Over the course of the last twenty years, I have taught hundreds of cases highlighting constitutional violations in criminal investigations and adjudications. Some of the cases are so outrageous that it is hard to believe they actually happened in America. Until recently, I considered the 1964 juvenile adjudication of Gerald Gault to be unparalleled as a mockery of due process.
Gault was accused by a neighbor, Ora Cook, of making a lewd phone call that would have been punishable by a maximum of two months in jail and a fifty dollar fine had Gault been an adult. But he was only fifteen. So the state of Arizona set up a kangaroo court that initially sentenced Gault to reform school until the age of twenty one.
Things got off on the wrong foot when Gault was taken in for questioning without his parents' knowledge and without the assistance of counsel. A judge released him after a preliminary hearing left him confused about what was actually said to Mrs. Cook and whether Gault was the one who actually said it. There was cause to believe that Gault's friend Ronald Lewis might have actually made the lewd phone call.
When the judge finally decided to bring Gault back in for an adjudication hearing, other important players were absent. The victim was absent. Gault's friend, who may have made the call, was also absent. Even the court reporter was absent making it impossible for Gault to preserve an accurate record for appeal. All of this resulted in a teenager losing years of his freedom for one phone call he may or may not have actually made. It all could have been avoided if Gault had a chance to confront his accuser and to have her cross-examined by effective counsel.
Those who have been following the Indiana prosecution of Dan Brewington cannot fail to see the similarities between his case and the juvenile prosecution of Gerald Gault. In my last column, Abusing Due Process, I talked about the criminal case that began after Brewington lost a child custody battle with his wife. Because of the testimony of an unlicensed psychologist, Brewington was denied visitation rights altogether.
By now, many are aware of the fact that Brewington's online criticism of the judge who denied him visitation has resulted in a felony conviction. But few people are aware that the bulk of the evidence used to convict Brewington of the felony was actually gathered by the same unlicensed psychologist who testified in the custody case. It wasn't enough for him to deprive Brewington of his kids. Stung by the criticism of his lack of qualifications, he had to help the state take away Brewington's liberty, too.