From the July 2001 Idaho Observer:

State mental health code behind McGuckin persecution?

County prosecutorial process resembles 16-24 more than 18-15

by The Idaho Observer

JoAnn McGuckin was arrested the afternoon of May 29 on the basis of a criminal complaint filed by Bonner County Prosecutor Phil Robinson at 9:30 a.m. that same day. Robinson alleged felony injury to children, a violation of Idaho Code 18-1501(1). The process that led to McGuckin's arrest and the subsequent searching of her home appears to be in flagrant violation of numerous state guidelines that dictate due process in a criminal prosecution. Though Robinson claimed that McGuckin was in violation of IC 18-1501(1), his process more closely resembles one that could be used to enforce IC 16-2411 and 16-2419. Those statutes are found in Title 16 of Idaho Code: Children's Mental Health Services.

It would appear that Robinson told the court that he was proceeding under IC 18-1501(1) so that the public would not discover that he had invoked the awesome police powers of the state as authorized by Title 16 of Idaho Code.

Where's the warrants?

Though the criminal complaint was filed by Bonner County Prosecutor Phil Robinson and his “witness” testimony at the probable cause hearing convinced Magistrate Judge Debra Heise to find probable cause for a search warrant and arrest warrant for JoAnn McGuckin May 29, 2001, it appears that actual arrest and search warrants were never issued. McGuckin, 46, was arrested for felony injury to children and her Garfield Bay home thoroughly searched by county officials who hoped to find enough evidence to justify their actions which led to her arrest and the infamous five-day standoff between her children and city, county and state police.

Robinson claims that he delivered the warrants to police at the McGuckin property the afternoon of May 29. Though warrants are considered public documents, no member of the media has been able to obtain the warrants in this matter. Bonner County Sheriff Phil Jarvis has told the media that he will neither confirm or deny the existence of either the arrest warrant or the search warrant.

What about Rule 7?

According to Rule 7 of the Idaho Rules of Criminal Procedure, “All felony offenses shall be prosecuted by indictment or information.”

Robinson did not seek an indictment to prosecute McGuckin. He merely filed a complaint with the court at 9:30 a.m. May 29, 2001, wherein he infers that he is a witness to the crime of felonious Injury to Children.

Rule 7 also states, “The information shall be signed by the prosecuting attorney.”

The complaint is signed by the complainant “Philip Robinson,” apparently in his private capacity. Rule 7 does not provide for the prosecutor to witness and prosecute a felony. The complaint was defective because it was not signed by the prosecutor. According to Rule 7, Robinson cannot be both witness and prosecutor.

Aside from the apparent violations of due process described above, it turns out that many of the charges made by Robinson on the complaint and during the probable cause hearing have either been found to be false, grossly exaggerated or so subjective it would be impossible to establish McGuckin's criminal intent.

A look at Title 16's Chapter 24

Chapter 24 of Title 16 has 34 sections which deal with children's mental health. This chapter became law after passage of HB320 in 1998. The Idaho Observer published TUFF President and IO Legislative Analyst Bill Denman's analyses of the bill while it was being discussed in the legislature in June 1997, and after it was passed into law in the July 1998 edition. In both the 1997 and 1998 articles Denman predicted that the law would provide government employees with tremendous latitude to justify the involuntary removal of children from homes based upon subjective statements commonly referred to as hearsay.

Section 2411 appears to be a description of how police ultimately achieved physical custody of the children five days after the apparently warrantless arrest of their mother. Section 2411(1) states, “A peace officer may take a child into protective custody and immediately transport the child to a treatment facility for emergency mental health evaluation in the absence of a court order if and only if the officer determines that an emergency situation exists as defined in this chapter, and the officer has probable cause to believe, based on personal observation and investigation, representation of the child's parents or the recommendation of a mental health professional, that the child is suffering from serious emotional disturbance as a result of which he is likely to cause harm to himself or others or is manifestly unable to preserve his health or safety with the supports and assistance available to him and that immediate detention and treatment is necessary to prevent harm to the child or others.”

Section 2419 of Title 16 describes how, once “public funds” are used to involuntarily commit a child to mental healthcare services, the state assumes physical custody of the child. “The department of health and welfare shall acquire physical custody of the child and the right to determine the disposition and placement of the child whenever the placement requires the expenditure of public funds,” the law reads.

Had McGuckin been told that the county had ordered her children be committed for mental health services and, had she volunteered to take them in herself, she could have retained physical custody of the children, according to the law. However, since she had been removed from the property, apparently after being arrested, the state had to come in, at public expense, and deliver the children to a (mental?) healthcare facility, Bonner General Hospital.

Officials did admit that, while the children were in state custody at Bonner General, they underwent physical exams and at least cursory psychological testing.

We can see why the county would want the public to believe that McGuckin was properly arrested for a felony and that her children were then taken into the protective custody of the state under the authority of the Idaho criminal code: It did not want the public to realize that, under Chapter 24 of Title 16, police with probable cause to believe a child or children are in danger, must immediately capture the child and take him to a mental health care facility for treatment.

For the county to admit that it used provisions in Chapter 24 to arrest McGuckin and assume physical custody of her children without due process as demanded in criminal procedure would have been too obvious a display of the unfettered powers of the police state.

Northern Idaho Senators Clyde Boatright, Shawn Keough and Gordon Crowe voted to pass the Children's Mental Health Act into law; northern Idaho representatives Charles Cuddy, Hilde Kellogg, June Judd and Wayne Meyer also voted to give the state the power to destroy families without due process.

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