The Possibility of Civil Rights

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.

Civil rights 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.

It may yet happen.

But not if NOREIN becomes the rule.