Category: Articles

August 12th, 2017 by Mark Henkel

Exploiting pre-2010 environment of fear, prosecutors intimidated Browns to unwittingly moot their own “legal standing” to fight for their freedom when they moved to another State. Indeed, polygamy (as an issue) was on its way to being heard by the Supreme Court of the United States (SCOTUS). Brown v. Buhman, the case of the “Sister Wives” reality-TV show, made it that far until January, 2017. The Tenth Circuit Court of Appeals in Denver Colorado had reversed the gains the case had won in District Court, by allowing a way for government to deny the right of Individual citizens to fight for freedom against any unconstitutional law. Whether or not one supports polygamy, when SCOTUS declined to hear this case because of the Tenth Circuit’s “decision,” the right of all US citizens to fight for freedom for any issue was effectively thwarted.


This is the second part of a series of posts pertaining to the tyranny of “Prosecutorial Discretion.” The same tyranny that protected Hillary Clinton from facing charges for proven crimes was also used to stop non-criminals’ fight for freedom in the “Sister Wives” polygamy case. If Part 1 of this series outraged you, this Part 2 (and beyond) will terrify you even more.


 

Preface: Before “Sister Wives”

Few fellow law-abiding people in America have ever experienced the level of fear of their own government as experienced by Unrelated Consenting Adult Polygamists – UCAPs. For that reason, I must first write this post in this series to explain the context of how the political environment – created by the one-sided propaganda from manufactured-news media and academics – caused the real, immense, and rational fear in all normal polygamists prior to 2010. This is necessary in order to fully comprehend why, as their new reality-TV show began in the Fall of 2010, the Brown family in the Brown v. Buhman (“Sister Wives”) polygamy case were so fearfully threatened that they genuinely felt they had to move their family to another State.

Here is some background, prior to 2010.

When the modern polygamy rights movement for unrelated consenting adults began in 1994, there were no TV shows positive about polygamy. The only time that the media reported about “polygamy” was when it involved cults or criminals doing other actual crimes. This one-sided bigotry amounted to what could be called “hate speech” because it always incited people to wrongly think, say, and accuse that polygamy supposedly “always” means horrific criminality. Just saying the word, “polygamy,” to most people back then would cause instant angry reactions, albeit baseless.

At the turn of this new century, I was the only one who dared to be putting my neck up consistently and pro-actively pursuing the national media to inform the public about normal non-criminal polygamy. The focus of my work was (and still is) to educate the media to differentiate real criminals (from Tom Green at the start of that decade to Warren Jeffs at the end of it) as completely different from – and not having anything do with – normal Unrelated Consenting Adult Polygamy (UCAP).

By 2006, because of that work, HBO began the very first fictional TV show that did not show all polygamists as criminals, “Big Love.” Consequently, my work to differentiate UCAP polygamy in the media expanded.

Alas, the April 3, 2008, raid of Warren Jeff’s FLDS cult re-energized a real relapse back to biased, negative media. Through and with the (non-Mormon, Christian) TruthBearer.org organization, (religiously neutral) Polygamy Day ®, and (media-distribution source) Pro-Polygamy.com, I worked feverishly to keep educating the media for more accurate differentiation, even as much of the media would often still choose to be manufactured-news outlets for anti-polygamy propaganda – inciting the masses against normal non-criminal polygamous families, and terrifying those families with fear of hostility & violence.

I long exposed the concept of what is now being called #FakeNews for over a decade, long before President Trump’s 2016 campaign called it out. I simply called it, “manufactured-news outlets.” Such media do not actually report the news, they just get bits of information with which to manufacture into a product they “sell.”

Many of such media even went out of their way to intentionally invent and incite hostility against polygamy – even using imaginary stories by supposed “news journalists.” For example, John Quiñones Lies in “Unreality” on ABC-TV with a horrifying made-up story using paid actors and actresses on a would-be “reality” TV show!

Even so, the national UCAP polygamy movement continued, and I persisted to educate in the media where possible.

By the end of the 2000s decade, I had also been getting “circus act” requests from certain media for either my family or families in our organization to be in television shows. What they wanted, though, were things that raised alarm signals for our families. For our safety, I turned them down. When they went looking elsewhere, networks like TLC had a horrid history of manufacturing shows “about polygamy” to purposely make polygamy look bad. In those media-requests for “polygamous families,” they wanted families to be as nothing more than money-making “circus acts” for the networks. My turning down their “requests” were proven to be wise decisions more than once.

In a Special Report on December 2, 2010, sent out through Pro-Polygamy.com to the media, examples of TLC’s anti-polygamy history were reported:

But prior to that new reality TV show in 2010, TLC’s programming in previous years had been bigotedly harmful against normal consenting adult polygamists.

On September 24, 2006, TLC aired a would-be “documentary” called, “My Husband’s 3 Wives.” While claiming to be “about polygamy,” the show centered on an egomaniacal man’s “polygamy by affair.” The national polygamy rights movement for consenting adults took note of TLC airing such a horrendously false “re-definition” of polygamy about which the movement so adamantly opposed. … Clearly, this 2006 show was never a legitimate example for learning “about polygamy.”

Two years later, on November 16, 2008, TLC aired another show, “Forbidden Love: Polygamy.” While claiming to be “about polygamy,” this would-be “documentary” was simply one attractive, young British lady’s anti-polygamous viewpoints about Mormon polygamists. The national polygamy rights movement for consenting adults again took note of TLC airing such a twisted anti-polygamy show. … Clearly, this 2008 show was never a legitimate example for learning “about polygamy,” either.

By the Fall of 2010, perpetrating a perpetuating pile-on, even university academics started climbing aboard the anti-polygamy propaganda “train.” So I also went to work refuting such falsehoods for the academic community as well (e.g., Scholar’s Anti-Polygamy Report for Court is Discredited) and began the videorecording of a new public speaking series on polygamy (of ten speeches per “Season”) presented live before non-polygamous audiences.

It is with and in that context of propaganda, manufactured-news media, and academics by the start of this decade (the 2010s) that many, many UCAP (unrelated consenting adult polygamous) families were rightly scared to be public or to trust networks to report about them. No matter how good such normal polygamous families were, the political environment was just too terrifyingly bias-incited by the false anti-polygamy propaganda.

 

The Brown Family on “Sister Wives”

One family, though, having been busy living their lives over the years (i.e, not active in the national UCAP movement), and thereby less aware of TLC’s past abuse toward polygamous families, was lured to trust TLC for a new “reality TV series.” To the surprise of the skeptical National Polygamy Rights Movement for Consenting Adults, that Fall 2010, the network premiered the very first polygamy-positive realty-TV show. It was called, “Sister Wives.” Admittedly, the national UCAP movement was very happily surprised to see that TLC’s ‘Sister Wives’ put the ‘L’ back in ‘The Learning Channel’.

This new show, “Sister Wives,” was, quite-simply, a reality show about Mormon polygamist Kody Brown, his one legally married wife, Meri, his two other non-licensed wives, Janelle and Christine, plus an incoming non-licensed wife joining the family named Robyn, and all of their dozen and a half children. This was the first time that such a non-fiction TV series aired – and it treated the family in a positive light! Kody and these wives were all unrelated consenting adults, no coercion, no underage issues, and no crime. Finally, polygamy was not being aired in line with the fearmongering, hate-inciting, and false propaganda!

What happened next is succinctly described on Page 5 of the April 11, 2016, reversal of Brown v. Buhman by the U.S. Court of Appeals for the Tenth Circuit.

Viewers of the [Sister Wives] show contacted the Lehi Police Department to “inquir[e] what the department intended to do” about the Browns. … The day after the first episode aired, the Department publicly announced it was investigating the Browns for violations of the Statute. In October 2010, the Lehi Police Department forwarded the results of its investigation to the UCAO. Following standard practice, the UCAO opened a case file on the Browns. Fearful they would be criminally prosecuted, the Browns moved to Nevada in January 2011. Mr. Buhman was quoted in a January 2011 media report as saying that despite the Browns’ move, his office would not rule out the possibility of prosecution.

The TV show later aired episodes showing the very real fear the family faced. Seeing police cars sitting outside their home “watching” them, the Browns rationally felt compelled to move out of Utah to Nevada “in the middle of the night” in the terrifying fear for their family of the intimidating government.

It is that very intimidation that would be later exploited as one part of the government’s two-part tool to moot the case. The fact that the understandably intimidated Brown family actually moved out of the State of Utah would be later exploited to assert that they had no more “legal standing” to bring Brown v. Buhman to court, so that the Utah prosecutors could thereby still use the anti-polygamy statute to threaten any other polygamous families.

By understanding the context of this fear and intimidation as it existed at the start of the 2010 decade, readers will be able to more comprehensively perceive the ramifications of the even larger tyranny of “prosecutorial discretion” used to moot the otherwise valid “legal standing” of the Brown family to fight for their freedom from tyranny.

I will elucidate the further details of these issues in the upcoming post in this series. Of course, if anyone is still wondering how this connects to Hillary Clinton and “emailgate” in 2016, then they will still need to read the Part 1 in this series, “Prosecutorial Discretion,” Emailgate, and Polygamy – Part 1

With Part 1 understood, and now with this Part 2 understood too, the outrage should likely begin boiling. Can you imagine the fear of government “watching” you to the point you feel compelled to move out of state? Can you see how tyrannical it is to then have that fear-caused “out-of-State move” later used against you in actually then denying you the “legal standing” to fight for your freedom to get such an anti-Constitutional tyranny overturned? If these matters outrage you (and they certainly should), then you will likely find yourself even more outraged by the profound threat to Individual Liberty that the overall tyranny of “prosecutorial discretion” was applied in the “Sister Wives” polygamy case known as Brown v. Buhman.

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January 18th, 2017 by Mark Henkel

On January 19, 2017, the very last full day of the Obama Presidency, the Supreme Court of the United States (SCOTUS) will be “in CONFERENCE” regarding the “Sister Wives” polygamy case, Brown v. Buhman. Unfortunately, the issue of unrelated consenting adult polygamy (UCAP), itself, will not be the focus of the Supreme Court Justices. Rather, the SCOTUS Justices will only be conferring over whether or not to even hear the case due to the technicality of “legal standing” issues. As SCOTUSblog.com reports, only the following are at issue:

  1. Whether the government can seek to moot a lawsuit challenging the constitutionality of a statute by adopting a new non-enforcement policy during the pendency of litigation;
  2. whether the government can later moot by voluntary cessation a subsequently filed lawsuit challenging the constitutionality of a statute under which the government publicly threatened a party with prosecution; and
  3. when a district court makes underlying findings of fact in the course of adjudicating a claim under the voluntary cessation doctrine, under what standard of review those findings should be examined on appeal.

Last year, on April 11, 2016, the United States Court of Appeals for the Tenth Circuit reversed the polygamy-positive decision of the lower court. A month later, on May 13, 2016, the same 10th Circuit Court refused the “en banc” request to re-hear the matter.

As I (Mark Henkel) had explained to FOX 10,

“It was not reversed on the merits of any arguments whatsoever.
They refused to hear any arguments at all.”

On September 12, 2016, attorneys for the Brown family petitioned SCOTUS for a Writ of Certiorari.

On December 27, 2016, Utah Attorney General’s Office (UAGO) filed their reply in opposition, asking SCOTUS to deny the petition.

On January 3, 2017, Lead Attorney for the Browns, Jonathan Turley, filed their rebuttal to UAGO’s brief in opposition. Noting that the UAGO was simply wrong (namely, that there is a “split” among the different US Circuits on the technicality issue), the rebuttal reply – more than once – indicated that the case should be remanded (sent back down) to the Tenth Circuit Court, stating that these issues

require at the very least a remand with instructions to apply the appropriate standard (Page 10)

and

require (at the very least) a remand with instructions to apply the appropriate rules of law (Page 13).

That same day, January 3, 2017, the eventual date was determined on which the Justices of SCOTUS are scheduled to be “IN CONFERENCE” to determine whether or not to even hear the case: January 19, 2017.

It is ironic that this will be held on the very last full day that US President Barack Obama is President, the day before the incoming President Donald Trump is inaugurated. Years ago, back on November 7, 2008, only three days after Barack Obama was first elected, an article was sent to the media by Pro-Polygamy.com, the national polygamy movement’s media-distribution site, titled, “Obama’s Historic Election Gives Hope to Polygamous Americans.” With the caveat of specific political views aside, the article concluded with the following:

Now that African Americans have successfully traveled that amazing road from oppression to president, then consenting-adult polygamous Americans can do it too.

The dream continues. God bless America indeed!

Indeed, that article took note of the famous, important “content of character” line from Martin Luther King, Jr.’s “I Have a Dream” speech. It continued that line with the following, directly quoting me:

National Polygamy Advocate, Mark Henkel, has long shared Martin Luther King’s dream. Content of character is really what matters indeed. Henkel has said, “I have a dream that one day a man will be judged, not based on the number of consenting-adult wives who willingly marry him, but, indeed, based only on the content of his character.” For polygamous Americans, the dream continues.

That polygamy-version “I Have Dream” quote has been repeatedly cited over the past decade. It has even become a polygamy meme.

Yet now, on what will be the very last day of the presidency of the very first elected African American president, Barack Obama, January 19, 2017, unrelated consenting adult polygamous Americans are left with the disappointing reality that SCOTUS will only be conferring about whether or not to even hear the polygamy case of Brown v. Buhman.

On New Years Day this year, January 1, 2017, Pro-Polygamy.com, distributed another article to the media, titled, “Will Supreme Court Hear ‘Sister Wives’ Polygamy case in 2017?” The article ended with my direct quote, which succinctly sums up the frustrating “worry” that unrelated consenting adult polygamists (UCAP) now have regarding what SCOTUS could do (or rather, not do) with this important case.

“Will Brown v. Buhman be our Hollingsworth?”

What will the Supreme Court do after January 19, 2017? We can only wait.

PDFs of the formal filings & decision

  1. Turley Rebuttal Reply Brief for Brown v BuhmanPDF (Jan. 03, 2017)
  2. Utah AG Office brief in oppositionPDF (Dec. 27, 2016)
  3. Brown v. Buhman petition for a Writ of CertiorariPDF (Sept. 12, 2016)
  4. Tenth Circuit Court Reverses Brown v. BuhmanPDF (Apr. 11, 2016)

   
For background on the case, please see:

  –   Will Supreme Court Hear ‘Sister Wives’ Polygamy case in 2017?
  –   Utah AG Office opposes “Sister Wives” petition of Supreme Court
  –   “Sister Wives” Family Petitions the Supreme Court
  –   Last Steps for Polygamy Heading to Supreme Court in 2017
  –   10th Circuit Refuses to Re-hear “Sister Wives” case
  –   * BREAKING NEWS * 10th Circuit Reverses “Sister Wives” case
  –   “Sister Wives” Appeal at 10th Circuit set for Jan. 2016
  –   Judge Awards Damages to Polygamists for Utah Violating Rights
  –   ‘De Facto’ Polygamy De-Criminalized in Utah by Federal Court

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December 29th, 2016 by Mark Henkel

Will the Supreme Court of the United States (SCOTUS) even hear the arguments of the “Sister Wives” polygamy case, Brown v. Buhman, in 2017? If the Utah Attorney General’s Office gets its way, the answer would be a resounding, “NO!”

On April 11, 2016, the Tenth Circuit U.S. Court of Appeals in Denver Colorado reversed the lower court’s “de facto” polygamy de-criminalization decisions of 2013 and 2014.

On May 13, 2016, the same Tenth Circuit court denied the “en banc” request to re-hear the case.

As I (Mark Henkel) had explained to FOX 10,

“It was not reversed on the merits of any arguments whatsoever.
They refused to hear any arguments at all.”

On August 10, 2016, Supreme Court Justice Sotomayor signed off on permitting the Brown family an additional month to file a petition for a Writ of Certiorari. On September 12, 2016, the Brown family’s attorneys filed their petition to be heard by the Supreme Court. Making the broader argument that the UAGO’s “voluntary cessation” as an after-the-fact “policy” to not go after the Brown family for polygamy (alone, with no other so-called “collateral crimes”) is a tyranny of “prosecutorial discretion,” the petition specifically posited that different Circuits have different standards for addressing the issue of such “voluntary cessation” doctrine.

In November, 2016, SCOTUS requested that the Utah Attorney General’s Office file their rationale for why they believe that SCOTUS should deny the petition. On December 27, 2016, the UAGO filed their formal brief in opposition. Therewith, the UAGO posited that there allegedly “is no split” between the differing U.S. Circuits around the country on the issue of voluntary cessation doctrine.

On Page 25 (i.e., PDF-pg35) of the brief, the Utah AG Office declared the following about the Petitioners (i.e., the Brown family) and “why” SCOTUS should “not” even hear the case.

For all their errors on the voluntary cessation question, Petitioners nail the most important score: They are, at best, “persons formerly threatened with prosecution under” the Statute. Id. at 21 (emphasis added). They face no current or continuing threat that Respondent will prosecute them in Utah, away from their new Nevada home. The case is moot for the reasons the Tenth Circuit correctly explained, based on legal rules that do not conflict with other circuits’ precedent. Certiorari should be denied.

The saddest irony of all this may also be found within the very words of the brief itself. On its Page 4 (i.e., PDF-pg14), the UAGO admitted the following about how evidently unnecessary the anti-polygamy law actually is.

Given that enforcement policy, just ten defendants were charged statewide under the Statute between 2001 and 2011. App. 10. Six of those ten “were also prosecuted for crimes other than bigamy, such as criminal non-support, unlawful sexual conduct with a minor, forcible sexual abuse, marriage license fraud, and insurance fraud.” Id. at 11. The Attorney General’s Office could not confirm whether charges besides bigamy were filed in the last four cases. But in three of those four, county prosecutors dismissed the bigamy charges, and in the fourth case the defendant was convicted of attempted bigamy in a county prosecution.

In the very next paragraph, the UAGO then made the wildly absurd assertion, citing the case of the always-despised Tom Green criminal and the long-discredited anti-polygamy propaganda given to the British Columbia Supreme Court’s Chief Justice Robert Bauman. Despite their previous admission disproving its next assertion, the UAGO’s brief unflinchingly still posited the following self-admittedly disproven propaganda.

“The practice of polygamy, in particular, often coincides with crimes targeting women and children.”

“Crimes not unusually attendant to the practice of polygamy include incest, sexual assault, statutory rape, and failure to pay child support.”

If anything, by the Utah AG Office’s own admission, the evidence disproves that wild absurdity. Indeed, it demonstrates why still criminalizing unrelated consenting adult polygamy (UCAP) is wholly irrational.

However, SCOTUS could very well choose to deny the Brown family’s petition for a Writ of Certiorari. If that happens, then, alas, such an irrational anti-polygamy law still will remain on the books. And worse, the actual merits of Brown v. Buhman will not have even been heard by the Supreme Court.

As the year 2016 comes to a close, both sides are waiting to see whether SCOTUS will deny or allow the Brown v. Buhman case to go forward in 2017.

PDFs of the two formal filings

  1. Utah AG Office brief in oppositionPDF (Dec. 27, 2016)
  2. Brown v. Buhman petition for a Writ of CertiorariPDF (Sept. 12, 2016)

   
For background on the case, please see:
  –   “Sister Wives” Family Petitions the Supreme Court
  –   Last Steps for Polygamy Heading to Supreme Court in 2017
  –   10th Circuit Refuses to Re-hear “Sister Wives” case
  –   * BREAKING NEWS * 10th Circuit Reverses “Sister Wives” case
  –   “Sister Wives” Appeal at 10th Circuit set for Jan. 2016
  –   Judge Awards Damages to Polygamists for Utah Violating Rights
  –   ‘De Facto’ Polygamy De-Criminalized in Utah by Federal Court

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September 14th, 2016 by Mark Henkel

On September 12, 2016, attorneys for the polygamous family of reality-TV series, “Sister Wives,” filed the formal Petition for a Writ of Certiorari (PDF), asking the Supreme Court of the United States (SCOTUS) to hear the Brown v. Buhman case, as announced by the family’s renowned attorney, Jonathan Turley.

As FOX 13 reported, “The petition, filed Monday, basically focuses on whether the Browns really faced a threat of prosecution from Utah County Attorney Jeff Buhman.”

In the Fall of 2010, the TLC network began airing a new reality-TV show, “Sister Wives.” As later re-explained by the newly filed Petition for a Writ of Certiorari,

“The day after the first episode aired, Utah state officials publicly denounced the Brown family as criminals and opened an investigation under the state’s anti-bigamy statute, which – unlike that of other states – prohibits not only the practice of polygamy, but also the mere practice of cohabitation by married persons. …Prosecutors later gave public interviews discussing the Brown family and their alleged crime of polygamy. …The Respondent, through his subordinate, publicly accused the Brown family of committing felonies every night on television and stated that ‘The Sister Wives’ television program would make their prosecution ‘easier.'”

As a formal “investigation” was initiated against them, the Browns fled Utah and moved to Nevada. Attorney Jonathan Turley filed the case, now identified as Brown v. Buhman, on July 13, 2011, asserting that Utah’s anti-bigamy law was unconstitutional. Prosecutors said the family’s emigration to another State would not stop their investigation to prosecute the Browns for polygamy in Utah, even as the Prosecutors filed a motion to get the case dismissed in early 2012.

After that motion was denied, the Prosecutors “conveniently” invented/declared a new “UCAO policy.” This new and deliberately non-binding policy proclaimed that the Utah County Attorney’s Office would no longer prosecute the Browns or other unrelated consenting adult polygamous families formed only on religious beliefs. With that new “UCAO policy,” the prosecutors filed yet another motion to dismiss the Brown v. Buhman case on May 31, 2012. As the Petition for a Writ of Certiorari explains to the Supreme Court,

“The district court again denied the motion, citing this Court’s instruction that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice,’ …and that any assertion to the contrary faces the ‘heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again.’ …In this case, the district court noted that the government had not abandoned its constitutional defense of the [anti-bigamy] statute, …and that its new prosecution policy was ‘at most, an exercise of prosecutorial discretion that could be reversed at any time.'”

Indeed, the permissiveness of allowing this tyranny of prosecutorial discretion is the central basis by which the Tenth Circuit Appeals Court reversed all parts of the lower District Court decision. Namely, while the lower court had de-criminalized “de facto” polygamy (12/13/2013) and awarded damages to the Brown family for Utah violating their rights (8/27/2014), all of that was wiped out by the Tenth Circuit Court’s reversal.

As I (Mark Henkel) had explained to FOX 10,

“It was not reversed on the merits of any arguments whatsoever.
They refused to hear any arguments at all.”

Jonathan Turley and his team of attorneys clearly had to focus and organize the Brown’s Petition for a Writ of Certiorari around the central issue of the Tenth Circuit’s reversal per this tyranny of prosecutorial discretion.

Opening its reasons for the petition to (hopefully) be granted by SCOTUS, the Petition for a Writ of Certiorari explains,

The courts of appeals are squarely divided over the extent to which the voluntary cessation doctrine permits the government to moot a constitutional challenge by changing its enforcement policy during the pendency of litigation, as well as whether a district court’s factual findings under the doctrine should be reviewed de novo or for clear error or abuse of discretion.

Essentially, the petition observes that among the separate federal Circuits (of Appeals courts), some have more permissive tests and standards of review regarding the “voluntary cessation doctrine” than others. This disparity among the Circuits creates a non-uniformity of the treatment of law around the country, whereas uniformity of “equal treatment under the law” is Constitutionally required.

Hence, in a different Circuit Court of Appeals (i.e., not the Tenth Circuit), in one that uses a less permissive test and standard of review regarding the “voluntary cessation doctrine,” the after-the-fact “UCAO policy” would not have been allowed to be applied to so-artificially moot the standing of the Brown family to thereby permissively reverse the lower court decisions of the Brown v. Buhman case.

Requesting that the Supreme Court use the Brown v. Buhman case as the vehicle to decide and establish that uniformity (once and for all) defines the technical premise of the Petition for a Writ of Certiorari. That is to say, the petition was not so much about polygamy itself, but about addressing the wrongness of the case being reversed due to the tyranny of such “convenient” exploitation of prosecutorial discretion, being identified as “voluntary cessation doctrine.”

So that, then, raises the question: will the actual merits of the case even be heard by the Supreme Court?

If SCOTUS decides that the conclusions made in the Brown family’s petition are valid, that type of decision will reverse the Tenth Circuit’s reversal, bringing the status of the case back to the prior positive results from the District Court decisions. Will SCOTUS then let that status stand as it was, or will they actually have a hearing of the actual merits of the case?

If SCOTUS rather-lazily refuses to even consider the case, the result will not only deny Brown v. Buhman from even achieving anything at all in the fight for rights and freedom for unrelated consenting adult polygamy, but it will also maintain the unconstitutional non-uniformity among the differing federal Circuit Appeals Courts too.

If SCOTUS actually affirms and establishes the Tenth Circuit’s rather permissive test and standard of review regarding the “voluntary cessation doctrine” to become the nationwide uniform application, the Brown v. Buhman case will effectively be finished, fully depriving unrelated consenting adult polygamists of the valid right to fight against provably unconstitutional law.

Whether or not one supports polygamy, anything but the first of those three possibilities will, undoubtedly, present a profound threat to the liberty of all citizens of the United States. Ergo, this “polygamy case” before the Court now has far broader impact than when it began.

As of this writing, what happens next is up to the Supreme Court of the United States.

   
For background on the case, please see:
  –   Last Steps for Polygamy Heading to Supreme Court in 2017
  –   10th Circuit Refuses to Re-hear “Sister Wives” case
  –   * BREAKING NEWS * 10th Circuit Reverses “Sister Wives” case
  –   “Sister Wives” Appeal at 10th Circuit set for Jan. 2016
  –   Judge Awards Damages to Polygamists for Utah Violating Rights
  –   ‘De Facto’ Polygamy De-Criminalized in Utah by Federal Court

sister-wives-petition-supreme-court

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August 19th, 2016 by Mark Henkel

Happy Polygamy Day ® !

Today is August 19th in the numeric 16th year of the new millenium, the year 2016.

Ever since the first celebration in the year 2001, pro-polygamists have been celebrating on every August 19th of each year. That means that today is Polygamy Day ® 16!

The polygamy movement’s media-distribution web-site, Pro-Polygamy.com, announced the news earlier today:
“Pro-Polygamists Celebrate 16th Annual ‘Polygamy Day'”
August 19 2016 is Polygamy Day 16

Over the past year, two specific situations arose, giving unrelated consenting adult polygamy supporters (UCAPs) many reasons to celebrate as we ll as cause for concern.

The PolygamyDay.com web-site details the important events that have happened over the previous year, as it reports how August 19, 2016, is Polygamy Day ® 16
Polygamy Day is August 19
Rather than having me repeat them again here, please do be sure to read those links from both Pro-Polygamy.com and PolygamyDay.com.

No matter where you are or who you are, if you support freedom for UCAP (unrelated consenting adult polygamy), please do find some time today to contemplate, calibrate, and celebrate.

Happy Polygamy Day ® 16!

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July 7th, 2016 by Mark Henkel

Former President Bill Clinton had a secret meeting with Attorney General Loretta Lynch. Hillary Clinton was given a careful “investigative interview” in the “emailgate” scandal. Lynch’s subordinate FBI Director James Comey recommended no charges for the crimes that he otherwise said he did find Hillary Clinton to have been “extremely careless” in committing. And then Attorney General Loretta Lynch (Comey’s boss) used her “Prosecutorial Discretion” to close the case, letting Hillary Clinton off all charges. From June 27 to July 6, 2016, all of that happened in less than ten days.


This is the first part of a series of posts pertaining to the tyranny of “Prosecutorial Discretion.” This tyranny protects Hillary Clinton from facing charges for proven crimes while it also prevents non-criminals’ fight for freedom in the “Sister Wives” polygamy case. If the former outrages you, the latter will terrify you even more.


 

At this initial point, you might be asking, how does the “Sister Wives” polygamy case (Brown v. Buhman) have anything to do with what has happened in the “emailgate” scandal case against Secretary of State, Democrat Presidential Candidate, and Bill Clinton’s wife, Hillary Clinton? You might even be asking, why should you care?

The singular answer to both questions is simple. Whether or not you support polygamy or support Clinton, the current states of both cases reflect and reveal the latest form of a repeated tyranny. This tyranny affects all of us – including you. Your, my, indeed our very liberty, is utterly threatened by this tyranny. It is the tyranny of “prosecutorial discretion.”

To provide an initial understanding of how this tyranny works, this exposition will detail the final events of Hillary Clinton’s “emailgate” scandal “investigation.” Therewith, this will expose how “prosecutorial discretion” protected her from facing charges and jailtime.

On Monday, June 27, 2016, Hillary Clinton’s husband and former President Bill Clinton had a secret meeting in an Arizona airport with US Attorney General Loretta Lynch. Appointed by President Obama, Lynch is the boss overseeing the investigation against Hillary Clinton’s violations of laws with her private email server.

Naturally, when this news broke two days later on June 29, 2016, the overt conflict of interest of her meeting with Bill Clinton ignited a rational firestorm. Yet, instead of recusing herself from the case, Lynch cleverly said that she would defer to and accept the FBI’s recommendation in the case. (Remember, she is their boss!)

On Saturday, July 2, 2016, the FBI formally interviewed Hillary Clinton for the first time in this would-be “investigation.” As the NY Times then explained what most of the public believed at that point, “It could take weeks or longer to reach a decision.”

It only took 3 days.

On July 5, 2016, Loretta Lynch’s underling, FBI Director James Comey, held a press conference to publicly “conclude” that “no charges are appropriate,” despite his simultaneously declaring that Hillary Clinton was “extremely careless” with national and classified secrecy with her private email servers. Director Comey rationalized the following.

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.

In the above quote, I added the emphasis to the words, on these facts, as it might be the most relevant part of the statement. I even tweeted this point.

Those three cleverly parsed words “subtly indicate” what they don’t directly say: the actual facts that were otherwise necessary to be obtained were not made available. When Clinton had her private email servers “wiped,” such evidence was removed before it could be seen.

But worse, Director Comey’s assessment effectively re-writes the law that was being broken. The law is clear, as seen in 18 USC 793(f).

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

Nothing in that specific part of the law suggests that “intent” has anything to do with determining guilt of breaking it. I made this point in another tweet.

However, the law (18 USC 793(f).) does use the term, “gross negligence.” Plus, Director Comey also did strongly call out Hillary Clinton for being “extremely careless” with these classified issues. For that reason, REASON magazine pointed out, Hillary Clinton’s Extreme Carelessness Sure Seems Like a Federal Felony.

RealClearPolitics.com reported what former NYC mayor Rudy Giuliani said when speaking with NBC’s Brian Williams:

Giuliani makes that case that when it comes to laws surrounding handling classified data, intent is irrelevant. “The definition of gross negligence under the law is extreme carelessness,” he said. The FBI “clearly found a direct violation of 18 United States code section 793 which does not require intent — it requires only gross negligence in the handling of anything relating to the national defense.”

“It’s the first definition that comes up in the law dictionary,” he said. “It’s the definition the judges give to juries when they charge injuries on gross negligence. Negligence equals carelessness. Gross negligence equals extreme carelessness. So that is a clear absolutely unassailable violation of 18 United States Code, section 793, which is not a minor statute, it carries ten years in prison.”

One day later, July 6, 2016, Attorney General Loretta Lynch officially “accepted the FBI’s recommendation.” That is, Loretta Lynch did not disagree with her underling Director Comey, and she formally closed the investigation.

But the issue is clearly not over. A Congressional probe is being called to further investigate FBI Director Comey and the issue. After all, Comey actually listed out what is a crime and then decided that no prosecutorial discretion would prosecute.

REASON.TV put together this excellent mashup of what Hillary Clinton asserted and what Director Comey listed out as lies and crimes.

Senator Rand Paul, who was the only Senator who, in 2013, had voted against Approving James Comey as FBI Director, put together a profoundly accurate and articulate response to the whole matter in the following video.

Herein lies the greatest tyranny of this “prosecutorial discretion.” Namely, Hillary Clinton is shown to have committed crime, but the chief prosecutor, Attorney General Loretta Lynch (and who is actually FBI Director James Comey’s boss), is using her “prosecutorial discretion” to choose not to prosecute Hillary Clinton. At the same time, to anyone else who might ever commit the same crime, the following warning was declared in the formal Statement by FBI Director James B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a Personal E-Mail System:

To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences.

Therewith do we see the exposition of how and why “prosecutorial discretion” is undeniably-outright tyranny. Prosecution of the law will not be applied to Hillary Clinton, but it will apply to anyone else who does the very same thing. Hence, “prosecutorial discretion” is the tool of selective prosecution – unconstitutional tyranny.

This is but one example of this specific form of tyranny, though. Not only is “prosecutorial discretion” the tool used by government prosecutors to protect government political elites like Hillary Clinton, but it is also used to prevent everyday US non-criminal citizens from being allowed to legally fight for our rights when truly-unconstitutional laws infringe the rights of individuals.

I will elucidate that overarching point in the upcoming post in this series. Are you outraged at the tyranny of “prosecutorial discretion” allowing Hillary Clinton to get away with crimes that no one else would equally be so treated under the law? If so, then you should find yourself even more outraged by the profound threat to Individual Liberty that this same tyranny of “prosecutorial discretion” has been applied in the “Sister Wives” polygamy case known as Brown v. Buhman.

Prosecutorial Discretion Protects Hillary Clinton from facing jail - 700x400-c

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May 15th, 2016 by Mark Henkel

A month ago, on Monday, April 11, 2016, a 3-judge panel of the 10th U.S. Circuit Court of Appeals had rendered the Brown v. Buhman decision as “moot.” Without even considering the merits of the case, but instead being based on the Utah prosecutors later proclaiming that they would not really go after the Brown family for polygamy, the three judges decided that the case was “moot” because the Browns supposedly had no more legal “standing” to even bring this to court. Immediately afterward, the Brown family requested a re-hearing by all of the judges in the entire Tenth Circuit Court of Appeals.

On Friday, May 13, 2016, the Tenth Circuit turned down that “en banc” request.

Here is a copy of the amended ruling:
2016-05-13 Brown v Buhman 10th Circuit ruling on en banc motion

In opening that “order,” the decision additionally noted the following.

As no member of the original panel or the en banc court requested that a poll be called, the petition for en banc review is denied.
   

This latest text of the May 13 decision was mostly the same as that of the earlier April 11 decision (see: 2016-04-11 Tenth Circuit reverses Brown v Buhman. However, at end of the last word of the last paragraph of the last section before the Conclusion, the Court added one new additional footnote, Footnote #27.

The last paragraph that added that Footnote #27 declared the following.

The proper disposition of this appeal, therefore, is to remand to the district court with instructions to vacate its judgment in favor of the Browns and dismiss this suit without prejudice. 27
   

The text for that one additional Footnote #27 explained the following.

27 As explained above, the Browns’ move to Nevada eventually also rendered this case moot. Whether or not this basis for mootness took effect before commencement of this appeal, Mr. Buhman’s implementation of the UCAO Policy was independently sufficient to extinguish any live case or controversy as of May 2012, a year and a half before the district court granted summary judgment to the Browns and over two years before entry of final judgment. Because this case became moot “prior to final adjudication,” Rio Grande Silvery Minnow, 601 F.3d at 1128 n.19, vacatur and dismissal without prejudice are appropriate.
   

With that “explained” in the additional Footnote #27, the decision concluded with the following.

Assuming the Browns had standing to file suit in July 2011, this case became moot when Mr. Buhman announced the UCAO Policy in May 2012. That policy eliminated any credible threat that the Browns will be prosecuted. We therefore remand to the district court with instructions to vacate its judgment and dismiss this suit without prejudice.
   

As FOX 13 reported, Renowned Constitutional law professor and the attorney for the Brown family, Jonathan Turley, wrote the following email response.

“At issue is the most basic right in our legal system: the right to be heard in a federal court. The lower court found that the Browns left the state after months of abusive treatment by the government, which denied them basic protections under our Constitution. All families should have access to the courts when targeted by the government in this way. The panel decision leaves a chilling message for citizens in dealing with their government. The 10th Circuit panel ruled that a prosecutor can publicly declare a family to be felons, keep them under criminal investigation, and denounce them for their religious beliefs without fear of being held accountable in a court of law. The Tenth Circuit did not deny the violation of free speech and free exercise by Mr. Buhman – violations found by the trial court. Rather it barred the Brown family from challenging his actions in federal court. This country rests on the rule of law, which is reduced to a mere pretense if citizens are barred from the courthouse. The Browns respectfully disagree with the panel and will seek relief before the United States Supreme Court.”
   

So with that, the “Sister Wives” polygamy case now moves up to the final court of last resort, SCOTUS (Supreme Court of the United States).

   
For background on the case, please see:
  –   * BREAKING NEWS * 10th Circuit Reverses “Sister Wives” case
  –   “Sister Wives” Appeal at 10th Circuit set for Jan. 2016
  –   Judge Awards Damages to Polygamists for Utah Violating Rights
  –   ‘De Facto’ Polygamy De-Criminalized in Utah by Federal Court

10th Circuit Court of Appeals Refuses to Re-Hear Sister Wives case - 700x400

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May 5th, 2016 by Mark Henkel

On Wednesday, April 20, 2016, I was interviewed as a guest with locally-renouned host, Gary Sadlemyer, on The Good Morning Show, on KFAB in Omaha, Nebraska, that aired at 8:20am local time (9:20am ET).

Shortly afterward, KFAB’s website promoted the interview by writing the following:

Mark Henkel with National Polygamy Advocate says that a recent ruling that reinstated Utah’s laws against polygamy are unconstitutional . He explains how the constitution does not give the government the power to control marriage. Learn more at
www.NationalPolygamyAdvocate.com

The purpose of this interview was for the breaking news cycle about polygamy from Monday, April 11, 2016: the 10th Circuit Reversed “Sister Wives” case as “moot.” Rather than even hear the merits of the case, the 10th Circuit Court determined that, since the Prosecutor had promised not to specifically prosecute the Brown Family, the Brown family’s legal “standing” to file suit was rendered moot.

Providing a backup and an archive for history, the interview itself was posted to youtube, titled,
Mark Henkel on Good Morning Show – 4-20-2016 – Polygamy

The link for that youtube video was also tweeted on twitter.

This was another excellent interview that has became another new tool for UCAP (unrelated consenting adult polygamy) supporters to share when discussing the issues with others.

Mark Henkel and Gary Sadlemyer

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