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[l] at 7/13/24 3:00am
by Andy Kroll, ProPublica, and Nick Surgey, Documented ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. A network of ultrawealthy Christian donors is spending nearly $12 million to mobilize Republican-leaning voters and purge more than a million people from the rolls in key swing states, aiming to tilt the 2024 election in favor of former President Donald Trump. These previously unreported plans are the work of a group named Ziklag, a little-known charity whose donors have included some of the wealthiest conservative Christian families in the nation, including the billionaire Uihlein family, who made a fortune in office supplies, the Greens, who run Hobby Lobby, and the Wallers, who own the Jockey apparel corporation. Recipients of Ziklag’s largesse include Alliance Defending Freedom, which is the Christian legal group that led the overturning of Roe v. Wade, plus the national pro-Trump group Turning Point USA and a constellation of right-of-center advocacy groups. ProPublica and Documented obtained thousands of Ziklag’s members-only email newsletters, internal videos, strategy documents and fundraising pitches, none of which has been previously made public. They reveal the group’s 2024 plans and its long-term goal to underpin every major sphere of influence in American society with Christianity. In the Bible, the city of Ziklag was where David and his soldiers found refuge during their war with King Saul. “We are in a spiritual battle and locked in a terrible conflict with the powers of darkness,” says a strategy document that lays out Ziklag’s 30-year vision to “redirect the trajectory of American culture toward Christ by bringing back Biblical structure, order and truth to our Nation.” Ziklag’s 2024 agenda reads like the work of a political organization. It plans to pour money into mobilizing voters in Arizona who are “sympathetic to Republicans” in order to secure “10,640 additional unique votes” — almost the exact margin of President Joe Biden’s win there in 2020. The group also intends to use controversial AI software to enable mass challenges to the eligibility of hundreds of thousands of voters in competitive states. In a recording of a 2023 internal strategy discussion, a Ziklag official stressed that the objective was the same in other swing states. “The goal is to win,” the official said. “If 75,000 people wins the White House, then how do we get 150,000 people so we make sure we win?” According to the Ziklag files, the group has divided its 2024 activities into three different operations targeting voters in battleground states: Checkmate, focused on funding so-called election integrity groups; Steeplechase, concentrated on using churches and pastors to get out the vote; and Watchtower, aimed at galvanizing voters around the issues of “parental rights” and opposition to transgender rights and policies supporting health care for trans people. In a member briefing video, one of Ziklag’s spiritual advisers outlined a plan to “deliver swing states” by using an anti-transgender message to motivate conservative voters who are exhausted with Trump. But Ziklag is not a political organization: It is a 501(c)(3) tax-exempt charity, the same legal designation as the United Way or Boys and Girls Club. Such organizations do not have to publicly disclose their funders, and donations are tax deductible. In exchange, they are “absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office,” according to the IRS. ProPublica and Documented presented the findings of their investigation to six nonpartisan lawyers and legal experts. All expressed concern that Ziklag was testing or violating the law. The reporting by ProPublica and Documented “casts serious doubt on this organization’s status as a 501(c)(3) organization,” said Roger Colinvaux, a professor at Catholic University’s Columbus School of Law. “I think it’s across the line without a question,” said Lloyd Hitoshi Mayer, a University of Notre Dame law professor. Ziklag officials did not respond to a detailed list of questions. Martin Nussbaum, an attorney who said he was the group’s general counsel, said in a written response that “some of the statements in your email are correct. Others are not,” but he then did not respond to a request to specify what was erroneous. The group is seeking to “align” the culture “with Biblical values and the American constitution, and that they will serve the common good,” he wrote. Using the official tax name for Ziklag, he wrote that “USATransForm does not endorse candidates for public office.” He declined to comment on the group’s members. There are no bright lines or magic words that the IRS might look for when it investigates a charitable organization for engaging in political intervention, said Mayer. Instead, the agency examines the facts and circumstances of a group’s activities and makes a conclusion about whether the group violated the law. The biggest risk for charities that intervene in political campaigns, Mayer said, is loss of their tax-exempt status. Donors’ ability to deduct their donations can be a major sell, not to mention it can create “a halo effect” for the group, Mayer added. “They may be able to get more money this way,” he said, adding, “It boils down to tax evasion at the end of the day.” “Dominion Over the Seven Mountains” Ziklag has largely escaped scrutiny until now. The group describes itself as a “private, confidential, invitation-only community of high-net-worth Christian families.” According to internal documents, it boasts more than 125 members that include business executives, pastors, media leaders and other prominent conservative Christians. Potential new members, one document says, should have a “concern for culture” demonstrated by past donations to faith-based or political causes, as well as a net worth of $25 million or more. None of the donors responded to requests for comment. Tax records show rapid growth in the group’s finances in recent years. Its annual revenue climbed from $1.3 million in 2018 to $6 million in 2019 and nearly $12 million in 2022, which is the latest filing available. The group’s spending is not on the scale of major conservative funders such as Miriam Adelson or Barre Seid, the electronics magnate who gave $1.6 billion to a group led by conservative legal activist Leonard Leo. But its funding and strategy represent one of the clearest links yet between the Christian right and the “election integrity” movement fueled by Trump’s baseless claims about voting fraud. Even several million dollars funding mass challenges to voters in swing counties can make an impact, legal and election experts say. Ziklag was the brainchild of a Silicon Valley entrepreneur named Ken Eldred. It emerged from a previous organization founded by Eldred called United In Purpose, which aimed to get more Christians active in the civic arena, according to Bill Dallas, the group’s former director. United In Purpose generated attention in June 2016 when it organized a major meeting between then-candidate Trump and hundreds of evangelical leaders. After Trump was elected in 2016, Eldred had an idea, according to Dallas. “He says, ‘I want all the wealthy Christian people to come together,’” Dallas recalled in an interview. Eldred told Dallas that he wanted to create a donor network like the one created by Charles and David Koch but for Christians. He proposed naming it David’s Mighty Men, Dallas said. Female members balked. Dallas found the passage in Chronicles that references David’s soldiers and read that they met in the city of Ziklag, and so they chose the name Ziklag. The group’s stature grew after Trump took office. Vice President Mike Pence appeared at a Ziklag event, as did former Housing and Urban Development Secretary Ben Carson, Sen. Ted Cruz, then-Rep. Mark Meadows and other members of Congress. In its private newsletter, Ziklag claims that a coalition of groups it assembled played “a hugely significant role in the selection, hearings and confirmation process” of Amy Coney Barrett for a Supreme Court seat in late 2020. Confidential donor networks regularly invest hundreds of millions of dollars into political and charitable groups, from the liberal Democracy Alliance to the Koch-affiliated Stand Together organization on the right. But unlike Ziklag, neither of those organizations is legally set up as a true charity. Ziklag appears to be the first coordinated effort to get wealthy donors to fund an overtly Christian nationalist agenda, according to historians, legal experts and other people familiar with the group. “It shows that this idea isn’t being dismissed as fringe in the way that it might have been in the past,” said Mary Ziegler, a legal historian and University of California, Davis law professor. The Christian nationalism movement has a variety of aims and tenets, according to the Public Religion Research Institute: that the U.S. government “should declare America a Christian nation”; that American laws “should be based on Christian values”; that the U.S. will cease to exist as a nation if it “moves away from our Christian foundations”; that being Christian is essential to being American; and that God has “called Christians to exercise dominion over all areas of American society.” One theology promoted by Christian nationalist leaders is the Seven Mountain Mandate. Each mountain represents a major industry or a sphere of public life: arts and media, business, church, education, family, government, and science and technology. Ziklag’s goal, the documents say, is to “take dominion over the Seven Mountains,” funding Christian projects or installing devout Christians in leadership positions to reshape each mountain in a godly way. To address their concerns about education, Ziklag’s leaders and allies have focused on the public-school system. In a 2021 Ziklag meeting, Ziklag’s education mountain chair, Peter Bohlinger, said that Ziklag’s goal “is to take down the education system as we know it today.” The producers of the film “Sound of Freedom,” featuring Jim Caviezel as an anti-sex-trafficking activist, screened an early cut of the film at a Ziklag conference and asked for funds, according to Dallas. An excerpt from Ziklag’s “Declaration and 30-Year Vision for the Mountains of Influence.” The document outlines Ziklag’s mission to reshape each major aspect of American society so that it operates according to a biblical worldview. (Obtained by ProPublica and Documented) The Seven Mountains theology signals a break from Christian fundamentalists such as Jerry Falwell Sr. and Pat Robertson. In the 1980s and ’90s, Falwell’s Moral Majority focused on working within the democratic process to mobilize evangelical voters and elect politicians with a Christian worldview. The Seven Mountains theology embraces a different, less democratic approach to gaining power. “If the Moral Majority is about galvanizing the voters, the Seven Mountains is a revolutionary model: You need to conquer these mountains and let change flow down from the top,” said Matthew Taylor, a senior scholar at the Institute for Islamic, Christian and Jewish Studies and an expert on Christian nationalism. “It’s an outlined program for Christian supremacy.” “The Amorphous, Tumultuous Wild West” The Christian right has had compelling spokespeople and fierce commitment to its causes, whether they were ending abortion rights, allowing prayer in schools or displaying the Ten Commandments outside of public buildings. What the movement has often lacked, its leaders argue, is sufficient funding. “If you look at the right, especially the Christian right, there were always complaints about money,” said legal historian Ziegler. “There’s a perceived gap of ‘We aren’t getting the support from big-name, big-dollar donors that we deserve and want and need.’” That’s where Ziklag comes in. Speaking late last year to an invitation-only gathering of Ziklaggers, as members are known, Charlie Kirk, who leads the pro-Trump Turning Point USA organization, named left-leaning philanthropists who were, in his view, funding the destruction of the nation: MacKenzie Scott, ex-wife of Amazon founder Jeff Bezos; billionaire investor and liberal philanthropist George Soros; and the two founders of Google, Larry Page and Sergey Brin. “Why are secular people giving more generously than Christians?” Kirk asked, according to a recording of his remarks. “It would be a tragedy,” he added, “if people who hate life, hate our country, hate beauty and hate God wanted it more than us.” “Ziklag is the place,” Kirk told the donors. “Ziklag is the counter.” Similarly, Pence, in a 2021 appearance at a private Ziklag event, praised the group for its role in “changing lives, and it’s advanced the cause, it’s advanced the kingdom.” A driving force behind Ziklag’s efforts is Lance Wallnau, a prominent Christian evangelist and influencer based in Texas who is described by Ziklag as a “Seven Mountains visionary & advisor.” The fiery preacher is one of the most influential figures on the Christian right, experts say, a bridge between Christian nationalism and Trump. He was one of the earliest evangelical leaders to endorse Trump in 2015 and later published a book titled “God’s Chaos Candidate: Donald J. Trump and the American Unraveling.” More than 1 million people follow him on Facebook. He doesn’t try to hide his views: “Yes, I am a Christian nationalist,” he said during one of his livestreams in 2021. (Wallnau did not respond to requests for comment.) Donald Trump shakes hands with Lance Wallnau, a self-described Christian nationalist. (Lancewallnau.com) Wallnau has remained a Trump ally. He called Trump’s time in office a “spiritual warfare presidency” and popularized the idea that Trump was a “modern-day Cyrus,” referring to the Persian king who defeated the Babylonians and allowed the Jewish people to return to Jerusalem. Wallnau has visited with Trump at the White House and Trump Tower; last November, he livestreamed from a black-tie gala at Mar-a-Lago where Trump spoke. Wallnau did not come up with the notion that Christians should try to take control of key areas of American society. But he improved on the idea by introducing the concept of the seven mountains and urged Christians to set about conquering them. The concept caught on, said Taylor, because it empowered Christians with a sense of purpose in every sphere of life. As a preacher in the independent charismatic tradition, a fast-growing offshoot of Pentecostalism that is unaffiliated with any major denomination, Wallnau and his acolytes believe that God speaks to and through modern-day apostles and prophets — a version of Christianity that Taylor, in his forthcoming book “The Violent Take It By Force,” describes as “the amorphous, tumultuous Wild West of the modern church.” Wallnau and his ideas lingered at the fringes of American Christianity for years, until the boost from the Trump presidency. The Ziklag files detail not only what Christians should do to conquer all seven mountains, but also what their goals will be once they’ve taken the summit. For the government mountain, one key document says that “the biblical role of government is to promote good and punish evil” and that “the word of God and prayer play a significant role in policy decisions.” For the arts and entertainment mountain, goals include that 80% of the movies produced be rated G or PG “with a moral story,” and that many people who work in the industry “operate under a biblical/moral worldview.” The education section says that homeschooling should be a “fundamental right” and the government “must not favor one form of education over another.” Other internal Ziklag documents voice strong opposition to same-sex marriage and transgender rights. One reads: “transgender acceptance = Final sign before imminent collapse.” Heading into the 2024 election year, Ziklag executive director Drew Hiss warned members in an internal video that “looming above and beyond those seven mountains is this evil force that’s been manifesting itself.” He described it as “a controlling, evil, diabolical presence, really, with tyranny in mind.” That presence was concentrated in the government mountain, he said. If Ziklaggers wanted to save their country from “the powers of darkness,” they needed to focus their energies on that government mountain or else none of their work in any other area would succeed. “Operation Checkmate” In the fall of 2023, Wallnau sat in a gray armchair in his TV studio. A large TV screen behind him flashed a single word: “ZIKLAG.” “You almost hate to put it out this clearly,” he said as he detailed Ziklag’s electoral strategy, “because if somebody else gets ahold of this, they’ll freak out.” He was joined on set by Hiss, who had just become the group’s new day-to-day leader. The two men were there to record a special message to Ziklag members that laid out the group’s ambitious plans for the upcoming election year. The forces arrayed against Christians were many, according to the confidential video. They were locked in a “spiritual battle,” Hiss said, against Democrats who were a “radical left Marxist force.” Biden, Wallnau said, was a senile old man and “an empty suit with an agenda that’s written and managed by somebody else.” Wallnau speaks with Drew Hiss, Ziklag’s executive director, about the group’s goals for political engagement. (Obtained by ProPublica and Documented) Watch video ➜ In the files, Ziklag says it plans to give out nearly $12 million to a constellation of groups working on the ground to shift the 2024 electorate in favor of Trump and other Republicans. A prominent conservative getting money from Ziklag is Cleta Mitchell, a lawyer and Trump ally who joined the January 2021 phone call when then-President Trump asked Georgia’s secretary of state to “find” enough votes to flip Georgia in Trump’s favor. Mitchell now leads a network of “election integrity” coalitions in swing states that have spent the last three years advocating for changes to voting rules and how elections are run. According to one internal newsletter, Ziklag was an early funder of Mitchell’s post-2020 “election integrity” activism, which voting-rights experts have criticized for stoking unfounded fears about voter fraud and seeking to unfairly remove people from voting rolls. In 2022, Ziklag donated $600,000 to the Conservative Partnership Institute, which in turn funds Mitchell’s election-integrity work. Internal Ziklag documents show that it provided funding to enable Mitchell to set up election integrity infrastructure in Florida, North Carolina and Wisconsin. Now Mitchell is promoting a tool called EagleAI, which has claimed to use artificial intelligence to automate and speed up the process of challenging ineligible voters. EagleAI is already being used to mount mass challenges to the eligibility of hundreds of thousands of voters in competitive states, and, with Ziklag’s help, the group plans to ramp up those efforts. According to an internal video, Ziklag plans to invest $800,000 in “EagleAI’s clean the rolls project,” which would be one of the largest known donations to the group. Conservative lawyer Cleta Mitchell, seen speaking at an event with then-President Donald Trump, received funding from Ziklag for her efforts to overturn the 2020 election results. (Anna Moneymaker/The New York Times/Bloomberg via Getty Images) Ziklag lists two key objectives for Operation Checkmate: “Secure 10,640 additional unique votes in Arizona (mirroring the 2020 margin of 10,447 votes), and remove up to one million ineligible registrations and around 280,000 ineligible voters in Arizona, Nevada, Georgia, and Wisconsin.” In a recording of an internal Zoom call, Ziklag’s Mark Bourgeois stressed the electoral value of targeting Arizona. “I care about Maricopa County,” Bourgeois said at one point, referring to Arizona’s largest county, which Biden won four years ago. “That’s how we win.” For Operation Watchtower, Wallnau explained in a members-only video that transgender policy was a “wedge issue” that could be decisive in turning out voters tired of hearing about Trump. The left had won the battle over the “homosexual issue,” Wallnau said. “But on transgenderism, there’s a problem and they know it.” He continued: “They’re gonna wanna talk about Trump, Trump, Trump. … Meanwhile, if we talk about ‘It’s not about Trump. It’s about parents and their children, and the state is a threat,’” that could be the “target on the forehead of Goliath.” The Ziklag files describe tactics the group plans to use around parental rights — policies that make it easier for parents to control what’s taught in public schools — to turn out conservative voters. In a fundraising video, the group says it plans to underwrite a “messaging and data lab” focused on parental rights that will supply “winning messaging to all our partner groups to create unified focus among all on the right.” The goal, the video says, is to make parental rights “the difference-maker in the 2024 election.” According to Wallnau, Ziklag also plans to fund ballot initiatives in seven key states — Arizona, Colorado, Florida, Michigan, Montana, Nevada and Ohio — that take aim at the transgender community by seeking to ban “genital mutilation.” The seven states targeted are either presidential battlegrounds or have competitive U.S. Senate races. None of the initiatives is on a state ballot yet. “People that are lethargic about the election or, worse yet, they’re gonna be all Trump-traumatized with the news cycle — this issue will get people to come out and vote,” Wallnau said. “That ballot initiative can deliver swing states.” The last prong of Ziklag’s 2024 strategy is Operation Steeplechase, which urges conservative pastors to mobilize their congregants to vote in this year’s election. This project will work in coordination with several prominent conservative groups that support former president Trump’s reelection, such as Turning Point USA’s faith-based group, the Faith and Freedom Coalition run by conservative operative Ralph Reed and the America First Policy Institute, one of several groups closely allied with Trump. Ziklag’s website outlines its three major operations and which mountains each one targets. (Screenshot by ProPublica) Ziklag says in a 2023 internal video that it and its allies will “coordinate extensive pastor and church outreach through pastor summits, church-focused messaging and events and the creation of pastor resources.” As preacher and activist John Amanchukwu said at a Ziklag event, “We need a church that’s willing to do anything and everything to get to the point where we reclaim that which was stolen from us.” Six tax experts reviewed the election-related strategy discussions and tactics reported in this story. All of them said the activities tested or ran afoul of the law governing 501(c)(3) charities. The IRS and the Texas attorney general, which would oversee the Southlake, Texas, charity, did not respond to questions. While not all of its political efforts appeared to be clear-cut violations, the experts said, others may be: The stated plan to mobilize voters “sympathetic to Republicans,” Ziklag officials openly discussing the goal to win the election, and Wallnau’s call to fund ballot initiatives that would “deliver swing states” while at the same time voicing explicit criticism of Biden all raised red flags, the experts said. “I am troubled about a tax-exempt charitable organization that’s set up and its main operation seems to be to get people to win office,” said Phil Hackney, a professor of law at the University of Pittsburgh and an expert on tax-exempt organizations. “They’re planning an election effort,” said Marcus Owens, a tax lawyer at Loeb and Loeb and a former director of the IRS’ exempt organizations division. “That’s not a 501(c)(3) activity.” Do You Have a Tip for ProPublica? Help Us Do Journalism. Do you have any information about Ziklag or the Christian right’s plans for 2024 that we should know? Andy Kroll can be reached by email at andy.kroll@propublica.org and by Signal or WhatsApp at 202-215-6203.
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[l] at 7/12/24 3:00am
by Jennifer Smith Richards and Jodi S. Cohen ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. ProPublica’s journalists live and work all over the country. We’re both based in Chicago, and, along with several of our colleagues, we are focused on telling stories about the Midwest. In recent years, the two of us have teamed up to cover ticketing and the use of seclusion and restraint in Illinois school districts. But if you’ve seen our work lately, you know we’ve been reporting on troubling conditions at an unregulated, for-profit boarding school for autistic students in New York — not exactly in our backyard. We’d been getting tips for a while from local sources who were worried about the effect of a 2022 Illinois law that made it easier for school districts to use public money to send students with disabilities to far-away schools. And then we heard concerns that students were being mistreated at one of those schools: Shrub Oak International School in Mohegan Lake, New York. Black eyes and bruises. Insufficient staffing. Medical neglect. No kitchen. At least 15 Illinois students were enrolled there this past school year using state and local taxpayer dollars at $573,200 each. No state outside of New York sends more students to Shrub Oak than Illinois. Students from 13 states and Puerto Rico — including Michigan and Indiana in the Midwest — went to Shrub Oak this past school year. Families’ decisions to cross state borders for an education often come after they have struggled to find a place for their children. For journalists, this trend and its impact are not easy to follow. It means education reporters sometimes also have to go beyond their borders both to follow the flow of public money and to see how students are treated when they leave their communities. So this was a Midwest story, after all. The more we dug into the situation at Shrub Oak, the more implications we found for local families. We learned that Illinois’ new law required the Illinois State Board of Education to pay for schools like Shrub Oak, but it did not allow the agency to monitor them. That left Illinois students at Shrub Oak vulnerable, because Shrub Oak is not monitored by any government agency in New York, either. Families and workers who tried to report their concerns to several New York agencies were turned away because the private, for-profit school had chosen not to seek approval from the New York State Education Department and therefore did not fall under the state’s jurisdiction. We also learned that a Chicago student was harmed by a Shrub Oak worker while she was there. (The now-former worker pleaded guilty to endangering the welfare of a disabled person last month in Westchester County court. Shrub Oak previously told us that it acts quickly to involve law enforcement when it thinks an investigation is warranted. The school has said it works with students who have autism and who struggle with “significant self-injurious behaviors,” aggression and property destruction.) News publications have republished or cited our stories to amplify the reporting in their own communities, from The Daily Herald in Illinois to the Hartford Courant and CT Mirror in Connecticut. Illinois has no plans to stop sending students to Shrub Oak — and Chicago Public Schools this month approved sending a new student there — but some other states have begun to investigate or even bring students back home. One state agency in Connecticut, for example, described the facility as looking “more akin to a penal institution than an educational campus” and has decided to stop sending students there. Several families have also told us that they’re happy with Shrub Oak and that the school has helped their children. In some cases, it was the only school that accepted their children, and they don’t want states to stop paying tuition there. Since we published our first story in May, we’ve learned more about what the lack of oversight by the state of New York means. We recently obtained records that we had requested in January in an effort to learn more about what the state Education Department knew about Shrub Oak and students’ welfare there. (A ProPublica lawyer helped us get the documents after Shrub Oak intervened legally to urge the department not to release the records.) We found that in 2023, Shrub Oak provided a list of staff members to the New York’s Education Department that included the names of 30 individuals who the school said were all “certified special education teachers.” But there was one problem: New York teacher certification records indicated that only 11 of the people listed are certified by the state as special-education teachers. The staff list was submitted as the school was amending its filing with the state to operate a school business. An Education Department spokesperson told us that even though the state requires the information, it does not verify whether the teachers are certified because private schools don’t need to have certified teachers. The spokesperson did not respond to a question asking why the state requests information that it doesn’t verify. As we’ve learned more, we’ve continued to send questions to Shrub Oak. Shrub Oak told ProPublica in an email that although the list was submitted to the state, it was still in draft form and the school intended to update it. The Education Department told us Thursday that it had rejected the school’s amended filing; Shrub Oak told us it decided the filing was not needed and it abandoned the process. Recent email responses from the school have been unsigned and sent from its “press office.” The school would not identify who sent the emails. The emails criticized our reporting and said individuals were hesitant to be named because the reporting included “misrepresenting and twisting statements.” The school said we relied on “isolated incidents and the perspectives of a few individuals” and asked us to highlight some parents’ positive experiences at Shrub Oak. The email also noted that “each member of our staff is carefully selected based on their qualifications, experience, and commitment to the field of special education.” Shrub Oak previously told us that while operating a round-the-clock school is challenging, its staff is adequate. A kitchen will open as soon as electrical work is complete, Shrub Oak has said. It’s not clear if New York’s Education Department plans to intervene at Shrub Oak. But if it does, we’ll report on it — even though it’s hundreds of miles away from the Midwest. If you have anything to share about education or other tips in the Midwest, please reach out to us: jennifer.smithrichards@propublica.org and jodi.cohen@propublica.org. You can find more information about how to contact ProPublica reporters securely on our tips page.
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[l] at 7/11/24 4:00am
by Rob Davis, ProPublica, and Matthew Kish, The Oregonian/OregonLive This article was produced by ProPublica in partnership with The Oregonian/OregonLive. Sign up for Dispatches to get stories like this one as soon as they are published. Eight years ago, the world’s largest sports apparel brand made a bold commitment. Nike was embarking on what it called a moonshot: doubling its business while halving its impact on the warming planet. To get there, then-CEO Mark Parker said the Oregon-based company’s innovations in environmental sustainability would become a “powerful engine for growth,” a catalyst capable of changing industries. The company’s chief sustainability officer at the time, Hannah Jones, said achieving the goal would take “innovation on a scale we’ve never seen before.” Nike’s Sustainable Innovation team embodied the commitment. It looked for environmentally friendly new materials, like leather made from kelp and foams made from plants, that could replace some of the hundreds of millions of pounds of rubber, leather and cotton used in traditional Nike products. It assisted in testing and refining the foam in the new Pegasus 41 that Nike says cut the carbon footprint of the shoe’s midsole by at least 43%. So it came as a surprise one Sunday night in December when the dozen or so people on the team got summoned to a mandatory meeting the next morning. In a Zoom call before sunrise, they learned why. The team was being eliminated. The vice president who ran the team was gone. The call lasted less than 10 minutes. It was the first in a series of deep cuts that one former Nike employee called “the sustainability bloodbath.” With sales flatlining, Nike executives in December announced a plan to cut costs by $2 billion over three years. Those cuts have dealt a big blow to Nike’s sustainability workforce. Nike has laid off about 20% of employees who worked primarily on its sustainability initiatives, The Oregonian/OregonLive and ProPublica found. Roughly another 10% left voluntarily or were transferred to other jobs. The cuts to its sustainability staff of about 150 people were far deeper than Nike’s 2% reduction companywide and 7% reduction at its Oregon headquarters. The estimates are based on state employment records, a review of LinkedIn posts and interviews with more than 10 current and former Nike staff members who spoke on the condition of anonymity because they are not allowed to speak to the media or are looking for jobs in the industry. “I’m truly shocked that so many sustainability roles would be eliminated,” said one person who was laid off. “I would have never thought that from the industry leader. Never in a million years.” Given Nike’s leadership and investment, their retreat is unfortunate, especially in light of the scale and urgency of the challenge. —Ken Pucker, professor of practice at Tufts University Nike’s elimination of such a substantial share of its environmental sustainability staff is a stunning turn in the company’s 52-year history. After emerging from the shadow of labor abuses in its foreign factories in the 1990s, the apparel behemoth helped spark the corporate responsibility movement. As the public’s attention turned to corporate impact on the environment, a chastened Nike aimed to lead. But before the layoffs, Nike had missed its own targets for reducing its contribution to global warming. Its emissions have instead grown slightly since 2015. Nike today is losing market share and is likely trying to prioritize the short-term financial results Wall Street wants over sustainability’s longer-term payouts, said Ken Pucker, a former executive with the Timberland shoe brand and a professor of practice at Tufts University’s Fletcher School. “Given Nike’s leadership and investment, their retreat is unfortunate, especially in light of the scale and urgency of the challenge,” Pucker said. The company’s stock price has been cut in half since late 2021, including an almost 20% drop in late June, a day after executives forecast a sales decline this year. Get in Touch ProPublica and The Oregonian/OregonLive plan to continue reporting on Nike and its sustainability work, including its overseas operations. Do you have information that we should know? Rob Davis can be reached by email at rob.davis@propublica.org and by phone, Signal or WhatsApp at +1-503-770-0665. Matthew Kish can be reached by email at mkish@oregonian.com, by phone at +1-503-221-4386, and on Signal at +1-971-319-3830. Nike would not address the news organizations’ estimates of job cuts when asked about them. Jaycee Pribulsky, who was named Nike’s chief sustainability officer in February, said she was confident in the sustainability team Nike has in place and described Nike’s current strategy as “embedding” the work throughout the company. In other words: making sustainability everyone’s job as opposed to solely assigning it to a dedicated staff. “We’re not walking away from sustainability,” Pribulsky said. “I mean, full stop. We are committed.” The sweeping job cuts touched numerous layers of the organization. Attorneys and finance, waste and packaging specialists who worked in sustainability were laid off. Nike eliminated two of just five people working to trace the origins of the hundreds of millions of pounds of materials it uses. The company is legally prohibited from importing products containing cotton connected to forced Uyghur labor in China and has promised not to use leather that contributes to deforestation in the Amazon. Three top sustainability executives left, including Noel Kinder, its previous chief sustainability officer, who announced his retirement at age 52 in February. We’re not walking away from sustainability. I mean, full stop. We are committed. —Jaycee Pribulsky, Nike chief sustainability officer Nike by then had already moved sustainability down in the corporate hierarchy. In 2011, Jones, who held the top sustainability job for nearly 14 years, said that her team had gone from obscurity to reporting directly to Nike’s CEO. By the time Kinder left, the position was reporting to the chief supply chain officer, who reports to the marketplace president, who reports to the CEO. Kinder has since given several talks without addressing the cuts to his former employer’s sustainability staff. But in a June 6 webinar, he said any company’s sustainability strategy depends on what its senior leaders do “from a business strategy standpoint.” “And this actually happened at Nike,” Kinder said, “where a change in business strategy, or a change in financial objective, directly impacted the sustainability strategy, and frankly in a negative way. And so, there, it is what it is.” Kinder did not say when that happened. He later told the news organizations he was not referring to any particular moment in his career at Nike. “Sustainability was a priority at Nike for the nearly 25 years I was there regardless of the ups and downs of the business,” he said. “It was very much part of the fabric of the operating rhythm.” Noel Kinder, then-chief sustainability officer for Nike, left, at the Copenhagen Fashion Summit in 2019 with Marissa McGowan, then-senior vice president for corporate responsibility at PVH Corp. (Ole Jensen/Getty Images for Copenhagen Fashion Summit) To understand the impact of the cuts to Nike’s sustainability staff, it helps to look at the enormous task assigned to a group of 30 Nike employees in the spring of 2023. The Carbon Target Setting Working Group began gathering every other Wednesday, 90 minutes by Zoom and in person, to develop a detailed plan to drastically shrink Nike’s carbon footprint. As participants in the international Science Based Targets Initiative, Nike and 5,000 other companies pledged to match the goals of the Paris Climate Agreement. Nike promised to reduce its emissions by 30% by 2030 throughout its supply chain. With the deadline fast approaching, Nike’s climate working group debated possible investments to reach its targets, according to two people involved in the process. Should Nike buy renewable natural gas? How much should it invest in healthier agricultural practices? How much should it spend on renewable fuels for its shipping container vessels? The group calculated the tonnage of emissions that would be reduced by eliminating the paper stuffed into the toes of shoes. It outlined savings from what employees called “light-weighting” shoe boxes, a strategy to use less materials and reduce freight shipping weights. Those seemingly small changes add up when multiplied across millions of products. A composite image Nike used to promote the Nike One Box, an effort to move from two boxes to one when shipping shoes (Nike) The result was a plan so important that it would eventually require executive approval and the Nike board’s review. It was still being finalized when the staffing cuts began, the two sources said. About half of employees involved in Nike’s carbon target planning were laid off or transferred to non-sustainability jobs, according to two sources the news organizations used to identify names. The list included some members who would have been responsible for implementing the steps recommended for ratcheting down emissions. “Now you have a stool with one leg missing,” one participant said. Asked about the status of the 2030 plan and how the company would reach its goals for emissions reductions with fewer sustainability employees working on them, Pribulsky said work on the 2030 goals continues. “We’re committed to continue our journey from a greenhouse gas and a carbon reduction emissions perspective,” she said. And this actually happened at Nike, where a change in business strategy, or a change in financial objective, directly impacted the sustainability strategy, and frankly in a negative way. And so, there, it is what it is. —Noel Kinder, Nike’s former chief sustainability officer, in a June webinar The carbon work that remains is substantial. Nike’s global operation spans more than 600 contract factories concentrated in Vietnam, China and Indonesia, countries heavily dependent on coal-fired power. Nike has said its carbon footprint equates to that of Amsterdam, in the Netherlands, a city of roughly 1 million people. Nike has made progress by powering its own office buildings and distribution centers with renewable energy. But the production and shipping of sneakers and apparel by suppliers and contractors accounts for 99% of its emissions. Nike’s total carbon pollution has been declining since 2020, but it is still just 1.6% lower than when Parker challenged Nike to halve its footprint in 2016. The cuts to Nike’s sustainability staff come as multinational companies face increasing mandates to disclose their climate risks, trace the origins of their raw materials and deliver the carbon reductions they promise. Some of Nike’s smaller competitors are doing better. Germany-based Puma has approached the moonshot that Nike missed, saying it has reduced its carbon footprint by almost a third while more than doubling revenues since 2017. Still, few fashion companies are on target to achieve the reductions needed to prevent severe impacts to the planet, said Achim Berg, a former senior partner with the consulting giant McKinsey & Co. “If you have conversations with CEOs in the industry, they will admit that it’s very difficult, if not impossible, to accomplish what has been committed to years ago,” said Berg, who oversaw McKinsey’s apparel, fashion and luxury practice. “Realistically, we’re going to see a wave of companies changing the targets or postponing the timeline.” If the industry doesn’t act with more urgency, Berg said, “we can write off all the targets, because nobody’s even close. We need to recognize this.” Nike’s retreat from sustainability threatens to upend its carefully crafted image as a brand working to address climate change, not one that is making it worse. The company took a huge public relations hit in the 1990s after reports emerged about its contract factories in Asia using child labor, physically abusing workers and paying as little as 20 cents an hour. Co-founder Phil Knight ultimately admitted the company had problems, saying in 1998 that Nike’s products had become synonymous with “slave wages, forced overtime and arbitrary abuse.” The company began issuing public reports that detailed issues its auditors identified in suppliers’ factories and laid out how it would address them. It became the first in its industry to disclose its finished product suppliers. Nike employees also saw an opportunity to get ahead of negative headlines on another issue of social concern: the environment. “We were learning from the mistakes made in the reaction to the labor issues that we needed to go on the offense,” said Sarah Severn, who spent two decades working to lessen Nike’s environmental impact before leaving in 2014. “We were much more aggressive about it and conscious that if those things didn’t get addressed, it would just add more problems to the company’s reputation.” Factory workers make shoes for a Nike supplier in Indonesia in 1992. Foreign factory conditions in the 1990s created a public scandal that led the company to pledge to do better. (Tim Jewett/The Oregonian) Executives including CEO John Donahoe have described the company’s aspirations today as something like a virtuous circle, a closed loop that includes turning plastic bottles and trash into Olympics medal-podium jackets and futuristic shoes inspired by the scarcity of living on Mars. Innovating ways to waste less, make lighter shoes and use fewer materials doesn’t just save on carbon emissions. It saves money. Nike’s marketing machine has amplified the message of sustainability in pitches before the Summer Olympics, an event that sneaker companies consider an unparalleled opportunity to launch new products. Nike’s chief design officer in 2020 called it “a moment for us to telegraph our intentions as a company.” Ahead of the 2012 London Games, Nike introduced Flyknit, one of its most successful sustainable innovations, a lightweight, woven top part of a sneaker that reduced waste and became a $1 billion business within four years. Before the 2016 Rio Games, Nike highlighted AeroSwift, a lightweight fabric made from recycled plastic bottles. In 2020, it was the Space Hippie, a shoe made from recycled factory scraps. Vogue magazine said Nike’s new shoe was its “most sustainable yet.” Harper’s Bazaar called it “game-changing.” Donahoe highlighted the new shoe during one of his earliest media appearances as CEO. Speaking on CNBC in February 2020, Donahoe praised Nike’s innovation in sustainability and said the company was making significant investments in it. “The consumer increasingly cares about sustainability, and so they’re looking to companies like Nike to lead on this dimension,” Donahoe said. That night, Donahoe sat next to the rapper Drake and other luminaries at a colorful New York Fashion Week runway show highlighting Nike’s environmental priorities around the Olympics. Nike CEO John Donahoe, second from right, with, from left: fashion editor Edward Enninful; late fashion designer Virgil Abloh; pop star Rosalía; rapper Drake; and gymnast Gabby Douglas. They gathered for the 2020 Tokyo Olympic collection fashion show at New York Fashion Week in 2020. (Bennett Raglin/Getty Images) Looking back on how good Nike’s sustainability work has been for its business, the recent staff cuts make little sense, said Tensie Whelan, director of the NYU Stern Center for Sustainable Business. “It’s just bizarre to me that Nike would want to step back, having been the leader,” Whelan said. “If they’re moving away from sustainability driving innovation, that is the Nike brand. What does it become then?” This April, when Nike revealed its new outfits for athletes in the 2024 Summer Games in Paris, Donahoe returned to CNBC. The CEO didn’t talk about the Space Hippie, the shoe that won critical acclaim. Just two Space Hippie models remained available on Nike’s website recently. Both were being advertised at a big discount. Donahoe talked about what Nike needed to do differently. Just four months after his company killed its Sustainable Innovation team, Donahoe repeatedly said “disruptive innovation” would drive growth. He didn’t use the word sustainability once. Alex Mierjeski contributed research. Matthew Kish is a reporter covering the sportswear industry for The Oregonian/OregonLive. Contact him at mkish@oregonian.com or @matthewkish.
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by Pamela Colloff, photography by Stacy Kranitz ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. This article is a partnership between ProPublica, where Pamela Colloff is a senior reporter, and The New York Times Magazine, where she is a staff writer. This story is exempt from our Creative Commons license until Oct. 9. Sunny Eaton never imagined herself working at the district attorney’s office. A former public defender, she once represented Nashville, Tennessee’s least powerful people, and she liked being the only person in a room willing to stand by someone when no one else would. She spent a decade building her own private practice, but in 2020, she took an unusual job as the director of the conviction-review unit in the Nashville DA’s office. Her assignment was to investigate past cases her office had prosecuted and identify convictions for which there was new evidence of innocence. Never miss the most important reporting from ProPublica’s newsroom. Subscribe to the Big Story newsletter. The enormousness of the task struck her on her first day on the job, when she stood in the unit’s storage room and took in the view: Three-ring binders, each holding a case flagged for evaluation, stretched from floor to ceiling. The sheer number of cases reflected how much the world had changed over the previous 30 years. DNA analysis and scientific research had exposed the deficiencies of evidence that had, for decades, helped prosecutors win convictions. Many forensic disciplines — from hair and fiber comparison to the analysis of blood spatter, bite marks, burn patterns, shoe and tire impressions and handwriting — were revealed to lack a strong scientific foundation, with some amounting to quackery. Eyewitness identification turned out to be unreliable. Confessions could be elicited from innocent people. Puzzling out which cases to pursue was not easy, but Eaton did her best work when she treaded into uncertain territory. Early in her career, as she learned her way around the courthouse, she felt, she says, like “an outsider in every way — a queer Puerto Rican woman with no name and no connections.” That outsider sensibility never completely left her, and it served her well at the DA’s office, where she was armed with a mandate that required her to be independent of any institutional loyalties. She saw her job as a chance to change the system from within. Beneath the water-stained ceiling of her new office, she hung a framed Toni Morrison quote on the wall: “The function of freedom is to free someone else.” Sunny Eaton, director of the conviction review unit in the Nashville district attorney’s office If Eaton concluded that a conviction was no longer supported by the evidence, she was expected to go back to court and try to undo that conviction. The advent of DNA analysis, and the revelations that followed, did not automatically free people who were convicted on debunked evidence or discredited forensics. Many remain locked up, stuck in a system that gives them limited grounds for appeal. In the absence of any broad, national effort to rectify these convictions, the work of unwinding them has fallen to a patchwork of law-school clinics, innocence projects and, increasingly, conviction-review units in reform-minded offices like Nashville’s. Working with only one other full-time attorney, Anna Hamilton, Eaton proceeded at a ferocious pace, recruiting law students and cajoling a rotating cast of colleagues to help her. By early 2023, her team had persuaded local judges to overturn five murder convictions. Still, each case they took on was a gamble; a full reinvestigation of a single innocence claim could span years, with no guarantee of clarity at the end — or any certainty, even if she found exculpatory evidence, that she could spur the courts to act. One afternoon, as she weighed the risks of delving into a case she had spent months poring over, State of Tennessee v. Russell Lee Maze, she reached for a document that Hamilton wanted her to read: a copy of the journal that the defendant’s wife, Kaye Maze, wrote about the events at the heart of the case. The journal began a quarter-century earlier with Kaye’s unexpected but much wanted pregnancy in the fall of 1998. Then 34 and the manager of the jewelry department at a local Walmart, Kaye had been unable to conceive in a previous marriage, and she was elated to be pregnant. Her husband, who shared in her excitement, accompanied her to every prenatal visit. But early on, there were signs of trouble, and Kaye was told she might miscarry. “I found out at four weeks that I was pregnant,” she wrote. “I was in the hospital two days later with cramping and bleeding.” The bleeding continued intermittently throughout her pregnancy, and she suffered from intense, at times unrelenting nausea and vomiting. She was put on bed rest, and Russell cared for her while also working the overnight shift at a trucking company. For the next six months, they hoped and waited, while Kaye remained in a state of suspended animation. Eaton noted dates and details as she read. “After developing gestational diabetes, pregnancy-induced hypertension and having low amniotic fluid, it was decided to induce labor at 34 weeks,” Kaye wrote. When she gave birth to her son, Alex, on March 25, 1999, he weighed 3 pounds, 12 ounces. First image: Kaye Maze and Alex in the NICU in 1999. Second image: The Mazes on their wedding day. Third image: Russell Maze visits Alex in the NICU. (Courtesy of Kaye Maze) Alex spent the first 13 days of his life in the neonatal intensive care unit. Kaye and Russell roomed with him before he was discharged, taking classes on preemie care and infant CPR. Because he had been diagnosed with supraventricular tachycardia, or an unusually rapid heart rhythm, they were provided a heart monitor and taught to count his heart rate. The Mazes were attentive parents, Eaton could see. In the three weeks that followed his release from the hospital, they took him to doctors and medical facilities seven different times. When they took him to an after-hours clinic on April 18 to report that he was grunting and seemed to be struggling to breathe, a physician dismissed their concerns. “We were told that as long as we were able to console Alex, there was nothing wrong with him, except he was spoiled,” Kaye wrote. The doctor advised them, she continued, “that we, as new and anxious parents, needed to learn what was normal.” It was the admonition — that they were too vigilant — that discouraged them from seeking medical attention when a bruise emerged on their son’s left temple and then his right temple. Another bruise appeared on his stomach. Russell worried that the tummy massage he had given his son to relieve a bout of painful constipation was to blame. “We are concerned,” Kaye wrote, “but trying not to jump at shadows.” On May 3, Kaye left their apartment to buy formula. Half an hour later, Russell placed a frantic phone call to 911 to report that Alex had stopped breathing. He performed CPR until paramedics arrived. The baby was rushed to the hospital, where doctors discovered he had a subdural hematoma and retinal hemorrhaging; blood had collected under the membrane that encased his brain and behind his eyes. Preliminary medical tests turned up no obvious signs of infection or illness. With bruising visible on both his forehead and his abdomen, suspicion quickly fell on the Mazes. “We were told Alex had injuries that you only see with shaken baby syndrome,” Kaye wrote. A doctor who was called in to examine the 5-week-old for signs of abuse “told me she thought Russell hurt Alex.” Kaye Maze Eaton read the journal knowing that in the years since the infant was taken to the emergency room, shaken baby syndrome has come under increasing scrutiny. A growing body of research has demonstrated that the triad of symptoms doctors traditionally used to diagnose the syndrome — brain swelling and bleeding around the brain and behind the eyes — are not necessarily produced by shaking; a range of natural and accidental causes can generate the same symptoms. Nevertheless, shaken baby syndrome and its presumption of abuse have served, and continue to serve, as the rationale for separating children from their parents and for sending mothers, fathers and caretakers to prison. It’s impossible to quantify the total number of Americans convicted on the basis of the diagnosis — only the slim fraction of cases that meet the legal bar to appeal and lead to a published appellate decision. Still, an analysis of these rulings from 2008 to 2018 found 1,431 such criminal convictions. When Alex was discharged from the hospital three weeks later, he had been removed from his parents’ custody and placed in special-needs foster care. The DA’s office charged Russell with aggravated child abuse. He was jailed that June and found guilty by a jury the following February. Alex’s health continued to deteriorate, and on Oct. 25, 2000, over the Mazes’ emphatic objections, he was taken off life support. When Russell’s conviction was later vacated on a technicality, prosecutors charged him again, this time with murder. He was found guilty in 2004 and sentenced to life in prison. By the time Eaton examined the case, he had been behind bars for nearly a quarter-century. She turned to the journal’s final entry. “My beautiful baby took 20 minutes to leave us,” Kaye wrote about the day of Alex’s death, when she was permitted to cradle him in the presence of his foster parents. “I held him in my arms, rocked him and sang him into Heaven. This is the most horrific thing for any mother to have to endure. The agony that my husband felt at not being allowed to be there is an agony no father should have to endure. What the state of Tennessee has taken from us can never be replaced or forgiven.” First image: Alex was 19 months old when he was taken off life support. He was buried in the fall of 2000. Second image: Alex’s gravestone inscribed with “Daddy’s little man” and “Mommy’s little angel.” Third image: Russell Maze in 2005, a year after he was convicted of murder. (First and third images courtesy of Kaye Maze) Eaton understood that if she decided to take on the Maze case and concluded that Russell did not abuse his son, she was still looking at long odds. She would have to go before the original trial judge — a defendant with an innocence claim typically starts with the court where the case was first heard — to argue that the police, prosecutors and jurors got it wrong. That judge, Steve Dozier, was a no-nonsense former prosecutor and the son of a veteran police officer, who might be disinclined to disturb the jury’s verdict. But it was still early in Eaton’s investigation, and she did not know what she would find — only that she needed to first understand what persuaded jurors of Russell’s guilt. That evidence included testimony from the diagnosing doctor, Suzanne Starling, who told jurors that the bleeding around Alex’s brain and eyes indicated that he endured a ferocious act of violence by shaking. “You would be appalled at what this looked like,” she testified at Russell’s first trial. So forceful was the shaking, she added, that “children who fall from three or four floors onto concrete will get a similar brain injury.” Eaton also needed to make sense of a set of X-rays suggesting that Alex’s left clavicle had been fractured and a recording of an interrogation that prosecutors characterized as an admission of guilt. When Eaton listened to the scratchy audio of Russell’s interrogation, she could hear the insistent voice of a police detective, Ron Carter, posing a series of increasingly combative questions. The investigator’s confrontational style had been considered good police work, Eaton recognized, but she observed that Carter would not take no for an answer when Russell denied hurting his child. Carter was mirroring what Starling told investigators; informed that the baby had been shaken, Carter predicated his questions on that seemingly incontrovertible fact. “You had to have shaken the child,” he told Russell. “That’s the only way it could’ve happened.” The detective repeated this idea more than a dozen times. Russell was already in a state of distress; he had just withstood four previous rounds of questioning at the hospital — from the treating physicians, Starling, another detective and a child welfare investigator — and he did not know if his son was going to live or die. As Eaton studied the interview, she could see that Russell consistently denied harming his son. But he never asked for an attorney, and in unguarded comments, he sought to help the detective fill in the blanks of a situation that he himself did not seem to understand. He agreed that it was “possible” that while picking up Alex or putting Alex in a car seat, he had accidentally jostled the baby. “But as far as physically shaking him to the point of causing injury, no,” he said. Carter warned him that he was getting “deeper and deeper and deeper in trouble” and that his baby boy was “lying up there, and it’s for something that you caused.” The detective continued to insist that Russell was not telling the truth and that only he or Kaye could be to blame because they were Alex’s sole caretakers. Worn down, Russell finally hypothesized that he might have jostled, or even shaken, his son to try to revive him after finding him unresponsive. “I guess I could,” Russell said, sounding bewildered. “It’s possible.” To Eaton’s ears, this did not amount to a confession. As she understood it, Russell was pressured to either accept blame or point the finger at his wife. He had remained steadfast that he did nothing to cause Alex to become unresponsive but found the baby that way. The case did not look like the abuse cases she saw as a public defender; rather than hiding their son away, the Mazes put him in front of doctors again and again. But Eaton knew that once investigators and then prosecutors settle on the theory of a case, the state’s narrative calcifies, and DAs will go to great lengths to defend it. DA’s offices often reflexively reject innocence claims and even block defendants’ efforts to have the courts consider potentially exonerating evidence. Their faith in the underlying police work, and their certainty about a defendant’s guilt, can make prosecutors resist acknowledging a mistake. So, too, can the political pressure to protect the office’s record and to appear tough on crime. “It’s ingrained in some prosecutors to fight for the sake of fighting,” says Jason Gichner, the Tennessee Innocence Project’s deputy director, who now represents Russell Maze. Jason Gichner, deputy director of the Tennessee Innocence Project When Nashville created a conviction-review unit to try to disrupt this prosecutorial mindset, it was following the earlier lead of another reform-minded DA’s office. In 2007, Dallas’ newly elected district attorney, Craig Watkins, established what he called the conviction-integrity unit. The office he inherited had a long and ugly history of tipping the scales of justice against Black citizens, and Watkins wanted to harness the power of an innovative technology, DNA analysis, to see if he could undo some of the harms of that legacy. The unit reviewed hundreds of convictions in which defendants’ requests for testing had been denied. “When a plane crashes, we investigate,” Watkins told the Senate Judiciary Committee in 2012 when he testified about wrongful convictions. “We do not pretend that it did not happen; we do not falsely promise that it will not happen again; but we learn from it, and we make necessary adjustments so it won’t happen again.” By the time he left office in 2015, his conviction-integrity unit had exonerated 24 people, nearly all of them Black men. Since then the office has secured nine more exonerations. Watkins’ vision for changing the system from inside inspired prosecutors in cities across the country to form their own conviction-review units. But because unraveling complex, long-ago criminal cases is labor-intensive, conviction-review units are unheard-of in the smaller, resource-strapped DA’s offices that dot rural America. Of some 2,300 prosecutors’ offices nationwide, just around 100 have them. In jurisdictions that have the funding and the political will for them — and where they are staffed not with career prosecutors but with attorneys who have defense experience — they can be powerful tools. According to data collected by the National Registry of Exonerations, these units have helped clear more than 750 people. Last year, they played a role in nearly 40% of the nation’s exonerations. In the years that followed Russell’s murder conviction, doctors who challenged the notion that shaken baby syndrome’s symptoms were always evidence of abuse faced resistance from prosecutors. Brian Holmgren, who led the Nashville DA office’s child-abuse unit until 2015, and who tried the Maze case, built a national profile as one of the most strident critics. While a prosecutor, he served on the international advisory board for the National Center on Shaken Baby Syndrome, a nonprofit advocacy group, and he lectured around the country about how to conduct shaken baby prosecutions. He also was a co-author of two 2013 law-review articles, which lambasted doctors who testified for the defense in such cases as unethical and mercenary, suggesting that they were willing to offer unscientific testimony for the right price. Holmgren made no secret of his disdain for these doctors when he delivered a keynote presentation at a National Center on Shaken Baby Syndrome conference in Atlanta in 2010. Standing before an image of Pinocchio, he read from the testimony of physicians who had refuted shaken baby diagnoses, the puppet’s nose growing longer with each quote. He concluded his talk by inviting a guitar-playing pediatrician to lead the audience in a sing-along to the tune of “If I Only Had a Brain” from “The Wizard of Oz”: I will say there is no basis for the claims in shaking cases, My opinion’s in demand. Though my theories are outrageous, I’ll work hard to earn my wages If I only get 10 grand. Holmgren’s impassioned advocacy on behalf of child victims made him a polarizing figure in Nashville. In 2015, The Tennessean ran a front-page article revealing that he told a public defender he would not offer a plea deal in a child-neglect case unless her client, who was mentally ill (she had stabbed herself in the stomach during one pregnancy), agreed to be sterilized. His dismissal soon after was part of a sea change at the DA’s office that began in 2014, when voters elected Glenn Funk, a longtime defense lawyer, to be the city’s top prosecutor. As a sign of his commitment to reform, Funk created the conviction-review unit in late 2016, when CRUs were virtually nonexistent in the South. But for the first three years, it was by all measures a failure. Hamstrung by its own bureaucratic rules — a panel of seven prosecutors had to agree before any formal investigation could occur — the unit had yet to reopen a case. In 2020, Funk persuaded Eaton to come run the unit with assurances that she would not have to contend with the panel of prosecutors and that she would answer only to him. Eaton needed qualified medical experts to evaluate the evidence in the Maze case, but she thought the public vilification of doctors might still give pause to one she wanted to talk to: Dr. Michael Laposata, who previously served as chief pathologist at Vanderbilt University Hospital in Nashville. Laposata had spent much of his career recommending that physicians rigorously search for underlying diseases when evaluating children who are bruised or bleeding internally, rather than leaping to a determination of abuse. His body of work has shown that the symptoms of certain blood disorders can mimic — and be almost indistinguishable from — those of trauma. In 2005, he and a co-author wrote a seminal paper for The American Journal of Clinical Pathology, which acknowledged at the outset that child abuse too often goes undetected. But the fear among clinicians that they might inadvertently overlook a child’s suffering “has produced a high zeal for identifying cases of child abuse,” and that zeal, the paper argued, combined with a lack of expertise in blood disorders, had led to catastrophic mistakes. “It is very easy for a health care worker to presume that bruising and bleeding is associated with trauma because the coagulopathies” — disorders of blood coagulation — “that may explain the findings are often poorly understood.” Such a misinterpretation, the paper cautioned, could result in the false conclusion that a child had been abused. Now the chief of pathology at the University of Texas Medical Branch at Galveston, Laposata was initially guarded when the conviction-review unit asked if he would assess the Maze case, explaining that he was already overcommitted. He agreed to look at Alex’s lab reports and Kaye’s prenatal and birth records, but he made no promises that he could do more. His hesitance fell away after he reviewed the material. One fact leapt out at him immediately: Alex’s blood work was not normal. The infant’s hematocrit, or concentration of red blood cells, was not only extremely low; the size and shape of those cells were also atypical. This suggested a problem with red blood cell production that would have taken time to evolve, making it inconsistent with acute trauma. He put this into simpler language when he spoke with Eaton and her team, and she wrote down and underlined his words: “Abnormal red blood cells are not created from child abuse.” These abnormalities raised the suspicion of an undiagnosed blood disorder. Recent reexamination of Alex’s medical records suggests the child had an undiagnosed blood disorder that could explain symptoms that were originally attributed to shaken baby syndrome. (Courtesy of Kaye Maze) The pathologist also zeroed in on Kaye’s prenatal history. In addition to the health issues she enumerated in her journal, Laposata noticed a positive result for an antinuclear antibody test, commonly associated with an autoimmune disorder. Pregnant women with such disorders often develop antibodies and can pass them to the fetus, he explained. Those antibodies can remain in their infants’ systems for months and may lead to the formation of blood clots. He could see that the treating physicians did not conduct all the necessary tests to determine if Alex carried antibodies that would have predisposed him to clotting abnormalities. “It is surprising that these tests were never performed on the child given the extreme circumstances and the clinical implications of having a clot in the brain,” Laposata later wrote. The likelihood that Alex suffered from an undiagnosed health condition raised serious questions about the prosecution’s case, and from that point on, Eaton did not look back; this was the conviction on which her team would focus. That there was a plausible medical explanation for Alex’s bruises also had profound implications for Kaye. Prosecutors had pointed to them as evidence that Kaye should have known her husband was abusing their son, and for failing to protect him, they charged her in June 1999 with aggravated assault. After she was told that having an open criminal case would make it harder to regain custody, Kaye took an Alford plea to a reduced felony charge — a plea that allows defendants to accept punishment while maintaining their innocence. She received a two-year suspended sentence and never regained her parental rights. Eaton often thought about Kaye as she sifted through the case file. If Kaye had been willing to testify against her husband, she might have won back custody of her son, and in return for her cooperation, her criminal charge could have been reduced or dropped. Yet she always stood by Russell. She was unequivocal when she testified at his murder trial, insisting that he was not capable of hurting their child. She moved to rural East Tennessee after he was incarcerated there, so she could visit him as often as possible. She never abandoned their marriage. Eaton knew that such loyalty was rare; long prison sentences often lead to divorce, and the more time a person remains locked up, the more likely the marriage is to fall apart. Kaye’s resolute belief in her husband was not the kind of hard evidence Eaton was seeking, but she filed it away, another data point to consider. The Mazes during a visit at the Turney Center Industrial Complex around 2019. They have remained married. (Courtesy of Kaye Maze) Eaton had noticed a detail in the trial transcripts that she found telling: A police officer named Robert Anderson testified that when he arrived at the apartment as paramedics worked to revive Alex, he saw Russell looking on, impassive. He was acting “rather calmly, just kind of watching,” Anderson told the jury. “He didn’t appear upset, no, not from the outside.” The inference was that Russell was callous, even cold-blooded. Eaton, having followed the emerging research on trauma, saw something different in his emotionlessness. The encounter with police came just after Russell struggled to resuscitate his son, who had turned blue and gone into cardiac arrest. She was struck by how little the investigators who first interacted with the Mazes understood acute stress and how much that lack of knowledge shaped the investigation that followed. Eaton had educated herself about the effects of trauma because it had altered not only the lives of her defense clients but also her own. She arrived in Nashville during a tumultuous adolescence, after running away from home in Clarksville, Tennessee, at the age of 16. “I’d experienced a significant trauma, and I didn’t know how to ask for help,” she told me. She was from a peripatetic military family that was not equipped to give her the intensive support she needed. In a Nashville phone booth, Eaton spotted a sticker that read, IF YOU ARE A TEENAGER AND YOU NEED HELP, CALL THIS NUMBER. She dialed the number and, weeping into the receiver, said she had nowhere else to turn. That phone call, Eaton believes, saved her life. It led her to an emergency shelter for teenagers, where she found counselors who were trained in crisis intervention, and after receiving daily therapy, she returned to Clarksville to finish high school. From that point forward, she knew she wanted to go into a helping profession — a journey that led her first to psychology and then to the law. She was drawn to representing defendants, whom she saw as survivors of trauma too. “No 5-year-old dreams of growing up to become a felon,” she told me. She joined the public defender’s office in 2007, and squaring off against the DA’s office day after day, she proved to be both quick on her feet and tenacious. Three years later, she started her own private practice. Funk, the district attorney, had always regarded her as one of the brightest stars in Nashville’s criminal defense bar, and as his conviction-review unit foundered, he began talking to her in 2019 about taking the helm. He knew that if he wanted to make the unit effective, he had to put someone with her singular focus and defense experience in charge. Nashville’s CRU was not the only one to fall short of expectations; many conviction-review units have not produced an exoneration. Some are simply overburdened and underfunded, while others have met resistance from local judges. But underperforming conviction-review units have also given rise to suspicion, among defense attorneys, that there is a more cynical calculus at work; they see DAs who want to signal their commitment to justice reform without actually doing the hard work of challenging fellow prosecutors and local police officers. Eaton meets with District Attorney Glenn Funk and Anna Hamilton, an assistant district attorney, about an upcoming hearing in Russell Maze’s case. “The C.R.U., as presently constituted, is a complete and utter sham,” the defense lawyer Daniel Horwitz wrote in 2018, when the Nashville DA’s office declined to act on new information that his client, convicted of murder, was the wrong man. In Funk’s willingness to try to do better, Eaton saw an opportunity to give defendants with credible innocence claims a fair hearing, while using the resources of the state to investigate. The first case she took on, in the summer of 2020, was Horwitz’s client, Joseph Webster. Tennessee law does not give prosecutors any clear mechanism to get back into court if they uncover a potential wrongful conviction. Eaton coordinated with Horwitz, who had already obtained DNA testing of the murder weapon and tracked down eyewitnesses to the killing whom the police had ignored. After conducting her own independent investigation, which built on two years of work by her predecessor, she went to court to jointly argue with the defense that Webster should walk free. His conviction was vacated, and he was released, having served nearly 15 years of a life sentence. This became the template for how Eaton worked. Conducting her own parallel investigations alongside the Tennessee Innocence Project, she probed more troubled cases. Of the five convictions she helped undo, three relied on forensic findings that are now seen as flawed. One of those defendants, Claude Garrett, had already spent nearly 28 years in prison when Eaton began looking at his case in 2020. He survived a 1992 house fire only to be charged with murder after fire investigators determined that the blaze, which claimed the life of his fiancée, was intentionally set. He was locked up when his daughter was 5 years old. In the intervening years, many once-accepted tenets of arson science were debunked. The “pour patterns,” or burn marks, that arson investigators saw as proof that someone poured an accelerant around the house had come to be understood as a natural byproduct of fast-burning fires. Several nationally recognized fire experts who reviewed the case testified that there was no evidence the fire was intentionally set. “When stripped of demonstrably unreliable testimony, faulty investigative methods and baseless speculation,” Eaton wrote to the court, “the case against Garrett is nonexistent.” Garrett’s conviction was vacated, and he was released in May 2022 at the age of 65. He died suddenly, five months later, of heart failure. “When we have advancements in science, why don’t we look at every single case in which that science convicted someone and see whether the evidence still stands up?” his daughter, Deana Watson, says. “People are going to die in prison who don’t belong there — human beings who literally have no reason to be there, who are stuck there based on what we thought was true 30 years ago.” Deana Watson’s father, Claude Garrett, served nearly 30 years for murder before being exonerated. He died months after his release at age 65. (Photos of Watson and Garrett courtesy of Watson) Claude Garrett’s death would always hang over Eaton — a nagging reminder, as she worked on the Maze case, that there was no time to spare. She and Hamilton, who was a former federal defender, threw themselves into their reinvestigation. The lawyers learned about blood disorders and genetic diseases, poring over medical journals and buttonholing doctors. They spoke to experts about police interrogation techniques and the effects of emotional trauma on suspects. They visited the Mazes’ former apartment complex to visualize the sequence of events. They conferred with lawyers at the Tennessee Innocence Project, who were talking to other medical experts around the country. Still, the question remained: What had happened to Alex? Eaton wanted to stay focused on the specifics of Alex’s case and not get lost in the controversy over shaken baby syndrome. While there is no disagreement that the violent shaking of an infant causes harm, there is fierce dissent over whether the symptoms associated with the diagnosis can be taken as proof that abuse has occurred. (“Few pediatric diagnoses have engendered as much debate,” the American Academy of Pediatrics acknowledged in a 2020 policy statement.) This has left both doctors and the courts divided. Over the past four years, according to the National Registry of Exonerations, nine people whose convictions rested on the diagnosis — five parents and four caregivers — have been exonerated. Last year, a New Jersey appellate court backed a lower-court judge who pronounced the diagnosis “akin to junk science.” But appellate judges in recent years have also upheld shaken baby convictions, including that of a man on death row in Texas, Robert Roberson, whose execution date is set for October. Eaton reached out to experts in the fields of pathology, radiology, neonatology, genetics and ophthalmology, and over the spring and summer and then fall of 2023, physicians who looked at the medical records independently of one another came to the same conclusion: Alex’s symptoms were not consistent with abuse. They observed that the bleeding in his brain and around his eyes continued to progress during his hospitalization. Such ongoing hemorrhaging “suggests a mechanism other than abusive trauma,” explained Dr. Franco Recchia, an ophthalmology specialist. So, too, did the increased bleeding around Alex’s brain. The doctors were in agreement: This progression of symptoms pointed to an undiagnosed, underlying condition — like a metabolic disease or blood disorder — which most likely resulted in a stroke. After reviewing the autopsy slides and other medical records, Dr. Darinka Mileusnic-Polchan, the chief medical examiner in Knox and Anderson counties, determined that Alex “had a systemic disorder that was never properly worked up due to the early fixation on the alleged nonaccidental head trauma.” The doctors noted the absence of obvious evidence of violence; Alex had no neck injuries, broken ribs, limb fractures or skull trauma. They also zeroed in on what Eaton and Hamilton found noteworthy in Alex’s hospital records: Starling rendered her diagnosis within hours of Alex’s arrival at the ER, before receiving all the results of blood work and other testing. And she did not consult his pediatrician’s records, which documented a sudden increase in his head circumference weeks before he arrived at the emergency room. (Starling did not respond to requests for comment.) But it was the analysis of one last piece of evidence, a set of X-rays known as a skeletal survey, that helped Eaton understand something that she had been trying to make sense of, but that had remained stubbornly perplexing: the clavicle fracture. A close examination of the medical records showed that chest X-rays, performed when Alex was first admitted to the emergency room, did not detect any breaks. Only after he was diagnosed with shaken baby syndrome was a fracture identified on the skeletal survey, on his second day in the hospital. Interpreting radiological images like a skeletal survey can be subjective, and when evaluating a curved bone like the clavicle, radiologists may disagree about whether a tiny abnormality is a fracture or not. When Dr. Julie Mack, a Harvard-trained radiologist, reviewed the images last fall for the Tennessee Innocence Project, she said she saw no evidence of a bone break. She left open the possibility that a slender hairline fracture was present, which she could not detect in her copy of the original images. But, she explained, “He underwent CPR, which, if a clavicle fracture was present, is a sufficient explanation for such a fracture.” Mack’s review of the records, which included several CT scans and an MRI of Alex’s brain, led her to conclude that the infant had suffered not from abuse but rather from “an ongoing, abnormal, natural disease process.” In coordination with the conviction-review unit, Russell’s attorneys filed a motion in state court in December, seeking to reopen State of Tennessee v. Russell Lee Maze. “Physicians who suspect abusive head trauma can no longer stop their analysis with the identification of the shaken baby syndrome triad,” it read. “Instead, they must seriously consider all other etiologies that may plausibly explain the constellation of symptoms and eliminate them as causes.” Horwitz — the attorney who once called the CRU a sham — and one of his law partners, Melissa Dix, also filed a motion on behalf of Kaye, petitioning the court to vacate her felony conviction. The decision about whether to reopen the case was in the hands of the judge, Dozier; he had been on the bench since 1997, having won reelection or run unopposed in every election since his appointment. Judge Steve Dozier in his chambers Eaton walked over to the courthouse that day with Hamilton to file the unit’s 71-page report, which detailed their investigation. Eaton and her team wrote a report each time they went before a judge to ask that a conviction be overturned. It was imperative, she believed, to establish trust with judges before asking them to take the weighty, and sometimes politically perilous, step of tossing out a jury’s verdict, and to signal that they had the full backing of the DA’s office. “While it was reasonable for the treating doctors to consider abuse,” the report read, “every other medical possibility was either overlooked or completely ignored. Law-enforcement officers blindly followed the course set out by Dr. Starling and failed to consider any other explanation for Alex’s condition. After an investigation comprised of a hasty medical determination, an interrogation of traumatized parents and little else, the case was considered closed.” The lawyers recommended that the court vacate Russell’s and Kaye’s convictions. “The tragedies in this case cannot be overstated,” they concluded. “What every single expert the C.R.U. consulted with agrees upon is that Alex Maze did not die from abuse.” Shortly after they filed their report, Dozier agreed to set a hearing so that he could evaluate the findings from the state’s and defense’s expert witnesses. When Russell was led in handcuffs into the courtroom on a drizzly morning this past March, he bore little resemblance to the ruddy-cheeked new father paramedics found in 1999, struggling to revive his infant son. At 58, his careworn face was framed by thick, prison-issued glasses. He walked with a cane, which he had to maneuver with both hands manacled together, and as he took his seat at the defense table, he winced. Beside him sat Kaye, her expression guarded, her shoulder-length hair shot through with gray. The husband and wife, who last lived together when Bill Clinton was president, were instructed not to have physical contact. Wordlessly, they gazed out at the courtroom and waited for the hearing to begin. Kaye and Russell Maze sit together in silence at the start of a two-day hearing in which medical experts rebut the original diagnosis of shaken baby syndrome. Eaton had not slept well. She knew that the experts who were slated to testify would be good witnesses, but she worried that their testimony would not be enough to satisfy Dozier. It was Dozier who signed off on Kaye’s plea deal and Dozier who presided over not only Russell’s trials but also his appeals and postconviction proceedings. It was Dozier who sentenced Russell to life in prison. She studied him as he sat on the dais before them, quietly conferring with his clerk, and tried to read his mood. Eaton appeared before him when she was a public defender, and she was well aware of how tough he could be. But some of her biggest victories came in his courtroom, including the Joseph Webster case, her first exoneration. That case had included the persuasive power of DNA evidence, something she was painfully aware, at that moment, that the Maze case lacked. The state’s opening statement would be delivered by Funk. District attorneys seldom appear in court to throw their weight behind their prosecutors, but both Funk and Eaton thought it would send the right message to Dozier. Funk struck a note of deference as he underscored his support of the CRU’s findings, playing not to the local TV news cameras in the courtroom but to an audience of one. “Every single medical expert, using current science, confirms that Russell and Kaye Maze are actually innocent of the crimes for which they were convicted,” he told the judge. “It is my duty as district attorney to ask the court to vacate these convictions.” But Dozier appeared unreceptive from the start. When Russell’s lead attorney, Jason Gichner, gave his opening statement outlining the defense experts’ findings, Dozier grew impatient, interjecting, “Do they factor in that there’s a history of a statement that the child was jostled?” When it was time for the physicians to testify, he remained obstinate. He grilled them about granular aspects of their testimony, repeatedly breaking in to interrogate them and questioning whether their opinions were grounded in any kind of new scientific thinking. He wondered aloud if different experts, evaluating the same evidence, might reach a completely different conclusion. Even when he said nothing, he radiated disapproval; he arched his eyebrows, pursed his lips and shot exasperated glares at whoever was sitting in the witness box. He grew more skeptical as the hearing went on, accusing Russell’s attorneys of only presenting experts who had been “picked and chosen” to best suit the defense’s narrative. Neuroradiologist Dr. Lawrence Hutchins was one of seven experts who testified at the Maze hearing. During breaks, the lawyers conferred with one another, unsure how to interpret the judge’s intransigence. Dozier was always prickly, and in the absence of an adversarial party, he seemed to have decided to take on the role of adversary himself. Perhaps the judge was just putting them through their paces, pushing back on them to elicit answers that would only strengthen their arguments. Or maybe, Eaton feared, they had lost him. For months, her team worried that Dozier would balk at the fact that their experts had not coalesced around a single diagnosis that could explain all of Alex’s symptoms, and yet without new blood and tissue samples to test, it was all but impossible to agree upon a definitive cause of death. When she called Dr. Carla Sandler-Wilson, a neonatologist, to the stand on the second day of the hearing, she had the doctor inform the court that newborn screening tests — which can identify genetic, blood and metabolic abnormalities — were so limited at the time of Alex’s birth that he was screened for just four disorders. “There are over 50 tests on the Tennessee State Newborn Screen now,” Sandler-Wilson explained. The Mazes remained composed throughout hours of graphic testimony about the condition of their son’s body and the details of his autopsy. All told, seven experts from around the country took the stand to attest to the fact that Alex’s symptoms resulted from natural causes, not trauma. In the weeks leading up to the hearing, Eaton had written and rewritten her closing argument. She paced her house for hours, practicing until she could recite it from memory. She rehearsed it in the shower, and in her car, and in the quiet of her home office. She delivered it for friends and colleagues so she could gauge whether the most important lines were resonating, and she recited it to her therapist. Her closing argument was a very different narrative from the one prosecutors presented at trial. “If Alex Maze could speak to us,” the argument she had prepared began, “he would tell us his parents loved him, cared for him and, to his last breath, did not give up on him.” As Eaton watched Gichner deliver his closing argument, which Dozier cut into with rapid-fire questions, she realized that she needed to change course. An emotional plea was not going to win the judge over. She set aside the speech she knew by heart. She would have to improvise. Eaton on the first day of the Maze hearing When her turn came to speak, Eaton rose and walked across the courtroom to face the judge. Gripping the lectern, her face rigid with concentration, she tried to find the right words. “Our office receives hundreds of applications for review per year,” she began. “Out of those hundreds, we take on less than 5%. And of that 5%, sometimes we have to ask experts to review the information in the case.” She continued: “We’ve had experts look at cases and tell us, ‘No, you got this right — this was trauma, this was abuse.’ And we turn down those cases. But sometimes, your honor, a case is different.” She spoke quickly, as if by racing forward, she could prevent the judge from interrupting her. “Over the last two years, this unit has analyzed every detail of this case,” she said. “We’ve read every record. Every line of testimony. We’ve consulted expert after expert. And we did not just rely on the petitioner’s experts. We got baby Alex his own independent experts, including the chief medical examiner for Knox and Anderson county, who more typically testifies for the state. Including a local practitioner trained at Vanderbilt, who we trust with our babies every single day. Including the former chief pathologist for Vanderbilt University. And one by one, expert after expert, told us this was not abuse —” Dozier leaned forward in his high-backed chair. He wanted to know about the doctor who had diagnosed Alex with shaken baby syndrome, Starling, and whether she had been consulted. “But she wasn’t?” he asked sharply. Eaton was startled by the question because it showed a fundamental misunderstanding of the work that the conviction-review unit did. Her duty was not to double-down on the state’s original trial theory but rather to investigate whether there was new evidence to consider, and whether that evidence was consequential enough that it should change the outcome of the case. Just as she did not ask the original prosecutors to evaluate the soundness of the conviction, so she did not ask Starling to review the accuracy of her diagnosis. Eaton had sought out physicians who did not have a record to defend. “No, she was not,” Eaton said. “But we consulted experts in every possible field that could be relevant to this case. And one by one, they told us that the science presented to this court was outdated. One by one, they told us that our understanding of things has changed. And one by one, they told us that Russell and Kaye Maze did not abuse their son, and they did not cause his death.” She looked directly at the Mazes as she spoke. Then she turned to the judge and raised her voice to signal the importance of the point she wanted to make, drawing out each word: “The state got this wrong.” When she finished, Dozier offered no reaction as he looked down from the dais. “All right,” he said flatly. “I will take this under advisement.” Court was adjourned for an indeterminate period of time — as long as it took for him to make his ruling. There was nothing more to do but wait. After court adjourned, Dozier would decide whether to grant Maze a new trial. A few days after the conclusion of the hearing, the two prosecutors who originally tried the case wrote to the court voicing their opposition to the effort to clear Russell Maze. Brian Holmgren and Katrin Miller expressed outrage that they had learned of the hearing only from local media coverage, and they pushed back against the notion that the science behind shaken baby syndrome had grown weaker in recent years. That idea had been promulgated, they asserted, by a “small cadre of medical witnesses” and shaken baby “denialists.” They went on to suggest that the push to exonerate Russell was part of a concerted, nationwide campaign to discredit the diagnosis. The hearing, they wrote, had given “denialist medical witnesses another opportunity to publicize their false scientific claims.” Dozier informed the two lawyers that they could not insert themselves into the proceeding, and he denied them the opportunity to file a brief with the court that would have formalized their opposition. He did not, however, hand down his ruling. One week passed, then two. A third week came and went without any word. As the days dragged on, Eaton had trouble focusing. Briefly, she entertained a bit of magical thinking; maybe the judge was drafting such a sweeping ruling in the Mazes’ favor that it was just taking him a little extra time. She stared at her phone, checking her messages again and again. “I’m worried,” she told me on April 23. “I’m worried for Russell. I’m worried for Kaye. I’m worried for the morale of my team and worried that if we lose this case, it will make it a million times more difficult to help anyone else.” Two days later, Eaton was working on her laptop when she spotted an email from the court. She could see that it landed in her inbox a half-hour earlier. The silence of her phone — no calls, no texts — signaled bad news. The decision leaned heavily on the findings at Russell’s preceding trials. “Substantial evidence presented at two trials is not sufficiently overridden by the new scientific evidence,” it read. Dozier did not give the witnesses’ testimony at the hearing any more weight than the original testimony of witnesses like Starling. The present-day testimony did not represent a new scientific consensus; in the judge’s estimation, it was nothing more than “new ammunition in a ‘battle of the experts.’” He went on to find fault with the hearing itself, which he criticized for lacking “the adversarial role of the prosecutor” — a weakness, in his eyes, that rendered experts’ testimony less credible. With no opposing counsel to cross-examine the witnesses, he argued, “fresh opinions were offered but not probed.” Ultimately, Dozier wrote, “The court does not find an injustice nor that the petitioner is actually innocent based on new scientific evidence.” An emotional Maze on the second day of the hearing in March Bewildered, Eaton tried to grasp what she had just read: The judge was penalizing them because everyone — the state, the defense, the witnesses — agreed that the Mazes committed no crime. As she wrestled with the implications of the ruling over the days that followed, she began to ask herself increasingly absurd questions. By the judge’s logic, should she have been performatively combative with the defense’s witnesses? Would Russell have stood a better chance if the DA’s office had fought the defense’s efforts to prove his innocence? Did the “adversarial role of the prosecutor” leave no room for the state to right a wrong — or worse, did it require prosecutors to uphold a bad conviction? Dozier’s ruling went to the heart of what a conviction-review unit is supposed to do, and it seemed to eviscerate it. Never had there been a day, since taking on the Maze case, when Eaton did not know that losing was a possibility. But the implications of Dozier’s ruling made her worry for the future — both for the chilling effect it might have on other judges at the courthouse and, more broadly, for the system as a whole. Her own office filed the original criminal charges against the Mazes, but the same office could not undo them. If the DA’s office could not fix this, who could? Russell remains one of many defendants who have been behind bars for decades based on the testimony of expert witnesses who believed in the inviolability of shaken baby syndrome. In April, Starling — who, by her own account, has testified in court more than 100 times — was a state witness at a hearing for a case in Atlanta that was similar to Russell’s. Danyel Smith, who was convicted in 2003 of the shaking death of his 2-month-old son, was asking for a new trial, asserting that the infant died from trauma sustained during childbirth. Starling, who was not involved in the original prosecution, testified that the only explanation for the baby’s symptoms was abuse. During cross-examination, Starling was asked about Tennessee v. Maze. “I’m not familiar with this case,” she told Smith’s attorney. The lawyer then produced hundreds of pages of testimony bearing her name. “That does prove that I was there,” she allowed. But the facts of the case had escaped her, she said. “If you say he was convicted, then I will take you at your word.” “He has served 25 years in prison?” the lawyer pressed. “Again, not in my personal knowledge,” she replied. Russell’s case is currently before the Tennessee Court of Criminal Appeals, which must decide whether to grant him permission to appeal the ruling. “The Tennessee Innocence Project fully believes in Russell’s innocence, and we will not stop fighting until he is released from prison,” Gichner told me. (Kaye’s appeal to vacate her felony conviction will proceed separately.) The case now faces a new challenge: Lawyers working for Attorney General Jonathan Skrmetti of Tennessee, a conservative Republican, are handling the appeal. That office is often at odds with Funk’s; in late June, it called on the appellate court to deny Russell permission to appeal. Russell is now back at Trousdale Turner Correctional Center, a notoriously rough private prison northeast of Nashville, where five men were stabbed in the course of three weeks earlier this year. Kaye has returned to her home in the mountains of East Tennessee, where she moved when Russell was incarcerated nearby, before his transfer to Trousdale. She lives alone, her brief time with her son preserved in photos that stand alongside her collection of framed family portraits. Her, beaming, with Alex in her arms; him, wearing tiny overalls, his gaze unfocused. Kaye Maze and her dog, Chloe, at home after Russell Maze was denied a new trial Eaton’s powerlessness, as an assistant DA, to rectify what she sees as a wrongful conviction felt more crushing than any failure, as a public defender, to prevent a client from facing an unjust punishment. “The weight is heavier because we did this,” she says. She wakes up in the night thinking about the Mazes — of how Kaye stepped out one afternoon to buy baby formula and returned home to find her life irrevocably broken. Of how Russell, as of this June, has endured 25 years of imprisonment. Of how the Mazes lost their son and then each other. And she agonizes over whether her decision to take on the case caused them harm. “We gave them a whole fresh set of trauma, and I’m haunted by that,” she says. “Before we got involved, I imagine Russell was trying to make peace with his situation and live the best life he could behind bars. He and Kaye had their visits together. And then we came along and disrupted all that. Teams of lawyers! Doctors! The elected DA! More than losing, what is weighing on me is that we gave them hope.” Do You Have a Tip for ProPublica? Help Us Do Journalism.
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by Phoebe Petrovic, Wisconsin Watch This article was produced for ProPublica’s Local Reporting Network in partnership with Wisconsin Watch. Sign up for Dispatches to get stories like this one as soon as they are published. Wisconsin Pastor Matthew Trewhella has an affable routine when he’s trying to persuade government officials to abolish abortion, ignore gun laws and question election results. The 63-year-old opens his talks with a photo of “Trewhella nation”: his wife of over 40 years, their 11 home-schooled children and dozens of grandchildren. He cracks jokes. He quotes history and scripture. He floats secession as a regretful possibility. With half-rim glasses and collared shirts, Trewhella looks and sounds more like a professor than a provocateur. But when addressing his congregation at an Embassy Suites in suburban Milwaukee, he sneers and shouts, deriding his enemies as wicked dogs, whores and tyrants. “When you see sodomy running rampant, when you see women in government, when you see men behaving like effeminate little squirrels, judgment is in the land,” Trewhella said during a 2020 sermon. Last year, he said homosexuality should be treated as a crime, noting that the Bible called for the death penalty for “the filth of sodomy.” For much of his public life, Trewhella has made a career of denouncing the law while railing against abortion and gun restrictions. Twenty years ago, that made him a political pariah. His reputation for blockading abortion clinics, calling for churches to form militias and defending the murder of abortion providers was so extreme that two state chapters of Right to Life, the anti-abortion group, condemned him. But today, the world has changed. He has been invited to speak by local Republican parties and other groups across the country. He gave a prayer breakfast sermon to one of the nation’s preeminent law enforcement associations. And a prolific booster of election conspiracy theories has used his work as the basis for a campaign to disrupt elections. Trewhella’s ability to tailor his message for different audiences has helped. He’s gracious to the women who introduce him at political events but tells his congregation that the idea of women in government is “sickening” and “perverse.” In the cast of characters who might influence the upcoming election, he’s not rallying crowds like Steve Bannon, the former Donald Trump strategist, or Charlie Kirk, the founder of the conservative student group Turning Point USA. Trewhella is more behind the scenes, providing a religious justification for some far-right policies and causes. With the political establishment shifting, he exemplifies how in this splintered landscape, even the most fringe figures can become influencers. When you see sodomy running rampant, when you see women in government, when you see men behaving like effeminate little squirrels, judgment is in the land. —Pastor Matthew Trewhella in a 2020 sermon Trewhella gained his newfound acceptance with a self-published 2013 book, “The Doctrine of the Lesser Magistrates,” which relies on a theory developed by 16th-century Calvinists seeking holy justification for fighting political oppression amid the religious wars of the Protestant Reformation. Trewhella has applied it to today’s political battles, writing that government officials have a divine “right and duty” to defy any laws, policies or court opinions that violate “the law of God.” To him, that means outlawing abortion and same-sex marriage, or even violently resisting the government if necessary, noting in his book that there are times when men “must redden their swords.” In recent years, Trewhella’s teachings have popped up in legislatures and local boards as the Christian right has increasingly influenced Republican politics. A Missouri state representative applied the doctrine when he proposed banning abortion in 2020, when Roe vs. Wade was still in effect. Commissioners in western North Carolina invoked it when they declared their county a “gun sanctuary” to protest state laws. Former President Trump’s first national security adviser, Michael Flynn, has praised Trewhella’s book several times, extolling it as a “masterful blueprint showing Americans how to successfully resist tyranny.” And a member of Trump’s 2020 campaign legal team, Jenna Ellis, cited Trewhella’s work as a solution to government overreach in her 2015 book advocating for a biblical interpretation of the Constitution. Trewhella’s acceptance into more mainstream circles has surprised extremism researchers who have tracked him for decades. It’s important to pay attention to a man “creating the ideological rationalizations for these ideas,” said Devin Burghart, president of the Institute for Research and Education on Human Rights, a nonprofit that tracks the far right. “I think that the public needs to know that he’s a dangerous theocrat who would fundamentally alter the United States in irreparable ways that would harm many, including women, people of color and the LGBTQ community,” Burghart said. In Wisconsin, Trewhella has forged a close relationship with the Republican Party of Waukesha County, the stronghold for state GOP power. His book is the only one the group promotes on its website. Twice in the past two-and-a-half years, the party has invited him to speak at events, including one where he addressed local candidates. A young leader in Trewhella’s church gave the opening prayer at a county GOP dinner, and the party paid that member to do political canvassing just a month after he was charged in state court for calling in a bomb scare against an LGBTQ+ event. The member is awaiting a plea hearing in August and said his lawyer advised him not to comment. I think that the public needs to know that he’s a dangerous theocrat who would fundamentally alter the United States in irreparable ways that would harm many, including women, people of color and the LGBTQ community. —Devin Burghart, president of a group that tracks the far right During a speech to the Waukesha GOP last year, Trewhella focused on how local officials were best positioned to safeguard Americans’ most cherished freedoms. “You may have to do things in the future you’re not authorized to do,” Trewhella told them. “The country is breaking apart. Counties are becoming important in the process. Counties may secede from one state and join an adjoining state as things break apart. Several adjoining counties may end up leaving a state and forming their own state. Remember, this happened during the Civil War.” The Waukesha GOP chair declined to comment through executive director Kathy Pape, who wrote in response to repeated interview requests, “We are done with this.” Approached near a suburban strip mall at one of his regular anti-abortion street protests in May, Trewhella smiled when asked by a reporter about his reputational rehabilitation. Dozens of his followers spread out at an intersection beneath a punishing sun, handing out pamphlets and displaying 5-foot signs of aborted fetuses. Trewhella, center, distributes signs for an anti-abortion street demonstration in Wisconsin in April. (Sara Stathas, special to ProPublica) “Most people will always only care about three things in life: me, myself and I,” he said. “It’s only because of their mundane, self-absorbed lives that they would think someone like me is an extremist. That’s my answer.” He chuckled and returned to his flock. Trewhella’s Transformation Trewhella tells his own life story in biblical terms: a fallen man finds redemption. Trewhella said he wrote it all down in a 23-page conversion testimony after his 5-year-old son asked him, “Dad, when are you going to write a book where you can tell us how you went from being a bad guy to a good guy?” Growing up in a Catholic family, Trewhella wrote, he was forced to attend “nearly unbearable” Sunday Masses. He described his mother as a “classic merciful mom” and his father as “short on words and quick on corporal punishment.” When Trewhella was 11, his parents divorced, which he called an “ugly thing” that “removes all innocence.” As a bad guy, Trewhella wrote, he joined a Detroit gang and “dealt drugs, stole cars, firebombed houses, robbed businesses, burglarized homes, fought other gangs, and fenced stolen items to the Mafia.” Then, he said, he landed in an evangelical rehab program at 17 and had an epiphany during church. “Understand, I had told the shrink at the psyche ward just three days earlier that I would burn down more houses when I got out of jail,” Trewhella wrote. “But sitting there — I saw my sin for how truly reprehensible it was. I was in the presence of a holy God.” As a good guy, Trewhella got married, graduated from a Pentecostal college and, in 1989, founded Mercy Seat Christian Church in the Milwaukee area. He also became one of the nation’s most militant anti-abortion activists. He joined the so-called rescue movement, in which activists blockaded clinics. In 1990, he founded his own organization, Missionaries to the Preborn, whose members chained themselves to cars parked in front of clinic entrances. First image: In a still from a video posted on YouTube by an anti-abortion activist, Trewhella is seen handcuffed at Milwaukee’s 2003 Summerfest after police said his group was loitering. Second image: Trewhella’s long history of provocative actions have been a source of media attention for many years. A photograph of Trewhella at an anti-abortion demonstration in Rapid City, South Dakota, in 2006. (First image: YouTube screenshot by ProPublica. Original video posted by Dan Holman. Second image: Rapid City Journal via newspapers.com. Original photo by Bill Harlan/Rapid City Journal.) Trewhella racked up arrests and jail time for misdemeanor convictions, though other charges were dropped. By 2007, the group took credit for permanently closing down six of eight Milwaukee clinics. Trewhella has professed nonviolence. But after an activist killed an abortion provider in 1993, he signed a document describing the murder of these doctors as “justifiable.” Around the same time, Planned Parenthood recorded Trewhella urging churches to form militias and telling parents to teach their children to assemble weapons blindfolded: “This Christmas, I want you to do the most loving thing. I want you to buy your children an SKS rifle and 500 rounds of ammunition.” A man who reportedly used Trewhella’s group’s address on his driver’s license shot and killed a physician who performed abortions in 1998. The group fundraised for the families of people imprisoned for anti-abortion violence, according to a 2001 book. And Trewhella wrote that in 2003 that he visited a man awaiting execution for murdering an abortion provider, saying that “when abortion is outlawed,” future generations would view the man “as the sanest and bravest man of our age.” It all made Trewhella persona non grata. Republican politicians disregarded him. Wisconsin Right to Life said Trewhella’s group had scant support from “the mainline right-to-life people.” Vermont Right to Life called his group’s statements “disturbing.” And by the time Trewhella’s group announced a tour through Montana in 2001, the state’s Right to Life organization warned its supporters to steer clear. “They’re really out there,” Steven Ertelt, head of the Montana group, said at the time. “They know we won’t give them the time of day.” After Wisconsin Watch and ProPublica’s initial interview with Trewhella, the pastor did not return more than a dozen calls, emails and text messages seeking a follow-up interview. The news organizations tried to speak with Trewhella at another protest and at his church service, but he was not there. He did not respond to emailed questions and refused receipt of a certified letter containing them. Through his anti-abortion militancy, Trewhella came across an idea that would give him a religious foundation for his crusade: the doctrine of the lesser magistrates. For years, the theory had circulated among Christian Reconstructionists, who believe that all of society — including government, education and culture — should follow their strict reading of Old Testament law. Its adherents included some of the most violent members of the rescue movement. Trewhella recalled in an interview first encountering the lesser magistrates doctrine during a talk by a minister in 1990. It drew from the Bible to claim that those vested with political power could actively resist tyranny on behalf of the people — including, in extreme cases, with lethal violence. “Immediately that made sense to me because I was very involved on behalf of the preborn,” he said. Then, at a 2007 prayer meeting, the spirit moved Trewhella to do more. “I just felt from the Lord,” he said, “that I should write a book on the doctrine of the lesser magistrates, make a website for it, teach it to the government officials and the people of America.” The obsession led him to a 1550 German Lutheran text called the Magdeburg Confession, which he claims is the doctrine’s first formalization. Trewhella commissioned an English translation, releasing it in 2012. The next year, he self-published his book, in which he beseeched readers to deploy the doctrine against “abhorrent” issues such as same-sex marriage and abortion. The back cover called it “a hopeful blueprint for freedom.” Following Trewhella’s presentation in Iowa, people line up to purchase copies of his book “The Doctrine of the Lesser Magistrates” and other merchandise from his wife, Clara Trewhella, second image, left. (James Year, special to ProPublica) Trewhella’s Embrace After his book came out in 2013, Trewhella hustled. He used his blog and talks to spread the doctrine across the religious right. He seized on controversy and the attention it brought. Often, he veiled the more extreme elements of his philosophy in American patriotism, asserting that the doctrine influenced framers like Thomas Jefferson and James Madison. In interviews with half a dozen academics, including conservative, Christian professors of government and religion, all but one disputed Trewhella’s claim. Two leading scholars on the revolutionary period and constitutional law said they had never even heard of the doctrine. All of them considered its application in modern-day America inappropriate and dangerous. But to those of a certain political or religious persuasion, Trewhella has proved convincing. The book helped Trewhella attract the ear of high-level officials. In 2015, in a remarkable turnabout, Republican lawmakers welcomed Trewhella to the Montana Capitol for a sermon in which he discussed the doctrine. Following a 2015 sermon, Trewhella speaks with Republican state Sen. Jennifer Fielder in the rotunda of the Montana Capitol. (Terence Corrigan/Independent Record) “The federal government has already attacked and abridged liberty; they are now in the process of plundering the American people,” he said. “The phalanx of laws created by the state to invade our domestic affairs, disarm the people, seize our property and harass our persons all point to the growing tyranny in America.” Trewhella’s message resonated in the rotunda and in the nation’s politics, coming in the period between the Tea Party’s rise and Trump’s election. That speech, Trewhella later said, helped put his book “on the map.” In 2017, Kentucky’s then-Gov. Matt Bevin met with Trewhella and Operation Save America, an abortion abolition group now run by Trewhella’s son-in-law. “We were able to pray for him and challenge him with the Doctrine of the Lesser Magistrate and the abolition of abortion,” a group blog post said. “He told Pastor Matt Trewhella and the rest of us that he read the book and has passed it to others.” Bevin did not respond to repeated requests for comment. In 2019, Missouri state Rep. Mike Moon, now a state senator, helped run a conference on the doctrine of the lesser magistrates, where Trewhella spoke. A few months later, Moon introduced a bill to completely outlaw abortion in the state, leading Trewhella to claim credit on social media. Moon and his office did not return repeated requests for comment. Trewhella’s ideas also gained favor among gun rights activists, as a wave of counties declared themselves “Second Amendment sanctuaries,” some of which state that local law enforcement will not act on any gun laws they deem unconstitutional. The hard-line Gun Owners of America has consistently cited Trewhella and his book in its support of such resolutions. At least 10 resolutions across the country specifically refer to lesser magistrates. One of the earliest, issued in 2019, was authored by a county commissioner who has described reading Trewhella’s book as a “turning point” in his leadership. Wisconsin Watch and ProPublica identified numerous examples of Second Amendment sanctuary resolutions that include almost identical language and refer to “lesser magistrates.” The first of these three appeared in Cherokee County, North Carolina, where the author said he incorporated language from Trewhella’s book. (Obtained by Wisconsin Watch and ProPublica. Highlighted by ProPublica.) “It gave me the foundation I needed as a county commissioner to be the big brother to protect my constituents,” Dr. Dan Eichenbaum, a Republican in Cherokee County, North Carolina, said on his podcast. In an interview, Eichenbaum said his Second Amendment resolution inspired several other jurisdictions to take action. He said he was not aware of the details of Trewhella’s anti-abortion activism, including that Trewhella had defended the murder of abortion providers. “I can’t make excuses for that,” he said. Like many leaders on the right, Trewhella suddenly found a much larger audience when the COVID-19 pandemic took hold. As some people questioned public health measures like masks and vaccines, they began looking for ways to resist government officials they saw as trampling their rights. They found answers in Trewhella, who pumped out short-form videos and spoke on conservative podcasts and other platforms. “In light of the tyrannical acts by the state regarding COVID-19, we are rebooting our efforts,” he posted on social media in April 2020. The doctrine appeared in local meetings in Indiana and Tennessee as officials challenged public health measures. Andy Ogles, then-mayor of Maury County, Tennessee, south of Nashville, invoked the doctrine when he took steps to allow unvaccinated health care workers to keep their jobs. Ogles is now a Republican member of Congress. His office did not respond to requests for comment. Frustrated by pandemic measures like restaurant closures and masking in schools, Republican activists in Ottawa County, Michigan, west of Grand Rapids, invited Trewhella to speak several times. In 2022, one group that invited him, Ottawa Impact, helped flip the county board of commissioners to Christian control. Since then, the board has tried to fire its health administrator and declared Ottawa a “constitutional county.” The largely symbolic resolution states the board will not enforce any measure that it believes infringes on constitutional rights. Trewhella called Ottawa “a blueprint for counties across America.” Two Ottawa Impact founders denied that Trewhella influenced their work. But that sort of denial is common: When asked about their relationship with Trewhella or his ideas, people often distance themselves or are reluctant to give him credit. Last spring, conservative activist David Clements made the 44th stop on his “Greater Magistrates Tour” in northwestern Wisconsin. The tour, which took its name from Trewhella's book (revising it to promote the voters as “greater” magistrates), blended Christianity and conspiracy theory to encourage disrupting future elections. I just can’t imagine that [the county GOP would] support this person … You can quote me on this: I think it’s a shame they do that. —Bill Kruziki, a former Republican sheriff in Waukesha County, Wisconsin As about 200 people listened on, Clements ran through the familiar debunked claims about the “rigged” system, urging attendees to demand their local officials withhold certification of voting machines and results. Using Trewhella’s playbook, Clements said, they might save their country county by county. Referring to certain voting machine vendors, Clements told the crowd, Jesus Christ had been resurrected to “restore you to a place where there are no tears, there is no suffering, there are no Dominion or ES&S machines.” Throughout his tour, Clements had the company of some of the nation’s most prominent election denialists, including Bannon and Mike Lindell, the founder of MyPillow. Joe Oltmann, an activist who concocted the baseless claim that a Dominion Voting Systems employee had rigged the election, appeared several times. Oltmann has hosted Trewhella on his podcast and told his Telegram channel that Trewhella’s book is “required reading for all freedom minded Americans.” Clements said he would only do an interview if Wisconsin Watch and ProPublica allowed him to record a video and broadcast it in its entirety. Oltmann had similar terms. The news organizations did not agree, and neither Clements nor Oltmann answered written questions. Trewhella’s name has previously come up in attempts to challenge the 2020 election. Pennsylvania state Sen. Cris Dush, a Republican who led a legislative investigation into election results, called upon the doctrine of the lesser magistrates when he “urged people to take action against the certification of presidential electors,” the Pennsylvania attorney general said in a court filing. Republican state Sen. Cris Dush of Pennsylvania referenced the doctrine of the lesser magistrates when challenging the 2020 election results, Pennsylvania’s attorney general said in a state court filing. (Obtained by Wisconsin Watch and ProPublica. Highlighted by ProPublica.) In an interview, Dush said the doctrine resonated with his military training, which permitted him to disobey an unlawful order. Extremism researchers and pro-democracy groups say Trewhella’s influence on attempts to disrupt elections is particularly concerning because he claims some of his most vocal supporters have been sheriffs. Sheriffs wield significant law enforcement power in much of America. Some have claimed they have the power to seize voting machines should they believe there’s fraud. A faction known as “constitutional sheriffs” claim that within their jurisdictions, they have the sole authority to interpret the constitutionality of state and federal laws. Leaders of the movement have promoted election conspiracies and urged sheriffs to investigate possible fraud. They have also celebrated Trewhella, name-dropping him at conferences and giving his book to attendees. All of those county commissioners and mayors and whatnot who are entertaining this stuff, they’re putting people’s lives and the entirety of civil order at risk by playing footsie with Matt Trewhella. —Frederick Clarkson, extremism researcher Trewhella also spoke last year at a prayer breakfast at a conference held by the National Sheriffs’ Association, which represents thousands of law enforcement officers across the country. Trewhella said he spoke at their invitation. The organization did not respond to repeated requests for comment. But former Daviess County, Kentucky, Sheriff Keith Cain, a past board member who coordinated the prayer breakfast, said by email that Trewhella had asked to give the sermon after registering a booth. Cain said he requested Trewhella stick to spiritual matters. Trewhella did not abide. He told a group of about 40 — each with a complimentary copy of his book placed in front of them — that sheriffs are “ministers of God first” and must defy laws, policies or court opinions deemed “unjust or immoral” under the law of God. “America is languishing under the blithe compliance of the lesser magistrates,” he told them. “The filth of Sodom is paraded down the streets.” Now, with a presidential contest looming, what worries Frederick Clarkson, an extremism researcher who has tracked Trewhella for decades, is not the pastor’s influence on who wins, but the impact he’ll continue to have on state and local politics. “There’s a tectonic shift that’s gone on in American public life and politics,” he said. “All of those county commissioners and mayors and whatnot who are entertaining this stuff, they’re putting people’s lives and the entirety of civil order at risk by playing footsie with Matt Trewhella.” Mollie Simon contributed research.
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by Cassandra Jaramillo, Jeremy Kohler and Sophie Chou, ProPublica, and Jessica Kegu, CBS News ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. This story was reported in partnership with CBS News. Join us on Instagram Live at 4 p.m. Eastern time on Wednesday, July 17, in partnership with CBS News, for an inside look at the investigation. Year after year, while Roe v. Wade was the law of the land, Texas legislators passed measures limiting access to abortion — who could have one, how and where. And with the same cadence, they added millions of dollars to a program designed to discourage people from terminating pregnancies. Their budget infusions for the Alternatives to Abortion program grew with almost every legislative session — first gradually, then dramatically — from $5 million starting in 2005 to $140 million after the U.S. Supreme Court overturned the right to an abortion. Now that abortion is largely illegal in Texas, lawmakers say they have shifted the purpose of the program, and its millions of dollars, to supporting families affected by the state’s ban. In the words of Rep. Jeff Leach, a Republican from Plano, the goal is to “provide the full support and resources of the state government … to come alongside of these thousands of women and their families who might find themselves with unexpected, unplanned pregnancies.” But an investigation by ProPublica and CBS News found that the system that funnels a growing pot of state money to anti-abortion nonprofits has few safeguards and is riddled with waste. Officials with the Health and Human Services Commission, which oversees the program, don’t know the specifics of how tens of millions of taxpayer dollars are being spent or whether that money is addressing families’ needs. In some cases, taxpayers are paying these groups to distribute goods they obtained for free, allowing anti-abortion centers — which are often called “crisis pregnancy centers” and may be set up to look like clinics that perform abortions — to bill $14 to hand out a couple of donated diapers. Distributing a single pamphlet can net the same $14 fee. The state has paid the charities millions to distribute such “educational materials” about topics including parenting and adoption; it can’t say exactly how many millions because it doesn’t collect data on the goods it’s paying for. State officials declined to provide examples of the materials by publication time, and reporters who visited pregnancy centers were turned away. Funding for Texas’ Anti-Abortion Program Has Skyrocketed As they restricted access to abortion, lawmakers also poured money into a program that was first called Alternatives to Abortion and recently rebranded as Thriving Texas Families. The program funds counseling, baby items and brochures, but not medical care. Note: Data represents the amounts budgeted for Alternatives to Abortion, now called Thriving Texas Families, for each two-year budget period, including amendments made in that period. Sources: Alternatives to Abortion annual reports and the 2024-25 Texas budget bill (Lucas Waldron/ProPublica) For years, Texas officials have failed to ensure spending is proper or productive. They didn’t conduct an audit of the program in the wake of revelations in 2021 that a subcontractor had used taxpayer funds to operate a smoke shop and to buy land for hemp production. They ramped up funding to the program in 2022 even after some contractors failed to meet their few targets for success. After a legislative mandate passed in 2023, lawmakers ordered the commission to set up a system to measure the performance and impact of the program. One year later, Health and Human Services says it’s “working to implement the provisions of the law.” Agency spokespeople answered some questions but declined interview requests. They said their main contractor, Texas Pregnancy Care Network, was responsible for most program oversight. The nonprofit network receives the most funding of the program’s four contractors and oversees dozens of crisis pregnancy centers, faith-based groups and other charities that serve as subcontractors. The network’s executive director, Nicole Neeley, said those subcontractors have broad freedom over how they spend revenue from the state. For example, they can save it or use it for building renovations. Pregnancy Center of the Coastal Bend in Corpus Christi, for instance, built up a $1.6 million surplus from 2020 to 2022. Executive Director Jana Pinson said two years ago that she plans to use state funds to build a new facility. She did not respond to requests for comment. A ProPublica reporter visited the waterfront plot where that facility was planned and found an empty lot. Because subcontractors are paid set fees for their services, Neeley said, “what they do with the dollars in their bank accounts is not connected” to the Thriving Texas Families program. “It is no longer taxpayer money.” The state said those funds are, in fact, taxpayer money. “HHSC takes stewardship of taxpayer dollars, appropriated by the Legislature, very seriously by ensuring they are used for their intended purpose,” a spokesperson said. None of that has caused lawmakers to stop the cash from flowing. In fact, last year they blocked requirements to ensure certain services were evidence-based. Leach, one of the program’s most ardent supporters, said in an interview with ProPublica and CBS News that he would seek accountability “if taxpayer dollars aren’t being spent appropriately.” But he remained confident about the program, saying the state would keep investing in it. In fact, he said, “We’re going to double down.” What’s more, lawmakers around the country are considering programs modeled on Alternatives to Abortion. Last year, Tennessee lawmakers directed $20 million to fund crisis pregnancy centers and similar nonprofits. And Florida enacted a 6-week abortion ban while including in the same bill a $25 million allocation to support crisis pregnancy centers. John McNamara, a longtime leader of Texas Pregnancy Care Network, has been working to start similar networks in Kansas, Oklahoma and Iowa. He’s also reserved the name Louisiana Pregnancy Care Network. And U.S. House Republicans are advocating for allowing federal dollars from the Temporary Assistance for Needy Families program — intended to help low-income families — to flow to pregnancy centers. In January, the House passed the legislation, and it is pending in the Senate. Rep. Elise Stefanik, R-N.Y., castigated Democrats for voting against the bill. “That’s taking away diapers, that’s taking away resources from families who are in need,” she said in an interview with CBS News after the vote. But, as Texas shows, more funding doesn’t necessarily pay for more diapers, formula or other support for families. Watch the CBS News Report Lawmakers rebranded Alternatives to Abortion as Thriving Texas Families in 2023. The program is supposed to promote pregnancies, encourage family formation and increase economic self-sufficiency. The state pays four contractors to run the program. The largest, which gets about 80% of the state funding, is the anti-abortion group Texas Pregnancy Care Network. Human Coalition, which gets about 16% of the state funding, said it uses the money to provide clients with material goods, counseling, referrals to government assistance and education. Austin LifeCare, which gets about 3% of the state funding, could not be reached for comment about this story. Longview Wellness Center in East Texas, which receives less than 1% of the funds, said the state routinely audits its expenses to ensure it’s operating within guidelines. Texas Pregnancy Care Network manages dozens of subcontractors that provide counseling and parenting classes and that distribute material aid such as diapers and formula. Parents must take a class or undergo counseling before they can get those goods. The state can be charged $14 each time one of these subcontractors distributes items from one of several categories, including food, clothing and educational materials. That means the distribution of a couple of educational pamphlets could net the same $14 fee as a much pricier pack of diapers. A single visit by a client to a subcontractor can result in multiple charges stacking up. Centers are eligible to collect the fees regardless of how many items are distributed or how much they are worth. One April morning, a client at McAllen Pregnancy Center, near the Texas-Mexico border, received a bag with some diapers, a baby outfit, a baby blanket, a pack of wipes, a baby brush, a snack and two pamphlets. It was not clear how much the center invoiced for these items. McAllen Pregnancy Center and other Texas Pregnancy Care Network subcontractors were paid more than $54 million from 2021 to 2023 for distributing these items, according to records. How much of that was for handing out pamphlets? The state said it didn’t know; it doesn’t collect data on the quantities or types of items provided to clients or whether they are essential items like diapers or just pamphlets, making it impossible for the public to know how tax dollars were spent. Neeley said in an email that educational materials like pamphlets only accounted for 12% of the money reimbursed in this category last year, or roughly $2.4 million out of $20 million. She did not respond to questions from ProPublica and CBS News about evidence that would corroborate that number. The way subcontractors are paid, and what they’re allowed to do with that money, raised questions among charity experts consulted for this investigation. In the nonprofit sector, using a fee-for-service payment model for material assistance is highly unusual, said Vincent Francisco, a professor at the University of Kansas who has worked as a nonprofit administrator, evaluator and consultant over the past three decades. It “can run fast and loose if you’re not careful,” he said. Even if nonprofits distribute items they got for free or close to it, the state will still reimburse them. Take Viola’s House, a pregnancy center and maternity home in Dallas. Records show that it pays a nearby diaper bank an administrative fee of $1,590 for about 120,000 diapers annually — just over a penny apiece. Viola’s House can then bill the state $14 for distributing a pack of diapers that cost the center just over a quarter. But before they can get those diapers, parents must take a class. The center can also bill the state $30 for each hour of class a client attends. Rep. Donna Howard, a Democrat from Austin, said the program could be more efficient if the state funded the diaper banks directly. Last year, she proposed diverting 2% of Thriving Texas Families’ funding directly to diaper banks, but the proposal failed. Records show that in fiscal year 2023, Viola’s House received more than $1 million from the state in reimbursements for material support and educational items plus another $1.7 million for classes. Executive Director Thana Hickman-Simmons said Viola’s House relies on funding from an array of sources and that just a small fraction of the diapers it distributes come from the diaper bank. She said the state money “could never cover everything that we do.” In some cases, reimbursements have created a hefty cushion in the budgets of subcontractors. The state doesn’t require them to spend the taxpayer funds they get on needy families, and Texas Pregnancy Care Network said subcontractors can spend the money as they see fit, as long as they follow Internal Revenue Service rules for nonprofits. McAllen Pregnancy Center received $3.5 million in taxpayer money from Texas Pregnancy Care Network over three years, but it spent less than $1 million on program services, according to annual returns it filed with the IRS. Meanwhile, $2.1 million was added to the group’s assets, mostly in cash. Its executive director, Angie Arviso, asked a reporter who visited in person to submit questions in writing, but she never responded. Texas Taxpayers Gave One Crisis Pregnancy Center $3.5 Million Over Three Years. It Spent Less Than $1 Million on Programs. The nonprofit McAllen Pregnancy Center is a case study showing how anti-abortion centers can amass a surplus from the Alternatives to Abortion program, which is now called Thriving Texas Families Note: Figures are rounded to the nearest thousand. Sources: McAllen Pregnancy Center Form 990 for 2020, 2021 and 2022, and Texas Health and Human Services Commission records obtained by ProPublica and CBS News. (Lucas Waldron/ProPublica) “This is a policy choice Texas has made,” said Samuel Brunson, associate dean for faculty research and development at the Loyola University Chicago School of Law, who researches and writes about the federal income tax and nonprofit organizations. “It has chosen to redistribute money from taxpayers to the reserve funds of private nonprofit organizations.” Tax experts say that’s problematic. “Why would you give money to a recipient that is not spending it?” said Ge Bai, a professor of accounting and health policy at Johns Hopkins University. The tax experts disagree with Texas Pregnancy Care Network’s argument that the money is no longer taxpayer dollars after its subcontractors are paid. “It’s still the government buying something,” said Jason Coupet, associate professor of public management and policy at Georgia State University, who has studied efficiency in the public and nonprofit sectors. “If I were in the auditor’s office, that’s where I would start having questions.” State legislators and regulators haven’t installed oversight protections in the program. Three years ago, The Texas Tribune spotlighted the state’s refusal to track outcomes or seek insight into how subcontractors have spent taxpayer money. Months later, Texas Pregnancy Care Network cut off funding to one of its biggest subcontractors after a San Antonio news outlet alleged the nonprofit had misspent money from the state. KSAT-TV reported that the nonprofit, A New Life for a New Generation, had used Alternatives to Abortion funds for vacations and a motorcycle, and to fund a smoke shop business owned by the center’s president and CEO, Marquica Reed. It also spent $25,000 on land that was later registered by a member of Reed’s family to produce industrial hemp. In an interview with ProPublica, a former case manager recalled how Reed would get angry if employees forgot to bill the state for a service provided to a client. The former case manager, Bridgett Warren Campbell, said employees would buy diapers from the local Sam’s Club store, then take apart the packages. “We’d take the diapers out and give parents two to three diapers at a time, then she would bill TPCN,” said Campbell. Reed declined to comment to a ProPublica reporter or to answer follow-up questions via email or text. Neeley, the Texas Pregnancy Care Network’s executive director, said the pregnancy center was removed from the program because its nonprofit status was in jeopardy, not because it had used money on personal spending. She said the network wasn’t responsible for monitoring how A New Life for a New Generation spent its dollars: “The power to investigate these matters of how nonprofits manage their own funds is reserved statutorily to the Texas Attorney General and the IRS.” The Texas attorney general’s office would not say whether it has investigated the organization. Records show that after KSAT’s story, state officials referred the case to an inspector general and that the Texas Pregnancy Care Network submitted a report detailing how it monitored the subcontractor. The state requires contractors to submit independent financial audits if they receive at least $750,000 in state money; Texas Pregnancy Care Network meets this threshold. However, its dozens of subcontractors don’t have to submit these audits — something experts in nonprofit practices said should be required. In the fiscal year before the alleged misspending came to light, A New Life for a New Generation received more than $1 million in reimbursements from the state, records show. When ProPublica and CBS News asked how the Health and Human Services Commission detects fraud or misuse of taxpayer funds, Jennifer Ruffcorn, a commission spokesperson, said the agency “performs oversight through various methods, which may include fiscal, programmatic, and administrative monitoring, enhanced monitoring, desk reviews, financial reconciliations, on-site visits, and training and technical assistance.” Through a spokesperson, Rob Ries, the deputy executive commissioner who oversees the program at Health and Human Services, declined to be interviewed. The agency has never thoroughly evaluated the effectiveness of the program’s services in its nearly 20 years of existence. It is supposed to make sure its contractors are meeting a few benchmarks: how many clients each one serves and how many they have referred to Medicaid and the Nurse-Family Partnership, a program that sends nurses to the homes of low-income first-time mothers and has been proven to reduce maternal deaths. The Nurse-Family Partnership does not receive Alternatives to Abortion funding. In 2022, the Texas Pregnancy Care Network failed to meet two of three key benchmarks in its contract with the state: It didn’t serve enough clients and it didn’t refer enough of them to the nursing program. The state didn’t withhold or reduce its funding. McNamara disputed the first claim, saying the state changed its methodology for counting clients, and said the other benchmark was difficult to hit because too few clients qualified for the nursing program. In May 2023, when lawmakers passed the bill rebranding the program, the state also ordered the agency to “identify indicators to measure the performance outcomes,” “require periodic reporting” and hire an outside party to conduct impact evaluations. The agency declined to share details about its progress on those requirements except to say that it is soliciting for impact evaluation services. Records show the agency has requested bids. Lawmakers decided last year against enacting requirements that would ensure certain services were evidence-based — proven by research to meet their goals — instead siding with an argument that they would be too onerous for smaller nonprofits. Texas’ six-week abortion ban took effect in 2021, and more than 16,000 additional babies were born in the state the following year. Academics expect that trend to continue. But the safety net for parents and babies is paper thin. Texas has the lowest rate of insured women of reproductive age in the country and ranks above the national average for maternal deaths. It’s last in giving cash assistance to families living beneath the poverty line. Mothers told reporters they are struggling to scrape together enough diapers and wipes to keep their babies clean. A San Antonio diaper bank has hundreds of families on its waitlist. Outside an Austin food pantry, lines snake around the block. Howard, the Austin state representative, said ProPublica and CBS News’ findings show that the program needs more oversight. “It is unconscionable that a [Thriving Texas Families] provider would be allowed to keep millions in reserve when there is a tremendous need for more investment in access to health care services,” she said. Do you have any tips on state-funded anti-abortion programs? Cassandra Jaramillo can be reached by email at cassandra.jaramillo@propublica.org or by Signal at 469-606-9665. Caroline Chen and Kavitha Surana contributed reporting.
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by Jessica Priest ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans. Sign up for The Brief Weekly to get up to speed on their essential coverage of Texas issues. A West Texas pastor who used his parish’s resources to campaign for office and several pastors from other churches who donated to him were fined after the state’s ethics commission determined that each violated election law. The fines, some of which were issued last month, are the latest sanction from the commission following reporting from ProPublica and The Texas Tribune, which revealed that three churches donated to the campaign of Scott Beard, founding pastor at Fountaingate Fellowship church, despite state and federal prohibitions on such activity. Beard, who was fined $3,500, showed a “lack of good faith” in accepting the donations and in posting campaign signs on church property for his unsuccessful Abilene City Council race despite the commission’s warnings against doing so, it found. “Because the respondent committed extensive corporate contribution violations in defiance of the applicable law, a substantial penalty is required,” the commission wrote about Beard. He did not respond to a request for comment. The commission separately fined the pastor of Hope 4 Life Church, Bruce Tentzer, $200. Tentzer purchased a ticket to Beard’s fundraising dinner with funds from the parish, also known as Hope Chapel Foursquare Church. He told the commission the money was drawn from a special church fund set aside for his personal use. Never miss the most important reporting from ProPublica’s newsroom. Subscribe to the Big Story newsletter. Those actions come after the ethics commission on Dec. 21, 2023, ordered Dewey Hall, pastor of Fountaingate Merkel Church, to pay $400 for donating from church coffers to Beard’s campaign. In an interview, Hall said that he does not believe in the separation of church and state, but that his church would not donate to a political candidate again. No fines appear on the commission’s website related to Remnant Church, the third parish to give Beard campaign money. Remnant representatives did not respond to a request for comment. Kristin Postell, an Abilene attorney who filed a complaint with the commission about Beard’s actions, said she was pleased with the fines levied against him. Given the severity of his actions, she believed the churches should pay less than him. But Postell said such low fines are not sufficient deterrents for violators. “I don’t think anybody is going to be super cautious about following the rules unless there is a real financial burden to breaking them,” Postell said. Under state law, violations are punishable by up to $5,000, or triple the amount at issue, whichever is greater, and a third-degree felony charge. (No criminal charges were brought in these cases.) J.R. Johnson, the commission’s executive director, declined to comment and did not answer questions about whether the fines were sufficient. Roger Borgelt, an Austin lawyer who provides ethics advice to political candidates, said the stigma of being found in violation of the law is often a bigger deterrent than the fines themselves. “The ethics commission, in terms of its practical function, as a deterrent, has been more to provide campaign fodder than anything else,” he said. It’s unclear if Beard or the churches will face any additional sanctions. Abilene residents filed complaints with the IRS accusing Beard’s church of illegally campaigning. An IRS spokesperson declined to comment, saying that federal law prohibits the agency from confirming or denying investigations. The federal agency can strip churches of their tax-exempt status for violating a federal law banning all nonprofits from engaging in political activity, but there has been only one public example of such a revocation.
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[l] at 7/8/24 3:00am
by Craig Silverman ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. After Russian intelligence launched one of the most devastating cyber espionage attacks in history against U.S. government agencies, the Biden administration set up a new board and tasked it to figure out what happened — and tell the public. State hackers had infiltrated SolarWinds, an American software company that serves the U.S. government and thousands of American companies. The intruders used malicious code and a flaw in a Microsoft product to steal intelligence from the National Nuclear Security Administration, National Institutes of Health and the Treasury Department in what Microsoft President Brad Smith called “the largest and most sophisticated attack the world has ever seen.” The president issued an executive order establishing the Cyber Safety Review Board in May 2021 and ordered it to start work by reviewing the SolarWinds attack. But for reasons that experts say remain unclear, that never happened. Nor did the board probe SolarWinds for its second report. For its third, the board investigated a separate 2023 attack, in which Chinese state hackers exploited an array of Microsoft security shortcomings to access the email inboxes of top federal officials. A full, public accounting of what happened in the Solar Winds case would have been devastating to Microsoft. ProPublica recently revealed that Microsoft had long known about — but refused to address — a flaw used in the hack. The tech company’s failure to act reflected a corporate culture that prioritized profit over security and left the U.S. government vulnerable, a whistleblower said. The board was created to help address the serious threat posed to the U.S. economy and national security by sophisticated hackers who consistently penetrate government and corporate systems, making off with reams of sensitive intelligence, corporate secrets or personal data. Never miss the most important reporting from ProPublica’s newsroom. Subscribe to the Big Story newsletter. For decades, the cybersecurity community has called for a cyber equivalent of the National Transportation Safety Board, the independent agency required by law to investigate and issue public reports on the causes and lessons learned from every major aviation accident, among other incidents. The NTSB is funded by Congress and staffed by experts who work outside of the industry and other government agencies. Its public hearings and reports spur industry change and action by regulators like the Federal Aviation Administration. So far, the Cyber Safety Review Board has charted a different path. The board is not independent — it’s housed in the Department of Homeland Security. Rob Silvers, the board chair, is a Homeland Security undersecretary. Its vice chair is a top security executive at Google. The board does not have full-time staff, subpoena power or dedicated funding. Silvers told ProPublica that DHS decided the board didn’t need to do its own review of SolarWinds as directed by the White House because the attack had already been “closely studied” by the public and private sectors. “We want to focus the board on reviews where there is a lot of insight left to be gleaned, a lot of lessons learned that can be drawn out through investigation,” he said. As a result, there has been no public examination by the government of the unaddressed security issue at Microsoft that was exploited by the Russian hackers. None of the SolarWinds reports identified or interviewed the whistleblower who exposed problems inside Microsoft. By declining to review SolarWinds, the board failed to discover the central role that Microsoft’s weak security culture played in the attack and to spur changes that could have mitigated or prevented the 2023 Chinese hack, cybersecurity experts and elected officials told ProPublica. “It’s possible the most recent hack could have been prevented by real oversight,” Sen. Ron Wyden, a Democratic member of the Senate Select Committee on Intelligence, said in a statement. Wyden has called for the board to review SolarWinds and for the government to improve its cybersecurity defenses. In a statement, a spokesperson for DHS rejected the idea that a SolarWinds review could have exposed Microsoft’s failings in time to stop or mitigate the Chinese state-based attack last summer. “The two incidents were quite different in that regard, and we do not believe a review of SolarWinds would have necessarily uncovered the gaps identified in the Board’s latest report,” they said. The board’s other members declined to comment, referred inquiries to DHS or did not respond to ProPublica. In past statements, Microsoft did not dispute the whistleblower’s account but emphasized its commitment to security. “Protecting customers is always our highest priority,” a spokesperson previously told ProPublica. “Our security response team takes all security issues seriously and gives every case due diligence with a thorough manual assessment, as well as cross-confirming with engineering and security partners.” The board’s failure to probe SolarWinds also underscores a question critics including Wyden have raised about the board since its inception: whether a board with federal officials making up its majority can hold government agencies responsible for their role in failing to prevent cyberattacks. “I remain deeply concerned that a key reason why the Board never looked at SolarWinds — as the President directed it to do so — was because it would have required the board to examine and document serious negligence by the U.S. government,” Wyden said. Among his concerns is a government cyberdefense system that failed to detect the SolarWinds attack. Silvers said while the board did not investigate SolarWinds, it has been given a pass by the independent Government Accountability Office, which said in an April study examining the implementation of the executive order that the board had fulfilled its mandate to conduct the review. The GAO’s determination puzzled cybersecurity experts. “Rob Silvers has been declaring by fiat for a long time that the CSRB did its job regarding SolarWinds, but simply declaring something to be so doesn’t make it true,” said Tarah Wheeler, the CEO of Red Queen Dynamics, a cybersecurity firm, who co-authored a Harvard Kennedy School report outlining how a “cyber NTSB” should operate. Silvers said the board’s first and second reports, while not probing SolarWinds, resulted in important government changes, such as new Federal Communications Commission rules related to cellphones. “The tangible impacts of the board’s work to date speak for itself and in bearing out the wisdom of the choices of what the board has reviewed,” he said. “We Have Fully Complied With the Executive Order” The SolarWinds attack was a wakeup call for the federal government and the private sector. The White House’s executive order was designed to allow officials to move quickly to implement new cybersecurity practices. But the executive order limited what the new cybersecurity board could do: The president cannot allocate funding from Congress or grant subpoena power. When the board launched in early 2022, it bore little resemblance to the cyber board that Wheeler and her co-authors outlined in their Harvard report. “Not a single one of our recommendations was adopted,” she said. Housed in DHS’ Cybersecurity and Infrastructure Security Agency, the board consists of 15 unpaid volunteers — eight from government agencies and seven from the private sector. Silvers said this ensures the board has cutting-edge knowledge and the ability to follow through on its recommendations. Although the board’s first mandate was to investigate SolarWinds, Homeland Security Secretary Alejandro Mayorkas and CISA Director Jen Easterly tasked the board instead to review a recently discovered vulnerability in Log4j, software used by millions of computers, which could allow attackers to breach systems worldwide, including some used by the U.S. government. Silvers said it “was a perfect use case” for the board’s first review and that the White House agreed. The board’s Log4j report, published in July 2022, found there had been no significant attacks on critical infrastructure systems due to this vulnerability. It offered 19 recommendations for companies, government bodies and open-source software developers. Silvers continued to face questions about the decision not to probe SolarWinds but maintained that Log4j had been the more pressing topic for review. “We have fully complied with the executive order,” Silvers told media on a call that month. At first, a government watchdog agency disagreed. When the GAO conducted its review of the executive order’s implementation, it found that the board had failed to fulfill its mandate. In its draft report, it recommended that Homeland Security direct the board to review SolarWinds as the president had instructed. That didn’t sit well with DHS, which was given a chance to review and comment on the draft as part of the GAO’s standard process. DHS argued in a letter that the “intent” of a board review of SolarWinds had been met by references to the hack in the board’s Log4j report and previous research on SolarWinds by the DHS agency that administers the board. Homeland Security also noted that the executive order had set a 90-day deadline for the board to complete the SolarWinds review, which it said was “unachievable.” Directing the board to do such a review now, it argued, would be “duplicative of prior work and an imprudent use of resources.” “We request that GAO consider this recommendation resolved and closed, as implemented,” the letter said. GAO agreed. Its final study said the mandate for a board review of SolarWinds had been “fully implemented.” The GAO accepted two government reports in place of one from the board: the Log4j review and a 2021 review of SolarWinds by the National Security Council, which is not public. An aide to Wyden said the senator had not seen the NSC review. Neither has the GAO. Instead, the GAO told ProPublica that it “interviewed key contributors” to the security council’s review. The office also summarized three recommendations that the NSC deemed acceptable for public release, including a call for better information sharing among federal agencies. A spokesperson from the security council declined to comment. The GAO said it accepted the board’s Log4j review because it included “information from the SolarWinds incident.” But aside from footnotes, the report mentions SolarWinds only once. A board report would have been more beneficial to the cybersecurity community because it would have offered a detailed, public accounting of a major attack, said Steven Bellovin, a professor of computer science at Columbia University who has written articles and given presentations about the need for an independent cybersecurity board. “A secret report does not accomplish that,” he said. Trey Herr, an assistant professor of foreign policy and global security at American University who co-authored reports on the CSRB and SolarWinds, also criticized the GAO’s decision. “I don’t know why GAO would suggest a private NSC review and a different CSRB work product are equivalent, given their vastly different authorities, scope, operation and expectations of transparency,” he said. Asked to explain why it credited Homeland Security for completing a review that never occurred, Marisol Cruz-Cain, a director with GAO’s information technology and cybersecurity team, said in a statement that the office “stands by the statements and assessments.” “GAO believes the government had taken sufficient steps to review the SolarWinds incident,” she said, including through collaboration with multiple federal agencies and the private sector and “by disseminating relevant guidance about SolarWinds.” GAO also conducted its own study of SolarWinds, which was published in 2022. Like the other government reviews, it did not probe Microsoft’s role in the attack. A spokesperson said the GAO was focused on the impact the hack had on the federal government, so “we did not engage with Microsoft.” “This Intrusion Should Never Have Happened” After the 2023 Chinese-led hack used Microsoft vulnerabilities to infiltrate U.S. systems, the board scrutinized the tech giant’s role in the attack. The report was scathing. “The Board concludes that this intrusion should never have happened,” the report found, citing a “cascade of security failures at Microsoft.” The board called for an overhaul of Microsoft’s “inadequate” security culture and listed seven areas where the company failed to apply proper security practices or to detect or address flaws or risks. Microsoft announced a series of changes and said it would implement all of the board's recommendations. The report triggered a House Homeland Security Committee hearing with Microsoft president Smith last month. Smith said the company was making security its top priority. He also raised concerns about the board’s conflicts of interest. While Wyden and other experts have criticized the role of federal officials, Smith complained about the board’s private-sector members, including executives from Google and other Microsoft competitors. “I think it’s a mistake to put on the board the competitors of a company that is the subject of a review,” he said. Smith warned that other companies might not be as cooperative with the board as he said Microsoft had been. Three of the board’s private-sector members — including board Vice Chair Heather Adkins, a Google executive — recused themselves from the Microsoft report, as did two members from the Office of the National Cyber Director and one from the FBI, who were replaced by one colleague from each agency. A DHS spokesperson declined to say why the public-sector members recused themselves but said board members are required to step aside if a review includes “examinations of their employers’ products or those of competitors” or if a board member has “financial interests relating to matters under consideration.” Silvers said every board member, including public-sector members, goes through a “rigorous” review of conflicts of interest. He said the current model has proven effective and is less costly than standing up an independent agency. “Creating an entirely new agency with a professional workforce would be exceedingly expensive, would take many years to do and could cannibalize the scarce cyber talent that we have in the U.S. government as it is,” he said. “In an era of scarce budgets, belt tightening, competition for talent, it’s really a terrific model.” Still, DHS acknowledges that the board needs more resources and investigative muscle. Last year, the department released proposed legislation to make the board permanent, with dedicated funding, limited subpoena power and a full-time staff. Silvers said the bill has the support of the Biden administration, but it has not been introduced and does not have a sponsor. Wheeler, the cybersecurity executive, said she recognizes how challenging any reforms would be but that she and others will keep advocating for the board to become an independent government agency. “I am frankly surprised that they got [the board] done at all,” she said. “Now I want them to make it better.” Do You Have a Tip for ProPublica? Help Us Do Journalism. Update, July 8, 2024: After this story was published, the Department of Homeland Security clarified that both Secretary Alejandro Mayorkas and Cybersecurity and Infrastructure Security Agency Director Jen Easterly had tasked the Cyber Safety Review Board with reviewing a recently discovered vulnerability in Log4j.
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by Eric Umansky ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. New York Police Commissioner Edward Caban on Tuesday evening issued a five-page statement defending how he has handled officer discipline in the year since he was appointed to lead the department. The statement, posted on the social media platform X, came in response to a story published last week by ProPublica and The New York Times that detailed how Caban has buried dozens of cases of alleged police misconduct involving officers accused of, among other things, wrongly using chokeholds, deploying Tasers and beating protesters with batons. Some episodes were so serious that a police oversight agency, the Civilian Complaint Review Board, concluded the officers likely committed crimes. Caban, ProPublica found, has prevented 54 officers from facing a public disciplinary trial in his roughly one year in office — a tactic known as retention. His predecessor, Keechant Sewell, did it eight times in her first year. Well before our story was published, we asked for an interview with Caban and sent the New York Police Department detailed questions about our reporting. In response, the department offered a one-sentence statement: “The NYPD continues to work closely with the Civilian Complaint Review Board in accordance with the terms of the memorandum of understanding.” That memorandum gives the commissioner the authority to preemptively end cases without a trial. On Tuesday, Mayor Eric Adams was asked at a press briefing about our story. “I have committed my life to police reform and proper policing,” he said. “I monitor these cases, I don’t interfere. But I’m very clear on what I expect. We are going to have a police department that’s professional.” Adams offered his full support to Caban, saying the commissioner has “been extremely clear in doing that.” Caban followed with the five-page statement taking issue with the story. He identified no inaccuracies but instead argued that the story was unfair. “No one is more invested in a fair, effective, and efficient NYPD discipline process than I am,” Caban wrote. “Any suggestion that my handling of an incredibly complex, collaborative process undermines these standards simply does not survive honest scrutiny.” Caban also argued that he was more efficient and effective at administering justice than the Civilian Complaint Review Board. Here are a few of Caban’s assertions and what our reporting found: “This was and remains an open process.” When the CCRB adjudicates misconduct accusations, its lawyers serve as prosecutors at an NYPD trial that is open to the public, where evidence is presented and officers are questioned about what happened. When the commissioner retains a case, he decides in private whether the officer’s behavior was justified, and he alone determines whether they should be punished. He sends a letter to the CCRB laying out his reasons, but the department does not publish the letter, and the CCRB only does so months after the fact. The process is so opaque that civilians we interviewed about their pending misconduct cases did not know that the cases had been swept away. When we told Brianna Villafane that the commander who grabbed her by the hair and yanked her to the ground during a Black Lives Matter march had been cleared by the commissioner, she gasped and shook her head. “Who am I supposed to call to feel safe now?” Villafane asked. “Not him.” “Each and every time I have retained a case, it is in compliance with” the memorandum of understanding’s “mutually understood guidelines and agreed upon guidelines.” ProPublica’s reporting shows this is not the case. One of the few limitations on a commissioner’s ability to end cases is that he may only do so for officers with clean records. We found multiple instances where the commissioner ended the cases of officers whose records included previous substantiated cases of misconduct. The department’s public information office did not respond to questions about these cases for our original story and the mayor’s chief counsel did not respond to a similar question at Tuesday’s news conference. On Wednesday, ProPublica asked the police department about these cases again, and the department did not immediately respond. “Police officers face unparalleled penalties.” We tracked the punishment that Caban has given in the cases he short-circuited. Forty percent of the time, he gave officers no punishment at all. In the cases in which he has ordered discipline, it has mostly been light, such as the loss of a few vacation days. The most severe punishment, we found, was a case in which he docked an officer 10 vacation days. In more than 30 other instances, Caban upended cases in which officers themselves had already agreed to punishment, doing so more times than any other commissioner in at least a decade. “In the past year, the sheer number of cases that I have adjudicated has greatly increased, so it is only logical that the number of cases I retain would increase as well.” ProPublica looked at this very issue. According to CCRB data, Caban had faced 409 cases from the agency in his first 11 months, compared to 521 cases for his predecessor, Sewell, in her first year. One thing we found that the commissioner didn’t address: Retention is not the only way the NYPD has been blocking cases. As we reported, there are seven cases in which the NYPD has, since last summer, declined to formally notify officers of charges brought against them. Without such notification, there can be no disciplinary trial. These cases include chokeholds, Tasings and beating a teenager with a baton. Each one was so serious that the CCRB concluded that the officers’ conduct was likely criminal. And there is no public disclosure when the department simply doesn’t inform an officer, effectively stalling the case indefinitely. We asked the NYPD and the commissioner about these cases for our earlier story. They did not respond. Do you have information about the police we should know? You can email Eric Umansky at eric.umansky@propublica.org or contact him securely on Signal or WhatsApp at 917-687-8406.
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by Alejandro Serrano and Robert Downen, The Texas Tribune, and Vianna Davila, ProPublica and The Texas Tribune ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans. Sign up for The Brief Weekly to get up to speed on their essential coverage of Texas issues. An El Paso judge on Tuesday denied Texas’ efforts to shut down a migrant shelter network that Attorney General Ken Paxton claimed was violating state law by helping people he suspected of being undocumented immigrants. Although the case centered around immigration, it was one of more than a dozen instances ProPublica and The Texas Tribune recently identified in which Paxton’s office has aggressively used the state’s powerful consumer protection laws to investigate organizations whose work conflicts in some way with his political views or the views of his conservative base. Two weeks ago, lawyers for the Texas attorney general’s office argued to state District Judge Francisco Dominguez that El Paso-based Annunciation House should be closed, accusing the 46-year-old nonprofit of violating laws prohibiting human smuggling and operating a stash house. Dominguez ruled on Tuesday that the state’s claim, “even if accepted as true, does not establish a violation of those provisions,” according to the order. He ruled that the state laws are preempted by federal law and “unenforceable.” Paxton’s office did not respond to a request for comment on the ruling. “The volunteers of Annunciation House have a lot of work to do, and they just continue to do it. They can just do it more at peace today than they did yesterday,” said Jerry Wesevich of Texas RioGrande Legal Aid, who represents the shelter network. “There is some relief at knowing that the court agreed with their view of the law.” Paxton’s office initially sought records from Annunciation House about the shelter’s clients in February. Officials from the attorney general’s Consumer Protection Division showed up on the nonprofit’s doorstep, demanding to come inside and search its records, including all logs identifying immigrants who received services there going back more than two years. Consumer protection laws give attorneys general broad legal authority to request a wide range of records when investigating businesses or charities for allegations of deceptive or fraudulent practices. Attorneys general like Paxton, however, have increasingly used their powers to also pursue more political investigations, experts told the news organizations. The attorney general’s office previously confirmed to the news organizations that no consumer complaints had been filed against Annunciation House. Complaints aren’t required to launch an investigation. In the case of Annunciation House, the attorney general gave the shelter director, Ruben Garcia, one day to turn over the documents. The news organizations found this to be an unusual practice: ProPublica and the Tribune identified several other cases in which the Consumer Protection Division sent its requests for records by mail and gave organizations weeks to respond. Garcia’s lawyer told the state its deadline did not give the shelter enough time and asked a judge to determine which documents shelter officials were legally allowed to release. Interpreting that as noncompliance, Paxton’s office filed a countersuit to shutter the shelter network. Wesevich and another lawyer representing an organization Paxton’s office investigated using the consumer protection law said they believe he launched the investigations to harass their clients and to cause a chilling effect among organizations doing similar work. Both said the attorney general’s demands violate the First Amendment, which guarantees the right to free speech, association and religion, and the Fourth Amendment, which offers protection against unreasonable search and seizure. In his ruling on Tuesday, Dominguez said that Paxton’s “predetermined efforts” to shut down the nonprofit were “substantially motivated by his retaliation against Annunciation House’s exercise of its First Amendment right to expressive association.” He also said the investigative document the state agency gave to Annunciation House, demanding access to the nonprofit’s records, violated the Fourth Amendment. Annunciation House opened its first shelter at a Catholic church nearly 50 years ago. The nonprofit primarily serves people who are processed and released into the U.S. by immigration officials. Garcia communicates regularly with Border Patrol and other federal agencies that ask for help finding shelter for people who turn themselves in to authorities or are apprehended but have nowhere to go while their cases are processed. Paxton’s decision to sue Annunciation House came against the backdrop of a yearslong effort by right-wing Christian groups and figures to paint immigrants as part of a Democratic plot to undermine American Christianity — despite a large percentage of migrants being Christian. Texas Lt. Gov. Dan Patrick, a Republican, echoed those claims in a speech at the Republican Party of Texas’ convention in May, telling delegates that immigrants were part of a plan by the “Marxist, socialist left” to “take God out of the country.” At the same convention, Paxton’s wife, state Sen. Angela Paxton, also claimed that Republicans were in the middle of a battle “against spiritual forces of evil in the heavenly realms.” Far-right Catholics have mobilized against groups such as Catholic Charities, branding it an “enemy of the people” and calling for the defunding of bishops who assist migrants. In a 2022 interview with the right-wing group Church Militant, U.S. Rep. Marjorie Taylor Greene, R-Ga., claimed that Catholic Charities’ work was proof of “Satan controlling the church.”
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[l] at 7/3/24 3:00am
by Sergio Hernandez ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. The New York Police Department restored more than 2,000 previously missing discipline records to its public database of uniformed officers last month, weeks after a ProPublica report revealed data reliability issues that dogged the site for almost two years. The department also revamped the site, including removing case numbers, which will make it more difficult for the public to identify or track missing cases. When the revamped site was published two weeks ago, the number of cases dropped again. The system, known as the Officer Profile Database, was launched in 2021 after the New York state legislature repealed a law that, for decades, kept officer discipline records exempt from public disclosure. But a ProPublica analysis of more than 1,000 daily snapshots of the database found that, for almost two years, officers’ discipline records frequently vanished from the NYPD’s site for days — sometimes weeks — at a time, obscuring the misconduct histories for officers at all ranks, including its most senior uniformed officer. At that time, about half of cases that had at one point been in the system were missing. Since late April, the number of cases in the database has climbed steadily, suggesting the department may have resolved whatever issue previously caused cases to disappear from the system. An updated analysis shows the restoration of cases began around May 5, more than a week after ProPublica contacted the department for comment and four days before the news organization published its initial story. After ProPublica Story Reveals NYPD Database as Unreliable, Missing Discipline Records Reappear More than 2,000 previously missing discipline records have been restored to a New York Police Department database, just weeks after a ProPublica story revealed pervasive issues with the system’s reliability. (Chart: Sergio Hernandez. Source: <a href="https://github.com/ryanwatkins/nypd-officer-profiles">ProPublica analysis of archived NYPD data</a>.) Police officials did not respond to ProPublica’s repeated inquiries seeking to confirm why cases had been removed or restored. But the recent streak of steady or rising case numbers appears to be the longest such run in more than a year. That streak ended with the site update June 18; since then, the number of cases has again fallen by about 200 from its all-time high. Representatives for RockDaisy, the software vendor that developed the original system, also did not respond to multiple requests for comment. Last month’s software update appears to have removed all references to the company from the site’s source code, and the firm’s involvement with the latest version of the site is unclear. Lupe Aguirre, a senior staff attorney at the New York Civil Liberties Union, said she remains concerned that the database has been so inconsistent and, more broadly, that the department’s website discloses only a subset of all misconduct and discipline cases. “The fluctuation in the data is still concerning and reflects a continued pattern of secrecy in how the department handles disciplinary matters,” Aguirre wrote in an email. “New Yorkers deserve full transparency into the NYPD’s internal accountability systems, especially given the department’s culture of impunity.” Because the department’s database is designed to show discipline only for active officers, some cases relating to former officers might have been removed from the data over time. Yet that would have explained only a fraction of the missing cases. For most of the past year, at least a third of cases that had previously appeared in the database were missing. Those cases involved officers at all levels, including Chief of Department Jeffrey Maddrey, the force’s highest-ranking uniformed officer, and at least six deputy chiefs with prestigious assignments whose offenses ranged from discourteous behavior to drinking on duty and wrongful searches, frisks and uses of force. Police reform advocates, including Aguirre, previously argued that the database issues uncovered by ProPublica underscored the need for agencies to publish data through the city’s open-data program, as required by a 2012 law. A recent schedule of upcoming releases shows the NYPD’s officer profile data was supposed to be added by the end of 2023, but that still has not happened. The NYPD’s site and broader discipline process have come under scrutiny in recent days. City & State reported Friday that an administrative page on the site failed to require authentication, potentially allowing bad actors to tamper with the database’s records. And that same day, a ProPublica investigation, co-published with The New York Times, revealed how top police brass have secretly buried dozens of discipline cases involving NYPD officers. Their actions ensured that those cases would never appear in the online database.
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by ProPublica ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. In the wake of President Joe Biden’s poor debate performance, his opponents and most major media organizations have pointed out that he has done few interviews that give the public an opportunity to hear him speak without a script or teleprompters. Never miss the most important reporting from ProPublica’s newsroom. Subscribe to the Big Story newsletter. So much has been made of this limited access that the impressions from Special Counsel Robert K. Hur about his five hours of interviews with the president on Oct. 8 and 9 drove months of coverage. The prosecutor said Biden had “diminished faculties in advancing age” and called him a “well-meaning, elderly man with a poor memory.” Biden angrily dismissed these assertions, which Vice President Kamala Harris called “politically motivated.” House Republicans on Monday sued Attorney General Merrick B. Garland for audio recordings of the interview as the White House asserts executive privilege to deny their release. ProPublica obtained a rare interview with Biden on Sept. 29, nine days before the Hur interviews began. We released the video, which was assembled from footage shot by five cameras, on Oct. 1. We edited out less than a minute of crosstalk and exchanges with the camera people, as is customary in such interviews. Today, we are releasing the full, 21-minute interview, unedited as seen from the view of the single camera focused on Biden. We understand that this video captures a moment in time nine months ago and that it will not settle the ongoing arguments about the president’s acuity today. Still, we believe it is worth giving the public another chance to see one of Biden’s infrequent conversations with a reporter. The Interview With the Camera Focused on Biden The Interview as Published Conducting the interview was veteran journalist and former CNN White House correspondent John Harwood, who requested it and then worked with ProPublica to film and produce it. He did not send questions to the White House ahead of time, nor did he get approval for the topics to be discussed during the interview. Recording began as soon as Biden was miked and sitting in the chair that Friday at 2:50 p.m. Earlier that day, Biden’s press staff had said the president would have only 10 minutes for the interview, instead of the previously agreed upon 20 minutes. We requested that the interview go the full 20 minutes. You can hear during the unedited interview a couple of moments when White House staff interrupted to signal that the interview should come to a close. Biden seemed eager to continue talking. Do You Have a Tip for ProPublica? Help Us Do Journalism.
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[l] at 7/2/24 3:00am
by Irena Hwang, Sophie Chou and Duaa Eldeib ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. At her baby shower in the summer of 2019, Ava Jones’ smile radiated above the gingham dress that fell snug around her growing belly. Jones’ pregnancy had been smooth — not even morning sickness — until four days before her due date. That afternoon, she realized that she couldn’t feel her baby move. Jones and her husband, Gregory, rushed to their hospital in Dallas, where she labored for two days before she delivered her stillborn baby. They named their 6-pound, 4-ounce boy Giles, a nod to his father, who was also named for a saint. When a nurse placed Giles in her arms, he looked like he was sleeping. “Wake up,” his mother begged. “Please.” Nearly five years later, the keepsake box for her son has the pajamas they had packed in the hospital bag, a mold of his tiny hand and a small crochet pillow. But what was missing was an official record of his birth. Jones has no fetal death certificate, though Texas requires that one be completed within five days of a stillbirth. She said she was not asked for the necessary information while she was in the hospital and no one there told her how to request the document. First image: Ava Jones. Second image: A keepsake box that Jones keeps to remember Giles includes the pajamas she and her husband packed to bring to the hospital. (Nitashia Johnson, special to ProPublica) From a public health perspective, fetal death certificates provide essential data that helps shed light on stillbirth, the death of an expected child at 20 weeks or more of pregnancy. They serve as the underpinning for much of the research on stillbirth, as well as an evaluation of care in pregnancy and delivery. Tracking the cause of death is key to understanding how to prevent stillbirth, which research shows may be possible in nearly 1 in 4 stillbirths. ProPublica, which has spent the past two years reporting on stillbirths, has found that state and federal health agencies, lawmakers and local hospitals have failed to prioritize data collection needed to accurately track and understand stillbirth or provide parents with that critical information. Data is frequently incomplete and delayed and is sometimes inaccurate, particularly when it comes to cause of death. Data on stillbirth risk factors and race also is deficient. And it’s getting worse. A ProPublica analysis of data from the Centers for Disease Control and Prevention for 2019 through 2021 found that the records for more than a third of all 63,437 stillbirths in the U.S. were missing perhaps the most crucial information about the stillbirth: the cause of death. For those stillbirths that happened at 37 weeks or more, that proportion was even higher — and it’s rising, from 41% in 2019 to nearly 44% in 2021. Never miss the most important reporting from ProPublica’s newsroom. Subscribe to the Big Story newsletter. Even the threshold for reporting a stillbirth is not uniform. Some states use fetal weight as a requirement; others use weeks of pregnancy; some combine the two. “If we don’t have accurate data, we don’t know the scope of the problem and how to move forward,” said Lauren Christiansen-Lindquist, a maternal and child health epidemiologist and an associate professor at Emory University. “It’s really the foundation of our ability to make any difference in stillbirth rates in the U.S.” The National Institutes of Health, which last year released a study mirroring ProPublica’s reporting on stillbirth, has started the discussion about improving stillbirth data. In January, the Stillbirth Working Group of Council of the Eunice Kennedy Shriver National Institute of Child Health and Human Development discussed ways to address the data problems, beginning with standardizing the definition of stillbirth across states. Dr. George Saade, the co-lead of the Stillbirth Working Group’s data subgroup, said the health care system should be set up to give patients accurate information. “Except we suspend that expectation when it comes to stillbirth. That’s wrong, particularly given that this is such a devastating outcome,” said Saade, who is also chair of obstetrics and gynecology and associate dean for women’s health at Eastern Virginia Medical School. “We’re basically telling them it doesn’t matter.” State laws require all stillbirths to be reported, and federal law directs the CDC to collect and publish data on stillbirths. That data collection typically begins at the hospital when an employee gathers information from the pregnant person and her medical records; funeral directors and medical examiners may also provide information. That data is sent to the state health department, which ultimately forwards it to the CDC. But the process is fraught at nearly every level, from untrained hospital staff to state health departments not reporting large amounts of data. The CDC cautioned in a report last year that variation among states’ reporting requirements when it comes to stillbirths “can have implications for data quality and completeness.” In response to questions from ProPublica, a CDC spokesperson acknowledged challenges with data collection around stillbirths, saying the issue boils down to “lack of resources, which makes it difficult to prioritize fetal death data at both the state and federal levels.” Improving data collection is a key component to federal legislation championed by maternal health advocate Debbie Haine Vijayvergiya, whose daughter Autumn Joy was stillborn in 2011. The Stillbirth Health Improvement and Education (SHINE) for Autumn Act aims to improve the collection, reporting and timeliness of stillbirth data. It also increases education and awareness and paves the way for research and training in fetal autopsies. The bill, which would be the most comprehensive stillbirth legislation on record, is still pending in Congress. “Since Autumn died, I’ve been on this quest to understand why stillbirth has remained a tragically neglected public health crisis and what needs to change to address it,” she said. “I quickly learned how vital good data is in our efforts to improve stillbirth outcomes.” Minnesota is among the states that have made stillbirth data a priority. A small team there is responsible for data quality, which includes following up with hospitals if the fetal death information it receives is missing information. Less than two weeks before Jones’ stillbirth in Texas, Minnesota mother Kate Braun also delivered a stillborn boy at term. Braun and her husband, Jason, named him Isaac Edward, affectionately referring to him as Ike. When the doctor told Braun, who was nearly 38 weeks pregnant, that her baby had died, she threw up. Then she sobbed uncontrollably before throwing up again. Sue Steen, a nurse and stillbirth expert, walked Braun and her husband through the documents used to register the stillbirth with the state’s health department. They filled out two forms: one for the mother’s demographic information and another to capture the cause of death and medical information. Minnesota uses that information to create a fetal death record and, upon request from parents, a certificate of birth resulting in stillbirth. “There’s something powerful about it being a formal document,” Braun said. “We have very few physical things to point to that validate his existence.” First image: Kate Braun. Second image: The certificate of birth resulting in stillbirth for Braun’s son, Isaac Edward “Ike” Braun. (Caroline Yang, special to ProPublica) Not all causes of stillbirth can be determined. The CDC reported that in about 30% of stillbirths, the cause of death is unknown, and the way data is collected makes it difficult to know whether the cause couldn’t be medically determined or was just not recorded. A stunningly low number of autopsies exacerbates the problem, which is due in part to doctors not always offering the procedure to families and the federal government not covering its cost. The CDC excludes states that have more than half of cases with unknown causes from its analysis. ProPublica found at least 10 states that did not meet that bar. In at least one year between 2019 and 2021, Georgia, Hawaii, Michigan, Mississippi, North Carolina, North Dakota, Vermont, Arizona, Wisconsin and New York were flagged for having insufficient data. States registered the stillbirths but in many cases could not check off any of the dozens of causes that led to them because that information was not provided. State officials provided a variety of reasons for the lack of information. Although the hospital, doctor or parents in Arizona can submit the cause of death, “they often do not,” a spokesperson for the state Department of Health Services said. In hopes of improving its data quality, the state is working on hiring staff to reach out to the facilities that report data to the health department. In Mississippi, which consistently has the worst stillbirth rate in the country, a state health department spokesperson said the agency doesn’t know if the information was not available or if the person completing the certificate didn’t retrieve it from the patient’s chart. And while it’s possible to amend the fetal death certificate if the cause is later determined, it almost never happens, in part because the process often requires the person who signed the certificate to update it. Between 2019 and 2021 in Georgia, for instance, only 18 of nearly 2,000 stillbirths in the state that were missing a cause of death were updated. Cause of death is only one of the many data points missing from stillbirth records. Year after year, states lacked data on crucial risk factors that could illuminate why a stillbirth happened, including cigarette smoking, diabetes, previous preterm births and blood pressure disorders. In 2021, Washington state didn’t include any maternal risk factors in nearly 36% of stillbirths. Rhode Island was missing a similar percentage of information about cigarette use. And Washington, D.C., lacked information in more than 40% of its records about maternal prepregnancy weight, despite obesity being a risk factor for stillbirth. In addition, important fetal data, such as information that could help indicate whether the fetus was growing as expected — another significant risk factor — was absent in many states. In 2021, New York — excluding New York City — Washington and Colorado were each missing birth weight in more than 20% of stillbirth records. That year, Hawaii was missing birth weight data in nearly 60% of cases. More than 1,800 stillbirths nationally were missing race data in 2021, an increase from previous years. Race information is critical when considering the stark racial disparities in stillbirths overall and term stillbirths specifically. In an analysis for this story, ProPublica found that non-Hispanic Black women were about 1 1/2 times as likely as non-Hispanic white women to deliver a stillborn baby at or near their due date. Non-Hispanic Native Hawaiian or other Pacific Islander women were 2 1/2 times as likely to, compared with non-Hispanic white women. Dr. Joy-Sarah Vink, a maternal fetal medicine specialist at Kapi‘olani Medical Center for Women & Children in Honolulu, wants to see stillbirth data reporting improve, especially when it comes to Native Hawaiian or other Pacific Islander women, who have among the highest rates of stillbirth in the U.S. “There is no formal training for medical staff, no standardized training across the states as to how to best approach that,” she said. As a Black woman, Jones had braced herself for the possibility of preeclampsia, a potentially fatal blood pressure condition that occurs during pregnancy that Black women are more likely to experience than white women. But she said no one told her about the risk of stillbirth, and especially not that it could happen days before her due date. Jones and her husband, Gregory, playing with their two boys, Kalan and Lawrence (Nitashia Johnson, special to ProPublica) Texas, like many states, requires a fetal death certificate to be completed within five days of the death and workers to ask parents for help with multiple fields, including mother’s race. But Jones said no one ever asked her for that information. Even in her pain, she said she wished they would have. Jones went on to have two more boys, Kalan and Lawrence. But after years without a certificate for Giles that she could safely tuck away with her other sons’ birth certificates, she put in an expedited request in March to the Texas Department of State Health Services. In June, she received a certificate of birth resulting in stillbirth but has yet to get the fetal death certificate. A Texas spokesperson said the agency cannot locate her request for the fetal death certificate but offered to expedite one. He said he understands the value of the document for grieving parents. “It’s meaningful documentation,” Jones said. “It’s the legal proof of him existing.” A certificate also would have saved her from uncomfortable conversations and the constant anguish of reliving her son’s death. Before Giles was born, she and her husband had reserved a spot for him at a day care center. After his stillbirth, Jones mustered the courage to call and tell them they wouldn’t need it anymore. “Don’t go somewhere else,” the employee told her, thinking she had chosen another day care. “No, no,” Jones sputtered. Finally, she blurted out words no mother wants to say. “He died.”
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[l] at 7/1/24 4:00am
by Alec MacGillis ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. This story is exempt from our Creative Commons license until Oct. 29, 2024. Drive an hour south of Nashville into the rolling countryside of Marshall County, Tennessee — past horse farms, mobile homes and McMansions — and you will arrive in Chapel Hill, population 1,796. It’s the birthplace of Confederate Gen. Nathan Bedford Forrest, who helped found the Ku Klux Klan. And it’s the home of Todd Warner, one of the most unlikely and important defenders of America’s besieged public schools. Warner is the gregarious 53-year-old owner of PCS of TN, a 30-person company that does site grading for shopping centers and other construction projects. The second-term Republican state representative “absolutely” supports Donald Trump, who won Marshall County by 50 points in 2020. Warner likes to talk of the threats posed by culture-war bogeymen, such as critical race theory; diversity, equity and inclusion; and Shariah law. And yet, one May afternoon in his office, under a TV playing Fox News and a mounted buck that he’d bagged in Alabama, he told me about his effort to halt Republican Gov. Bill Lee’s push for private school vouchers in Tennessee. Warner’s objections are rooted in the reality of his district: It contains not a single private school, so to Warner, taxpayer money for the new vouchers would clearly be flowing elsewhere, mostly to well-off families in metro Nashville, Memphis and other cities whose kids are already enrolled in private schools. Why should his small-town constituents be subsidizing the private education of metropolitan rich kids? “I’m for less government, but it’s government’s role to provide a good public education,” he said. “If you want to send your kid to private school, then you should pay for it.” The coronavirus pandemic provided a major boost to supporters of school vouchers, who argued that extended public school closures — and the on-screen glimpses they afforded parents of what was being taught to their kids — underscored the need to give parents greater choice in where to send their children. Eleven states, led by Florida and Arizona, now have universal or near-universal vouchers, meaning that even affluent families can receive thousands of dollars toward their kids’ private school tuition. The beneficiaries in these states are mostly families whose kids were already enrolled in private schools, not families using the vouchers to escape struggling public schools. In larger states, the annual taxpayer tab for the vouchers is close to $1 billion, leaving less money for public schools at a time when they already face the loss of federal pandemic aid. Voucher advocates, backed by a handful of billionaire funders, are on the march to bring more red and purple states into the fold for “school choice,” their preferred terminology for vouchers. And again and again, they are running up against rural Republicans like Warner, who are joining forces with Democratic lawmakers in a rare bipartisan alliance. That is, it’s the reddest regions of these red and purple states that are putting up some of the strongest resistance to the conservative assault on public schools. Never miss the most important reporting from ProPublica’s newsroom. Subscribe to the Big Story newsletter. Conservative orthodoxy at the national level holds that parents must be given an out from a failing public education system that force-feeds children progressive fads. But many rural Republican lawmakers have trouble reconciling this with the reality in their districts, where many public schools are not only the sole educational option, but also the largest employer and the hub of the community — where everyone goes for holiday concerts, Friday night football and basketball. Unlike schools in blue metro areas, rural schools mostly reopened for in-person instruction in the fall of 2020, and they are far less likely to be courting controversy on issues involving race and gender. Demonizing public education in the abstract is one thing. But it’s quite another when the target is the school where you went, where your kids went. For Todd Warner, that was Forrest High School in Chapel Hill. “My three kids graduated from public schools, and they turned out just fine,” he said. “Ninety-five percent of our students, our future business owners, our future leaders, are going to the public schools. They’re not going to private. Why take it away from them?” Warner and two of his children attended Forrest High School in Chapel Hill, Tennessee. (Whitten Sabbatini) The response from voucher proponents to the resistance from fellow Republicans has taken several forms, all of which implicitly grant the critics’ case that voucher programs currently offer little benefit to rural areas. In some states, funding for vouchers is being paired with more money for public schools, to offer support for rural districts. In Ohio, voucher advocates are proposing to fund the construction of new private schools in rural areas where none exist, giving families places to use vouchers. But the overriding Republican response to rural skeptics has been a political threat: Get with the program on vouchers, or else. That’s what played out this year in Ohio’s 83rd District, in the state’s rural northwest. Last summer, Ohio adopted universal private school vouchers, with middle- and working-class families eligible for up to $8,407 per high school student and even the very wealthiest families eligible for almost $1,000 per child. Private school leaders urged already enrolled families to seek the money, and more than 140,000 families applied for vouchers. The cost has exceeded estimates, approaching $1 billion, with most of it going to the parochial schools that dominate the state’s private school landscape. Voucher advocates are now pushing to create educational savings accounts to cover tuition at unchartered private schools that are not eligible for the vouchers. School leaders in Hardin County — with its cornfields, solar panel installations and what was once one of the largest dairy farms east of the Mississippi — are deeply worried that vouchers stand to hurt county residents. Only a single small private school is within reach, one county to the south, which means that virtually no local taxpayers would see any of that voucher money themselves — it would be going to private school families in Columbus, Cincinnati and other large population centers. (And under Ohio law, the very public schools that are losing students must pay to transport any students who attend private institutions within a half-hour drive of the public school.) Chapel Hill (Whitten Sabbatini) Craig Hurley, the superintendent for Hardin’s Upper Scioto Valley District, is a solidly built 52-year-old who calls himself a staunch conservative. He attended the district’s schools and has worked in them for 30 years. He knows that they provide meals to 400 students, nearly two-thirds of whom qualify for free and reduced lunch. Even though the high school can muster only 20 players for football — basketball fares better — the fans come out to cheer. “Our district is our community,” he told me. “The more you separate that, the less of a community we’re going to be.” Hurley has calculated that local schools are receiving less state funding per student than what private schools now receive for the maximum possible voucher amount. Yet private schools face almost none of the accountability that public schools do regarding how the money is spent and what outcomes it achieves. “We have fiscal responsibility on all of it, on every dime, every penny we spend,” he said. “There’s no audit for them.” Not to mention, he added, “a private school doesn’t have to accept all students, right? They pick who they want.” Thirteen miles east, Chad Thrush, the school superintendent in Kenton, the county seat, noted that his school system is the second-largest employer in town, after Graphic Packaging, which makes plastic cups for vending machines. He worries that the rising cost of the voucher program will erode state funding for public schools, and he worries about what would happen to his district if a new private school opened in town. Thrush understands the appeal of vouchers for parents who want a leg up for their kid. But, he told me, “we need to be looking at how we’re preparing all students to be successful, not just my student.” As it happens, the two superintendents have a crucial ally in Columbus: their state representative, Jon Cross. Like Warner in Tennessee, Cross is an ardent pro-Trump conservative and deeply opposed to private school vouchers. At a legislative hearing last year, he cut loose at a lobbyist for Americans for Prosperity — the conservative advocacy group founded by the industrialist Koch brothers — who was testifying for vouchers, one of the organization’s long-standing causes. “Wouldn’t we be better off taking some money in our budget to fix the schools?” Cross said. “I tell you what, I really like my public schools. I’m really proud that Carson and Connor, my sons, go to Kenton City Schools and get an education from there just like I did.” Cross’ resistance to vouchers earned him the animus of the state Senate president, Matt Huffman, an avid voucher proponent. Huffman encouraged a primary challenge of Cross. So greatly did local school officials value Cross’ support that shortly before the March 19 primary, they held a public meeting to explain the threat vouchers posed, with Cross in attendance. “If the economy goes bad, are we going to pull $1 billion out for private schools?” Thrush said. Or, he continued, would the public schools be left with less money? The schools in Hardin and Marshall counties are majority white. But some rural Republican legislators in other states have been willing to buck their party leaders on vouchers even in more racially diverse districts. In Georgia, of the 15 Republican state representatives who blocked a voucher proposal last year, more than half came from rural areas with substantial Black populations. One of them was Gerald Greene, who spent more than three decades as a high school social studies teacher and has managed to survive as a Republican in his majority-Black district in the state’s southwestern corner after switching parties in 2010. Greene believes vouchers will harm his district. It has a couple of small private schools in it or just outside it — with student bodies that are starkly more white than the district’s public schools — but the majority of his constituents rely on the public schools, and he worries that vouchers will leave less money for them. “I just felt like we were abandoning our public schools,” he told me. “I’m not against private schools at all, but I just did not see how these vouchers would help southwestern Georgia.” After failing to pass a voucher program last year, the state’s Republican governor, Brian Kemp, and proponents in the legislature tried again this year, and this time they succeeded, albeit with vouchers more constrained than elsewhere: They can be used only by students in school districts that are ranked in the bottom quartile and whose families make less than 400% of the poverty level ($120,000 for a family of four), and their total cost can’t exceed 1% of the state’s total education budget, which caps them now at $140 million. Partisan pressures simply became too strong for some skeptical Republicans, including Greene’s counterpart in the Senate, Sam Watson. Seminole County Superintendent Mark Earnest told me about the conversation in which Watson let him know that he was going to have to support the limited vouchers. “They have turned this into a caucus priority. It’s getting very political,” Watson said. “Thanks for letting me know,” Earnest replied, “but all vouchers are bad for public education.” Watson’s response: “I know, but I couldn’t go with the Democrats. Sorry.” (Watson did not respond to a request for comment.) The highest-profile rural Republican resistance to vouchers has come in Texas, the land of Friday Night Lights and far-flung oil country settlements where the public schools anchor communities. Late last year, the Texas House voted 84-63 to strip vouchers out of a broad education bill. In response, Gov. Greg Abbott launched a purge of anti-voucher Republicans in this year’s primaries, backed by millions of dollars from the Pennsylvania megadonor Jeff Yass, a finance billionaire. Among those targeted was Drew Darby, who represents a sprawling 10-county district in West Texas and who frames the issue in starkly regional terms: The state’s metro areas depend on his constituents to provide “food, fiber and hide,” to “tend the oil wells and wind turbines to provide electricity to people who want to be just a little cooler in the cities.” But without good public schools, these rural areas will wither. “Robert Lee, Winters, Sterling, Blackwell,” he said, listing some hamlets — “these communities exist because they have strong public schools. They would literally not exist without a good public school system.” Darby, a fiscal conservative, is also opposed to a new entitlement for private school families that is projected to soon cost $2 billion a year. “In rural Texas, there’s not a whole lot of private school options, and we want our schools to get every dollar they can. This doesn’t add $1, and it’s not good for rural Texas.” Darby managed to stave off his primary challenge, but 11 of the 15 voucher resisters targeted by Abbott lost, several in races so close that they went to a runoff. Abbott is unapologetic: “Congratulations to all of tonight’s winners,” he said after the runoff. “Together, we will ensure the best future for our children.” Also succumbing to his primary challenger was Jon Cross, in western Ohio. His opponent, Ty Mathews, managed to make the campaign about more than just vouchers, taking sides in a bitter leadership split within the GOP caucus. And for all the concerns that local school leaders have about the effect of vouchers, the threat remained abstract to many voters. “I’m not worried about it, because we don’t have the revenue here anyways in this town for anything to be taken from us to be given to a bigger town,” one 60-year-old woman told me after casting her vote for Mathews. A younger woman asked simply: “What exactly are the vouchers?” Warner, outside the office of his construction company (Whitten Sabbatini) But in Tennessee, Todd Warner and his allies staved off the threat again this year. To overcome rural resistance, voucher proponents in the Tennessee House felt the need to constrain them and pair them with hundreds of millions of dollars in additional funding for public schools, but this was at odds with the state Senate’s more straightforward voucher legislation. The two chambers were unable to come to an agreement before the session’s end in April, by which point the House bill had not even made it to the floor for a vote. For Democratic voucher opponents in the state, the alliance with Warner and other rural Republicans was as helpful as it was unusual. “It was strange,” Rep. Sam McKenzie, a Black Democrat from Knoxville, told me. McKenzie compared it to “Twins,” a movie in which Arnold Schwarzenegger and Danny DeVito played unlikely fraternal twins: “Representative Warner and I were in lockstep opposition to this voucher scam.” One voucher supporter, Rep. Scott Cepicky, told me he was confident that his side would eventually prevail. “We’ll work on this again next year,” he said. “The governor is committed that we’re going to run on school choice again.” And Americans for Prosperity has made clear that it’s coming after voucher opponents. Its Tennessee state director, Tori Venable, told Warner during the legislative session that “I can’t protect you if you ain’t on the right side of this.” Another conservative group, the American Federation for Children, sent out a text message in March attacking Warner for his opposition to “parental rights,” without using the term vouchers. And a retired teacher in Marshall County, Gwen Warren, told me she and her husband recently got a visit from an Americans for Prosperity canvasser citing Warner’s opposition to vouchers. “She said: ‘We’re going around the neighborhood trying to talk to people about vouchers. We feel like Tennesseans really want the voucher system.’” To which, Warren said, her husband replied: “You’re very much mistaken, lady. We don’t want vouchers in this county, and you need to go away.” Warner remains unfazed by all this. He is pretty sure that his voucher opposition in fact helped him win his seat in 2020, after the incumbent Republican voted for a pilot voucher system limited to Nashville and Memphis. And he notes that no one has registered to challenge him in the state’s Aug. 1 primary. “They tried to find a primary opponent but couldn’t,” he said with a chuckle. “I was born and raised here all my life. My family’s been here since the 18th century. I won’t say I can’t be beat, but bring your big-boy pants and come on, let’s go.” Help ProPublica Report on Education
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[l] at 6/29/24 4:00am
by Nicole Santa Cruz ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. The U.S. Supreme Court’s decision to give cities broader latitude to punish people for sleeping in public when they have no other options will likely result in municipalities taking more aggressive action to remove encampments, including throwing away more of homeless people’s property, advocates and legal experts said. In its 6-3 decision on Friday, the conservative majority upheld Grants Pass, Oregon’s ban on camping, finding laws that criminalize sleeping in public spaces do not violate the Eighth Amendment’s protections against cruel and unusual punishment. Writing for the majority, Justice Neil Gorsuch said that the nation’s policy on homelessness shouldn’t be dictated by federal judges, rather such decisions should be left to state and local leaders. “Homelessness is complex,” Gorsuch wrote. “Its causes are many. So may be the public policy responses required to address it.” “At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not,” he wrote. A lower court ruling that prevented cities from criminalizing the conduct of people who are “involuntarily homeless” forced the U.S. Court of Appeals for the 9th Circuit to confront what it means to be homeless with no place to go and what shelter a city must provide, Gorsuch wrote. “Those unavoidable questions have plunged courts and cities across the Ninth Circuit into waves of litigation,” he wrote. In a dissenting opinion, Justice Sonia Sotomayor wrote that, for some people, sleeping outside is a “biological necessity” and it’s possible to balance issues facing local governments with constitutional principles and the humanity of homeless people. “Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested,” she wrote. Criminalizing homelessness can “cause a destabilizing cascade of harm,” Sotomayor added. When a person is arrested or separated from their belongings, the items that are frequently destroyed include important documents needed for accessing jobs and housing or items required for work such as uniforms and bicycles, Sotomayor wrote. Advocates and experts said that since the ruling allows municipalities to issue more citations and arrests without violating the Eighth Amendment, the decision could lead to more legal claims over other constitutional protections, which could include the disposal of people’s property during encampment removals. Other legal claims over cities’ treatment of homeless people have focused on rights protecting against unreasonable search and seizure and guaranteeing due process, in the Fourth and 14th Amendments. Never miss the most important reporting from ProPublica’s newsroom. Subscribe to the Big Story newsletter. “There will be even more of these sweeps and attempts to just close down encampments or harass people who are living on the streets to just basically make them become less visible, maybe leave town,” said Stephen Schnably, a law professor at the University of Miami who has advocated for the rights of homeless people in lawsuits. If more cities enact camping bans, which could require an increased law enforcement response, those interactions could lead to loss of property, said Ann Oliva, the CEO of the National Alliance to End Homelessness. The ruling “opens that door,” she said. ProPublica has been reporting on the impact of encampment removals and recently found that the city of Albuquerque, while removing homeless encampments, had discarded personal property in violation of city policy and a court order that has since been lifted. Some people told ProPublica that they had belongings discarded multiple times by city crews. They described losing survival gear, including tents and sleeping bags during freezing weather; important documents such as birth certificates; and irreplaceable mementos like family photos. Recently, dozens of people with lived experience and advocates from across the country have described to ProPublica having their property discarded during encampment removals. Legal experts said the practical implications of the decision is that it empowers local governments to issue citations and make arrests with the possibility of jail time. Donald Whitehead, the executive director of the National Coalition for the Homeless, said he expects it will cause communities to think criminalization is the “right direction” and dissuade policymakers from developing new ways to provide more affordable housing. “Why come up with innovative, creative solutions when you can simply raid encampments and put people in jail,” he said. Whitehead said he is worried that the ruling will lead homeless people to become more isolated and vulnerable to crime. States have already enacted new legislation that criminalizes camping on public land. A new Florida law, which takes effect Oct. 1, prohibits counties and municipalities from allowing camping or sleeping on public property. The law directs the state’s Department of Children and Families to certify designated camping areas for people experiencing homelessness. Beginning in January, private citizens, business owners or the state attorney general can sue if a county or municipality fails to adhere to the law. Kentucky lawmakers overrode a veto by Gov. Andy Beshear, a Democrat, to enact the Safer Kentucky Act, which makes camping on certain private and public property a misdemeanor after multiple violations. The law also allows property owners to use deadly force against people who are illegally camping and goes into effect in July. Grants Pass, a city of about 39,000, along with a large number of cities and states, asked the Supreme Court to hear the case, arguing that a 2018 lower court ruling, Martin v. Boise, prevented cities across the West from responding to the growth of encampments. The 9th Circuit — covering states with some of the highest populations of people experiencing unsheltered homelessness, including California, Oregon and Washington — ruled that homeless people cannot be punished for sleeping outdoors on public property if they don’t have anywhere else to go. In its appeal to the Supreme Court, Grants Pass argued that the status quo harms local governments, residents and people experiencing homelessness. “Public camping laws” are a “critical (and constitutional) backstop” to halt the growth of encampments, lawyers wrote. “Even when coupled with offers of shelter and other services, efforts to enforce common sense camping regulations have been met with injunctions.” The lawyers representing people experiencing homelessness argued that the 9th Circuit ruling did not deprive cities of their ability to clear encampments. Lawyers pointed out that Grants Pass had continued to dismantle encampments throughout the legal proceedings, “as it is free to do.” “That is a policy choice not a judicial mandate,” the lawyers wrote, adding the politicians have “chosen to tolerate encampments” instead of addressing the West’s severe housing shortage. Jesse Rabinowitz, communications director for the National Homelessness Law Center, said the Supreme Court’s decision empowers cities and states to play a “national game of human Whac-A-Mole and continually do what they were very clear they wanted to do in Grants Pass, which is to push people into another town. We would see that happening on a national level.” Bob Erlenbusch, a board member for the National Coalition for the Homeless who has advocated for homeless people for four decades, said that since the Martin v. Boise decision, cities have found other ways to criminalize homelessness and clear encampments. “It’s an everyday occurrence that encampments are swept,” Erlenbusch said, describing city workers in Sacramento, California, who use bulldozers and shovels and in the process destroy belongings. “And that will increase around the country.” In an amicus brief in the Grants Pass case, the Western Regional Advocacy Project, an organization led by people with experience living on the streets, described a winter encampment removal in Denver where people lost “food, essential paperwork, sleeping bags, clothing, work tools, medication, identification, blankets, survival gear and more.” Sara Rankin, a law professor with Seattle University who contributed to the amicus brief and studies the criminalization of homeless people, said the court’s Friday ruling will embolden the dehumanization of unsheltered people. “Cities have always had the ability to sweep and they continue to do that at reckless paces,” she said. “What happens to people? Will people be more harmed as a result? I would say that is a very, very deep concern.” Have You Experienced Homelessness? Do You Work With People Who Have? Tell Us About Encampment Removals. Ruth Talbot contributed reporting.
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[l] at 6/29/24 3:00am
by Jessica Miller, The Salt Lake Tribune This article was produced by The Salt Lake Tribune, which was a member of ProPublica’s Local Reporting Network in 2022 and 2023. Sign up for Dispatches to get stories like this one as soon as they are published. Utah OB-GYN David Broadbent was charged Thursday with forcible sexual abuse, as prosecutors allege he sexually touched a patient during a 2020 exam. Broadbent has been accused in civil lawsuits of inappropriately touching more than 100 patients during exams — but this is the first time Utah County prosecutors have filed a criminal charge against him. He faces a second-degree felony, which carries a potential penalty of up to 15 years in prison. Over the past year, The Salt Lake Tribune and ProPublica have reported multiple stories about the difficulties women faced as they raised complaints of sexual misconduct against Broadbent, including obstacles in the courts and in reporting to police. In charging records, prosecutors say one of Broadbent’s patients came to see him in 2020 regarding a bump in her vaginal area. Broadbent allegedly instructed the patient to undress from the waist down — but when he returned to the exam room after she changed, prosecutors say he lifted up her shirt and bra and touched her breasts. He then grabbed her leg “in what felt like a sexual manner,” prosecutors say, and began a vaginal examination. An attorney representing Broadbent in his civil litigation did not respond to a request for comment. No attorney is yet listed in his criminal case. Deputy Utah County Attorney Tim Taylor, who is a spokesperson for the prosecutor’s office, said Thursday that police and prosecutors are continuing to investigate and are still considering whether to file additional charges against the OB-GYN. Sign up for Dispatches, a weekly ProPublica newsletter about wrongdoing in America. At least 49 women have reported to the Provo police that Broadbent sexually abused them during exams, and prosecutors have been weighing whether to file charges for 18 months. This month, the county attorney’s office agreed to pay for a nurse practitioner who specializes in sexual assault exams to review the evidence that prosecutors have and to do research and advise them on what the standard of care is for an OB-GYN appointment. Many of the women who made reports to the police allege Broadbent inappropriately touched their breasts, vaginas and rectums during exams — often without warning or explanation and in ways that hurt them and made them feel violated. Other former patients, along with many of the women who went to the police, have also sued Broadbent or the hospitals where he worked, with a total of nearly 120 women making sexual assault allegations in two civil lawsuits. In September 2022, a judge dismissed one of the civil cases, which was filed by 94 women, when he ruled that it fell under medical malpractice law instead of a civil sexual assault claim. That meant it had faced — and missed — tighter filing deadlines. The women have appealed the ruling to the Utah Supreme Court, and they have been waiting for seven months for its decision. In a different civil suit, 20 other women sued two hospitals where Broadbent worked and had privileges at, alleging they knew of alleged misconduct and failed to act. That case is still pending; the hospitals have argued in court records that Broadbent’s alleged actions against these women didn’t take place on their premises and therefore they are not liable. Broadbent has agreed to stop practicing medicine while this criminal investigation is ongoing. In response to the civil case filed by the group of 94 women, Broadbent’s attorneys have said sexual assault allegations against him are “without merit.” The woman whose report led to the criminal charge saw Broadbent in July 2020. A year and a half later, in December 2021, another former patient of Broadbent’s spoke out publicly on the podcast “Mormon Stories,” describing the painful way she said he had examined her years before and how it left her feeling traumatized. After the podcast aired, women started coming forward publicly in civil lawsuits accusing Broadbent of inappropriate touching. Former patients also started making reports with the police, though it’s not clear from court records when the woman whose report led to the criminal charge went to law enforcement.
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[l] at 6/28/24 3:00am
by T. Christian Miller ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. In 2020, Congress passed the No Surprises Act to protect patients from exorbitant medical bills that had burdened Americans with tens of thousands of dollars in debt. The law was designed to decrease the charges for patients treated by an out-of-network doctor during medical emergencies. Such ER visits often left people vulnerable to so-called surprise bills, in which their insurer would only pay a portion of the expensive treatment. One of the biggest health care reforms since Obamacare, the No Surprises Act appears to have worked in one important sense. Patients have reported fewer crippling bills. Although little hard data exists, an insurance industry survey found that consumers avoided some 10 million surprise bills in the first nine months of 2023. A think tank report also suggests that people are paying less for the care they receive in the ER and other medical situations covered by the law, such as air ambulance trips. But a cumbersome government system to resolve payment disputes between doctors and insurers now threatens to undermine the law’s promise, according to interviews with industry players, recent data analyses and government documents. One potential outcome: higher insurance premiums for everyone. Another: fewer physicians available to treat rural populations. Doctors said that insurance companies have been abusing the system to lower payments, stiff medical practices and kick physicians out of their networks. “I’m trying to think of a polite word to describe the experience, but it has been just chaotic and inefficient,” said Dr. Andrea Brault, the head of the Emergency Department Practice Management Association, a physicians’ trade group. “It’s a costly, lengthy process.” Insurers, however, charged that big physician groups — some of them owned by private equity investors — are trying to manipulate the process to squeeze out higher payments. “A small but significant number of bad actors” have flooded the system with cases “as a way to maximize revenue,” said Kelly Parsons, a spokesperson for the Blue Cross Blue Shield Association. “Should this trend continue, health care costs are likely to rise unnecessarily.” An official at the Centers for Medicare & Medicaid Services said the rising number of disputes was a byproduct of the law’s success. Never miss the most important reporting from ProPublica’s newsroom. Subscribe to the Big Story newsletter. “The No Surprises Act is protecting millions of patients from surprise medical bills when they experience an emergency or get care from an out-of-network provider at an in-network facility,” said Jeff Wu, the deputy director of policy of CMS’ Center for Consumer Information and Insurance Oversight. “The incredibly large volume of disputes submitted since the law’s surprise billing protections became effective demonstrates the need for this law.” For decades, private insurance customers had to worry about receiving giant bills from using out-of-network doctors, who typically charge more for services. This was especially true when they had to go to an emergency room, where people have little ability to choose which doctor or hospital to treat them. The No Surprises Act aimed to fix the problem by protecting ER patients so that they would get billed essentially the same as if they received care from in-network physicians and hospitals. The law radically changed the dynamics of billing disputes. “Before the No Surprises Act, you had doctors and physicians fighting, with patients stuck in the middle. Now you just have doctors and insurers fighting,” said Zack Cooper, a professor of public health and economics at Yale whose research helped shape the law. Under the law, out-of-network doctors or hospitals invoice insurers, which counter with their own offer. Some 80% of claims are resolved this way, according to the survey conducted by the insurance trade groups. But when the two sides can’t agree, they go to battle in a system created by the CMS and other government agencies. There, an independent arbiter weighs various factors and determines the final payment amount. This arbitration is at the heart of many of the law’s unintended consequences. Originally, the government estimated there would be about 17,000 cases a year. But in 2023, almost 680,000 were filed, according to data released in June. The result is an enormous backlog that has slowed payments to doctors, hospitals and medical groups. Decisions are supposed to take 30 days. Since 2022, however, more than half of the cases remain unresolved. Some have lasted more than nine months. Wu said that arbiters have “scaled up their operations” to reduce the delays. In addition, the law has been challenged repeatedly in court — health care provider associations and air ambulance groups have filed nearly 20 lawsuits involving the No Surprises Act, according to legal experts at the O’Neill Institute for National and Global Health Law. Two cases have overturned the initial CMS guidelines governing the arbitration. The agency has been forced to make numerous adjustments to the process that have contributed to the long delays. The most heated debate over the dispute system surrounds the payment and enforcement of arbiters’ decisions. Federal health officials at first thought that the law would help lower the cost of medical care. Instead, arbiters have awarded higher amounts to doctors and other providers than expected — potentially driving up insurance premiums. “The most likely outcome is that this law doesn’t save consumers on net and potentially pushes in the opposite direction,” said Loren Adler, a researcher at the Center on Health Policy at Brookings, which issued a recent study on the possibility. While the amounts are higher than expected, they remain lower than what doctors’ groups have billed. Doctors charge that insurance companies are submitting artificially low payment amounts. As proof, they point to data from June that shows arbiters rule in favor of doctors the vast majority of the time. Still, overall, providers have seen nearly a 40% decrease in reimbursements since the law took effect in 2022, according to a recent survey by the emergency physicians trade group. At least one doctors’ group, Envision Healthcare, mentioned the No Surprises Act as one of the reasons it filed for bankruptcy. (The company has since emerged from court oversight.) If revenue decreases continue, some doctors’ groups may have to cut back on services. This would most likely be felt in rural hospitals, which often operate with thin profit margins and already have difficulty recruiting ER doctors. “This is threatening to the sustainability of many, many practices,” said Randy Pilgrim, the enterprise chief medical officer for SCP Health, which provides doctors to emergency rooms across the country. “There have been few practices in the over 30 states where we operate that haven’t been affected by this.” Doctors have also said that insurance companies are making late or incomplete payments after decisions by the arbiter. Complaints to CMS have been ignored, doctors said. Wu, the CMS official, said the agency actively investigates complaints under its jurisdiction. It is also not clear whether courts can force an insurance company to pay. Pilgrim said his company had submitted almost 75,000 letters to insurance companies pleading for reimbursements after winning an arbitration decision. “There’s very little teeth” in the process, he said. “You just continue to plead your case and hope you get somewhere.” Do You Have Insights Into Dental and Health Insurance Denials? Help Us Report on the System.
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[l] at 6/27/24 3:00am
by Eric Umansky ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. This article was published in partnership with The New York Times. Brianna Villafane was in Lower Manhattan protesting police violence in the summer of 2020, when officers charged into the crowd. One of them gripped her hair and yanked her to the ground. Never miss the most important reporting from ProPublica’s newsroom. Subscribe to the Big Story newsletter. “I felt someone on top of me and it was hard to breathe,” she said. “I felt like I was being crushed.” The New York City civilian oversight agency that examines allegations of police abuse investigated and concluded that the officer had engaged in such serious misconduct that it could constitute a crime. Villafane received a letter from the agency about its conclusions. “I was happy and I was relieved,” she recalled. The next step would be a disciplinary trial overseen by the New York Police Department, during which prosecutors from the oversight agency would present evidence and question the officer in a public forum. New York’s civilian oversight agency found that an NYPD officer engaged in misconduct when he grabbed Brianna Villafane by the hair during a protest. (Stephanie Mei-Ling, special to ProPublica) Then last fall, the police commissioner intervened. Exercising a little-known authority called “retention,” the commissioner, Edward Caban, ensured the case would never go to trial. Instead, Caban reached his own conclusion in private. He decided that it “would be detrimental to the Police Department’s disciplinary process” to pursue administrative charges against the officer, Gerard Dowling, according to a letter the department sent to the oversight agency. The force that the officer used against Villafane was “reasonable and necessary.” The commissioner ordered no discipline. Today, Dowling is a deputy chief of the unit that handles protests throughout the city. Video Taken by a Civilian Shows NYPD Officer Gerard Dowling Grabbing Brianna Villafane’s Hair During a Protest (Courtesy of Brandon Remmert) Watch video ➜ His case is one of dozens in which Caban has used the powers of his office to intervene in disciplinary cases against officers who were found by the oversight agency to have committed misconduct. Since becoming commissioner last July, he has short-circuited cases involving officers accused of wantonly using chokeholds, deploying Tasers and beating protesters with batons. A number of episodes were so serious that the police oversight agency, known as the Civilian Complaint Review Board, concluded the officers likely committed crimes. As is typical across the United States, New York’s police commissioner has the final say over officer discipline. Commissioners can and often do overrule civilian oversight boards. But Caban’s actions stand out for ending cases before the public disciplinary process plays out. “What the Police Department is doing here is shutting down cases under the cloak of darkness,” said Florence L. Finkle, a former head of the CCRB and current vice president of the National Association for Civilian Oversight of Law Enforcement. Avoiding disciplinary trials “means there’s no opportunity for transparency, no opportunity for the public to weigh in, because nobody knows what’s happening.” Indeed, the department does not publish the commissioner’s decisions to retain cases, and the civilian oversight agency makes those details public only months after the fact. Civilians are not told that the Police Department ended their cases. To piece together Caban’s actions, ProPublica obtained internal records of some cases and learned details of others using public records, lawsuits, social media accounts and other sources. Retention has been the commissioner’s chief method of intervention. He has prevented the cases of 54 officers from going to trial in his roughly one year in office — far more than any other commissioner, according to an analysis of CCRB data. His predecessor, Keechant Sewell, did it eight times in her first year, even as she faced more disciplinary cases. In addition, under Caban, the Police Department has failed to notify officers that the oversight agency has filed charges against them — a seemingly minor administrative matter that can actually hold up the disciplinary process. The rules say that without this formal step, a departmental trial cannot begin. Seven cases have been sitting with the department since last summer because it has never formally notified the officers involved, according to the CCRB. These cases are particularly opaque, as there is no publicly available list of them. In one episode, the CCRB found that an officer had shocked an unarmed man with a Taser four times while he was trying to back away. William Harvin Sr. was shocked with a Taser by an NYPD officer four times while trying to back away. (Stephanie Mei-Ling, special to ProPublica) “He Tased me for no reason,” recalled William Harvin Sr. “He was coming to me, Tasing my legs, my back.” The review board found that the officer, Raul Torres, should face trial. But the Police Department has yet to move the case forward, a fact Harvin learned from a reporter. “They take care of their own,” he said, shaking his head. (Torres, who has since been promoted to detective, declined to comment and his lawyer said the officer had “no choice” but to use force.) Video Shows an NYPD Officer Shocking William Harvin Sr. Four Times With a Taser (Video obtained by ProPublica) Watch video ➜ In more than 30 other instances, Caban upended cases in which department lawyers and the officers themselves had already agreed to disciplinary action — the most times a commissioner has done so in at least a decade. Sewell set aside four plea deals during her first year as commissioner. For one officer, Caban rejected two plea deals: In the first case, the officer pleaded guilty to wrongly pepper-spraying protesters and agreed to losing 40 vacation days as punishment. Caban overturned the deal and reduced the penalty to 10 days. In the second, the officer pleaded guilty to using a baton against Black Lives Matter protesters “without police necessity.” Caban threw out the agreement, which called for 15 vacation days to be forfeited. His office wrote that it wasn’t clear that the officer had actually hit the protesters, contrary to what the officer himself already admitted to in the plea. The commissioner ordered no discipline. The under-the-radar moves run counter to Mayor Eric Adams’ pledge during his candidacy to improve policing by “building trust through transparency.” This year, in his State of the City address, Adams also promised that cases of alleged misconduct would “not languish for months.” In a statement to ProPublica, a spokesperson for the mayor’s office defended the Police Department and Caban’s record: “Mayor Adams has full confidence in Caban’s leadership and ability to thoroughly review all allegations of police misconduct, and adjudicate accordingly.” A Police Department spokesperson declined to answer detailed questions, responding instead with a one-sentence statement: “The NYPD continues to work closely with the Civilian Complaint Review Board in accordance with the terms of the memorandum of understanding.” That memorandum stemmed from a political compromise reached about a decade ago. Concerned that the department’s policing tactics were too aggressive, members of the City Council pushed for the CCRB to be able to prosecute cases rather than simply make recommendations to the police commissioner. The final memorandum, produced after protracted negotiations with the Police Department, included the mechanism that has since allowed Caban to intervene in disciplinary cases. The agreement states that the commissioner may take cases away from CCRB prosecutors if the commissioner determines that allowing the agency to move ahead will be “detrimental to the Police Department’s disciplinary process” or if the “interests of justice would not be served.” Chris Dunn, the legal director of the New York Civil Liberties Union, objected at the time to that veto power. Shown the number of cases that Caban has retained, he told ProPublica, “This is exactly why we were so concerned about this authority.” The agreement stipulated that retentions can be used only on officers with “no disciplinary history,” a limitation that Caban and other commissioners have not always followed. Caban has on three occasions retained cases of officers who the CCRB had previously found engaged in misconduct. While commissioners can still choose to impose significant punishment after retaining a case, they often don’t. In 40% of the cases that Caban has retained, he has ordered no discipline. In the cases in which he has ordered discipline, it has mostly been light, such as the loss of a few vacation days. The most severe punishment, ProPublica found, was docking an officer 10 vacation days for knocking a cellphone out of the hand of someone who was recording him. A Retreat Under Adams Adams appointed Caban as his new NYPD commissioner at a press conference in New York City last year. (David Dee Delgado/Bloomberg via Getty Images) Disciplinary trials can produce significant consequences for officers — if they’re allowed to proceed. In 2018, CCRB prosecutors brought charges against the officer who killed Eric Garner, the Staten Island man whose cries of “I can’t breathe” helped ignite the Black Lives Matter movement. It would be a last chance to hold the officer, Daniel Pantaleo, accountable after a grand jury had declined to indict him. The commissioner at the time, James O’Neill, moved to handle the case internally, according to multiple current and former review board officials. (O’Neill did not respond to a request for comment.) The CCRB, however, pushed back. “I went to war,” recalled Maya Wiley, the chair of the board at the time, who went to City Hall to argue against the Police Department’s plans. Officials in Mayor Bill de Blasio’s administration overruled the commissioner and let the trial move ahead. Pantaleo was found guilty of using a banned chokehold. Amid huge public interest and scrutiny, the police commissioner then fired him. The current approach to police discipline under Caban is something civil rights advocates attribute to his boss, Adams, a former police captain who has struck a tough-on-crime image and opposed policing reforms since taking office two years ago. “We cannot handcuff the police,” Adams told reporters when vetoing two criminal justice reform bills in January. Last year, the mayor reportedly urged Sewell to reject recommended disciplinary action against a top uniformed officer, who was also an Adams ally. She declined and pushed to discipline the officer, resigning shortly afterward. Mr. Adams then appointed another close ally to the position: Caban. Caban has his own history with the disciplinary process. Over his 30 years on the force, he has twice been found by the CCRB to have engaged in misconduct, making him an outlier in the department. The vast majority of officers have never been found by the oversight agency to have committed any misconduct. In one case, he was ordered to complete more training after he arrested a civilian for not providing ID. In the other, related to refusing to provide the names of officers to a civilian who said they had mistreated her, there is no record of discipline. The Police Department did not comment on Caban’s record, but it previously said, “Caban’s awareness of that process will only help him bring a fair and informed point of view to those important decisions.” Caban recently rejected discipline in a case in which two officers had killed a man in his own apartment during a mental health crisis. The chair of the review board criticized the decision, a move that earned Adams’s ire. She also requested more resources to investigate complaints, which rose 50% last year. Instead, the Adams administration imposed cuts, forcing the board to stop investigating various kinds of misconduct, including officers who lie on the job. “In this administration we have a mayor who runs the Police Department,” said Dunn, of the New York Civil Liberties Union. “He sets the tone, and the tone is ‘we’re cutting police accountability and discipline.’” The police union, the Police Benevolent Association, disagrees, saying Caban’s actions are a critical counter to what it sees as frequent overreach by the civilian oversight board. “The police commissioner has a responsibility to keep the city safe,” the union’s president, Patrick Hendry, said in a statement. “CCRB’s only goal is to boost their statistics and advance their anti-police narrative by punishing as many cops as possible.” Last fall, Caban sent his own signal. He gave one of the department’s top positions to an officer who tackled and shocked a Black Lives Matter protester with a Taser in the summer of 2020. Tarik Sheppard, a captain at the time, was heading to a disciplinary trial when his case was retained a year later, with no discipline given. Sheppard is now deputy commissioner for public information. He regularly appeared on television this spring to talk about the Police Department’s response to campus protests over the Israel-Hamas war. Tarik Sheppard, center, NYPD’s commissioner of public information, speaks at a press conference in New York City on April 19. (Angela Weiss/AFP via Getty Images) The outcomes have been different for the victims. Destiny Strudwick, the protester who was tackled and shocked with a Taser, has struggled since the encounter nearly four years ago. “Sometimes I feel like the human psyche is only made to handle so much,” she said. “And what happened to me, it just was too much.” Sheppard did not respond to requests for comment. The Police Department never informed Strudwick or Villafane that the cases against the officers who hurt them had been upended. After learning what had happened, both felt that the department had denied them justice. “That makes my heart sink,” said Strudwick, after ProPublica told her of Sheppard’s retention. As for Villafane, she gasped when she was shown the Police Department letter wiping away the case against Dowling, who did not respond to requests for comment. She slowly read a line out loud, “His actions therefore do not warrant a disciplinary action.” She shook her head. “He’s supposed to be protecting us and he’s hurting us,” Villafane said. “Who am I supposed to call to feel safe now? Not him.” Do you have information about the police we should know? You can email Eric Umansky at eric.umansky@propublica.org or contact him securely on Signal or WhatsApp at 917-687-8406.
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by B. “Toastie” Oaster, High Country News This article was produced for ProPublica’s Local Reporting Network in partnership with High Country News. Sign up for Dispatches to get stories like this one as soon as they are published. When Yakama Nation leaders learned in 2017 of a plan to tunnel through some of their ancestral land for a green energy development, they were caught off guard. While the tribal nation had come out in favor of climate-friendly projects, this one appeared poised to damage Pushpum, a privately owned ridgeline overlooking the Columbia River in Washington. The nation holds treaty rights to gather traditional foods there, and tribal officials knew they had to stop the project. Problems arose when the Federal Energy Regulatory Commission, the agency in charge of permitting hydro energy projects, offered the Yakama Nation what tribal leaders considered an impossible choice: disclose confidential ceremonial, archaeological and cultural knowledge, or waive the right to consult on whether and how the site is developed. This put the Yakama Nation in a bind. Disclosing exactly what made the land sacred risked revealing to outsiders what they treasured most about it. In the past, disclosure of information about everything from food to archaeological sites enabled non-Natives to loot or otherwise desecrate the land. Even now, tribal leaders struggle to safely express what the Pushpum project threatens. “I don’t know how in-depth I can go,” said Elaine Harvey, a tribal member and former environmental coordinator for the tribal fisheries department, when asked about the foods and medicines that grow on the land. “It provides for us,” echoed Yakama Nation Councilmember Jeremy Takala. “Sometimes we do get really protective.” Although government agencies have sometimes taken significant steps to protect tribal confidentiality, that didn’t happen with the Pushpum proposal, known as the Goldendale Energy Storage Project. Tribal leaders repeatedly objected, telling the agency that if a tribal nation deems a place sacred, they shouldn’t have to break confidentiality to prove it — a position supported by state agency leaders and, new reporting shows, at least one other federal agency. Nonetheless, after seven years, in February FERC moved the project forward without consulting with the Yakama Nation. Sign up for Dispatches, a weekly ProPublica newsletter about wrongdoing in America. The process known as consultation is often fraught. Federal laws and agency rules require that tribes be able to weigh in on decisions that affect their treaty lands. But in practice, consultation procedures sometimes force tribes to reveal information that makes them more vulnerable, without offering any guaranteed benefit. The risks of disclosure are not hypothetical: Looting and vandalism are common when information about Indigenous resources becomes public. One important mid-Columbia petroglyph, called Tsagaglalal, or She Who Watches, had to be removed from its original site because of vandalism. And recreational and commercial pickers have flooded one of Washington’s best huckleberry picking areas, called Indian Heaven Wilderness, pushing out Native families trying to stock up for the winter. The Yakama Nation feared similar outcomes if it fully participated in FERC’s consultation process over the Goldendale development. But there are alternatives. The United Nations recognizes Indigenous peoples’ right to affirmatively consent to development on their sacred lands. A similar model was included in state legislation in Washington three years ago, but Gov. Jay Inslee vetoed it. The requirements of the consultation process are poorly defined, and state and federal agencies interpret them in a broad range of ways. In the case of Pushpum, critics say that has allowed FERC to overlook tribal concerns. “They’re just being totally disregarded,” said Simone Anter, an attorney at the environmental nonprofit Columbia Riverkeeper and a descendant of the Pascua Yaqui and Jicarilla Apache nations. “What FERC is doing is so blatantly, blatantly wrong.” Left to right: Local leaders Elaine Harvey, Jeremy Takala and Simone Anter have expressed concern about the fate of Pushpum. (Photo illustration by J.D. Reeves. Portraits by Leah Nash, Jurgen Hess/Columbia Insight, and Steven Patenaude. Map via the U.S. Geological Survey. Documents via the Federal Energy Regulatory Commission.) The Yakama Nation has been outspoken in its support for renewable energy development, including solar and small-scale hydro projects. But not at Pushpum; it’s sacred to the Kah-milt-pah people, one of the bands within the Yakama Nation, who still regularly use the site. The proposal would transform this area into a facility intended to store renewable energy in a low-carbon way. Rye Development, a Florida-based company, submitted an application for permits for a “pumped hydro” system, where a pair of reservoirs connected by a tunnel store energy for future use. FERC has offered few accommodations for the Yakama Nation on the Goldendale project. FERC spokesperson Celeste Miller told High Country News and ProPublica in an email that “we will work to address the effects of proposed projects on Tribal rights and resources to the greatest extent we can, consistent with federal law and regulations. This is a pending matter before the Commission, so we cannot discuss the merits of this proceeding.” “FERC legally doesn’t have to do very much here,” said Kevin Washburn, a dean of the University of Iowa College of Law, a citizen of the Chickasaw Nation of Oklahoma and a former assistant secretary of Indian affairs at the Department of the Interior. “Consultation is designed to open the door so tribes can get in the door to talk to decision-makers.” According to experts, the process can range from collaborative planning that addresses tribal concerns to a perfunctory discussion with minimal impacts, depending on the agency. “This is the problem with consultation and its lack of teeth,” said Anter. “If the federal government is saying, ‘Hey, we consulted, check that box,’ who’s to say they didn't?” There’s another problem with consultation, too: Any discussions with a federal entity are subject to public disclosure. That’s good for government transparency, Washburn said, but it can make tribal nations even more vulnerable. “And it’s why tribes are right to be cautious in what they share with feds,” he said. That’s an obstacle at Pushpum. Things became even harder there in August 2021, when FERC notified the Yakama Nation that federal consultation would be carried out not by the agency itself, but by the developer. The Yakama Nation pushed back, asserting its treaty rights to negotiate as a sovereign nation only with another nation, not with a private entity. FERC, however, insisted that designating a third party was “standard practice.” The National Historic Preservation Act, signed into law in 1966, says an agency “may authorize an applicant or group of applicants to initiate consultation,” but maintains that the federal agency is still “responsible for their government to government relationships with Indian tribes.” The Yakama Nation also worried about commission rules that require anything the tribal nation says to FERC be shared with the developer. “It gets very sensitive when we share those kinds of stories,” said Takala, the tribal councilmember. “We just don’t share to anyone, especially a developer.” Some say FERC could change that internal rule, since it isn’t required by law. “For them to cite their own regulations and be like, ‘Our hands are tied,’ is ridiculous,” Anter said. For months, FERC and the Yakama Nation went back and forth over the conditions under which the tribal government would share sensitive information, with the Yakama Nation repeatedly asking to share information only with FERC. This is the problem with consultation and its lack of teeth. … If the federal government is saying, ‘Hey, we consulted, check that box,’ who’s to say they didn’t? —Simone Anter, environmental attorney and descendant of the Pascua Yaqui and Jicarilla Apache nations Ultimately, FERC proposed four ways the Yakama Nation could participate in consultation. In the eyes of tribal leaders, all these options either posed significant risks to the privacy of their information or rendered consultation meaningless. The first three were laid out in a letter from Vince Yearick, director of FERC’s division of hydropower licensing, sent on Dec. 9, 2021. For option one, it suggested the tribal nation request nondisclosure agreements from anyone accessing sensitive information. Yearick did not specify whether FERC would be responsible for issuing or enforcing these NDAs. Delano Saluskin, then-chair of the Yakama Nation, called this option “far from the requirements of NHPA or in line with the trust responsibility that the Federal Agency has to Yakama Nation,” citing FERC policies and National Historic Preservation Act law in a February 2022 letter to state and federal government officials requesting support. He added that it “describes a process that does not protect information that is sacred and sensitive from disclosure.” Alternatively, FERC said, the Yakama Nation could simply redact any sensitive information from documents it filed. This option, however, would leave FERC in the dark about the details of what cultural resources the project would imperil. That would make it harder for FERC to require project adjustments or weigh the specific impacts in its decision about whether to permit construction. Third, the Yakama Nation could withhold sensitive information altogether, which would present similar problems. Lastly, in a June 2022 follow-up letter, the commission suggested that the Yakama Nation submit a document “with more details regarding the resources of concern” and a request that some of the information be treated as privileged or withheld from public disclosure. Overall, Saluskin described FERC’s options as a “failure” to conduct legal consultation in good faith. A federal agency similarly raised concerns: In May 2023, the Advisory Council on Historic Preservation, which advises the president and the Congress on protecting historic properties across the country, wrote to FERC suggesting that it “provide the Tribes with opportunities to share information that will be kept confidential.” FERC’s rule regarding disclosure, the council said, could insulate the agency from meaningful consultation, “and as a result from any real understanding of the nature and significance of properties of religious and cultural significance for Tribes.” The concerns over FERC’s engagement with the Yakama Nation are part of a wider discussion of whether and how the U.S. government should protect tribal privacy and cultural resources. Speaking at a tribal energy summit in Tacoma in June 2023, Allyson Brooks, Washington’s state historic preservation officer, said that even though the consent language was vetoed by the governor, state law for protecting confidentiality around tribal cultural properties is still stronger than federal law, which only protects confidentiality if a site is eligible for the National Register of Historic Places. In Washington, if a tribal historic preservation officer says, “‘X marks the spot; this is sacred,’ we say, ‘OK,’” Brooks declared. She said asking tribal nations to prove a site’s sacredness is like asking to see a photo of baby Jesus before accepting the sanctity of Christmas. “You don’t. You say ‘nice tree’ and take it at face value. When tribes say ‘X is sacred,’ you should take that at face value too.” That approach is vital to the Yakama Nation, which recently saw a developer involved with a project proposed in nearby Benton County leak information that the nation believed was private. We don’t write it, you won’t see it posted. You won’t see it in books. It’s our oral history. It’s sacred. —Bronsco Jim, a spiritual leader of the Kah-milt-pah people The Horse Heaven Hills wind farm would be the biggest energy development of any kind in Washington state history. But the sprawling 72,000-acre project overlaps with nesting habitat for migratory ferruginous hawks, a raptor state-listed as endangered. Court documents related to the permitting proceedings show that the Yakama Nation believed it had identified the locations of the ferruginous hawks’ nests as confidential, in part because the hawks are ceremonially important. In May 2023, the Yakama Nation requested a protective order from the Energy Facility Site Evaluation Council, a state-level analog of FERC. The order, which the council issued, instructed all parties to sign a confidentiality agreement before accessing confidential information, similar to the nondisclosure agreements FERC proposed. If any party disclosed that information, they could be liable for damages. But the order didn’t stop that information from getting out. In February 2024, the Seattle Times published a story on the Horse Heaven Hills wind farm, which included a map of ferruginous hawk nests — a map that was credited to Scout Clean Energy, the developer. The Yakama Nation quickly filed a motion to enforce the protective order, alleging that Scout Clean Energy had transgressed by passing protected cultural information to the press. The developer counter-filed, claiming that even if nest locations were a part of confidentiality discussion, the map itself was not, and that it was so imprecise that the critical details remained confidential. The council ultimately agreed. Despite the risks, Washburn said that tribes should take any opportunity to share their stories with federal officials, even if the conditions aren’t perfect. “I wouldn’t necessarily encourage tribes to give their deepest, darkest secrets to a federal agency,” he said. “But I would encourage them to meet with FERC and try to give FERC a first-person account of why they think this is important.” Not all experts agree. Brett Lee Shelton, a member of the Oglala Sioux Tribe and an attorney at the Native American Rights Fund, said FERC is out of step with other federal and state agencies. “It’s hard to believe that it’s anything but disingenuous, using that tactic,” he said. “It’s pretty well known by any agency officials who deal with Indian tribes that sometimes certain specifics about sacred places need to remain confidential.” And for Bronsco Jim, a spiritual leader of the Kah-milt-pah people, sharing too many details is out of the question. Cultural specifics stay within the oral teachings of the longhouse, the site of the Kah-milt-pah spiritual community. Jim said he doesn’t even know how to translate all of the information into English. “We don’t write it, you won’t see it posted. You won’t see it in books. It’s our oral history. It’s sacred.”
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by Tony Schick, Oregon Public Broadcasting This article was produced for ProPublica’s Local Reporting Network in partnership with Oregon Public Broadcasting. Sign up for Dispatches to get stories like this one as soon as they are published. The Biden administration released a report last week acknowledging “the historic, ongoing, and cumulative damage and injustices” that Columbia River dam construction caused Northwest tribal nations starting in the 20th century, including decimation of the salmon runs that Indigenous people were entitled to by government treaty. Across 73 pages, the report from the U.S. Department of the Interior concludes “the government afforded little, if any, consideration to the devastation the dams would bring to Tribal communities, including to their cultures, sacred sites, economies, and homes.” But here’s what’s not in the report: The injuries to Native people were not just an unforeseen byproduct of federal dam building. They were, in fact, taken into account at the time. And federal leaders considered that damage a good thing. In government documents from the 1940s and 1950s, obtained by Oregon Public Broadcasting and ProPublica, government officials openly discussed what they called “the Indian problem” on the Columbia River, referring to the tribes’ fisheries that were protected under federal treaties. At times, they characterized the destruction of the last major tribal fishery as a benefit that dam construction would bring. The archival government records were released to Columbia River treaty tribes several years ago under the Freedom of Information Act. They were first made public by OPB and ProPublica in March and April episodes of the podcast “Salmon Wars.” The documents reveal that the government’s 1950s era of dam building on the Columbia was marked not by a failure to consider tribal impacts, but rather by a well-informed and intentional disregard for Native people. Sign up for Dispatches, a weekly ProPublica newsletter about wrongdoing in America. “These documents shine a spotlight on a historic wrong” U.S. Sen. Jeff Merkley, an Oregon Democrat, said in a statement to OPB and ProPublica. “The government’s actions wiped out tribal communities, houses, villages, and traditional hunting and fishing sites with thousands of years of history.” In response to emails detailing what the documents contained, Merkley said he would push the federal government to develop new tribal villages to replace the Indigenous fishing settlements that the dams flooded out. U.S. Sen. Ron Wyden, a fellow Oregon Democrat, said he looked forward to working with tribes and the federal government to “to repair that shameful past.” The Interior Department’s new report “writes yet one more painful chapter in the awful and deceitful history of federal decisions that willfully ignored Tribal communities’ rights and humanity,” Wyden said in an emailed statement. What’s Left Out The report does not mention any of the discussion from government officials previously reported by OPB and ProPublica. A spokesperson for the Department of the Interior declined to comment when emailed the documents and asked whether the department was aware of them. “We have nothing further to add beyond what’s in the extensive report,” press secretary Giovanni Rocco said in an email. The report is a component of a recent 10-year agreement between the White House and tribes to restore endangered Columbia River Basin salmon populations. Northwest tribes lauded the report as a long-overdue accounting of harms and a demonstration of the current administration’s commitment to listen to tribes and do right by them. “The analysis highlights the many different ways the dams have impacted our cultures, lifestyles, diets, and economies and it got this information directly from the tribal people who have been affected,” Corinne Sams, chair of the Columbia River Intertribal Fish Commission, said in an emailed statement. “By listening to and including these testimonies, interviews, and statements, the federal government has taken tribes into consideration on this topic from a relationship of respect and willingness to learn.” Salmon are estimated to have once totaled more than 10 million in the Columbia River, and they were central to the way of life for many tribes across the river basin. People fished along the river and its many tributaries in what are now Oregon, Washington, Idaho and parts of Canada for thousands of years. Salmon were a fixture of Indigenous people’s diet, religion and commercial trade. Now, the river system’s salmon hover around 1 million. The decline is attributed largely to dams and other habitat loss stemming from development, along with overfishing. Documents show government officials in the 20th century came to view the Native presence on the river as a detriment to the government’s own plans for hydropower – and harmful to the fish themselves. In one memo from 1951, Sam Hutchinson, the acting regional director for the Bureau of Fisheries, summarized a conversation about the anticipated impact of The Dalles Dam, which ultimately drowned the tribes’ last major fishery, at Celilo Falls, when it was completed in 1957. Hutchinson wrote, “I stated that the beneficial effects would compensate for the detrimental conditions that exist there at present.” One of those benefits, according to Hutchinson: “The Indian commercial fishery would be eliminated and more fish would reach the spawning grounds in better condition.” The successor agency to the Bureau of Fisheries, which is now a part of the National Oceanic and Atmospheric Administration, declined through a spokesperson to comment on Hutchinson’s historical remarks. Hutchinson’s sentiment was also documented in meeting minutes from a 1947 committee of state, federal and local governments about future dam plans. “We get up above and we run into the Indian problem at Celilo and other places. They are allowed to fish at will,” said Milo Moore, director of what was then called the Washington Department of Fisheries, according to the minutes. He said the tribes’ fishing made it difficult to maintain a constant supply of fish for the department’s own purposes. The state agency’s role included protecting and promoting the commercial and sport fisheries downriver, whose participants were predominantly white. The head of the Port of Vancouver at the time, Frank Pender, also told federal officials of “the Indian problem” and said of tribal fishing, “certainly we don’t want it to stand in the way of the development of our own way of life.” At one point during the proceedings, a man named Wilfred Steve was introduced as “our public relations officer for the Department of Fisheries and the Indians,” meeting minutes say. Steve acknowledged “these dams are going along and they are going to destroy their very life, the essence of life of these various tribes.” Later in his remarks, the public relations officer praised the potential of education programs to assimilate Native people and stated “we hope that there will be no Indians.” He recommended paying the tribes in exchange for flooding their lands and destroying their fisheries. Like the others quoted in the documents, Steve is now deceased. Paltry Restitution Randy Settler, a Yakama Nation fisherman whose family history of salmon fishing was previously documented by OPB and ProPublica, said the money his family received in exchange for the dam flooding Celilo and other tribal lands amounted to roughly $3,200 per individual. Randy Settler at The Dalles Dam (Katie Campbell/ProPublica) After dam construction, Congress and agency officials created programs to boost fishing opportunities that involved stocking the river with massive numbers of fish. The archival government documents detail how these programs were used to justify allowing the dams to block the migration of native salmon. However, 99% of the stocked fish were almost entirely aimed at the fishing grounds below the dams that were used predominantly by white fishermen. “It was kind of like what happened to the buffalo,” Settler told OPB and ProPublica during the initial reporting for “Salmon Wars.” “If they could rid the natural food of those tribes that they were dependent upon, they could weaken the tribes and get them to stop going across their ancestral territories. They would be more confined to their reservation lands where they could be controlled.” The Biden administration has promised tribes it will restore wild salmon populations. As part of the 10-year agreement it signed with tribes, which includes a pause on any lawsuits over the dam system, the White House announced a plan to invest heavily in tribal-led salmon restoration and energy projects that could potentially replace the power from some hydroelectric dams. President Joe Biden also signed a memorandum calling for federal agencies to prioritize salmon recovery and to review the work to make sure they’re doing enough.
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by Jennifer Berry Hawes ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. One young researcher from Alabama is unearthing the origin stories of schools known as “segregation academies” to understand how that history fosters racial divisions today. Another is measuring how much these private schools — which opened across the Deep South to facilitate white flight after the 1954 Brown v. Board of Education ruling — continue to drain public school enrollment. And a third is examining how these academies, operating in a “landscape marred by historical racial tensions,” receive public money through Alabama’s voucher-style private school tuition grants. All three researchers are white women raised in Alabama, close in age, who grew up near these academies. The women — one recently received a doctorate and the other two are working on theirs — approach their research from the varied disciplines of economics, education and history. Their inquiries are probing the very schools some of their family and friends attended. In an ongoing series this year, ProPublica is examining the continued effects of hundreds of segregation academies still operating in the South. One of the three researchers played a key role in our initial story. Her experiences, both personally and academically, provided essential context to understanding how one segregation academy in rural Alabama has kept an entire community separated by race. The research conducted by all three women is especially important now. It comes at a time when Southern legislatures are creating and expanding school-voucher-style programs that will pour hundreds of millions of public dollars into the coffers of private schools, including segregation academies, over the coming years. Segregation Academies and Voucher Programs Annah Rogers was working on her undergraduate degree at Auburn University in 2013 when Republican lawmakers suddenly rushed to pass the Alabama Accountability Act. The legislation created a voucher-style system to pay private school tuition for low-income students. As Rogers followed the debates, she wondered just how accessible private schools are to families with few resources, especially in rural areas. She knew that some of those communities don’t have private schools — and where they do exist, they’re often segregation academies. Sign up for Dispatches, a weekly ProPublica newsletter about wrongdoing in America. Rogers hails from Eutaw, Alabama, a town of 3,000 people located in the Black Belt, a stretch of counties whose dark, rich soil once fueled large cotton plantations. Her parents sent her 45 minutes away to a private Catholic school. (Catholic schools generally aren’t considered segregation academies because most dioceses integrated willingly.) Rogers’ father attended a now-defunct local segregation academy, and her mother went to one in another county. While working on her doctorate in political science at the University of Alabama, she devoted her 2022 dissertation to examining the state’s voucher-style program and its effects on private schools, including segregation academies. She had expected segregation academies to balk at participating in the program given that more than 60% of students who use it are Black. Yet she found that many do. In fact, they take part at a slightly higher rate — 8% more often — than other private schools. That discovery prompted more questions: Are the tuition grants enabling Black students to attend segregation academies, making the schools more diverse? Or are the academies merely siphoning off the white students who use the grants? “The biggest problem is that we don’t know,” said Rogers, who’s now an assistant professor at the University of West Alabama’s education college. She hit a huge hurdle when the state refused to break down by school the demographics of students who use the publicly funded program to pay private school tuition. Despite that roadblock, she continues to probe these questions while working on related studies, including one that demonstrates how school segregation patterns have continued and even worsened across Alabama’s Black Belt over the last three decades. Her research will become more critical in the coming years, as more students, including students from wealthier families, will be receiving state money to attend private schools. In March, Alabama lawmakers created a universal voucher-style program to fund private school tuition. It will be open to all children, regardless of household income, starting in 2027. Segregation Academies and Public School Enrollment Danielle Graves grew up in Mobile on the Gulf Coast, where she attended a mostly white private Episcopal school. Although it opened long enough before the Brown v. Board ruling that academics don’t label it a segregation academy, its enrollment still grew substantially during desegregation. Graves left the South to pursue her master’s and doctorate in economics at Boston University, where she is a fourth-year Ph.D. student. While in the Northeast, she realized that private schools there tend to be much older than in the South. The private school tradition didn’t really catch on in the South until white people thought Black students might arrive at their children’s public schools. Graves also realized how few people outside of the South knew about segregation academies. Economics literature rarely mentioned them at all. “I felt like it was this missing piece,” she said. A lot of economic research on school desegregation and white flight focuses on cities rather than on rural areas “where segregation academies really play a big role,” Graves said. She jumped into that largely empty research lane. Graves tackles questions like: How have segregation academies affected the average public school enrollment? Are there differences between rural and urban areas? She taught a class on the economics and history of school segregation at Harvard University this spring and has spent the last two years researching and presenting her work on the impact that segregation academies have on local public schools. For the dissertation she is finishing, Graves found that on average, when segregation academies opened in Alabama and Louisiana, they caused white enrollment in neighboring public schools to drop by about a third — and the white population did not return over the 15 years that followed. Now she is measuring the effects of segregation academies on local public school funding, the students who attended them and the communities where they operate. Segregation Academies and History Unlike the other two researchers, Amberly Sheffield went to her local public schools, which were predominantly Black. As she watched other white families pay to send their children to segregation academies, she wondered: why? Sheffield grew up in Grove Hill, a town of 2,000 people, where her father briefly attended a local segregation academy. After earning her undergraduate degree, she landed a job teaching history at a segregation academy in neighboring Wilcox County. ProPublica’s first story in its series on these academies focused on Wilcox County and the lasting effect that school segregation has had on community members — including, for a time, Sheffield.  Almost all of her students at Wilcox Academy were white. The entire faculty was white. Yet Wilcox County is 70% Black. Like most segregation academies, Wilcox Academy doesn’t advertise itself as such. Some of these schools include their founding years on their websites or entrance signs — as Wilcox Academy does — but mention nothing about the fact that they opened to avoid desegregation. Sheffield wanted to shed light on the context of the schools’ openings. In her 2022 master's thesis at Auburn University, she chronicled Wilcox County’s history of sharecropping, violence against civil rights advocates, and resistance to school integration. She also documented the many fundraisers white people held to pay for the segregation academies they rushed to open before many Black students arrived at the white public schools. Families forming one academy held a skit night, barbeque, fish fry, bingo party, pet show and pancake supper. The money raised paid for school equipment and salaries “but equally important, it created a new community for its founders, sponsors, and families,” she wrote. The schools also joined a new group that provided their accreditation and organized sports events. “These academies allowed whites to gain complete control over their children’s education — they no longer had to answer to any form of government but their own,” Sheffield wrote. Today, she is continuing her research as a doctoral student in history at the University of Mississippi. “History is very important in understanding how we’ve gotten to where we are today, especially when you look at public schools in rural communities in Alabama,” Sheffield said. Many of these schools are mostly Black, underfunded and struggling. “I want people to understand how it got that way, and the answer usually is segregation academies.” Help ProPublica Report on Education Mollie Simon contributed research.

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