The case of a woman behind bars for refusing to disclose the whereabouts of her son gives the Supreme Court an opportunity to refine how the Fifth Amendment protects people against self-incrimination, lawyers say.
Ralph Tyler III of the Maryland attorney general's office plans to argue before the high court Tuesday that the importance of protecting an endangered child outweighs the constitutional claim of Jacqueline Bouknight, who has been jailed in Baltimore for 18 months for contempt of court.Her lawyers say the case could affect whether courts may use their contempt powers to persuade defendants to produce evidence that could help convict them.
"If Ralph were right . . . we wouldn't need a criminal code. We could just hold people in contempt until they produce the evidence," said George Burns Jr., a state public defender who is representing Bouknight.
City social workers have not seen Bouknight's son Maurice, now 3 years old, for more than two years and fear he may be dead.
Maurice, born on Oct. 3, 1986, was hospitalized twice before he was 4 months old with pneumonia and a broken leg. Social workers said his mother was seen shaking the baby and dropping him into his hospital crib. According to prosecutors, X-rays revealed the child had previous bone fractures.
The state took protective custody of the child for several months, but his mother regained custody in July 1987, after promising not to physically punish him and to undergo training in parenthood.
Nine months later, after social workers said Bouknight had ceased to cooperate with them and would not show them her son, a juvenile court issued a civil contempt order that she be jailed until she revealed his whereabouts.
Bouknight, now 23, remains in the Baltimore City Jail. Her attorneys refused to allow her to be interviewed, saying she is hampered by severe learning difficulties, although she meets legal standards of mental competency.
Maurice's father, who had been jailed for distributing cocaine, was shot to death in March 1988, and Bouknight had a history of drug use, according to testimony in juvenile court.
Defense attorneys say if the child has been harmed or killed, Bouknight would be the most likely suspect, even if someone else were responsible.
The Fifth Amendment forbids authorities from compelling people to testify against themselves but does not prohibit courts from ordering them to perform certain actions, Tyler said. For example, courts have held that suspects can be required to provide samples of their blood, handwriting and voice and to stand in a police lineup.