Justice vs. Law

Eugene Hickok, Gary L. Macdowell

• Publisher: Free Press
• Year: 2010
• ISBN:
  9781439119884
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

A detailed analysis of a child-abuse case reveals all of the aspects of the judicial system, including the limits of justice, and makes an argument for judicial restraint.

1 AN “UNDENIABLY TRAGIC”
CASE

T he Supreme Court Building sits atop Capitol Hill, tucked behind the Capitol on First Street, Northeast, next to the Library of Congress. In a sense, the Court’s geographic place in official Washington is a metaphor for its institutional role. Beyond the Court there are no more official buildings, no more bureaucracy. To the east, Capitol Hill quietly and suddenly fades away into a depressed and dangerous area of town, more grime than glitz. Sitting as it does on the edge of power, the Court enjoys a certain freedom from the limelight. Unlike the President or Senators or even Representatives, the Justices of the Supreme Court are relatively free from public attention. They wander about the streets unbothered and largely unnoticed; they often dine just down the street at the Monocle restaurant with nary a bodyguard in sight. Yet perhaps more than any other institution in Washington, the Court often touches people’s daily lives in a far more intimate way than the more public branches of the government colossus.

By mid-morning on what was a bright but chilly November day, Attorney Don Sullivan had already arrived at the Supreme Court building, enjoyed a short tour by one of the Court officers, and was gathering his thoughts. Mr. Sullivan had forsaken the big Eastern cities, like Washington, years earlier. After graduating in 1970 from Syracuse Law School, he had established practice in Onondaga County, New York. For a short time he dabbled in local politics. In 1979 he moved to Wyoming because of his love for the Rocky Mountains and the West. By the early eighties, he had a thriving practice in Cheyenne and a reputation as a talented litigator. Indeed, in 1983 he was president of the Wyoming Trial Lawyers Association. Today, however, he would face any lawyer’s ultimate test—presenting an oral argument before the Supreme Court of the United States. It was his first.

The legal team that had been assembled to oppose the arguments Sullivan would present to the justices was also at the Court. Mark Mingo had arrived in Washington from Milwaukee a few days before so that he could rehearse his presentation and huddle with Department of Justice attorneys, who were both sympathetic to his position and familiar with Supreme Court practice. The product of Marquette University Law School, Mingo was a partner in the law film of Simarski & Stack in Milwaukee, a firm with a solid reputation that emphasizes insurance defense litigation, product liability, civil rights, and employment law. His list of clients was impressive: Ohio Casualty Insurance Group, Employers of Wausau Group, American Family Mutual Insurance. Mingo was familiar with the strategy so often employed by attorneys representing clients who were seeking to play upon jurors’ sympathies in order to win huge sums of money. He had developed his own strategies for undermining the arguments about pain and suffering. But he always had his doubts going into trial; no good lawyer wouldn’t.

Mingo harbored few doubts, however, about the soundness of his legal argument in the case at hand. He was convinced his position was correct. More important, he had been able to convince two lower federal courts as well. Still, the Supreme Court had agreed to hear the case, which surprised Mingo. It meant at least four Justices were willing to hear the arguments and were, to some unfathomable degree, undecided. Justices aren’t like jurors. Often, in a courtroom, a good attorney can have the jury eating out of his hand. Good attorneys control the chemistry of a trial. But this was different. This was more like law school. The Justices controlled the chemistry. During an oral argument before the Supreme Court the Justices might interrupt at any time and were known for peppering attorneys with questions, sometimes hassling them, lecturing them. The histrionics that sometimes go on at a jury trial would be put aside. At the high court, a lawyer’s case rests on the strength of his argument and the willingness of the Justices to buy it. It is the ultimate challenge of good lawyering. While passion and sentiment no doubt play a role, to win in the Supreme Court one has to bend the logic of the law to fit the facts of the day.

Whatever anxiety Mingo felt about the task ahead was somewhat assuaged by the confidence displayed by the Justice Department attorney who was to present the government’s argument in support of the Milwaukee counselor’s position. Donald Ayer, at the age of thirty-nine, was a veteran of Supreme Court practice and was quickly becoming a major player in Washington. A graduate of Stanford University and Harvard Law School, since 1986 Ayer had served as principal deputy to the Solicitor General of the United States, the nation’s trial attorney and the individual responsible for presenting the federal government’s position before the federal courts. Prior to coming to Washington he had been a United States Attorney in California. Ayer’s knowledge of the Court was based on more than his experience as an attorney. In 1976 he had clerked for then Associate Justice William Rehnquist. He knew how the Court functioned, how Justices molded their arguments, their sympathies, and their biases.

By half past noon on November 2, 1988, the attorneys who would present their oral arguments in the case of DeShaney, a minor, by his guardian ad litem, et al. v. Winnebago County Department of Social Services, et al., had arrived at the Courtroom. The lawyers were familiar with one another, they knew each other’s arguments, had read and reread each other’s briefs. There was little that Sullivan could say this day that might surprise Mingo, little that Mingo might offer during his presentation that might catch Sullivan off guard. Donald Ayer had digested everything that had been written by both attorneys and the judges who had heard the case in the lower courts. His job today was to offer the government’s position regarding the case, to emphasize the constitutional stakes involved in resolving this particular controversy. He would be brief—he had been given only a few minutes by the Court—and probably would not be questioned by the Justices. Unlike Sullivan and Mingo, he was relaxed.

The courtroom in the Supreme Court Building is imposing. The long, half-hexagonal bench where the nine justices sit catches the attention immediately. The nine justices sit in high-back leather chairs, each custom-made according to the individual justice’s wishes. A small brass plate on the back of each chair identifies whose seat it is. They sit according to seniority on the Court, with the Chief Justice in the center chair. Attorneys facing the bench confront the most senior Justice just to their left of the Chief Justice and the most junior to the far right.

The room is heavy with the air of history and tradition. It is a dignified, a most solemn place. A velvet curtain hangs behind that Justices’ chairs. When the clerk calls the Court to order, the nine Justices suddenly emerge, like black-robed apparitions, from behind that curtain and take their seats. Next to each chair on the bench sits a brass spittoon, an ornament from a long-forgotten era in which oral arguments before the nation’s highest court might go on for days. Attorneys who will present their arguments to the Court sit at long tables directly in front of and below the Justices’ bench. Goose-quill pens and pewter inkwells grace the tables. When presenting their arguments, attorneys stand at a lectern. They do not pace. They direct their argument to the Justices. Each attorney is allowed a set period of time to present his case, usually a half-hour. At the lectern, two lights—one white and one red—warn counsel of the constraints of time. When the white light comes on, the attorney knows there are five minutes left in his allotted time. When the red light flashes, counsel must stop immediately.

Off to the left of the attorneys’ table is a small area set aside for attorneys who are members of the bar of the District of Columbia and who wish to watch oral argument. Behind the attorneys’ table is a larger area set aside for visitors to the Court. Here is where the hordes of tourists sit, as well as interested citizens.

Every case that comes before the Supreme Court is a story of real people engaged in real conflict; each has something to win, something to lose, by being there. The Court does not deal in hypotheticals or academic debate; it long ago refused to offer merely “advisory opinions.” According to the Constitution, the Court sits to resolve only actual cases and controversies. To reach this Court of last resort the issues that have been debated in lower courts must contain unresolved questions that bear upon national policy, questions that pose, in the language of the law, a federal question.

At half-past noon on this November day in 1988, oral arguments concerning the permissibility of random, warrantless drug tests for railroad employees were concluding. Moments later the advocates in the DeShaney case approached the bench. At 12:54 P.M. the clerk calls the Court to order. The Chief Justice, William Rehnquist, speaks:

“We’ll hear argument now in No. 87-154, Joshua DeShaney v. Winnebago County Department of Social Services.”

At the invitation of the Chief Justice, Don Sullivan rises to address the Court. After speaking the words every attorney addressing the Supreme Court has uttered when commencing oral argument—“Mr. Chief Justice, and may it please the Court”—Sullivan begins:

We are here contending today not for a broad constitutional mandate to the states to do all good things to all people, nor do we contend for a broad constitutional duty to prevent harm or all sadness, nor do we contend for a broad constitutional duty to protect all children in all cases.

Justice Byron White mumbles something, which Sullivan has a difficult time deciphering. Ruffled a bit, he returns to his well-prepared argument:

We do suggest that there is one and only one exquisitely narrow circumstance where there is an affirmative duty …

Sullivan’s goal is to lay out the argument that the Constitution’s Due Process Clause, contained in the Fourteenth Amendment, should have protected Joshua DeShaney from his father. Before he can begin to mount the argument, the Chief Justice interrupts him and asks sarcastically: “You derive all of this from the language of the Due Process Clause?” The debate begins.

Far away, in Wisconsin, nine-year-old Joshua DeShaney sits, severely retarded, close to brain dead, the victim of his father’s vicious beatings. At the age of four, young Joshua had had an IQ of 114. Institutionalized because of the severity of his condition, he now has the mental capacity of less than a twelve-month-old child. Today the Supreme Court is hearing the tragic story of poor Joshua.

Joshua DeShaney was born to Melody and Randy DeShaney in Cheyenne, Wyoming, in 1979. Randy DeShaney was a troubled man. Having completed his enlisted service in the Air Force with an honorable discharge, he had difficulty holding down a job. Both he and Melody were unhappy in their marriage. They agreed they had married too young. Perhaps that was why the couple were drifting apart. Gradually it became apparent to both that a divorce was inevitable. Randy began to seek comfort in alcohol. He and Melody were divorced in 1980 when Joshua was less than a year old.

Melody and Joshua traveled to Phoenix where she found employment. Randy moved to Wisconsin to be close to his family. The pressure of managing two jobs and taking care of Joshua became overwhelming for Melody. She and Randy agreed that Randy should have custody of the child. And so Randy took Joshua and settled in the town of Neenah located in Winnebago County, not far from Oshkosh.

Almost immediately, Randy met and married a woman, Chris. The marriage soured, and the couple quickly divorced. Randy became associated with rumors of excessive drinking and the use of street drugs. And so by the age of twenty-seven DeShaney could look back on a history of alcohol abuse, disorganized family life, sporadic employment, meager finances and two failed marriages plus a growing record of run-ins with the police. There was something else going on that almost nobody knew anything about. Almost as soon as Randy DeShaney had arrived in Neenah, he had begun abusing his little son Joshua. It was his way of dealing with the frustrations of life and the agitation created by a child.

The rumors of abuse first surfaced in 1982. During the divorce proceedings that ended the second marriage, DeShaney’s second wife mentioned to her attorney and to police that her husband had abused Joshua. According to the second Mrs. DeShaney, Randy had “hit the boy causing marks and [was] a prime case for child abuse.” The police then notified the Winnebago County Department of Social Services. Wisconsin law outlines specific policies to be followed in cases where children are believed to be endangered. A child protection unit was charged with following up on the former Mrs. DeShaney’s allegations. The child protection unit, a special division of the Department of Social Services, is charged with identifying and protecting endangered children. In this case, it proceeded to contact Randy DeShaney and to interview him about the allegations. DeShaney denied the assertions. Although procedures call for the child protection team to see the child when abuse is suspected, on this occasion it did not see Joshua. Apparently convinced that Mr. DeShaney was telling the truth, or at least lacking any compelling evidence to the contrary, the unit left the DeShaney residence. The investigation ended with the interview, and the case file was closed.

Approximately one year later, in January 1983, Joshua was brought to the Theda Clark Medical Center in Winnebago County by his father’s live-in, girlfriend, Maria DeShaney, the ex-wife of Randy’s brother. Suffering from a number of bruises and abrasions, the child was admitted to the hospital. The doctor who examined Joshua, Dr. Robert Gehringer, immediately suspected child abuse and contacted the Department of Social Services. Officials at the DSS then sought and obtained an order from Wisconsin juvenile court placing Joshua in the temporary custody of the hospital.

For three days a child protection team worked together to determine the extent of Joshua’s injuries and what had caused them. Dr. Gehringer was joined by a clinical psychologist, Dr. Donald Derozier, and two employees of the Department of Social Services, Ann Kemmeter, a social services caseworker, and her supervisor, Cheryl Stelse. Tom Hoare, a social worker employed by the Theda Clark Medical Center, assisted the team. Keith Nelson, a detective with the Neenah police department, worked with John Bodnar, assistant counsel for Winnebago County, to determine whether or not evidence existed to pursue a claim of child abuse.

After three days of investigation and analysis, the team assembled to decide whether or not to pursue the case. Dr. Gehringer felt strongly that Joshua had indeed been beaten by someone— either his father or his father’s girlfriend. But the attorney for Winnebago County seemed unsure of the findings of the doctors and the social workers. According to Mr. Bodnar, the evidence was insufficient to warrant pursuing a child protection action at that time. Joshua would have to be returned to the custody of his father. Ann Kemmeter agreed with counsel’s decision and recorded her thoughts in her case file:

I therefore recommend that the temporary physical custody order and any further allegations against this family be dismissed at this time, but will refer it back into Court should there be any further injuries to this child of an unexplained origin.

Bodnar was uncomfortable with the decision to return the child but felt compelled to abide by Wisconsin law. Worried that Joshua might be subjected to mistreatment, Bodnar drafted an agreement to present to Randy DeShaney in an attempt to protect the child against further injury. The terms of the agreement called for Randy DeShaney to seek counseling, for Joshua to be enrolled in the Head Start Program so that the Department of Social Services could monitor his condition, and for Maria, the live-in girlfriend, to be removed from the DeShaney residence. The child protection team presented Randy with the agreement, and he said he would work with the team to ensure that the conditions of the agreement were met. Young Joshua was returned to his father. Within three weeks, the county court had closed the case.

One month later Ann Kemmeter, the Department of Social Services caseworker was notified that Joshua had been admitted to the hospital again and that child abuse was again suspected as the cause of minor injuries. An informal investigation conducted while Joshua was at the hospital had failed to uncover conclusive evidence that child abuse had taken place, however, so no formal action was taken by Kemmeter or her department.

For the next several months Ann Kemmeter visited the DeShaney home regularly in an attempt to determine the degree to which the terms of the agreement were being met and to check on the condition of little Joshua. In May 1983, during one of her visits, she noticed a bump on Joshua’s head. When asked about it, Randy DeShaney said the child had fallen in the bathroom and hit his head. The bump was not severe, but it did cause Kemmeter to continue to be suspicious. Joshua at this time had not been enrolled in Head Start, and Kemmeter noted that in her report as well. In addition, Maria, the live-in girlfriend, continued to reside at the DeShaney home, in violation of the agreement.

In July 1983 Kemmeter visited the DeShaney home again. Marie was still residing there, Joshua was still not enrolled in Head Start. A few days later a Head Start worker who had been sent by Kemmeter visited the DeShaney home and found four-year-old Joshua alone in the house. Mrs. Kemmeter was notified immediately, but no action was taken by the Department of Social Services.

In September of that year, Kemmeter visited the DeShaney home but found it empty. A neighbor informed her that the family had left for the hospital because Joshua was having a problem with his eyes. Later she learned that Joshua had been treated at Theda Clark Medical Center for a scratched cornea and released.

Visiting the DeShaney’s home in early November 1983, Kemmeter noticed a scrape on Joshua’s chin. She thought it looked a bit peculiar and wrote in her files that she felt it might have been a cigarette burn but that she could not be sure. Later that month Joshua was again admitted to the hospital and treated for a number of minor injuries, including a cut on his forehead, a bloody nose, a swollen ear, and bruises on the backs of both of his shoulders. Randy and Maria told the doctors and nurses attending to Joshua that he had fallen down the stairs. Ann Kemmeter was notified by the hospital but no action was taken by the Department of Social Services. On her next several visits to the DeShaney home she was told that young Joshua was ill and could not see her. She protested but took no action.

On March 7, 1984, Ann Kemmeter visited the DeShaneys but was told that Joshua was again ill and she could not see him. According to Mr. DeShaney, Joshua had fainted in the bathroom and was resting. He gave no reason for his son’s fainting, and Kemmeter did not force the issue. The next day Joshua DeShaney was brought to the emergency room at Mercy Medical Center. He was in a deep coma, with extensive old and new bruises over most of his body. Dr. B. F. Kayali and Dr. Marc Letellier rushed him into surgery in an attempt to save his life.

The surgeons found evidence of earlier severe head injuries. Massive pools of yellow liquid, the byproduct of older intercranial hemorrhages, convinced the doctors that Joshua had sustained several serious head injuries over a period of time. The yellow liquid suggested to them that old blood clots had been in place long enough for the red blood cells to have chemically decomposed, and only the yellow bilirubin element remained. The membrane covering the brain was stained blue as a result of the standing and pooling of blood in the brain and skull. The doctors were convinced that Joshua had suffered serious and permanent brain damage caused by physical trauma to the head over an extended period. He had suffered what Dr. Kayali described as “an acute, extensive subdural hematoma.”

In addition to the injuries to Joshua’s head, the child had severe bruising over 50 to 75 percent of his thighs and buttocks. Although Joshua had suffered no broken bones, his body was badly beaten and his brain had been severely damaged. Both Kayali and Letellier doubted he would recover.

According to Joshua’s father, the child had fallen down the stairs when he was sent down to the basement “to get a hammer for me to pound a nail.” After he fell he was screaming and seemed out of control, so DeShaney had picked Joshua up and shook him and slapped his face in order to “bring him around.” DeShaney admitted to police at the time that he may have “shaken Joshua too hard, causing his injuries” but he did not admit to abuse. When asked about the bruises on Joshua’s thighs and buttocks, DeShaney responded that “Joshua usually needed spanking” and that “Joshua is a child that usually needed discipline.”

Both Kayali and Letellier felt Joshua’s injuries were inconsistent with a fall and that the child’s overall physical condition suggested to them that he had been the victim of ongoing abuse for some time.

At a preliminary hearing before Judge William Carver, held in early June, Randy DeShaney was charged with injury by co...

Table of contents

• Cover Page
• Title Page
• CONTENTS
• PREFACE
• 1 AN “UNDENIABLY TRAGIC”CASE
• 2 JOSHUA’S QUEST FOR JUSTICEAND THE LOGIC OF THE LAW
• 3 MAY IT PLEASE THE COURT
• 4 DOING JUSTICE IN THE NAMEOF THE LAW
• 5 CONSTITUTIONAL MORALISMAND THE POLITICS OFADVICE AND CONSENT
• 6 HOW GREAT A REVOLUTION
• 7 EPILOGUEJUDICIAL SUPREMACY ANDTHE DECLINE OF POPULARGOVERNMENT
• NOTES
• ACKNOWLEDGMENTS
• CASE INDEX
• INDEX