#14

My comments preceded by asterisks and enclosed in parenthesis.

 

Tape 14
Judge: We are back on the record, baby boy Holm, and Mr. Kirby, we were
discussing about standby counsel.
Mr. Kirby: The Holms and I have discussed it. Our understanding
was when you said you couldn’t shotgun witnesses was not that you
couldn’t have….they couldn’t be considered as two counsels. Of
course, the state has two counsels, and I’m assuming that even one of
them could take a witness and the other couldn’t question them, but
that either one of those, so I think the thing the Holms want to do is
ask that I be co-counsel with them, just the same as the state has cocounsel…
Christian: (quietly) Equality of law…
Judge: I’m sorry?
Mr. Kirby: He just said equality of law.
Christian: Equality of law.
Judge: Okay, thank you. Mr. Schlenker, anything further?
Mr. Schlenker: No, ma’am.
Judge: Guardian?
Guardian: Judge, I don’t —————–
Judge: I think at this point, what’s the harm in extending it?
Unorthodox, yes, but by the same token Mr. and Mrs. Holms have
allowed or are in need of assistance, I believe is what they are saying,
arguing some motions. I mean if you are going to be sitting there
writing notes to them…I mean…let’s just go forward.
****(My, my…I find American courtroom linguistics absolutely
fascinating. No allowances made in point of law, but it is more like a
wickedly choreographed dance that surrounds a hapless victim and taunts
their predicament if they cannot masterfully extricate themselves from the
grasps of their captors.)
Judge: Now. The department have made their argument as to why they do
not want these records released and for the court to amend our prior order.
Mr. Kirby: Judge, we believe that your production order doesn’t give the
department the option to not provide those records. The parents are acting
as attorneys on their own. They should have received as the attorneys of
record in this case. Even after the appointment of standby counsel, standby
counsel receive or requested those records from the department via e-mail
and I sent somebody up here not only to serve subpoenaes but to pick up
those records last Friday. They were refused. Those records were refused.
****(Of course they were. We can’t have people having a fair shake, now
can we? I mean, Pro Se can’t be treated as other attorneys. What would
the court system come to? This couple is SO dangerous to the system that
even the court appointed legal standby attorney can’t get fair treatment or
respect as the attorney he is.)
Mr. Kirby: We are saying that we certainly have a right to inspect those
records and use what is available in a trial in this matter. Just like item 6 or
paragraph 6 are additional objections to the state’s motion…
Judge: Would you tell me exactly which one is…
Mr. Kirby: This is the parent’s additional objection to the state’s motion to
amend production in the—-
Judge: What day was that filed?
Mr. Kirby: That was filed on December 12th, at 6:36 pm.
Judge: Okay, let me get to it right now. The supplement to objection?
Mr. Kirby: Yeah. Yes, ma’am. And let me go back, if I may address the
department’s statements that the Holms are divulging information on
social media about this case. That’s, my undertanding is, that’s not the
case. The Holms have had their court records since December 6th, all of
their court records since December 6th. I provided those records to them
and printed all of them all off out of court, and I would ask the state if they
have any proof if those records have ended up on social media?
Judge: Either, and that is the…hang on…I forgot what that was titled…I’m
sort of taking them in order here. Motion to produce evidence of service is
what that was called.
Mr. Kirby: No, ma’am. That’s something completely different. The court’s
production order is what we are arguing here and it says that…
Judge: Right. But you were asking for them to produce evidence of
dissemination on social media and at the bottom of this motion to produce,
the other motion that we are talking about, produce the hearing scheduled
any and all evidence they had that was for ——service of motions.
Mr. Kirby: No, that’s a different matter.
Judge: Okay. I’m closing that one out for right now. Not closing it out, I
just mean I’m shutting it down for…
Mr. Kirby: I understand. But if the state’s going to sit over there and
make the allegation that what the Holms are doing is divulging
information on social media, they may need to show some proof of
that.
****(You think? You know, some of that courtroom stuff us oldies all grew
up watching on Perry Mason…)
Mr. Kirby: Like I say, they had the documents. They had all the court
documents since December 6th I know. I gave them to them. As far as I
know, now I don’t go crawling into people’s facebook or anything like that,
as far as I know there is no documents that have been produced on social
media, and quite honestly your honor the protective order that is issued
in this case is based on the identity of the child. Okay? Not revealing
the identity of the child. Specifically, 12 15 129. General public shall
be excluded from delinquency and need of supervision or dependency
hearings, and only parties, their counsels, witnesses, and other persons
————————————- shall be———-. Okay? Other persons as
the juvenile court finds having proper interest in the case or work in
the juvenile court may be admitted by the juvenile court on the
conditions that the persons refrain from divulging any information
which would identify the child. Further in that protection order, the
court cites K.R.B. Lauderdale County Department of Human
Resources, citing specifically by disclosing the name of the minor child
remaining the subject of the action to any person or entity in a
manner that will allow the child to be identified as involved with this
juvenile court. And B, discussing the juvenile court proceeding with
any person or entity in a manner that would allow the child to be
identified. So, based on that, the court’s protection order is all about
the protection of the child. The child has a generic name that the court
has assigned for court purposes. The child is not named. As a matterof-
fact the court denied the department’s motion to name the child at
our last hearing on December 5th. So, what I’m saying is it is
impossible for the parents to identify the child. The child is not yet
named other than a generic name given to many other unknown
children in court proceedings. So, I think we might address the
allegations, and if Mr. Schlenker has evidence that there’s been
documents that have been entered into social media I might
understand that argument for not giving us the records for DHR, but
I don’t know of any. Like I say, I don’t do that. I don’t go around
looking for stuff like that. The state’s —————statutes filled with
confidentiality of DHR records. First being Code 14 26 8, child abuse and
neglect records. They don’t specifically state what, if any, subsection
applies. But by that very statute, subsection C says that the ———,
subsection A deals with indicated and not indicated definitions, subsection
B is a central registry for reporting child abuse and neglect, subsection C
access to abuse and neglect records which states as follows: The
department shall establish and enforce rules and regulations governing the
custody and use of probation and reports and records of child abuse. Child
abuse and neglect reports of records shall be limited to the purposes to
which they are furnished and by the provisions of law which they may be
furnished. The reports and records of child abuse and neglect are related
and related information of testimony shall be confidential and shall not be
disclosed for any purposes other than to list——————but more
specifically subparagraph 6 of section C says for use by any persons
authorized by court to act as a representative for an abused or neglected
child. We would make the argument that the parents…uh…well, I can’t
speak for Ms. Wilkerson and Ms. Argo, but the parents I don’t know that
they were provided any records. I kind of doubt that they were since they
weren’t in the case for very long, but from the time Ms. Wilkerson and Ms.
Argo filed their motions to withdraw the parents have been acting as the
attorney and they’ve not been provided any records, and the records
should have been provided to them by your production order. It
doesn’t give the state the option of producing those records. It says it
shall, it shall be produced, not they may be produced, okay?
****(Thank you, Mr. Kirby, but the crime is why did you have to instruct
the court?)
Mr. Kirby: And in subparagraph 8 it says for use by any attorney or
guardian ad litem in representing or defending a child where his
parents or guardians in a court proceeding relating to a reasonable
request. The very statute that the state cites allows the production of
records to those parents. They are the attorneys of record. As of
December 5th I was the standby counsel appointed to assist them, and
specifically in getting the records they needed to prepare a defense for
this case. I’ve been denied that, they’ve been denied that. It doesn’t
give them the option we think your production order stance is good. It
doesn’t give them the option to give us those records. We should have
been given to them. If they gave them to us today, the day of the trial,
there is no way that we would have enough time to examine those
records and continue this trial today, and I don’t think the parents
are wanting to continue this matter.
****(Exactly! And now we understand just how frightened the state is of
this couple, that they would go to such extreme means to ensure their case
could not proceed with any semblance of fairness.)
Mr. Kirby: Uh…let’s move on, the states also cites section 38-2-6
subsection 8, and that states the aim of the department shall be promotion
of unified development of welfare activities and agencies of the state and
of the local governments…I’m not going to finish reading that, but
subsection 8 says the state shall establish and enforce reasonable rules and
regulations concerning the custody, use, and preservation of the records,
papers, files, and communications of the state and county departments.
Use of such records, papers, and files by any other agency or department
of government shall be limited for purposes which they are furnished and
by the provisions by which they were furnished.
Mr. Kirby: The parents are going to contend that the statute the state cited
deals with applications and records for public assistance by the
department. Let me back up just a little bit; their records for public
assistance, and I’m assuming that that means food stamps and welfare.
This, and it talks about divulging those records to grand juries and circuit
court. It doesn’t have any application to attorneys of record or standby
counsel. So, the statute they cite doesn’t deal with the records that are
sought here.
State further cites 37 38 7 13, judge, these are for child care licensing
records that that particular statute is addressing, is spelled out in the
motion that child care licensing statute has nothing to do with what’s
going on here today.
They further cite 38 9-6, subsection E, adult, ADULT protective services.
Now adult protective services, not child dependency cases. The child
here is not an adult. It is a child, a minor child, so we would contend
that that statute doesn’t apply to the Holms. And, your honor, I think
the file on this was just a stalling tactic just to keep us from getting
those records that were requested.
****(Agreed.)
Mr. Kirby: Like I said, I sent up my assistant up here to search—————
on Friday, and to pick up the records. That was what was requested by the
Holms and we were denied access to the records then.
Judge: Do you want to let the guardian argue her position? Guardian?
Guardian: Yes, judge. I do believe that parents and their attorneys have the
right to have records. At the same time, I understand the department’s
position about concern for those being released. At the same time, I have a
copy of what I believe is the department’s record. Everything…the only
thing that I am aware of that the parents dumped, or could not have had
access to would of course be the department’s narrative and the
———–from which what I have is a very…is talking about a very limited
amount of information. Most of everything else I have I believe that the
parents have access to. So as far as having access to that, hopefully they
will be familiar with what was contained in those records. I believe Mr.
Kirby addressed an issue as far as asking if the department had proved that
any of these fillings or pleadings or anything have been released to the
media. I, myself, am not aware of these…not saying that there isn’t. I’m not
aware of any actual pleadings being released, but I am aware of what I
consider to be confidential information that was testified to and about in
the courtroom at the hearing at the 5th released on social media, which
does cause me concern. I understand that the child has not been named,
but I don’t think that fact in and of itself protects the child’s identity. Just
because the child doesn’t have a name doesn’t mean people don’t know
who this child is.
Mr. Schlenker: Judge, first off there are…you have two names for this
child. One is John Doe, the other is baby boy Holm. They are standing on
the streets with signs that say #babyholm. That is directly related to this
child. They have a site on facebook for #freebabyholm wherein on, I
believe this was Tuesday following the last hearing, someone posted “can
anyone out there help me with a few legal questions? There are a few
things that happened during the trial that raised questions for me regarding
the legality of Judge Melody Walker’s decisions. First, the decision to
prolong the trial was done against the parent’s wishes. They need
witnesses testifying on behalf of DHR not being present. If one of the
parent’s witnesses wasn’t present, I doubt the trial would have been
prolonged. Second, evidence in the form of paperwork was trying to be
admitted in evidence on behalf of DHR that wasn’t certified. That was
objected to on the grounds of the documentation wasn’t certified and was
denied inadmissable by the judge. At the next hearing I am guessing the
paperwork will now be certified and try to be admitted by DHR. If the trial
was finished on the 5th, then this paperwork would have never got a
chance to be admitted in the first place. It is my thinking this is part of the
reason for prolonging the trial. Third, counsel on behalf of DHR
(prosecutors) Judge Melody Walker and the baby’s attorneys entered in an
outside room and denied Christian Holm access to the meeting to see what
was being discussed. I’m no lawyer but these actions seemed biased and
one-sided towards the parents and seem to lean towards siding with DHR.
Please let me know if anyone can validate my concerns of Judge Melody
Walker’s actions. Thanks to all who are helping.”
Then, they also two days later they had filed with this court a pleading
regarding a referral of this case to the FBI on a website called Medical
Kidnap. That is referenced as well as very similar things to what I just
read, and then there is also updated 12-13-16 #freebabyholm awareness
event. So again, there is an attempt to disclose information about this case,
and while it may not be the actual document itself it is nonetheless the
information that is contained in those records that is being seeped. And
again, that is the concern of the agency that information is instantly being
put out and it is affecting the identity of this child because again he has
actually two names, John Doe and baby boy Holms.
****(There you have it. The state will go to extreme measures to insure
that no one makes a peep, not a whisper, when your child is taken. You
have no rights at all to even share your pain, ask for help, protest or do
ANYTHING! Cruelty beyond belief!)
Mr. Schlenker: And again, it is identified with the parents as well. This is
now in the public domain.
Again, and I will just go back to 38 2 6 says that records are limited for the
purposes for which they are furnished and then violations of this
provisions shall be a misdemeanor and punishable accordingly. So again,
it is illegal for the release of those records, and again, that is the concern
of the agency is that these records will not be used for the purposes for
which they were created.
****(So, misdemeanor for that 38 2 6, but the state has felony for perjury
on the witness stand and kidnapping for ransom, i.e. cash. The state has
two felonies to the parent’s misdemeanor. Is there a problem?)
Judge: Mr. Kirby.
Christian: Your honor…
Mr. Kirby: No. You gonna be co-counsel. You gonna go behind me. You
got something———————————————. Your honor, I would
ask Mr. Schlenker where did that information come from. Was it off the
Holm’s facebook page?
Mr. Schlenker: It’s off #freebabyholm which is a facebook page set up by
them and their supporters with regards to this case.
Mr. Kirby: Can you prove that it was set up by them?
****(By the way, not that it may matter, but an individual who became
interested in their case set it all up and later became acquainted with them
and established a friendship. They had nothing to do with the originating
of “freebabyholm” It is similar to what I did on several facebook pages I
set up to represent the Holms and this cause. They were uninvolved and
unaware with any of that, but were informed later.).
Mr. Schlenker: Obviously, I cannot. But there is no place else that
information would have come from. It would not have come from the
agency. It would not have come from the GAL. There is one source of that
information. That would be the Holms.
****(Au contraire, but I propose that the state has the primary interest in
further maligning these parents and undermining both their support and
their credibility. A leak, perhaps? Plausible deniability, correct?It would
be soooo easy to set them up.)
Mr. Kirby: There is a number of people in this hearing, December 5th, and
it doesn’t mean….I mean a number of people….more than there are in here
right now, and it doesn’t mean that it came from the Holms. Even if it did,
judge, it is not a document that is entered into social media and it
doesn’t…..baby Holm is the generic court name for the child, John Doe or
baby boy Holm…I mean anybody, anybody would assume that baby Holm
could be their child, but it doesn’t name that child specifically because that
child doesn’t have a name to be addressed. Now, the department tried to
name that child, Malachi? I think it was Malachi, and you denied their
motions to name that child Malachi because it was not the parent’s wishes,
and we believe that to be proper.
Judge, as a pattern of practice with DHR, they’ve been given the attorney’s
record, the records prior to coming to court. That’s just a pattern of
practice with DHR because that’s what your order says. We think they
should have to abide by that order now, and the fact…really, probably
the fact that they haven’t…they should be found in contempt. Even
after the appearance of standby counsel. I requested those records to
discuss the defense of the Holms and this trial today! Those records
were denied to be given to me! I am a regularly licensed practicing
attorney in the state of Alabama, and even though I was standby
counsel one of my duties as standby counsel was to get them records
that they needed for trial.
Now, I’m not sure what’s all in DHR’s records, but it very well could be
something that was used today in their defense. And the other criminal
cases that the state cites in there has to do with defense for criminal
defendant, and getting public records..DHR records to try to exonerate
somebody’s client. That’s not what we have here. This is not a criminal
case. This is a child dependency case and the pattern and practice it
has been for DHR to supply those per your order and that’s not been
done in this case.
****(Why not? What is so special about this case that it requires
prejudicial treatment?)
Mr. Kirby: And we will address more in the motion————————,
but I’m asking also that anything that might be on those records not be
able to be used here today in testimony or admission into evidence. We’ve
not had the chance to inspect those records.
And I think even if you did an in camera review and allowed us to attend,
you know that would have been fine. We could have gone over the records
together. But their not producing them, and they are not here to produce
them. That’s all I have, your honor.
Judge: Ms. Miller.
Ms. Miller: Judge, I don’t have anything further.
Mr. Schlenker: The purpose for citing the variety of statutes, as well, was
to point out that this is not just something with regards to child welfare
records. But again, all of DHR’s records are confidential, and even in a
criminal case parents do not necessarily have unfettered access to their
record, and again, that is part of us producing all those criminal statutes.
There are limitations on what is able to be produced. As far as some of
those records, for instance, the mental health records that have been
brought up, Mr. Holms knows where those medical records are. Mr.
Holms is able to get those records if he elected to. Mr. Holm has had the
opportunity to issue a subpoena for those records if he elected to. He has
had access to the majority and probably has copies of the majority of those
records. Again, those are not necessarily the records that DHR should be
in the business of turning over in general anyways…
****(So what if the records don’t match up? What if the records are
falsified or have been provided by someone who was not authorized?
What is DHR desperately hiding from even a licensed attorney like Mr.
Kirby?)
Mr. Schlenker: because again they are not DHR’s records. We cannot
necessarily speak to their authenticity. There are other issues that go into
that.
****(You betcha, like issues of lying, fraud, perjury on the part of DHR.
Those records better be kept safe from the public, Mr. Schlenker. They are
not authentic, although you use them as such and use them against the
Holms to keep their child captive from his parents.)
Mr. Schlenker: And again, those are all things that the Holms have had
access to. Those are all things that again, I think the court can weigh the
fact that they have apparently elected in the last week to not try and get
copies of those either. And they have known that. Mr. Holm signed that
release. He has known since the day of the signing of the release that the
department was going to try and get those records. He has done nothing on
his own to attempt to get those records, and again, we do acknowledge
that it is the pattern and practice of the agency to give those to licensed
attorneys because licensed attorneys, we believe, will follow the rules.
****(No they have copies. They want to see your copies and compare. Mr.
Schlenker, were you aware you use the word “again” constantly when you
are nervous?)
Mr. Schlenker: It is also the pattern and practice in this case that the rules
are not necessarily followed and the information regarding this case and
what is happening in this courtroom is being divulged to the public. And
there, again, is the agency’s concern, and we have when asked provided
that proof. We have provided the information. I understand Mr. Kirby
doesn’t like it, but again, that is what is being done in this case and that is
the agency’s concern.
Mr. Kirby: You honor, I think that Mr. Schlenker addressed the
authenticity of his records basically saying that they can’t authenticate the
records, but…
Judge: We are not arguing that point…
Mr. Kirby: Right. I understand that…But the records that DHR has and
plans to introduce at trial should be and if they were…if it was done with a
valid HIPAA waiver that’s an argument that we have too.
Judge: Okay, are we doing all these arguments together because right now
we are doing the right to remanding your response…
****(Having difficulty Ms. Judge? It is complicated sometimes when the
state fails to get away with what normally works out fine. Kudos for your
efforts to distract…)
Mr. Kirby: Right. Well, I’m using the HIPAA part as part of my response
to Mr. Schlenker’s statements…
****(As she very well knows…but she didn’t become judge by being dull
of mind, now did she?)
Mr. Kirby: We don’t know that that is a valid HIPAA release. Matter-offact,
I don’t think it is just from the short time that I had to view it on
December 5th. That’s part of the DHR records. That’s something that
should be turned over to us. That’s not something that he can go to
Savannah Counseling where they got these records and get. That’s their
records. What else is a part of their records that we don’t know about? We
should have the right to see those records to see what everything is that is
alleged.
Guardian: Judge, I just have more of a quick question. I know when we
were here last time, and correct me if I’m wrong, I think Mr. Kirby where
you provided access to those…specifically those counseling records from
Savannah Counseling…
Mr. Kirby: For the short time just prior to trial for an opinion as to GAL.
That’s the only time I seen those records.
Judge: Have you made any contact with prior counsel to obtain their file?
Mr. Kirby: I did contact Ms. Argo. Ms. Argo said that she would have to
look for those records. We called her again yesterday. I have had no
response from Ms. Argo.
****(This should help others understand the wisdom the Holms used in
dismissing their “court appointed” attorneys who actually do represent
the state who pays their salaries, and not the Holms. Hopefully, others can
learn what a tragic mistake it is to trust the state.)
Mr. Kirby: I did not contact Ms. Wilkerson, but certainly the department
can answer if they gave those records to either Ms. Wilkerson or Ms.
Argo. I don’t believe for the short time that they were a part of this case
that the department produced those records to either one of them. I can’t
speak for either one of them personally and know that they don’t. I know
that I have given a request to Ms. Argo that if she had something to please
get that to me. And we called…that was last week. We called again there
yesterday and Ms. Argo wasn’t there. She wasn’t available. I don’t think
that her assistant could find anything, so I’m not sure if they were provided
to them or not.
(whispering between Christian and Mr. Kirby) Oh, well, the Holms
apparently made a request to Ms. Argo to get the records and get any
records that she might have. And they’ve not been given those records.
And like I say they didn’t even have record of their court files. I———–
December 6th.
Judge: Anything further from the state?
Mr. Schlenker: No.
Judge: Okay, Mr. Kirby, you also mentioned your argument about holding
DHR in contempt. Do you understand that would be a separate if you so
elected to choose, correct?
Mr. Kirby: I do understand. Yes, ma’am.
Judge: I have real concerns about things that may have been disseminated
on social media. I don’t know where it came from. You can sit there and
say they can’t identify this child but if it is identified as baby boy Holm or
baby Holm we have a small community. Come on…people can identify
that it is indeed Mr. and Mrs. Holm’s child. Concerning if it is indeed
correct that what was relayed or read into the record as far as these two
exhibits which would be states 6 and 5, which would be a picture of Mr.
Holm reported to be but not admitted and Mr. Holm’s reported counseling
notes not admitted…if those were indeed the documents discussed, then it
would only have come from someone within this courtroom. Further, the
court has concern if it is noted on social media that we had a improper
meeting, Mr. Kirby, you were also part of that meeting as standby counsel
and that was explained. As a matter-of-fact I think you came out and said,
hey, we forgot these are pro se parties because we are just so
generally…but nonetheless they were represented in that one little meeting
and…if there is an issue with that we need to address that and I will give
you ample time with your clients to address it. As far as the reference to an
FBI investigation, there is some document filed, but I wasn’t real sure
what it was other than a thing filed by the parents. It certainly didn’t have
a…and that may be the manufacturer’s statement that we were discussing
earlier. Nonetheless, there is information being leaked out. Concerning.
What I’m going to do is I’m assuming or would hope that the department
has a copy of their records with them.
Mr. Schlenker: Yes, ma’am.
Judge: We are going to take a moment and we are going to go over this
and I’m going to review them in camera with Mr. Kirby and Mr. and Ms.
Holm if they want to be in there, and we’ll take a look at them and see
what’s there. And then I’ll make a determination from there. I am going to
go ahead at this time and say that I am not happy with the department. I
don’t remember when this baby was taken into care when we started this
proceeding but it is the custom and practice of this court in our standard
motion…our standard order of production…I don’t know whether or not
that was complied with as far as prior counsel of record, but the
department did not use the ————-to amend their record until
December 9th, and again, don’t know what happened there to precipitate
that…if there was some filing or something that appeared. Oh, Mr. Kirby, I
guess it’s just the technology age thing with us..(laughter)
and then the parent’s response to that was not filed until later, so that
seems to be what triggered the response and yours may have been…it may
have all accumulated with your office going up to attempt to get records…I
don’t know.
Mr. Kirby: Yes, ma’am.
Judge: So, I think that at this point what we are going to do is we are going
to stand in recess and Mr. Kirby, and certainly counsel for the department
and the guardian want to be in the room, so be it.
Mr. Kirby: Now, Judge, let me ask you. Mr. Schlenker says that he’s got
the entire department file. Does he have all the caseworker notes, ISPs and
all that stuff?
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