The Crime Report in May told the story of a nine-month old infant murdered in the midst of a bitter California custody battle. Last month, the presiding judge in the case lost his battle for re-election.
Could the death of little Wyatt Garcia have been prevented? Supporters of
the boy’s mother, Katie Tagle, have charged that a San Bernardino, CA family court judge who refused to accept her plea for custody was indirectly responsible for the chain of events that ended when her estranged husband shot the boy and then turned the gun on himself last year.(See "Failure to Protect", The Crime Report, May 26, 2010)
California Superior Court Judge Robert Lemkau vehemently defended his actions. But
last month, local voters came to their own conclusions about his judgment on the bench.
He lost his position after an election swept him out of office with just 35 percent of the vote, in favor of his opponent,
a local deputy assistant district attorney named James Hosking.
Lemkau had refused to sign a protective order against the boy’s father, 25-year-old Stephen Garcia, even though his ex-girlfriend supplied evidence of Garcia’s threats to harm the boy and herself, including e-mails, text messages and voice messages. Although no extenuating circumstances were raised in court transcripts of the case, Lemkau simply accused Tagle of lying, and ordered that she turn Wyatt over to his father—with fatal results. “I was treated like a criminal, like a complaining woman,” Tagle told The Crime Report.
Following the tragedy, the judge expressed some remorse for Wyatt’s death, but refused to acknowledge that he had made a wrong decision instead saying on his re-election Web site, “ I ruled the way I did because there wasn't enough substantiated evidence to support the request.”
While it’s unclear whether the election results had any specific relationship to the Wyatt Garcia case, Lemkau’s defeat underscores one of the most difficult issues in U.S. jurisprudence: the difficulty of calling judges to account for their actions While in theory, elected judges are held accountable to voters, narrowly contested elections are rare in most jurisdictions around the U.S. Few local voters pay attention to such races, and even fewer feel competent to decide on a candidate’s judicial qualifications. .
At the same time, as an investigation by The Crime Report shows, censuring or recusing a judge through official channels is extremely rare, if not impossible.
Both Sides Need Judicial Safeguards
It’s one reason court experts argue that having powerful safeguards in place for judicial protection is extremely important. Such safeguards are needed not just for the injured parties in a case― but for the judges themselves.
Disgruntled litigants can file complaints over and over again tying up the judge in an endless process. Furthermore, judges can be unfairly targeted in acrimonious cases when so much is at stake.
was the case, for example, in the of Nevada Family Court Judge Chuck Weller by a man he decided against in a divorce case. The suspect, Darren Mack, shot Weller because he was unhappy with the judge’s rulings, and he later stabbed his wife, Charla Mack, to death.
“In terms of checks and balances there is (only) the appeal process and the right to ask for a recusal,” said Bill Raftery, Knowledge and Information Services Office Research and Communications Specialist at , a national not-for profit that seeks to improve the administration of justice.
Litigants have few options. They can try to reverse a decision on appeal, have the judge removed from an ongoing trial with a disqualification motion, move to impeach a judge through the legislative body or file an ethics complaint. However since 1991, only one state judge has been removed through the impeachment process, the found in 2006. In that year, the latest in which numbers are available, 12 judges were removed from office as a result of state judicial proceedings.
But while appeals are public record, in many states ethics complaints and recusals for individual judges rates are not available, making it hard for litigants to track a judge’s record.
And in the murky and chaotic world of family court, where parents can remain locked for years in volatile custody battles over their children, a judge can sometimes mean the difference between life and death.
If Lemkau had not been up for election in June, it is quite possible he could have remained a sitting judge in family court―leaving the family of baby Wyatt without any recourse―and continuingto render decisions on other custody cases.
And though it may seem that this case is highly unusual, in the U.S. family court system, sadly, it is not.
Kids Are The Victims
by The Crime Report found that children are the victims in the contested custody cases that fill the family court dockets. Not only can they be killed, more often than not the children are left in the custody of an abuser who can continue to sexually or physically assault them.
looked at the systemic issues behind the chaotic and overburdened courtrooms that manage these emotional cases. The contributing factors include: a dearth of judges caused by budget constraints; parents that represent themselves, thus backlogging the system with procedural mistakes; the explosion of custody disputes in cases with adoptive gay parents; and the high percentage of children born to single parents who are requesting child support. Together these have narrowed the average time a judge spends on a family court case to 3.5 minutes, according to a by the
The National Council of Juvenile and Family Court Judges with the Office on Violence Against Women started the National Judicial Institute on Domestic Violence over a decade ago to address these problems and train judges to recognize and handle domestic violence. Together these non-profit organizations provided recommendations to judges who hear family court cases on how to recognize high-risk abuse situations.
Advocates contend that many family court judges are not properly trained or ignore abuse guidelines. And such judges tend to view protective mothers as not trustworthy and overwrought, making biased decisions on which they have no true recourse, according to Darby Mangen , chapter president of the San Bernardino National Organization of Women (NOW). “No matter how exiguous the case there is no help for the victim,” added Mangen, who was active in the campaign to remove Judge Lemkau.
Furthermore, since so much of the decision making in custody cases relies on the judge’s discretion, litigants are fearful of bringing any motions against the judge.
“Family judges have so much power over cases that you can not afford to challenge the judge,” says Tony Tanke, a former senior judicial staff attorney for the Chief Justice of the California Supreme Court, who advises on family court cases pro-bono.
Moreover, the often tight relationships between local bar associations and judges make it difficult to find an attorney who wants to take on a complaint against a powerful judge, according to Tanke. Indeed, in the Lemkau v. Hoskings election, Lemkau received endorsements from the local Family Law Bar association and other area attorneys, who supported his decision in baby Wyatt’s case
The result: parties who feel victimized by a judge’s biased decision are left with nowhere to turn.
Appeals Get Nowhere
Things are further complicated by the appeals process,. A main point of contention in contested custody cases is the judge’s discretion on deciding whether abuse exists and whether it will be allowed into the legal record. If a mother makes an accusation of abuse in a lower court, but the judge dismisses it under their discretion, as happened in the Garcia case, the judgment will not be overturned at the appellate level. Technically, the judges are not doing anything wrong, they are just making a decision based on their evidence. But that, advocates say, strikes at the heart of the issue.
In fact, almost always the higher court will defer to lower courts on the question of whether or not an abuse claim is unfounded, leaving an enormous amount of power in the hands of the family court judge.
These claims are buttressed by a 2008 report, "Fair Courts: Setting Recusal Standards," issued by Brennan Center for Justice at New York University School of Law, a national think tank focusing on justice matters. The authors found, “On appeal, odds of success are even worse. Nearly every appellate court, state and federal, will overturn a lower court’s disqualification or recusal decision only for an “abuse of discretion.”
Sometimes advocates try to apply some unsubtle pressure, such as attending family court hearings wearing NOW stickers, said Magen. But there have been more formal attempts to establish a watchdog presence in the courtoom.
A national court watch project has established pilot programs in five states that involves sending a team of students and volunteers to sit in on family court cases and report any abuses. So far this year, observers sat in on 560 family court
rooms, according to Renee Beeker, Executive Director of Although they are still evaluating the watchers’ results, volunteers have found that courtrooms take note of the outside set of eyes on them.
“The court can change their behavior just because they know people are there,” reports Beeker. “And that is a win for us.”
Cara Tabachnick is News Editor of The Crime Report
The U.S. legal system is slowly coming to realize that many underage sex workers are victims of exploitation, not juvenile delinquents.
The King of Prostitution wears a black polyester robe. His kingdom is a windowless, white-painted courtroom in midtown Manhattan, and his subjects are the men, women and children of the night.
On a hot Tuesday afternoon in June, one of those children steps up to the defendant’s table and faces Judge Richard Weinberg. The muscular young woman is just 16, with full, glossy lips, blunt-cut bangs and long black hair. She was picked up on a charge of loitering for prostitution.
Her Legal Aid attorney, who will represent dozens like her before the court today, asks the judge if she can plead to disorderly conduct, and thus receive counseling instead of jail time. The judge agrees, then asks the young woman a series of questions to make sure she understands the consequences of her plea.
“Have you discussed this case with your attorney?” asks Weinberg.
“Yes,” says the girl in a baritone voice that betrays that the gender of her birth is male.
The judge, however, does not blink. He’s seen it all before. In fact, although the rap sheet in front of him and the male voice make it clear the “she” is technically a “he,” Weinberg continues to refer to the defendant using female pronouns out of, he explains later, an effort to inject “a little humanity” into the court proceedings.
Judge Weinberg estimates that he sees 80 percent of the prostitution cases in Manhattan ―–which is why he jokes he’s the “King”―at the Midtown Community Court (MCC), which was established by the Center for Court Innovation in 1993. MCC is one of a growing number of law enforcement initiatives to address underage prostitution in a less punitive, more constructive manner.
Instead of incarcerating kids in the sex trade, Weinberg tends to order counseling. And instead of just handing the child a list of names for providers that’s likely to end up in the trash, MCC offers what Weinberg calls “a full menu” of social services upstairs, including individual and group counseling, job training and drug treatment.
Many criminal justice professionals and jurists like Weinberg are slowly learning how to help these kids. But in an era of budget cuts, getting police and legislators to see these teens as the victims of exploitation they often are remains an uphill battle.
It begins with a change in the words used to define them.
In the age of “Taxi Driver,” they were called teen hookers or child prostitutes: girls and boys who got paid for sex. But in the past decade, spurred by increased awareness of their manipulation by adult pimps, experts and advocates have begun casting about for a label that implies some level of victimhood.
The new terms don’t exactly roll off the tongue. Two of the most popular are “domestic minor sex trafficking victim” and “commercially sexually exploited child,” both of which are mouthfuls. The most succinct is “prostituted minor.”
And that is where the battle begins.
In 2005, the Washington State-based advocacy group Shared Hope International received a grant from the U.S. State Department to look at sex trafficking in the U.S. What they found, according to Senior Director Samantha Vardaman, was that, contrary to popular belief, “most of the victims of sex trafficking in the U.S. were domestic minors.” Armed with this sex-trafficking definition, Shared Hope went to the Department of Justice (DOJ) the following year and asked for money to do another study, this time looking at how law enforcement was serving this population and what services were available.
The new study found that in the 10 major metropolitan areas surveyed, the DOJ-funded Human Trafficking Task Forces—which, according to Vardaman, were initially conceived as a way to deal with trafficking of foreign victims to the U.S.—generally weren’t aware they were supposed to be focusing on domestic sex trafficking at all. This realization led the group to its next project: law enforcement education.
“We needed law enforcement to make a connection between a child being prostituted and traffickers, and they hadn’t done that before,” says Vardaman. Using the DOJ grant money, the group has trained more than 10,000 law enforcement personnel around the country since 2007 on how to identify and treat prostituted minors.
The results, says Vardaman, have been inspiring.
“Law enforcement has been very supportive,” she says. “They want to be on the side of right.”
But proper training is key. Anecdotal information suggests that beat cops simply don’t think about minors involved in prostitution as victims of trafficking. Sonia Ossorio, Executive Director of NOW-NYC, a women’s advocacy group, encourages volunteers to “ask a cop” in their neighborhood about the state’s 2008 Safe Harbor for Exploited Children Act, which redefined all sex workers under 16 as trafficking victims.
“What we’ve found is that they can’t describe it,” says Ossorio. “One New York City cop told a volunteer, ‘That happens in New Jersey, not New York.’” Another, says Ossorio, described the law as pertaining to assaults on traffic cops.
Another problem is the lack of reliable data on what New York City Legal Aid attorney Katherine Mullen calls this “lost” population.
Without permanent homes and often under the thumb of pimps or other exploiters, underage sex workers aren’t exactly easy to study. Law enforcement records don’t help. In 2006, Kimberly Mitchell and two colleagues from the University of New Hampshire’s Crimes Against Children Research Center began a nationwide study of juvenile prostitution cases. The researchers surveyed just over 2,500 law enforcement agencies throughout the country, asking for data on the number of juvenile prostitution arrests in 2005, the last year for which data was available. The results were disappointing.
“Record keeping was all over the place,” says Mitchell. Many agencies did not even have filing systems that allowed them to distinguish between underage and adult prostitution arrests in their data. Advocates and academics estimate there are between 100,000 and 300,000 juveniles involved in sex work at any given time in the U.S. But according to the New Hampshire study, “no scientifically credible estimate of the overall number of juveniles involved in prostitution yet exist.”
There are, however, some things we do know.
According to a 2009 report on prostituted minors in Las Vegas, 50 reported being physically abused at home, 41 percent reported sexual abuse, and 53 percent said they had been the victim of a sexual assault. The 2005 data that UNH researchers were able to get showed that in 57 percent of the reported cases the teens had a pimp, or “third party exploiter,” benefiting from their sex work and 21 percent had traveled across state lines for prostitution. Also in 2008, Dr. Ric Curtis, chair of the anthropology department at John Jay College of Criminal Justice, did a survey of this population in New York City and found that fewer than 10 percent had a parent they could go to if they were in trouble, and 87 percent said they wanted to leave “the life” but for various reasons, chief among them lack of housing and employment, felt they could not.
Jessica Alvarez (not her real name), 25, is a perfect example.
At 18, Jessica was living in New Jersey with several other girls in a house owned by her pimp. She’d fled the Bronx, New York home of her mother, who drank and relied on public assistance to pay for the cramped apartment that housed uncles, nephews and brothers-in-law. At first, she admits, she was charmed by the Mercedes her pimp drove, and the nice clothes he bought for her.
“I’d never even had a dishwasher,” says Jessica, who is now in college and asked not to be identified.
After a few months of selling sex, Jessica says she wanted to leave, but had no idea where to go – or what to do. She was afraid of her pimp, who once punched her in the face for rolling her eyes, and knew her family and friends would be appalled if they learned what she’d been doing.
“The girls who involved in prostitution are the most beat-up of beat-up kids,” says Alexis Kennedy, a professor of forensic psychology at the University of Nevada, Las Vegas who authored the 2008 study. Kennedy, a Canadian, says she thinks the U.S. “is headed for a major paradigm shift” when it comes to underage sex workers.
“In Canada, they don’t arrest anyone under 18 for prostitution,” says Kennedy. “When I realized that these kids were being picked up and dropped into the juvenile detention system I was shocked. If you’re going to do that, you have to have programs for them and few do.”
In New York State, the Safe Harbor Act redefined prostituted minors under 16 as trafficking victims, but created a gray zone for 16 and 17 year olds by granting dual jurisdiction to the criminal and family court. So, if a 16-year-old is lucky enough to be seen in Judge Weinberg’s court, he or she will likely be referred to family court, or offered counseling.
But the same teen arrested in a different New York county, could receive vastly different treatment, likely including incarceration.
Of course, the law only works if police and the courts know the sex worker they’ve picked up is underage, and many prostituted minors lie about their age, since the punishment for adult prostitution related offenses is often no more than a few nights in jail. Without identification or fingerprints on file, the system may never know that the 20-year-old they just slapped with a criminal offense was actually 15-year-old trafficking victim.
But remand to family court is no panacea. According to New York City Legal Aid attorney Katherine Mullen, even though family court sees only a “miniscule” number of actual prostitution cases, hundreds of New York kids are detained in juvenile facilities each year because of “suspicion” of prostitution.
“It can be total innuendo,” says Mullen, who says she has one 14-year-old client who has been incarcerated for two months on a shoplifting charge because the judge suspects she is involved in prostitution. “The judges are still under the assumption if you’re locked up you’re safe [from your pimp], which is technically true. If you locked up a domestic violence victim she’d be safe too, but eventually she’s going to get out and you’ve done a lot of damage.”
But according to Mullen, if a child is the subject of a delinquency case—whether it be shoplifting, false impersonation or lying to a police officer, all charges Mullen says are common for young people involved in prostitution—group homes and social service agencies can exercise “discretion” about whether or not they want to work with them.
And when there is no place for the prostituted minor to go, she goes to detention – unless she gets lucky and falls into the hands of one of the country’s few non-profits devoted solely to helping prostituted minors.
In New York City, a group called Girls Education and Mentoring Services (GEMS) does just that. Spokeswoman Muhammida El-Muhajir says the 12-year-old group “wasn’t always so welcome” in the city’s court system. GEMS, a program run by women who have survived prostitution, has counselors at family and criminal courts throughout the city waiting to interview and assist girls whom the court suspects may be involved in prostitution. The group has 15 safe beds, which is a drop in the bucket when you consider that John Jay Professor Curtis estimates there are at least 3,500 minors involved in prostitution in the city.
In the nearly two years since New York’s Safe Harbor Act passed, Illinois, Washington and Connecticut have all approved similar laws. And last week in Texas, the State Supreme Court ruled that no child under the age of consent can be charged with prostitution.
“Every state law that’s passed is getting better and better, and clearer and clearer,” says Mullen.
But even the best law is limp without money to assure compliance. Safe Harbor, which only went into effect in April 2010, called for law enforcement training on dealing with prostituted minors, but according to Mullen, the state’s budget crisis has kept that money from being appropriated. And although the state estimated earlier this year that it would cost $10 million to effectively implement Safe Harbor, the current budget only sets aside $3 million.
Without these services, prostituted minors are likely to continue in this dangerous life. According to Vardaman, 70 percent to 80 percent of adult prostitutes began selling sex as youth.
Nobody knows this better than Jessica Alvarez, who escaped her pimp and returned home to New York only to find herself selling sex on her own.
“I was so confused,” says Alvarez. “I was feeling like it’s night and I wanna get dressed up and go out on the streets. I felt embarrassed and disgusting, but I didn’t know how to make my own choices. I didn’t know how to be normal.”
It wasn’t until she was 23 and happened upon the screening of the film “Very Young Girls,” produced by GEMS, that she realized there were other people out there who’d been through what she had―and that with some guidance, she could get her life back.
“Now I know I was taken advantage of,” says Alvarez, who is finishing a B.A. in psychology and plans to get a Masters’ in social work. “And I know I have so much more to offer. I can empower other girls. They see me and say, ‘You have your own apartment? You go to school?’ It gives them hope.”
Julia Dahl is a contributing editor of The Crime Report
Photo by chuckTM via Flickr.
Immigration courts around the U.S. are reeling under a huge backlog. One solution: hire more judges.
Araceli Cruz Rendon, a Mexican citizen who entered the U.S illegally in the 1990s, believed she could make a good case for avoiding deportation. Her American-born son suffered attention deficit disorder: if she returned with him to Mexico, her lawyers argued in a Los Angeles immigration court, his condition would worsen.
But Cruz never got a chance to fully make her case. By the time it reached Immigration Court Judge Anna Ho, in January 2005, there was such a huge backlog of immigration cases that the merits of her argument took second place to the smooth running of the system. Judge Ho turned down a request by Cruz’ lawyer for a continuance that would enable her to present more information documenting her argument. The reason: it would add to the system’s workload.
“When you delay one case, you delay three other cases,” the judge ruled.
Her lawyers filed an appeal with the U.S. Ninth Circuit Court of Appeals. And last December, the court ruled against Judge Ho, ordering her to re-hear the case on the grounds that avoiding delays in the court system could not form the basis of a judgement. "We have repeatedly warned that a ‘myopic insistence upon expeditiousness’ will not justify the denial of a meritorious request for delay," wrote District Judge Jeremy Fogel.
Cruz was luckier than most. There may be no immigration court under more strain than the one in Los Angeles. A March 2010 report from the Transactional Records Access Clearinghouse (TRAC) at Syracuse University showed the court as having the most pending cases (about 43,000) of any in the country, and the longest average wait time between the case opening and final decision (713 days).
And the Los Angeles court is just a leading indicator of what’s happening nationally.
The TRAC report describes an entire system of overwhelmed immigration courts that are not keeping up with the cases sent to them. According to TRAC, the nation’s number of pending immigration cases is at an all-time high of 228,421—23 percent higher than in September 2008 and 82 percent higher than just 10 years ago. The TRAC study’s authors found that judges have an average of 70 minutes to spend on each case, the second lowest figure since 1998.
Pressure on Judges
The judges argue that the blame is not entirely theirs. Retired immigration judge Bruce Einhorn, who served with Judge Ho in the Los Angeles court, claims that judges are under constant pressure to clear their backlogs as expeditiously as possible.
As an example, he points to an e-mail sent aboutsix years ago to all of the court’s judges sent by a top manager in the federal agency that supervises the immigration courts. Although Einhorn can’t remember the month, he recalls that the memo singled Judge Ho out for completing more cases in the previous 30 days than any other judge in the Los Angeles court. According to Einhorn, it’s a clear demonstration of the conflicting messages received by immigration judges. “The appellate courts would tell us to slow down, and the agency would tell us to speed up.”
According to the TRAC report, the key reason for the backlog is the federal government’s failure to hire judges quickly enough to keep pace with the increasing caseloads, according to the report. The authors noted that there were actually two fewer judges nationally in January 2010 than in April 2009. And the number of vacant judgeships doubled from 2006 to 2010, from 24 to 48.
In a written response to the TRAC report, the federal Executive Office for Immigration Review (EOIR), which administers the immigration courts, called the TRAC report “unbalanced” and said that it “fails to acknowledge the effort and progress that the Executive Office for Immigration Review has made, and continues to make, to address the immigration caseload. It argued that it was in the process of hiring 47 new immigration judges, which will bring the total to 280 nationally. The agency added that as part of its hiring process, it had reviewed more than 1,750 applications and conducted more than 120 interviews.
(EOIR declined The Crime Report’s request for an interview for this story, and Kevin Rooney, who was EOIR director from 1999 to 2007, did not return calls for comment.)
TRAC co-director Susan Long noted that EOIR’s statement didn’t take issue with the report’s data and conclusions. “They're just saying, ‘we're working hard,’” she told The Crime Report.
Indeed, according to EOIR’s figures, the number of judges nationally increased from 223 to 232, or about 4 percent, from 2006 to 2009--numbers that vary only slightly from those in TRAC’s report. But during that same period, the immigration court caseload increased by 33 percent, according to TRAC.
Since 2003, TRAC added, the number of immigration judges has increased by only nine, from 218 to 227.
Impact on decision-making
The case backlogs and delays raise questions about the standards of judicial decision-making in immigration courts.
Judges are under pressure to move cases along quickly, even though their ability to do so is often limited by outside factors. Judge Denise Slavin, vice president of the National Association of Immigration Judges (NAIJ) says that in her court judges must provide written justifications for cases that remain pending for more than six months. Often these are delayed for reasons beyond a judge’s control, such as not having space on the docket for a follow-up hearing within that timeframe.
Both the lack of control and the pressure to keep cases moving through the system affect judges’ perceptions of their ability to be fair. In a list of priority immigration court needs released last fall, the association noted that “stress on judges has reached unbearable levels which has contributed greatly to questionable conduct in court and arguably fostered ill-conceived decision making.”
And in responses to a survey of the NAIJ's 212 member judges by researchers at the University of California at San Diego, many judges admitted they were concerned about the impact of crowded dockets on their ability to make thoughtful decisions. (The study was published in the fall 2008 Georgetown Immigration Law Journal.) “In those cases where I would like more time to consider all the facts and weigh what I have heard, I rarely have much time to do so simply because of the pressure to complete cases,” read one response. Another noted, “The conditions under which we work make it more and more challenging to ensure that justice is done.”
Questionable decisions caused by caseload demands also show up in appeals court reversals of immigration court decisions. In 2008, for example, the U.S. Third Circuit Court of Appeals threw out a decision by an immigration judge in New Jersey who had denied a Pakistani immigrant a continuation of his case. The judge had based his ruling on his obligation to complete cases “within a reasonable period of time.” The appeals court rejected that argument and remanded the case for reconsideration. Overall, immigration-related appeals to the circuit courts grew from 4,450 in 2002 to about 7,500 in 2009.
Occasionally, backlogs may work to the benefit of individual immigrants, since they can stay in the country while a case drags out. “It means you can get an incredible amount of time to keep your clients here hoping for a new law or something else that might save them or just change their circumstances—they might marry a US citizen or whatever it happens to be,"
says Los Angeles immigration attorney Carl Shusterman.
But those with strong cases are disadvantaged, because when the case stretches out, people forget specific facts, witnesses may move away or die, and documents become unavailable, according to Brittney Nystrom of the National Immigration Forum, an immigrant advocacy organization.
Backlogs won’t likely be reduced without greater balance between the resources earmarked for detaining illegal immigrants and those dedicated to adjudicating their cases in immigration courts. The Department of Homeland Security programs that generate the greatest portion of immigration court caseloads have received significant funding increases since 2003: 3,
800 new border patrol and customs agents were hired in 2007 alone.
An American Bar Association-commissioned report, released in February, recommends that the government hire about 100 more immigration judges. Doing so would bring immigration caseloads in line with those of judges in other administrative court systems, such as those that adjudicate Social Security and veterans issues. But in the Obama administration’s 2011 budget submission, EOIR requested just 21 new immigration judge positions.
If the agency has a basis for that number, it hasn’t shared it, says TRAC. “Basically we still don't know how many judges are needed, what is adequate,” observes TRAC’s Long. “We have consistently asked them [EOIR], ‘do you have any studies?’ And, nope, they don't.’”
So in the short term, judges will continue to struggle with packed dockets.
Judge Dana Marks, president of the judges’ association, says she doesn’t have room on her docket for a single full merits hearing—a three- to four-hour affair in which opposing lawyers fully air their arguments—until November 2011. For an immigrant with a solid case who is awaiting a final ruling, 20 months is a long time to wait.
Steve Yoder is a freelance journalist based in Woodstock, New York.
A reporter looks at day-to-day practices in American courtrooms, and finds them wanting.
Last year in Wilkes-Barre, Pa., two juvenile judges were indicted on charges of taking millions of dollars in kickbacks in exchange for sending children to a private prison. But this shouldn’t have come as a surprise to anyone who had studied the daily procedures in their courtrooms.
For years, child advocates had noticed that the judges didn’t read kids their rights, and that they didn’t assign attorneys to children who arguably needed a lawyer the most. The judges openly held sentencing hearings in which kids had no advocates and that lasted under two minutes; and they gave outrageous sentences, such as wilderness camp to a girl who had lampooned her principal on her My Space page.
What was astounding was that the Wilkes-Barre court had operated this way for so long without protest from attorneys, and without media scrutiny. The likely reason: the court procedures over time had come to seem “ordinary.”
The ordinary may not sound or look like news at first. But there are places in America where the ordinary has become so degraded that it is in fact extraordinary, or ends up with extraordinarily catastrophic consequences, as in Wilkes-Barre.
There are times when the “ordinary” can jump out at you like a calling. This is what happened to me in 2001. The Nation magazine had given me a year to write about civil rights, and so I visited many courts. In a courtroom in Greene County, Georgia, for example, I watched a public defender plead 48 people guilty in two days. Many of his clients never had a substantive conversation with him about the facts of their cases. On the day of their court hearing, however, he would spend a few minutes telling the defendants about the deal offered by the prosecutor.
Then, another lawyer, who knew even less about these people or their situations, would stand beside them while they pled guilty before the judge. As I looked on in court, several cases broke down with people crying, saying that they didn’t understand what was happening to them. One woman was saying over and over again, “I didn’t know I was going to jail.”
Afterwards, the prosecutor, defense attorneys, and the judge all told me they saw nothing wrong with the process. I found out later that that year the public defender represented about twice as many people as the American Bar Association (ABA) recommends as the absolute maximum that an attorney can handle. But the people who shaped justice didn’t seem taxed. “We have successfully done a 10-page calendar in one day,” the public defender boasted on that first day I saw him. He said it proudly as if speed equaled success. When I asked him if he felt people were treated fairly he said something I would never forget: “Nobody could say that they didn’t have their day in court.”
What fascinated me then and now is how smart, committed, hard-working professionals can routinely act in ways that fall short of what people in their positions are supposed to be doing. And still, they did not even realize that anything was missing.
Many did not realize that their behavior had devastating consequences for ordinary peoples’ lives. Their mistakes had become so routine that they could no longer see their role in them.
This is ordinary injustice.
There was something else I noticed in that Georgia courtroom. As I watched the cases proceed, it became increasingly harder to hear what was going on. The prosecutor and defense attorney huddled around the bench, speaking softly to the judge. It looked like they were all on the same team – rather than opposing advocates duking it out before a neutral arbiter. Steve Bright, of the Southern Center for Human Rights in Atlanta, asked the judge to speak up, and the judge installed a microphone. But the next day the microphone was gone. I went back and visited this court (with different sitting judges) for the next five years. There was never another microphone. And there was always a huddle.
That huddle made clear to me that the problem is not just with the courts, but how the media reports on them. Too often the press fails to examine court procedures that seem too common to address on the front pages. Then, when problems do come to light it focuses on one person designated as “a “bad apple,” if you will. In Wilkes-Barre, two judges took the fall, but there was a legal community that kept those judges in place and turned a blind eye to the daily flouting of defendants’ rights. The community continued to let children go to prison for crimes that didn’t merit such punishment, and never said a word that made a difference until outside investigators figured it out. The lesson here is that journalists should take the time to report on the ordinary.
How to Avoid the “Bad Apple” Fallacy
I published a book last year (Ordinary Injustice: How America Holds Court, Metropolitan Books: 2009) that describes a journey through American courtrooms where such “ordinary” injustice is allowed to continue until it becomes impossible to ignore. Working on the book has led me to set out three basic steps reporters need to follow in order to avoid falling into the fallacy of the bad apple.
First, you need a basic sense of what the problem is. You will usually find this by talking to the victims or defendants. In Greene County, GA, the people I met in the hallways who complained their attorney wouldn’t meet with them gave me material for probing further. One woman who had been arrested for cocaine disclosed she hired a lawyer after a bad experience with the public defender following an earlier drug arrest.
Second, it’s important to look at data. The total number of cases represented by the Greene County public defender stood out after comparing it with the ABA’s maximum recommended number of cases for an attorney. You might discover a pattern in a judge who gives outrageous bails for minor crimes, or a prosecutor who takes very few cases and screens out the rest for no apparent reason. Sometimes no data exist. It is your job first, to find this pattern. Once you have this, you need your stories to prove the pattern.
The third thing—the most important and most daunting part—is to get down to basics. To concentrate on the ordinary. To go as low as you can go in the food chain. In the case of courts, it’s important to talk to the people who play a role in the system’s inertia: judges, prosecutors, defense attorneys, court clerks, county officials and even the guard who sits in the hallway and knows better than anyone how everything works. You are looking to see, in their own words, how injustice works. They are your best sources. Because so often they don’t know any other way than to do justice or injustice, for that matter. And they will tell you—point blank—their intentions.
Hard questioning is important. Ask the people who work in the system how they spend their days, what time they go to work, where they sit, how open the boss’s office door is, who works for whom, and what various underlings do. Then ask the case-specific questions: why did you decide to prosecute or not prosecute? Why did you decide not to talk to witnesses? How often do you behave this way?
Pay Attention to the Ordinary
In other words, you’re asking them to tell you about the “ordinary.” Spend time with them. You should be calling them so many times that when they pick up the phone they will wonder whether it is you or a significant other. And always tell the truth about what you are doing. Your honesty will be reflected back to you.
In one place I studied, Quitman County, Mississippi, there was no assembly line in court, but rather a court clerk with a list of cases in which people had been arrested but never brought to a grand jury. I took the list of cases and used it as a road map. I met one woman who had been beaten up by her boyfriend with a tire iron, There was plenty of evidence of aggravated assault. There was a police report documenting what happened. A hospital report showed she was admitted for two days because of severe bruising to her back. And there were pictures of bloody bruises on her face. Plus, her daughter and niece had been watching the beatings from inside a locked car. This woman never went back to live with her boyfriend. She moved in with her mother the morning after the assault.
Why wasn’t her case prosecuted? I interviewed the players and couldn’t figure it out. Until the court clerk examined the records and found that there hadn’t been a domestic violence case prosecuted in 21 years.
I also learned that the district attorney prosecuted only 24 percent to 35 percent of the cases that by law he had to present to grand jury. Now I was ready to figure why this was happening and to talk to all the players. I went to the prosecutor and told him I was writing a book about how courts do and don’t work, and that I was interested in the issue of prosecutorial discretion. And what I learned from talking to him was that he would often thoroughly investigate and prosecute cases that he thought he could win. He would go whole hog for a big murder case that would make the front pages.
But in cases where no one seemed to be watching, he or his investigators could simply put them aside.
Lack of Investigation
In fact, the prosecutor often had no idea what he was passing on. Instead he used an investigator to screen cases. And this investigator often didn’t investigate or communicate with police. And since prosecutors have carte blanche to decide what to investigate, no one checked that the decisions were good ones. And entire categories of cases would disappear.
Leading scholars agree that courts are the most unexamined public institution in America. No one keeps track of what kinds of cases go and don’t go to court. We have no idea how many cases are being pled, what kinds of crimes are not being prosecuted and for what reasons, whether people are being forced to plead guilty without lawyers, or are even appointed lawyers.
We have no idea how much money is spent on indigent defense on a per-case basis across the country. Yet communities know how much they spend per pupil, and what that investment yields in terms of test scores, teacher-student ratios, and graduation rates. Reliable data just simply do not exist on how much we invest in protecting constitutional rights in the legal system.
Reporters can help answer questions like how many cases get put aside for what reasons, how many people spend in jail before pleading guilty, how high bails are for what crimes, and the costs of holding people in jail, not only to the county but in terms of collateral consequences, such as loss of homes and jobs, welfare expenditures.
Jeremy Travis, president of John Jay College of Criminal Justice, writes that 47 million people have criminal records – approximately 25 percent of the nation’s adults. Yet a public institution that affects one quarter of the nation’s adults goes completely unmonitored and is unaccountable. We don’t leave other public services unexamined--our schools, our water supply, our hospitals. Why do we turn our eyes away from the ordinary business of the courts? We must start paying attention to the ordinary, because the ordinary is where it all begins.
Amy Bach, a journalist and lawyer, is the author of Ordinary Injustice: How America Holds Court (Metropolitan Books: 2009) which received the Green Bag law review award for exemplary legal writing. This essay was adapted from a talk she delivered on Feb. 15, 2010, as part of the Law, Politics, and Media Lecture Series at the S.I. Newhouse School of Public Communications, Syracuse University.
Many courts and law enforcement agencies have embraced a new alcohol detection monitoring system in lieu of locking up DUI offenders. But, as some states consider expanding monitoring for other criminal offenses, critics worry about the reliability and civil liberties of using these devices.
Over the years, police and judges have tried everything from ignition locks to random checkpoints to combat drunk driving. Yet driving under the influence remains a persistent problem: there were 788,000 DUI arrests in 2007, down only slightly from 803,000 in 1998, according to the FBI.
Perhaps as a result, courts and law enforcement agencies across the country have recently embraced a new technology that is changing the way the legal system deals with drunk drivers. At a time of dwindling criminal justice budgets, the Secure Continuous Remote Alcohol Monitor (SCRAM) device, an alcohol-detecting ankle bracelet that must be worn 24-hours a day, provides the promise of constant vigilance, on the cheap. The monitors cost local governments about $1,500 plus about $12 to $15 a day for monitoring, which mostly paid for by the wearer, compared to about $62 day to keep someone in prison.
Despite some questions about the accuracy of the monitors, law enforcement agencies have largely welcomed them as a cost-effective and convenient alternative to either jail or constant checks with probation officers. Since they were first introduced in 2003, the devices have been used to monitor more than 110,000 offenders in 48 states, according to the manufacturer, Alcohol Monitoring Systems, based in Littleton, Colo. Bracelets reportedly have been spotted on celebrities like Lindsay Lohan. Some family court judges have suggested using them in divorce and child custody cases where a spouse is alleged to have a drinking problem.
“For keeping somebody sober, not drinking, 24 hours a day, they’re a great tool,” said Jim Vlahakis, the coordinator of South Dakota’s 24/7 Sobriety Project, an alcohol monitoring program for chronic DWI offenders. “It’s continuous, and you can’t fool them.”
Others are not so sure -- and a handful of critics have questioned how reliable the devices really are. The monitors are mostly used as a condition of bail or probation for DWI offenders. The monitors, the shape of a small plastic box are strapped to the user’s ankle, and must be worn constantly, even in the shower. Every 30 minutes, they measure the amount of alcohol that is secreted through the skin; they also have sensors that will indicate tampering. A modem in the probationer’s house uploads the data from the monitor once a day to AMS, whose analysts notify law enforcement if the wearer has had any alcohol.
But many everyday products, such as hairspray and household cleaners, contain a type of alcohol that is detected by the bracelets. Exposure to large amounts of those products could trigger the monitor, leading some critics to charge that they produce false positives. Failing a test can mean being sent to jail.
“The problem is distinguishing the alcohol,” said Michael Hlastala, a professor of physiology at the University of Washington who has testified in several court hearings against the accuracy of SCRAM. “They don’t have a good way of separating out interference from drinking alcohol.”
“The device went to market before adequate scientific work was done. There are problems that have not yet been addressed experimentally,” he said.
Despite Hlastala’s concerns, courts, which could reject the monitors as inaccurate, have for the most part accepted them. In what appears to be the country's first appellate court decision on the issue, the South Dakota Supreme Court in September found the SCRAM system, and the science behind it, to be sufficiently reliable to be admissible in court.
Though the devices are widely used, it appears only a handful of cases have called their reliability into question. Kenneth Cooper claims in a lawsuit that he was jailed for 17 days in Henderson, Nev., based on several erroneous readings from his SCRAM monitor, which he was forced to wear after he pleaded no contest to driving under the influence. His attorney, James Dilbeck, said the time it takes for AMS to receive the data and contact law enforcement prevents wearers from effectively challenging what may be false reports.
“It sends a silent signal, and then a few days later someone comes and picks you up. By then you have no way to defend yourself other than your word,” he said. “This is an unregulated service, and judges are taking as gospel what these things report. And you cannot defend yourself. I think its garbage.”
Dilbeck would not say what he believed caused the monitor to record a false report. Other wearers have claimed that exposure to large amounts of hairspray and farm equipment set the devices off.
In a statement, AMS said, “We stand firmly behind the results in this case and for every other SCRAM client across the country…AMS looks forward to the opportunity to aggressively defend our technology in court.”
AMS says its employees can distinguish between the data produced from alcohol consumption and exposure to other contaminants like hairspray, based on factors such as the varying rates that the body absorbs and metabolizes different kinds of alcohol. Several different people scrutinize data from potential drinking episodes –to make sure the user has not been exposed to other alcohols-- before the company confirms that wearer has been drinking, said Kathleen Brown, a company spokeswoman.
“It’s an arduous review process before we confirm a drinking event,” said Brown. “If there’s a mistake, there’s a lot at stake for these people. We take that very seriously.”
SCRAM has not been widely tested in independent, peer-reviewed studies. But in the testing that has been done so far, the devices have received mostly positive marks. A 2007 study sponsored by the National Highway Traffic Safety Administration found that SCRAM did not have a problem with false positives, but did report false negatives and suffered from decreased reliability when worn for a long period of time. Brown said AMS’s internal testing shows a false positive rate of 0.12 percent.
“I use it as a deterrent,” said Michigan District Court Judge Dennis Powers, who has publicly criticized SCRAM, saying the monitors are too easily fooled by outside contaminants.
“They think they’re wearing an unbeatable alcohol monitoring device and accordingly they behave themselves. If they deny they’ve been drinking, I try to get outside verification. To assume it’s always reliable is a mistake. People might get hurt.”
Scott Michels is a freelance writer in New York.
Photo courtesy Alcohol Monitoring Services
Rising custody disputes and child care issues are overwhelming already beleaguered family court judges in New York and other states.
Family courts nationwide are grappling with a caseload crisis that delays decisions on critical issues for parents and children involving abuse and neglect, custody and visitation. Although especially problematic in major urban areas, the Empire State as a whole has been struggling with this precarious situation, leading the New York State Senate Judiciary Committee to recently recommend the addition of 21 new family court judges to the bench. This would be the first significant increase in the state's family court judgeships in over three decades.
Most experts believe this is long overdue. According to a report prepared by the New York State Senate Committee on the Judiciary, the 143 judges currently mandated by state law handled over 2.1 million appearances statewide in 2008. The report, entitled “Kids and Families Can’t Wait-The Urgent Case for New Family Court Judgeships, ” predicted a 26 percent increase in appearances, to a staggering 2.6 million. The burden of current caseloads is already felt throughout the system. In New York City, for example, an average of 3.5 minutes is spent on a family court appearance.
The recommendation is currently moving through the state’s legislative process. The bill (A8957) is now currently before the state assembly, after passage by the State Senate in September. Even if the bill becomes law, the committee made clear it won’t be enough. It recommended that adding at least 18 more Family Court judgeships once the state’s budget crisis eases.
New York State is far from alone in its family court crisis. Most major urban and larger jurisdictions have problems with heavy family court caseloads and would benefit from more judges, said Peter Salem, Executive Director of the Association of Family and Conciliation Courts (AFCC) in Madison, Wis.
“It’s always a good thing when there are more judges to help families, and more judges dedicated to the family bench who have the opportunity to obtain training and an in-depth understanding of the dynamics of the families that appear before them,” said Salem. “Not having enough judges and resources leads to delays. That’s a problem. People are going through major life crises and children with often serious issues often have to be put on hold.”
Putting more judges on the bench only begins to resolve some of the deep systemic problems in the way New York deals with family issues.
“I’m picking trial dates for the end of next summer and it’s not because the judges are being irresponsible or lazy, it’s just their calendar availability,” said Theodor Liebmann, Clinical Professor of Law and Attorney-in-Charge of the Child Advocacy Clinic at Hofstra Law School. “There are families and agencies that will have to wait until next summer to get a finding on abuse or neglect cases. These months constitute substantial chunks of the impacted kids’ lives.”
For example, if a trial date is scheduled for summer 2010, there is still no guarantee that the case will be heard on the scheduled day. “When a child is removed from their home, (he or she) is entitled to a hearing in three days,” noted Liebmann. “So to the judges who put on cases eight months ago, those newer cases take priority”---resulting, he added, in even more delay.
Family Court judges are working under exceedingly difficult and dire circumstances. “My workload has doubled,” Judge W. Dennis Duggan, who has handled family court in Albany for 16 years, wrote in an e-mail. “The work day has remained the same. No person can do twice as much work in the same amount of time and keep the same level of quality.”
Duggan, who is past president of the New York State Family Court Judges’ Association, added that the workload has grown to “staggering” proportions in the years he has served on the bench. Among the consequences, he noted, are “seat of our pants” judgments. Duggan is also a board member of the National Council of Juvenile and Family Court Judges (NCJFCJ).
Elsewhere in the nation, family court judges argue that more resources as well as more judgeships are needed. “Judges are now case managers, not exclusively decision makers,” said the AFCC’s Salem. “(We need) interdisciplinary programs, dispute resolution programs, legal information, education programs and drug treatment programs.”
According to Judge Karen Adam, a Superior Court Commissioner in Tucson, Arizona and chair of the NCJFCJ’s Juvenile and Family Law Advisory Committee, a well-informed family court judge needs to have “more than a passing knowledge of child development, mental health issues, domestic violence and high conflict family systems.”
In Tucson, Adam notes, almost 50 percent of all court filings are in probate, juvenile and family cases alone. Cases dealing with families mirror the Tucson statistic, comprising more than half the filings nationwide.
Why is the number of family court cases increasing?
Among the intriguing reasons are the explosion of custody disputes in cases with adoptive gay parents, and the high percentage of children born to single parents who are requesting child support.
According to Adam, the latter number is now about 40 percent nationally. “In big urban areas, it is higher,” she added. “Those cases are increasing nationally with requests for child support and formalized orders for custody and family time. That’s increasing court time everywhere, and we need judges to handle them.”
In addition, self-represented litigants also cause a significant backlog in court calendars.
“Family cases are at a dramatic increase,” said Andrew Schepard, Director of the Center for Children, Families and the Law and a professor at Hofstra University Law School in Hempstead, NY. “More and more of these people are pro se. Fewer people can afford lawyers, while the upper class has a trend toward distrust and want to do work themselves.”
Judge Adam agrees. “The interesting thing with family law is that half of the clients are self-represented,” she said. “So you need to have more judicial management of these cases.”.
Child advocates and judges dealing with family and juvenile issues nationwide recommend a “one judge, one family” system with support resources as a way to provide case continuity and best deal with the complexities of such matters.
Experts agree that movement toward a unified court system in all jurisdictions is a trend that would be the ideal model practice in the best interest of children and families.
A Vermont Model
One model is already on the books. Since 1990, Vermont has had a unified family court system which is “working well,” according to Judge Amy Davenport, Chief Administrative Judge for the Vermont Trial Courts. “The same children may be involved in different types of cases,” she added,
“In family court, a judge has the opportunity to review all of the cases involving a child and his or her family. For example, parents may be divorcing while at the same time a protective order is issued because there is domestic violence. Then you have the 12 year-old child running away from home and now has there is a PINS (persons in need of supervision) case. Having the same judge see all of these cases could be critical for that child.”
In New York, judges would like to see similar models put on the state’s agenda. Schepard, for instance, suggests establishing a family division within the New York State Supreme Court system that hears all family issues. “The only way to deal with inefficiencies is to have one judge.”
At a time when budget cutbacks rule in state governments, this may be a hard sell. But those same budget cutbacks have also helped create the instabilities and family problems that end up eventually in family courts.
Schepard asks us therefore to spare a thought for the beleaguered judges who have to handle the sad and often tragic results.
“They are doing heroic work in an impossible environment,” he says.
Andrea S. Glenn is an attorney, a former public defender in Bronx County, and a freelance reporter with a Master’s Degree from Columbia University’s Graduate School of Journalism.
Mistaken diagnoses of Shaken Baby Syndrome may have sent thousands of innocent people to prison, according to a new study
Read the research here
Exclusive to The Crime Report
In October, 1995, when police charged Audrey Edmunds, a Waunakee, Wis. day care provider, with the murder of a seven-month-old girl who had been left in her care, prosecutors said she had shaken the baby to death.
A medical expert testified at trial that the child had suffered critical injuries that were the hallmarks of Shaken Baby Syndrome. A jury convicted Edmunds and she was sentenced to 18 years in prison.
At the time the case was unremarkable—one of thousands of successful prosecutions during the past 30 years of parents and other care-givers who have been found guilty of charges ranging from manslaughter to murder, based on findings of what is known as the triad—retinal hemorrhage, bleeding in the brain and brain swelling. Shaken Baby Syndrome (SBS) is one of the few instances in the criminal justice system where the diagnosis is the basis for prosecution.
Last year, however, in a remarkable turnaround, one of the physicians that testified against Edmunds told a judge that he was no longer confident that the injuries were inflicted by Edmunds and that they could have occurred many hours before the baby was dropped off.
Edmunds was granted a new trial by a judge who ruled that the testimony “shows that there has been a shift in mainstream medical opinion.” In effect, the scientific foundation of the syndrome had been undermined to the extent that a new jury would probably have a reasonable doubt about Edmunds’ guilt.
The case was dropped and Edmunds was freed.
That was good news for Edmunds—whose freedom is the result of work done by the Wisconsin Innocence Project—but what about the thousands of others convicted during the past two decades as a result of the same medical testimony that put Edmunds behind bars?
A soon-to-be-published analysis of shaken baby cases and recent developments in the medical community by University of Maine School of Law professor Deborah Tuerkheimer presents persuasive evidence and raises troubling questions about whether many of these convictions were of innocent people who were found guilty on the basis of faulty science. The analysis is scheduled to be published in September by Washington University Law Review.
Tuerkheimer, who is joining the DePaul University College of Law faculty on July 1, points to new research in the United States and abroad showing that a variety of circumstances, including something as seemingly innocuous as falls from a short height, can cause fatal head injuries that appear very similar to injuries routinely diagnosed as SBS.
If research shows that the physical conditions that once automatically resulted in a prosecution could actually have been the result of an accident, the implications are enormous.
“Given the scientific developments…we may surmise that a sizeable portion of the universe of defendants convicted of SBS-based crimes is, in all likelihood, factually innocent,” Tuerkheimer writes, adding that a far greater number of defendants among the group were likely convicted on legally insufficient evidence.
“While we cannot know how many convictions are ‘unsafe’ without systematic case review, a comparison of the problematic category of SBS convictions to DNA and other mass exonerations to date reveals that this injustice is commensurate with any yet seen in the criminal justice arena,” Tuerkheimer writes.
Keith Findley, a clinical professor of law and co-director of the Wisconsin Innocence Project, who headed Audrey Edmunds legal team, said, “The system is sending people to prison based on findings of beyond a reasonable doubt when in many of the cases the only evidence is medical evidence on which many medical experts…have a substantial doubt.”
He added, “This is not about being opposed to child abuse prosecutions. No critic of SBS theory wants anyone to get away with child abuse, but when the diagnosis becomes the entire basis for the prosecution, that’s problematic.”
In a 1974 medical journal article, American pediatric radiologist John Caffey described what would become SBS, saying, "Our evidence, both direct and circumstantial, indicates that manual whiplash shaking of infants is a common primary type of trauma in the so-called battered infant syndrome." The first appeal of an SBS-related criminal conviction was reported in 1984, according to Tuerkheimer's research.
During the next five years, there were less than two reported appellate decisions per year. While counting reported appellate decisions is a decided undercount since the majority of convictions do not result in such rulings, Tuerkheimer notes that beginning in 1990, the number of appeals grew rapidly. There were 74 published appellate decisions from 1990 to 1994; 160 from 1995 to 1999; and 315 from 2000 to 2004. And the upward trend is continuing: the first half of the current five year period—from 2005 to June 20, 2008 shows 259 opinions. Approximately 1,500 babies are diagnosed with SBS each year, but no information is collected to analyze how many of these cases result in criminal prosecutions, and of those how many prosecutions are based solely on the SBS triad.
Questions about the SBS diagnosis have emerged over the past two decades, but the critical debunking of the theory began in earnest following the 1997 prosecution of Louise Woodward, a 19-year-old British au pair. Woodward was charged with the murder of eight-month-old Matthew Eappen while he was in her care in his home in Newton, Mass. Dubbed the "Nanny Trial," the case was the subject of intense media scrutiny in the U.S. and the United Kingdom.
The prosecution presented testimony that the boy's injuries were the result of violent shaking and his head hitting a hard surface. Defense experts testified the boy's injuries could have occurred days earlier. Woodward was convicted of second degree murder, but the judge later reduced the charge to involuntary manslaughter, noting the possibility of another cause for the SBS symptoms.
Wisconsin law student Molly Gena, who was part of the Edmunds defense team, wrote an article for the Wisconsin Law Review in 2007, noting that “there is no consensus among medical professionals as to whether the symptoms that have traditionally been attributed to SBS are necessarily indicative of intentional shaking.”
Earlier this year, for example, two British pathologists, in a study published in the Journal of Pediatric Developmental Pathology, found that SBS symptoms can be found in babies before they are taken home from the hospital for the very first time. The Daily Telegraph in London quoted the pathologists as reporting that the symptoms can occur without violent shaking.
Dr. Irene Scheimberg told the newspaper, “When there is no evidence of physical abuse, apart from the hemorrhaging, we may be sending to jail parents who lost their children through no fault of their own.”
Closer to home, Dr. Bruce Gross, a Fellow of the American College of Forensic Examiners, writing earlier this year in The Forensic Examiner, noted that studies have called into question the SBS triad as the result of only violent shaking. “The prevailing notion is that the injuries ‘characteristic’ of SBS are equivalent to those seen in a 35 mph automobile accident in which the infant victim was unrestrained, or a fall from a two –story building. Yet, research (including biomechanical analysis) has shown that, although fortunately not the norm, infants and toddlers can and do die from falls as short as 1-4 feet.”
Gross added, “In brief, biomechanical research suggests that basing the diagnosis of SBS only on the presence of the triad of symptoms lacks scientific certainty.”
Tuerkheimer writes that despite the potential for a large number of wrongful convictions, the United States criminal justice system “has yet to respond to new scientific realities.” Investigations of past SBS-based prosecutions have been undertaken in both the United Kingdom and Canada. “When viewed in global perspective, our continued adherence to a prosecution template that rests on discredited science is particularly jarring,” Tuerkheimer writes.
Findley, of the Wisconsin Innocence Project, said that in the wake of the Edmunds case, he has been inundated by requests from scores of defense attorneys for information about the case. “I am hearing anecdotally that defense lawyers are getting acquittals or cases are being dropped once they bring in evidence calling SBS into question,” he said.
Indeed, earlier this year, a jury in Iroquois County, Illinois, acquitted day care operator Connie Rieken of first degree murder in the 2005 death of a six-month-old boy who had been left in her care.
Defense attorneys Kenneth Leshen and Scott Sliwinski presented testimony from experts that suggested the baby’s injuries could have been the result of being dropped by his father days earlier.
One of the prosecution’s chief witnesses, Dr. Jill Glick, of the University of Chicago, testified that the baby was the victim of violent shaking, basing her diagnosis on the classic SBS triad of symptoms.
However, Rieken denied shaking the baby and there was no testimony from anyone that she had abused the baby in any way, according to Sliwinski.
The jury acquitted Rieken after about three hours of deliberation.
In her article, Tuerkheimer calls for a comprehensive inquiry, perhaps by the National Academy of Sciences, which recently issued a broad criticism of forensic science in the courts.
“SBS from inception to current iteration is fully embedded in the domain of the law,” Tuerkheimer writes. “This reality creates a special kind of urgency: around the country, murder convictions are resulting weekly from evidence that is a source of significant scientific controversy…To date our system has failed.”
Maurice Possley is a Pulitzer-Prize winning journalist and author who left the Chicago Tribune in 2008. He was a visiting lecturer at the University of Michigan Law School in 2009 and in the fall will begin work at the Northern California Innocence Project at Santa Clara University School of Law.
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