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Justices restrict taking the 5th

The Supreme Court has ruled that a Baltimore woman may not invoke her constitutional right against self-incrimination to refuse to reveal the whereabouts of her son, who was abused and is feared dead. In a 7-to-2 decision Tuesday, the court said Jacqueline Bouknight could not use her Fifth Amendment privilege as a shield for refusing to produce her son _ last seen in September 1987 when he was 11 months old _ because Maryland officials are seeking the information "for compelling reasons unrelated to criminal law enforcement."

However, Justice Sandra Day O'Connor, writing for the majority, said Maryland authorities might be barred from using evidence obtained through Bouknight in any later criminal case against her.

Justice Thurgood Marshall, joined by Justice William J. Brennan Jr., accused the majority of "riding roughshod over Bouknight's" constitutional rights. She has been jailed for civil contempt since April 1988 for refusing to comply with the court order requiring her to "produce" her son, Maurice Miles.

The case, Baltimore City Department of Social Services vs. Bouknight, pitted the constitutional rights of potential criminal suspects against the ability of state authorities to protect abused children, and it attracted the attention of numerous child advocacy groups and state and local governments.

A brief filed on behalf of 26 states warned that allowing parents to evade court orders by citing their Fifth Amendment rights would "drastically impair their (the states') ability to provide protection for children in jeopardy."

Bouknight's son, Maurice, was hospitalized when 3 months old with a broken leg. An examination showed several other partially healed fractures and other indications of "severe physical abuse." At the hospital, Bouknight was seen shaking the infant, immobilized in a full-body cast, and throwing him into his crib.

Hospital officials alerted child protection authorities, who placed Maurice in a shelter. He was then declared a "child in need of assistance" and returned to Bouknight's custody in August 1987, subject to requirements that she cooperate with authorities, refrain from physical punishment and obtain therapy.

But when child protection workers sought to check on the child nine times between October 1987 and April 1988, Bouknight repeatedly told them her son was with an aunt whom she refused to identify. In April 1988, when authorities finally became alarmed about Maurice's absences, they sought unsuccessfully to find him and eventually reported him missing to Baltimore police, who launched a homicide investigation.

Bouknight was then jailed for contempt for refusing to obey a juvenile court order that she reveal Maurice's whereabouts. The Maryland Court of Appeals, the state's highest court, reversed the ruling, concluding that the order to turn over Maurice could force Bouknight to incriminate herself in circumstances in which she "has a reasonable apprehension that she will be prosecuted."

Chief Justice William H. Rehnquist granted a stay of the Maryland appeals court ruling, meaning that Bouknight has remained in Baltimore city jail.

In her opinion, O'Connor assumed that complying with the juvenile court order might constitute self-incrimination. But she said Bouknight could not use her Fifth Amendment privilege to avoid complying with the order, because she had agreed to cooperate with authorities in regaining custody of her son and because the order was aimed at protecting Maurice's welfare rather than seeking evidence for a criminal case against Bouknight.

The dissenting justices argued that Maryland's child-protection efforts are "closely intertwined with the criminal regime prohibiting child abuse" and that, under these circumstances, "Bouknight's Fifth Amendment privilege must be respected to protect her from the serious risk of self-incrimination."

Bouknight's situation bears some resemblance to the well-publicized case of Elizabeth Morgan, the physician jailed for civil contempt for more than two years for hiding her daughter in defiance of a court order giving visitation rights to her former husband. But Morgan argued that she was shielding the girl from alleged sexual abuse by the child's father, while Bouknight is herself accused of physically abusing Maurice.

Mitchell Mirviss, a legal aid lawyer appointed to represent Maurice, said he was "delighted that the Supreme Court has upheld the rights of an individual child to protection from the state. It vindicates the notion that parents have to be accountable for the care they provide their children."

But, he said, "There's no question that this is only one step of a very long struggle to try to get Maurice. The Supreme Court's order does not mean that Maurice will be turned over tomorrow, unfortunately."

Bouknight's attorney, M. Cristina Gutierrez, said her client was "bitterly disappointed" with the ruling. Gutierrez said she plans to file court papers arguing that Bouknight should be released because there is "no reasonable chance .


. that continued incarceration would be successful in coercing her to live up to the court order."