutral website.” Another poster quickly responded, “A seemingly neutral commentary from a clearly non-neutral poster is not so neutral as you suggest.” The poster’s point was that because I am a known Christian activist and am frequently involved in Christian issues at various levels, even my citation of a neutral set of facts was out of line. My point is that this is an attitude already widely found in members of the bar and a rule such as this would only codify it on the bench.

I would further submit that Comment 2 to this rule sets up an unenforceable standard that amounts to a heckler’s veto. Does the Oklahoma Bar Association really intend to have its judges enforce a “Don’t look crossways at me rule.” Imagine this statement in motion for a new trial and a related bar complaint, “When I mentioned that my lover and I (fill in the blank), their lawyer’s jaw fell open for a few seconds and then he got a very odd look on his face. It scared me and hurt my feelings. I was discriminated against and I want a new trial.” It will happen if this rule is adopted as proposed.

(3) Comment 1 to Rule 2.4 codifies the current notion that the courts are in effect a super legislature unaccountable to the electorate. The stereotypical response to this is that judges should not be afraid of lynch mobs and no reasonable person could disagree. But, I would submit that if judges are not supposed to be swayed by the values, morality and opinions of the people they serve, why do we have judicial elections at all? Does anyone really expect the people to vote for someone who will ignore their values, morality and opinions? If a judge is not expected to reflect the values, morality and opinions of his community at large, then whose values, morality and opinions should he reflect and what does this say about the concept of government by and for the people? Are we codifying the notion that we will be ruled by a judicial elite whose superior values, morality and opinion will have the final say on every issue? This very argument is playing out now in the wake of Lawrence v. Texas and I would submit that revisions to the Oklahoma Code of Judicial Conduct is not a proper forum to decide a political issue of this magnitude by default

(4) Rule 2.11 sets up another frightening scenario. We recently had an Oklahoma judge’s ruling overturned simply because of his religious beliefs and associations. The following is taken from Prof. Mike Scaperlanda’s article in the Daily Oklahoman, June 8, 2006:

By a 6-3 vote, the Oklahoma Supreme Court has established the dangerous precedent of disqualifying judges because of their religious affiliations. Last month, the Court told probate judge, Larry Jones, that he cannot hear the case of Oklahoma Baptist Homes for Children, et. al v. Donald Timberlake because the “circumstances and conditions surround[ing] the litigation” are such “that they might reasonably cast doubt and question” as to Jones’ ability to be impartial or at least they raise “the appearance of possible impropriety.

What caused Oklahoma’s high court to question Judge Jones’ impartiality? After Timberlake lost his case and while it was on appeal, he discovered that Judge Jones had “received a Doctor of Divinity in 1993 and is a licensed Baptist minister.” Armed with this information, Timberlake asked Judge Jones to remove himself from the case. Jones declined in a five page written opinion pointing out that a) his doctorate was earned at “a non-Baptist affiliated, independent Bible college,” b) that he is licensed by “the Seventh Day Baptist Church of Texarkana, Ark.,” which “is independent and autonomous” and

affiliated only with the Seventh Day Baptist General Conference, headquartered in Wisconsin,” c) that his church “has neither association with nor fellowship with the Southern Baptist Convention or those churches or members known as “Southern Baptists,” and d) he has never been “affiliated in any manner with Oklahoma Baptist Homes for Children Inc. or Trinity Baptist Church of Oklahoma, Inc.

Despite the fact that Judge Jones has absolutely NO connection, however remote, to the parties in the case, the Oklahoma Supreme Court ordered him to step aside.

Do we really want to codify the notion that no judge who is deeply involved in his faith should be allowed to hear a case involving faith based issues? Again, this is a case where a heavy thumb could be placed on the scales of justice in favor of the opponents of religious litigants.

(5) Rule 3.6 would make it prudent for judge and attorneys who aspire to the bench to decline involvement in their church and values based community organizations such as the Boy Scouts of America, Royal Rangers, Awana, etc. This violates the constitutional rights of the judges and judicial candidates by establishing a defacto religious test for public office. This issue was apparent as soon as the ABA’s proposed changes were released and there is no doubt how it would be interpreted:

Judges May Have to Quit Groups That Discriminate Against Gays
Gina Holland
The Associated Press

Judges are on the front line of battles over legal rights for same-sex couples and should never belong to an organization that discriminates against gays, supporters of a proposed change to American Bar Association ethics rules argued Friday. Judges are already prohibited from joining clubs that discriminate based on race or sex. An ABA panel is debating whether to make groups that discriminate against gays off limits as well. The ABA, the nation's largest lawyers' group with more than 400,000 members, writes conduct rules for judges and lawyers. States and federal courts generally adopt them, with some changes. It is not known how many judges participate in groups such as the Boy Scouts that have policies against hiring gays or having homosexual leaders, or some veterans groups that restrict membership to heterosexuals.

The proposed change to membership in groups that discriminate against gays is energized in part by the Supreme Court's ruling a year ago that states cannot "demean" same-sex couples by punishing their sexual conduct. That decision has spawned multiple gay rights cases around the country, including Massachusetts' ruling to legalize gay marriage. Most recently, a judge ruled last week that a same-sex marriage ban violates Washington state's constitution.

New York University ethics expert Stephen Gillers said gay people involved in court cases "should not be asked to trust the fairness of a judge" who belongs to a discriminatory club.

"Judges are human beings too. They should be allowed to exercise their First Amendment rights of free association," said Frederic Smalkin, a senior federal judge who teaches law at the University of Maryland. Smalkin said it could be difficult to define what organizations are acceptable. "Does that mean a judge could not belong to the reserves or National Guard?" he asked.

Brian Fahling, an attorney with the Mississippi-based American Family Association, said judges with religious objections to homosexuality should not be forced to follow such a rule.

As proposed, this is patently unconstitutional and would again establish a defacto religious test for public office.

Thank you for consideration in this matter. I look forward to meeting you.


Bill Kumpe

Sent: Tuesday, March 11, 2008 3:17 PM
To: Bill Kumpe
Subject: RE: Code of Judicial Conduct

Mr. Kumpe,

I know that one of the provisions in the Code about which you are concerned is Rule 3.6. Are there any other specific rules or comments about which you have a concern.

From: Bill Kumpe []
Sent: Monday, March 10, 2008 3:49 PM
Subject: RE: Code of Judicial Conduct


Thank you for your prompt reply. You can view the items directly on the OBA net by logging on there, clicking on the “Message Board” section in the left margin, then clicking on the “Search” option on the right side of the next screen. The first thread can be found by doing a keyword search on the term “Gina Holland.” The second thread can be found by doing a keyword search on the term “Kill a judge for Christ.

Thank you again for your prompt response.

Bill Kumpe


Sent: Monday, March 10, 2008 3:37 PM
To: Bill Kumpe
Subject: RE: Code of Judicial Conduct

Mr. Kumpe,

Thank you for writing to express your views on the proposed amendments to the Code of Judicial conduct. I do not believe that the proposed code would in any way affect a judge’s involvement with any church or church group. However, the Bench and Bar Committee will give full consideration to your concerns about this issue. I have had some difficulty in opening two of your attachments since my computer has screening devices that stops any attachment that involves “cookies”. I will ask our computer support personnel if they can help me with this problem. I will be forwarding your e-mail message to others and they may have the same problems.

From: Bill Kumpe []
Sent: Monday, March 10, 2008 3:23 PM
Subject: Code of Judicial Conduct


While I do not oppose all of the changes, I am frightened that some of the changes, particularly those having to with a judge’s extra-judicial activity and judicial disqualification will be used to craft a de-facto religious test for judges. While I do not question the sincerity or the motives of either the ABA or the OBA, I do fear that the changes are such that they can be misused. This is a very sensitive topic. Find below: (A) a link to a podcast of a radio interview I gave on this subject this weekend; (B) a link to a podcast of a radio interview that fellow Christian attorney Leah Farrish gave over the weekend; (C) a link to a thread on the OBA-NET where I made an attempt to discuss the constitutional ramifications of this matter with other lawyers within the OBA in 2004; and (D) a link to another thread on the OBA-NET regarding judicial matters. Given the tone of those discussions, I think that I have reasonable grounds for my fear that judges and judicial candidates of devout faith could be un-constitutionally burdened by misapplication of some of the new provisions.

Bill Kumpe

Attorney at Law





401 Texas Children - Part III - Are the Amish Next?

Over the weekend, it was announced that court records into the investigation of the person being investigated for making false child abuse reports in the Texas FLDS fiasco have been sealed:

The Rangers are "actively pursuing Rozita Swinton as a person of interest regarding telephone calls placed to a crisis center hotline in San Angelo," the DPS said.

A Colorado judge approved the Rangers' request to seal records in the case.

Child Protection Project founder Linda Walker and the Phoenix-based group's executive director, Flora Jessop, said Friday they were stunned when they learned the woman's identity.

"In her little baby voice, she said, 'If you rescue me, and I get out of here, do you think the black people will hurt me?' " Walker said. "She had done her homework. She knew it was a racist cult. We know that these kids are very frightened of black people.

"The Texas Rangers told us she was obsessed with the FLDS. They confiscated tons of material on the FLDS (in the search of Swinton's home). She even gave real addresses and real names of FLDS people."

Walker and Jessop hesitated to say that Swinton was the person who called the Texas hot line to describe sexual and physical abuse by a 50-year-old husband at the ranch outside Eldorado, but they endorsed the resulting actions of Texas authorities.

"Regardless of who made these calls, the system worked exactly as it was supposed to work," said Jessop, a former FLDS member whose cousin, Merrill Jessop, runs the ranch.

"A call came into the hot line from a little girl who said she was being brutalized. They turned this information over to Child Protective Services and to the proper authorities. Those authorities went in and did their job," she said. "They found systemic abuse in there, which is what we have been saying for years."

Link to Houston Chronicle story HERE. And it turns out that this informant was already under suspicion for making false reports:

Local police said Swinton had been under investigation for some time on that accusation, but police made an immediate arrest after the Texas Rangers became involved.

"This arrest stemmed from an incident that occurred in Colorado Springs in February of this year," Colorado Springs Police said in a statement. "The Texas Rangers were in Colorado Springs yesterday as part of their investigation involving the compound in Texas. They left and have not filed any charges on Rozita Swinton as of this time. "

ABC News was unable to reach Swinton or her lawyer for comment.

Swinton became a person of interest to Texas authorities when former Fundamentalist Latter Day Saints member Flora Jessop, who now operates a rescue mission for teenage girls trying to escape the sect, told authorities she had been getting calls from a girl claiming to be Sarah -- the same girl who made the call for help to a San Angelo, Texas, shelter that led to the raid on the El Dorado compound.

Link to ABC News Story HERE. Texas blogger Rusty Shackleford and American Spectator journalist Robert McCain put together this scenario:
Rusty Shackleford says the Texas FLDS compound story has "stunk to high-heaven from the git go," and look at the way Rusty puts two and two together:
Houston Chronicle: "The Texas Rangers told us [hoax suspect Rozita Swinton] was obsessed with the FLDS. They confiscated tons of material on the FLDS (in the search of Swinton's home). She even gave real addresses and real names of FLDS people."
Rusty: Hence, how Swinton would be able to "identify" the man who "Sarah" was allegedly married to, but didn't know that Dale Evans Barlow, the man originally pegged as the "50 year old husband", didn't actually live in Texas, but in Arizona. (Editors Note: Had she revealed the suspected perpetrator was in Arizona instead of Texas that might have complicated the question of who had jurisdiction to go after the only person who should have been brought in, the suspected perpetrator.)
Right, and now let me add something else to the equation: Notice that the middle (maiden) name for "Sarah" was "Jessop" -- "Sarah Jessop Barlow."

Well, Flora Jessop is the executive director of the anti-polygamy group quoted in that same Houston Chronicle story. And if you do a Google search on "FLDS" and "Jessop," you immediately discover that Carolyn Jessop is the author of a bestselling book, "Escape," about her life inside FLDS -- and that Carolyn Jessop appeared on "Oprah" in November 2007!

Bingo! So what must have happened is that Swinton:
  • Watched this "Oprah" episode in November;
  • Became obsessed with the FLDS cult;
  • Read about the compound in Texas;
  • Learned the name Dale Evans Barlow from reports of his prosecution;
  • Combined Barlow's name with "Sarah," a common female biblical name, and "Jessop," the name of the two prominent ex-FLDS women, to create a name for her fictional 16-year-old victim; and
  • Then did a Google search to find the phone number of a domestic-abuse hotline near the FLDS compound in Texas.
Link to blog HERE. McCain also asks the most pertinent question of this increasingly bizzare discussion, "Are the Amish next?"

Saturday, April 19, 2008

401 Texas Children - Part II

In a announcement that surprised nobody but the professionally naive', The Texas Rangers revealed yesterday that they have a person of interest in custody concerning possible false child abuse reports that led to the seizure of over four hundred children in a Texas religious community usually referred to by the press as a "cult compound." (Story and Ranger Press Release HERE.) Grits for Breakfast, a very well informed Texas Criminal Justice blog reports that the child abuse allegations may have been result of prank telephone calls. (See the blog and excellent coverage of the entire situation HERE.)

In the meanwhile, the press has been reporting that attempts by the small town court to provide the minimal due process necessary to make the child seizures stick have degenerated into a "farce" with hundreds of lawyers from around the state screaming objections and motions after waiting for hours in makeshift courtrooms and holding areas while necessary evidentiary documents were copied. (Story HERE. )

In the middle of this circus, a Texas CPS expert testified: "FLDS children are taught that disobeying orders leads to eternal damnation and have little opportunity to learn how to make independent choices." In other words, they are obedient to their parents wishes. God forbid!

Apparently, this CPS expert found the fundamentalist religious upbringing and obedience to their parents at least as abusive as the alleged child sexual abuse. The CPS worker concluded that the children did not feel abused because of their religious beliefs! Granted, this situation is far from typical and an absolute abuse of parental and religious authority. But, for years many in the professional community have alleged that a typical conservative Christian fundamentalist upbringing is also child abuse and spousal abuse. Last week, mainstream media outlets were showing video taken in mainstream Christian Bible Camps as examples of "fundamentalist brainwashing of children" that could lead to this type of situation.

To support the abuse claims, Texas officials entered into evidence reports that ten minor girls were pregnant from the group. Ten minor girls pregnant in a community of any size in Texas or Oklahoma is not news. And, the fact that they are pregnant by older men is not news either. The only difference is that in the community at large, the girls would be pregnant as the result of voluntary partying sex etc., perhaps with multiple partners whereas, in the case at hand, the girls are pregnant from voluntary underage marriage. Granted neither is a desirable state of affairs and both are a crime, but it takes supreme hypocrisy for the State of Texas to allow the former to return to their lives and probably previous sexual activities without much notice while creating concentration camps for the "re-education" of the latter.

Elucidating the obvious, the CPS expert continued, "There have to be exceptional elements in place for these children and their families. The traditional foster care would not be good for these children."

Texas and Oklahoma, especially in rural areas, are a lot alike. In the same month that this story was breaking in Texas, another story was breaking in Oklahoma. It would seem that an unacceptable number of children are being killed and abused, both physically and sexually, while in state supervised institutions and foster care in Oklahoma. The situation is so bad that a silk stocking Tulsa law firm has assisted other state and national firms in filing a massive class action lawsuit aimed at nothing less than re-building Oklahoma's foster care system from the ground up. Story HERE. In the same week as the lawsuit, a conservative Republican legislator in the Oklahoma house announced efforts there to dismantle Oklahoma's child welfare agency, the Department of Human Services, breaking it up into smaller units that will allow tighter controls and more accountability.

The men who have underage "wives" should be arrested and tried for statutory rape. If they are found guilty, they should be punished "right up to the limits of cruel and unusual" in the words of one Texas lawyer who was shocked by the seizures. But, the heavy-handed and probably unconstitutional manner in which the entire matter has been handled will probably prevent that. The following comments posted on Grits for Breakfast by Texas lawyers close to the situation are dead on point:

"Once again, Texas state government shows it couldn't pour piss out of a boot if the instructions were printed on the heel." (Regardless of your views on the raid, that's a great line!) He added here in Grits' comments:
Did no one think in advance to look if there were enough lawyers in a five county radius to serve as ad litems? Or if it was even feasible for one district court to shut down all it's operations to devote to one case? Or if there was even a courtroom big enough? And now, after letting some mothers come along with their children (admittedly an unusual act in a removal case), then stripping them of their cell phones, now they decide to kick them out unless they have kids under 4? This sort of screaming incompetence is going to permanently scar these children AND risk destroying any criminal cases that might be made. It's just beyond belief."
The Texas seizures are eerily like the Branch Davidian fiasco where a number of children were burned to death to "prevent them from being abused." They are a classic example of state authority run amok. What has happened is wrong, terribly wrong, and just like the Branch Davidian standoff, cannot and will not end well.

Sunday, April 13, 2008

"Undocumented" Immigrants and the Rule of Law

In a classic statement of common sense, Judge Gary Lumpkin of the Oklahoma Court of Criminal Appeals (an ex-Marine and VietNam Veteran) quipped the following:

Too many factions in our society have tried to dilute the facts of the status of illegal immigrants by the semantic labeling of their unlawful entry and presence in our country as merely “undocumented aliens”. I guess those same factions would label someone caught trafficking in drugs as an “undocumented pharmacist”.

His statement, while certainly witty, also shows a high respect for the rule of law. The key word in that statement is illegal. Our courts and other government institutions cannot help but undermine the rule of law at large if they continue to look the other way while the country's population swells with people whose very presence is a violation of federal law and whose continued presence requires constant violation of both state and federal law. If our courts follow this path, I can see whole new movements developing: perhaps one for equal rights for undocumented possessers of property whom the unenlightened call thieves, and another for undocumented land owners whom the bigoted call trespassers.

I learned this week that my alma mater, the University of Tulsa College of Law, will be hiring an immigration lawyer who will in all likelihood be tasked with helping illegal immigrants in the same way that the university has in the past assisted the poor, the elderly and Native Americans.

I can't help but wonder if they will soon be granting degrees to the hundreds of illegal aliens who have been working on campus doing everything from building their new buildings to mowing the lawns and feeding the student body. Following the "undocumented worker" logic they should. After all, the undocumented workers are people. Many of them are probably wonderful people. And, by whatever means, legal or not, they have been on campus. It is only the hard-heartedness and backward thinking of some at the university administration that prevents these deserving unfortunates from attending classes, taking tests and earning a degree. Surely, these worthy men and women, who in all likelihood served the University at a far lower wage than a greedy "documented" worker would accept, who have literally built the university with their bare hands, maintained it with their sweat and blood and fed its students with their loving care should be given the same privileges as the children of the wealthy who attend TU.

BUT, the University would quickly argue, we have admission standards and attendance requirements and academic qualifications that have to be met. Guess what TU, so does the United States of America. They are called laws. BUT, TU would continue, we are a private institution. People who attend our university have to pay their tuition to earn the right to be here. Again, guess what TU, so do legal American citizens. They are called taxes and in my time it was also called the draft. So, if TU wants to be truly consistent in their message, I expect to see them granting degrees to all "undocumented students" who have managed to arrive at and spend time on their campus by whatever means .... regardless of their legal and academic status.

P.S. Dear reader, don't hold your breath.

Tuesday, April 08, 2008

401 Texas Children Seized in Raid on Polygamist Compound

The following post set off an interesting debate on the official online discussion group of a national Christian civil rights organization. After a complaint by a subscriber to the board, the chief counsel of that organization asked the people involved to take it off line. I have reproduced the original post here along with my final post. I am inviting the rest of the people involved in the discussion to use the comments function of this blog entry to allow others to read this very important diaologue.


Although I am not a fan of polygamy in any sense, nor young marriages, I am shocked at the apparent overstepping of our liberties in this Sunday’s raid on the Mormon sect ranch and removal of 401 children from their mothers and placing them in State custody. I thought we were innocent until proven guilty, and then only the truly guilty would pay the penalty. Here, six month olds to sixteen were yanked from their mothers.

One girl (whom they have yet to find) alleged she was the wife of a Mormon sect leader one year under the age limit in Texas law.

And as a result, all 401 children are removed from their mother’s care, custody and control and are now in State custody. Even Communist China has not attempted such a feat.

And to top it off, my fellow Southern Baptists supplied church busses to the police to assist in removing the children and mothers.

If there is a wrongdoer to be had – punish him just short of cruel and unusual, throw the keys away…enforce the law as to the criminal. But…do not destroy the Constitutional rights of his family(s). Is this not prima facie evidence of a need to have a Constitutional Amendment to the United States Constitution protecting parental rights from overzealous judicial actions?

They came first for the Communists,

and I didn't speak up because I wasn't a Communist.

Then they came for the Jews,

and I didn't speak up because I wasn't a Jew.

Then they came for the trade unionists,

and I didn't speak up because I wasn't a trade unionist.

Then they came for the Catholics,

and I didn't speak up because I was a Protestant.

Then they came for me, and by that time no one was left to speak up.

- Pastor Martin Niemöller (1892–1984)


Friend, nobody disagrees that polygamy and adult child sex is illegal or that the Texas authorities should have stepped in. I totally agree with the first poster who said that the guilty parties should be punished right up to the edge of cruel and unusual.

But, what we are also saying is that the wholesale seizure of all of the children, including those not in immediate danger of forced marriage, presents strong due process questions. Who is to say that the next step will not be finding all of the children of a certain denomination endangered because that denomination practices faith healing or does not believe in psychiatry or counseling? Or that failure to place children in public schools is neglect?

We had a case here in Tulsa a few years back where every little girl in a particular pre-school program was forced to submit to a full pelvic exam at the school without the knowledge or permission of the parents. The object of course was to determine if the little girls had been molested. If I remember correctly, there were no accusations of molestation against any of the parents, the authorities just wanted to make sure it wasn't happening, apparently because of the "at risk" nature of the families and neighborhood.

Now I ask you which was worse, the possibility that one little girl was molested or the certainty that all of the little girls were molested by a back room pelvic exam at school? Sometimes the remedy does as much or more damage than the problem.

Let me reiterate this. There is a large portion of the judiciary and the government child welfare bureaucracy who see all Christians exactly the same as those polygamists. To them we are the same people, just different issues. It is a matter of perception not reality. But, perceptions can become reality when a court or a social worker go looking for a reason to put a kid into the system because too often they find what they are looking for whether it was there or not originally.

The founding fathers understood these dangers and gave us strong due process protections and we ignore large scale government actions such as this one at our peril.

Bill Kumpe