Texas appeals court upholds conviction against FLDS man

The Salt Lake Tribune/August 26 2011

In a ruling that could influence the cases of a dozen polygamous men, including their leader Warren Jeffs, a Texas appeals court on Friday said 2008 searches of the sect’s headquarters were legally justified.

The ruling pertains directly to Michael Emack, 60, who pleaded no contest last year to sex assault charges in connection with his polygamous marriage to an underage girl.

Emack, who was sentenced to seven years in prison, is a member of the Fundamentalist Church of Jesus Christ of Latter-Day Saints. The sect is led by Jeffs, who was convicted earlier this month by a Texas jury of sexual assault of a child.

In his appeal, Emack claimed the search warrant used to gather the evidence against him was illegally obtained because it was based on misinformation — a hoax call from a Colorado woman pretending to be an abused 16-year-old plural wife.

That warrant led to a massive raid on the FLDS Yearning for Zion Ranch in April 2008. The evidence collected there led to charges against 12 FLDS men, including Jeffs.

Texas Attorney General Greg Abbott said Friday in a press release the ruling "secured a significant victory" in the state’s efforts to "extinguish widespread sexual abuse at the YFZ Ranch ... "

Prosecutor Eric Nichols said "The state believes that the Third Court of Appeals properly applied the law to the facts of the case and to the district court’s ruling."

Nichols said he anticipates the Emack ruling will apply to the appeals of all the other convicted polygamous sect men. Jeffs has yet to file an appeal on his conviction.

Emack argued in his appeal that his rights were violated by the initial search at the ranch and by interviews done by child welfare case workers assisting in the investigation. He said information gathered was then improperly used "as the basis for a second search warrant, which resulted in the seizure of the evidence used against him."

But the appeals court found that Emack had no legal grounds to challenge the child welfare interviews, and that he "failed to show that he had a reasonable expectation of privacy that was invaded by the interviews."

Emack also argued that facts were omitted from the probable cause affidavit for the second search warrant, including that the16-year-old girl who supposedly called for help was never found at the ranch, and that the man suspected of sexually assaulting the 16-year-old was located in Arizona before the first search warrant was executed at the ranch.

The court, however, said Emack gave no credible evidence to support that the omissions occurred "either deliberately or with reckless disregard for the truth."

On Emack’s claim that the ranch searches violated his rights to freedom of religion, the court said he did not show that the searches restricted or limited his right to freely exercise his faith or "pressured him to modify his religious conduct."

Defense attorney Robert Udashen, who represents Emack, plans to ask the Court of Criminal Appeals, Texas’ high court, to review Friday’s ruling.

"There are a number of points in the decision we disagree with," Udashen said.

He said one of those points is the court’s statement that Emack had no standing to object to the interviews by child protective services at the ranch.

"I disagree with that because he was being illegally detained at the ranch at the time these interviews were taking place," Udashen said. "Because of that illegal detention, in my opinion, he does have standing and has the right to complain about those interviews."

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