Possible Double Jeopardy Involved : Judge Delays Sentencing in Batey Case

Despite objections by her attorney, Betty Lou Batey’s sentencing for a contempt conviction was delayed Friday by a Superior Court judge who wondered if a jail term would put the woman in double jeopardy.

Judge Judith McConnell said she feared that, if she imposed sentence on Mrs. Batey, another judge would be prevented from jailing the woman if she is convicted in a related felony case that is pending.

Mrs. Batey and her ex-husband, Frank Batey, were involved in a lengthy and bitter custody battle over the couple’s 13-year-old son, Brian. The fundamentalist Christian was convicted of three counts of civil contempt in October for fleeing with Brian in 1982 and then hiding him for 20 months.

The boy had been awarded to the custody of his father, who is homosexual. Mrs. Batey was convicted in a court trial of violating a court order that prohibited her from taking the boy out of Southern California without either court approval or her ex-husband’s consent. She faces 15 days in jail and a $3,000 fine on the contempt conviction.

McConnell on Friday delayed sentencing until Feb. 15.

In the meantime, Mrs. Batey will be in court on Monday to be tried on a felony child stealing charge. Although that trial has not started, McConnell expressed concern that if she imposed sentence on the contempt conviction, the judge who hears the felony case would be barred from giving Mrs. Batey jail time if she is convicted in that matter.

“I raised an issue that has been brought to my attention, and that is the issue of double jeopardy,” said McConnell. “I prefer not to sentence Mrs. Batey today, but to delay until the criminal matter is done. . . . There is good cause for delay of sentence to allow both parties to brief me on double jeopardy.”

Michael Farris, Mrs. Batey’s attorney, said he did not agree with the delay. Farris argued that his client is already a victim of double jeopardy and predicted that the child stealing charge will be dismissed on Monday.

“I think it’s a foregone conclusion that the criminal matter will have to be dismissed on double jeopardy grounds,” said Farris. “We think sentencing should be done now based on Mrs. Batey’s conduct and not on outside concerns.”

James Walsh, Frank Batey’s attorney, indicated that he, too, wanted Mrs. Batey sentenced on Friday. In asking for the imposition of sentence, Walsh said that he wanted Mrs. Batey to think about what punishment she would expect for Frank Batey if he had kidnaped the boy.

Then turning to McConnell, Walsh said, “I would like the court to impose the same sentence on Mrs. Batey that it would have imposed on Mr. Batey . . . if he had kidnaped Brian and kept him away from his mother for two years.”

In November, McConnell ordered Brian Batey kept away from both his parents and in a foster home.