Re: Not Commenting on Eldorado

Skimming law related posts on my RSS reader and I think to myself I should answer Grits’ question: “Why haven’t blogging lawyers weighed in on the Eldorado arrests?

Fair question.

But instead of posting immediately, I keep skimming. Darn it. I should know better. New York defense lawyer Scott Greenfield has already answered. And now I can’t pretend I came up with this response independently (even though I did). With ellipses:

The easy answer is that this entire affair is so fundamentally foreign to my experiences that I really don't know what to make of it…

As the Texas prosecutors will argue that all children should be removed from their parents, I tend to think that this blanket approach is not merely overkill, but harmful to the majority of the children.  Children need parents, and it hardly serves them to put them in foster care if there is no real threat to their safety.

But without having a firm understanding of what this really means, it's impossible to take a meaningful stand on this case, or to offer any insight that would be worthwhile…

The reason that this blawg hasn't had anything to say is that I just don't have anything to say.  Maybe I will once I have a better grasp of the situation, but until then I'm going to do the most helpful thing I can.  Remain silent.

Facts.

That’s what I need to be able to comment on this story. The real facts. The complete facts. And the MSM isn’t going to give them to me.

I know from experience that when the newspapers and other media get involved in covering criminal cases they don’t just intentionally distort the salacious and outrageous aspects; more often they are justifiably criticized for just plain missing the point.

What do we ‘know’ from the media so far?

  1. They are polygamists. (A crime in Texas.)
  2. They lived on a compound. (Means they lived ‘in a house or houses’ but sounds more ominous.)
  3. They molest children. (According to the still unidentifiable and anonymous complainant.)
  4. They are associated with convicted felon Warren Jeffs. (The most verifiable of the media allegations.)

One of these things is bad (child molesting); one is a crime that I don’t particularly care about and never comes up in my practice (polygamy); one is essentially a variation of an ad hominem attack (‘They’ know someone bad); and one is semantics (‘compound’ vs. ‘not homeless’).

But wait. There are important legal principles at stake here on the libertarian side of things, namely:

Just how long can the state remove hundreds of children from their mothers before they have to

  1. Give them back or
  2. Prove something (anything) about being an unfit parent?

Not exactly a criminal defense question, but it touches on issues such as government intrusion on citizens’ personal rights, so it's close.

Well, as the Supreme Court likes to say when they can’t really figure out how to make black letter law: it’s probably got to involve some sort of balancing test.

And to balance properly, I still need… facts. Not allegations, facts. I don’t have them – yet – possibly never will.

And so, here endeth my longest ‘No Comment’ ever.

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Austin Criminal Defense Lawyer - April 26, 2008 9:43 AM
Still not commenting, just linking to the story. And a hat tip to Radley....
Comments (4) Read through and enter the discussion with the form at the end
makenna - April 18, 2008 9:21 AM

I agree with you. That's why I haven't talked about it much either. Cliff and my dealings with CPS over the past couple years has taught me that when CPS has evidence that a child has been abused, they DO NOT make it public. Even attorney ad litems have to dig for information at times. Just something to take into consideration... that could be why they've held on to the kids for so long and not returned them to their parents. No I'm not siding with the government :) Just something to think about...

Jamie - April 18, 2008 9:38 AM

Makenna:

Thanks for the comment.

I hear what you're saying, but it's not about 'siding' with the government...

It's about not always trusting the government when they say, "We can't tell you all the secrets we know, you just have to TRUST US."

Or, put another way...

Let's say that it's true that sometimes the government intentionally does not disclose damaging information.

That shouldn't lead to believing that because they haven't disclosed any information, they must have it.

mk :) - April 18, 2008 1:18 PM

I know, and I wasn't saying that AS A FACT, I was just saying its something to keep in mind. I personally think that foster care is worse for those kids than being with their parents. But I'm also just throwing out there that they may have found something and they're just not disclosing it to the public. And you're welcome for the comment, I don't know why I don't comment more...

mk :) - April 18, 2008 1:22 PM

I need to make one edit to my response to your response jamie... in that last comment when I said "I personally think that foster care is worse for those kids than being with their parents" I meant only in some circumstances. If the parents are abusing them or something then obviously foster care is better... you probably already assumed that's what I meant tho.

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