June 10, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization
Here and here I wrote about the federal criminal trial of wealthy Brazilians Carlos and Jemima Guimaraes. They were charged, tried and convicted of aiding the abduction of their grandson, Nico, by his mother (their daughter) from Houston to Brazil. She abducted him four years ago and the Brazilian courts have yet to order his return to the U.S.
Now, Nico’s country of residence is the United States inasmuch as he was born here and lived here his entire life prior to his abduction. Accordingly, the courts there should have ordered his return shortly after his mother, Marcelle, turned up with him. But, as things so often go in Brazil, the courts allow the plain meaning of the Convention to be flouted.
Now, Marcelle at some point began claiming that her ex-husband and Nico’s father, Houston physician Chris Brann committed domestic violence against her. That has little-to-no bearing on the Hague Convention case because there’s no doubt that U.S. courts can deal effectively with DV cases including those that arise in child custody matters. Indeed, they’ve done so in this case.
But claims of domestic violence can be a defense to the very criminal charge levelled against Carlos and Jemima. Just why that should be is a bit of a mystery to me given that no one has ever claimed that Brann was violent toward Nico’s grandparents. Still the law’s the law and they duly raised the issue in Houston federal court as a defense to the charge against them.
The jury didn’t buy it and found them guilty. But, when I first wrote about the case, the judge, Alfred Bennett, announced his intention to consider acquitting them anyway based on their claim of DV. At the time I pointed out that at least three finders of fact had already considered and rejected Marcelle’s claim that Brann had been violent toward her. Those were the original family court in Houston, the Brazilian Attorney General and finally the jury in the criminal case. I pointed out that to acquit Carlos and Jemima in the face of all those findings would be a travesty.
So the good news is that Judge Bennett has rejected the defendants’ motion and allowed the jury’s verdict to stand. Sentencing will be on August 2 in Houston. Meanwhile Carlos and Jemima are under house arrest and required to wear ankle monitors to forestall flight.
Chris Brann’s attorney has issued a press release.
Most interesting to me is this:
The decisions [by the U.S. State Department and the Brazilian Attorney General’s Office] also mirrored those of the Texas District Court for Harris County, Texas, which found Marcelle Guimaraes' claims made during the divorce case were "false and made with malice" and granting divorce in favor of Christopher Brann on grounds of "adultery and cruelty."
Wow. Judges are usually pretty circumspect in how they word their findings. The judge in the Brann/Guimaraes divorce and custody matter was anything but. He/she was clearly unhappy with Marcelle and her claims of domestic violence. Given that powerful and unambiguous wording, I find it exceedingly strange that one of Texas’ best criminal lawyers, Rusty Hardin, would have attempted to use domestic violence as a defense. Of course, like all lawyers, Hardin had to do the best he could with the facts of the case. Apparently, those facts weren’t favorable to his clients.
That makes it all the stranger that Judge Bennett would have taken seriously Hardin’s motion to disregard the jury’s verdict. But whatever his thinking on that, at least he got it right in the end.
The Guimaraes each face up to three years in prison. I’d like to see them serve every day of it, but doubt they will. Still, what Judge Bennett needs to consider is, first and foremost, the fact that parental child abduction constitutes child abuse. Nico has now spent over half his life away from his home country, his father, his extended family, friends, etc. Whatever Judge Bennett decides, it must reflect that most important fact.
Second, he must consider the fact that his sentence sends one message or another to those who would abduct their children and those who would assist them. One message is that the judicial system takes seriously child abduction and its attendant abuse; the other is that it doesn’t.
Come August 2, we’ll see what message Judge Bennett sends.
In the meantime, I’ll have more to say on this case.