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Shanahan says he began preparing a writ of habeas corpus to file in federal court on Darel's behalf, in part alleging that she had been wrongly denied a jury trial. But then, in February 2005, she was released. "I still believe she has a case," adds Shanahan, who specializes in custody matters. "Just the way the proceedings went down I don't think flies with her constitutional rights."
Leading civil rights attorney Norman Siegel says that six months without a trial in Criminal Court would clearly violate the Sixth Amendment. Does this standard apply to a Family Court contempt case? "My instinct would say the deprivation of liberty is such a fundamental denial that, at least, the defendant should have a choice" of going to trial, he offers. "It doesn't seem right that, just because you're in Family Court, you could wind up in jail for three years with no jury trial."
Ever since Darel took a bus out of Rikers on February 4, 2005, she has tried to appeal Sturm's sentence in state court.
Last October, the New York Appellate Division upheld the 36-month sentence, ruling that Family Court judges can impose consecutive jail terms under state law and that Sturm had "properly exercised the discretion." It did not address the constitutional issues for procedural reasons; on the First Amendment question, for instance, the court said Darel had failed to raise the issue during the contempt trial.
This month, her attorney, Robin Yeamans, a California family- and constitutional-law specialist, is filing a petition for a writ of certiorari asking the nation's top court to hear Darel's appeal. The writ will hinge on the question of a jury trial, asserting that the U.S. Constitution ensures such due-process protections in Family Court even if New York law does not. "The argument is simple," Yeamans says. "The U.S. Constitution trumps state law."
Yeamans is no stranger to Darel's plight. The attorney filed a writ of habeas corpus to try to force Darel's release from Rikers in January 2005 because, as she explains, "her actions amounted to free speech, whether you agree with them or not." Now, she's writing this latest writ on principle too. "The idea that anyone who gets ensnared in a Family Court case can find herself in prison for more than six months without a jury trial is abhorrent."
Meanwhile, Darel is pursuing her own suit in federal court against Judge Sturm, charging that the jurist incarcerated her "without jurisdiction" and retaliated against her for criticizing her child welfare case. She names ACS officials and her ex-husband as defendants, accusing them of bogus contempt petitions that resulted in her imprisonment. A pro se litigant, Darel wrote the filing herself, arguing the same constitutional claims as her state appeal. She is asking for $200,000 in restitution for the 28 months she spent behind bars. "I'm suing the system for what the system has done to me," she says.
Her chances look slim. The U.S. Supreme Court only accepts 1 percent of the thousands of certiorari petitions it receives. And her federal suit has to get around judicial immunity, a tough task in even the best circumstances.
For Darel, her efforts have personal meaning. Four years have passed since she has seen her daughter, she notes. And she may never get what she really wantssomeone to say her daughter was wrongly taken from her almost a decade ago. But maybe her suits will help vindicate her right to fight, she says.
"Would you walk away and say, 'The system is corrupt. I give up'? Would you let it go?"