http://www.sbsun.com/pointofview/ci_15147908
by Randy Burton
"My supposition, ma'am, is that you're lying." Judge Robert Lemkau's presumptuous statement made to Katie Tagle on Jan. 21 would have far-reaching and tragic effects. In denying this mother's basic request for a protective order against her former boyfriend and father of her infant child, Judge Lemkau threatened there would be "adverse consequences" for Katie if she had lied to him.
The grim reality is that Katie was telling the truth, and it would be Katie Tagle's 9-month-old son, Wyatt Garcia, who suffered the consequences of Lemkau's bad judgment when the father, Stephen Garcia, shot the baby to death 10 days later.
Though judges do, indeed, pass judgment on others, they are assumed and ethically obligated to be impartial. However, in spite of the evidence Tagle presented of Stephen Garcia's e-mails threatening to kill their son and himself, Judge Lemkau denied her plea for protection.
Rather than take the law into her own hands, Tagle trusted the legal system to protect her and her infant son from her abusive, homicidal, ex-boyfriend, the boy's father. Instead, Judge Lemkau treated her claims and evidence with skepticism and disbelief. Rather than give Tagle and her baby the benefit of the doubt in the interest of safety, Judge Lemkau's supposition was that she was a liar. By definition, "supposition" is "an opinion or judgment based on little or no evidence."
This morality play is not just about the re-election of a sitting judge. It is first and foremost about an elected official's accountability to the voters for his actions and the sorry state of children's rights in our country. This is not just about a grotesque lapse in judgment. It is about a judge making a deliberate decision, in the face of evidence to the contrary, to deny a protective mother's request to protect her baby son because she dared to assert that her former boyfriend was abusive and dangerous. And, in the process, Judge Lemkau sentenced a baby to death without due process of law.
Judge Lemkau and many of his male counterparts in family courts across our country assume that when a woman alleges child abuse in court they are doing so solely for strategic advantage. Frequently indifferent to the allegations of abuse, particularly allegations of sexual abuse, judges assume that claims of child abuse in custody cases are false, despite numerous national studies indicating that the number of false allegations of sexual abuse in custody cases is very small, and punish those who dare to make such allegations.
As a result, the protection of the child and any due process to which he is entitled are given little or no consideration, and, the abuser is frequently given unrestricted visitation with the child, if not total custody. Child abuse, whether sexual or physical, and child protection becomes only incidentally a custody question.
With a baby's life on the line, Judge Lemkau reportedly spent a total of about five minutes on the entire hearing. Lemkau stated, "All I had were the e-mails," but that is untrue. Police reports and an emergency protective order (EPO) issued eight days earlier by Judge David Mazurek were also admitted into evidence. Clearly, Judge Lemkau chose to ignore Judge Mazurek's prior decision recognizing the danger posed to Baby Wyatt and his mother.
It is every judge's job to carefully consider all the evidence before making a decision. Judge Lemkau failed to do so and wrongly pre-judged the case.
The court transcript shows Lemkau issued his decision almost immediately after the hearing began, without giving Baby Wyatt's mother, Katie Tagle, an opportunity to fully present her evidence. In fact, Lemkau interrupted Tagle virtually every time she attempted to speak and present her side of the case.
Judge Lemkau stated in a recent media interview that what's important is not what was said in court that day, but what he did. What Judge Lemkau did and what voters should judge him on was his decision to ignore the credible evidence before him, his failure to investigate threats against a child's life, his apparent bias against allegations of abuse, and his failure to ensure a baby's safety.
Randy Burton is a former assistant district attorney for the Harris County District Attorney's Office in Houston, where he served as the chief prosecutor of family offenses. Burton is also the founder of Justice for Children, a national child advocacy organization.
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