Smith's gambit
 County attorney's decision to drop one charge ruins religious freedom defense for polygamists
 
By Jeff Pope
Kingman Daily Miner
 
KINGMAN ­ Mohave County Superior Court Judge James Chavez denied five of seven motions on Wednesday that were filed by an attorney representing a Colorado City man accused of sexual assault because county prosecutor Matt Smith dropped one of the charges against the man, making the motions unnecessary.

Randolph J. Barlow, 32, is charged with two counts of sexual assault. The charge of sexual conduct with a minor was dropped.

One of the dismissed motions asked Chavez to strike down the anti-polygamy clause of the Arizona Constitution (Article 20, sec. 2). The clause is one sentence: "Polygamous or plural marriages, or polygamous co-habitation, are forever prohibited within this state."

Barlow, along with seven other Colorado City men facing similar charges, are members of the Fundamentalist Church of Jesus Christ of Latter Day Saints. The sect, which splintered from the mainstream church, believes that polygamy is a protected and sacred aspect of their religion.

Attorney Bruce Griffen represents all eight men accused of charges related to allegations that the men illegally married girls younger than 18 and then engaged in sexual intercourse with them. The marriages are deemed illegal by the state since the men were already legally married to other women.

The dismissal of the sexual conduct with a minor charge means the case becomes solely about sexual assault, and Barlow's religious beliefs and other relationships would not be relevant.

"Randolph Barlow's caseŠ because of the state's strategic maneuver to dismiss sexual conduct with a minor charge has ruined the vast majority of what we were going to do today," Griffen said.

In all, eight motions were filed in Barlow's case ­ one by Smith to drop the charge ­ and the remaining by Griffen, who withdrew one that sought a change of venue. Griffen filed the motion fearing media attention of the case would make finding an impartial jury more difficult. Chavez ruled the motion could be filed again during jury selection if needed.

The one motion that was argued on Wednesday pertained to the need for expert testimony regarding the FLDS history, culture and practices.

Given the changes in Barlow's case, Griffen said the information might not be necessary unless his client elected to use his legal wife as a witness.

"If he brought that person to testify, that might cause confusion and create a need to bring in some understanding of the culture, background and practices of his religious beliefs," Griffen said.

Smith argued that the practices of the church might be necessary since the victim, who testified at a grand jury trial, has expressed reluctance to testify in open court.

"The victim in this case does not at this time really want to go forward and testify. She would prefer not to testify in this case, and based on my conversations with her, I think that on the issue of consent, some of the factors surrounding what happened might in fact be relevant," he said.

A second defendant, David Romaine Bateman, was scheduled to appear at the same time as Barlow. Griffen said he misread his schedule and told his client that his hearing was set for another day. Chavez rescheduled Bateman's hearing for Jan. 12.

Bateman is charged with sexual conduct with a minor and conspiracy to commit sexual conduct with a minor.

The cases for six other men facing similar charges are being heard in Judge Steven Conn's courtroom. Smith said he expects Griffen to file similar motions in those cases. Griffen said he would file motions but did not detail what they would include.

Chavez set a trial for Barlow for March 13.
 
KingmanDailyMiner.com
Originally published December 23, 2005
 
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