Nick and Carrie Nowatney, the young couple who are on trial because they won't plead guilty to child abuse charges being pressed by State Attorney Kirk Zuelch and the State Dept. of Children & Families (DCF), last week accused Judge Mark Jones of bias and have requested that he recuse himself from the case.
The Nowatneys' start-and-stop trial began last March 27 and is currently scheduled to resume again next week.
"We simply aren't getting a fair trial," said Nick Nowatney. "Judge Jones has repeatedly refused to allow us to introduce evidence that supports our innocence. He has, throughout, acted more like a lawyer working for the other side than as an objective judge.
"It's bad enough that we have been wrongly accused and that we've had to spend everything we had to defend ourselves," he said. "But we should at least be able to expect that the judge will be fair and unbiased."
Typically, when a party in a legal case moves for the recusal of a judge on the grounds that they fear they can't get a fair trial, recusal is virtually automatic. But last week, Judge Jones indicated that he would not disqualify himself.
Attorney Michael Barnes, who is representing the Nowatneys, said he has appealed Jones' decision to the Third District Court of Appeals. He is asking the appeals court to stop the trial pending the decision on Jones' recusal.
"We were concerned about this judge from the very beginning," said Nowatney. "But our attorney encouraged us to stay the course, get the evidence before the judge and let that evidence show that we are innocent. But it finally reached the point where he could no longer convince us that we can get a fair hearing in Judge Jones' courtroom.
"The major problem is that Judge Jones has repeatedly refused to hear evidence that supports our innocence," Nowatney said. "Why would he do that? There is no jury to be influenced. He could have at least listened to our evidence.
"This case is supposed to be decided like I used to imagine the scales of justice," Nowatney said. "If one side has more quantity and quality of evidence to tilt the scale, that side should prevail. But that system can only work if you are allowed to put your evidence on the scale.
"The last straw came last week when Judge Jones refused to hear the testimony of the state's own psychologist. This is the psychologist that the state insisted that we see. But when the lawyer for the state learned that this expert's report was favorable to us, she moved to keep the psychologist from testifying on our behalf. And the judge went along with that!
"Had that psychologist's report been negative towards us, you can bet that the state would have pushed hard to get that evidence into the record— and we believe that Judge Jones would have heard it," Nowatney said.
"As a mother, what hurt the most was that the state took our children away from us and kept them in foster homes for 200 days simply because we wouldn't compromise and make something up to admit that we abused our children," said Carrie Nowatney.
"Two things kept us going. The first was our faith in God. The second was our faith in a fair trial. Only our faith in God is left. "If the court and the state were not going to let us have a fair trial, I wish they would have just told us that up front," she said.
Attorney Barnes declined to comment other than to say, "This is not about lawyers or news. It's about children and a family. Nick and Carrie's sworn motion to disqualify the judge contains our justification."
This story began back on Sept. 3 of last year. Ten-month-old Nathan Nowatney was home alone with his father, a medic in an elite Army Special Forces unit assigned to the Naval Air Station here. Nathan fell off the couch and broke his forearm.
At the hospital, he was treated and sent home. Attending physicians say they saw nothing unusual, certainly no evidence of child abuse.
But another doctor who looked at the x-rays spotted what looked like a previous "greenstick" fracture, in the same arm, that was healing. That fracture had neither been reported nor treated. And the Nowatneys had no explanation for it.
By law, that unreported injury had to be reported to the Child Abuse Hotline— and an incredible series of events was set in motion.
Officials from the State Dept. of Children & Families (DCF) petitioned Judge Sandra Taylor to allow them to go to the Nowatney home and take Nathan and his older sister, Natalie, 3, and put them in a foster home. They told the judge that Natalie had also suffered a broken forearm a few months earlier while home alone with her mother.
Therefore, the DCF attorney argued, both parents might be child abusers.
Judge Taylor went along with the DCF— even though Nathan was still breastfeeding. And even though there were witnesses outside her chambers ready to challenge the DCF's charge of suspected child abuse. Not only were those witnesses not heard, the Nowatneys themselves were barred from that hearing for the first 20 minutes.
Over the next five months, the children were shuttled between three different foster homes up and down the Keys. But the Nowatneys could have gotten their kids back at any time, DCF officials now say.
"All we had to do was plead guilty and allow state case workers to come into our home anytime they wanted to for months or even years," said Nick Nowatney. "But we couldn't plead guilty— because we didn't do anything wrong."
So the DCF refused to return the children.
As early as Oct. 28, however, Dr. Walter Lambert, the head of the DCF's Child Protection Team in Dade and Monroe Counties, told DCF officials here that, in his opinion, Natalie's broken arm was accidental, effectively eliminating Carrie as a "suspect."
"At that point, they should have returned the children to our home," Nick said. "If I was still a `suspect,' I would have moved to the barracks. I wouldn't have been thrilled about that, but at least our children would have been with their mother in a familiar environment, rather than forced to live with strangers."
Meanwhile:
• Both the Army and the Navy conducted separate investigations. No evidence of child abuse or neglect found. Both investigations have been closed.
• Two full body x-rays of both children showed no evidence of child abuse.
• Both parents voluntarily sat for polygraph examinations. No deception shown. Innocence indicated.
• Both parents have been exhaustively interviewed and fully tested by two psychologists— both of whom are frequently used by the court. Both doctors reported that the Nowatneys are committed parents and that neither have characteristics commonly associated with child abuse.
Last November, the Nowatneys asked local DCF officials to take the necessary steps to qualify Carrie's sister, who lives in their hometown of Emden, Ill., as a foster parent so the kids might at least live with relatives, rather than strangers.
It took the DCF here two months to even send the paperwork to Illinois. But, finally, in February, Judge Jones signed an order allowing the children to live in Emden until the start of the trial on March 27.
"I was able to stay with my parents in Emden," Carrie said, "so I could at least be close to the children and be with them every day."
Nick remained on duty at the Naval Air Station here.
"When the kids were finally turned over to Carrie's relatives, Nathan had a diaper rash so serious it was blistering," Nick said. "Diaper rash is caused by neglect. Our son was neglected in foster care, supposedly under state supervision!"
Finally in late March, Judge Jones said the kids could return to Key West to live with their parents.
"They could have and should have returned our kids back in September," Nick said. "The only reason they didn't was to try to coerce us into pleading guilty to something we couldn't do. Finally, they just couldn't justify holding our children hostage any longer."
When the trial started, several paid DCF medical experts suggested that what they saw on the x-rays "could have been" the result of child abuse. Other experts testifying for the parents— at little or no charge because this fight has financially exhausted the Nowatneys— scoffed at the state witnesses' conclusions.
"While forearm fractures are not unusual in children, they are unusual in child abuse cases," said Dr. Harry Smith of the Biodynamic Research Corp. in San Antonio. "Fracture locations that would raise suspicion would be the ribs, spine, collarbone and bones in the shoulder."
And since neither Nowatney child showed fractures in any of the "classical" locations, "the probability of child abuse is low to a degree of radiological certainty," Dr. Smith concluded.
Another defense witness, Dr. Thomas McNish, also with Biodynamic Research, scolded the DCF. "The initial appropriate concern for the possibility of child abuse . . . quickly gave way to an overly aggressive effort to prove the suspicions true, without attending to the lack of supporting evidence."
After four days of testimony, the closed-to-the-public trial resumed for a half-day on April 14, with another half-day April 27.
Last Thursday, after Judge Jones refused to hear the testimony of the psychologist, the Nowatneys asked him to disqualify himself. He refused. Attorney Barnes has appealed to the Third District Court of Appeals.
Stay tuned.
NOTE: The outrage continues! While State Attorney Kirk Zuelch (who is running for reelection) has millions of taxpayer dollars to spend to try to run this young family into the ground, the Nowatneys have been financially exhausted by the state's dishonorable efforts to make their children "dependent".
If you want to help— and your help is needed— send your contribution to to the Nowatney's legal defense fund. We call it the "Mama, am I still in Foster Care Fund" because that's what little Natalie always asked her mother every time she saw her during those long months when she was being forced by the DCF to live with strangers.
To contribute, drop your check off at our office at 422 Fleming St. or mail it % Key West The Newspaper, PO Box 567, Key West FL 33041. Questions: Call Dennis Reeves Cooper, 292-2108.