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A lack of witnesses may scuttle cases against eight residents of a polygamous community who are charged with sex offenses involving marriages to underage girls.
The first trial - of Kelly Fischer, 39 - is set to begin July 5 in Mohave County Superior Court in Kingman, Ariz., with one for Dale Evans Barlow, 48, to follow on July 11. But County Attorney Matt Smith said Friday the cases may have to be postponed or even dismissed.
The issue, Smith said, is "whether or not we have any witnesses available.
"So far, we haven't been able to serve the victims in either case," he told The Salt Lake Tribune. "We've not had any luck serving people. They are running, they are hiding, they are changing houses, they are not answering the door."
Smith said Mohave County sheriff's deputies were able to serve only one of four subpoenas on potential witnesses during a search of homes in Colorado City, Ariz., on May 25.
"A lot of shenanigans [are] going on," Smith said.
Colorado City, along with Hildale, Utah, is home to the Fundamentalist Church of Jesus Christ of Latter Day Saints, whose followers practice plural marriage as a tenet of faith and believe it necessary to earn heavenly exaltation. The FLDS and other fundamentalist Mormons have their roots in the mainstream Church of Jesus Christ of Latter-day Saints, which abandoned polygamy in 1890 and now excommunicates those who embrace it.
The other men charged are: Rodney H. Holm, 39; Donald R. Barlow, 49; Vergel Bryce Jessop, 46; Terry D. Barlow, 24; Randolph J. Barlow, 33; and David R. Bateman, 49.
The men were indicted by a Mohave County grand jury last July based on testimony provided by ex-FLDS member Richard Holm, Mohave County investigator Gary Engels and Candi Shapley, who at age 16 was "spiritually" married to defendant Randolph J. Barlow.
The men, who have entered not guilty pleas, face two charges: one count of sexual conduct with a minor and one count of conspiracy to commit sexual conduct with a minor.
In Arizona, polygamy is prohibited in the state constitution, but is not a crime; it is, however, a class 6 felony to engage in sexual activity with anyone under the age of 18 unless that person is a legal spouse. Such felonies carry a sentence of four months to two years in prison or probation.
The grand jury indicted FLDS leader Warren S. Jeffs on the same two charges for his role in performing at least one of the marriages. Jeffs also faces a rape-as-an-accomplice charge in Utah for conducting an underage marriage. He is a fugitive and has been on the FBI's "Ten Most Wanted" list since May 6.
Smith has said the cases are about stopping so-called "spiritual" marriages between underage girls and older men, not polygamy.
Fischer, who works in construction, was 34 when he allegedly took a 16-year-old girl as a plural wife between October 2000 and March 2001, a time frame constructed using birth certificates of the woman and her first child.
But beyond that paper trail, Arizona authorities have no victim and apparently little other evidence. Deputies who searched homes of Donald R. Barlow, Vergel B. Jessop, David R. Bateman and Dale E. Barlow in May seized such items as letters, telephone bills, photographs and genealogy charts. They also attempted to collect saliva samples from men, women and children to be used in proving paternity.
"The alternative is that if the court allows us to get birth and marriage records in without the victim present," Smith said. "We may try and do that on a case . . . and see if we can win a case like that or at least give them a run for their money without any witnesses."
Smith said he has "somewhat willing victims" in two cases - Shapley and Ruth Stubbs, who has previously testified about her spiritual marriage at age 16 to Rodney H. Holm - and expects those trials to proceed later this summer.
Stubbs' testimony came in 2003, when Utah successfully prosecuted Holm for unlawful sex with a minor and bigamy.
Court dates in the other cases have been set and then rescheduled numerous times as prosecutors gathered evidence and Bruce S. Griffen, the men's defense attorney, finished a lengthy murder trial.
Griffen states in court filings that the men were "summoned" to participate in plural marriages at the request of Jeffs and that the women exercised "free choice" in agreeing to the arrangements.
The women ranged in age from 15 to 17 at the time of their spiritual marriages, which took place between December 1998 and March 2002, the charges allege.
In court documents, Griffen has argued the state cannot criminally punish the men for religiously based marital decisions, particularly in instances where the girl and her parents gave consent.
"Regulation of a person's liberty - especially in matters of family, sexuality and procreation - based upon principles of morality no longer justifies criminal penalty, even under the most relaxed level of constitutional scrutiny," Griffen argues in filings.
Shapley, however, has testified that she went along with the sealing ceremony only because she "thought it was the right thing to do because of how I was raised." She also said she was forced, over her objections, to engage in sexual activity with Randolph Barlow.
Smith maintains that "religious belief or motivation" claims are not a defense to the charges and that religion is being used merely as a "shield" for a practice that is really about sexual gratification.