Due process concerns for the FLDS situation

[MikeWaters]

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:

Burke continued, “As this situation continues to unfold, we are concerned that the constitutional rights that all Americans rely upon and cherish – that we are secure in our homes, that we may worship as we please and hold our places of worship sacred, and that we may be with our children absent evidence of imminent danger – have been threatened.

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:

“The government must ensure that each mother and each child in its custody receives due process of law in determining the placement of the children and other matters regarding the children’s care.”

From the SL Tribune:

Parker said he doesn't see how the state can handle the planned Thursday hearing en masse. The state would like to put forward one case as representing everyone, but is required by law to deal with each family individually, Parker said. The parents involved are entitled to due process at the hearing, he said.
"Just because there are logistical issues doesn't mean [the state] can violate the rights of 500 women and children," Parker said.

3. The judge not responding to objections from lawyers representing parents and the children. Hence the AP calling the hearing "a farce":

A court hearing to decide the fate of the 416 children swept up in a raid on a West Texas polygamist sect descended into farce Thursday, with hundreds of lawyers in two packed buildings shouting objections and the judge struggling to maintain order.

That is not careful consideration.

From the DN:

But several attorneys launched objections asserting that the documents are protected under a clergy-parishioner religious privilege. Called a "bishop's record," prosecutors said the documents contain a list of names and ages, including indications of underage pregnant girls.

Attorney Amy Hennington also argued that attorneys needed more time to review them. Another attorney cited objections to the documents' admissibility under the Fourth Amendment, saying they were procured by an unlawful search and seizure. He also raised concerns over the 14th Amendment, asserting due process claims.

The judge clearly began to express her frustration at the flurry of Constitutional issues being raised and said Thursday's hearing was simply designed to determine the custody status of the children.

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:

Walther, who described herself as a "simple country judge," tried to juggle objections from many of the more than 350 attorneys representing all areas of Texas who are present to handle the monumental case. Every mother has legal representation as do the children.

There is only reason she described herself as "simple." The way she has handled the case demonstrates exactly that.