"The petitioner . . . carries the key of his prison in his own pocket. He can come out, when he will, by making terms with the court that sent him there. But if he chooses to struggle for a triumph, if nothing will content him but a clean victory or a clean defeat, he cannot expect us to aid him. Our duties are of a widely different kind. They consist in discouraging, as much as in us lies, all such contests with the legal authorities of the country."
So a judge once wrote to justify keeping a man named Passmore Williamson in jail indefinitely, for disobeying an order of the court. least acentury later, these same words describe the frustrating stalemate that has kept Jacqueline Louise Bouknight the Baltimore City Detention Center for nearly seven years, though she is charged with no crime.
Ms. Bouknight is in jail because she has disobeyed a court order to produce her missing son, Maurice, who would now be 8 -- if he is still alive.
It is a case in which the staking out of legal strategies has contributed to delays, making conciliation precarious at best and impossible at worst. It pits the juvenile court's vital interest in a child's safety against his mother's constitutional rights not to be deprived of her liberty without due process of law, and against cruel and unusual punishment.
Because he had been abused at least twice while in her care before he was a year old, the city Department of Social Services was given custody of Maurice, and put him in foster care. A juvenile master later returned the child to Ms. Bouknight, but social workers lost track of him. A missing-persons investigation turned to a homicide inquiry by police, and some authorities to this day believe Ms. Bouknight killed her son.
In court recently, she insisted again that she had given her child to a friend to keep him from going back to foster care, the setting in which she had grown up. Attorneys in the case, and at least one police detective, say they believe her.
They are trying to establish whether Ms. Bouknight knows where her child is now. She claims she does not.
The case went all the way to the U.S. Supreme Court on the issue of whether Ms. Bouknight could be forced to produce the child when to do so might be incriminating, and thus a violation of her Fifth Amendment rights. The highest court in the land ruled that the court could continue to hold her in contempt.
Now, David B. Mitchell, the Baltimore City juvenile court judge who jailed Ms. Bouknight April 28, 1988, must decide whether to grant motions to release Ms. Bouknight be cause she cannot or (( will not lead investigators to Maurice.
For the next three months, the judge has stripped the Baltimore City Department of Social Services of custody of the boy. In return, Ms. Bouknight agreed once again to begin discussions with the court about where Maurice might be found.
Squarely in the middle of this tempest sits Judge Mitchell, on a perch no jurist would envy.
"Contumacy often strikes at the most vulnerable and human qualities of a judge's temperament," then-U.S. Supreme Court Justice Harry A. Blackmun wrote in a 1994 opinion on the contempt power -- referring to the sometimes maddening stubbornness of people who defy courts. Since the case of Passmore Williamson, people have gone to jail regularly rather -- than obey court orders. They have been witnesses reluctant to testify; reporters who refuse to reveal sources. Those who will not give up the whereabouts of a child have tended to stay locked up longest, particularly if the child is believed to be in danger.
So-called civil contempt powers allow judges to hold those who defy them indefinitely, until they give information or show they cannot. As long as the contempt order appears "coercive" -- that that confining the person has a hope of wearing him or her down -- the person can stay imprisoned without being charged with anything.
But once it is determined that jail accomplishes nothing more than punishment, the court must either release the person or find him in criminal contempt of court, which requires a finding of guilt and a definite sentence like any other conviction.
Easy-seeming decision
After nearly seven years, Judge Mitchell's decision therefore might sound easy: How could a woman who has held out this long possibly blink now?
But the length of confinement does not, by itself, determine legally the point at which one "wins" a contempt battle.
When Dr. Elizabeth Morgan, a Washington, D.C., plastic surgeon, spent 25 months in jail rather than reveal the whereabouts of her young daughter, Hilary, her supporters persuaded Congress to pass a law limiting to one year the time served for civil contempt in the district. Dr. Morgan claimed that her former husband, Dr. Eric Foretich, had been abusing the girl, and she refused to allow his court-ordered overnight visits with her.
Dr. Morgan has been living in New Zealand since she left jail. Until her daughter is 18, a return to the United States could start the contempt process all over again.
The Illinois Supreme Court recently declined to strike down a civil contempt order against a man who has been in jail a few months longer than Ms. Bouknight for refusing to produce the daughter he was convicted of kidnapping.
The court ruled there still was a chance that keeping the man in jail could coerce him to tell what happened to the child, based on letters he wrote saying that jail was "draining" him.
There are no standards of evidence, and few guidelines, for determining when or if a person in contempt ever will bend to a court's will.
Legal scholars have tried to formulate various methods for the calculation. Linda S. Beres, an associate professor at Loyola Law School in Los Angeles, even created a chart to measure the effect of jail time on a person's defiance for a recent article in the Indiana Law Journal.
It was an economic model, designed for judges to predict the actions of "the rational contemnor" (that is, the person in contempt). According to it, most people either comply very shortly after being ordered to jail -- or never will.
Sometimes, both judge and contemnor dig in their heels further even though what they really want is to resolve the impasse. "You have a bluffing situation," Professor Beres said last week.
The question: Is Ms. Bouknight predictable in a legal sense? And is she as desperate as many might be, after all this time, to get out of jail?
Over the years, she has wavered from saying nothing, to giving accounts of the child's whereabouts that police have proved wrong, to agreeing to quiet discussions with a police detective she sometimes claims to trust.
She has been described as borderline retarded. Yet a court-appointed psychiatrist found her competent to understand any charges that might be filed against her. And a polygrapher who gave Ms. Bouknight a lie-detector test 2 1/2 years ago at the request of her attorney estimates her IQ as average, based on the time it took her to physically respond to questions.
Judge Mitchell, and the lawyers who have come to know each other well through the years, have seen seeming breakthroughs with Ms. Bouknight crumble into nothing before. They also have seen sudden glimmers of cooperation after long periods of silence.
A wish to leave jail?
In court recently, Ms. Bouknight answered "yes" when Mitchell Y. Mirviss, an attorney for her missing son, asked her whether she would like to get out of jail.
Mr. Mirviss himself wrote last September that Ms. Bouknight did not seem to want freedom. He cited many efforts that the court and lawyers had made over the years to resolve the stalemate -- none of which has led to Maurice.
"Indeed, Ms. Bouknight's seeming indifference toward obtaining her freedom . . . could well indicate that she has been 'institutionalized' and is comfortable with her present fate," Mr. Mirviss wrote.
M. Cristina Gutierrez, Ms. Bouknight's lawyer, wrote to the court in October:
"Despite her desire to be released, remaining at the detention center for these interviews [with police] offers the only security she now has."
Last month, Mr. Mirviss modified his argument, telling the judge there was new hope that Ms. Bouknight might cooperate.
Judge Mitchell has said he would do anything he could to find Maurice -- even if it meant allowing Mr. Mirviss to pull his chair next to Ms. Bouknight on the witness stand, to cajole, wheedle and deliver speeches to which she answered not a word.
"If it gets down to emotion as an impetus for the production of the child, so be it," the judge said. "If it gets down to begging, the invocation of guilt, pleading, so be it. If you want a classical criminal trial, or civil proceeding, this is not the place. We're trying to find a child."
B6 Kate Shatzkin is a reporter for The Baltimore Sun.