Qualified Immunity

by Aime Austin

  “Your witness.”

  Casey dispensed with the niceties. This wasn’t going to be a cozy discussion about reunification. She needed to discredit this worker’s so-called expertise and she needed to do it now.

  “Was Judge Grant invited to participate in the ADD family education sessions at Euclid Hospital?”

  “No.”

  “Despite this, didn’t Judge Grant come to the first class? Make an attempt to participate in the class, introduce herself to the teacher, and interact with Olivia?”

  “Yes.”

  “At your request, did the hospital have security escort Judge Grant from the premises, rather than allow her to stay?”

  “Yes.”

  Casey took her seat at counsel table. “No further questions.”

  Foster was putting one nail, then the next in Judge Grant’s coffin. Each witness was another bang of the hammer. Lyn Byers painted Judge Grant as a mother who didn’t do PTA and forgot to pick up her daughter. In haunting terms, she told the story of Olivia breaking into her own house.

  Casey’s cross examination hammered home the facts, skirting feelings and innuendo.

  “So, you’ve never seen Judge Grant drink, have you?”

  “No.” Byers’ voice was clear.

  “You’ve never seen Judge Grant interact with Olivia?”

  “No.”

  “And if I told you, Judge Grant started her morning docket at eight-thirty and sometimes ended well after five, would you think it reasonable that she couldn’t attend Mommies and Muffins or PTA meetings?”

  “Yes.”

  “Thank you. No further questions.”

  “Counselors, how many additional witnesses do we have? Mr. Foster?”

  “I have no further witnesses Your Honor, though I’d like to keep the door open for rebuttal,” he said.

  “Ms. Cort?”

  She stood, smoothing down the wrinkles in her silk suit. “I plan to call three in addition to my examination of the GAL.”

  “We’ll take a fifteen-minute recess. Ms. Cort, be prepared to present your case when we come back.”

  “Your Honor,” Casey said when they returned from the break, “I call Keith Grant to the stand.” She didn’t look behind her when someone gasped. No longer accompanied by his girlfriend or lawyer, the walk from the back of the courtroom to the stand looked lonely. He sat wearily and gave his name and address for the record.

  “Good afternoon, Mr. Grant. Thank you for testifying today. Did you know that Olivia wasn’t your natural daughter?”

  “No, not until…no,” Keith said, his voice visibly shaking.

  “I’m sorry that you had to find out that way. I’m going to ask you some questions about Sheila and Olivia. Are you up to answering?”

  Regaining some of his composure, Keith said, “Yes.”

  “When did you meet Judge Grant?”

  “Sheila and I met in high school—Glenville. Her first boyfriend died in Taiwan then we got together. We were married in the summer of nineteen seventy-four, before Sheila started law school.”

  “When was Olivia born?”

  The lines that had etched his face, eased. “She was born on December thirteenth nineteen eighty-eight. We called her our early Christmas gift.”

  “When did you and Judge Grant divorce?”

  “We broke up in early nineteen ninety-one, right before Sheila became partner.”

  “After your divorce was final in nineteen ninety-two, how often did you visit with Olivia?”

  “In the beginning, nearly every other weekend. My mom would pick her up and I’d stop by. When Mom died, I saw her less.” He seemed to shrink back into the chair. “Until this case happened, I hadn’t seen her for a few years.”

  “When you lived with Sheila, did you see her drink?”

  Keith nodded. “Not a lot—at least compared to some of the other lawyers she knew. I went to a lot of those events and they served alcohol like it was water. Everyone drank at those events.”

  “Did you see Judge Grant drunk?”

  “No.” His head shake was emphatic.

  “Did she drink at home?”

  “Never.”

  “Did you ever worry about the safety of your dau—” Casey caught herself, “of Olivia?”

  “No.”

  “No further questions.” Casey turned to Foster. “Your witness.”

  Dick Foster rose, no notes in hand. “Mr. Grant, were you surprised to find out Olivia wasn’t your daughter?”

  “Yes,” Keith said, his head sinking in what looked like shame.

  “If you didn’t know this one important thing about Sheila, how can the court trust your judgment on Mom’s behavior? Clearly, you don’t know when she’s lying or telling the truth. How can we know if you could tell she was drunk or sober?”

  Casey jumped to her feet. “Objection! Not only is the prosecutor asking a compound question, he’s practically testifying. The reason Keith Grant is more qualified than any of you to judge my client’s behavior is because he’s known her most of her life. He didn’t waltz in a few months ago and make a snap judgment about this family.”

  Foster’s face turned red. “But what kind of mother doesn’t even know her daughter has ADD? This is a special needs—”

  Judge MacKinnon banged her gavel on the bench until Foster stopped. “I never use my gavel. Today is not the day I want to start. Counselors, stop this right now. Mr. Grant, you’re excused. Mr. Foster, one question at a time. Ms. Cort, no speaking objections. Ms. Cort, call your next witness,” Judge MacKinnon

  “I call Melanie Whitcomb.”

  Foster was on his feet before Casey could get out the last syllable of the witness’ name.

  “Your Honor, I object to this witness. She’s some professor Ms. Cort called in. I don’t see how her testimony could be germane to this hearing.”

  “Maybe you should wait until she testifies before you ask the court to disqualify out of hand,” Casey shot back.

  Judge MacKinnon’s gavel cracked down several times. “Counselors, no more of this back and forth. You’re presenting the case to me, not to each other. Mr. Foster, this is a bench trial. I’ll make the determination of witness credibility, expert status and relevance. Now, let’s get on with this. Bring in the witness.”

  Fresh from New York City, Whitcomb hadn’t replaced her all black attire with something more Midwest appropriate. She may have been an attractive woman, but her pale face was mostly hidden by long, dark hair and plastic horn rimmed glasses. Sworn in, she took the stand.

  “What is your educational background and current position?”

  “I graduated from Yale and Northwestern Law School. I was appointed to an assistant professorship at New York University Law School two years ago. I research race and the child welfare system.”

  “Can you tell me about your recent publications?”

  “My most recent book is Black Children and the State. Previously, I published Saving our Family Courts. I’ve also written about a dozen articles on family law, juvenile law and child custody.”

  “Objection, Your Honor,” Foster said, pulling himself up to his full height. “I still don’t see what any of this has to do with Olivia or Sheila Grant.”

  “Excuse me, I haven’t even had the opportunity to get into the substance of this witness’s testimony.”

  Judge MacKinnon banged her gavel again. “Mr. Foster, objection overruled. Ms. Cort, you can continue, but get to the point.”

  “Professor Whitcomb, in the six years you’ve been studying foster care, have you found any correlation between race and care?”

  “Yes. African American children make up more than fifty percent of the foster care population.”

  “What percentage of children in the U.S. are black?”

  “Less than twenty percent.”

  “What about time spent in foster care?”

  “The average time for African American children is thirty-seven months, while it’s only seven
months for white children.”

  “Let’s turn to Cleveland. What percentage of Cuyahoga County is black?”

  “Twenty seven percent.”

  “And what percentage of the children in the county’s custody are black?”

  “Seventy six percent. Most children come from the cities of Cleveland or East Cleveland.”

  “According to your research, why the disparity?”

  “It’s caused by a combination of factors, most of which center around race and our perceptions of drug and alcohol use. There’s a belief, partially spurred on by the crack cocaine epidemic, that blacks use more drugs and alcohol than whites. The truth is that substance abuse is the same across races and socioeconomic class.”

  “How does this bias play out?”

  “In several ways. First, poor women on Medicaid, many of whom are minority, are routinely tested for drugs during health screenings. If they test positive, their children are removed. Second, substance abuse is perceived as more prevalent in the black population, so when indicators of abuse are spotted, it results in confirmation bias and intervention.”

  “Thank you, Professor Whitcomb. Your witness.”

  “Professor Whitcomb,” Foster’s voice held a note of condescension. “You’ve made some very interesting statements in court today. And I have no doubt there are some biases that should be eradicated from our system. But now I turn your attention to Olivia and Sheila Grant, who are the subjects of our hearing today.”

  “Your Honor,” Casey was exasperated with Foster’s grandstanding.

  “I assume there’s a question coming, counselor,” Judge MacKinnon said.

  “Yes, Your Honor. Ms. Whitcomb, have you been paid to testify here today?”

  “No. I’m not an expert for hire. I’m a law professor.”

  “Are you saying you paid your own way here?”

  “No, my airfare and hotel are being covered.”

  “Have you met Olivia Grant?”

  “No.”

  “Have you met Sheila Grant?”

  “No.”

  “No further questions.”

  Casey gathered up several sheets of paper and took a deep breath. This was going to be the most difficult witness examination of her short career. “Your Honor, I call Judge Sheila Harrison Grant to the stand.”

  With what Casey thought of as extraordinary confidence, Judge Grant strode to the bench.

  After Judge Grant was sworn in, Casey asked her first question. “What’s your occupation?” She wasn’t above using Judge Grant’s position for whatever intimidation it provided.

  “I’m a federal district court judge in the Northern District of Ohio.”

  “Before you were a judge, what did you do?”

  “I was a partner at Bennett Friehof and Baker.”

  “When did you join Bennett?”

  “I started as a summer associate in nineteen eighty-one and started full time in the fall of nineteen eighty-two.”

  “Were there other African American lawyers at the firm when you started?”

  Sheila shook her head woefully. “No, I was the first black attorney they hired and one of the first women at the firm.”

  “How long were you at Bennett before you made partner?”

  “I was there thirteen years before I was promoted. Olivia was three at the time.”

  “How long was it before other people in your class made partner?”

  “It was about six years.”

  “You had to wait more than twice as long before you made partner?”

  “Yes.”

  “During those years you were working for a promotion, what kind of hours did you work?”

  “Except right before and after Olivia’s birth, I worked more than twelve hours a day, on average.”

  “Who cared for Olivia?”

  “If Keith was out of work, he did the heavy lifting. Otherwise, it was his mom or mine.”

  “When you were working at Bennett, was there a certain amount of socializing expected?”

  “Absolutely. There were summer mixers at partner’s houses, Indians games, Browns game, and client dinners.”

  “Did you drink during these occasions?”

  “Of course. I was trying my best to be ‘one of the boys.’ There was a lot of social pressure to drink. In order to get ahead, I bowed to that pressure.”

  “Now that you’re no longer with Bennett, do you drink?”

  “Occasionally,” Judge Grant cast a sidelong glance at Judge MacKinnon. “Being a judge is very stressful. Much of the time, you’re making life or death decisions by yourself. Sometimes I have a glass of wine to unwind.”

  “In earlier testimony, Olivia’s counselor, Alison Feingold claimed you drank a bottle of rum every night. Is that true?”

  “No, I’m not even sure how she came up with that. I do have mixed drinks when my girlfriends come over.”

  “Would you consider yourself verbally abusive toward your daughter?”

  Judge Grant looked properly affronted. “Absolutely not.”

  “In Feingold’s testimony, she said that you’d called Olivia a ‘poor excuse for a child.’ Is that true?”

  “No, it’s not. I’ll be the first to admit I get angry with Olivia when it comes to achievement. She’s a precocious girl, but she doesn’t apply herself in school. I’m a firm believer that education can change the path of one’s life. I don’t want Olivia shirking her responsibility to herself.”

  “Did you realize that Olivia might be suffering from attention deficit disorder?”

  “I don’t agree with that diagnosis, first of all. I’ve read that black children are often over-diagnosed with ADD and ADHD, which goes right along with these kids being overrepresented in remedial classes and otherwise segregated in school. But it’s my intention to have Olivia tested again by our doctor. If the diagnosis rings true, I’ll do whatever’s necessary to help her.”

  Casey led Judge Grant through all the steps she’d made to extend visits with her daughter as well as the incident at Euclid Hospital. She hoped the portrait she’d painted was one of a single mother working hard to succeed, thwarted at every turn by others’ expectations of what a mother was supposed to be and ‘the system.’

  “What happened last October, when Olivia broke the glass to unlock the door?”

  “She had asked to go out with some friends to a birthday party. The girl’s mom and I agreed that she would get a ride home. Olivia forgot her keys. I’m a working mom and Olivia’s always known the rule: take your keys with you. But she’s a kid, she forgets. The party ran late and I fell asleep while waiting for her.

  “You have no idea how sorry I am it happened, especially in light of the implications. But I paid the landlord for the damage and Olivia learned her lesson. End of story.”

  “Do you consider yourself a good parent?”

  “I do the best I can. I have always provided for Olivia. I love her,” Judge Grant made her first show of emotion. She didn’t speak for a long moment. “I’ve always provided food, clothing, shelter, encouragement. I had to be there for her when Keith disappeared. I made sure she went to school every day. Had positive after-school activities.”

  Judge Grant’s voice grew rusty, but she soldiered on. “I love my daughter with all my heart, and I’m the best person in this world to care for her.”

  There was nothing that could trump a mother’s love. “No further questions, Your Honor.”

  Casey walked back to her now empty table, and crossed her fingers in her lap. She had no doubt her client would hold up to cross examination, but hoped a little of that motherly love she’d just exhibited shone through her testimony.

  Foster rose to the podium. “How long did you know Keith Grant wasn’t Olivia’s father?” Casey uncrossed her fingers and gripped her thighs. Somehow the trial had migrated from child neglect to a morality play. She’d never had a lot of sexual partners, herself, but women made missteps. It was no reason to lose a child. If that were
the case, many a mother wouldn’t have their kids.

  “I made a mistake. I wasn’t sure if Keith was her father. But for the sake of my daughter and my marriage, I didn’t disclose my doubts.”

  “Who is Olivia’s father?” Silence stretched in the courtroom. For long seconds, there wasn’t a single sound until Otis entered the courtroom. Casey looked back as the woman’s flaming red hair caught the fading sunlight. “Judge MacKinnon, please instruct the witness—”

  “Judge Grant,” MacKinnon said. “Answer the question posed.”

  “I don’t know,” Judge Grant said, steel back in her voice.

  “I find that hard to believe,” Foster said sardonically.

  Casey jumped to her feet. “Objection to the prosecutor’s characterization of my client’s answer. The putative father was served by publication. There is no further issue.”

  “Sustained,” Judge MacKinnon said. The next was directed to Judge Grant. “I’ll ask you one last time. Are you going to disclose, in this courtroom today, who Olivia’s biological father is?”

  “No,” Sheila said curtly.

  “Well Mr. Foster, Judge Grant has elected not to give information about the father. She will accept the consequences of that decision. Now, let’s move on.”

  “Okay, Miz Grant, isn’t it true that you drink to excess every day?”

  Judge Grant sat bolt upright. “No, Mr. Foster, that isn’t true.”

  “Isn’t it true that you didn’t fall asleep on that October night, but that you passed out?”

  Judge Grant’s head shake was vehement. “No.”

  “No further questions, Your Honor.”

  “Anything further, Ms. Cort? Mr. Foster?”

  When they answered in the negative, MacKinnon excused Judge Grant. “I call Sherry Otis as the court’s witness,” MacKinnon said.

  Before Otis made it to the stand, Jackie Foley jumped up and left the courtroom, her phone flipped open and pressed to her ear. Probably another child in crisis, Casey thought, then turned her attention to the guardian.