Retired Judge Gino L. DiVito’s article (“Setting the record straight on the tragedy of `Baby Joe,’ ” Commentary, July 30) is intended to demonstrate that the court was correct and that the decision was “not indicative of a failure in our judicial process.” Considering what happened to that poor kid thanks to the “process” so beloved by DiVito, his defense sounds like the surgeon who said that the operation was a success even though the patient died.
DiVito states that the appellate court must make decisions just on the basis of the court record. Accordingly, Justice James D. Heiple made the right decision in the Baby Joe case. But it should have been obvious that the court record was seriously incomplete. For example, the record lacked any indication as to why the lower court decided to reject the Smiths as adoptive parents. But the court took no action to secure this information. Ordinary men and women have enough sense to try to get all the facts before making a decision with lifelong consequences. I am not sure why DiVito celebrates a “process”that allowed Heiple to do otherwise.
The record also contained nothing regarding the then-current circumstances of Baby Joe. If Heiple was truly making his decision using, in DiVito’s words, “the best interest of the child” as his touchstone, why would he make that decision lacking this kind of information. Personally, considering how Heiple ridiculed the same concept in his ruling in the “Baby Richard” case, I think that DiVito is far too charitable in his view of Heiple.
DiVito’s concern for Heiple goes even further as he states that the Baby Joe case “dramatizes every judge’s worst nightmare: drawing criticism. . . .” I would have hoped that DiVito and Heiple have something else on their minds–that is, how can we rework the “process” as to minimize the possibility of future Baby Joe tragedies in the future. Instead, DiVito tries to defend the indefensible. And some wonder why the law is held in ever-growing contempt!
