Wednesday, December 15, 2010

Child welfare and the 4th Amendment (cont)

As noted in the previous post, one side of the argument in Greene v. Camreta is that if child abuse investigators are restrained by the 4th Amendment (the 14th Amendment is also an issue in this case), all the control will be held by the perpetrators, especially if the suspicion implicates parents for either the suspected abuse or keeping it hidden. This point of view falls prey to the mistake that suspicion equals fact. It also hails to past misconceptions--which have not been put to rest--about child sexual abuse (in particular) and how children disclose abuse. Prosecutorial history of child sexual abuse includes the legal--and human--disasters that resulted from the McMartin preschool accusations, the Scott County (MN) mass sexual abuse allegations, and many others. Some made headlines across the nation, some did not. Although research has debunked some of the myths used to prosecute these cases, don't assume the myths have been discarded altogether.  One of the tragedies of these cases is that some children, whose "recovered memories" of abuse turned out to be false, remain in fact afflicted by those false memories as they grow up. The implanted memory of abuse is as damaging as a real one. Another side of this coin is the phenomenon of false confessions by young people accused of crimes.  Add to that research into the potential flaws in witness testimony. Constitutional protections are a good thing, because they can help ensure a measure of clarity amidst the fog. They protect us all.

In North Dakota., in 2009,  142 reports of alleged sexual fondling of children (the type of sexual abuse investigated in the Oregon case) were investigated. Of those, 35 were confirmed--slightly less than 25% of children involved. If all had been investigated in the same manner as the Oregon case, 107 children would have been isolated and interrogated by authorities, removed from their families, and subjected to intrusive physical examinations--complete with digital cameras. How many actually were investigated in this fashion, we don't know. But these children, and their families, are a side of the equation we easily fail to consider.

The North Dakota Attorney General's office, which signed a states' amicus brief siding with the state of Oregon in the federal case, certainly failed to consider. On June 1, 2010, the office received an invitation to join the brief, written by an assistant attorney general in Arizona. The invitation was ignored for 4 weeks (the office was, perhaps, too busy getting ready to join a different federal case, the one filed by states seeking to overturn Obama's healthcare reform legislation, claiming it is unconstitutional). The chief solicitor in the office came across the email invitation when he returned to the office after an absence. Within 70 minutes, he had conferred--so to speak--with a colleague and the Attorney General, Wayne Stenehjem, and the decision was made to join the states' amicus arguing against fundamental civil rights for children and parents in child abuse investigations. What kind of "conferring" took place? A total of 5 emails and 46 words. Neither the two staff attorneys or the Attorney General had read the announcement before, and it is apparent in the emails none read the decision the day they accepted the emailed invitation (the brief had to be filed the following day, and if they did not act fast they would miss the chance to weigh in).

Dawn Williams, the Arizona attorney who wrote the brief, also asked for information from state attorney generals. She asked for information about state laws or policies relating to joint investigations by child protective services and law enforcement, limits on multiple interviews, information-sharing among agencies, and rules pertaining to interviews conducted in schools or other public settings. The AG's office did not include this information, nor did they contact the state child welfare director for input or information about current policy and practice. The decision to join the brief amounted to posturing, period.

Here's the discussion and deliberation within the AG's office about a Supreme Court case:

June 28, 2010

9:49 Doug Barr to Jon Byers
"I have been out of the office. Have you seen this and had the chance to review? If not, can you please do so today?"
10:11 Jon to Doug
"I had not review[sic] it, but I did this morning. Yes we should join. We have a statute that authorizes the interview of kids at school without parent consent. The Ninth Circuit is wrong yet again."
10:40 Doug to Wayne Stenehjem (ND Attorney General)
"Can ND join? I will forward you the brief in another e-mail"
[note: The brief was not in any of the email attachments. Arizona was probably still writing their brief when the June 1 announcement was sent out. The information attached to the emails consisted of  the Arizona assistant attorney general's talking points only.]
10:41 Doug to Wayne
"FYI. The deadline is tomorrow."
10:59 Wayne to Doug and Jon
"Yes, North Dakota should join."

In October, Tara Muhlhauser, ND director of Child and Family Services, was contacted to find out if the AG's office had contact with DHS in regard to this issue. (Previously, Tara Muhlhauser had noted to me in an email that her agency was aware of and monitoring the 9th Circuit decision. The AG office emails were provided in a response to an open records request for copies of all records pertaining to the amicus decision, including correspondence, emails, and memos with other state agencies/officials. The only records provided in response to the records request were the Arizona announcement--disseminated by the national association of state attorneys general--and the emails, along with announcement as an attachment, shown above--plus a final email directing a staffer to prepare a short letter to Arizona to add Wayne Stenehjem's name to the amicus.) Tara's response:
"I think this question would be better positioned to the Attorney General, as I do not know what they considered when signing on to this amicus brief.  My experience of working in that office is the issue is very thoroughly considered when a decision to sign on to an amicus brief is made."  Now we know what "thorough" means in the business of state v. families. 

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