Note: Cross posted from [wp angelfury] Battered Mothers Rights - A Human Rights Issue.
As reported in the VILLAGE VOICE
Her Right to Be Obnoxious
Hell hath no fury like a mother scorned
by Kristen Lombardi
April 4th, 2006 12:00 AM
Dyandria Darel is a tiny woman who speaks in a soft voice and often walk s hunched over a cane because of a decades-old injury. Yet when Darel, 58, plants herself outside the downtown offices of the New York City Administration for Children's Services, people stop. They stare. And when they finally move on, some can't help looking back.
Every week, Darel can be found pacing along the 150 William Street block, protesting the way ACS caseworkers have handled her now closed case. In 1997, the department alleged that Darel's ex-husband, a retired New York City police detective, had molested their daughter. But a series of complicated twists in Manhattan Family Court would cause judges to drop the accusation as "unproven," find Darel guilty of neglect, and place her daughter in foster care. Eventually, she lost custody for good to the man whom ACS had once accused of abuse. The outcome has fueled an eight-year war of words for Darel.
"ACS caseworkers are directly involved in giving custody to a pedophile cop!" she booms to the lunch crowd on a recent Monday. Nearly every passerby stares at Darel, who is carrying a sign almost as big as she is. It calls out caseworkers by name and reads: ACS GAVE A PEDOPHILE COP SOLE CUSTODY OF THE CHILD HE SEXUALLY ASSAULTED. But what draws people's attention isn't the text so much as the image—an old, blown-up photograph Darel purports to be of her former husband, naked, lying in bed with their young daughter, his hands on his crotch.
People walk past Darel without taking their eyes off that picture. They look bewildered, disgusted, angry. They mutter, "That's terrible!" or "That's some sick puppy!"
For Darel, their outrage may be the desired effect. But her tactics, including public displays of this photo, have gotten her into trouble in the past, even landing her in jail.
Darel first went public with the image in 2002, circulating it to school officials and broadcasting it on local cable TV. By then, she had long been posting flyers and producing a public-access show about what she terms the injustices of her case. For years she had been railing about the alleged sexual abuse and dogging Family Court judges, ACS caseworkers, and lawyers with ties to the matter. Judges had been issuing protective orders against Darel, citing her daughter's well-being. The more Darel protested, the more these judges limited what she could say and do on TV and in print. In October 2002, Manhattan Family Court Judge Helen Sturm sentenced Darel to three years in jail for contempt, finding she had violated those orders. Darel sat behind bars at Rikers Island for 28 months before her release, in February 2005.
Today, Darel is suing Sturm, among other city and private defendants, in U.S. District Court in Manhattan, alleging that the sentence was unconstitutional and "in excess of jurisdiction." Dated September 1, the 17-page complaint argues that Sturm violated her due-process rights by incarcerating her for so long without a jury trial. The judge violated her free-speech rights, the suit further claims, by "interfering with plaintiff's ability to telecast criticisms about the family court and the Administration for Children's Services."
In a parallel strategy, Darel is preparing to file, on April 17, a petition asking the U.S. Supreme Court to hear her case. That petition is based on her constitutional right to a jury trial.
"The Family Court judge just went berserk," she charges.
Sturm (through the court's spokesperson) declined to speak with the Voice or to respond to an e-mailed list of questions, citing the pending litigation. A recent visit to her courtroom revealed a jurist acting with efficiency and empathy. Yet in her rulings on Darel's contempt, it becomes clear that the judge had lost all patience with the mother—perhaps understandably.
"Since the child was removed from her care, [Darel] has conducted a reign of terror against her daughter and her former spouse," Sturm wrote, in one of three decisions on the contempt proceedings. "This Court finds this behavior to constitute very serious violence indeed."
Constitutional lawyers interviewed for this article say they can't fathom, at first blush, how Darel could sit in Rikers for nearly three years without a jury trial and without being convicted of any crime. Under established constitutional law, they say, no judge can send someone to jail for more than six months without offering them a jury trial. Nor do experts grasp how a person could be held in contempt for what amounts to public speech.
Sturm's orders of protection limiting Darel's ability to say and do certain things on TV and in leaflets didn't make sense to Leon Friedman, who teaches constitutional law at Hofstra Law School. "That sounds strange to me," he offers. "She should have a First Amendment right to tell the full story of her complaints against the Family Court and the agency," he says. The allegation against her ex-husband was dropped long ago; if he believes Darel is libeling him, the only available remedy is to file a civil suit. Friedman cites a 2005 U.S. Supreme Court appeal of a case in which noted attorney Johnnie Cochran got a gag order on a disgruntled client who'd taken to protesting outside his office. Wrong move, declared the Supreme Court. "They said courts cannot enjoin someone from libeling someone else," Friedman explains. "You have to file a civil suit for damages."
By the same turn, Friedman says, Darel's ex-husband can't get relief from possible libel through a Family Court protective order. As for Darel, he continues, "Why shouldn't she be allowed to make her pitch in the public arena?"
Darel clearly believes she should. Outside ACS headquarters, she paces with her picture and shouts. At one point, an agency security guard approaches, flashes a badge, and orders her to move across the street.
"Why?" Darel asks, with calm force. "I'm not doing anything illegal."
She lifts up her cane, points it at the guard, and says, "You're helping to protect the people who protect pedophiles."
Judges, lawyers, and ACS employees may regard Darel as an agitator, or a lunatic, but among those pushing to reform the state's Family Courts she has become a figurehead. These days, Darel can be found on the legal-reform circuit, talking about her Rikers stint, advising parents stuck in their own Kafkaesque nightmares.
Reformers say Darel's case epitomizes the dysfunction in Family Courts—the way a judge can act with near complete impunity. From the start, they argue, the proceedings fit a familiar pattern: The parent concerned about child sexual abuse is often made into the defendant, the focus of judicial scrutiny. Meanwhile, the parent accused of the abuse ends up winning custody.
"Dyandria's case crystallizes so much of what is going on in the Family Court," says Monica Getz, who heads the National Coalition for Family Justice, in Albany, and who has sat on panels alongside Darel. "It shows how once the train derails, there is no way to stop it."
Irene Weiser, of the Manhattan-based advocacy group Stop Family Violence, puts it this way: "Her story lays out the kinds of injustices and misdeeds that can happen in New York Family Courts."
That's how Darel sees things, of course, painting her story in black-and-white. "My case is simple," she claims, sitting in a busy diner on the Upper East Side, around the corner from her home. "It's that my ex- hus band is a retired New York City cop who raped my daughter, and it was covered up."
Her ex-husband refused through his new wife to speak with the Voice for this article. So did his attorney, James Caffrey. But the new spouse, who has witnessed the Family Court proceedings from the start, has an equally simplistic version. "The mother lied," she says, in a brief phone conversation with the Voice. "She has done all she can to push this story of cover-up and sexual abuse, and it's all lies."
The new wife insists that her husband never molested his daughter, now 16, and that the teen is doing well in their care, excelling at school, preparing for college. "She says my husband is connected. I wish he was as connected as she says," she scoffs. "That's not it. It's just that the courts have seen this woman is a fake."
This messy saga started in 1997, when the couple's child told a doctor her father had touched her genital area, and twists its way through to 2002, when Sturm sent Darel to jail. Records of the proceedings are sealed, but Darel and her attorney made them available to the Voice.
Flip backward through hundreds of pages to the winter of 1997, when Darel brought her then seven-year-old daughter to Bellevue Hospital "to evaluate her for emotional problems," as the hospital's February report states. At the time, Darel and her ex-husband had been separated for two years, duking it out in divorce court in Queens. During an exam at Bellevue, the report says, the child told a doctor that her father had molested her. The doctor reported finding abrasions on the girl's genital area—"an adhesion of the base of her hymen to the inferior aspect of her labia minora"—consistent with sexual abuse. According to the hospital document, "The child stated to the psychiatrist that her father touched her vagina on multiple occasions."
The disclosures didn't surprise Darel. In the spring of 1995, she says, she returned home one day to find her husband lying in bed with their daughter, naked. "I thought it was disgusting," she recalls. So she grabbed a camera, she claims, snapping the photograph she now displays in her weekly protests.
By May, Darel had filed for divorce and her husband had moved out. The kid, then five, began revealing to her mother that her father had touched her, Darel claims. Darel did not report the news to the police or to children's services. "I figured he was out of the house," she explains, "so I didn't do anything about it."
At Bellevue, her explanation for not reporting her daughter's disclosures didn't pass muster with city doctors, who notified ACS of the sexual-abuse claim. When ACS filed an abuse-and-neglect petition in Manhattan Family Court, the agency went after both parents. In March 1997 papers, ACS caseworkers alleged that the father had "sexually abused the subject child on more than one occasion." They also alleged that Darel "failed to take any steps to protect the child from further abuse." In another twist, the petition noted that the girl's "anxiety and depression" could have resulted from her mother's "emotional neglect in part caused by her socially isolating the subject child."
The day the agency filed its petition, police broke down the door to Darel's Upper East Side apartment and took the kid into ACS custody.
For the next 18 months, the case made its way through Family Court. At the trial, Darel said nothing about the provocative picture she'd allegedly taken two years before. "My lawyers said, 'Let the doctors make the case,' " she explains. Though the girl's adhesions were "non-specific," one doctor told the court, "it's consistent with digital manipulation by someone else." According to the transcripts, when another doctor testified, she explained that she'd asked the girl whether anyone had touched her genital area. "And she replied, 'Yes, my father,' " that doctor testified.
Then, in July 1998, Manhattan Family Court Judge Gloria Sosa-Lintner dropped the accusation against the dad: "The allegations of sexual abuse are dismissed as unproven." She cited the questionable timing of the disclosures—during a contested divorce—and suggested other possible causes for the girl's injuries, such as "poor hygiene." In tossing the accusation the judge wrote: "The medical evidence is inconclusive, the timing of the disclosure suggests an ulterior motive and the child's statements, by virtue of Respondent Mother's unhealthy influence, are unreliable."
Sosa-Lintner devoted 14 pages of her 18-page decision, dated July 30, 1998, to Darel's "bizarre" behavior. The judge determined Darel had neglected her daughter by socially isolating her, keeping her out of school too often one year and the next providing an "inadequate" homeschooling program that left the girl "below grade level in every subject except math even though she is above average intelligence." She found Darel had further neglected her daughter "by creating a paranoid scenario of sexual abuse that has impaired the child's mental stability." She singled out Darel's "erratic, peculiar and at times, threatening" behavior—such as leaving "rambling voice-mail messages for the attorneys on the case at 3 a.m." And she went to town over reports that Darel had a drinking problem. She wrote that the court "enters a finding by a preponderance of the evidence that the Respondent Mother's alcohol abuse placed the child in imminent danger."
Darel disputes many of Sosa-Lintner's findings. She denies having an alcohol problem and insists the judge is "lying" about it. She gave the Voice written testimony from three mental health professionals, all asserting she did not suffer from alcoholism. With regard to her daughter's schooling, Darel cites the section of the court transcript in which one Bellevue doctor reports that the child was at grade level in most subjects, with above- average skills in math. A 2003 appellate decision upheld Sosa-Lintner's ruling.
In concluding the 1998 hearing, Judge Sosa-Linter turned the original allegations on their head, finding that the father had neglected his daughter by failing to protect her from Darel. She ordered the daughter to remain in ACS custody, where she would be shuffled from foster home to foster home for four years.
To this day, Darel's family cannot accept this decision. Her older daughter, Danielle Sapio, 37, of Plant City, Florida, talks about her time living with her mother as the source of her fondest childhood memories. (As an adolescent, she lived with her father, Darel's first husband.) Her mother, Sapio says, homeschooled her for years; signed her up for ballet, guitar, and tennis lessons; brought her to her dog-grooming business; and taught her the value of hard work.
"They take my baby sister because my mother has unconventional ways to raise a child," Sapio says. "She's not society's vision of a mother, but she is a good mother."
In Darel's modest apartment, photo collages of her and her daughter, sometimes in matching outfits, adorn the walls. Posted by the stove is a roughly scrawled birthday card by the then seven-year-old girl proclaiming, "To the most perfect mother! I love you!"
"Does it look like I was socially isolating my child?" Darel says, flipping through one photo album after another, each filled with pictures of her daughter. In almost all, the girl is smiling, her eyes bright, her hair pulled into a perky ponytail. There is a shot of her in a church play, another at a ballet rehearsal, another hugging her French teacher.
"These are the happiest years of my life," Darel says, her eyes welling. She fixes on a snapshot of her daughter. The girl has a goofy grin, and Q-tips stuck in her ears.
Darel rubs her fingers over the image and says, "She was so full of personality."
Darel may have lost at trial, but she wasn't about to give up. For years, she worked to reunite with her daughter, doing what ACS caseworkers ordered her to do, attending parenting classes and therapy sessions. By 2001, ACS had sent her to three psychiatrists to undergo three evaluations. Each cleared her—she had no "psychotic symptoms or cognitive defects that would interfere with her ability to take care of her daughter," as one report put it.
But Darel has done things that the city could use against her. On December 19, 2000, she picked up her daughter from her Queens school and drove her to Manhattan. Court records show that the daughter, then 11, was no longer a ward of the state; her foster-care placement had legally expired five days earlier but she was still living with her foster family. Yet Darel knew she would be pushing the envelope; according to court records, she disguised her daughter and the two stayed with friends to evade detection.
One month later, police arrested Darel and charged her with custodial interference. Prosecutors dropped the charge, but the act has haunted her ever since. In court papers, ACS lawyers and Judge Sturm refer to how she "kidnapped" or "abducted" her daughter. Caseworkers and the Family Court judge stripped her of visitation rights. And they laid out a plan to grant her ex-husband temporary custody.
By then, Darel had become a vocal critic of the Family Court system. She organized protests outside ACS and distributed flyers outside the Brooklyn foster-care agency responsible for her daughter. She published a small book, Kidnapped, replete with her daughter's scrawled notes.
She also produced a cable TV show that she dubbed The Real News, which still airs in Manhattan on channel 57. At first, she would feature other parents with Family Court horror stories. But as her case escalated, she devoted more and more of the program to it. In the real world, she would show up at public events where the judge and ACS officials were to appear, and ask rude questions. Sometimes she would ambush her targets with a video camera, chasing them and yelling about her case.
"I would walk out of my office and, suddenly, there Dyandria would be taking pictures of me and shouting about how I handled her case," says one of her targets, who spoke to the Voice on condition of anonymity. Darel never threatened this source or got violent, but she spooked the source nevertheless. "She is very personal in the way she attacks those who have handled her case," the source explains.
In the winter of 2001, Darel began putting her daughter on TV too. Days before her January 24 arrest, she appeared with her kid on an amateur set, side by side, fielding questions from a local host. In the hour-long segment, Darel did most of the talking. Her daughter looked happy, bouncing in her chair.
"I feel great now," she told the host. "I'm with my mom."
The girl told the host how much she hated foster care, how her father could be "mean." When asked about the alleged abuse, she nodded her head.
"I want to stay with my mom forever," she exclaimed, holding her mother's hand.
It didn't take long for word of the interview to get back to court. On February 20, according to appellate records, the father "advised the court that [Darel] was broadcasting on a local access cable television show an interview she conducted of [the girl] about Mr. M. and purported sex abuse." In response, Family Court Judge Susan Larabee, who briefly presided over the proceedings, issued the first of many orders of protection against Darel.
As the name implies, such an order is meant to protect one litigant from another—primarily battered spouses from abusive partners. Family-law experts say a judge has wide latitude when issuing the orders. They can require a party to stay away from people and places, and refrain from committing criminal offenses like assault and harassment. Typically they're not intended to prohibit people from speaking out.
In this instance, Judge Larabee issued a fairly standard order, demanding Darel keep away from her ex-husband, his wife, and her daughter, as well as their home, workplaces, and school. "Refrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats, or any criminal offense," the order read. It also directed that Darel not interfere with the care and custody of the child.
For Darel, this language meant one thing: "Don't go near my ex-husband and daughter." But she kept airing her TV show and posting her flyers. She set up shop outside the Brooklyn foster-care agency, passing out leaflets and soliciting relatives of kids in foster care for a class-action lawsuit.
That's when ACS took legal action to stop Darel from speaking. Agency spokesperson Sheila Steinback refused to speak with the Voice about any aspect of the Darel case, citing confidentiality issues and the pending litigation. She referred questions to city lawyers, who also declined to comment. In September 2001, according to court records, ACS (initially through its designee) filed a motion against Darel alleging she had violated the protective order. The agency argued that Darel's repeated airing of the TV segment featuring her daughter and repeated posting of flyers "constitutes menacing and harassing the father . . . and it interferes with the care and custody of the child."
As part of the motion, agency lawyers submitted three affidavits from employees. Two said they had watched the taped show on a Long Island public-access station. The third said he had witnessed Darel posting flyers outside the foster-care agency, on "trees, electrical poles, and dumpsters." The motion included copies of the leaflets, one of which said:
THIS IS A FOSTER CARE AGENCY THAT IS OPERATED BY DEMONS WHO SLEEP WITH THE DEVIL . . . WE HAVE A CASE WHEREBY A COP RAPED HIS LITTLE GIRL. . . . ACS HOWEVER ARE 'POLICE FRIENDLY' . . . AND WILL LET COPS GET AWAY WITH ANYTHING.
The next day, Judge Sturm, who had taken over the case, amended the protective order. The judge banned Darel from using "the subject child's likeness or name in any broadcast television or radio show," as the September 25 document states, and to stop posting flyers using names of the child, the father, or the foster-care agency. She also prohibited Darel from communicating with the father by phone or e-mail. In court, Sturm began presiding over hearings on the ACS contempt petition.
On TV, Darel began airing a second program. Viewers would see Darel standing before a wicker screen decorated with plastic fruit, narrating a one-hour rant on the five-year-old case. They'd hear her belittle caseworkers by name. Or single out prosecutors for refusing to pursue her sex abuse claims.
Darel would save her most taunting commentary for Sturm, introducing the judge as "the worse fascist of them all." As if thumbing her nose at the court, she would hold up the old picture of her ex-husband lying in bed with his daughter, their faces blotted out.
"This is not Nazi Germany yet, Helen Sturm," Darel would say, as her dogs yapped in the background. "This is America, and there are still constitutional rights to expose corruption."
Ask Darel's supporters about her protest methods, and they're likely to say they don't condone everything she did. It wasn't especially wise of her to label Sturm a "Nazi" on TV, no matter how obscure the station. Nor was it smart to broadcast the old photograph, no matter how she tried to conceal identities.
"I don't think she's been wise in the ways she's outspoken," says Getz, of the Coalition for Family Justice, who believes Darel can confuse courage and defiance. "If you're at the mercy of a judge, you don't want to expose yourself to the judge's retaliatory power."
Manhattan psychiatrist Seth Farber, who testified on Darel's behalf in 1999 and has followed her case since, says he urged his client to stop producing The Real News. "She had high hopes the whole world was watching and people would become outraged," he recalls. "All signs pointed to the fact that the judge, the ACS caseworkers, and her ex-husband were getting angry."
Darel not only refused to shut up, but she started screaming louder. In January 2002, when her ex-husband received full custody of their daughter, Darel admits, "I went ballistic."
She sent her daughter's school a warning that her ex-husband should be watched—and included the bedroom picture. Twice, she brought the old photograph to police and ACS caseworkers to report him for suspected abuse. In divorce court, she served aggressive legal motions in which she threatened to keep talking about the alleged abuse. "I was trying to protect my child," she says.
One month later, her ex-husband filed a second contempt petition, citing these actions and alleging that Darel had further violated the protective order, according to court records. Accompanying the February 14 petition was an affidavit. In it, he described how his ex-wife had contacted authorities and "falsely reported an allegation of sexual abuse," thereby subjecting him and his daughter to "upsetting and embarrassing questioning."
He asked for jail time. "It is apparent to me that the only way my daughter and I can receive the protection we are entitled to is for the Court to punish [Darel] for her continued contemnaceous [sic] conduct by incarcerating her," the affidavit stated.
During the 2002 contempt trial, Darel's daughter, then 12 and living with her father, said she wanted to stay with her dad. On the witness stand, according to court transcripts, the pre-teen recanted her claim of sexual abuse and blamed her mother for putting her up to her past disclosures. "I went along with it 'cause I just wanted to make her happy," the girl testified.
On October 4, 2002, Darel walked into Judge Sturm's courtroom, known as Part Eight, for the last of eight hearings. Testimony was heard, arguments made. Then Sturm handed down a decision that experts in family law describe as unprecedented in their field: She sentenced Darel to three years in jail for contempt.
State law allows Family Court judges to jail someone found to have violated a protective order for six months per violation. To incarcerate Darel so long, Sturm strung together consecutive six-month terms for six separate acts—for posting flyers outside the foster-care agency, for reporting her ex-husband to police and the state's child abuse hotline, for sending school officials the letter, and for broadcasting and rebroadcasting her TV show. From the bench, Sturm committed Darel to Rikers Island, suspending all but nine months on the condition there be no further violations.
In her 14-page decision, the judge blasted Darel not only for "her flagrant disregard for the court system," but found "she has acted with total disre- gard for the child's emotional well- being." Sturm pointed out that, during in-chambers interviews, the daughter had begged to have a "normal life."
Sturm issued a final protective order, effective from October 2002 to October 2005, barring Darel from visiting her daughter. And the judge prohibited her from "broadcasting any images of the child and of the father in any format and posting materials regarding them in public."
The breadth of such language confounds lawyers interviewed by the Voice. Friedman, of Hofstra Law School, questions whether any restrictions involving Darel's TV show or flyers would pass constitutional muster. "There is a First Amendment right to tell your side of the story in any medium you want," he says. And while a protective order can shield a litigant from harassing language, it cannot infringe upon another's free-speech rights. That's why such orders typically bar direct phone calls, e-mails, or face-to-face encounters.
"I have a problem with whether a television airing even fits within the definition of a protective order," Friedman says, adding that the same could be said of leaflets. "It's beyond the power of the judge, under the First Amendment, to say to a litigant, 'You cannot engage in public debate about your case.' "
Bruce Young, a civil rights attorney appointed to represent Darel while she was at Rikers, seconds that. "Dyandria pissed off a lot of people," he tells the Voice. "She's determined and outspoken, and it put her in jail."
Darel had repeatedly defied Judge Sturm's orders, and Sturm had had it with behavior that she thought not only bordered on the volatile but also embarrassed the child in question. But while Darel had gone to unusual lengths, family-law experts say, she isn't alone in her unwillingness to obey a judge. If a parent violates that no-contact order, as Darel was found to have done, there are less-punitive measures for a judge to use. Under state law, Sturm could also have sentenced Darel to probation, or forced her to attend therapy, or made her pay her ex's court costs.
As Sturm read her sentence, a court officer was handcuffing Darel's wrists and shackling her feet. She was ushered to a cell, where she waited for a bus bound for Rikers. Another court officer handed her a Bible and said, "Pray."
"I thought it was a temporary thing," Darel recalls of her first hours in jail.
But that optimistic view would dim each day she sat behind bars. For the most part, she spent her time at Rikers confined to the so-called civil cell, a large room with five beds she says were rarely occupied. She was allotted one hour a day to exercise outside, on a concrete slab. Otherwise, she remained locked up, alone.
On October 7, 2002, just three days after she arrived there, the Manhattan district attorney's office filed a 44-count indictment against her, resulting from a two-year investigation into her protests. A copy of the indictment shows that prosecutors alleged Darel had committed felony crimes such as stalking the judge and threatening her ex-husband. They also accused her of harassment, coercion, criminal contempt, and falsely reporting abuse.
Nine months later, Manhattan Criminal Court Judge Carol Berkman dismissed the indictment, mostly for a lack of evidence. In a July 28, 2003 ruling, the judge hinted at her disdain for Darel's tactics— indeed, as the judge wrote, "Her behavior evidences serious mental-health issues." Still, Berkman found "no evidence" that Darel had explicitly threatened or physi- cally harmed her ex-husband or any gov- ernment officials. "Without an intentional threat, defendant's behavior cannot amount to the crime," ruled Berkman, noting Darel had a "constitutional right to be obnoxious."
Meanwhile, in the Family Court proceedings, Judge Sturm extended Darel's time on Rikers after her ex-husband filed a fresh contempt petition. This time, according to the June 27, 2003, motion, he alleged that Darel had "willfully failed to obey the Order of this Court in that: she sent numerous correspondence to his home."
For the next 18 months, Darel would sit behind bars waiting for Sturm to rule on these additional allegations. When the judge did, in November 2004, she found that Darel had violated the protective order by having her ex-husband served with three legal documents. "She has attempted to use the court system to further her own personal vendetta against [her former spouse] and his family on numerous occasions," Sturm wrote. Darel, the judge ruled, must remain in jail for 10 more weeks.
By then, Darel's prison plight had gotten attention. Advocates monitoring the Family Court system heard about the outspoken mother who had landed in jail, and they circulated her story on Internet listservs from New York to New Mexico to California. They appeared at Darel's court proceedings, keeping an eye on Judge Sturm, whom they describe as a domineering jurist with clear hostility toward Darel.
Darel, meanwhile, had been passing time in the prison law library, researching contempt. A judge can find someone in civil or criminal contempt for an act of judicial defiance. A person who commits the criminal variety must serve a fixed amount of time behind bars as punishment. Yet civil contempt gives you the key to the jail door. Do what a judge has ordered you to do, and you get released. That's how it was for most of the women who would cycle through Rikers civil cell because of Family Court contempt orders—they got out whenever they, say, paid their child support.
But Darel could do nothing to get out of prison. Technically she was a civil inmate. Effectively she was treated like a criminal—one convicted without a trial. "The sentence was unconstitutional," Darel claims. "I had a right to a jury trial."
She raised the issue in a writ of habeas corpus that was written mostly by hand. She filed a motion with Sturm to move her case from Family Court to Criminal Court. She called New York attorneys from jail soliciting opinions on her claims.
"I visited her there," says Manhattan attorney Tom Shanahan, who heard about Darel's incarceration in the fall of 2004. He thinks her constitutional beefs are legitimate—and he adds another. "I believe she was cruelly and inhumanely punished," he asserts, referring to the Eighth Amendment. When he saw her at Rikers, he recalls, "She looked like a broken woman. She was serving more time than violent offenders."
Shanahan says he began preparing a writ of habeas corpus to file in federal court on Darel's behalf, in part alleging that she had been wrongly denied a jury trial. But then, in February 2005, she was released. "I still believe she has a case," adds Shanahan, who specializes in custody matters. "Just the way the proceedings went down I don't think flies with her constitutional rights."
Leading civil rights attorney Norman Siegel says that six months without a trial in Criminal Court would clearly violate the Sixth Amendment. Does this standard apply to a Family Court contempt case? "My instinct would say the deprivation of liberty is such a fundamental denial that, at least, the defendant should have a choice" of going to trial, he offers. "It doesn't seem right that, just because you're in Family Court, you could wind up in jail for three years with no jury trial."
Ever since Darel took a bus out of Rikers on February 4, 2005, she has tried to appeal Sturm's sentence in state court.
Last October, the New York Appellate Division upheld the 36-month sentence, ruling that Family Court judges can impose consecutive jail terms under state law and that Sturm had "properly exercised the discretion." It did not address the constitutional issues for procedural reasons; on the First Amendment question, for instance, the court said Darel had failed to raise the issue during the contempt trial.
This month, her attorney, Robin Yeamans, a California family- and constitutional-law specialist, is filing a petition for a writ of certiorari asking the nation's top court to hear Darel's appeal. The writ will hinge on the question of a jury trial, asserting that the U.S. Constitution ensures such due-process protections in Family Court even if New York law does not. "The argument is simple," Yeamans says. "The U.S. Constitution trumps state law."
Yeamans is no stranger to Darel's plight. The attorney filed a writ of habeas corpus to try to force Darel's release from Rikers in January 2005 because, as she explains, "her actions amounted to free speech, whether you agree with them or not." Now, she's writing this latest writ on principle too. "The idea that anyone who gets ensnared in a Family Court case can find herself in prison for more than six months without a jury trial is abhorrent."
Meanwhile, Darel is pursuing her own suit in federal court against Judge Sturm, charging that the jurist incarcerated her "without jurisdiction" and retaliated against her for criticizing her child welfare case. She names ACS officials and her ex-husband as defendants, accusing them of bogus contempt petitions that resulted in her imprisonment. A pro se litigant, Darel wrote the filing herself, arguing the same constitutional claims as her state appeal. She is asking for $200,000 in restitution for the 28 months she spent behind bars. "I'm suing the system for what the system has done to me," she says.
Her chances look slim. The U.S. Supreme Court only accepts 1 percent of the thousands of certiorari petitions it receives. And her federal suit has to get around judicial immunity, a tough task in even the best circumstances.
For Darel, her efforts have personal meaning. Four years have passed since she has seen her daughter, she notes. And she may never get what she really wants—someone to say her daughter was wrongly taken from her almost a decade ago. But maybe her suits will help vindicate her right to fight, she says.
"Would you walk away and say, 'The system is corrupt. I give up'? Would you let it go?"