FLDS Verdict Not Seen As Gauge
Message from Judge: One Conviction, Sentence Won't Steer Results of Other Trials
By Brooke Adams
The Salt Lake Tribune [Utah]
August 6, 2006
The trial of a Colorado City polygamist who took his 16-year-old stepdaughter as a plural wife ended with a short stint in jail, probation and a lifetime listing as a sex offender.
But an Arizona judge said last week the outcome in Kelly Fischer's case has no bearing on how seven other men facing identical charges may fare in court.
Mohave County Superior Court Judge Steven F. Conn, who sentenced Fischer Wednesday, said there are differences in the remaining cases - including an allegation by one victim that she was forced to have sex - that will make each trial different.
"There may be other defendants in these cases that will go to trial and not even be found guilty," Conn said, as well as others who will "be found guilty and have different circumstances about their cases that are going to justify having them treated in different ways."
While Fischer's case may undoubtedly influence how the rest are handled, the judge said he was not "sending a message to counsel or to the other seven defendants that they can expect the same thing."
The eight, all members of a polygamous sect known as the Fundamentalist Church of Jesus Christ of Latter Day Saints, are the first significant group of men to be prosecuted for polygamy-related crimes since 1953.
The FLDS church's home base is in the adjoining towns of Hildale, Utah, and Colorado City, Ariz., though the faith also has known outposts in Canada, Nevada, Colorado, South Dakota and Texas.
Warren S. Jeffs, the faith's leader, is a fugitive wanted in Utah and Arizona for sex crimes related to his alleged role in arranging underage marriages.
The eight cases rest primarily on birth certificates that show the girls were minors when they bore their first children, though the challenge for prosecutors was proving the crime happened in Arizona.
In Arizona, it is a crime to engage in sexual conduct with anyone under the age of 18; polygamy, while banned, is not a crime in the state.
The Arizona Attorney General's Office first looked at prosecuting Fischer and some of the other men about three years ago, but passed the cases to Mohave County after failing to dig up cooperative witnesses or aggrieved victims.
Mohave County Attorney Matt Smith, aided by investigator Gary Engels, made headway after enlisting two ex-FLDS members to testify about practices in the community and of seeing Fischer with his stepdaughter in Colorado City. That tactic succeeded with the jury that convicted Fischer on July 7 after a two-day trial.
Getting past the "where did it happen?" question may be easier in the two cases in which the state has victims who are "somewhat willing," as Smith described them, to testify in court.
However, one of those women has complained the state coerced her participation, complicating what looked to be the strongest case.
Now, it is possible the cases may be resolved without going to trial.
Bruce Griffen, a defense attorney representing the men, said Thursday he is talking with Smith to see if there are any "new ideas" that might circumvent court trials.
"Within a couple days we will have a consensus on whether there is a new opportunity here or not," Griffen said.
As for Fischer's sentence, Griffen said he thought the judge was "thorough, thoughtful and, as a result of that, balanced. Things could have been far worse for us. On the other hand, I wish we would have avoided the registration requirement and avoided jail."
The next man scheduled for trial is Donald Robert Barlow. Barlow is the son of Dan Barlow, a former
Colorado City mayor whom Jeffs kicked out of the FLDS church in January 2004. He is said to be a high priest in the church and works in construction.
Barlow took the girl as a plural wife sometime in late 1999 or early 2000. She was 17 when she gave birth in September 2000.
Barlow, like Fischer, was indicted by a Mohave County grand jury last summer. The other six men, whose trials are scheduled from August through October, are: Randy Barlow; Dale Evans Barlow; Vergel Jessop; Rodney Holm; Terry Barlow; and David Bateman.
Fischer took his stepdaughter as a plural wife around six years ago. She gave birth to their child in August 2001.
The woman, now 21, did not participate in the trial; she wrote the judge a letter in which she described herself as happily married to Fischer and asking that he not be sent to jail.
Conn gave Fischer a relatively light jail sentence; he will spend 45 days in the Mohave County Jail, a term that must begin by Nov. 6.
But the judge countered that by ordering Fischer to register as a sex offender. Ken Driggs, an Atlanta public defender and FLDS historian, called the jail time a "cakewalk" and the sex offender status "a life sentence."
"That has such a long-range impact on you," Driggs said.
Griffen said that 90 percent of these cases are resolved without invoking the registration requirement because the sex is seen as consensual.
He expects Fischer will receive a level 1 ranking, the lowest of three possible rankings for sex offenders available in Arizona (see box). The status is determined by a review committee.
"Even though he may not get signs put in his driveway or his neighbors told about his circumstances, it is onerous because anyone who wants to describe him can say he is a registered sex offender," Griffen said.
Lifetime of sex-offender registration
* There are approximately 11,000 registered sex offenders in Arizona, including two in the Hildale/Colorado City area: Daniel Barlow Jr., 55, of Colorado City, and John Ray Jessop, 66, of Hildale - both convicted of molesting daughters.
* Like them, Fischer now will have to apply for a special driver license that lists his status. A photograph of Fischer and his address will be posted on the state's online registry along with a brief description of his offense. He will be required to notify the local sheriff or law enforcement agency within 72 hours if he changes addresses.
* Arizona's sex offender law does not restrict where someone can live, but the probation department can set limits.
* The sheriff makes the call on whether to notify a surrounding community, including neighbors, schools, civic groups and prospective employers, about the presence of a low-level offender.
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