Civil rights cases might end up as the tool which forces DCF
to respect the rights of individuals. It is too early to tell,
but this may be the wave of the future.
On March 9, 2007, the popular TV show “20/20” ran a story of a woman wrongfully convicted of murdering her 10-year-old son. This average middle-class woman was sentenced to 65 years in prison.
Through good luck, after a few years, she got “Project Innocence” to convince a high-powered lawyer to take her case pro bono. The woman had no money, and her family could not afford over a million dollars in legal fees.
The lawyer got her a new trial, and the woman was heard and acquitted. As the lawyer pointed out, there were numerous errors in the original case. As I listened, I realized how similar errors applied to many DCF cases:
1. The police determined from the start that the woman was guilty. They certainly had every right to be suspicious, but they were so certain of her guilt that they simply did not investigate or look for any evidence that might have changed their theory. (The role that laziness plays in the American Justice System deserves to be examined more closely).
In DCF cases, the investigator frequently determines guilt right away, and will not pursue anything resembling a fair investigation to discover more facts. The subject’s explanation will not be heard; fact witnesses will not be consulted; and independent expert witnesses will be ignored. And without a lawyer to press DCF, the verdict is a foregone conclusion.
2. The prosecutor took the word of the police, pressed for no reasonable investigation, and pursued the woman with a vengeance. He certainly had grounds to be repulsed by this horrible crime, but he ignored his obligation to find the truth.
In DCF cases, the AAG (Assistant Attorney General) virtually never conducts or insists upon any meaningful investigation. In fact, DCF often writes its own court motions, disguised as “affidavits” or “social studies”, while the AAG just rubber-stamps it with the formality of a motion heading and a signature. The traditional legal ethical rules requiring a good-faith belief in your pleadings are ignored. Many AAG’s are indeed good and fair-minded people, and I am pleased to know them; but others relish the idea of persecuting defenseless people.
3. The woman was given a lawyer who was, to be charitable, in over his head. He did not object to improper evidence offered by the prosecutor; he did not conduct his own detailed investigation; he did not properly investigate the forensic evidence; and he talked the woman out of being a witness, which she had initially insisted on being.
In DCF cases, some court-appointed lawyers act as an alter-ego for DCF. A proper defense is not worth the trouble. Gathering and cross-checking DCF evidence and producing computer-sorted chronologies to discover the smoking gun; asking for discovery; filing pretrial motions to preclude prejudiced evidence; gathering fact and expert witnesses to challenge DCF; objecting to improper hearsay evidence; objecting to being bagged by DCF; insisting that the child’s lawyer actually visit the child and observe visits; all these and others may be deemed not worth the trouble.
As 20/20 reported, after the woman was acquitted in her second trial, she and her lawyer were mobbed by reporters. One question asked was: “Is it necessary to have a million-dollar defense to vindicate your own innocence?”
Sadly, the answer is often “Yes.” Fighting the enormous bureaucratic power of the State is not easy. The “good guys” usually win in the movies and on TV, but not always in real life.
Fortunately, DCF cases do not cost a million dollars. But if you delay too long in getting a knowledgeable lawyer, the costs tend to multiply dramatically.
Allowing civil rights lawsuits for DCF abuses would help to ensure that DCF follows the traditional rules of evidence, that lawyers actually defend their clients, and that persons facing the parental death sentence of TPR (termination of parental rights) be given a fighting chance by the State.
THE LONG-TERM VIEW
The rights of criminal defendants have developed slowly. Three major cases have helped greatly:
Miranda. You need to be told that you have the right to a lawyer.
Mapp. You are protected against unreasonable searches and seizures by the State.
Brady. The State must disclose exculpatory evidence to you.
What we seek is to implement the Miranda, Mapp, and Brady rights for Juvenile Court respondents.
We do have these to an extent. However:
. DCF often ignores the mini-Miranda warnings, and fails to tell you that you have the right to a lawyer before their questioning begins; even though that is now required by law. We are working to enhance the requirement.
. DCF often questions your kids without your consent or knowledge, when there is no good reason to do so. We are working to correct this situation. We are also telling people that you do not have to let DCF in your home without a lawyer present, although you should bring your kids to the door and let DCF see that they are safe.
. DCF is notorious for failing to disclose evidence that is favorable to you. Sadly, this is likely to continue for many years to come. We will be working on correcting this.
Of course, we recognize that implementing criminal rights for juvenile respondents must be tempered by the special needs of protecting innocent children. Miranda, Mapp, and Brady have to be qualified in DCF matters. However, DCF must, and eventually will, realize that it is not above the law, and that parents have a right to family integrity.
DCF, using sovereign immunity, and the reluctance of many Judges to interfere in child protection matters, has successfully skirted the civil rights laws. That day will end. Some day.
As Dr. Martin Luther King said, “I’ve been to the mountaintop….I’ve seen the promised land….I may not get there with you. But…we…will get to the promised land.” In this case, the promised land is the knowledge that DCF will one day be forced to live under the civil rights laws. Whether or not I live to see it, I know that it will come.
Socialism always believes in destroying family integrity. We cannot let that happen.