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Open Justice: Little girl's murder brought New York's juvenile court proceedings into the light

Monday, September 24, 2001

By Barbara White Stack, Post-Gazette Staff Writer

Elisa Izquierdo's mother slammed the 6-year-old's head against a concrete wall, causing the child's brain to swell and press against the unyielding walls of her skull. It was Thanksgiving 1995. Elisa's years of torture, starvation and humiliation were over.

She'd have been nothing more than the 58th youngster to die by child abuse in New York City that year if it weren't for the fact that she'd charmed Prince Michael of Greece into becoming her education benefactor after her private preschool introduced him to her. She was special, and the city, even the nation, demanded to know how the beloved child of a father, who'd cared for her until he died of cancer, could become the tormented daughter of a crack-addicted mother known to the child welfare system.

Six-year-old Elisa Izquierdo's murder at the hands of her mother launched the crusade to open juvenile court hearings in New York state. (Associated Press photo)

No one would answer. That's because New York, like most states shielded abusive and neglectful families from public exposure by sealing child welfare records and juvenile court hearings.

That secrecy also meant no one could examine the behavior of child welfare agencies or juvenile courts, and no one in the system would ever have to answer tough questions.

The controversy over the official silence became New York Chief Justice Judith S. Kaye's conundrum.

The New York Daily News was hammering Kaye from its editorial pages, demanding open hearings. Opponents were slamming her with the admonition that open court would further victimize abused and neglected children.

Caught between the tradition of secret hearings and the demand for significant change, a more timid judge might have made the easy choice to do nothing.

But Kaye, a crusading court reformer, felt secrecy let the system escape accountability. She believed citizens in a free society have a right to observe, question and criticize their governmental institutions.

So on June 18, 1997, she unlocked the doors to New York's Family Courts, declaring, "Sunshine is good for children."

The question, after four years of open hearings in New York, is whether that's proved true. Kaye says it has. The public got access, and that has prompted improvements in the court. At the same time, Kaye says, she hasn't received one allegation that a child has been hurt by open hearings.

 
 
OPEN JUSTICE

Day Two
Second of three parts

Indiana: Visibility boosts credibility

Illinois: In this state, long-standing acceptance

Freedom to speak can lead to reform

Day One

The trend toward opening juvenile court is now gaining momentum

   
 

"Everyone complains about everything in New York. Is there anything they are not all up in arms about? But we've had no complaints about this," Kaye says.

Her deputy, Jonathan Lippman, chief administrative judge for the New York State Unified Court System, agrees, "It has been 100 percent positive with no negatives. There is not a negative I could think of, and believe me, I am very sensitive on this issue. Our worst critics will say it was the best thing we ever did. Their fears were unfounded."

It's true. The success of open hearings has converted even the critics in New York.

Among the one-time opponents, for example, was Michael Gage former administrative judge of the New York City Family Court. Now she doesn't want to be recalled as a naysayer. Four years after the doors opened, she says, "I think it worked. From my view, it worked remarkably well."

A right abridged

As if the city weren't inflamed enough, the procession of mourners past Elisa's casket saw, to their horror, the bruises on the child's face. Photos of her five brothers and sisters at the grave ran in the papers the following day, and New Yorkers wondered how the children could have stood by while their mother burned, beat, sexually assaulted and starved their sister.

Seeking answers to those questions and others about how Elisa had been placed with her violent mother following her father's death, and left there despite complaints to the child welfare agency, reporters asked to cover the hearing in juvenile court that would determine where the half-brothers and sisters would go after their mother was jailed.

It was an audacious request because at that point, reporters were prohibited from even entering New York's juvenile court buildings.

But the lawyer for the Daily News had discovered something she believed should guarantee access to the hearings.

Eve B. Burton, now vice president and chief legal officer for CNN, but then vice president and assistant general counsel for the Daily News, found this in New York's statute books: "The sittings of every court within this state shall be public, and every citizen may freely attend the same."

It is a right given New Yorkers in state law, but in 26 other states, including Pennsylvania, it is a guarantee in state constitution, albeit one that is regularly ignored.

Burton and other media lawyers argued that automatic closure was based on legal fiction and urged Manhattan Family Court Judge Sara P. Schechter to open the hearing for Elisa's brothers and sisters.

Schechter granted the request, explaining, "There is no privacy left to consider. The most sordid details of their lives already have been reported in the popular press, and any that may have been overlooked will undoubtedly emerge during the criminal proceedings. The only real issue is whether the surviving children who are the subjects of this proceeding may be harmed by the presence of the press, and, if so, whether that risk is strong enough to outweigh the importance of press coverage."

While opponents had argued that opening the doors would hurt the children, Schechter said keeping them closed could do the same: "The ultimate effect of prohibiting press access to the court itself can only be the dissemination of inaccurate and incomplete information."

Whose business?

Attorneys for the children immediately appealed, asserting that the massive media crush upset the children.

"Elisa's siblings did not want people to know their family business," recounts Monica Drinane, director of the organization that represented the children. "They felt there was no place in New York City that they could go without everyone knowing the most personal things about them and their family."

Her organization, the Juvenile Rights Division of the Legal Aid Society, sought extraordinary secrecy. It asked the judges to kick reporters out of the appeals hearing. The judges did that. It also asked the court to evict the lawyers representing the reporters. The appeals court did not go that far.

The appeals court reversed Schechter and ordered a secret hearing on the fate of Elisa's siblings. The judges said divulging more information would cause Elisa's half-brothers and sisters to further reject their mother -- the woman charged with abusing and murdering their sister.

In addition, the court said, "The increased publicity would undoubtedly exacerbate the children's anxiety and fear of rejection by friends and teachers and schoolmates and impact their sense of self-esteem. This potential re-victimization of the already emotionally fragile children would result in irreparable harm."

This decision and two others in which the appeals court overturned Family Court rulings opening hearings had a chilling effect, Burton says. "These three decisions sent an undeniable message that closed courtrooms were now legally mandated in virtually every case."

Undaunted, she and the Daily News renewed their campaign for routine access to juvenile court hearings. The paper argued in editorials that closed hearings failed to shield children who, like Elisa's siblings, were written about anyway. Instead, it said, secrecy protected caseworkers, lawyers and judges who had sent Elisa to live with her mother over the protests of Prince Michael, Elisa's preschool teachers and relatives.

Finally, Justice Kaye, who had worked through law school as a copy editor for the Hudson Dispatch, visited the Daily News editorial board. They persuaded her to establish a committee to study the issue. Kaye named Burton, Judge Gage; the chief lawyer for New York's child welfare agency, and Jane Spinak, then head of the Juvenile Rights Division of the Legal Aid Society, which had won the appeal to close the hearing for Elisa's siblings.

Gage recounts that at the first meeting Spinak began attacking Burton about the media coverage of Elisa's siblings. She fumed about reporters following the children to the funeral home and photographing them.

It was useless for Burton to explain that reporters were reduced to that because everything about child welfare was "confidential."

Burton could not win over Gage and Spinak. She decided the issue was like abortion -- one on which people would never be talked into switching sides.

With the committee deeply divided, Kaye acted anyway. The state's law requiring open hearings was persuasive. But she also had made reforming Family Court her top priority since becoming chief justice in 1993, and she felt open hearings would aid that goal.

Any good court supervisor should come to the same conclusion, she contends.

"This is good, sound court administration. You want your court functioning in top-flight condition. Having the court open to the press and public goes hand in glove with that. If you keep this court closed, then a lot of bad habits and corner cuttings that go on when things are out of sight foster and grow. That is not good for children."

So she opened the doors. "The Family Court is open to the public," she announced. "Members of the public, including the news media, shall have access to all courtrooms."

Judges would retain authority to close hearings, or parts of hearings, if they determined that permitting access would have a direct and provable negative effect on the children.

To those who complained, Judge Lippman counseled, "If you care about these children and families, the worst thing you could do is keep the court closed. We are never going to get the resources and public attention we need if we keep it locked up."

When reporters finally got into New York's juvenile court buildings, they wrote about more than the hearings.

The Daily News described them as courts of shame. Stories detailed inadequacies -- crowded hallways, filthy and dilapidated buildings, paperless bathrooms and grinding delays.

"I felt terrible when I saw it," Kaye says, "But I knew full well by opening the courts we would be subjected to that criticism." Family Courts were shabbier than any others, and she knew part of the reason was that few but poor families ever saw them.

Now major repairs are under way.

Similarly, some judges now use the openness to promote other improvements. Jody Adams, a Manhattan Family Court judge, wrote The New York Times last February urging the press and public to come see the heartbreaking delays caused by what essentially was a slowdown by lawyers who represented poor parents.

Paid what they say is paltry --$40 an hour -- these attorneys had refused to take new cases. That meant parents couldn't get lawyers, so cases were postponed and children's lives were left in limbo for months.

Adams believed if enough people came to court and saw the terrible impact of inadequate counsel, they might successfully pressure their state legislators to allocate more money for the lawyers.

Although opening the courts is painful because no one wants to be criticized, Lippman says, "We got just what we wanted, some attention to the importance of this court and more resources for this court. People understand more what the court is about."

The consequences

Elisa's brothers and sisters have resumed lives of obscurity now. After Elisa's mother was sent to prison for 15 years, reporters rarely wrote about the surviving children, no one covered their hearings. Their last names are different from Elisa's and are common in New York. It's unlikely anyone would recognize or remember them.

Still, several have experienced emotional problems. Gage, who once frustrated Burton on the open hearing committee, now concedes, "If their lives do not go well, it may not be because of the media attention." It may be more a result of having witnessed their mother torture their sister.

Gage and other one-time opponents of open hearings appear to have been won over by good results and no obvious injuries to children.

"I cannot think of an area of the court that suffered," Gage says, "The litigants may feel differently, but they did not complain to me about it."

Spinak, Burton's other committee foe, now says, "The consensus now is that it is better open than when it was closed."

She notes that groups such as Child Welfare Watch routinely monitor the court and publish their observations about deficiencies.

The city's most famous child advocate, Marcia Robinson Lowry, known nationally for her class action lawsuits filed by Children's Rights Inc., would oppose open hearings if she were a stereotype. Instead, the woman who has spent her entire career attempting to improve the child welfare system says open court offers a new way to seek change.

"This is an opportunity for advocates to go to the press and say this is a problem, please look at it. It gives advocates another tool," she says.

Spinak's successor as the chief child advocate at the Legal Aid Society says her unit seeks to close a hearing only about once a year, and those requests are granted only about half of the time.

And she does not automatically recommend that her child clients avoid reporters. Some children don't want their family exposed, she says, but some find 15 minutes of fame appealing.

She tells them both the pros and cons of cooperating with reporters. In the case of Elisa's brothers and sisters, she says she would have told them that while more stories about their lives could be painful, it might help for the media to be at the hearings to learn that they did not escape unscathed, that they were raised in a house of terror and that their mother threatened to hurt them too if they fed Elisa or helped her. "That could have changed the negative perception of the children," she says.

Elisa's horrible death brought open hearings to New York.

Kaye, Lippman and Joseph M. Lauria, the new administrative judge for New York City's Family Court, all say Elisa's legacy should be larger than that.

Other states, they say, should open their juvenile courts, too.

Kaye says other states' chief judges have expressed interest at conferences, and Minnesota's, after discussing the issue with Kaye, followed New York's example in 1998 with a three-year open court experiment.

"I wish other states would do it," Lippman says, "I have absolutely no reservation. It is the best thing we ever did."

Lauria says when he talks about it at national legal conferences, lawyers and judges look at him in shock and ask, "You do what in New York?" Then he tells them, "If you come and watch, you'll see it's OK."

Tomorrow: When the media name children in abuse and neglect cases, are the youngsters indelibly harmed?



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