When Parents Fighting Back Gets Futile

Via the very nice folks in my Facebook feed, I come across an article by Slate's Hannah Rosin describing the term "free-range children" and the dangers parents of such children face for raising their children in this diabolically devious fashion.  In case you're unfamiliar with the term, "free-range children" are kids with the freedom to walk to and from specific places unsupervised.  Advocates of this shockingly dangerous counter-culture movement even place cards in their children's pockets saying "I am a free-range child.  I am not lost."  Parents in this delusional worldview believe the outdoors isn't a terrible place for a child, that our environment is a lot safer than we're led to believe, and that kids need to learn to go places by themselves for the sake of understanding calculated risks.

If you can detect the snark in my tone, then you're off to a good Monday morning start.  Ten to fifteen years ago, the very thought of putting a card in a child's pocket to let a governmental official know he or she wasn't lost--merely exploring--would prompt many parents to seek professional mental health .  Yet now, for some reason, we think the overbearing level of supervision equates to "best parenting practices," and judge accordingly.  We justify this attitude by telling ourselves the world is a different place, and that no one can be trusted, and that life is far more dangerous than before.

But is it really?  In most neighborhoods, crime is down and the dangers of allowing your children outside unsupervised are minimal.  The most danger many children would face today is getting lost.  Despite this, despite the fact we have homeland security SUVs in our streets and armored personnel carriers in our police garages, we tell ourselves it's more likely than not an unsupervised child will get kidnapped or worse.  Though we think ourselves rational beings, we consider "best parenting practices" to hover and protect our child from every perceived danger.  Failure to do so is negligence, and punishable by removal of your children from your home while you work extensive "permanency plans."

None of this is a surprise to us who work in the justice system.  There is no genuine outrage from those of us who cut our teeth in juvenile court, and who continue to serve in that field despite low pay and no respect from court-appointed clients.  This is the system society allows, and it's the system we perpetuate "for the good of the children."  We who work in the juvenile justice bar have said this was a problem for some time, and it's a sad moment of schadenfreude to see people that condemn parents for taking medication legally prescribed by a doctor cry in anguish over having their right to leave their kids alone stripped from them in the same fell stroke.

I'm a fan of Alex Jones's "Info Wars" programs for the entertainment value they provide for an afternoon following time at court or in the office.  He is a fan of telling listeners that problems are far more worse than he actually "reports" during his hours on-air, and preaches that our ideological house is on fire, and only one or two people are standing there with bailing buckets trying to extinguish that flame.   I think his analogy is very much relevant here.  We've allowed ourselves to stand in the burning flames of the house that is our institution of parenting for too long, telling each other everything's fine as the burning cinders of one's right to raise children as he or she sees fit sting our faces.  Now we're in the dead center of a full on roaring bonfire that is the very right to parental autonomy, and only a few professionals are on the outside with bailing buckets yelling desperately for parents to leave the building.

"Parents, we need to fight back" reads the header of Rosin's article.  This is something attorneys have told parents for years, and yet with every single child in delinquency court being urged to take a plea, every single custody hearing where parents bow to the Department's wishes, and every single time a magistrate orders compliance with an alcohol and drug assessment, that fight slowly dies in parents.  I'd like to think the right to determine whether your children should be allowed to walk between two points unsupervised is the final tipping point where we push back and say "no more" to the State, but at this point in the game I'm just not sure that's even possible.

Only Ineffective When The Judge Won't Let You Do Your Job

Through the magic that is my aunt sending me press clippings, I learned of the story you're about to read.

It takes one set of stones to argue ineffective assistance of counsel in a murder trial when the ineffective counsel is you.  It's another matter entirely when the argument is a judge rendered you ineffective.

I don't honestly expect anything less from Herb Moncier--he's a guy who can talk his way out of nearly anything with optimal results.  This is the same lawyer who argued through a contempt charge that he was sleep deprived due to his CPAP machine not working properly and therefore talking out of turn in court.  Herb is a good attorney, though for precisely the same abilities.  This argument is one of his more novel ones, though, and I think it bears some review.

One of Herb's recent cases involved a kid who ended his father's life with a shotgun.  During trial, the defense produced an expert who stated the shotgun blast that killed daddy could have potentially been fired as an accident or in self defense.  This was a crucial component to the defense case, and a theory on which Herb was willing to rest his hat.

The judge, on the other hand, thought it hogwash and dismissed the expert's point promptly.  He instructed the jury to ignore any theory of the case that allowed for accident or self defense and proceed accordingly.  The kid had said to police that he'd shot his father and that was that.  According to Herb, that ruling forced his trial strategy to adapt on the fly, and left him in a position where he didn't know how best to represent his client.  Trials have rules, you see, just like a sport, and when the referee in a sport doesn't follow the rules the players don't know how best to proceed to win the game.  Since the referee in a game involving this child's life as first prize didn't follow the appropriate rules, then the game wasn't fair and the attorneys didn't know how to proceed.  This limited Herb's effectiveness, and now his client his serving life in prison.  Herb's remarks are remarkably clear on the subject:

Participating in a trial is like a sporting event that has rules.  When rules aren't observed, results of the event are undetermined...The accused is entitled to the effective assistance (of counsel) at trial.  That is a cornerstone of the law.  The accused was not provided with the effective assistance of counsel...I convicted this defendant.  He is serving a life sentence because of what I did.  The blood's on my hands...I was not only given defective tools, but I was given tools that misled me when I committed myself to that course of action.  I ended up looking like a fool, but more importantly I convicted [my client].  I did what I did based on what was given by the State of Tennessee...I was unable to present a complete defense.  I made the State's case.

I tried to decide: Do I call their expert to the stand?  You made it clear that nobody's going to come into this courtroom and say it was an accident.  That left me on a tightrope.  It adds up to an unfair trial.  That is why I implored you to let us start over again and play by the rules.

Another point of contention in this matter was a plea deal that according to defense counsel should have been left on the table but was not.  The entire trial mounted into a situation where the defense team could not accurately pinpoint the appropriate nature of the offense (i.e. was it really premeditated), or even establish a degree of culpability.  Once the plea was off the table, and the judge issued his ruling on whether the defense's accident/self-defense theory would be allowed in, then the game was up because the referee had turned a blind eye to his own rule infractions.

The argument made sense, and I can see how Herb might have been put in a pickle with this turn of events.  Trials require careful preparation, especially when major liberties or one's life is involved.  You develop a game plan through countless hours of work, and then you attempt to execute it.  When a judge says or does something that completely throws your game off, then you draw a blank.  You're now calling audibles for the rest of the trial, and you may have to go home that night and rethink your entire strategy.  A ruling that eliminates one prong of your strategy could arguably make you ineffective for those purposes.

This hearing occurred in November of last year, and I have yet to find anything on a ruling for this trial.  When I do, I'll come back and update this post to let you know how Herb did.  Regardless, my respect for Herb Moncier has increased for making an argument like this to a trier of fact: You screwed up, and because of that I couldn't do my job.  That is representing a client.  That is suborning your personal interests.  And that is how you play the blame game right.