Defense Calls First Witnesses In Religious Discrimination Trial

By Jude Joffe-Block
February 11, 2016

Jude Joffe-Block
Lawyers for Colorado City, Ariz. and Hildale, Utah began to present their defense case on Wednesday in the federal civil rights trial against the towns.

PHOENIX — The mayor of Hildale, Utah testified on Wednesday that the Fundamentalist Church of Jesus Christ of Latter Day Saints does not determine who runs for local office or who is appointed to government positions in his town, rebutting earlier testimony heard in the federal trial against Hildale and Colorado City, Arizona.

The U.S. Department of Justice spent the first weeks of the trial trying to convince the jury the towns, which were originally settled by FLDS church members, acted as arms of the FLDS church and discriminated against non church members by denying them housing, utilities and police protection.

Hildale Mayor Philip Barlow was the first witness called by the defense, which began to present its case on Wednesday. Barlow is a member of the FLDS church.

While earlier witnesses called by the Justice Department said town government positions were essentially appointed by the church, Barlow refuted that point in his testimony.

When asked about who in Hildale has the ability to run for office, Barlow said “anybody does that lives in the community.”

Under questioning from Hildale lawyer Blake Hamilton, Barlow testified about a long list of Hildale officials who he said earned city jobs based on their qualifications — not because of their membership in the church or instructions by church leaders

When it was Justice Department lawyer Sean Keveney’s turn to cross-examine Barlow, however, he showed the jury minutes from the Hildale City Council executive session meeting when the council ultimately picked Barlow and one other candidate to fill two vacancies in the council.

In those minutes, one council member said he believed Barlow and another FLDS church member should be picked to fill the vacancies over another candidate who he acknowledged was more qualified, because that candidate worked for the land trust which was at odds with the church.

“If someone makes a choice to choose someone for religion over qualifications, would that not be discrimination?” Keveney asked Barlow.

“I guess you could interpret it that way,” Barlow ultimately responded.

A major theme in Barlow’s testimony was the United Effort Plan land trust, which had been under FLDS control until 2005, when a federal judge in Utah took it out of the church’s hands and put it into receivership. The trust controls most of the residential land in the community. Secular control of the land trust enabled non FLDS church members to move into the community.

The jury heard testimony earlier in the week from Jinjer Cooke, a non FLDS member, who received an occupancy agreement from the land trust to move into a home, but was later denied utilities by the cities. Cooke detailed how her family had to haul its own water and dispose of raw sewage for years. She and her husband successfully sued the cities two years ago for religious discrimination.

Barlow refuted earlier testimony that accused the cities of adopting a policy to deny water hook ups to new residences as a pretext to get church outsiders like the Cookes to leave the community.

Barlow testified there was concern about water shortages in the towns, known collectively as Short Creek, and that was a reason why the city council worried about the land trust’s plan to subdivide plots and allow more families to move in.

Barlow testified his concerns had to do with the “health, safety and welfare of the community,” rather than discrimination against non FLDS church members.

Hamilton showed city council meeting minutes in which Barlow was recorded telling the council that the Arizona Attorney General’s office had been giving classes on discrimination, and therefore the city’s ordinance “needs to be non-discriminative and professional.”

Throughout the trial, the defense has suggested the land trust was to blame for giving occupancy agreements to families to move into homes that did not already have utilities. Barlow testified the land trust under its new leadership had failed to add any infrastructure, despite charging new monthly occupancy fees to residents.

Though Barlow initially testified the city did not oppose the land trust’s plan to subdivide land plots, under cross-examination by Justice Department lawyer Sean Keveney, Barlow acknowledged the cities had waged a seven-year legal battle against the United Effort Plan Land Trust up to the Utah Supreme Court on the issue.

And after repeated questioning by Keveney, Barlow acknowledged his religious beliefs were the reason he opposed the sale of land that had once been in the church’s control.

There were tense moments during cross-examination. 

At one point Barlow told the Justice Department his understanding of the water shortage was informed by first-hand complaints from community members about a lack of water. But Keveney showed Barlow that statement contradicted his earlier deposition testimony.

Barlow suggested he may have misspoken in the deposition due to pressure and “having a gun to his head.”

Keveney asked pointedly if anyone was holding a gun to Barlow’s head in the deposition.

“Yeah,” Barlow answered. “In fact, that is what it feels like.”

Keveney then asked if it was true that Barlow felt pressure to not say something that would hurt the church.

“No,” Barlow responded.

Barlow’s testimony was a contrast to his colleague, Colorado City Mayor Joseph Allred, who invoked his Fifth Amendment rights more than 50 times when called to testify by the Justice Department on Tuesday.

Barlow invoked his Fifth Amendment right not to answer only on one point, when he was asked about his unpaid occupancy fees that he owed to the land trust. Other witnesses have testified that all FLDS members stopped paying their occupancy fees under direction from the church

Barlow eventually admitted in his cross-examination that he had not paid $8,350 in fees to the land trust. Keveney then pointed out that Barlow had blamed the land trust for failing to put in infrastructure, when Barlow himself had been withholding money to the trust.

The defense lawyers also showed the jury a video deposition of the former Hildale Justice Court Judge, Richard Carr, who testified that he had not observed any discriminatory police behavior during his time in the community. Carr testified that he is not an FLDS member and lives outside of the community.

Read More From This Series

Part 1: Tucson Lawyer Who Sued Arizona-Utah Towns For Discrimination Looks Ahead To DOJ Trial

Part 2: Federal Trial Will Examine Power Dynamics Of Polygamous Towns

Part 3: Sisters Raised In FLDS Church Question Justice Department Trial

Part 4: At Start Of Trial Against FLDS Towns, Both Sides Claim Religious Discrimination

Part 5: Officers' Letters Of Support For Fugitive FLDS Leader Presented In Court

Part 6: Letters To FLDS Leader In Prison Come Under Scrutiny

Part 7: Former FLDS Church Spokesman Testifies In Trial Against Towns

Part 8: Court Testimony Gives Look At Life Inside Polygamous Church Community

Part 9: Former Police Chief Testifies He Lied Under Oath Due To FLDS Church Pressure 

Part 10: Colorado City Mayor Invokes Fifth Amendment Right In Questioning By DOJ