Tuesday, May 9, 2017

Preparation, Experts, Trial Procedure and Risking your Parent-Child Relationship in a Custody Hearing

This past weekend as I took a respite from outdoor activities while the temperature plunged toward the freezing mark I watched the movie The Judge which I had received a day prior. A scene in this movie stimulated my thoughts as to the potential negative repercussions of not preparing one's self and becoming informed before advancing a position. Particularly as I have seen it played out in child custody cases.

The movie centers upon a sitting judge [Robert Duvall] who, apparently unbeknownst to him, strikes a cyclist with his vehicle while driving home one rainy evening. When he is discovered as the perpetrator of the homicide he is charged with a criminal offense. He is released from custody and soon appears for a preliminary hearing in which it is determined that there exists probable cause for the charge and the matter is set for trial. At the conclusion of the hearing the judge states that, "The Court finds probable cause to hold this over for trial. Jury selection will begin one week from today." I resisted the urge to remove the disc and toss it in the trash. I suppose I can look upon it the same way as one simultaneously hears and sees the explosion of the Death Star in Star Wars which itself has two problems[fn1]. Still, it is a huge blunder to see trial procedure so grossly misrepresented.

Before I analyze trial procedure let me inject this information. Screenwriters or movie producers often gather background information for a movie by observing real-life scenarios related to the subject of the movie or they hire an expert to advise on the subject. In a movie about a surgeon a former surgeon may be hired to advise on the medical procedures as well as names of the implements, design of the operating room and who would likely be in the operating room during the procedure. This gives the movie authenticity because it accurately portrays what which would occur had the fictionalized account been actual.

An objective in movie producing is to draw the viewer into the film. Ultimately, it is to relieve the viewer from consciously knowing 'I am viewing a movie' to that of a casual observer. This is why some directors choose to not have opening credits or may delay them until minutes into the movie. The films in which a viewer has a visceral response have achieved bringing the viewer to a participant level.

In viewing a movie about a fictionalized murder trial I rely upon my experiences of attending trials to weigh the accuracy of the movie. I have attended three murder trials of people I know but will use a felony trial of mine for analysis as I am more familiar with the time-line there.

Nearly immediately following arrest was the bail hearing. That was followed by the arraignment which included an opportunity for a preliminary hearing: a hearing to determine whether there was enough evidence to require a trial. This is often waived as was by me. Please, take me to trial. A trial date was set which was about four months out. Prior to that an omnibus hearing[fn2] was set.

We were given deadlines by which our requests for discovery, exchange of witness and exhibit lists, and pretrial motions must be made. I filed a motion in limine[fn3] which did not require a hearing.

As I had demanded a jury trial the court summoned a jury pool by sending notices to potential jurors about a month in advance of the trial. The list was provided to the prosecutor and me a week before trial so we could initiate any background investigations we wished to do.

As the trial week approached I publicly distributed notices inviting the populace to attend my trial in which corruption by the prosecutor and judge[fn4] would be exposed. When the prosecutor got a copy he gave it to the judge who immediately canceled the trial and rescheduled it to eight months out.

In the intervening time the prosecutor filed a motion for a hearing on the evidence as I had 33 witnesses and 600 documentary exhibits. That hearing lasted eight hours which resulted in some of my exhibits being reduced to summaries as they were similar. This would keep the jurors from having to read all 600 exhibits. This hearing also served as another omnibus hearing. It was determined that due to the number of witnesses and issues presented that the trial would likely last between three and five days. A fourth trial date was then scheduled to accommodate the anticipated length of the trial.

Two years after my arrest the then current prosecutor[fn5] on the case filed a Motion to Dismiss which the judge granted without hearing. I countered with a Motion to Reinstate in which I alleged that the prosecutor's motion was structurally deficient, did not comport to the Indiana Rules of Criminal Procedure, should be denied in its entirety, and that the charge should be reinstated and a jury trial date set. My motion was denied.

My case is an aberration due to some complexities that do not occur in most trials. However, murder trials often follow a similar chronology including the omnibus hearing, pretrial hearings, motion deadlines, and jury notification. A jury trial in a murder case does not occur a week following an arraignment. Not in Indiana for sure. I have participated in trials in about 20 counties and never have I encountered a court that could schedule a murder trial within two months of an arraignment. The screenwriter missed it big time in this movie.

This brought to my mind the nuances of child custody cases. As I repeatedly state -- which is on my business card -- "Child custody decisions are not about the law, but are judgments based upon parenting skills and behaviours." Parents are being judged on their whole as a person.

If this screenwriter had been involved in the custody case of a child who has a learning disability and would best be served by one-on-one education by a parent he could easily become the non-custodial parent.

I will use an example where the mother works full-time outside the home, father presents no adverse parenting qualities, and father is a screenwriter at home. Based upon these few criteria it seems that this man would best serve the child's needs. But, instead of a movie about the trial of a judge who caused the death of a man riding a bicycle, let's have him present a movie in which he portrays himself as the parent best suited to provide the intensive home schooling that could best serve his child. In his movie when it comes to the subject of education he portrays a scenario of him setting up how he could educate his child.

The pre-adolescent child has already been identified as having ADHD and a emotional developmental disability. Additionally, the child has been problematic and failing in school. The father's movie shows him preparing a den as a school room. It has a desk for the child, a stool for himself, a small chalkboard, a bookshelf with textbooks, and a daily schedule posted on the wall. Actors then portray father's education of the child. The child immediately starts fidgeting while seated at the desk and gets up a few minutes later much as has been described in reports by the school. The father is then shown wrapping duct tape around the child's ankles and the desk's legs and then chiding the child for getting behind schedule. Instructing the child then resumes and at the end of the day the child is shown demonstrating his newly learned knowledge and being congratulated by the father.

Anyone familiar with educating children who have these types of conditions can see the problem with father's movie which is so absurd that it even goes against the common sense of the layman. The message to the judge is that father didn't do his homework.

Mother then testifies that she has a room with a couch, bean bag chair, and a cushioned bench which the child may choose to use. She also scheduled a professional screening for language development of the child. Her curriculum schedule gives broad objectives for the day or week rather than hourly as father had done.

So what are the consequences of these opposing approaches by the parents in the mind of the judge as it comes to bias? It would be similar to that which I experienced about the screenwriter of The Judge. He doesn't know his subject nor what should be obvious to the layperson. Apparently, he was too lazy to briefly research the subject. Or it could be that he was too cheap to hire an expert adviser. But, maybe he isn't lazy or cheap but lacks the competence to identify the need for research or advice. If this guy makes such a blatant error early on then I am going to view anything he puts forth following that as being dubious or unreliable? As for mother she is seen as being prepared, adaptable and willing to accommodate the child's expected fluctuations in mood. Psychologically the underlying bias becomes that she cares for the child and will find a way to modify her schedule to meet the child's needs. Thus, although her time is more limited she would be best suited to educate the child and may ultimately be designated as the custodial parent.

In the ensuing custody hearing there may have been presented evidence that mother had been abusive in some way, she had no college education, and she had been previously treated for a mental disorder. Father presented his list of educational certifications, prior employment accolades, and numerous witnesses recounting pleasing experiences between he and the child including participating in events at the child's school. This may all be for naught if the judge has already developed a bias the father is naive or too rigid in his thinking for the child.

The overall message I want to convey today is that when preparing for a child custody hearing that it is more important to focus on what you don't know rather than what you do know. Child custody decisions are more prospective than reflective. That is, a judge is placed in the position of deciding who is more likely to be most beneficial to the child in the future rather than reflecting what has been done in the past.

In and of itself the mistake of saying in a movie that a murder trial will commence with jury selection a week after the arraignment may seem like an innocuous oversight. However, such a fault early on in a child custody proceeding though can have dire consequences. It is important to be able to identify what you need to know and when to do your research or consult with the experts.

When it comes to the movie The Judge I don't see the screenwriter as being invested in his story. Don't let a judge see you as not being invested in your child just because you make one technical blunder.

1] Sound travels through room temperature dry air at a speed of 343 meters per second while light travels at a speed of around 300,000,000 meters per second. The difference in these stimulus reaching us is easily perceived at any distance greater than 100 meters. The second problem is that unlike light, sound waves must travel through a medium that impacts the ear drum. The vacuum of space does not contain a medium that can transmit sound.
2] An omnibus hearing is a pretrial hearing. It is usually soon after a defendant's arraignment. The main purpose of the hearing is to determine the evidence and the course of the trial The prosecutor and the defendant attend the hearing to discuss pretrial matters pertaining to the case. This may include setting a time table for discovery and exchange of witness and exhibit lists.
3] A motion in limine is a motion filed by a party to a trial which asks the court for an order or ruling limiting or preventing certain evidence from being presented by the other side at the trial of the case. Generally, this motion is filed in advance of the trial, but a motion may be entertained by the court during a trial, before the evidence in question is offered. The purpose of this motion is to prevent the interjection of matters which are irrelevant, inadmissible or prejudicial.
4] Justice Steve David of the Indiana Supreme Court who sat as judge of the Boone Superior Court for this case.
5] My case was considered a hot potato which was prosecuted initially by a deputy prosecutor and then the elected prosecutor in Boone County, then a special prosecutor from Clinton County was assigned who withdrew after the hearing on the evidence and then it was assigned to the elected prosecutor in Hendricks County who filed the motion to dismiss.

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©2008, 2014 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.


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