Friday, February 19, 2021

The Prosecutor's Story

Prosecutors say that they only charge people when they have a strong case.
  • Is it true?
  • Is it trash talk, like that of basketball players?
  • Is it legitimate public relations?
  • Is it a form of jury tampering? 
I was listening to a former federal prosecutor recently discussing whether the twice-impeached, former POTUS would be prosecuted for his criminal behavior. I want exPOTUS45* to be held responsible for the many harms he has caused and his civil, moral, and criminal misdeeds. I was a bit disheartened by the commentator's presentation, which seemed to say that there was a less than 100% chance of some of the prosecutions I hope to see.

Then, my defense attorney conscience kicked in and asked me the questions above.

Despite the presumption of innocence set out in our Bill of Rights and taught as an essential part of our government legal systems, jurors and even judges often come to the process of adjudicating the facts of a case with an assumption that the defendant wouldn't be here, the government wouldn't have brought a case against them, law enforcement personnel wouldn't have arrested them, child protective services wouldn't have taken their children away, if they didn't do anything wrong.

I suppose it's natural for people who have never been wrongly accused or who have been taught in school or by popular media that law enforcement personnel follow the law and the evidence and, like the Royal Canadian Mounted Police, "always get their man," to believe where there's smoke, there's fire or when there's a case something bad happened.  Hearing the prosecutors' drumbeat that they won't charge without a strong case made me worry that it would overwhelm the presumption of innocence for most audiences. It would be consistent with their preconceived notions of justice and the legal system.

The concept of confirmation bias says that people more readily accept ideas that are consistent with what they already believe. The concept of cognitive dissonance says that people tend to reject ideas that do not conform to their preconceived notions.

I think it would be improper for a prosecutor to include an assertion about the inherent strength of a case in an opening statement or closing argument. It may even be improper to ask a witness a question that would produce such a self-affirming response.

But doesn't the statement have a similar effect, of degrading the presumption of innocence, when the vast majority of jurors and judges hear it or read it every day from the news sources they seek out and trust?

Friday, June 26, 2020

DCF Protective Intake Policy

DCF has updated its Protective Intake Policy

Protective Intake Policy 86-015 updated June 22, 2020


The DCF Protective Intake Policy, which had a major update on February 28, 2016, had some additional changes that went into effect June 22, 2020. According to CPCS Attorney Laura Bouliane and Social Worker Julianne Dowd, "Despite some changes to the format and language used, the substance of the policy is largely the same."

The Protective Intake Policy Revised 6/22/2020 may be found herewww.mass.gov/doc/dcf-protective-intake-policy-june-2020/download. I hope to get back to this post and highlight the changes soon. For the moment, my favorite change is that is is posted as a searchable and copyable pdf instead of the page view image-type pdf of most of their other policies.

Sunday, June 7, 2020

Shaken Baby Syndrome debunked (again)

Catching up on my podcast listening, I finally listened to and highly recommend:

Rottin' in Denmark blog's "Shaken Baby Syndrome" episode from October 8, 2018

Mike tells Sarah how an over-simplified diagnosis, over-confident doctors and over-zealous prosecutors got thousands of innocent parents thrown in prison. Digressions include food poisoning, Sherlock Holmes and 1950s medical ethics. Mike wanted to mention Louise Woodward but he forgot. 
Links!
Rottin' in Denmark - Shaken Baby Syndrome

Thursday, March 26, 2020

Latest Mass. Juvenile Courts COVID-19 Order

The Massachusetts Juvenile Court buildings are still largely closed to the public due to COVID-19. They are taking cases by email and hearing cases both by telephone and videoconferences.

Here is a link to Court system response to the coronavirus pandemic:

Court system response to COVID-19.

Included is the Trial Court Help Line, where you can "call to ask general questions about their civil and criminal cases and [get] help ... navigat[ing] the court system."

The Juvenile Court COVID-19 FAQ's and Standing Orders are here.

Friday, March 20, 2020

Working From Home - Making Homes Safe

While schools have been closed and many service providers have resorted to virtual interactions my workload has decreased significantly.

Unfortunately that doesn't mean every one is safe from the things that bring clients to me or to the attention of caring professionals. Renée Graham highlights Suffolk County District Attorney Rachel Rollins' concerns that home may not be a safe place for victims of domestic violence or emotional, physical, or sexual abuse in this article:

When home isn’t the safest place to be

My career has been devoted to helping parents navigate the Massachusetts child protective services (CPS) system; repesenting them in cases when they have been reported to the Department of Children and Families (DCF) for suspicion of abusing or neglecting their children (51A), helping get their children back when DCF has taken custody (51B(c)) and filed care and protection (C&P) or termination of parental rights (TPR) cases, and more. Zealous advocacy on behalf of accused parents and other caregivers does not prevent me from recognizing that there are children who need protection, parents who need help to make life better for their children, and caregivers and domestic partners who do abuse and neglect their partners or children in their care.

We need to follow DA Rollins' advice and find ways to increase social connections, be a community of caring, and be lifelines for one another even as we maintain physical distance to prevent the spread of the virus.

Be safe, stay healthy, and be a good neighbor.

Wednesday, February 12, 2020

DCF Fair Hearings

The DCF Fair Hearing Unit has created a useful set of links regarding Fair Hearings.


If you already know you want to request a fair hearing, you can now do so using an online docusign form:
I haven't used it yet, so I don't know if it sends a copy to the Area Office or only the Fair Hearing Unit, but it seems as if it should have that capacity.

Their Guide to Fair Hearings is pretty comprehensive and seems to be written in plain English:

Monday, November 11, 2019

Proof of Child Sexual Abuse?

It has been several years since my last case in which a parent was accused of sexually abusing a young child based on evidence of shared pathogens. The one I was reminded about today was the father of a 4 or 5 year old girl who was accused because his daughter was found to have Chlamydia in her throat. Yes, horrible, I know.

The child abuse pediatrician with whom I consulted told me she thought the abuse would be confirmed if father tested positive for the same strain of the bacteria. I was only handling the child custody part of the case, not any criminal charges that may have resulted. My involvement ended quickly when the mother agreed to keep the father away from their daughter while the cases were pending.

I was reminded about it today when the headline Biomarker Diagnoses Deadly Infant Disease appeared in my inbox from the Breaking Science News email from Technology NetworksThe article mentioned in the subject line was about "A diagnostic study of 136 premature infants [that] found that a protein involved in managing harmful bacteria in the human intestine is a reliable biomarker for the noninvasive detection of necrotizing enterocolitis (NEC)."

I haven't had any cases in which NEC was mistaken for child abuse, but a different article at the top of the Top Headlines list caught my attention: Genetic Tools To Explore Zoonotic Chlamydia. A Zoonotic disease is, "an infectious disease that is transmitted between species from animals to humans (or from humans to animals)." www.health.state.mn.us/diseases/animal/zoo/index.html via Google.

Interestingly, the MN article doesn't list chlamydia. But the www.technologynetworks.com write up of the Molecular Infection Medicine Sweden article Targeted Gene Modification in Animal Pathogenic Chlamydia says:
The human pathogenic bacterium Chlamydia trachomatis is the most common sexually transmitted bacterial pathogen worldwide. It is estimated to infect more than 100 million people each year and is a frequent cause of infertility. Moreover, Chlamydia trachomatis also causes eye infections and represents the most frequent infectious cause of blindness in developing areas of the world.
Less widely known is that Chlamydia affects not only humans, but also animals. By causing disease in farm animals, such as in cows, sheep, pigs and chicken, Chlamydia can cause significant economic damage. Moreover, Chlamydia also infects pet animals, such as cats, guinea pigs, and parrots. While the Chlamydia species that infect animals are biologically different from the human pathogen Chlamydia trachomatis, some animal pathogenic Chlamydia can occasionally also infect humans. These zoonotic infections in which the bacteria are transmitted from an infected animal to a human can be severe and life-threatening.
Not knowing to question whether the pediatrician's assertion that father and daughter having the same strain of a pathogen was proof that father transmitted it to daughter, I didn't even inquire if they had any pets or handled farm animals. Similarly, until Attorney Randy Gioia brought a couple of Evidence Based Medicine physicians to speak at the Massachusetts Juvenile Bar Association annual conference a decade ago, I didn't think that there might be scientific evidence to rebut presumptions of causation tendered by the medical witnesses the state had proferred.

Practice note for lawyers: Listen to your clients. Do scientific as well as legal research. Don't easily write off pleas of "But I didn't do anything like that to my child."

Practice note for accused parents: Do scientific research. Insist that your attorney does so as well. Make it easier for them to find the articles, experts, and lawyers who have gone before them and found innocent explanations for conditions that the state has said couldn't have caused the conditions your child exhibited and you know you didn't cause.