ST. GEORGE, Utah (AP) _ A Utah judge on Thursday rejected claims by polygamous-sect leader Warren Jeffs' attorneys that his rape-by-accomplice convictions should be thrown out because of a decision to remove a juror that the defense had actually supported at the time.
Jeffs' attorneys argued that the jury was tainted when a juror was dismissed after 13 hours of deliberation and that the court's decision to replace her violated of Utah law. But court reporter transcripts show the defense had advocated for replacing the juror and restarting deliberations after she disclosed that she had been raped.
Fifth District Judge James Shumate said any error — if there was one — was "invited" by Jeffs' defense team at his September trial in St. George, in southern Utah. Prosecutors had responded to the juror's disclosure by requesting a mistrial.
"How do we get around the fact that that juror is the one Mr. Jeffs wanted?" Shumate asked Jeffs attorney Richard Wright.
The defense plans to appeal, said another attorney for Jeffs, Wally Bugden.
Jeffs, 52, leader of the Fundamentalist Church of Jesus Christ of Latter Day Saints, was convicted last fall of two counts of rape by accomplice for coercing the 2001 religious and sexual union of a 14-year-old follower and her 19-year-old cousin.
The dismissed juror had not disclosed that she had been raped during jury selection interviews or on a juror questionnaire. The information was revealed after deliberations began when a fellow juror who had an argument with the woman raised the issue with the court.
Defense attorneys don't deny they failed to object to seating an alternate but said they didn't know about an obscure rule in Utah law that prohibits changing the makeup of a jury once deliberations begin.
Jury deliberations are supposed to start over completely when a juror is replaced, but Wright said the court did not do enough to ensure that would happen. Jurors should have been individually polled to ensure they could set aside the initial discussions, he said.
"Mr. Jeffs had the right to unity of verdict," Wright said. "The jury that convicted him can't have been a conglomeration of 'Juror H' and the new juror."
Wright said the missteps were grave errors that denied Jeffs his constitutional right to a fair trial, but Washington County Attorney Brock Belnap said the defense's own words from last fall are an argument against a new trial.
"When asked, 'Do you want this juror?' they said, 'That's exactly what we want,'" Belnap said.
Belnap said a person's constitutional rights can be waived when attorneys fail to act, or when their actions lead the court to believe everything is OK.
"They certainly can be waived by advocating for something that turns out to be an error," he said.
Jeffs' Utah- and Arizona-based church practices polygamy in arranged marriages, believing the unions will bring them glorification in heaven.
The sect's Yearning for Zion ranch near Eldorado, Texas, was raided April 3, and hundreds of children were removed as part of a child abuse investigation.
Jeffs, who was not in court Thursday, was sentenced in November to two consecutive prison terms of five years to life in the Utah case.
Considered a prophet by followers, Jeffs is currently in a Kingman, Ariz., jail awaiting a pair of trials related to other alleged underage marriages.
Copyright 2008 The Associated Press.