Due process concerns for the FLDS situation
 

1. The standard that the judge had to use to make a decision was whether a child 1) had been abused or 2) was in imminent danger of abuse.

This was what the ACLU said as reported by Catholic News:
I have a problem with the idea that infants are in imminent danger of abuse, or that every child is in imminent danger of abuse.

2. The lack of hearings for each child to consider that child's unique circumstances. There are reports that some children were visiting and had been there for only a few days. Again from the ACLU:
From the SL Tribune:
3. The judge not responding to objections from lawyers representing parents and the children. Hence the AP calling the hearing "a farce":
That is not careful consideration.

From the DN:
4. In some cases lawyers volunteered to represent infants and toddlers and were provided no information by the state as to why they were seeking to remove custody from the parents.

5. Lastly, this is not a legal argument, but an argument that the judge has admitted, I think, to being incompetent and unable to handle the case:
There is only reason she described herself as "simple." The way she has handled the case demonstrates exactly that.

If you have an understanding of our legal system, you would understand Judges are accountable to no one.

The same people who laud this judge for cracking down on the FLDS pedophiles probably defend to the hilt pedophiles who are let go all around this country by liberal judges.

If that's all you got out of that I fear for your IQ.

Texas justice, a six shooter and asking questions of the deceased.

That hearing was a joke, and hello 1983 actions galore. I wish I would receive some of those fees to be earned.

That is an example of the worst of American justice, although there are some beauts now and then.

Please do not come here and say "due process wasn't possible."

You sound like a moron. And I'm serious.

Having seen courts adjudicate complex cases, and never having been a judge, I could have done a better job.

First, small counties typically can rely upon visiting or senior judges. You call them up immediately.

Second, you postpone all other matters, and schedule around the clock.

Third, you summarily review cases that appear non-legitimate, i.e., the infants and dismiss those providing CPS the opportunity to bolster their cases, ordering the defendants or mothers not to leave town.

Fourth, you deny the class action custody hearing, as that is NOT constitutionally allowed, as far as my limited knowledge of custody hearings go.

Fifth, you set schedules via internet, require filings to occur timely, especially by CPS or dismiss the contention.

It would take about two weeks to a month, but perhaps one could pare it down.

This judge is a joke.

Doesn't everyone who disagrees with you sound like a moron to you. I thought that was a given.

Due process is a constitutional right. People who use logistical reasons to take away constitutional rights, and say that is ok, are traitors to the state.

Am I clear?

Yes sir.

Apparently, you have judges in Texas who betray your state.

No you don't.

You have and you will.

Fortunately you have said one thing that is good:


Just yesterday there was a lawyer here crowing about how no one woudl be able to demonstrate ANY lack of due process.

QED.

I haven't followed this story as closely as the rest of you but it appears the ACLU is performing its important function and due process will sooner or later take place. "What process is due?" is a famous catch-phrase in the law, and a question that is not easily answered, particularly when children's interests are involved. Courts conclude "due prcess" satisfying Constitutional requirements has been afforded in myriad contexts involving government deprivation of liberty or property interests where the proceedings have been far less rigorous than a jury trial. As I say, the ACLU has an important historic function and I have tons of admiration for them. God bless the ACLU. But what the ACLU says is advocacy, and should not be accepted as Gospel.

This isn't my field, but I do know that in terms of "due process" and allied concerns the parents' interests are always subordinate to the best interests of the child. This is often the hardest part for divorcing spouses who want to wage a scorched earth fight over custody to realize. The court doesn't care who has lied or committed adultery, etc. The question is "what's best for the child?" I'd probably have to recuse myself from these proceedings because my strong bias would be to rule all these kids would be better off with new parents whether they've been abused or not.

I haven't followed the case closely, and perhaps I should do so. I agree on the surface there are substantial due process concerns, and due process is the guardian of all of our rights. Whenever it is threatened, we should all tremble.

Due process takes time, and hopefully that is where they are headed.

No I don't accept your moronic points. But don't have time to address them right now.

I am not sure I see the connection between 3 and 4. What price are you talking about? And why is it necessarily unreasonable to expect adequate protection of our rights given your point 2?

the fact that in Texas judges are nothing more than elected politicians makes abuses by them more likely as they seek nothing more than to be popular in the community so they can be reelected. And then of course the lawyers who bring cases to them contribute to their campaigns, creating a huge conflict of interest.

I'm glad you think she's a joke too. I was starting to fear for my own sanity because so many think she is acting appropriately. This whole matter is frightening from my viewpoint. Granted my experience working in the Guardian ad litem's office was only 3 months so I can be wrong on this.

She is being praised by attorneys that have to appear in front of her. I have found they are the most reliable character witnesses.

Do you know of atty's that say a Judge they might eventually appear in front of sucks.

I understand why now too. Those Judges have a lot of power.

The big point that you have glossed over Mike is that this a decision made on a temporary basis that has to be reviewed fairly quickly and on an individual basis. If that were not to occur, then I would agree that there is a due process problem.

This is obviously an emotional issue for you but what you lack the sophistication to understand because your background is not in the law is that none of these constitutional principles are absolutes and that all of them give way to other principles at times.

I have tried to explain, and you have so far ignored, the idea that there is a balancing that occurs where we err on the side of protecting the children at the expense of the right of the parents and that we accept this for two reasons. The first is that is it temporary. The second is that the evil of abuse is worse than the evil of a temporary deprivation of rights. It is the same reason that you might be held without bail if you are accused of a murder. The danger to others outweighs your right to be free until a determination of guilt occurs. The law is filled with these trade offs and compromises.

There is some subtlety to the idea of due process and reading a few news paper clippings no more qualifies you for a substantive understanding of it than me riding in coach qualifies me to fly the plane. If you had just asked, rather than asking me where I went to law school because I disagreed with you, you might have stood a shot at getting an explanation from me.

I am still perplexed that so many of you think that temporarily depriving people of their children until individual review hearings can be had is a greater mischief than returning children to a pedophilia cult. I think it is a result of a skeptical view of the government and of a very limited understanding of the principles of law at work.

Now, you can ignore all of this because it doesn't fit into your narrative if you wish. Or you can just say that you think the judge made the wrong conclusion based on the available evidence. That is your right. But seriously, lets stop talking about due process conversation because the collective understanding around here of that concept is generously 1 on a scale that goes to 10. If you want to stop being insulting I might even expound it for you.

I am trying to think of another high-profile case involving competing rights that was as divisive as this one, and I am having a tough time. Hell, I argue with myself about it.

Terri Shaivo was much worse.

Roe v. Wade? (off the top of my head not being a lawyer)

I reject that spending too little on infrastructure to protect rights means that we shouldn't reasonably expect rights to be protected. You are arguing from two different perspectives, I think. On the one hand, society makes a determination as to how to allocate resources. To an extent (though there isn't the 100% correlation you want there to be), a lack of funding can have an effect on rights. However, that is a societal determination. The right that is subsequently not protected is an individual right, not a societal right. Why should the individual not reasonably expect his/her rights to be protected? That is the purpose of government. If the government fails to perform its job, is the citizen whose rights are deprived to simply accept it and then revise his/her expectations to meet increasingly lower standards? Should society as a whole accept the lower standards because the system didn't operate well once? Or should it give us pause and inspire us to do better and to ensure the rights of the individual are satisfied?

This is an entirely different conversation than the topic started by Mike, though there is a bit of overlap.

On the one hand, a society may say that it isn't worth the price to

Oh yeah. Good point.

Could be. No conflict for me on that one, however.

This is a good post, and I agree with much of what you said. However, I do feel there needs to be reasonable suspicion on the part of law enforcement prior to taking someone's children away. I haven't followed the case that closely to know if it existed or not. I have heard through my short review of the matter that the phone tip originally leading police to the compound was fraudulent (though police, if they didn't know it was fraudulent, may still have had reasonable suspicion to intervene and may even now have reasonable suspicion after the fraud of the phone call was revealed).

I will also say that due process shouldn't be bartered away (and I don't know that you indicate it should be). When you talk of trade-offs in the law, you are right; they do and they must occur. That said, due process shouldn't be the subject of those trade-offs. A temporary deprivation of rights isn't necessarily a violation of due process. Due process is just that- a process. There must be a fair and equitable system in place for handling difficult issues like this, but if a fair and equitable process is followed, I don't see a loss of due process where a temporary deprivation of rights occurs.

Agree with Dan's post except the last sentence. My understanding of due process is way higher than a 1. I have less understanding where the state's special interest in protecting minors is involved. UtahDan is right though that depriving parental rights temporarily in order to ensure against risk or possiblity of continued abuse and afford due process isn't a violation of due process. He's also right in that people who read CNN or Fox or the local paper and draw ultimate conclusions are fools. I've had some recent experience in fact and can tell you that they are mostly interested in printing the sensatioal and prurient and sensationalizing innuendo or easily explainable events. They aren't interested in reporting about competence or honesty or good and consciencious work or decisions. The good hard and honest and fair work that goes on most places in this country doesn't make the newspapers.

As high as, say, a 4?

PS I should also add that it is understandable that we all have narratives in our minds about certain subjects and we try to sandwhich what we learn into what we already believe. This is just a subject too complex to allow that.

Wow, I knew it was easy to get into law school, but I didn't know it was that easy.

The point is that the law specifies what is required to take a child away, even on a temporary basis (btw, how long do you think "temporary" is?). I provided the criteria, and for the vast majority, the one that was applies is "immediate danger."

The argument that a 6 month old boy is being groomed to be a rapist, and therefore needs to be taken away from his parents under the criteria of "immediate danger" boggles my mind.

This due process only in appearance. Yes, there was a warrant, yes there was a judge, yes there was a hearing. At the very least, the hearing was only pro forma.

Any bets on how long "temporary" custody by the state is going to be? If my 6 month old was taken away for a year or two, that would be an incredibly long time.

This is crazy. Punish those that have committed crimes. Do not punish people that have not committed crimes. It's as simple as that.