Court Rulings

This page will have new court rulings and new laws as they come out

CRAWFORD V. WASHINGTON (02-9410) 147 Wash. 2d 424, 54 P.3d 656, reversed and remanded. At issue is witnesss statement against a criminal defendant who is "unavailable" to defendant per his Sixth Amendment right to be confronted with the witnesses against him. In this ruling, the US Supreme court abandons it's 1980 Ohio v. Roberts, 448 U.S. 56, where hearsay against a defendant was allowed if the statement bore adequate indicia of reliability", a test met when the evidence either falls within a firmly rooted hearsay exception or  particularized guarantees of trustworthiness. In the realm of Family Rights Advocacy, we have consistently railed against the methods of CPS using hearsay almost exclusively in creating a case against a parent.   Beginning with an anonymous hotline "tip" of suspected abuse, a parent enters a gray area of American jurisprudence.  And it is not "murky" to his benefit.   Child Abuse, when alleged, is not a criminal matter.  It is blithely characterized as a "Civil" matter, much the same as a lawsuit to collect on a breach of contract.  Thus, the Constitutional protections afforded in a criminal case are not necessarily extended to those accused of Child Abuse. However, neither is a Child Abuse case a Civil case.  If it were, prior to trial, the opposing legal team would NOT have access to the defendant beyond taking his deposition.  Motions for discovery would be honored.   The opposing legal team would certainly NOT hold one of the defendant's family members hostage to coerce statements from or use as leverage against our defendant to compel his cooperation.  See Kidnapping If this were a Civil case, if our defendant prevailed in court, he would be entitled to legal fees and damages.  In a Child Abuse case, he is NOT. And finally, the case DOES become a Criminal case, after the investigation is completed without the accused enjoying benefit of his Constitutional rights. At which time, the charges are piled so deep, no lawyer wants to untangle them, and a Plea Bargain may be the ONLY way out. The star witness in a Child Abuse case has become the "child", by proxy of credentialed professionals.   In the 1980's Miami prosecutors devised a nationally-imitated method to win child molestation convictions. The Miami prosecutors pioneered a new technique: the use of child psychologists to tease memories out of children.  A system was constructed whereby credentialed professionals became the child's advocate and presumed to SPEAK FOR the child.  Or as popularized- "In the best interest of the child".   This was known as the "Miami Method".   There is virtually no defense against the Miami Method.  The prosecutors create the evidence and propel the entire case through court unchallenged, control every aspect and actor in the case with no accountability, and complete impunity. In court, licensed professionals speaking presumptuously "In the best interest of the child" enjoys particularized guarantees of trustworthiness for his HEARSAY by virtue of his CREDENTIALS. In a perfect, altruistic world, licensed professionals might operate honestly and fairly. But government, the usurper of public welfare, has degenerated into a vast series of bureaucratic monarchies. Unfortunately, the spoils system that has grown up around them gives interest groups a stake in perpetuating them We hope the new affirmation of the Sixth Amendment is the undoing of CPS and their use of the Miami Method to run rough-shod over innocent parents and rip children from their homes to maintain the extremely profitable Child Abuse Industry who is harvesting the Federal Funding Streams. The hotline caller no longer enjoys anonymity.  The accuser must be held accountable and the accused must have the opportunity to face his accuser in a Constitutional Court of Due Process. The accused must be able to be confronted by any person interviewed by CPS who contributes derogatory accusations against him. CPS workers no longer will escape scrutiny.  The CPS worker who- excludes exculpatory evidence, destroys exculpatory evidence, files false documents in secrecy through the courts, knowingly prosecutes false allegations, provides perjurous affidavits and falsified reports to the court will be challenged. There will be no more questioning our children without INDEPENDENT legal representation being afforded to them.  CPS will no longer have opportunity to fabricate, misrepresent, and distort a child's words.  There will be no more isolating children and using leading questions, pressure, coercion (promises to the child that they will be able to go home), and manipulation to create "statements" from our children. That's what American Family Rights Association hopes will happen as Crawford v Washington UP DATE: State Courts Apply Crawford to Child Hearsay Courts of appeal in California and Maryland have reversed child abuse convictions because of the recent reinterpretation of the Confrontation Clause in Crawford v. Washington, 124 S.Ct. 1354 (2004). The Michigan Court of Appeals, meanwhile, has affirmed a child abuse conviction despite a Crawford challenge to the admission of child hearsay. All three cases were on appeal when the Crawford case was decided. In the Crawford decision, the United States Supreme Court held that a defendant's right to confront witnesses against him bars admission of "testimonial hearsay" unless the declarant testifies at trial, or the declarant is unavailable to do so and the accused had a prior opportunity to cross-examine the declarant. The Court declined to define "testimonial hearsay." It gave examples of testimonial hearsay and said that the extent of it should be worked out in future cases. (Click here for more detail on the Crawford decision.) In the California case, People v. Sisavath, 2004 WL 1172880 (Cal.App. 5 Dist., 5/27/04), a four-year-old girl was interviewed by police responding to a report she had been molested. She was also interviewed by a trained interviewer at Fresno County's Multidisciplinary Interview Center. The trial court found the girl incompetent to testify. It admitted in evidence her statements in both interviews, and the defendant was convicted. The prosecution conceded on appeal that the police interview had produced "testimonial hearsay." It argued that the MDIC interview hearsay was not testimonial, but the court of appeal disagreed. The court said: The pertinent question is whether an objective observer would reasonably expect the statement to be available for use in a prosecution. Victim 2's interview took place after a prosecution was initiated, was attended by the prosecutor and the prosecutor's investigator, and was conducted by a person trained in forensic interviewing. Under these circumstances, it does not matter what the government's actual intent was in setting up the interview, where the interview took place, or who employed the interviewer. It was eminently reasonable to expect that the interview would be available for use at trial. Since none of the child's hearsay should have been admitted, the court reversed all counts of conviction for crimes against her. In Snowden v. State, 156 Md.App. 139, 846 A.2d 36 (4/5/04), the defendant was convicted of molesting three girls, two ten-year-olds and an eight-year-old. The prosecution took advantage of a Maryland statute that allowed it to introduce the girls' statements in investigative interviews by a Child Protective Services worker instead of having them testify. (Maryland is the only state with a statute permitting child hearsay to be introduced regardless of whether the child testifies.) The court of appeals found that the interview statements were testimonial hearsay. It noted that the CPS worker interviewed the girls to obtain hearsay to present in court. It reversed the conviction and ordered that, on retrial, the judge admit no testimonial hearsay by a declarant "who 1) is available to testify, or 2) made the testimonial hearsay statements on an occasion at which the defendant did not have an opportunity for cross-examination." (This phrasing touches on an ambiguity in the Crawford decision. Not all readers of the opinion believe that it requires the prior opportunity for cross-examination to have come at the time of the hearsay. Perhaps it could have come, for example, at a preliminary hearing.) In People v. Geno, 2004 WL 893947 (Mich. Court of Appeals, 4/27/04), the defendant was convicted of molesting a two-year-old girl. Suspecting abuse, CPS had taken her to the Children's Assessment Center for an interview. There, the girl asked the interviewer to accompany her to the bathroom. The interviewer saw blood in the girl's pull-up and asked if she "had an owie." The girl answered, "Yes, Dale hurts me here," pointing to her crotch. This hearsay was admitted at trial. The defense made no confrontation objection at trial. The court of appeals said it would therefore review only for "plain error." It then ruled the "owie" statement not to be testimonial hearsay. It pointed out that the interviewer was not a government employee and that the statement was not in the nature of "ex parte in-court testimony or its functional equivalent" (quoting the Crawford case). It affirmed the conviction.

Review of In Re Gault by Alex Koroknay - Palicz The case of In Re Gault started when Gerald Gault a 15-year-old citizen of Arizona made several lewd telephone calls to a neighbor. After a complaint by that neighbor Gault was arrested and detained by police. Gault's parents worried that their son was not at home that day, searched for their missing child. Gault's parents were never notified of his arrest and only found out later through a friend of Gault's. Officer Flagg, the arresting officer, filed a petition with the court on the day of the hearing, June 9, 1964, which was not seen by anyone until the habeas corpus hearing on August 17, 1964. Standard trial procedures were not followed with Gerald Gault, and due process protections were not abided by. At the trial Gerald's father was not present and neither was the complainant, Mrs. Cook. Other procedural guidelines were thrown out as well, for example no one was sworn in and the trial was not recorded. The judge sentenced Gault to be committed to the state industrial school for 6 years until he turned 21. An adult charged with the same crime would have received a maximum of a 50-dollar fine and two months in jail. Gault's lawyers filed a writ of habeas corpus, but were denied by both the Superior Court of Arizona and the Arizona Supreme Court. The case was then taken to the U.S. Supreme Court and there Gerald's counsel argued that the juvenile code of Arizona under which Gerald was found delinquent was invalid because it was contrary to the due process rights: (1) notice of the charges with regard to their timeliness and specificity, (2) right to council, (3) right to confrontation and cross-examination, (4) privilege against self-incrimination, (5) right to a transcript of the trial record, and (6) right to appellate review. (Senna, 1999, p. 579) The Court refused to speculate when this so-called "slippery slope" would become too steep. We face now, however, the two-fold question whether a further reduction in the size of the state criminal trial jury does make the grade too dangerous, The Court refused to speculate when this so-called "slippery slope" would become too steep. We face now, however, the two-fold question whether a further reduction in the size of the state criminal trial jury does make the grade too dangerous,( IN RE GAULT, 387 U.S. 1 (1967)) The U.S. Supreme Court found against the previous Arizona court rulings and determined that juveniles were entitled to due process under the 14th amendment. The court opinion held that, "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone." (IN RE GAULT, 387 U.S. 1 (1967)) This decision is critical for the application of juvenile justice in this country. From this point forward due process rights and privileges afforded to adults now must be extended to people under 18 as well. Although the court did add certain stipulations to their decision, We do not in this opinion consider the impact of these constitutional provisions upon the totality of the relationship of the juvenile and the state. We do not even consider the entire process relating to juvenile "delinquents." For example, we are not here concerned with the procedures or constitutional rights applicable to the pre-judicial stages of the juvenile process, nor do we direct our attention to the post-adjudicative or dispositional process. See note 48, infra. We consider only the problems presented to us by this case. These relate to the proceedings by which a determination is made as to whether a juvenile is a "delinquent" as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution. As to these proceedings, there appears to be little current dissent from the proposition that the Due Process Clause has a role to play.11 The problem is to ascertain [387 U.S. 1, 14] the precise impact of the due process requirement upon such proceedings. (IN RE GAULT, 387 U.S. 1 (1967)) The court did refer back to several previous court decisions most notably perhaps was Kent v. United States which involved due process issues as well. The court considered many historical decisions with In Re Gault; the majority opinion lists many historical cases that were brought to bear on this case. This Court has not heretofore decided the precise question. In Kent v. United States, 383 U.S. 541 (1966), we considered the requirements for a valid waiver of the "exclusive" jurisdiction of the Juvenile Court of the District of Columbia so that a juvenile could be tried in the adult criminal court of the District. Although our decision turned upon the language of the statute, we emphasized the necessity that "the basic requirements of due process and fairness" be satisfied in such proceedings.9 Haley v. Ohio, 332 U.S. 596 (1948), involved the admissibility, in a state criminal court of general jurisdiction, of a confession by a 15-year-old boy. The Court held that the Fourteenth Amendment applied to [387 U.S. 1, 13] prohibit the use of the coerced confession. MR. JUSTICE DOUGLAS said, "Neither man nor child can be allowed to stand condemned by methods which flout constitutional requirements of due process of law."10 To the same effect is Gallegos v. Colorado, 370 U.S. 49 (1962). Accordingly, while these cases relate only to restricted aspects of the subject, they unmistakably indicate that, whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone. In my opinion this is a fantastic and historic Supreme Court decision. Mr. Gerald Gault's rights as an American citizen were clearly trampled, and it is good that the court recognized that. The law has long neglected youth and children, and this case is one step closer to affording youth equal treatment in this nation. Currently the Bill of Rights is not applicable to those under 18, and the statement made by the court that "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone." (IN RE GAULT, 387 U.S. 1 (1967)) is ground breaking. It was very forward looking by the court to recognize the rights of youth, and at least in one case not treat them as second-class citizens. Sources IN RE GAULT, 387 U.S. 1 (1967) Senna, J. J. & Siegal, L. J., (1999). Introduction to Criminal Justice. New York: West/Wadsworth.   FOSTER CHILD CUSTODY LAW OVERTURNED JUDGE RULES 15-MONTH LIMIT ARBITRARY By Janan Hanna Tribune Staff Writer January 31, 2000 In a bold move rarely seen at the trial court level, a Kane County judge has ruled unconstitutional a state law that allows for the termination of parental rights for no other reason than a child has been in foster care for 15 months. Judge Judith Brawka, who presided over the controversial "Baby T" custody case involving Chicago Ald. Ed Burke and his wife, struck down a provision of the 1998 Juvenile Court Act that was intended to speed up the adjudication process for abused and neglected children who languish in foster homes indefinitely. The law gives prosecutors the power to seek termination of parental rights if a child has been in foster care for 15 months during a 22- month period. Once prosecutors invoke the 15-month rule, it then becomes the parents' burden to prove that the child's best interest is to be returned home within six months. Placing that burden on the parents, Brawka argued, violates the parents' due process rights. Brawka also ruled that the 15-month time period was arbitrary. "This particular statute, unlike all the other provisions for findings of unfitness, relates not to conduct of a parent or an internal flaw of character or behavior or mental illness or physical infirmity, but rather the mere passage of time," Brawka said in a ruling from the bench Thursday. "I do agree that there is a due process problem." In response to Brawka's ruling, Kane County State's Atty. David Akemann received the judge's permission to file an emergency appeal to the Illinois Supreme Court. Kane County prosecutors were the first to invoke the law, which became effective 18 months ago. Child law experts say the law was designed to give the state power to enforce deadlines in contentious child-custody cases against negligent parents who refuse to avail themselves of rehabilitative programs mandated by child welfare agencies. Cook County Public Guardian Pat Murphy said he believed the law was a good one because it puts pressure on parents to cooperate, but also gives them the power to assert that they've been thwarted by DCFS or court delays. Federal law has made certain funding contingent on states passing this law, Murphy said, and many states have done so. The law also reflects a shift in attitudes from family reunification-- no matter the time or cost--to a recognition that adoption might be in the child's best interest. In a curious move, however, Kane County prosecutors chose an unusual case to invoke the new law. It's a case involving a Rockford mother of a 6-year-old girl. The mother, referred to as "H.G." to protect the identity of her minor child, was found to have neglected her daughter in December 1996 after a doctor reported that the child had a dislocated elbow, most likely brought on by the mother's continued tugging of the young girl's arm. H.G. had completed parenting and anger-management classes; submitted to surprise home inspections; proved she had an income and home environment suitable for a child; and underwent extensive individual counseling. According to reports from the Illinois Department of Children and Family Services, the mother had successfully completed social service programs by September of 1997. DCFS caseworkers said the child could eventually be returned home to her mother. But in a sudden and unexplained shift, a new DCFS caseworker, Beverly Michalski, became involved and recommended termination of parental rights. Michalski said the mother had appeared for only 50 percent of the scheduled visits with her daughter, was hostile, exhibited psychological disorders and failed to complete social service programs, according to the court file. Yet the same court record contains DCFS assessments that contradict Michalski's findings. H.G.'s psychologist found the mother to be perfectly fit to care for her child. DCFS caseworkers, who coordinated the supervised visits, recorded that H.G. had attended more than 80 percent of the scheduled visits and had interacted positively with her child--bringing her gifts and cakes, reading to her and hugging her. But by the time the numerous attorneys in the case received three separate continuances, 15 months had passed and the state invoked the new law. "The reason the state is able to meet their 15-month time period is due to the series of continuances outside the control of the mother," H.G.'s lawyer, Kane County Assistant Public Defender David Dunphy, told Brawka. To now place the burden on the mother to prove fitness, Dunphy argued, will result in all neglectful parents being deemed unfit, merely by the passage of time. "The state, which has the burden to do nothing, can sit by and allow the passage of time to occur," Dunphy told the judge. Later in an interview, Dunphy said of the law: "There's something very morally wrong with it. A parent shouldn't be presumed unfit. They should be presumed fit." Assistant State's Atty. Keith Johnson defended the law as a protection of children's best interests. "The best interests of a minor child are certainly a compelling interest for the state to be concerned about in this case, and I do think there is a compelling interest here," he said. Brawka disagreed, noting that the juvenile laws mandate that the subject of a child's best interest be separated from a determination of a parent's fitness