Is there a due process right to a competent investigation, conducted with integrity?
One would assume that 'integrity' is an implied part of any investigation worthy of being called competent, but taking such things for granted is usually a mistake.
Good faith is an implied term of any contract, but how often is that breached.
The Supreme Court is taking up the case of a woman who went to the police station asking for help for her three abducted children after calling several times. Police told her they were too busy. When the husband showed up at the police station with the bodies of the three kids in his pickup, and pulled a gun, police shot and killed him. The mother sued the city and won. The city of Castle Rock's appeal was taken up before the high court in an order granted a day or two ago.
The case is Castle Rock, Colo. v. Gonzales, No. 04-278, where Jessica Gonzales is suing the city of Castle Rock for allegedly failing to enforce a restraining order that barred her estranged husband, Simon Gonzales, from visiting their three children except at specified times.
Did the city owe the citizen protection, i.e., a competent investigation of her complaint that her husband had apparently violated the stay-away order and her kids had disappeared?
In an earlier case, with William Rehnquist, C.J., writing for the court, DeShaney v. Washington, the answer was no, essentially.
There, Joshua, a child in foster care, had been beaten mercilessly and left brain damaged for life.
"Poor Joshua," lamented Justice Harry A. Blackmun in a sad, memorable dissent. What a good man.
When government takes on the task of protecting children, it should be held accountable when it ignores the danger signs brought to its attention and should pay for its mistakes.
The Court has a chance to revisit this terrible decision. Terrible for immunizing official incompetence, negligence, hard-heartedness, willful ignorance, recklessness, inefficiency, in short all the abuses of government that manage to take a toll on the weakest and most defenseless among us.
Terrible, for example, for children in foster care and terrible for citizens needing the protection that the state seems to have promised, like the mother of the three slain children.
An account of the taking-up of the case by the Court appears here.
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In the criminal context, incidentally, there is not any broad overriding right called a "due process right to a competent investigation," although it would be useful to have one to abort witch-hunts in the making, such as the outbreak, mania actually, of false children's accusations of the past quarter century, that has finally seemed to have calmed down.
There the problem was distinguishing the many true cases from the many false cases. Since few Child Protective Service offices and police Juvenile units seemed to know how to do that, they treated them all children's accusations as true, unless and until proved unfounded.
Do you know how difficult it is to prove a child's accusation to be unfounded? Even the recantations are disbelieved.
It seems almost miraculous to prove a child's accusation unfounded.
A perfect alibi would be one way, but those don't grow on trees. Especially when a child has an adult confederate, or backer, usually with an interest to grind, such as a bitter parent intent on destroying the other parent, it is exceedingly difficult to achieve proof of unfoundedness, i.e. that that accusation is false.
For there is always the interested parent to keep it going. Usually this is the custodial parent hell-bent on keeping custody. The best way to do that, of course, is to blacken the other parent with a molestation allegation.
Not without reason are such accusations called the 'nuclear weapon' of divorce proceedings.
The reversal of the rational process presumption that the proponent of an accusation has the burden of proving it, not the other way around, which puts the burden of proof upon many a hapless victim who does not know and cannot explain why he's been accused, has resulted in many a costly nightmare for an innocent accused.
In criminal investigations, rather, we have individual due process and other rights that guarantee the same thing, such as rules requiring Miranda advisement before questioning, speedy arraignment, affording proper discovery, non-destruction of evidence except in the normal course, independent retesting. We also have rules against involuntary confessions, improperly obtained evidence, and the like.
Added up, they amount to as close to a "due process right to a competent investigation" as our system affords or is likely to afford.
Trials frequently become arenas for contesting the competency and integrity of the official investigation, and the conclusions to be drawn therefrom, as the celebrated O.J. Simpson and Scott Peterson murder trials illustrate.
In Salem, 1692, interestingly, the innocent neighbors, convicted and hanged, some nineteen of them, had been afforded due process of law, such as it was then, including trial by jury, except where they'd pled guilty (falsely) to avoid hanging. A lot of people will confess to avoid hanging, as most hangmen are no doubt aware, but don't often care.
The problem with Salem is the problem that Richard Feynman calls "Cargo Cult Science," in the chapter bearing that title in, "Surely You're Joking, Mr. Feynman."
Feynman describes the South Sea Islanders in the Pacific Campaign in WWII who wanted the American planes to land with all sorts of goods after the war moved north. So they donned cocoanut shell earphones and went through the motions of signalling planes in to land, hoping to make them appear as if by magic. Unfortunately for the islanders, a Stone-age people, no planes appeared.
Feynman says they did everything right according to what they'd seen, but were missing something he recommends to investigators in all areas: utter scientific integrity, which he defines as leaning over backwards to ask what you might be doing wrong.
That's what the islanders missed, what the Social Services Department in Joshua's case missed, and the police department in the murdered children's case recently agreed to be taken up missed.
How bad would it be to impose on police and sheriffs departments everywhere a duty to come up to an ascertainable standard of competence and integrity.
Standards would have to be recognized in every field. Currently that seems to be lacking.
Costly training would be required.
Liability insurance and liability claims would add to the cost.
Government would have to keep its promises (!).
It would represent a major step up from the Dark Ages in which we still reside. I'll bet you didn't know that we still resided in the Dark Ages, did you. Well, now you know what it was like, and the sooner we put it behind us, the better.
I say, "Come up, and hang the cost." It's more costly to persecute and imprison the innocent.
That's what the Court didn't do in DeShaney, but has a chance to rectify in the new Castle Rock v. Gonzales case.
The fight on the Court will be between those who usually favor protecting government from liability claims for breach of legal and ethical duty or from governmental malpractice, on one side. That would be the conservative wing, I should think. But now the Chief Justice, the G-man par excellence, is quite ill, alas, and may not be able to come back soon or at all. I wish him well as he undergoes the ordeal of chemo and radiation treatment at age 80.
The more liberal wing (we don't have a Liberal wing of the Court), make that slightly less conservative wing (Justice Breyer wrote the frequently draconian U.S. Sentencing Guidelines, for goodness sake; how liberal is that?) might be willing to hold government feet to the fire. But Castle Rock involves LOCAL government, and you know how little the Court seems inclined these days to impose expensive burdens on State Government. The Court seems much more likely to try to PROTECT local government from unanticipated cost and liability exposure.
All the cities and counties in the U.S. are going to be chiming in on Castle Rock's side in this case.
And who is going to take the side of Mrs. Gonzales and the Poor Joshua's of the world?
I'll be interested to see who submits amicus curiae briefs in support of Niobe, and of Isaac when the Lord, this time, failed to intervene in his father's sacrifice.
Niobe saw the sacrifice of her fourteen children, seven sons and seven daughters, according to Greek mythology. Mrs. G., -we have no information that she wasn't unassuming and humble - , lost all three of her children.
Niobe, according an online myth collection here, unlike Mrs. G., was an overly proud and haughty woman, a daughter of Tantalus who had dined with the gods. Niobe, at a civic festival devoted to the goddess Latona, asked why the people should honor this unseeable goddess when they could, instead, honor her, Niobe, all decked out in purple and gold.
The gods, Latona in particular, heard this diatribe, and resented Niobe's seeming to questioning Latona's divinity. Diana the Huntress also heard, and loosed fourteen arrows, all finding their mark in Niobe's children. Niobe was lain low and cried. She was turned into a stone mountain from whose eyes pour forth a stream of tears.
"Spare me one, and that the youngest! Oh, spare me one of so many?!" she cried; and while she spoke, that one fell dead. Desolate she sat, among sons, daughters, husband, all dead, and seemed torpid with grief. The breeze moved not her hair, nor color was on her cheek, her eyes glared fixed and immovable, there was no sign of life about her. Her very tongue clave to the roof of her mouth, and her veins ceased to convey the tide of life. Her neck bent not, her arms made no gesture, her foot no step. She was changed to stone, within and without. Yet tears continued to flow; and, borne on a whirlwind to her native mountain, she still remains, a mass of rock, from which a trickling stream flows, the tribute of her never-ending grief.
The story of Niobe has furnished Byron with a fine illustration of the fallen condition of modern Rome:
"The Niobe of nations! There she stands,
Childless and crownless in her voiceless woe;
An empty urn within her withered hands,
Whose holy dust was scattered long ago;
The Scipios' tomb contains no ashes now;
The very sepulchres lie tenantless
Of their heroic dwellers; dost thou flow,
Old Tiber! Through a marble wilderness?
Rise with thy yellow waves, and mantle her distress."
Childe Harold, IV.79
"The Niobe of nations!"
Rita Mae Brown, in her book on writing, uses Byron's personification of Rome as Niobe to call attention to the use of classical allusion for expressive purposes economizing on words by drawing on a common familiarity with the literature justifying the use of such allusion. Our common education, unlike the British of Byron's day, no longer stresses that body of work. The Framers, of course, were well familiar with it.
That's okay, we have our own allusions, not to mention illusions, based on our own experience.
Diana's arrows, that killed all of Niobe's children as the result of her hubris or overweening pride that tempts the gods, is said to have been seen by the Greeks as metaphor for pandemic, or at least epidemic disease.
And you thought this was just a Con-Law class.
Con-Law covers the world, you understand...