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

THE BALTIMORE SUN

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."

Ms. Gutierrez responded that she read the Supreme Court's ruling as addressing only the physical production of Maurice, and not stripping her client of all Fifth Amendment rights. "There may be other reasons that I had for my advice based on information derived from attorney-client privileged information, which I am, of course, unable to disclose," she wrote in an affidavit to the court. "There is some serious question in this case as to whether Ms. Bouknight is being advised to violate the law," Judge Mitchell said during the February 1991 hearing. Mr. Tyler asked the court to take the extraordinary step of removing Ms. Gutierrez as Ms. Bouknight's lawyer, something Ms. Gutierrez wrote was motivated by the hope that another lawyer would be more "compliant."

"It is hard to imagine a situation that would breed more distrust than the removal of Ms. Gutierrez," wrote Michael A. Millemann, who temporarily stepped in to represent Ms. Bouknight.

The judge became angry at the delays the issue of Ms. Gutierrez's representation was causing. "Every day is a further day taken from this child and the protections that this court can afford," he said. "Every day that we do not have a response in this matter, we have Ms. Bouknight herself incarcerated on what is becoming an indeterminate sentence."

Three months after it was filed, the motion for new counsel was withdrawn. Ms. Gutierrez remained on the case.

In 1992, the parties attempted to address Ms. Bouknight's distrust of DSS by negotiating a "protocol" that would allow Maurice to stay where he was if his mother helped find him -- as long as the boy was in a safe home.

In 1993, Ms. Bouknight's lawyers filed a third motion for her release, arguing that she would never comply with the court's order. The first two had been withdrawn.

At an April hearing that year, Ms. Bouknight suddenly began to talk to the judge. Despite the negotiated protocol, "I don't want him near Social Services. I can't," she said. "I don't trust y'all."

At one point, Ms. Bouknight and her attorney talked with the judge with no other lawyers present. At the end of that discussion, Judge Mitchell announced that he was keeping the question of her release open for review. According to the transcript, no one asked at that hearing for a final decision, from which an appeal could have been taken. It became obvious that Ms. Bouknight was operating on her own timetable. Every time she started to help, other lawyers in the case would withdraw their support for her release on the grounds that jail was encouraging her to cooperate with a police detective. Still, she gave details of a woman to whom she said she had given Maurice.

Ms. Bouknight met with police and Maurice's lawyers three times in January and February of 1995. Then she appealed the case, and talks stopped. The Court of Special Appeals denied the appeal, but noted that Ms. Bouknight could file a petition of habeas corpus, before any judge, to challenge the legality of her detention.

Mr. Tyler called a meeting in October. For the first time in seven years, he would formally support releasing Ms. Bouknight on the grounds that she could never be coerced to produce Maurice.

Mr. Mirviss also threw up his hands. Investigation, he told the court, had shown that Ms. Bouknight's friend had been "a phantom."

Ms. Gutierrez held to her position. "Let her go home," she told the judge in a barely audible voice.

For once, everyone agreed on something. Jail would never work.

Kate Shatzkin is a reporter for The Sun.

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