On July 20, 2006, Cade was interviewed by Nancy Grace on CNN’s Headline Prime. Grace, emblematic of the media reaction, introduced the interview with: “Tonight, a primetime exclusive. She went before a trial judge and begged for help, begged for protection. He refused to hear her pleas for help. And then her nightmare came true. Her estranged husband came to her office and set her on fire. But against all odds, she lived, and tonight she wants justice. And PS, to the judge that sentenced her to being burned alive, Maryland judge Richard Palumbo, you are in contempt!” Adding to this, one of Grace’s other guests, Congressman Ted Poe, commented: “Well, Nancy, you know I believe that judges need to be accountable for their actions just like we make criminals accountable. And this judge, whether it’s a mistake or incompetence on his part, he needs to leave the bench.” A judicial misconduct hearing scheduled for the end of August was cancelled when Palumbo announced he planned to retire on August 4th because of health problems.
Whether or not the horrific criminal act committed by Hargrave would have been prevented had Palumbo extended the restraining order, the Yvette Cade tragedy and the ensuing backlash against Palumbo is likely to have just one result. As if things weren’t bad enough already in the family courts, judges are going to be even more likely to grant restraining orders, regardless of the facts, rather than risk being held responsible for a similar tragedy.
Economists have long realized that Food and Drug Administration (FDA) officials, in deciding whether to approve a drug, face the possibility of making two errors--they can approve a drug that turns out to be unsafe and/or ineffective, type I, or they can disapprove an effective drug that is, in fact, safe, type II--and have an incentive to make one type of error over the other.
A classic example of type I error, given by former FDA official Henry I. Miller, M.D., is the FDA’s approval in 1976 of the swine flu vaccine. “Although the vaccine was effective at preventing influenza,… it had a major side effect that was unknown at the time of approval: temporary paralysis from Guilain-Barré Syndrome in a small number of patients. This kind of mistake is highly visible and has immediate consequences--the media pounces, the public denounces, and Congress pronounces. Both the developers of the product and the regulators who allowed it to be marketed are excoriated and punished in modern-day pillories: congressional hearings, television news magazines, and newspaper editorials.”
Economist Thomas W. Hazlett sums it up this way: “Type I deaths result in headlines reading, ‘FDA-Approved Drug Kills Pregnant Mother, Congressional Hearings Slated.’ Type II deaths don’t generate headlines, or even little blurbs. There are no visible victims to lay on the regulator's doorstep when potential beneficiaries are only statistical probabilities.” As Miller confides, “Because a regulatory official's career might be damaged irreparably by his good faith but mistaken approval of a high-profile product, decisions are often made defensively--in other words, to avoid type 1 errors at any cost.”
Although it is not politically correct to say so, women can and do use false allegations of domestic violence to gain sole custody and to get their children to hate and fear their fathers. Even when a restraining order doesn’t snowball into complete parental alienation, a judge’s declaration that a father is an abuser can permanently tarnish his image in his child’s eyes. The damage to father/child relationships and to children’s mental health caused by the overzealous entering of restraining orders, however, is seldom if ever reported, while the harm caused by overtly violent acts following the failure to enter restraining orders most certainly is.
Facts should be determined by several fresh, open minds, not one with a career on the line. Jurors, relatively anonymous one-time actors in the judicial system, are far less concerned with extraneous matters than are judges. In the wake of the Yvette Cade tragedy, it is more critical than ever that juries, not judges, be used to decide when domestic violence restraining orders are warranted.