Tuesday, July 14, 2009

African-Americans lose the presumption of innocence in criminal trials

Based upon past acts and conviction statistics, the US Supreme Court has ruled that states may now limit the presumption of innocence in criminal trials to whites only. This reversal of hard fought for equal rights has outraged many in the civil rights and legal communities. Well, it would if it was true. I will get back to that story towards the end but before that I want to speak about Shared Parenting.

Often times new terms or concepts are surrounded by misconceptions. We have all heard of the “Patriot Act” but without knowing what is actually in the law you may be under the false impression that it is something that would have actually gained the approval of Patrick Henry. Likewise there are many misconceptions about Shared Parenting and Shared Parenting legislation.

About.com gives this definition of Shared Parenting:
“Shared parenting refers to joint physical custody, where both parents share approximately equal parenting time and are equally recognized by the law as the legal guardians of their children.” This definition should provide readers with a rather clear understanding of the term.

In April of 2007, Michigan State Representative Glenn Steil, Jr. introduced House Bill 4564, which would require shared parenting in all cases except those situation where either parent is deemed unfit, unwilling, or unable to care for his/her children. The bill was referred to the House Family and Children's Services Committee on April 5, 2007.

In January of 2009, Indiana State Senator Dennis Kruse introduced Senate Bill 560, which would require judges to presume that both parents would maintain custody of their children and have nearly equal parenting time unless they were deemed unfit, unwilling, or unable to care for his/her children.

Much confusion about Shared Parenting comes from the differences in application and result. Shared Parenting is a result where parents share in the decision making for their child and also have parenting time with them in a near equal ratio to each other or the time spent with their children pre-separation. Presumptive Shared Parenting is what is being sought as a mandate for judges. That is, judges will be required to put aside prejudices, personal financial interest and assumptions about genders and presume that both parents had equally parented the children prior to separation.

Presumptive Shared Parenting would have a dramatic effect in child custody situations. Judges would be required to order near equal parenting time unless some exceptions were met. The most significant portion of Shared Parenting legislation is the requirement that judges issue Findings of Facts and Conclusions of Law when there is a deviation from the presumption. This will provide a legal and factual basis for a custody order rather than a judge's assumption that 'mothers make better parents'.

Opposition to Presumptive Shared Parenting comes primarily from those parents who abuse children and don't want them having significant time away from that parent or the household where the abuse could then be detected or exposed. Another significant factor in opposition is the financial impact. Unequal division of responsibility for the children often results in a child support payment order. This 'transfer of wealth' is commonly known to not be used for the support of the children and through Title 42 Section 666 of the United States Code judges and prosecutors actually receive Social Security incentive payments for issuing and processing child support payments.

To put presumptive Shared Parenting into perspective I will now get back to what I opened with. In using race and the criminal courts as an example. I hope to bring forth a simple to understand analogy to the gender issues faced by fathers in the civil courts.

Imagine a situation in which two people are arrested for the same crime and are set for trial. One is African-American and the other is white. The jury for the white defendant is given these pattern instruction from the US Seventh Circuit;
“The defendant is presumed to be innocent of [each of] the charge[s]. This presumption continues during every stage of the trial and your deliberations on the verdict. It is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty as charged. The government has the burden of proving the guilt of the defendant beyond a reasonable doubt.
This burden of proof stays with the government throughout the case. The defendant is never required to prove his innocence or to produce any evidence at all.”

The jury for the African-American is then given these instructions;
“The defendant is presumed to be guilty of [each of] the charge[s]. This presumption continues during every stage of the trial and your deliberations on the verdict. It is not overcome unless the defendant presents evidence in the case that convinced you that the defendant is not guilty as charged. The defendant has the burden of proving his innocence.
This burden of proof stays with the defendant throughout the case. The state is never required to prove his guilt or to produce any evidence at all.”

Think of the outrage amongst the civil rights and legal community if that situation were to occur. If you are old enough or have sufficient knowledge of America's past then you will already know that this was the case at one time although not in the literal sense.

There wasn't such an actual jury instruction but there was the perception amongst jurist and jurors that when an African-American was arrested that he probably did it. There were times that a trial was actually seen as an impediment to justice. In 1930, at the Grant County Jail in Marion, Indiana where three young black men were held on charges of killing a white man and raping his girlfriend, a large mob estimated at 2,000 gathered seeking 'justice'. Before they could be tried Thomas Shipp and Abram Smith became the last confirmed lynching victims in the northern states. The Civil Rights Act of 1964 helped to bring about a presumption of racial equality and opportunity.

This is not unlike what occurs during child custody proceedings. Two parents enter the courtroom, one male and the other female. Although considered equal by statute, which says there is no presumption favouring either, that simply is not the case. The bias or prejudice of judges is apparent. It is as though the mother is told that there is a presumption that she is the fit parent and should have custody of the child(ren). The father appears to be on the opposite side having to present evidence to show why he should be considered fit or why the mother isn't.

Presumptive Shared Parenting would do for gender what the Civil Rights Act did for race. Both parents would go into court with the presumption that they are both fit parents for equally sharing custodial responsibilities. Neither would have to prove fitness to have custody. Judges would be required to order joint legal custody and set a physical custody arrangements that would provide nearly equal time with each parent. Although judges may still have prejudices or bias against fathers the change from a general judgment finding, where no reason must be given, to one where Findings of Facts and Conclusions of Law must be articulated by the judge would quell those biased rulings.

If you don't object to people walking into the courtroom and being considered entitled to equal due process based upon race then you shouldn't object to it based upon gender. Those who oppose equal rights for children and father's are no different than those who would tie a rope over a tree branch.

Stuart Showalter

Indiana Shared Parenting

1 comment:

Michael J. Murphy said...

This is so well stated and so clear I am going to steal it from you (metaphorically speaking) and use your example as a preamble in my upcoming trial which will be presided over by a rookie judge.