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Wednesday, 21 March 2012

Kenneth Miller Case: The Prosecution's Response

Tristam Coffin has offered up his rebuttal of Kenneth Miller's Motion to Dismiss. I won't go over it all in detail, but here are my initial impressions:

 [The Motion] suggests that Janet Jenkins should have visited IMJ in Nicaragua or could have obtained an order preventing Lisa Miller from taking the child to Nicaragua if she did not wish her to go. Def. Mot. ¶ 18. In addition to ignoring the facts that Lisa Miller did not tell Janet Jenkins or the family court of her plan to remove the child to Nicaragua, that Lisa Miller intentionally avoided flying out of or through the United States in order to make her removal more difficult to track, that Lisa Miller and her daughter dressed as Mennonites during and after their travel, that they took false names once in Nicaragua, and that Lisa Miller made no effort to inform Janet Jenkins or the Rutland Family Court of her location once she took the child to Nicaragua, this argument fails to raise a valid issue.

This was kind of a dumb move on the defense's part. It is now obvious when Lisa Miller left Virginia with IMJ that she a) had no intention of allowing Janet Jenkins any further contact with IMJ and b) intended to go where Ms Jenkins couldn't follow. The defense could have chosen not to contest this in pre-trial motions, and it was less than fully honest to even suggest otherwise. I suspect that the Defendant's Counsel is padding his bill and agree with the Prosecution on this point.

Further, the statute protects the court-ordered parental rights of all individuals, not only biological parents. See United States v. Alahmad, 211 F.3d 538, 540-41 (10th Cir. 2000) (upholding conviction of father who took child out of country preventing maternal grandmother from exercising court-assigned parental rights). 

This is an extremely feeble response. Grandparents have rights based on a biological relationship. This was a case of two different people, both with a biological relationship to the child. No court has ever ruled to take a child away from the biological parent and give it to someone neither related to the child, nor listed on the birth certificate, merely on grounds that the real parent wanted the child all to himself.

 This protection for state court custody determinations parallels Congress's requirement that states give each other's custody orders full faith and credit. Under 28 U.S.C. § 1738A, titled "Full Faith and Credit Given to Child Custody Determinations," Congress requires states to respect each other's child custody determinations when those determinations are made by a court with appropriate authority, and further assigns a court with initial responsibility for a child custody matter to retain jurisdiction over that matter. See 28 U.S.C. § 1738A; see also Miller- Jenkins v. Miller-Jenkins, 276 Va. 19, 23 (2008) (upholding Virginal Appeals court decision according full faith and credit to Vermont's assignments of parental rights in dispute between Lisa Miller and Janet Jenkins).

This is where it becomes a Constitutional Issue. Can the Virginia Appeals Court strike down the application of Virginia's Constitutional prohibition of same-sex marriage, without striking down the prohibition itself? This is not for a federal judge in Vermont to decide.

At the time Lisa Miller kidnapped IMJ in September 2009, Janet Jenkins had parental rights. . . Those rights had to be honored by other states, including Virginia. . . Jenkins's parental rights were expanded in November 2009 when Miller's abduction of IMJ was discovered. Lisa Miller's removal of her child also anticipated this transfer of custody and strove to frustrate it. Because Janet Jenkins had visitation rights – parental rights under the IPKA – at the time Lisa Miller took IMJ to Nicaragua, Lisa Miller's removal of IMJ from the United States in 2009 violated Janet Jenkins's parental rights. Further, Lisa Miller's removal of IMJ also frustrated the anticipated transfer of primary physical and legal custody from Lisa Miller to Jenkins, again violating Jenkins's parental rights. Kenneth Miller's assertion that Janet Jenkins had no parental rights over IMJ in Virginia is incorrect. 

This is a dispute between the jurisdiction of two different states; clearly something that will have to be decided by the Supreme Court. For that, Defense is going to have to file another Motion.

Janet Jenkins had parental rights to IMJ throughout the United States at the time of Lisa Miller's departure; rights Lisa Miller knew would expand when she took IMJ away. 3. Lisa Miller's Parental Rights do not Negate her Crime Kenneth Miller suggests that somehow because Lisa Miller had her own parental rights to IMJ, and in fact had primary physical custody of IMJ in September 2009, that she could not have violated the IPKA by removing IMJ from the United States, even if such a removal violated Janet Jenkins's parental rights. As the appellate courts have made clear, however, the rights of the removing parent do not defend against a violation of the IPKA.1 In United States v. Miller, the Second Circuit upheld a decision from this Court finding a mother, who had primary custody of the child, guilty of international parental kidnapping because the removal of the child violated the father's parental rights, rights to limited, supervised visitation. 

It's looking pretty clear that this case is against Lisa Miller, not Kenneth Miller. In order to have enough evidence to indict, there has to be indication that Ken Miller, not Lisa Miller, was aware that what he was helping her to do was illegal. No such allegations have yet been made, yet they are essential to the charges.

 While Kenneth Miller does not dispute that Lisa Miller's removal of the child was intended to obstruct Jenkins's exercise of lawful parental rights, the timing of Lisa Miller's actions, during a period when the Rutland Family court had made clear that if Lisa Miller did not allow Jenkins's visitation that the court would transfer primary physical and legal custody of IMJ to Jenkins, strongly supports the conclusion that Lisa Miller's goal in removing the child was to continue to frustrate the current visitation orders and prevent any transfer of primary custody from Miller to Jenkins. As in Miller, Lisa Miller's intent may be inferred from her knowledge of the court's orders and the circumstances surrounding her departure. long as [one parent] had `parental rights'– a term encompassing even mere visitation rights- [the other parent] was not permitted to take the children outside the United States with the intent to obstruct those rights."

Sounds like a great case against Lisa Miller. But not against Kenneth.

Ignorance of the law is also no defense. In Fazal-Ur-Raheman-Fazal, the removing parent argued that he could not be convicted of international parental kidnapping because his actions did not violate Massachusetts law, and because he was not aware that they violated federal law. Id. The First Circuit quickly dismissed this argument, explaining that it did not matter if the defendant's actions were legal in a particular state or if the defendant was "confused about Congress's authority to prohibit conduct not proscribed by state law;" removing a child from the United States in violation of parental rights violates the IPKA. Id.; see also United States v. Sardana, 2004 WL 1340298 (2d Cir. June 16, 2004) (unpublished)(finding no requirement that defendant knew his acts were unlawful and no defense that defendant believed his acts were legal). 

Ah, but ignorance of the law is a defense for purposes of "intending to frustrate lawful parental rights." One simply cannot intend to frustrate lawful rights while ignorant of the law, and of rights deriving from that law. Tristram Coffin is has no grounds on which to stand, here.

In this case, the indictment, which clearly states that the alleged conduct occurred "in the District of Vermont and elsewhere," properly alleges venue in Vermont. The Court should not, therefore, dismiss the indictment for lack of venue at this stage. If material facts related to this allegation remain in dispute after evidence is submitted at trial, the court should submit the question of venue to the jury for determination under the preponderance of the evidence standard. In this case, the evidence submitted will establish that venue is proper in the District of Vermont. 

But the alleged conduct did not occur in the District of Vermont. It all occurred elsewhere. Thus the indictment is wrong on its face. And this is not just a conflict of two conflicting venues for the same crime; this is a question of being tried in one state for conduct in another state; conduct that was not even illegal in the state in which it was committed. The Constitution expressly forbids this.

By statute, where an offense extends across several districts, it may be prosecuted in any district in which it was begun, continued or completed. 18 U.S.C. § 3237(a); Royer, 549 F.3d at 893.

Amen! And Vermont was none of those, unless you count the fact that he was taken to Vermont for the express purpose of arresting him for the crime--which flies in the face of American Liberty.

In this case, the Government will argue in the alternative that, to the extent the offense is a continuing offense, venue based on the essential elements of the offense is proper in Vermont and, to the extent the essential nature of the offense arises outside the United States, venue is proper in Vermont as the district of arrest.

The Prosecution could have pushed this point in the case of Timothy Miller, whose conduct was solely outside of the US--but they dropped the charges in that case. In this case, however, all of Kenneth Miller's culpable conduct took place within the US, or at least at a specified border crossing leading out of a particular place in the US. Once Lisa Miller crossed out of the US, Ken Miller's part in the escape plan was over.

Kenneth Miller is charged with aiding and abetting international parental kidnapping. The elements of the offense are 1) Kenneth Miller knew that the crime charged (removing the child from the country in order to obstruct parental rights) was to be committed or was being committed; 2) Kenneth Miller knowingly did some act for the purpose of aiding/encouraging the commission of that crime; 3) Ken Miller acted with the intention of causing the charged crime to be committed; and 4) Lisa Miller committed the charged crime (meaning (a) the child was previously in the United States; (b) Lisa Miller took the child from the United States to another country; and (c) Lisa Miller acted with the intent to obstruct the lawful parental rights of Janet Jenkins.

It sounds to me that assuming Lisa Miller's guilt is an essential element in the case, and that shouldn't be allowed. That should wait on a guilty verdict in her trial. But beyond that, the charges allege to have read Kenneth Miller's mind. Absent a confession, phone tapping, or email intercept to show that he did know that what he was doing was for the purposes of being illegal, this is an unsubstantiated charge and should be thrown out of court. The prosecution is conflating the actions of Lisa Miller with those of Ken Miller, in order to hobble together a charge that implicates her without implicating him. Since it's Ken Miller who is on trial, not Lisa, the prosecution cannot assume her guilt as the only basis for accusing him.

Well, this case is obviously going to drag on for a while. The Prosecution is obviously hoping to get IMJ back to her wicked stepmother before she turns 18, but there's something they may not have thought of. If Lisa Miller can just keep her daughter home for another 3 or 4 years, she'll be sent off to Ms Jenkins already old enough to have her own Internet account. And we already know what having one's own Youtube or Facebook account can do to expose parental misconduct. If what Lisa Miller is alleging about how her daughter was being treated by Ms Jenkins is true--and resumes, should this custody battle go her way--the whole world will be able to see the evidence for themselves.

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