Long fight, and in vain How did Bouknight contempt case drag on so long?

November 12, 1995|By Kate Shatzkin

AFTER ALL THE legal wrangling, the days of national media attention and the years of complete quiet, on Halloween night Jacqueline L. Bouknight stepped from jail, ending a seven-year battle of wills. She never produced her young son, Maurice, as a judge had ordered, nor was she ever charged with a crime against the child. Her release left an overwhelming question: Why did it take so long to get nowhere?

Listen to Baltimore Circuit Judge David B. Mitchell, facing the bickering lawyers in front of him Feb. 13, 1991.

"We are concerned that a posture may have been taken in the representation of this case to simply delay," the judge said. "I want it clear in this record that this court will not countenance that any longer."

Ms. Bouknight would be in jail for civil contempt for four more years, eight more months and 18 more days. And when the time finally came for Ms. Bouknight's release, Maurice -- last seen by social workers at age 1 and repeatedly abused in his mother's custody -- would be as thoroughly missing as when the matter began.

Court records, transcripts of closed hearings and comments by the lawyers and the judge in recent days show legal posturing, Ms. Bouknight's unpredictability, and an on-again, off-again police investigation conspired to make the 29-year-old mother's incarceration one of the nation's longest for civil contempt.

The personalities didn't mix well. There was the staid, by-the-book Deputy Attorney General Ralph S. Tyler III, representing the Baltimore City Department of Social Services; M. Cristina Gutierrez, a zealous criminal defender known for staking out any technicality to spare a client prison, and Mitchell Y. Mirviss, Maurice's attorney, who had sued DSS over the conditions of foster homes only to find Ms. Bouknight viewing him as part of an onerous system.

No room for compromise

Much of the time, the lawyers were too smart, too proud and too distrustful of each other for compromise. Some observers say the lure of media attention and the matter's U.S. Supreme Court potential also kept things from being resolved.

It was never a criminal trial, but the prospect hovered over the proceedings like a funnel cloud -- never touching down, but blowing the players far apart with its side winds. Ms. Bouknight, the focus of a homicide investigation, asserted her Fifth Amendment right against compelled self-incrimination in a losing battle all the way to the Supreme Court. Social workers, fearful they might end up being investigated for criminal neglect, tried to give as little information as possible to a court that was trying to find answers.

Characteristic of the acrimony that governed the case's seven years, the attorneys took the opportunity of Ms. Bouknight's release to blame each other.

"From the outside, 7 1/2 years of incarceration probably looks like an unconscionable amount of time," Mr. Mirviss said that day. "It's all been dictated by Ms. Bouknight and her counsel."

He chronicled all the missed opportunities that he said could have freed Ms. Bouknight: the offer of immunity by prosecutors that Ms. Bouknight never accepted, the habeas corpus petitions her lawyers never filed, the motions for her release her lawyers withdrew on two occasions.

Furthermore, the argument that usually succeeds in releasing a prisoner from civil contempt -- the notion that incarceration violates the person's constitutional right to due process -- didn't come to the fore until after the Supreme Court decision. And a police detective Ms. Bouknight trusted was periodically ordered off the case.

For her part, Ms. Gutierrez said the other attorneys in the case had never respected the depth of Ms. Bouknight's convictions about Maurice. She said "we're not here to argue" the truth of those convictions. "No one has ever acknowledged her work to get him back," Ms. Gutierrez said.

A question of principle

As for Mr. Mirviss' allegations about what she should have done, Ms. Gutierrez said she was acting at the direction of her client, and on what she considered to be sound legal principles. Those principles, right or wrong, contributed to the stalemate.

In January 1991, Ms. Gutierrez was advising Ms. Bouknight that she still had a Fifth Amendment right not to answer the court's questions, despite the Supreme Court ruling against her. Ms. Bouknight was refusing even to take the oath at hearings.

Mr. Mirviss called Ms. Gutierrez's advice to answer no questions "in bad faith" and without legal justification, and asked the judge to penalize the lawyer by making her pay his expenses. "Ms. Bouknight has only intensified her recalcitrance," he wrote. "Ms. Gutierrez's private and public instructions to her client have effectively paralyzed these proceedings."

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