Crooked Bough News Round-up

— Neglect at Boarding School for Autistic Youth Left a Student With Vision Loss, Lawsuit Alleges

 

at 7/26/24 3:00am

by Jodi S. Cohen and Jennifer Smith Richards 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. It was during a summer visit to their son’s boarding school that Cian Roy’s parents said they realized something had gone terribly wrong. Cian, who has autism and intellectual disabilities, could no longer make out the numbers on the elevator buttons, his parents said. He held his iPad up to his nose to try to see images like the icon for the Netflix app. He struggled to distinguish level ground from stairs. His eyes looked cloudy. Michael Roy and D’Arcy Forbes, who had driven about 2,900 miles from their home near Seattle to New York in August 2022 with plans to mountain bike with their son, decided instead to take him home to try to save his eyesight. “We were concerned he’d be blind by Christmas,” Michael Roy told ProPublica. By then, Cian had spent about six months at Shrub Oak International School, a private, for-profit school that enrolls students with complex needs who are often rejected by other schools. Shrub Oak leaders opened the school in 2018; they had experience in other education areas but had never run a boarding school. But Cian’s parents said school officials assured them that they could handle the then-20-year-old’s diagnosis of autism with a language impairment as well as his impulse control disorder. The school also said it could handle Cian’s unusual and dangerous behavior: compulsively poking his eyes. Instead, Shrub Oak workers did not follow Cian’s detailed behavioral plan and their neglect caused him to have a “catastrophic eye injury” that has permanently impaired his vision, the family alleges in a lawsuit filed in late January in King County Superior Court, a Washington trial court. The lawsuit alleges that both Shrub Oak and Cian’s public school district “routinely ignored their obligations by neglecting” Cian. Shrub Oak failed to keep him safe and the Lake Washington School District, which agreed to pay hundreds of thousands of dollars to send Cian to Shrub Oak, failed to ask about Cian’s “condition, achievement, or safety” while at the school, according to the lawsuit. The lawsuit — which appears to be the first by a family against the school — asks for an unspecified amount of damages that include past and anticipated medical costs. Shrub Oak and the Lake Washington district, in responding to the lawsuit, denied responsibility for any injuries. Shrub Oak did not respond to questions and a request for comment from ProPublica. The Lake Washington district said it is “committed to the health and safety of all of our students” but declined to comment further because of the lawsuit. A trial is set for next year. D’Arcy Forbes, left, helps her son Cian Roy use a magnifier to identify the small font on a number puzzle at their home. “What I want for him is access to opportunities and not have people assume he can’t do something,” said Forbes. (Sarahbeth Maney/ProPublica) Mike Roy, left, D’Arcy Forbes and Cian Roy prepare to do yard work at their home. To stay on task, Forbes writes a list of activities for her son to complete. (Sarahbeth Maney/ProPublica) A ProPublica investigation published in May documented numerous allegations of abuse and neglect of students at Shrub Oak in its short time in operation; one former worker recently was convicted of endangering the welfare of a student from Chicago. The investigation revealed how Shrub Oak has not sought or obtained approval from New York to operate as a special education school, which means it largely escapes oversight by education authorities and other state officials. It is also not a licensed residential facility. Though private, the school is mostly funded with public money through contracts with school districts across the country that send students there, then sometimes struggle to monitor residents’ progress or wellbeing. A Seattle Times and ProPublica investigation in 2022 found similar problems with oversight, as well as allegations of abuse and substandard academics, at privately run, publicly funded special education schools in Washington. After that investigation was published, Washington’s largest network of these schools, called the Northwest School of Innovative Learning, shut down while under investigation from the state education department, and lawmakers expanded the agency’s oversight powers. The Roy family’s experience — detailed through interviews as well as medical, school, court and police records — reflects concerns raised by disability rights advocates about the difficulty in monitoring out-of-state facilities such as Shrub Oak, which serve some of the most vulnerable students. Students from at least 13 states and Puerto Rico went to Shrub Oak this past school year, but some states are now reevaluating their relationship with the school. Disability rights advocates in Connecticut have urged officials not to send more students there. Massachusetts has said publicly funded students would have to leave. Washington, which has seven students at Shrub Oak, is the latest state to take action. In a letter to Shrub Oak dated July 2, the office of the state superintendent said it had decided to not allow public school districts to send more students to the school during the 2024-25 school year. Shrub Oak, it said, did not have a license to operate in New York and also had not undergone health inspections; it must meet those standards before any Washington school district enters into a new contract with Shrub Oak. The state’s decision to halt new enrollments came after officials visited the school last month and after they gathered information from school districts and ProPublica stories, the agency said. It said in its letter to Shrub Oak that there were “no immediately visible health and safety concerns” during the visit last month. Shrub Oak has criticized ProPublica for reporting “influenced by isolated incidents and the perspectives of a few individuals” and not sharing others’ positive experiences at the school. A school spokesperson previously has said Shrub Oak works with students who have been rejected by other schools and who struggle with “significant self-injurious behaviors,” aggression, property destruction and other challenges, and that its staffing is adequate. The school has posted a response to ProPublica’s reporting on its website. But Shrub Oak had only about 85 students enrolled earlier this year, with a total of 170 since it opened, and dozens of families and workers have raised concerns about conditions there. At first, Cian’s parents were so excited about Shrub Oak that they took legal action against their school district to get Cian placed there after the district balked at sending him to a residential school. In its contract with Shrub Oak, the school district agreed to pay $54,641 a month — what would have been $655,692 for a year — for tuition and a 24-hour aide dedicated to Cian, records show. The contract required that Shrub Oak provide records about his behavior and send all incident reports about his safety to the district within 24 hours. But it does not appear that Lake Washington received those required reports, according to district records obtained through a Freedom of Information Act request. Lake Washington provided ProPublica only one incident report it received during Cian’s time at Shrub Oak, which was unrelated to Cian’s eye poking, and said that there were no emails from Shrub Oak alerting the district to safety concerns. One of Cian’s attorneys, Joseph Gehrke, said the school district abdicated its legal responsibility to make sure Cian was safe. “Lake Washington never asked the school, ‘We haven’t heard anything from you. What is going on with the student we sent to you?’” Gehrke said. Before Cian started at Shrub Oak in February 2022, his family gave the school a 27-page plan that detailed what to do when Cian poked at his eyes. He had arm splints that prevented his hands from reaching his eyes and a helmet with a plexiglass visor. A helmet recommended by Seattle Children’s Autism Center to prevent Cian Roy from touching his eyes during a crisis. (Sarahbeth Maney/ProPublica) According to Cian’s parents, the school did not have the expertise it advertised and Cian was harmed. Shrub Oak didn’t use the arm splints, according to the lawsuit and internal notes kept by school health staff and provided to ProPublica by Cian’s parents. In April, the school called 911 to seek help with a new eye injury, which the caller said had been caused by his eye poking, according to police records. The school’s notes say his left eye was “protruding out, like a bubble.” He was given eye drops but a scar formed on his left eye, permanently damaging it, according to the lawsuit. The 911 Call A portion of the 911 call made by Shrub Oak International School about Cian Roy’s injury. (Yorktown Police Department) An aide was supposed to be with Cian all night, in part to keep him from poking his eye as he fell asleep. But in May, notes from the school’s health staff say “he was eye poking all night and is bulging.” His parents knew that their son’s left eye had been injured. But when they visited again in August for the two-week break they’d planned to spend mountain biking, his right eye was red and it, too, was damaged, according to the lawsuit. They decided to take him home to try to save the eyesight in his right eye. They say Cian had spent much of his time at Shrub Oak isolated in his dorm room, missing class, even eating meals there. “The key to the program was having people to stop Cian from poking his eye and redirecting him to what he should be doing. The staff didn’t know the plan at all,” said Forbes, his mother. A former chiropractor, Forbes years ago returned to school for a master’s degree in education to gain skills to help her son. She is a board certified behavior analyst and a licensed speech-language pathologist and spends most days caring for her son and taking him to activities. “It’s a question of what happens in 10 or 20 years,” said Cian’s brother, Aidan. “A lot of the things going on with Cian have been successful because of my mother.” (Sarahbeth Maney/ProPublica) His parents say Cian’s limited vision prevents him from doing basic tasks as well as the activities he most enjoys. He has trouble plugging in appliances because he can’t see the outlet slots. When trying to garden, he can’t see the holes in the dirt to know where to plant seeds. He still bikes with his father, but he now stays on wide, paved paths instead of biking through trees. At this home earlier this month, Cian used a magnifying device to read and relied on color-coded measuring spoons to make banana bread. He took a Zumba class with his mom at his side. His mother started to cry as she talked about Cian’s future. She was setting up a puzzle in which he puts numbered stickers on a grid to form a picture. He used to do the puzzles easily, but he now struggles to put the numbers in the right spaces. “It’s taken some time to get his interest back into things” and adjust to his worsened vision, Forbes said. “You can’t bring the eyesight back.” Sarahbeth Maney of ProPublica and Mike Reicher and Lulu Ramadan of The Seattle Times contributed reporting.

— A Judge Ruled a Louisiana Prison’s Health Care System Has Failed Inmates for Decades. A Federal Law Could Block Reforms.

 

at 7/25/24 3:00am

by Richard A. Webster, Verite News This article was produced for ProPublica’s Local Reporting Network in partnership with Verite News. Sign up for Dispatches to get stories like this one as soon as they are published. Several months ago, in a lawsuit that was in its ninth year, a federal judge blasted the medical care at the Louisiana State Penitentiary at Angola. Many inmates hoped it would be a watershed moment. In her opinion, U.S. District Judge Shelly Dick excoriated the state for its “callous and wanton disregard” for the health of those in its custody. “Rather than receiving medical ‘care,’ the inmates are instead subjected to cruel and unusual punishment,” Dick said in her November opinion. The “human cost,” she said, is “unspeakable.” She then ordered the appointment of three independent monitors to devise and implement a plan to reform the system. That plan, however, may never come to fruition. Before those monitors could even be chosen, the state appealed the ruling, invoking a federal law — the Prison Litigation Reform Act — that hobbled a similar lawsuit over Angola’s health care nearly 26 years ago. The current case could suffer a similar fate. That class-action suit is now before the conservative 5th U.S. Circuit Court of Appeals. In a March hearing, two of the three judges who heard the case asked questions that appeared sympathetic to the state’s argument that Dick’s ruling violated provisions of the Prison Litigation Reform Act. If the ruling is thrown out, it would close off the most viable path for inmates to force improvements to a medical system that Dick found to be in violation of the Constitution’s Eighth Amendment, which bans cruel and unusual punishment. And it would come as prison policy experts expect a number of new, tough-on-crime laws to increase the state’s prison population, further straining Angola’s medical system. Because this lawsuit concerns one of the country’s largest prisons — and one with a long history of litigation over its conditions — inmate advocates are watching it closely. It is one of many class-action lawsuits across the country seeking to force state officials to improve conditions in their facilities. At some point, said Margo Schlanger, a law professor at the University of Michigan and a former trial attorney in the Department of Justice’s civil rights division, all of those suits will have to contend with the Prison Litigation Reform Act. That’s by design. The federal law was passed to reduce the number of lawsuits filed by inmates, particularly class-action cases that resulted in sprawling, court-monitored reform efforts lasting a decade or more. Supporters of the law said it was needed to weed out frivolous suits that tied state officials up in court and invited judges to meddle in how prisons are run. But the law “did considerable damage to the ability of courts to be a backstop for safe and constitutional prisons,” Schlanger said. Since the PLRA was passed about three decades ago, the number of lawsuits filed by inmates nationwide has dropped by nearly 40%, according to a 2021 report she wrote for the Prison Policy Initiative, a research and advocacy organization; the percentage of inmates in prisons where courts are monitoring reforms dropped as well. Not every lawsuit is doomed to failure, said David Fathi, director of the American Civil Liberties Union’s National Prison Project. In September, Fathi’s team successfully sued to remove up to 80 minors from a former death row unit at Angola. The ACLU also won a lawsuit requiring Arizona to improve medical care in its prisons. Still, those victories are not the norm, Fathi said. “This law is unique in the world,” he said. “There is no other country that has established a separate and inferior legal system that applies exclusively to incarcerated people.” Inmates Sue Over a Broken, Abusive Medical System Some of the earliest allegations regarding Angola’s failing health care system were included in a lawsuit largely concerned with other issues. In that 1971 case, inmates alleged unchecked violence and racial discrimination within the walls of the prison. They claimed that they were crammed into overcrowded dormitories, that they were subjected to rape and that the prison was overrun with weapons that resulted in more than 270 stabbings, 20 of them fatal, in less than three years, according to court documents. As part of that case, a federal judge determined in 1975 that prison officials had failed to provide adequate health care, which amounted to cruel and unusual punishment. The prison remained under court monitoring for more than a decade as officials addressed shortcomings. Nearly 20 years later, that suit spurred another, focused solely on the prison’s medical care. In their 1992 complaint, inmates claimed that it was nearly impossible to obtain the bare minimum of care. They contended they were routinely disciplined for seeking treatment if medical staff determined that their complaints weren’t warranted; their lawyers contended that the fear of punishment caused them to delay seeking care. When requests for medical care were heeded, inmates were generally assessed by staff who had little or no medical training. Those staffers would decide if the complaint warranted an appointment with a doctor or nurse, which didn’t take place for weeks or even months, according to the lawsuit. The wait for surgery could be years. The same year the suit was filed, a patient with AIDS appeared to be “in the process of dying” when staff mistakenly inserted a feeding tube into his lung instead of his stomach, according to a medical expert’s testimony for the plaintiffs and medical records introduced as evidence. The inmate’s breathing became labored and he started “coughing up large amounts of frothy liquid,” according to medical records. He was taken by ambulance to a local hospital, where he died several days later. The cause of death was AIDS, sepsis and aspiration pneumonia, which occurs when food or liquid is inhaled instead of air, according to medical experts. The next year, another inmate was diagnosed with “persistent dislocation of the finger,” which was described in medical records as “black and red in color, with yellow drainage.” A physician at Angola warned that if the injury was left untreated, the bone could swell and require amputation. And yet, although the inmate was seen by medical staff at least 13 times, he never received the needed care, according to a plaintiffs’ court filing. Nearly a year after the inmate first sought help, his finger was amputated. In court, the state denied that it was “deliberately indifferent” to the medical needs of the inmates — the standard under which medical care is deemed unconstitutional — and argued that Angola’s care was “constitutionally adequate.” The state contended in a court filing that the patient whose finger was amputated was seen repeatedly by the prison’s medical staff and provided the necessary treatments, including antibiotics and wound care. The amputation wasn’t the result of a denial of care, the state argued, but was necessary to “promote complete healing” of a chronic condition. As for the AIDS patient, the state claimed that he received care that was “supportive, palliative and which attempted to prolong his life.” The state did, however, note an “unfortunate incident of a misplacement” of a feeding tube. Verite News and ProPublica tried to contact several of the 11 named plaintiffs in that suit and reached one, Thad Tatum, who served 28 years for armed robbery and attempted murder. During a recent interview in his New Orleans home, Tatum shifted back and forth in the seat of a motorized scooter, straining to relieve the pressure in his back. He laid the blame for the loss of function in his legs and right hand on prison officials. In 1988, Tatum was hospitalized for nearly five weeks after another inmate smashed an ice pick into his forehead and neck, damaging his spine. Shortly after the attack, doctors assured him that if his physical therapy continued at Angola, he would walk again, Tatum said. Neither happened, Tatum claimed in the lawsuit. After he was sent back to Angola, the prison’s medical staff failed to provide him with physical therapy, Tatum alleged in court. He told Verite News and ProPublica that when he tried to work out on his own, by lifting weights or pacing the yard with the assistance of a walker, he was ordered to sit in his wheelchair and written up for disobedience and insubordination. The lack of medical attention “is why I am still in this chair,” Tatum said. “Those people just don’t care.” Thad Tatum sits in a motorized scooter outside his New Orleans home. Tatum was injured when he was stabbed by another inmate. He said medical staff at Angola refused to provide him with physical therapy that would have helped him regain the use of his legs and right hand. (Kathleen Flynn, special to ProPublica) The state claimed in court that Tatum did receive physical therapy, and though he had “variable success” walking with a cane, he was never able to walk consistently. His subsequent paralysis was not caused “by lack of therapy but rather by the injury itself,” the state argued. The Louisiana Department of Public Safety and Corrections did not respond to a request for comment on Tatum’s allegations that he was disciplined for working out on his own. Lawmakers Act to Stop “Endless Flood of Frivolous Litigation” By suing the prison, Tatum said, he hoped to force change by exposing the horrors he and others endured. Initially it appeared that the strategy was working. After an evidentiary hearing in 1994, U.S. District Judge Frank Polozola instructed both sides to come to an agreement on how best to address the problems that the inmates had exposed. But as negotiations dragged on, Congress passed the PLRA. The 1996 law came as the nation’s incarcerated population was exploding, along with the number of civil rights lawsuits filed by inmates over conditions. Both had tripled over the previous 15 years. “Jailhouse lawyers with little else to do are tying our courts in knots with an endless flood of frivolous litigation,” Sen. Orrin Hatch, R-Utah, said in 1995 when he introduced the bill. “It is past time to slam shut the revolving door on the prison gate and to put the key safely out of reach of overzealous Federal courts.” To do so, the PLRA instituted hurdles that inmates had to face before filing suit. If they cleared them, the law required judges to consider lesser interventions before they could order court-monitored reforms, typically in response to a class-action lawsuit. With little possibility of court intervention, many plaintiffs agreed to settlements that offered little in damages or reforms, according to three legal experts who specialize in the PLRA. That’s how it played out in Louisiana. On Sept. 21, 1998, inmates at Angola were given an advance copy of a proposed settlement between the state and the Department of Justice, which had intervened in the case on behalf of the inmates. Prison officials had agreed to make a host of improvements to the health care system. If they fixed the problems by the following February, the case would be dismissed with no further court oversight. If they didn’t, the lawsuit would move forward to a possible trial. In addition to those stipulations, the settlement lauded prison officials for what the state and the Justice Department agreed were significant improvements in the delivery of medical care at Angola, including updated laboratory equipment, the addition of telemedicine and training for technicians who responded to inmates’ requests for medical care. In 1998, Angola inmates responded to a proposed settlement in a lawsuit over failures in the prison’s medical system by saying claims that certain improvements had already been made “read like a fantasy.” The settlement was approved the next day. (Document obtained by ProPublica. Highlighting by ProPublica.) Two days later, several inmates fired off a scathing letter to the Department of Justice in which they said the list of improvements so far read like a “FANTASY.” Health care at the prison remained abysmal, they wrote, saying the treatment of chronically ill patients was “non-existent.” Raw sewage often leaked into Angola’s hospital and its kitchen, something they had been complaining about for years. “HOW COULD THIS PROBLEM STILL EXIST AFTER ALL THIS TIME?????” they asked. They concluded by telling the Department of Justice that it had been fooled. Before its inspectors visited Angola, prison officials had time to “cover up and steer you away from the problems here,” inmates wrote. “The hospital has NOT been straightened up as claimed.” The settlement was finalized in court the next day. The plaintiffs’ medical expert, Dr. Michael Puisis, shared many of the inmates’ reservations. In a January 1999 report filed in court, a month before the deadline to determine if the state had made enough progress, he said it would take another year to fix Angola’s health care system. The state’s medical expert, Dr. George Karam, initially agreed, telling the court he found Puisis’ “analysis and interpretations to be accurate.” But Karam reversed his position 33 days later. In a report to Polozola, he noted that his employer, the Louisiana State University Medical School, was about to sign a three-year contract to provide health care services at the prison for $43,200 per month. This, he said, “created an additional comfort zone for me and has made me confident that we can achieve everyone’s stated goal of quality medical care” at Angola. In March 1999, after less than six months of oversight, Polozola decided the state had done enough. He freed it from any further obligations and dismissed the case. The Justice Department did not object to the judge’s ruling. The Justice Department declined interview requests for the attorneys who had been involved with the case and didn’t respond to questions about the settlement. Puisis declined an interview request. Karam did not respond to multiple requests for comment submitted to him and his office. Attorney Keith Nordyke, who represented inmates in the lawsuit, said he understands why they were so angry; he remains disappointed himself. By the time of the settlement, he said, his role in the case was secondary to the Justice Department, so he didn’t have much of a say. Even so, he said, “with the PLRA right there, what leverage did I have?” When the law passed, he said, it felt like “the day of prison reform was coming to a close.” Attorney Keith Nordyke, pictured here in Baton Rouge, represented prisoners in a 1992 lawsuit alleging that medical care at Angola was unconstitutional. Six years later, plaintiffs agreed to a settlement that Nordyke acknowledged was ineffective due to limitations imposed by the Prison Litigation Reform Act. (Kathleen Flynn, special to ProPublica) Lawsuits Tossed Nationwide One measure in the PLRA that has proven to be a significant obstacle for inmates was a requirement that they exhaust options within their prison’s grievance system before filing suit. In order to assert they had been beaten or raped by guards, or denied vital medical care, inmates first had to seek remedies from within the same system that they contended had harmed them. “It really is a case of the fox guarding the henhouse,” Fathi said. Some corrections officials responded by making their grievance process more onerous: Illinois reduced the time inmates had to file complaints from six months to 60 days, according to an investigation by WBEZ and ProPublica. Other states threw out complaints “for tiny technical violations, like writing in the wrong color ink,” WBEZ and ProPublica reported. That rule has caused cases to be thrown out even when inmates allege egregious abuse or misconduct. In 2003, more than a dozen female prisoners filed a lawsuit against the state of New York, claiming they had been subjected to “forcible rape, coerced sexual activity, oral and anal sodomy, and forced pregnancies,” according to Human Rights Watch. The state argued that the women hadn’t gone through the entire grievance process first, and the case was dismissed for that reason. An appeals court partially overturned the ruling because three inmates had exhausted their grievance options. The suit was eventually settled. Thirteen years later, a guard at the Clarence N. Stevenson Unit, a state prison near the Texas Gulf Coast, slammed an inmate into a concrete floor, according to a federal lawsuit. The man lay in a coma in a hospital for two weeks, the Houston Chronicle reported. Texas had a 15-day deadline for inmates to file a grievance; the inmate, Candelario Hernandez, failed to meet it because he was unconscious. A federal judge granted the state’s motion to dismiss the suit because Hernandez hadn’t gone through the grievance process. But because the state said in court that it would have considered a late grievance, the judge granted Hernandez two months to file one. After the state promptly rejected those grievances, the judge reversed his order to dismiss the case. The state’s denial was proof, he wrote, that the grievance process was a “dead end.” The suit is pending. The current lawsuit over Angola’s medical care may be the latest to fall to the PLRA, even though Dick found that there was considerable evidence of failures. In a hearing, a plaintiffs’ lawyer said medical experts had found that 26 of 28 deaths at Angola had “serious medical errors and/or were preventable.” The lawyer said those experts had concluded that Angola’s delivery of medical care was among the worst they had ever reviewed. The state, however, argued that 21 deaths couldn’t have been prevented; it said most of those inmates had serious health problems and were treated properly, some refused treatment, and others had exacerbated their health problems by smoking. Puisis, the plaintiffs’ medical expert in the 1992 lawsuit, is serving in the same role in the current case; he has found many of the same problems he identified in the 1990s. Dick noted this when she ruled for the plaintiffs in 2021: “Given the fact that many of the complaints in this lawsuit … are the same as those ‘settled’ in 1998, the Court finds that Defendants have been aware of these deficiencies in the delivery of medical care at LSP for decades,” she wrote. But in the hearing before the 5th U.S. Circuit Court of Appeals this year, Louisiana Attorney General Liz Murrill complained that Dick has never given Angola officials credit, “at any stage,” for the improvements they have made, which she said include the addition of air conditioning in several medical dorms. (Neither her office nor the Department of Corrections responded to questions about the two lawsuits.) Murrill also rejected Dick’s conclusion that Angola’s medical care was inadequate, saying the state “never conceded there was a violation in the first place.” She argued that the judge’s decision to appoint monitors to oversee reforms infringed on the state’s ability to operate its prisons. “And the PLRA says, ‘Don’t do that,’” Murrill added. The 5th Circuit could uphold or reverse Dick’s ruling, or it could send it back to her to rehear the case, which could include legal arguments over whether her ruling follows the PLRA. Circuit Judge Edith Jones, who was appointed in 1985 by President Ronald Reagan, echoed the state’s arguments in the hearing, saying that Angola prison for too long has “been under a Damocles sword imposed by the federal courts.” If inmates got their way and independent monitors were appointed to oversee the prison’s medical care, she said, the state would have to “jump at every turn and do precisely what they say.” One of the lawyers for the inmates, Lydia Wright of the Promise of Justice Initiative, said she disagreed with that characterization of Dick’s ruling given that the state has failed to fix these problems over three decades. “We’re not talking about anything fancy, or exotic or wild,” Wright said. “We’re talking about basic medical care.” Mariam Elba contributed research.

— California Isn’t Enforcing Its Strongest-in-the-Nation Oil Well Cleanup Law on Its Largest Oil Company

 

at 7/24/24 3:00am

by Mark Olalde 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. Last October, California passed the nation’s strongest law to address the glut of oil and gas wells that are unplugged and ownerless, many leaking pollutants into the environment. The legislation required that, as part of any sale or transfer of wells, the purchasing company set aside enough money in financial instruments known as bonds to cover the entire cleanup cost of low-producing wells if the companies go out of business without plugging them. It was a striking departure from the piecemeal steps taken by other state legislatures and federal agencies to reduce the number of orphan wells. California lawmakers repeatedly cited ProPublica’s work on the subject as a reason to act. But in its first major test, California regulators sidestepped the law. The California Geologic Energy Management Division, the state’s oil regulatory body, announced in late June that the law does not apply to the merger of California Resources Corp. and Aera Energy, two of the three companies that account for the vast majority of the state’s oil and gas production. If the law had been enforced, the deal would have provided billions of dollars in new bonds to ensure taxpayers weren’t eventually left with the cleanup bill. Department of Conservation Director David Shabazian explained the agency’s decision in a letter to Assemblymember Wendy Carrillo, the Los Angeles Democrat who sponsored the new law. The bonding requirements “do not apply to stock transfers, nor does the law make any mention of such transactions,” Shabazian wrote. In other words, because Aera is still listed as the operator of the wells, the state can’t act. That explanation did not appease Carrillo. “This deal is exactly why we passed AB 1167, the Orphaned Well Prevention Act,” she said in an email to ProPublica and Capital & Main. “If a company is drilling for oil in California, they should be responsible for cleaning and closing that oil well. Not enforcing the law as intended sets-up our state for a potential financial catastrophe.” The merger created the largest oil company in the state, with about 16,000 idle wells, which neither produce oil and gas nor are plugged and are at a higher risk of becoming orphans. That’s 40% of the total number of idle wells in the state. “It’s an absurd interpretation of the law,” said Kyle Ferrar, who helped write AB 1167 as Western program coordinator with environmental group FracTracker Alliance. “They’re essentially creating a model to get around this bill.” Richard Venn, a California Resources spokesperson, said in an emailed statement that the companies have plugged more than 5,000 wells and “have active and well-established programs for managing the full life cycle of wells and we have the size and financial resources to address all of our plugging obligations. The merger strengthens those resources.” “Enormous Dereliction of Duty” The majority of California’s remaining oil and gas production comes from western Kern County, including massive oil fields abutting Bakersfield. (Mark Olalde/ProPublica) In December, the California Geologic Energy Management Division wrote to the state’s oil companies notifying them that they should submit paperwork before completing “any acquisition” — agency staff bolded those words — to assist the state in determining necessary bonding levels under AB 1167. “This notice is to ensure that operators are aware of new bonding requirements that must be complied with in advance of acquiring certain wells and production facilities,” regulators wrote. But the state concluded the California Resources and Aera merger didn’t trigger the bonding requirements because of the way it was structured. In the state’s letter explaining regulators’ reasoning, Shabazian wrote that “if the operator of the well remains constant, changes in ownership of the operator’s holding company do not require new bonds.” If regulators had applied the law to the merger, California Resources would have been required to put up an estimated $2.4 billion bond to guarantee Aera’s wells will be plugged, according to an analysis of state data. In comparison, that’s about eight times the total value of all outstanding cleanup bonds for all oil companies in the state. Instead, Aera will continue operating with only a $3 million bond. “This particular transaction is itself tremendously consequential, potentially the most consequential transaction that the state will see,” said Kassie Siegel, a senior counsel with the environmental group the Center for Biological Diversity. Siegel worries that the state’s “enormous dereliction of duty” opens a loophole for the industry. Regulators are “creating a roadmap for other companies to similarly evade the law,” she said. The agency’s decision also came after Aera spent about $250,000 lobbying in California in the first quarter of the year, including on “1167 implementation,” according to the company’s lobbying disclosure form. Neither Aera nor state regulators answered questions about the company’s lobbying. Despite California Resources’ assertions that the company resulting from the merger is financially stable, it faces serious challenges. California Resources was formed when Oxy Petroleum spun off its West Coast assets, and the company has already gone through Chapter 11 bankruptcy. California Resources acknowledged in filings with the U.S. Securities and Exchange Commission that the merger left it and Aera with more than $1 billion in impending cleanup costs between them. In the records, the company also suggested that some of its key assets will reach the end of their economic lives in the coming years. Aera, meanwhile, was sold by Shell and ExxonMobil in 2022 and ended up in the hands of German asset management group IKAV, investment fund Oaktree Capital Management and the Canada Pension Plan Investment Board. IKAV did not respond to requests for comment, while the Canada Pension Plan Investment Board and Oaktree declined to answer questions. The office of Gov. Gavin Newsom, who signed AB 1167 into law with a warning that it might need to be amended, also did not answer questions about whether he agreed with his agency’s interpretation of the legislation. Aaron Cantú of Capital & Main contributed reporting.

— People Are Still Being Swallowed by Storm Drains. One U.S. Agency Is Pushing for Safety Measures.

 

at 7/23/24 3:00am

by Topher Sanders ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. A new federal rule aims to keep people from being pulled into storm drains during heavy rains. It comes after ProPublica’s 2021 reporting on how dangerous and uncovered storm drains were responsible for at least three dozen deaths across the country in a six-year span. The rule, which went into effect in May and applies to new projects funded by the U.S. Department of Housing and Urban Development, builds on guidance the federal agency released in 2022 in direct response to ProPublica’s investigation. It requires that local officials overseeing projects in areas prone to flooding consider safety measures for drain openings, such as grates to cover them. Deaths caused by storm drains continue to occur across the country. In early May, a 10-year-old boy in Christiana, Tennessee, was pulled into a drain while playing with other children in water after severe storms hit the community. The child died 10 days later after his family pulled him off life support. Officials running HUD-funded projects must now, among other measures intended to minimize harm to the environment and people, consider whether they need “protective gates or angled safety grates for culverts and stormwater drains.” Project leaders have to then explain to federal officials which safety features will be adopted and which were considered but not used. A spokesperson for the federal agency told ProPublica in an email that officials believe the new rule and language “will help encourage the use of safety measures for stormwater infrastructure to prevent injury or drownings during flood events.” The rule comes after HUD officials read ProPublica’s investigation and spoke with officials from Denver’s Mile High Flood District who were featured in the coverage. The district has for years preached the importance of installing grates on some inlets to prevent people from getting sucked in when areas flood and stormwater rushes toward open drainage pipes, which are often out of sight below the waterline. It has also developed criteria that cities and towns can use to determine which openings might be dangerous enough to warrant a covering. Holly Piza, research and development director with the Mile High Flood District, said she is happy that language about safety grates made it into the updated federal rule but said time will tell how much of an impact the change will have. “My hope is that by HUD recognizing the importance of public safety in stormwater infrastructure in this way, we continue to see this issue highlighted at a national level,” she said. HUD provides funding for public housing and financial assistance to homeowners across the country. In May, the department announced it awarded more than $3 billion for repairs and other work to public housing developments in all 50 states as well as the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands. ProPublica’s reporting found that a number of storm drain deaths have occurred in drains and culverts maintained by state-run departments of transportation. But neither the U.S. Department of Transportation nor the American Association of State Highway and Transportation Officials, the body that sets standards for state transportation offices, have made any changes to their rules or guidelines about evaluating whether drains should have safety grates. A spokesperson with the association told ProPublica in an email that having a process for deciding whether to use a safety grate would be a best practice, but ultimately the decisions are up to the states and depend on the specific location. Do You Have a Tip for ProPublica? Help Us Do Journalism.

— Maryland Is on Track to Process a Nearly 50-Year-Old Backlog of Rape Kits

 

at 7/22/24 4:00am

by Catherine Rentz ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. One of the country’s oldest backlogs of untested evidence from rape exams is on track to be processed by the end of the year after new laws in Maryland put more than 1,400 cases dating back to 1977 on an expedited timetable. As detailed in ProPublica’s 2021 series “Cold Justice,” a doctor at the Greater Baltimore Medical Center began quietly preserving physical evidence obtained during exams of rape survivors in the 1970s, believing that one day the technology would exist to be able to connect specimens to perpetrators. Despite advancements in DNA science that proved Dr. Rudiger Breitenecker right, and despite the fact that sporadic tests of his evidence have led to the exonerations of two men and solved 80 cold cases, much of the trove has sat unused by the Baltimore County Police Department. The old samples weren’t considered part of the state’s official backlog of untested rape kits, which are subject to legal protections and speedy processing requirements, and they were in danger of being destroyed until ProPublica exposed this gap last year, prompting a new law that brought them under the umbrella of sexual assault kits. Now they are all at a lab, which has a contract to process them by Dec. 31, 2024. The process will determine whether the samples match any DNA profiles logged in national police databases. Before pursuing prosecution, police may have to investigate further; the most recent charge stemming from the trove came not from a direct DNA match to an individual in the system but from a breakthrough relying on other clues that led officials to a fingerprint they had on file. They also have to track down victims, who may have since moved away from Baltimore or died. A third of the samples have already been tested, though police won’t say what they have learned. But a new law requires them to enter all updates into a new tracking system by Dec. 31, 2025. Since the tracking program, which covers all rape kits in the state, went live in late May, 44 survivors with new cases have logged in to check the status of their cases at least 269 times. For survivors trying to find out more about the evidence kits that Breitenecker saved, which have not yet been entered into the system, answers have thus far been elusive. Though county officials held a press conference in April asking survivors who were treated at the Greater Baltimore Medical Center between 1977 and 1997 to call a hotline for more information about their cases, it’s been more than two months and ProPublica has learned that at least some of those callers are still waiting for information. Now, representatives with the police and the nonprofits that handle calls — the Maryland Coalition Against Sexual Assault and TurnAround — have said they have worked through logistical and legal issues and are focused on helping survivors as soon as possible. All the while, a woman named Melanie waits, frustrated. She asked that her last name not be used because she still fears for her safety. She was taken to the emergency room at the Greater Baltimore Medical Center in 1978 after a stranger broke into her home holding a gun and a knife and attempted to rape her. She was 13 at the time and had just gotten home from middle school. She said the man did not succeed in raping her, but he beat her after she fought back and that the hospital and police may still have preserved evidence from the attack; she remembers the emergency room visit but doesn’t remember whether she got an exam for sexual assault. She lives out of state and found out about the testing through local media after the county held a press conference in the spring. More than two months after she called the hotline, she said, she was still waiting for a response from the police. She attributed the delay to the hundreds of other victims who she assumed had called. But the nonprofit charged with operating the hotline said it fielded just seven calls in the month after the press conference. Baltimore County police declined to comment on Melanie’s case, saying they limit what information about these cases is disclosed to the public. Baltimore County is not unlike many police jurisdictions across America, which for decades sat on and even destroyed DNA evidence from rape cases before a national movement took root to clear backlogs and solve cold cases. Shelly Hettleman, a state senator who represents Baltimore County, has championed reforms since 2017 to protect evidence and speed up testing. “The more I dug into this issue, the more I learned that so much needed fixing,” she said. Her “committed and tenacious” efforts have helped Maryland become one of 20 states to achieve “full legislative rape kit reform,” according to End the Backlog, an initiative of the nonprofit Joyful Heart Foundation that advocates nationally for an improved response to sexual assault cases. But Maryland still has a seemingly insurmountable number of untested kits — more than 6,000. That’s one of the highest totals in the country, according to End the Backlog figures, and does not include the evidence collected by the doctor at the Greater Baltimore Medical Center. Authorities have focused in the past on testing kits from cases where the perpetrator appeared to be a stranger to the victim and may have been involved in multiple attacks. As a result, many of the untested kits may prove to hold the DNA of people who were known to the victim and were suspects at the time, such as ex-boyfriends, family members or priests. But academic research shows known suspects can be serial rapists as well, flipping between known and unknown victims. The Department of Justice recommends testing DNA even when a suspect has already been identified because it can help solve other cases. Since authorities have been less likely to test a known suspect’s DNA, those perpetrators are less likely to have a genetic profile in law enforcement databases and their names may not come up even if they attacked others whose kits are now being tested. “There are some things you can legislate and fund, like the tracking system, and there are things you can’t, like culture and mindset,” said Anthony Brown, Maryland’s attorney general, who leads a committee overseeing sexual assault evidence in the state. Many of the serial rapists arrested so far with this cold-case evidence had long criminal histories including assaults, attempted assaults, battery, Peeping Tom complaints and burglary. Some of the rapes might have been prevented had crimes such as the physical assault and attempted rape reported by Melanie been more thoroughly investigated. Last August, for example, police arrested James William Shipe Sr. in connection with five rape reported rapes between 1978 and 1986. Most of the attacks happened on streets near where Melanie lived.  Police connected the five cases through the slide-testing project. Four of the profiles matched each other, but not anyone in the FBI’s DNA system (initial testing didn’t yield a profile from the fifth, according to prosecutors). The break allowing investigators to identify Shipe came from a fingerprint found in an attempted rape case in 1979 for which Shipe was arrested and charged. (Prosecutors dropped the charges at the time; it is unclear why.) Shipe is awaiting trial on multiple rape charges. His lawyer did not respond to inquiries. He has not entered a plea, according to the Maryland judiciary’s online records. The technology to find Shipe had been around for decades; the difference that led to him to be found now was staffing the effort with a cold-case detective, paid for with funds from the reform effort. Melanie said that after she reported the assault in 1978, police began looking for holes in her story. “The first priority of police was to prove the fallacy,” she said. Even though she recalls that police took fingerprints at her home, she doesn’t recall them looking for a perpetrator and now wonders whether it was a serial offender who went on to attack others. She asked, “How many cases could have been prevented had they believed me and taken the case seriously?” Survivors treated at the Greater Baltimore Medical Center between 1977 and 1997 can call the Maryland Coalition Against Sexual Assault at 833-364-0046 or email notification@mcasa.org to opt in or out of receiving information about their sexual assault evidence. Leaders of the coalition and of TurnAround, another local support organization, are separate from law enforcement and survivors can work with them without interacting with police. Author Catherine Rentz is researching what happens when the local government tests evidence and investigates cold cases from the Greater Baltimore Medical Center. She is a journalist and fellow with the Johns Hopkins University Saul Zaentz Innovation Fund, where she is developing this series into a documentary. She asks that anyone who has a personal experience with these cold cases reach out to her.

— The Biden Administration Says Its Trade Policy Puts People Over Corporations. Documents on Baby Formula Show Otherwise.

 

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by Heather Vogell ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. The Biden administration has quietly pushed more than a half-dozen countries to weaken, delay or rethink baby formula regulations aimed at protecting the public’s health — sometimes after manufacturers complained, a ProPublica investigation has found. In the European Union, the U.S. opposed an effort to reduce lead levels in baby formula. In Taiwan, it sought to alter labeling that highlighted the health benefits of breastfeeding. And in Colombia, it questioned an attempt to limit microbiological contaminants — the very problem that shut down a manufacturing plant in Michigan in 2022, leading to a widespread formula shortage. “Infant formula companies want to sell more infant formula,” said Marion Nestle, professor emerita of nutrition, food studies and public health at New York University. “The idea that governments are aiding and abetting them in their commercial enterprise over the public health interest is really shocking to me.” The interference, documented in trade letters sent during President Joe Biden’s first two years, represents the latest chapter in the federal government’s long-running support for the multibillion-dollar formula industry, even as the Biden administration has publicly promised a different approach. As ProPublica reported earlier this year, the U.S. has long used its diplomatic and political muscle to advance the interests of companies like Abbott, which makes Similac, and Mead Johnson, maker of Enfamil, while thwarting the efforts of developing countries to safeguard the health of their youngest children. Through public records, academic research and other sources, ProPublica found evidence of such meddling in 21 countries, plus Hong Kong, Taiwan and the European Union, over decades. In multiple instances, countries either tabled or changed proposed formula regulations after the U.S. lodged objections. The stakes for global health are high. Experts say industry advertising — the target of many foreign regulations — often misleads parents about the benefits of formula products and that promotions such as free samples, discounts and giveaways can result in mothers abandoning breastfeeding too soon. Studies show that can lead to more life-threatening infections for babies and a higher risk for long-term conditions like diabetes and obesity. In January, the Biden administration told ProPublica that it overhauled how the U.S. approaches trade, respecting foreign governments’ efforts to pass regulations rather than immediately deeming such rules trade barriers. The Office of the United States Trade Representative, which advises the president on trade, said that it’s committed “to making sure our trade policy works for people — not blindly advancing the will of corporations.” But the documents, obtained from the agency’s own files through a records request, suggest those corporations still have outsized clout when it comes to baby formula regulation. In early 2021, for example, formula company representatives set up a conference call with USTR staff to oppose legislation in Kenya, which was seeking to restrict formula advertising. Industry consultants shared a 10-page position paper from a trade group criticizing the Kenyan measure. U.S. officials then raised similar issues in their correspondence with Kenyan officials. “Can Kenya explain the need for this provision?” they asked about one advertising-related measure, according to agency records. The U.S. asked whether Kenyan officials had sought input from stakeholders like food makers and retailers. Officials also suggested a host of changes to the proposed law, including recommending that Kenya replace a warning about potential contamination during the manufacturing process with a warning that focused only on “the health hazards of inappropriate preparation, storage and use.” Kenyan officials pushed back, dismissing that suggestion and several others. Kenya needed to pass regulation, they said, because the formula industry “was not voluntarily adhering” to international guidance. Less than half of Africa’s infants under 6 months old were exclusively breastfed, Kenyan officials wrote, and the country was seeking to raise its rate to 75%. The USTR’s office declined ProPublica’s request for an interview about that letter and eight others sent under Biden. A spokesperson also declined to answer written questions. The White House did not respond to requests for comment. The pro-industry letters are the result of a policymaking process in which manufacturers are encouraged to weigh in. In fact, the U.S. Department of Agriculture runs a tracking system that “notifies industry and other users when potentially adverse foreign regulations” come up at the World Trade Organization, an international forum for settling trade disputes. Companies can then “provide input into official U.S. government comments.” Multiple agencies, including the USTR, consider that feedback as they hammer out the official U.S. position, which experts say carries weight because of the country’s economic and diplomatic power. Federal officials then transmit comments — often accompanied by questions — in a letter to the foreign country proposing the regulation. (The USDA did not respond to questions about the process or the Biden-era formula letters.) Historically, the U.S. often lodged objections to new formula rules in public at the WTO. Research shows that before 2020, the U.S. questioned proposed formula regulations in WTO forums more than 30 times — far more often than any other country, even those where foreign formula makers are based. A Long History of U.S. Interference The U.S. has interfered in efforts to regulate baby formula in at least 21 countries, Hong Kong, Taiwan and the European Union, ProPublica found. The meddling occurred over decades across presidential administrations. George W. Bush, 2001-2009 After formula manufacturing debacles killed nine babies, injured nearly two dozen in Israel and sent 54,000 to hospitals in China, U.S. officials criticized Israel’s new safety standards for imports, records show. U.S. officials told the Philippines to back off a breastfeeding campaign and new advertising rules and objected to a formula label warning in South Africa. Barack Obama, 2009-2017 U.S. officials criticized new formula marketing regulations in Vietnam, Thailand, Malaysia and Indonesia. They also pushed back on China’s efforts to ensure the safety of formula imports in the wake of the earlier contamination scandal. Trade officials complained that a Hong Kong effort might “result in significant commercial loss for U.S. companies.” Donald Trump, 2017-2021 U.S. officials reportedly threatened to withhold military aid from Ecuador if it didn’t weaken a proposed resolution in support of breastfeeding at the World Health Organization. The U.S. ambassador later denied the threats. The U.S. also criticized formula advertising restrictions in Singapore, Thailand, Egypt, Rwanda, Kenya and Uganda. Officials also pushed back on efforts to limit formula toxins in Taiwan and Turkey. The Biden administration, however, has relied almost entirely on the trade letters, keeping its critiques of formula regulation largely out of public view, according to ProPublica’s analysis of WTO meeting minutes and other documents. In fact, the nine missives were so under the radar that they surprised even public health experts who follow such developments. “Oh my goodness,” said Jennifer Pomeranz, a New York University professor and expert in public health law and food policy. “I did not know it was this extensive.” The letters carry an implicit threat, often asking for the scientific rationale behind countries’ proposals. If the U.S. feels a nation’s regulations are not justified, it can initiate a legal fight over trade agreements. In one letter from May 2021, the U.S. pushed back against the European Union’s efforts to reduce the amount of lead — a neurotoxin dangerous to children — in formula. The change was based on a risk assessment by a European food safety agency, European officials said, adding, “This measure is considered necessary to ensure a high level of human health protection.” The U.S. wasn’t convinced. “We suggest the EU wait,” U.S. officials said. They cited the ongoing efforts of an international food standards body, which was considering lead limits for a range of foods. (The U.S. Food and Drug Administration, which has no lead limits for formula, told ProPublica it “has been evaluating to what extent if any, infant formula contributes to dietary lead exposure among the very young.”) The U.S. also questioned the science behind proposed limits on cadmium, a probable carcinogen, in formula. The U.S. has no such limits. The EU passed both measures anyway. Other recipients, however, have acceded to the U.S.’ requests. Taiwan, for example, changed a proposed formula labeling law after the U.S. objected to language that said, “Breastfed babies are the healthiest babies.” Taiwanese officials switched to wording the U.S. suggested in a 2022 letter: “Breast milk is the best food for your baby.” The change, while subtle, makes a difference, said Nestle, who is not related to the formula company of the same name. “These statements may seem identical, but the formula industry wants formula to be viewed as equivalent to or better than breastfeeding,” she said. “‘Healthiest’ can seem stronger, and that’s all it takes for formula companies to fight it.” The Infant Nutrition Council of America, an industry trade group, said its members support breastfeeding but “believe that parents should have access to accurate, balanced information on all appropriate infant feeding options.” Formula makers also meet regulatory and “nutritional science” requirements in countries where they sell products, the group’s statement said. Abbott and Mead Johnson did not respond to requests for comment. To be sure, formula remains crucial when babies do not have access to breast milk. But the WTO has long promoted breastfeeding because of its well-documented benefits for babies’ health and cognitive growth. Multiple studies have found fewer infant deaths among breastfed children. Breastfeeding mothers lower their own risk of certain cancers, too. David Clark, former legal specialist with UNICEF and an international public health law consultant, said interventions like those of the U.S. can have a “chilling effect” on countries’ efforts to regulate formula marketing and protect breastfeeding. “It’s like the bully in the playground,” he said. “The U.S. is a big, powerful country.” In 2021, the U.S. sent Colombia questions as it was considering a limit on microbiological contaminants. The country has yet to adopt the measure, said Rubén Ernesto Orjuela Agudelo, an infant nutrition expert at the National University of Colombia. He said such a provision is needed. In 2023, the U.S. sent a letter to Mozambique, challenging a proposal that sought to limit the information formula makers can provide to “higher level healthcare professionals” — a key target of industry lobbying. Trade officials took issue with the country’s description of formulas as “ultra-processed products with high sodium content” that contribute to long-term health problems. The status of the measure is unclear. The country’s embassy did not answer questions from ProPublica. Lori Wallach, director of the Rethink Trade program from the the American Economic Liberties Project, said that Biden’s trade representative, Katherine Tai, has made a significant effort to reduce corporate influence at USTR. But Wallach said it’s possible some career trade officials are still “marching along to the corporate drums that have been setting their path for the last decades.”

— Drug Traffickers Said They Backed an Early Campaign of Mexico’s President. But U.S. Agents Were Done Investigating.

 

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by Tim Golden Leer en español. ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. When the Justice Department shut down a secret inquiry into allegations that drug traffickers had funded the first presidential campaign of Mexico’s leader, Andrés Manuel López Obrador, officials in Washington closed the case forcefully. Over the years that followed that 2011 decision, U.S. law enforcement agencies continued to hear similar reports, including accounts from at least four high-level Mexican traffickers who said their gangs helped to fund López Obrador’s political machine in return for promises of government protection, documents and interviews show. But U.S. investigators did not pursue those claims, in part because they saw little support in Washington for a corruption case against an important Mexican political leader, current and former officials said. “We took our best shot, and they didn’t want to do the case,” one former investigator for the Drug Enforcement Administration said of the 18-month inquiry into López Obrador’s 2006 campaign. “That was it; nobody had any appetite to push it forward.” López Obrador lost that first presidential race and a second in 2012 before winning election in 2018. A sharp critic of his predecessors’ U.S.-backed “war” on the traffickers, he promised to use social programs — “hugs, not bullets” — to dissuade young Mexicans from joining the mafias. But his presidency has seen organized crime flourish as never before. The president has denied that his 2006 campaign took money from the traffickers. He blamed recent reports about the DEA inquiry by ProPublica and other news organizations on a conspiracy to weaken his political party ahead of national elections last month. Yet concerns about possible mafia ties to at least one member of his 2006 campaign staff have also emerged within his own government. The candidate of López Obrador’s party, Claudia Sheinbaum, won the presidential race by a landslide. Although violence was a central issue in the vote, she has signaled that she will follow similar policies in dealing with organized crime. President-elect Claudia Sheinbaum of Mexico (Gerardo Vieyra/NurPhoto via Getty Images) As ProPublica reported this year, the DEA investigation began in April 2010, after a trafficker-turned-informant gave agents a detailed account of the negotiation and delivery of some $2 million to López Obrador’s 2006 campaign. It ended when the Justice Department rejected a DEA-proposed sting operation inside Mexico aimed at the future president’s political team. After Justice officials closed down the inquiry, several high-profile drug traffickers who were captured in Mexico and extradited to the United States offered investigators further information about the mafias’ dealings with López Obrador’s political operation. But, according to previously undisclosed government documents and interviews with more than a dozen current and former U.S. officials, nearly all of that information was filed away or ignored. Although details of the case were closely held, a larger circle of U.S. law enforcement agents was aware that an investigation into López Obrador’s campaign had been aborted in part because of the perceived risks to the U.S.-Mexico relationship. In other cases, investigators said, they were simply more focused on what information they could extract from the traffickers about their mafia associates and the movement of their drugs. Because of the sensitivity of the case, the officials would only discuss it only on the condition of anonymity. The American-born trafficker who was said to have donated the $2 million to López Obrador’s campaign, Edgar Valdez Villareal, known as “La Barbie,” was captured by the Mexican authorities in 2010, just as the DEA probe was gaining momentum. But by the time he and two of his lieutenants were extradited, the case was over. One of those lieutenants, Sergio Villarreal Barragán, a tall former police officer known as “El Grande,” gave the most substantial information to American investigators. In a recent book, a Mexican journalist, Anabel Hernández, quotes unnamed sources as saying the trafficker told senior Mexican prosecutors and two DEA agents in the first days after his arrest on Sept. 12, 2010, that he had personally delivered $500,000 to López Obrador in June 2006, near the end of his election campaign. But a previously unpublished DEA report reviewed by ProPublica makes no mention of that assertion. The two agents’ “Report of Investigation,” dated Sept. 20, quotes the trafficker as saying he “was interested in cooperating with the U.S. Government and would be able to provide valuable information on high-ranking Mexican government officials.” However, officials familiar with the episode said El Grande emphasized that he would only talk once he was safely extradited to the United States. Genaro García Luna, a former security minister, in 2010 (Henry Romero/Reuters) Several former officials said that it was not uncommon for American law enforcement agents in Mexico to edit out allegations of high-level corruption from reports they knew would be shared with other U.S. agencies. Officials familiar with the López Obrador campaign inquiry said they never heard that El Grande claimed to have personally delivered cash to the candidate. El Grande did start talking more openly about Mexican corruption on the extradition flight that took him to Texas in May of 2012, officials said. He described huge bribes to senior officials, including Genaro García Luna, a powerful former security minister who was later convicted on U.S. drug conspiracy charges. He also confirmed he attended the 2006 meeting at which La Barbie agreed to fund López Obrador’s campaign. But the officials added that he was not questioned in detail about those donations because the DEA’s investigation had already been shut down. Three years later, El Grande’s onetime boss, La Barbie, was extradited to Atlanta, where he, too, confirmed some aspects of the 2006 donations, officials said. But the DEA’s inquiry was far enough in the past that investigators did not question him in depth about López Obrador, they added. (Prosecutors also viewed his memory as sufficiently unreliable that they chose not to use him as a witness in the corruption trial of García Luna last year.) Another Sinaloa trafficker, Jesús Reynaldo Zambada García, has testified in two high-profile New York trials that his faction of the syndicate also donated millions of dollars to López Obrador’s political apparatus. But Zambada’s accounts have been vague and fragmentary, in part because federal prosecutors sought to limit his testimony about Mexican corruption. Until his capture by the Mexican authorities in 2008, Zambada oversaw the syndicate’s operations in Mexico City, including the elaborate layers of bribes it paid to safeguard cocaine flights that landed in and near the capital. During the 2018 trial of Sinaloa cartel leader Joaquín “El Chapo” Guzmán, Zambada testified that the gang had paid “a few million dollars” to a top Mexico City security official in 2005, when López Obrador was the capital’s mayor. Zambada indicated that the money was a down payment for protection in a future national government run by López Obrador. In another trial last year, Zambada confirmed that he had told U.S. investigators that his group paid López Obrador’s aide, Gabriel Rejino, “something like” $3 million. Jesús Reynaldo Zambada García is cross-examined during the trial of García Luna on charges that the former security minister accepted millions of dollars to protect the powerful Sinaloa cartel. (Jane Rosenberg/Reuters) The claim made headlines in Mexico, where both López Obrador and Regino denied it. But the story got muddy after a lawyer asked Zambada if he had once told investigators the cartel paid Regino $7 million for López Obrador’s campaign against Vicente Fox. (Fox was the previous president from the conservative party of former President Felipe Calderón; in 2006, López Obrador ran against Calderón to succeed Fox.) Zambada, who seemed puzzled by the question, denied saying any such thing. But a previously unpublished document reviewed by ProPublica shows that Zambada did in fact make such a claim — or that the Homeland Security agent who summarized his debriefing on July 6, 2013, in Washington might have confused one conservative president with another. “López was paid $7 million USD through Gabriel Regino when López was running against President Fox,” states a summary of the interview, which focused mainly on the layers of bribes to police, customs and military officials that Zambada arranged for drug flights into Mexico City and nearby Toluca. Current and former U.S. officials said some extradited members of two other Mexican trafficking groups, the Gulf cartel and the Zetas, told investigators that their gangs also contributed to López Obrador’s 2006 campaign. The first of those traffickers, former Gulf Cartel leader Osiel Cárdenas Guillén, told agents soon after being extradited to Houston in 2007 that his organization had given money to López Obrador’s campaign as well as to government security officials, two people familiar with his account said. But agents did not ask Cárdenas in detail about those purported bribes because they thought then that there was little chance the Justice Department would try to prosecute a corruption case, these people said. An attorney for Cárdenas, Chip B. Lewis, declined to comment on the report. Although López Obrador has insisted in recent months that there is “no evidence” behind the reports of traffickers’ contributions in 2006, documents from his own government show that Mexico’s defense minister had serious concerns about the alleged drug ties of a staff member from that campaign. The concerns focused on a retired army colonel, Silvio Hernández Soto, who was one of López Obrador’s senior bodyguards in 2006 and became a target of scrutiny for both DEA investigators and Mexican prosecutors who led a sweeping anti-corruption case during the Calderón government. A DEA informant who had worked as a trafficker for La Barbie told investigators in both countries that he had been introduced to Hernández in connection with the 2006 campaign and later sought his help in arranging military protection for drug flights through the Cancún airport. In 2012, Hernández was arrested in Mexico along with several army generals who were said to have assisted with the protection scheme. In 2013, however, a new Mexican government abruptly changed course, dropped the corruption investigation and freed all the suspects in the case. Although the accusations against Hernández were never disproved, he went on to serve as a senior police official in western Sinaloa state, the heartland of Mexico’s drug industry. After López Obrador took power in 2018, Hernández was named to a sensitive, high-level post in the Mexican attorney general’s office. But in an extraordinary move that did not become public at the time, the new president’s defense minister, Gen. Luis Cresencio Sandoval, sought to block the appointment, documents show. In a letter to the attorney general on Sept. 12, 2019, Sandoval warned there was “documentary evidence” in both court files and military intelligence databases showing that Hernández “maintained ties with members of organized crime.” The letter cites allegations from the Mexican anti-corruption case — which had also been closely investigated by military prosecutors — and incidents from Hernández’s tenure in Sinaloa. The letter also noted that the senior official who had recommended Hernández for the sensitive post in the attorney general’s office was the president’s intelligence chief, retired Gen. Audomaro Martínez — who had been Hernández’s direct boss during López Obrador’s 2006 campaign. The defense minister’s letter was first reported by the nongovernmental group Mexicans Against Corruption and Impunity, which discovered it in a trove of Defense Ministry documents made public last year by a hacker group, Guacamaya Leaks. López Obrador’s chief spokesperson, Jesús Ramírez Cuevas, said Hernández was not ultimately hired to the attorney general’s office or any other post in López Obrador’s government. He did not comment on why Martínez had recommended Hernández for the position. A lawyer for Hernández did not respond to messages seeking comment. Do You Have a Tip for ProPublica? Help Us Do Journalism.

— Inside the Risky U.S. Probe of Allegations That Drug Mafias Financed a Campaign of Mexico’s President López Obrador

 

at 7/19/24 3:00am

by Tim Golden Leer en español. 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 summer of 2010, as U.S. agents dug into allegations that a powerful drug mafia had poured money into Mexican politics, the investigators took direct aim at the man who is now the country’s president, Andrés Manuel López Obrador. According to confidential government documents obtained by ProPublica, the Drug Enforcement Administration knowingly risked a political furor to try to penetrate López Obrador’s campaign organization before Mexicans could elect a government that might be beholden to the traffickers. From the start, the documents indicate, the Americans’ primary target was López Obrador, then the leader of the leftist Democratic Revolutionary Party, or PRD, and the front-runner in the 2012 presidential race. “Should this investigation yield the evidence suggested by the multiple cooperating witnesses, the DEA will seek to indict AMLO and members of his staff and political party,” one Justice Department document states, referring to López Obrador by his initials. “Thus, this investigation could ultimately affect who runs for president from the PRD party.” The candidate’s possible indictment in the United States, the document adds drily, “would certainly create media attention.” The investigators initially had remarkable success, co-opting a midlevel campaign operative to act as a DEA mole inside López Obrador’s political team. They then drew up an audacious plan for a sting operation in which an undercover operative would offer the campaign millions of dollars in exchange for future protection, the documents show. But that plan never went forward. The inquiry was shut down by senior Justice Department officials in late 2011, as the attorney general, Eric Holder, came under heavy political fire for the failure of another undercover operation in Mexico, a gun-tracking effort known as the “Fast and Furious” case. Former Attorney General Eric Holder testifying in 2012 at a House Oversight and Government Reform Committee hearing on the “Fast and Furious” case (Chris Maddaloni/CQ Roll Call/Getty Images) That decision effectively ended U.S. law enforcement scrutiny of the matter, even as the extradition of major Mexican drug traffickers to the United States brought investigators new allegations about drug ties to López Obrador’s political apparatus in the years that followed. The disclosure of the DEA’s investigation this year by ProPublica and two other news organizations jolted U.S.-Mexico relations and enraged López Obrador, who denied ever taking drug money and went on a weekslong tirade against the DEA, ProPublica and others he said were conspiring against him. “It’s that the DEA no longer likes the policies we are applying because we are an independent and sovereign country,” López Obrador said last month, alluding to his repudiation of the closer antidrug cooperation of earlier Mexican governments with Washington. The president’s spokesperson, Jesús Ramírez Cuevas, said López Obrador would not respond to questions about “false allegations” related to the 2006 campaign. But in a letter, he said the president wanted answers to his own questions about ProPublica’s sources and motives in reporting on the DEA inquiry. “Your reporting has damaged the image of the government and the president of Mexico,” the letter added. Biden administration officials have sought to pacify López Obrador, on whom they are relying to hold back the flow of migrants trying to reach the U.S. southern border. While not denying reports of the DEA investigation, the officials emphasized that it has long been closed and the Mexican president is no longer under investigation. Still, the revelations again raised a question that has long troubled U.S. officials working on Mexico: How should they deal with evidence of high-level corruption in an allied government that is steadily losing ground to some of the world’s most powerful criminals? The documents obtained by ProPublica, which have not been previously disclosed, illuminate how U.S. officials initially weighed that question at a high point in their law enforcement relationship with Mexico and help to clarify why, after the political winds shifted, Justice Department officials halted the investigation before agents had come close to finishing their work. The documents point to some uncertainties of the case, which began with allegations that traffickers had funneled some $2 million into López Obrador’s first presidential campaign, in 2006. (López Obrador lost that race and the one in 2012 before being elected president in 2018.) Although U.S. agents did ultimately corroborate that account with at least five different sources, they never developed any firsthand confirmation that López Obrador himself approved or even knew of the reported donations, officials said. The DEA’s investigation of drug traffickers’ links to López Obrador’s campaign began with Roberto López Nájera, a young Acapulco lawyer who went to work for one of Mexico’s more notorious drug bosses, Edgar Valdez Villareal, a Texas-born trafficker known as “La Barbie.” When López Nájera joined La Barbie’s gang in 2004, it was effectively a branch of the drug organization led by the kingpin Arturo Beltrán Leyva — who was in turn one of several leading figures in the trafficking syndicate known as the Sinaloa Cartel. The alliance was fluid enough, López Nájera later told investigators, that gang leaders sometimes gathered their gunmen for meet-and-greets, lest they encounter one another on the street and mistakenly start shooting. López Nájera eventually turned on La Barbie and made his way to the U.S. Embassy in Mexico City, where he offered his help to the DEA. He was moved into protective custody in the United States and became a prized informant, sitting for endless debriefings and even typing up reminiscences of traffickers he had known and episodes he had witnessed. Edgar Valdez Villareal, a Texas-born trafficker known as “La Barbie,” after his capture in 2010 (Daniel Aguilar/Getty Images) Despite López Nájera’s acknowledged role as a bribe-payer, it took the DEA almost two years to start digging into his account of a January 2006 gathering at which he said La Barbie and two of his key lieutenants met emissaries from López Obrador’s then-surging presidential campaign. As López Nájera told the story, officials said, the meeting at a hotel in the Pacific Coast resort of Nuevo Vallarta ended with a handshake agreement: In return for some $2 million he donated to López Obrador’s campaign, La Barbie was promised official protection if the candidate won, including a say in the choice of key police commanders and even the federal attorney general. In the first months of the investigation, López Nájera worked with the DEA to set up meetings in Florida and Texas with Mauricio Soto Caballero, an operative from López Obrador’s campaign team with whom he had arranged the delivery of La Barbie’s contributions in 2006. The two men remained friendly, and López Nájera told agents that Soto had expressed an interest in making some quick money by perhaps acting as an investor on smaller drug deals. On the night of Oct. 21, 2010, Soto met at a bar in McAllen, Texas, with a couple of men he thought were associates of López Nájera’s. In fact, the men were undercover DEA agents, and they arrested Soto at his hotel hours later. Within days, officials said, he pleaded guilty in New York to a single federal charge of conspiring to traffic cocaine. To avoid prison and return home, he agreed to help the investigators pursue others who had been involved with the traffickers’ donations to López Obrador’s campaign. Mauricio Soto Caballero, an operative from López Obrador’s campaign who agreed to help the DEA as an undercover source (Facebook) The agents, drawn from DEA teams in Mexico City and New York, submitted a “sensitive investigative activity” request to the DEA’s global operations chief, seeking authorization to use Soto as an undercover source. In essence, they were asking to plant an informant inside López Obrador’s second presidential campaign in 2012 and potentially develop evidence against the candidate himself. “Without a confidential source in this position, it would be impossible for any entity to identify the level of corruption involved with a presidential campaign,” one undated document states. Soto “will be in a direct position to tell when a Drug Cartel provided monies to the campaign.” “The ultimate target of this investigation,” the request adds, “is Andres Manuel LÓPEZ-Obrador.” A list of other campaign staff members whom the agents intended to examine, included in a separate document, names two of López Obrador’s former bodyguards from the 2006 campaign and the one-star army general who headed the security team, Audomaro Martínez, now the powerful head of Mexico’s state intelligence agency. According to several current and former officials familiar with the case, the agents had different criteria for choosing their targets for scrutiny. One former bodyguard, Silvio Hernández Soto, had been introduced to López Nájera as a contact who might prove helpful with his cocaine-smuggling efforts. Martínez, who supervised the bodyguards, was viewed as a gatekeeper to the candidate but does not appear to have been implicated in any criminal activity. (An attorney for Hernández did not respond to messages seeking comment, while Martínez did not respond to questions submitted to the president’s spokesperson.) The agents’ first focus of attention was Mauricio Soto’s friend and former boss on the 2006 campaign, Nicolás Mollinedo Bastar, who remained one of López Obrador’s closest aides. Mollinedo had served as the campaign’s logistics chief, responsible for setting up rallies and other events around the country. In an interview, Mollinedo denied that he or the campaign ever took drug money. Soto, who did not respond to numerous requests for comment, has insisted to Mexican journalists that he was never arrested in the United States or collaborated with the DEA. (ProPublica has reviewed six U.S. government documents that state otherwise.) Throughout the 2006 race, Soto told the U.S. investigators, he and other campaign workers would be approached by “unidentified individuals” offering “cash or high value items,” according to a document that summarizes some of Soto’s interviews. “It was understood that these individuals represented the local drug cartel and in return would request security for their organization to traffic narcotics to the United States.” Nicolás Mollinedo Bastar at a campaign event for López Obrador (Iván Stephens/Cuartoscuro) “Although at first MOLLINEDO directed his subordinates not to accept these offers, SOTO-Caballero was instructed to maintain a relationship with these individuals should they need anything in the future,” the document continues. That role continued, another summary of the investigation states, when Mollinedo authorized Soto “to receive the illicit funds and other support” that La Barbie sent to the campaign. Soto told the investigators he discussed the Sinaloa contributions only with Mollinedo, to whom he turned over two large deposits of the traffickers’ cash, former officials familiar with the case said. The agents suspected that López Obrador, who had a reputation as a micromanager, could not have been unaware of such a large donation. But Soto told them he did not know if the candidate discussed the money with Mollinedo, one of his most trusted aides, or with the two businessmen who had claimed to represent his campaign at the meeting in Nuevo Vallarta. López Nájera had told the investigators he had been introduced to López Obrador during a 2006 campaign stop in the northern state of Coahuila, where the candidate spoke to a huge crowd assembled with financial help from La Barbie. López Nájera said he called La Barbie and handed his cellphone to López Obrador, who then thanked the trafficker for his donations. But officials familiar with the case said agents treated that claim skeptically: Even if López Obrador knew who was on the phone, whatever López Nájera thought he heard of the conversation would be hearsay. (López Obrador has said he would resign the presidency immediately if anyone could prove he spoke to the trafficker.) Although the agents’ target list was both ambitious and sensitive, DEA officials said they assumed from the start that the limits of such an investigation would inevitably be set by senior policy officials in the Justice Department and other agencies. “We were going to try to collect as much information as we could,” said a former senior DEA official who oversaw the matter for a time but, like others, would only discuss it on the condition of anonymity because of its continuing sensitivity. “You knew it was going to be a long road because of the political ramifications. And it was not surprising to us that they basically pulled the plug.” From the start, the investigators faced a deadline: The federal prosecutors who were guiding their efforts from Manhattan believed the statute of limitations on drug-conspiracy crimes related to López Obrador’s first race would run five years from the day of the vote, July 2, 2006. By early 2011, the investigators had only months left to bring charges based on the earlier campaign. While working secretly with the U.S. agents, Soto attended weekly meetings in Mexico City with López Obrador and the small team that was preparing his 2012 presidential run, documents show. Soto remained close to Mollinedo, who was almost constantly at López Obrador’s side. Once officials approved Soto’s deployment as an undercover source, the agents focused their attention on Mollinedo. Hoping to further confirm his role in accepting the 2006 donations, the agents gave Soto a concealed recording device and sent him off on April 8, 2011, to surreptitiously record a chat at López Obrador’s political headquarters. The results were disappointing. The recording was partly unintelligible, and at one point Soto shut off the device — accidentally or perhaps deliberately, the agents weren’t sure. A two-page summary of the conversation states that Soto (referred to as “the CS,” or confidential source) told Mollinedo he was concerned that the Mexican authorities had arrested both La Barbie and a lieutenant who had joined him at the Nuevo Vallarta meeting, Sergio Villarreal Barragán, an imposing former police officer known as “El Grande.” In the recording, Soto said he was also worried about a still-mysterious government witness who had been identified in court papers and news reports by the code-name “Jennifer.” The witness was then making headlines as the source for a big drug-corruption case, “Operation Clean-up,” and the two men had apparently figured out that Jennifer was in fact López Nájera — the young trafficker with whom Soto had dealt during the 2006 campaign. Mollinedo was apparently worried, too. He said he doubted the traffickers would be credible witnesses, and he cut short the conversation, saying he had to meet his wife and daughter. Soto offered him a ride, but during the drive Mollinedo “mostly talked about a mistress he was currently involved with,” the summary states. Referring to Soto, the document adds: “The CS advised investigators that he/she was not able to specifically discuss the money payments during the 2006 campaign because the CS and MOLLINEDO were never able to speak in private at the office.” A month later, the agents tried again. A second recorded conversation on May 9 focused partly on a former bodyguard from López Obrador’s 2006 campaign, Marco Antonio Mejía, who had been making statements to prosecutors after being arrested on corruption charges while running a prison in Cancún. Back in 2006, Soto had introduced Mejía to López Nájera as a potentially useful contact for the traffickers. In talking with Mollinedo, Soto worried aloud that López Nájera and Mejía could turn against them. (Mejía, who denied any wrongdoing during his legal case, could not be reached for comment.) Mollinedo was a step ahead of Soto, having already obtained a copy of Mejía’s confidential court file with the statements of various witnesses. “It’s just vague things,” Mollinedo said of the prosecutors’ file. “But they probably have a file on us.” Parts of the conversation were again unintelligible, and much of the men’s language was ambiguous or deliberately coded. There were a few references to money that was delivered (presumably to the campaign) and a mention of the man who had first introduced Soto to López Nájera (presumably to arrange delivery of the traffickers’ donations). DEA agents viewed the transcript as proof that Mollinedo — one of López Obrador’s closest confidants — was fully aware of La Barbie’s donations in 2006 and who had delivered them. “These meetings have revealed evidence corroborating the initial information,” the agents wrote in a subsequent investigative plan. But Mollinedo made no explicit statements about the traffickers’ donations or what his responsibility for them might have been. As potential evidence, the prosecutors thought it was thin — the sort that a good criminal defense lawyer could tear to pieces in court. “When you’re dealing with a sensitive, high-level political setting, the level of predication you need goes way up,” a former Justice Department official familiar with the case said, referring to the strength of the evidence needed to prove a corruption case. “That’s true domestically, too.” Over the next few months, as the statute of limitations deadline came and went, the agents pivoted to a more ambitious plan: They would set up a sting operation, officials said, using Soto to introduce Mollinedo to a carefully chosen undercover operative — perhaps a real former trafficker from another Latin American country who was cooperating with the DEA. As the presidential race heated up, the operative would offer a huge donation, maybe $5 million, in return for a promise that a López Obrador government would tolerate his future trafficking activities. If Mollinedo accepted, the purported donor would offer a down payment or good-faith gift of $100,000 cash. If Mollinedo pocketed it, they would seek to have him arrested and try to pressure him to cooperate against others, including possibly López Obrador, officials said. Over the course of the investigation, the documents indicate, the DEA chief in Mexico, Joseph Evans, briefed senior U.S. diplomats in Mexico on its progress. (Evans declined to comment on the matter.) But the inquiry coincided with a period of upheaval at the U.S. Embassy. The ambassador, Carlos Pascual, resigned in March 2011 after conflicts with the Mexican government that escalated when Wikileaks released secret diplomatic cables in which he had criticized Mexican counterdrug efforts. The documents viewed by ProPublica underscore officials’ concerns about the sensitivity of the investigation and the perils of running an undercover operation inside Mexico — a step they were generally obliged to inform the Mexican government about under the terms of a 1998 agreement on law enforcement cooperation. Like other especially risky operations, the agents’ plan was submitted to a panel of DEA and Justice Department lawyers and policy officials called a Sensitive Activity Review Committee. That review, on Nov. 22, 2011, in Washington, “revolved around the concerns of what the Mexicans have been briefed on and what they will or will not be briefed on in the future,” a summary of the case states. DEA officials noted that the problem of official corruption was at the core of Mexico’s failure to make real headway against the traffickers, officials said. U.S. law enforcement agencies were then working for the first time with a strongly supportive Mexican government, that of President Felipe Calderón, a bitter rival of López Obrador’s. DEA officials suggested that they could discuss their plan with Calderón’s intelligence chief, who could brief the president without other Mexican officials learning of it. Former President Felipe Calderón in 2011 (Mario Tama/Getty Images) But, as some foreign policy and Justice Department officials saw it, the proposal could hardly be more fraught with peril for the U.S. relationship with Mexico. “A sting operation against the leading presidential candidate, who is also the arch-rival of the sitting president?” one former senior U.S. diplomat asked rhetorically. “Are you kidding me?” A former Justice Department official familiar with the debate added: “You’re not in a situation where you can put an agent in there, so you’re dealing exclusively with people who are informants and criminals. It’s not just about the target of the investigation — it’s about what you’re proposing to do.” Despite Calderón’s strong partnership with the United States and a flurry of strikes against major traffickers including the Beltrán Leyva gang, the potential for things to go catastrophically wrong in the two countries’ relationship was already on public display. For months, a major scandal had been raging over a long-running effort by the Bureau of Alcohol, Tobacco, Firearms and Explosives to secretly track illegal U.S. guns going into Mexico. Hundreds of guns had been allowed to move freely to the trafficking gangs and other criminals, but the tracking had failed miserably. When the guns were identified from crimes or seizures, it was determined that they had been used in the killings of more than 150 Mexican citizens. The Mexican people, including Calderón, were furious. “You have to have a long view about the relationship and the costs,” the Justice Department official said. “Not just the foreign policy concerns of other agencies, but also to DOJ. I had 10 other prosecutors who had cases that depended on working with (the Mexican government). And they were going to be really angry if this blew up.” On Oct. 1, 2013, with no further prospects for the DEA investigation, Soto returned secretly to federal court in Manhattan to be sentenced on the cocaine-conspiracy charge to which he had pleaded guilty almost three years earlier, officials said. With the prosecutors’ endorsement, a judge gave him five years’ probation but did not require him to report back in person. He flew home almost immediately, officials said, and went back to work in the Mexico City government. Do You Have a Tip for ProPublica? Help Us Do Journalism.

— Jiaai Zeng Died Weeks After Starting Work at an Oklahoma Marijuana Farm. His Family Wants Answers.

 

at 7/17/24 3:00am

by Sebastian Rotella and Kirsten Berg, ProPublica, and Garrett Yalch and Clifton Adcock, The Frontier 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 produced in partnership with The Frontier. Additional funding for this story was provided by The Pulitzer Center. On the morning of April 12, the farmworker woke up struggling to breathe and delirious with fever. Jiaai Zeng had spent the past month working nonstop at a marijuana farm in Oklahoma run by fellow Chinese immigrants. The job was brutal, the 57-year-old had told relatives in New York. He said his bosses made him labor up to 15 hours a day in the blast-furnace heat of a greenhouse. He was feeling awful even after a visit to the doctor, so he planned to return to New York that evening for medical treatment. At 9:38 a.m., Zeng sent an audio message to a cousin in Manhattan’s Chinatown. In an agonized whisper, he asked her to buy a bag of oranges for when he arrived. “I don’t want to eat anything,” he said, speaking a dialect of Fujian province. “I just want to take a look at oranges and see if I’ll have an appetite.” About an hour later, Zeng was unconscious and had no pulse when three people from the farm drove him to a nearby hospital. They dropped him off and left in a hurry while doctors were trying to revive him, according to a hospital report. By 11:05 a.m., Zeng was dead. “This death is not normal,” said his nephew, Westin Zeng, in an interview with ProPublica and The Frontier. “He lives there for a little bit over 30 days: from a healthy person to a dead person. It doesn’t make sense to me. ... In my mind, there’s a logical link from his work to his illness, and from his illness to how they handle that, and a link to his death.” The farmworker’s story gives a glimpse into the harsh and often abusive conditions endured by the tens of thousands of Chinese immigrants who have quietly become the backbone of many U.S. marijuana operations. “It is one of the most deplorable parts of what we see in this industry,” said Donnie Anderson, the director of the Oklahoma Bureau of Narcotics, who met with Zeng’s relatives and ordered an investigation. Cannabis farms have boomed in states that have passed medical and recreational marijuana laws. But when voters in Oklahoma approved a law allowing the cultivation of medical marijuana in 2018, legislators didn’t develop corresponding regulations to protect employees. Oklahoma’s historically weak labor enforcement system leaves the protection of workers largely to the federal government. And the U.S. Department of Labor has limited oversight because marijuana is illegal at the national level. As a result, workers who are already isolated by language and culture have found themselves largely at the mercy of their employers, often criminals who rely on Chinese immigrant labor. As ProPublica and The Frontier have reported, Chinese mafias — some with suspected ties to the Chinese government — have taken advantage of state-level legalization to dominate a nationwide black market for marijuana. During raids, inspections and investigations at more than a thousand farms over the past five years, Oklahoma law enforcement officers, fire marshals, federal labor inspectors and other officials have encountered a litany of abuses: bosses threaten and beat workers, sexually assault them, steal their wages, confiscate their IDs, restrict their movements and force them to work in dangerous heat with noxious chemicals and pesticides. Wrongdoing is rampant at many Chinese-owned farms, where immigrants are often so fearful of their employers and the authorities that they do not cooperate with investigations, according to law enforcement officials, court cases, human rights advocates and workers. The mistreatment and squalid conditions are the hallmarks of human trafficking, said Craig Williams, the chief agent of the marijuana and human trafficking sections of the Oklahoma Bureau of Narcotics. “It’s hard to convey what it’s like until you’re standing there, looking at the people, looking at the environment, smelling the environment, seeing what they’re living in,” Williams said. “Your heart goes out to them like, ‘This is just wrong.’” While problems are particularly bad in Oklahoma, studies and media reports have detailed similar risks nationwide to laborers, many of them recent arrivals who crossed the Mexican border illegally. Exploitation of Chinese immigrants pervades the marijuana underworld from California to New Mexico to Maine, according to interviews and court cases. And even overseas, authorities have found patterns of mistreatment at Chinese-run marijuana sites from Chile to Ireland. “These are people living in a situation of semi-slavery,” said a police official in Spain, a center of illegal marijuana cultivation in Europe, who spoke on the condition of anonymity for safety reasons. “They are locked up 24 hours a day. They don’t know what country they live in. They don’t have contact with the outside world.” During raids in 2021 on cannabis plantations hidden in warehouses near Barcelona, Spain, police freed 10 immigrants from Fujian whom gangsters had forced to work to pay off smuggling debts of up to $35,000. The drug traffickers locked the workers in the dirty, windowless buildings, making them sleep on mattresses on the floor. Some of the victims spent up to a year in captivity, police said. “Everyone has a different story, but the bottom line is that they have not escaped the darkness of China,” said Ju Ma, a Chinese human rights advocate who runs a migrant shelter in New York that has aided marijuana workers. In the Zeng case, the federal Occupational Safety and Health Administration and the Oklahoma Bureau of Narcotics are investigating. The Office of the Chief Medical Examiner recently concluded that the cause of the farmworker’s death was pneumonia. “They are making so much money in the marijuana industry, but they are treating the workers like slaves,” Westin Zeng said. “I want to find out everything that happened and get justice for my family.” The farm’s owners have not been sanctioned or charged with a crime in relation to the case. Jeffrey Box, a lawyer for one of them, rejected the Zeng family’s allegations that neglect and harsh working conditions played roles in the farmworker’s death. Official data and reports on labor in the marijuana industry are sparse, and Chinese workers rarely talk about their experiences. To report this story, ProPublica and The Frontier interviewed several dozen current and former law enforcement officials in the United States and overseas, other government officials, farmworkers, human rights advocates, lawyers and others. Reporters also reviewed court documents, medical files, government reports and social media posts in English, Chinese and Spanish. The reporting reveals a saga of despair that remains largely out of sight for the U.S. public. Zeng’s case is rare because his family has spoken out. Many Chinese immigrants enter the nation’s marijuana industry hoping to plant the seeds of new lives, but they end up suffering in silence. “If they go missing, no one’s going to report anything,” Williams said. “I sincerely wonder how many people are buried on illegal marijuana grows.” The Journey Jiaai Zeng (Courtesy of Zeng’s family) Zeng was born in a village in Yongtai County, Fujian. His nephew remembers him departing at dawn to cultivate rice and plum trees, and returning after dark. “If people were carrying two baskets of stuff, he carried four,” said Westin Zeng, now a 32-year-old business consultant in New York. A father of two, Zeng also did itinerant manual labor in Shanghai and other cities to support his family, including his father and a grandson who are both disabled. In 2021, he converted to Christianity (his U.S. relatives are Christians), which caused police in his hometown to harass him, according to an account he later wrote for a U.S. immigration court. At the same time, the pandemic was worsening China’s economic woes and the hardships of its working people. Zeng decided to leave. His U.S. relatives lent him about $65,000 for the smuggler’s fee. The money included a payoff to expedite issuance of a passport by Chinese officials in Fujian, a coastal province whose longtime smuggling underworld intertwines with official corruption. Zeng traveled via Bolivia and Mexico, climbing the border fence into San Diego in December 2022. After Border Patrol agents arrested him, he requested political asylum and was released. He arrived during a multiyear surge of immigration from China. In the first eight months of the 2024 fiscal year, the U.S. Border Patrol apprehended around 31,000 Chinese nationals illegally crossing the southwest border. That’s over 15 times more than the entire 2019 fiscal year. Some Chinese border-crossers find work in marijuana operations after they arrive. Others are smuggled across the globe specifically to work in the cannabis industry. A former senior Drug Enforcement Administration official said the agency has learned about these clandestine labor pipelines from informants and a jailed high-level human trafficker and money launderer. “The word goes out: We need more manpower for all these marijuana farms,” said Christopher Urben, who is now a managing director at the global investigations firm Nardello & Co. “The same networks are involved in weed, money laundering and human smuggling.” Blackwell Zeng became a regular worshipper at this church in New York. (Sebastian Rotella/ProPublica) When Zeng reached New York in early 2023, he gave thanks at a Fujianese church in Chinatown and became a regular worshipper. “He was surprised how much people were willing to support him,” Westin Zeng said. “He was really touched. He told my father it’s totally different here.” Zeng first worked at a restaurant and then, at the suggestion of a cousin employed in the marijuana industry in Oklahoma, spent a month last summer working at a marijuana farm there. He had no complaints about that experience, his family said. He saved money to send to family in China and to pay off debts incurred by his overseas journey. Back in New York, Zeng, who had just gotten Medicaid insurance coverage, underwent a medical checkup in early March that did not find serious ailments, according to the doctor who examined him, medical documents and his family. On March 7, Zeng returned to Oklahoma to work at a farm in the small town of Blackwell, near the Kansas state line. Photos and public records show the 65-acre lot had six greenhouses and nine indoor grow houses and, according to Zeng’s family, the farm employed about 13 workers. The metal fence displayed signs depicting a pistol above the warning “Lawful Concealed Carry Permitted on Premises.” Zeng earned about $4,500 a month for trimming plants, spreading fertilizer and doing pest control, his family said. His shift began at 7 a.m. and lasted as late as 10 p.m., with no days off. He slept in a cubicle in a partitioned room in the red-roofed main house. In calls to relatives, Zeng sounded unhappy. Although his bosses and co-workers were also Fujianese, they mistreated him because they were from another county with a different dialect, he told his relatives. The meals were meager, workers were quitting because of the intense pace and the plastic-covered, dome-shaped greenhouses were infernally hot, he told them. “He was complaining to my aunt that he had to work almost naked because it was too hot in there,” Westin Zeng said. “The only way to cool down was to spray himself with water.” Oklahoma Bureau of Narcotics agents took these photographs to document the extreme heat in greenhouses on marijuana farms; the temperature was in the triple digits even after the plastic sides of the buildings were cut open for ventilation. (Oklahoma Bureau of Narcotics) Investigators have documented heat reaching over 120 degrees at some farms, Williams said. During raids, agents routinely cut the sides out of the greenhouses to dissipate the heat and fumes from chemicals. Agents wear oxygen monitors because farmers pump in CO2 to enhance the growth of plants, a practice that depletes oxygen levels without agents, or laborers, realizing it. “I worry about our agents’ health all the time,” Williams said. “And those workers are living in it.” Government and academic studies have found that heat and humidity in the greenhouses can promote bacterial growth and cause heat stress, and that chemicals, gasses and other substances at marijuana farms can result in ailments ranging from allergies to fatal asthma. Other research shows that extended time in excess heat can cause human organs to shut down. Fires and explosions are another hazard. And many farmers use toxic pesticides smuggled from China or across the Mexican border that have made workers sick in California, officials said. The extent of such hazards at the Blackwell farm is not clear. Zeng told his family that he sometimes wore a mask because of the smell of chemicals and marijuana, his relatives said. Box, the lawyer representing an owner of the farm, disputed the family’s allegations about extreme heat and other conditions at the farm. Zeng worked at this farm in Blackwell, Oklahoma. (Garrett Yalch/The Frontier) Around April 9, Zeng fell ill. Someone from the farm took him to a doctor in Oklahoma City on April 10. The doctor diagnosed cystitis and a urinary tract infection — conditions that research shows can be exacerbated by heat stress — and prescribed an antibiotic, according to medical records and the relatives. (The doctor declined a request for comment.) That night, Zeng talked to his family about flying back to New York, where his insurance would help cover further treatment. “I want to give it a few days, wait until I get better, then leave,” he said in an audio message. Despite the antibiotic, his condition deteriorated. His bosses bought him a plane ticket to New York for the afternoon of April 12, his family said. That morning, he recorded the audio message to his cousin. “You can hear he was dying,” Westin Zeng said. At 10:35 a.m., an hour after Zeng sent the message, a minivan pulled up to the emergency room at Stillwater Medical Center-Blackwell. Nurses found Zeng slumped unconscious wrapped in a blanket. They began CPR, put him on a stretcher and rushed him inside, according to the hospital report. The woman and two men who brought him from the farm claimed they did not speak English and provided little information “other than the patient’s date of birth and his name,” the report says. Using a Mandarin-speaking phone interpreter, the nurses got a few answers from the woman, who identified herself only as Stella. She “was not very forthcoming” and asked several times when she could leave, the report says. She denied knowing Zeng but explained that he worked at a marijuana farm, had been sick two or three days and had seen a doctor, the report says. Stella “left with the other two males,” the report says. “CPR continued.” Doctors pronounced Zeng dead a half hour after his arrival. Tests revealed he had sepsis and pneumonia, the report says. A hospital spokesperson declined to comment. “Selling Hope” (Stefano Summo for ProPublica) Zeng died at a time when Oklahoma is confronting the dark side of its rush into the marijuana frontier. In 2018, voters passed the ballot petition that legalized medical marijuana with 56% of the vote. The petition written by citizens included virtually no regulations. The following year, the state Legislature approved several regulations protecting consumer access to medical marijuana, but it did not address the health and safety of the marijuana workers. At the peak of the billion-dollar marijuana boom in 2022, the state had almost 10,000 cannabis farms, which have an estimated average workforce of 15 to 20 employees per site. Although a crackdown on black market marijuana trafficking has cut the number of farms, authorities still come across abusive, squalid and unsafe workplaces. Problems are endemic at Chinese-owned farms engaged in illicit activity, officials said. Workers often tell investigators their bosses promised to pay them at harvest, then claimed the harvest wasn’t big enough. Owners sometimes offer new hires an eventual cut of the profits, and even entice them to invest hard-won savings in the ventures, then rip them off, according to law enforcement officials and workers. “We see promised pay that hasn’t been delivered on very frequently now,” Williams said. “They think they just have to work in a really bad environment for a while and think it’s going to pay off at the end. They don’t realize they’re working on an illegal grow. And that the work they’ve done, they’re never going to get paid for anyway. To some degree, they’re selling hope.” In a rare workplace enforcement case in 2021, the Oklahoma Department of Labor judged that four Chinese employees were owed a combined total of nearly $57,000 in unpaid wages and damages after investigators found they were not paid for months of intense physical labor at a marijuana farm in southern Oklahoma. “We were overworked,” said Yulin Zheng through an interpreter in an interview with ProPublica and The Frontier. Nearly 50 employees worked up to 14 hours a day, no days off, and lived in trailers without air conditioning, she said. Zheng and her husband, Chang Qin Jiang, both in their late 60s, took jobs in Oklahoma after someone told them cannabis was a lucrative industry. They were each paid $4,000 in cash the first month. But the next month, a boss told them he didn’t have the money, according to screenshots of text messages they included in a complaint to the Labor Department. “I’ll pay the wage in several days, probably next week,” he said in a text message. “Believe me!” The cash never came. Months later, he told them they could make money if they bought one of the farm’s greenhouses to grow and sell marijuana themselves, the couple said. “It was like a chicken game,” Zheng said. “They were trying to keep as much money as possible.” The employer eventually abandoned the farm, leaving many workers without food or transportation, according to the couple and court documents. The couple’s son in California drove to Oklahoma and helped them file the successful claim. Later, an owner of the farm tried to apply for bankruptcy, but a court found she had not disclosed hundreds of thousands of dollars in income from marijuana ventures, court documents say. Public records also show that the phone number for the farm belongs to the Chinese owner of a furniture store in Oklahoma City that the FBI raided last year in an investigation that led to three other people being convicted. Investigators found that the store was being used as a front for a criminal network that trafficked marijuana to the East Coast using fake Amazon delivery vehicles. Workers at other farms have recounted their struggles in Chinese-language blog posts. In 2021, an electrician at a farm near Maramec, Oklahoma, alleged that his employer threatened to “have our legs broken” when he and his wife asked for months of wages they were never paid. Another woman at the same farm described how a boss “grabbed an iron bar and a gun” to menace her during a confrontation over unpaid salary. Court documents show the farm was later raided and the owner convicted on drug charges. Scams are common in other states as well, according to interviews and court files. “What we see is Chinese nationals who are either here legally … or were smuggled in across the Mexican border and are forced into labor, or more often tricked into labor,” said Kevin McInerney, a commander at the California Department of Cannabis Control. Agents in Southern California are investigating the recent case of a woman who invested $10,000 to work at a marijuana farm in exchange for a small monthly wage and an eventual cut of the profits. After she toiled in awful conditions, the employers refused to pay her first month’s salary. She stopped working in protest, so they drove her out into the desert and abandoned her at a gas station, officials said. Pervasive criminality makes the marijuana business “inherently more violent” than other industries, said Whitney Anderson, who directs The Dragonfly Home, a shelter for victims of human trafficking in Oklahoma City. Workers in Oklahoma have suffered beatings and even died in robberies and shootings. In one case, an employee told police her boss grabbed her by the hair, fired shots near her head and threatened to kill her and her daughter, according to court documents. Sex crimes are also a danger. A 42-year-old former supervisor at a cannabis farm in Noble County is facing charges of rape and sexual battery after he allegedly assaulted an employee in her sleeping quarters in 2022, court documents say. He had previously tried to assault her at work by slipping a dose of ketamine into her drinking water to incapacitate her, but a co-worker intervened, the documents say. The former supervisor has pleaded not guilty and is awaiting trial. “I’m so scared [he] will take revenge on me, my daughter, or family,” the woman wrote in a request for a protective order. “I have to live in fear every single day.” And in another dramatic incident in 2021, a Chinese worker in Garvin County escaped from a marijuana farm and ran to a nearby house, where he banged on the door screaming for help. A man and a woman chased him down and tried to drag him back across the road, according to 911 call transcripts, court records and interviews. “They had a big old fight in my front yard,” Diann Skinner, who lives in the house, said in an interview. “They’d tackle him, he’d get up and take off and they’d tackle him again.” Frightened neighbors and passing drivers called police, who arrived as the assailants wrestled with the escaped worker. The 37-year-old victim told officers that the woman and two men had held him against his will for three months and forced him to work. He was “extremely scared” of his captors and “believed they would try to kill him,” a police report said. Police found 1,500 pounds of illegal marijuana, $32,000 in cash and two pistols in the run-down property, which served as a processing depot for Chinese-owned farms involved in illicit trafficking, according to court documents and interviews. Prosecutors filed charges of kidnapping and drug trafficking against the suspects. But the victim quickly left the state, making it impossible to pursue the kidnapping charge. The two men were convicted of the drug offenses and sentenced to two years in prison. The charges against the woman were dropped. Fifty Thousand Dollars Westin Zeng (Clifton Adcock/The Frontier) The day after Zeng’s death, his distraught nephew hurried to Oklahoma City and met with a man and four women from the farm. They had a tense conversation in the lobby of an apartment building, he said. “They said, ‘We did everything right,’” Westin Zeng said. “The attitude of these people to me was, the whole tone of the conversation was, ‘It was your uncle’s fault.’” The group did not give their names and offered to pay $50,000 if the family kept silent, Westin alleges. He said he refused. ProPublica and The Frontier used photos, social media, public records and other sources to identify the owner of the farm, Xiuna Chen. Westin Zeng recognized her as one of the people at the meeting. Chen has not been charged with any crime. But public records show that her Blackwell farm has multiple ties to another farm that was recently raided by the Oklahoma Organized Crime Task Force, which led to six indictments. The defendants have pleaded not guilty. Chen referred reporters to Box, her lawyer, who accused the dead worker’s family of trying to “shake down” his client “for a ton of money.” Another woman that Westin Zeng recognized from the meeting is Zhixin Liu, who on social media goes by Stella — the name given by the woman who brought Jiaai Zeng to the hospital. Liu’s phone is on the marijuana license for the Blackwell farm, and she is identified as its owner on a report by firefighters who responded to a fire there in April. In 2022, Liu established a corporation with Zenith Top LLC, an Oklahoma City firm that has been raided for allegedly setting up illegal marijuana ventures, public records show. She listed her address as a house that belongs to a suspected owner of Zenith Top, according to public records and court documents. The owners of the firm have not been charged, though agents have executed search warrants and initiated money forfeiture actions against them that are awaiting trial. Liu declined requests for comment. While in Oklahoma, Westin Zeng met with the state anti-drug director and an official at OSHA. Officials at both agencies told ProPublica and The Frontier that they are investigating the farmworker’s death and the Blackwell farm. The family’s engagement with authorities is unusual. Many workers who feel they have been victims of wrongdoing don’t have contacts in the U.S. or their relatives are fearful and speak little English, officials said. Last year, the state narcotics bureau succeeded in building a human trafficking prosecution in a grim case: The accused ringleaders forced women to work as prostitutes at a brothel catering to owners and managers of Chinese-owned marijuana farms, flying the women to Oklahoma City from New York, according to court documents. In general, though, the reluctance and elusiveness of victims discourage authorities from filing charges of human trafficking or workplace abuses. They focus instead on drug-related offenses by the owners. The clash between state and federal laws combined with weak regulation make workers in Oklahoma especially vulnerable. Oklahoma leaves regulation of workplace safety to OSHA, but the agency does not proactively monitor marijuana worksites in Oklahoma, and it only investigates in extreme cases such as job-related injuries or deaths, officials said. Because marijuana remains illegal at the federal level, OSHA has not developed specific workplace safety regulations for the cannabis industry, and relies mostly on the agency’s general duty clause, which covers all employers, for enforcement. By contrast, in California, which has its own state-level workplace safety agency, a state task force requires owners of marijuana operations to take a training course and create a written injury and illness program. Even owners of illegal growing sites are subject to such rules, a spokesperson for the California Department of Industrial Relations said. Oklahoma leaders say they are trying hard to overcome a bureaucratic limbo. The state labor commissioner, Leslie Osborn, said in an interview that the heads of agencies met last year “to really knock out who is responsible for what. And there is not a lot of clarity.” “We let this flourish like a black market,” Osborn said, “and now we’re kind of behind the eight ball.”

— Trump Media Made a Deal That Could Secure a Major Financial Windfall for the GOP Candidate

 

at 7/16/24 3:40pm

by Justin Elliott and Robert Faturechi ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. After markets closed the day before the Fourth of July holiday, former President Donald Trump’s social media company made a disclosure that got little notice. “The Company entered into the Standby Equity Purchase Agreement,” Trump Media & Technology Group, the company behind Trump’s Truth Social platform, said in a filing. The jargon represented a major development that allows Trump Media to create and sell up to $2.5 billion worth of new shares. The plan, securities experts said, is a way for the company to convert its astronomical value on paper into actual cash. That could secure a windfall for Trump, who owns a majority of the company. Even if excitement for the stock deflates, his company might still retain billions in cash value. Trump Media has seen its value on paper skyrocket into the billions despite losing money and having almost no revenue, thanks to enthusiasm from Trump supporters who are betting the former president will return to the White House. Trump’s nearly 60% stake in the company represents the majority of his personal fortune, according to Forbes’ estimate. Any sale of shares by the company could help the former president solve two problems that stand in the way of transforming what is now a $4 billion stake on paper in the company into something more tangible, experts said. A so-called “lockup” agreement prevents Trump from personally selling his shares in the company until late September. Even after that point, many observers believe a move by Trump to sell shares could be interpreted as a vote of no confidence in the company by its owner and namesake, spooking other investors and sparking a sell-off that would crash the company’s share price. Trump Media declined to answer detailed questions from ProPublica, including whether the company intended to limit public attention by announcing the agreement after hours before the holiday. “These outlandish and nonsensical conspiracy theories about TMTG’s routine, transparent business practices constitute legally actionable defamation, and we will take legal action in response,” a Trump Media spokesperson said in a statement. The spokesperson did not immediately respond to a follow-up question about the statement. Shares of a company are essentially slices of a pie. If a company wants to raise cash, it can re-slice the pie, creating more slices but making existing slices smaller. The percentage stake of the company represented by each share shrinks. There are a number of ways a company can raise money by selling shares. A traditional version involves the company hiring an investment bank such as J.P. Morgan to play middleman. The bank finds big investors like pension funds to buy the new shares of the company. Trump Media has chosen a different route, one more common with small, high-risk “penny stock” companies as well as “meme stock” companies, whose shares are the subject of Reddit-fueled hype and speculation by retail traders, experts said. This alternative route is attractive to companies that might be seen as too risky by top investment banks or that believe that the demand for their stock will be driven by a fan base of retail traders. Instead of hiring J.P. Morgan or another bank, Trump Media has entered into a deal to sell stock with a small New Jersey financial firm called Yorkville Advisors. The firm has done similar deals with a number of small biotech companies, such as a firm trying to develop “cannabinoid pharmaceuticals” to treat autism and Alzheimer’s. In 2021 it inked a high-profile deal with a meme stock electric vehicle startup called Lordstown Motors, whose stock has crashed from a peak of more than $400 to under $2 today. Companies like Yorkville that offer such deals are not typically intending to hold on to the stock, experts said. They are playing a version of the middleman role, allowing Trump Media to easily sell shares when it wants to. The basic arrangement works like this: Trump Media has the option to sell Yorkville shares of itself up to $2.5 billion, a significant chunk of its current market value. Yorkville was paid a fee up front, and if Trump Media decides to sell shares, Yorkville will also get a discount — 2.75% — off the market price. Yorkville typically would turn around and immediately sell those shares to other buyers, pocketing the difference. In the July 3 press release announcing the deal, Trump Media CEO Devin Nunes, the Republican former congressman, suggested any share sale would be used to buy assets to build the company’s business. “We've secured a great deal to guarantee access to additional capital, if necessary, to pursue big strategic opportunities as we look to build out our portfolio by acquiring assets and technologies in the Patriot economy,” he said. Xavier Kowalski, a securities lawyer who teaches at the University of Florida, said even if Trump Media didn’t spend the cash it raised building its social media business, “you could think of it as a diversification strategy: diversifying away from Truth Social and into just being a pot of cash.” The company would have no obligation to spend the money purchasing an asset. It could distribute cash to shareholders — including Trump — in the form of a dividend, for example. Kowalski and other experts said Trump Media would be following other meme stocks if it moves forward with a share sale. “Is this what I would expect for a company that is losing money and a stock that most people think is overvalued? Yes,” he said. Yorkville did not immediately respond to a request for comment. The deal’s ultimate impact on existing shareholders is unclear. The creation of new shares means their shares represent a smaller percentage stake of the company. But if Trump Media uses the money to, for example, buy a company that brings in significant profits, that could create stability for the value of Trump Media long term. Other meme stocks have taken similar approaches, with mixed results. The CEO of AMC, the theater chain whose shares soared during the pandemic because of a Reddit-fueled buying spree, defended issuing new shares: “Now, if you thought — well, dilution is bad. Then, you were wrong, because foolish dilution is bad. Smart dilution is smart. And our share price went up.” But frequently deals that dilute shares hurt existing shareholders. In its filing announcing the deal, Trump Media acknowledged as much: “There are substantial risks to stockholders as a result of the sale and issuance of shares to Yorkville. … These risks include the potential for substantial dilution and significant declines in the share price of the Company’s securities." At least in the short term, the deal seems to have had that effect. The company made another filing about the deal Monday, and this one seems to have caught investors’ attention, with shares falling about 10% in after-hours trading immediately after Monday’s announcement. Alex Mierjeski contributed research. Do you have any information about Trump Media that we should know? Justin Elliott can be reached by email at justin@propublica.org or by Signal or WhatsApp at 774-826-6240. Robert Faturechi can be reached by email at robert.faturechi@propublica.org and by Signal or WhatsApp at 213-271-7217.

— In Private Speech, J.D. Vance Said the “Devil Is Real” and Praised Alex Jones as a Truth-Teller

 

at 7/16/24 11:45am

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. Sen. J.D. Vance, whom Donald Trump named as his vice presidential running mate Monday, told a group of influential young conservatives in a closed-door speech in 2021 that they should stand up for “nonconventional people” who speak truth, such as Infowars founder Alex Jones. “If you listen to Rachel Maddow every night, the basic worldview that you have is that MAGA grandmas who have family dinners on Sunday and bake apple pies for their family are about to start a violent insurrection against this country,” Vance said. “But if you listen to Alex Jones every day, you would believe that a transnational financial elite controls things in our country, that they hate our society, and oh, by the way, a lot of them are probably sex perverts too.” Vance went on, “Sorry, ladies and gentlemen, that’s actually a hell of a lot more true than Rachel Maddow’s view of society.” He said that every person in attendance for his speech believed “something that’s a little crazy.” In his case, he said, “I believe the devil is real and that he works terrible things in our society. That’s a crazy conspiracy theory to a lot of very well-educated people in this country right now.” Vance made these remarks at a September 2021 gathering of the Teneo Network, an invitation-only group of young conservatives that counts elected officials, pro athletes, financial executives and media figures among its members. Vance joined Teneo six years ago. ProPublica and Documented obtained a video recording of his 30-minute speech and question-and-answer session, which has not been previously reported. Vance’s remarks at the conference — which you can read a transcript of or watch in full below — give a rare unvarnished look at his thinking and illustrate how aligned he is with various factions within the conservative and MAGA movements. “I’ll throw out the standard campaign speech,” he began his Teneo talk. “[I’ll] actually just try to level with you guys about what I do see is the big — a few big problems that are in our country right now.” Watch J.D. Vance’s Speech at a Private Teneo Network Event Vance’s 2021 speech lays out what he sees as the “big problems” facing the United States and what the conservative movement should do to address them. (Obtained by ProPublica and Documented) According to tax records, the Teneo Network’s chairman is Leonard Leo, the legal activist who built a pipeline of lawyers who interpret the Constitution based on the “original intent” of the framers or the meaning of the words in the text when they were written. One of the most influential conservatives of the past three decades, Leo helped confirm all six conservative justices currently serving on the U.S. Supreme Court. Leo-aligned judges have pushed to restrict abortion rights and rein in the government’s power to regulate corporations. Leo has said he views the Teneo Network as a way to extend his influence beyond the judiciary to industries including finance, media, government and Silicon Valley. The network identifies and cultivates conservative leaders in “other areas of American culture and American life where things are really messed up right now,” as Leo put it in a Teneo video. According to internal Teneo documents, Vance joined Teneo in 2018, several years before he ran for Senate in his home state of Ohio. His book, “Hillbilly Elegy,” had already become a bestseller, and Vance was a commentator for CNN while running his own nonprofit and investment fund backing startup companies outside of Silicon Valley. Spokespeople for the Trump campaign, Leo and Teneo did not immediately respond to requests for comment. By the time Vance spoke at Teneo’s 2021 conference, he had joined the race to fill outgoing Sen. Rob Portman’s seat. Despite his past criticisms of Trump, which included calling the former president an “idiot” and comparing him to Adolf Hitler, Vance won Trump’s endorsement in 2022 and cruised to a comfortable victory. Vance’s connection to Teneo could form a bridge between different factions of the Republican Party that seem to be at odds. Previous news stories have reported that Trump and Leo, who advised the former president on judicial nominees during his administration, are no longer as close as they once were. Russ Vought, a Trump ally, publicly denigrated the Federalist Society, the legal networking group Leo and others built into a juggernaut. Adding Vance to the ticket bolsters the connections between Leo’s network and the Trump 2024 campaign. It also strengthens ties between Trump’s reelection bid and the Project 2025 blueprint, which outlines plans for a second Trump administration, including firing thousands of career civil servants, shuttering the Department of Education and replacing ambitious goals to combat climate change with ramped-up fossil fuel production. In a recent TV interview, Vance said the document contained “some good ideas” but claimed that “most Americans couldn’t care less about Project 2025” and that the Trump campaign wasn’t affiliated with it. In his Teneo remarks, he bemoaned that decades ago major corporate CEOs reliably donated money to Republicans but now they give heavily to Democrats. He lamented that conservatives had “very few oligarchs on our side,” had “lost every institution in American society” and needed to make corporations “taking the side of the left in the culture wars feel real economic pain.” “So we’ve not just lost the academy,” meaning universities, “which we’ve lost for a long time; we haven’t just lost the media, which has been on the side of the left for a long time; we now find ourselves in a situation where our biggest multinational corporations are active participants in the culture war on the other side,” he said. “It’s really been a few of us over the past few years who have recognized that the big corporations have really turned against conservatives in a very big and powerful way.” He argued that conservatives needed to take action against corporations that, say, defended abortion rights or punished employees who spoke out against abortion access. “If we’re unwilling to make companies that are taking the side of the left in the culture wars feel real economic pain, then we’re not serious about winning the culture war,” he said. He said that Americans were “terrified to tell the truth” and “point out the obvious,” including that “there are real biological, cultural, religious, spiritual distinctions between men and women.” He added, “I think that’s what the whole transgender thing is about, is like fundamentally denying basic reality.” Shortly before he spoke at the Teneo conference, Vance drew criticism when he tweeted that “Alex Jones is a far more reputable source of information than Rachel Maddow.” Jones, founder of the online show Infowars, gained a following with his promotion of conspiracy theories about the Sept. 11 terrorist attack. More recently, judges in several states ordered him to pay $1.5 billion to the families of the victims of the Sandy Hook school shooting, which Jones had called a hoax. Vance told Teneo members that he was “just trolling” with his defense of Jones, but added “that doesn’t mean what I said is in any way untrue.” “Look, I think there’s a not-terrible chance that one of you is going to be sharing cellblock 12A in Premier Harris’ prison detention camp in a few years,” he explained, seemingly referring to Vice President Kamala Harris. “If we’re going to all end up in that place, we might as well have a little fun while we get there. It’s OK to troll when you make and speak fundamental truths. But, look, I do think what I said was correct.” If the conservative movement was going to survive, he continued, its members needed to “speak for truth.” He mentioned donors in Ohio who had asked him if he would condemn inflammatory remarks made by Rep. Marjorie Taylor Greene. “And I say, ‘Why? Why do you want me to denounce this person?’” Vance said. “‘Well, she believes these crazy things.’ Who cares?” He went on, “Believing crazy things is not the mark of whether somebody should be rejected. Believing important truths should be the mark of whether we accept somebody, and if they believe some crazy things on the side, that’s fine. We need to be OK with nonconventional people.”

— School Vouchers Were Supposed to Save Taxpayer Money. Instead They Blew a Massive Hole in Arizona’s Budget.

 

at 7/16/24 4:00am

by Eli Hager 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. In 2022, Arizona pioneered the largest school voucher program in the history of education. Under a new law, any parent in the state, no matter how affluent, could get a taxpayer-funded voucher worth up to tens of thousands of dollars to spend on private school tuition, extracurricular programs or homeschooling supplies. In just the past two years, nearly a dozen states have enacted sweeping voucher programs similar to Arizona’s Empowerment Scholarship Account system, with many using it as a model. Yet in a lesson for these other states, Arizona’s voucher experiment has since precipitated a budget meltdown. The state this year faced a $1.4 billion budget shortfall, much of which was a result of the new voucher spending, according to the Grand Canyon Institute, a local nonpartisan fiscal and economic policy think tank. Last fiscal year alone, the price tag of universal vouchers in Arizona skyrocketed from an original official estimate of just under $65 million to roughly $332 million, the Grand Canyon analysis found; another $429 million in costs is expected this year. As a result of all this unexpected spending, alongside some recent revenue losses, Arizona is now having to make deep cuts to a wide swath of critical state programs and projects, the pain of which will be felt by average Arizonans who may or may not have school-aged children. Among the funding slashed: $333 million for water infrastructure projects, in a state where water scarcity will shape the future, and tens of millions of dollars for highway expansions and repairs in congested areas of one of the nation’s fastest-growing metropolises — Phoenix and its suburbs. Also nixed were improvements to the air conditioning in state prisons, where temperatures can soar above 100 degrees. Arizona’s community colleges, too, are seeing their budgets cut by $54 million. Still, Arizona-style universal school voucher programs — available to all, including the wealthiest parents — continue to sweep the nation, from Florida to Utah. In Florida, one lawmaker pointed out last year that Arizona’s program seemed to be having a negative budgetary impact. “This is what Arizona did not anticipate,” said Florida Democratic Rep. Robin Bartleman, during a floor debate. “What is our backup plan to fill that budget hole?” Her concern was minimized by her Republican colleagues, and Florida’s transformational voucher legislation soon passed. Advocates for Arizona’s universal voucher initiative had originally said that it wouldn’t cost the public — and might even save taxpayers money. The Goldwater Institute, a conservative think tank that helped craft the state’s 2022 voucher bill, claimed in its promotional materials at the time that the vouchers would “save taxpayers thousands per student, millions statewide.” Families that received the new cash, the institute said, would be educating their kids “for less than it would cost taxpayers if they were in the public school system.” But as it turns out, the parents most likely to apply for these vouchers are the ones who were already sending their kids to private school or homeschooling. They use the dollars to subsidize what they were already paying for. The result is new money coming out of the state budget. After all, the public wasn’t paying for private school kids’ tuition before. Chris Kotterman, director of governmental relations for the Arizona School Boards Association, says that Arizona making vouchers available to children who had never gone to public school before wasn’t realistically going to save the state money. “Say that my parents had been gladly paying my private school tuition, because that’s what was important to them — that I get a religious education. That’s completely fine,” Kotterman said. “But then the state said, ‘Oh, we’ll help you pay for that.’” “There’s just no disputing that that costs the state more money,” he said, critiquing the claims of the Goldwater Institute and others who’d averred that this program and ones like it around the country would not be costly. “That’s not how a budget works.” Inspiring a “National Movement” Heading into this fall, which will bring both a new school year and an election that stands to remake American education, ProPublica is going to be examining the complexities, lessons and failures of the nation’s first universal school voucher program as a model for where the whole system seems headed. Arizona’s program “set the standard nationally” and “inspired a national movement,” according to leading voucher advocacy groups; it is “the nation’s school-choice leader,” per the longtime conservative columnist George Will. For decades, voucher initiatives, including in Arizona, had only served small subsets of students. Often, eligibility was limited to certain poor students from failing public schools, whose families could use a voucher to switch them into a potentially better private school. In Arizona, for example, vouchers as of 2011 were available solely to students with disabilities, to make sure that their families could afford a range of personalized education options. The program was then expanded to students who had lived in foster care and to Native American students before, gradually, the money started going disproportionately to wealthier households. Because these measures were initially narrow in scope, some studies found that they had no negative impact on state and local budgets — studies that voucher advocates continued to cite even as states started considering providing vouchers to every parent who wanted one, which is a far more costly undertaking. Universal voucher efforts, beginning with Arizona’s universal Empowerment Scholarship Account program in 2022, allow parents to spend public money not just on private school tuition but also on recreational programs for their kids like ninja warrior training, trampoline park outings and ski passes, or on toys and home goods that they say they need for homeschooling purposes. (The average ESA award is roughly $7,000.) In a statement to ProPublica, a spokesperson for Arizona’s former Republican Gov. Doug Ducey, who signed the universal voucher program into law, said that “not only does Gov. Ducey have no regrets about ESA expansion, he considers it one of his finest achievements and a legacy accomplishment. And what he’s most thrilled about is that Arizona’s ESA expansion was followed by 11 other states doing essentially the same thing. Arizona helped set off an earthquake.” Voucher proponents have long pointed out that private school parents have a right to and could be sending their children to public school at taxpayers’ expense. So providing them with what is often a smaller amount of taxpayer money in the form of a voucher to help them pay their private school tuition is, the argument goes, a net savings for the public. This is similar to arguing that the public should help pay for car drivers’ gas because if they didn’t drive, they might use public transportation instead, which would be a cost to taxpayers. Ducey’s spokesperson, Daniel Scarpinato, did not acknowledge that the net cost of universal vouchers has been far higher than voucher supporters originally promised. Instead, he reiterated that “universal ESA costs are basically revenue neutral.” The reasoning: Overall enrollment in Arizona public schools has been slightly down — ever since many parents withdrew their kids during the pandemic — creating some savings in the education budget that could be seen as offsetting the new voucher spending. Ducey, as well as Matt Beienburg, the Goldwater Institute’s director of education policy, blamed Arizona’s budget crisis on current Democratic Gov. Katie Hobbs, pointing out that she signed a 2023 budget that spent down what was then a surplus instead of keeping the money in reserve for a possible moment like this. (The 2023 budget was passed with bipartisan support.) Ducey did not answer a question about whether he’d had a long-term plan to pay for ballooning voucher spending, beyond relying on that one-time surplus. In an email, Beienburg maintained that Arizona’s current budget mess wasn’t caused by vouchers; he blamed, among other issues, state revenue recently being lower than anticipated. (The Goldwater Institute in 2021 collaborated with Ducey to write and pass a tax cut that reduced income taxes on the wealthiest Arizonans to 2.5%, the same rate that the poorest people in the state pay, which is the leading cause of the decline in revenue.) Dave Wells, research director at the Grand Canyon Institute, said that none of the competing budget trends that Ducey and the Goldwater Institute pointed to mean that Arizona can actually afford universal vouchers, at least not without making severe, harmful budget cuts. “They chose to make ESAs universal and that has made the budget situation much worse,” he said. “We still had a budget shortfall and budget cuts. The cost is still the cost.” “It Isn’t Funded” Now that vouchers in Arizona are available even to private school kids who have never attended a public school, there are no longer any constraints on the size of the program. What’s more, as the initiative enters its third year, there are no legislative fixes on the table to contain costs, despite Hobbs’ efforts to implement some reforms. “I have not heard them agree to anything that is a financial reform of the program at all,” said Sen. Mitzi Epstein, the Democratic minority leader of the state Senate, referring to her Republican colleagues. Arizona doesn’t have a comprehensive tally of how many private schoolers and homeschoolers are out there, so it remains an open question how much higher the cost of vouchers could go and therefore how much cash should be kept on hand to fund them. The director of the state’s nonpartisan Joint Legislative Budget Committee told lawmakers that “we’ve never really faced that circumstance before where you’ve got this requirement” — that anyone can get a voucher — “but it isn’t funded.” Most importantly, said Beth Lewis, executive director of the public-school-advocacy group Save Our Schools Arizona, only a small amount of the new spending on private schools and homeschooling is going toward poor children, which means that already-extreme educational inequality in Arizona is being exacerbated. The state is 49th in the country in per-pupil public school funding, and as a result, year after year, district schools in lower-income areas are plagued by some of the nation’s worst staffing ratios and largest class sizes. Spending hundreds of millions of dollars on vouchers to help kids who are already going to private school keep going to private school won’t just sink the budget, Lewis said. It’s funding that’s not going to the public schools, keeping them from becoming what they could and should be. Help ProPublica Report on Education Mollie Simon contributed research.

— Even When Big Cases Intersect With Their Families’ Interests, Many Judges Choose Not to Recuse

 

at 7/16/24 3:00am

by Noah Pransky, Brooke Williams and Andrew Botolino for ProPublica ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published. Soon after longtime New Orleans attorney Wendy Vitter became a federal judge in the Eastern District of Louisiana, she heard a lawsuit against the local government in Plaquemines Parish, a peninsular province encompassing the final 70 miles of the Mississippi River, between New Orleans and the Gulf of Mexico. A group of paramedics had sued the parish, seeking compensation for unpaid overtime. Vitter oversaw a pair of jury trials in 2019 and 2021, both resulting in wins for the parish. But an appeals court later ruled Vitter had erred in judgment and overturned her final order. That paved the way for the paramedics to be awarded more than $500,000 in compensation, plus hundreds of thousands more for their attorneys. Throughout those proceedings, Plaquemines Parish leaders had a paid ally on their side: the judge’s husband, U.S. Sen.-turned-lobbyist David Vitter. But there was no way for the parties in the case to easily know this. Wendy Vitter never told the EMTs’ attorneys. And they couldn't have looked it up in any court records. While the law requires federal judges to report their spouses’ income on annual financial disclosures, Vitter listed her husband as a “self employed attorney” with the name of the payroll company, TriNet HR III, that cut his checks. In fact, he is a partner and lobbyist for powerhouse Washington firm Mercury Public Affairs. ProPublica didn’t uncover evidence that David Vitter’s business relationships played a role in his wife’s rulings. But the American Bar Association recommends judges disclose such relationships to let the parties decide for themselves if they are significant enough to contest. Since it’s not required by federal code, however, judges seldom do it, ethics experts say. In the Plaquemines case, Wendy Vitter should have voluntarily told paramedics’ attorneys about the potential conflict, five legal ethics experts told ProPublica. That would have allowed them to consider making motions for disqualification if she did not recuse herself. Vitter wrote in a statement to ProPublica that she relied on guidance from the Judicial Conference Committee on Codes of Conduct that says recusal may not be necessary if a spouse’s client is not a direct party to the case. Vitter said her husband was not working for the parish at the time of the trials. Public records show his contract with the parish expired in late 2018. But federal disclosures show he continued to work into 2024 for the Plaquemines Port, a political agency that is controlled by the parish’s nine council members and has identical borders to Plaquemines Parish. David Vitter did not respond to ProPublica’s requests for comment but told news partners at ABC News he had “absolutely nothing to do with the lawsuit” before his wife and that the Plaquemines Port “is a different entity with a different governance structure than Plaquemines Parish.” Wendy Vitter told ProPublica her husband’s income was “properly disclosed” on her financial reports, but she will start including details of his lobbying work in her disclosures moving forward. Former Sen. David Vitter, with his wife, Wendy, and their children in 2018 (Photo By Tom Williams/Roll Call/Getty Images) Concerns that judges on the nation’s highest courts have not properly disclosed personal conflicts — and have failed to recuse when such issues arose — have been at the center of a recent national debate. Supreme Court Justices Clarence Thomas and Samuel Alito have faced calls to recuse themselves from cases due to their wives’ political activities. Chief Justice John Roberts’ wife has a high-powered job as a headhunter for law firms with Supreme Court practices. Last year, ProPublica exposed how Thomas and Alito took trips funded by billionaires but failed to properly disclose them. In 2021, The Wall Street Journal found at least 131 judges broke the law by hearing cases in which they had a financial interest. And in 2020, Reuters identified thousands of judges who broke the law but remained on the bench. A ProPublica analysis found a lack of transparency regarding conflicts plagues federal and state courts where loose rules, inconsistent enforcement and creative interpretations of guidelines routinely allow judges to withhold potential conflicts from the parties before them. In an examination of more than 1,200 federal judges and state supreme court justices, ProPublica, in partnership with student journalists at Boston University, found dozens of judges, including both Republican and Democratic appointees, who chose not to recuse when facing potential appearances of impropriety involving familial financial connections. Ethics experts say that the judges’ interpretation of the rules may often lie within the letter of the law, but at the expense of its spirit. In Florida, a state Supreme Court justice presided over a gambling case in which a Native American tribe sought to protect billions in betting revenue. During the proceedings, the tribe made an unusually large campaign contribution to the justice’s wife, a state legislator. The judge later helped form a court majority that struck down the constitutional challenge, protecting the tribe’s business. In Minnesota, a federal judge heard an antitrust case against a corporation that was a major client of the public relations firm owned by his wife. He went on to dismiss the case, in the corporation’s favor. And in both Ohio and North Carolina, state supreme court justices rejected calls from ethics watchdogs to recuse themselves from multiple cases involving a parent who is a powerful state politician. Amid cratering confidence in the impartiality of both the federal and state judicial systems, experts worry that such failures to police conflicts of interest only further erode public confidence. “We ignore it at our own peril,” said Robert Westley, professor of legal ethics and professional responsibility at Tulane University. “I really believe the entire system is at stake if we don’t get this right.” The Duty to Disclose Federal law requires judges to recuse themselves from any case in which a close relative has an interest in the result, or when the judge’s “impartiality might reasonably be questioned.” While some judges go to great lengths to disclose potential conflicts and recuse scrupulously from those cases, the guidelines are ambiguous and the adherence is haphazard, according to experts. In most cases, judges oversee their own decisions to recuse, raising concerns about the lack of checks and balances on judges’ judgment. The challenges posed by familial conflicts could be mitigated with more judicial transparency, experts say. The American Bar Association guides judges to disclose any information potentially relevant to attorneys who might consider a motion for disqualification. But the guidance has not been codified by all states — or the federal judiciary. Without it, judges are under no obligation to inform a party appearing before them when a judge’s family member may be working on behalf of the party’s opposition. Federal laws do require judges to report their spouses’ assets and income each year, but they generally don’t require judges to disclose their spouses’ clients. Calls from watchdogs in 2022 to close the client loophole failed to get traction in Congress.Making matters worse, U.S. courts have failed to comply with federal law in promptly posting disclosures online. More than a dozen states don’t require judges to post any details at all about their family members’ income, and a majority of states don’t make disclosures easily available online, according to Fix the Court, a nonprofit advocating for more transparency and accountability in U.S. courts. “People are as honest as their circumstances permit,” Westley said. “When circumstances allow them to be dishonest without being discovered, many people will choose to do that. “The system is not working. But I think it can work when there is oversight.” The Conundrum of Successful Couples Familial conflict-of-interest decisions get more complicated when the spouse of a judge is a high-ranking state official, as is the case with Florida Supreme Court Justice Charles Canady and his wife, Republican state Rep. Jennifer Canady. Charles Canady was appointed to the state’s top court in 2008 by former Republican Gov. Charlie Crist; Jennifer Canady won her first legislative race in 2022. In December, Charles Canady’s court received a legal brief from the Seminole Tribe of Florida, asking the seven-member body to reject a constitutional challenge to its exclusive sports betting deal with the state, worth billions. The tribe was not a party to the case but stood to benefit. Five days later, the tribe then cut a $10,000 campaign check to Jennifer Canady’s political action committee. Of the more than 100 donations the Seminoles made to Florida legislators in 2023, a handful matched the size of but none were larger than Canady’s. Charles Canady did not publicly disclose his wife’s connection to the tribe, and in early 2024, he voted to uphold the Seminoles’ deal. “It’s a huge concern,” said Bob Jarvis, professor of law at Nova Southeastern University in Fort Lauderdale. “It’s the same social circles, particularly if you’re talking about a town like Tallahassee. It’s a very small town — everyone knows everyone else.” Judge Charles Canady in 2008 after taking the oath of office as a Florida Supreme Court justice with his wife, Jennifer Canady, and his daughter (Phil Coale/AP Images) Florida’s Supreme Court — unlike the federal judiciary — has adopted the ABA’s guidance regarding possible conflicts, requiring justices to disclose information that “the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.” While the Seminole connection went unreported, Charles Canady faced a barrage of public calls for recusal last winter when another case closely connected to his wife reached Florida’s Supreme Court: a constitutional challenge to the state’s new law banning abortions after six weeks. His wife was one of two co-sponsors of the controversial bill. Charles Canady elected to stay on the case, making no public comments about his wife’s connection to it, and then helped the court form a majority in April that ruled his wife’s legislation constitutional. The law went into effect May 1. “Justice Canady owes it to the public to be more transparent and more deferential to perception of bias,” Jarvis said. Anthony Alfieri, professor of law and director of the University of Miami Center for Ethics and Public Service, said the justice “should err on the side of disqualification, whether or not there is a real basis for disqualification.” ProPublica found no evidence the Seminole donation played a role in Charles Canady’s ruling. The justice declined multiple requests for comment. Representatives for Jennifer Canady did not respond to requests for comment, either, but the lawmaker — prior to winning office — told the News Service of Florida in 2021 that “around the dinner table, if something comes up about a pending or impending case, we don’t discuss it ever.” A spokesperson for the Florida Supreme Court said “considerations of recusal are complex and nuanced — each justice gives careful deliberation to their responsibilities” in accordance with Florida Supreme Court rules and the Code of Judicial Conduct. When asked for a list of cases Charles Canady has recused on, the spokesperson said no such list was available. In a written statement, the Seminole Tribe of Florida said it “supports numerous candidates with diverse perspectives. It is also involved in multiple legal cases at various levels. Any connection here is purely coincidental.” Experts caution the perception of bias is likely to be a recurring problem in Florida, with Jennifer Canady now in line to become House speaker in 2028. That would provide her a large role in crafting every major piece of legislation passing through the Florida House from now through the end of the decade — including controversial laws that will ultimately end up in her husband’s court. She’s also expected to solicit sizable campaign contributions from the state’s largest corporations, some of which might have cases before the highest court in the state. Charles Canady was among the dozens of federal and state supreme court judges ProPublica identified who were married to politicians, creating new challenges the country’s generations-old ethics rules haven’t yet caught up with. “Decades ago, it wasn’t a problem because women didn’t work,” Jarvis said. He added that “it comes down to the good faith of the couple” to “be aware, disclose and possibly recuse from cases.” The politicians could reject or return campaign checks from companies with business before the court. “Grading Their Own Homework” Senior Judge John Tunheim, serving the federal district of Minnesota, did not disclose when one of his wife’s biggest clients appeared on his docket in 2019. Kathy Tunheim is the co-founder and CEO of a large Twin Cities public relations firm, Tunheim, which performed public relations work for the Cargill corporation for several years. During this time, a group of cattle ranchers brought a federal antitrust case against Cargill and other meat producers, alleging a scheme to fix beef prices. The case was assigned to John Tunheim, who did not recuse. His annual financial disclosures, obtained through the Free Law Project archive, also did not disclose his wife’s role as CEO of the Tunheim firm, instead describing her since 2006 as a “self-employed public relations consultant.” It’s a distinction the judge said was prescribed by the U.S. Courts’ Committee on Financial Disclosure, which says “self employed” is sufficient if the spouse’s income is from “a partnership of which the spouse is a member.” Experts say Tunheim’s interpretation of disclosure rules makes identifying possible conflicts challenging. The judge threw out the cattle ranchers’ claims several times over the course of the litigation, which has continued into 2024. One former attorney on the case said a disclosure from Tunheim about his wife’s Cargill connection might not have resulted in a request for recusal, but it would have been welcomed, since attorneys cannot weigh those decisions without the information. Tunheim also heard two Cargill cases in 2018. Appointed to the federal bench by then-President Bill Clinton in 1995, Tunheim told ProPublica he considered recusing in Cargill cases but concluded it was not necessary based on the same 2009 advisory opinion cited by Wendy Vitter. “I did a thorough evaluation of all the facts and applied the guidance from the Committee on Codes of Conduct in the advisory opinion concerning the business relationships of a judge’s spouse,” Tunheim said in an email statement. The advisory opinion guides judges to consider factors such as the closeness of the spouse-client relationship and how involved the spouse is in the client work. The Tunheim agency publicly touted its Cargill relationship for years and boasts online about Kathy Tunheim’s “active role in many of the agency’s client relationships.” Kathy Tunheim declined to comment, but her firm scrubbed most references to Cargill from its website soon after ProPropublica reached out. The advisory opinion Vitter and Tunheim cited instructs judges to recuse themselves from any case in which an objective observer might reasonably question their impartiality. But in almost every example examined, the objective observer test was performed by that same judge. Charles Gardner Geyh, distinguished professor of law at Indiana University, said federal law grants judges a “presumption of impartiality.” But even with case law suggesting judges should err “in favor of recusal,” some still cite conflicting case law to justify a decision to stay on a case. Experts explain that some judges don’t care for the stigma that comes from a recusal. Judges can also fail to perceive either that they are biased or that they appear biased. For as little oversight as there is regarding potential conflicts of interest on the federal bench, there’s even less for state supreme courts. Since they are the court of last resort at the state level, there’s no opportunity to review the recusal decisions of most states’ justices, short of the U.S. Supreme Court. But it almost never hears those cases. Geyh said the lack of oversight compounds the “self-policing” problem since lawyers are typically wary of antagonizing judges by challenging their potential biases. When they do, he said appellate courts often defer back to the judges’ decision anyway. Without the threat of discipline, Geyh said the “buck stops with the judge.” “If you put those people in the position of grading their own homework — ruling on their own biases — then you have a problem.” The Parent Trap It’s not just spousal conflicts. In at least two states, the sons of powerful state politicians sit on the supreme court. In both cases, they’ve refused to recuse on consequential cases involving their parents. In North Carolina, Supreme Court Justice Phil Berger Jr. has repeatedly heard cases in which his father, Senate President Pro Tem Phil Berger Sr., not only publicly lobbied for a specific result but also was a named party in the case. The justice repeatedly sided with his father’s interests, including cases in which Phil Berger Sr. was a named defendant: a challenge to the constitutionality of a partisan redistricting plan and a challenge to a voter ID law spearheaded by Phil Berger Sr. The justice had recused himself from the voter ID case while serving on the Court of Appeals but said he did not need to as Supreme Court justice because his father was a defendant only in his “official capacity.” Republican North Carolina Senate President Pro Tempore Phil Berger (Hannah Schoenbaum/AP Images) Watchdogs also criticized Ohio Supreme Court Justice Pat DeWine for what they say were hypocritical promises in 2018 to recuse from cases in which his father, Mike DeWine — then the state’s attorney general and now its governor — was “personally involved.” But the younger DeWine chose to hear several high-profile cases in which his father was active in the litigation, including a series of impactful redistricting cases in which Pat DeWine helped cast a swing vote in a 4-3 decision that dismissed challenges to the controversial maps drawn by a Republican-led committee. Mike DeWine sat on that committee and publicly advocated for the constitutionality of its work. Geyh, who filed an amicus brief in one of the Berger cases, said ethics laws are “pretty bloody explicit” when it comes to recusing from a case in which a parent is a named party. Neither justice returned requests for comment. The Fix Is Really Hard Amid calls to bring conflict-of-interest laws into the 21st century, a bevy of Band-Aids have been proposed, but no comprehensive solutions. Experts hesitate at the suggestion of tougher recusal rules, fearing mass disqualification could shut down the judiciary. Most also reject the idea of limiting judicial spouses’ careers or speech. “As soon as you reform the system, you’re penalizing one spouse,” Jarvis said. The Brennan Center for Justice at NYU School of Law proposed a series of reforms in 2016, including independent review of all motions for disqualification — at both the U.S. and state supreme courts — so judges don’t effectively serve as the final arbiters of their own biases. Brennan also advocated ending the common practice of judges keeping their reasons for recusal — or non-recusal — secret, which can stymie the appeals process and create a void in case law. Critics have argued the reforms could slow the wheels of justice and allow political actors to weaponize recusal. Many advocates for reform see transparency measures as an achievable next step. “The fix is really hard,” said Amanda Frost, professor of law at the University of Virginia. But “transparency would improve the process for everyone.” To produce this story, ProPublica partnered with the Justice Media Computational Journalism co-Lab, a collaboration between Boston University’s College of Communication and the Faculty of Computing & Data Sciences’ BU Spark! program. Contributing students included Emilia Wisniewski, Serena Ata, Amisha Kumar and Amanda Bang. Do you have any information regarding a state supreme court justice or federal judge failing to disclose a familial conflict of interest? Contact Noah Pransky confidentially via Signal at NoahPransky.55 or on any social media platform at @NoahPransky.

— In New York, Wage Theft Violators Get Millions in Government Contracts

 

at 7/15/24 3:00am

by Marcus Baram, Documented, with data analysis by Joel Jacobs, ProPublica This article was produced for ProPublica’s Local Reporting Network in partnership with Documented. Sign up for Dispatches to get stories like this one as soon as they are published. In the lobby of its midtown Manhattan headquarters, Fedcap Rehabilitation Services has a large wall display that pays homage to its near 90-year history of leading “the fight for equity and opportunity” for the disabled community. The nonprofit is known in New York as having pioneered the field of vocational rehabilitation, a service that helps find jobs for people with disabilities. Fedcap has received dozens of contracts worth more than $110 million from 10 New York City and state agencies since 2018. That’s despite the fact that the company has committed millions of dollars in wage theft against hundreds of its workers in recent years. Under New York City and state procurement laws, contracting agencies are required to check vendors’ backgrounds, including for labor law violations, and award contracts only to those deemed “responsible.” But who is a “responsible vendor” is vaguely defined. And New York state’s contracting rules are more lenient than some other places when it comes to approving wage theft violators for contracts. Advocates and officials in those places say tighter rules have been an effective deterrent against wage theft. In New York, a company is only banned from receiving contracts if it committed multiple “willful” violations of wage laws, and that ban only applies to public construction projects and building service work, such as janitorial and security services. Many wage theft cases, including Fedcap’s, are not deemed willful, meaning that the federal Department of Labor did not determine that it knowingly broke the law. As a result, city and state agencies repeatedly award contracts to companies even after the vetting process flagged histories of wage theft, an investigation by Documented and ProPublica has found. Joseph Brill, a spokesperson for the state Office of General Services, which oversees many centralized contracts for the state, said in a statement that “we are not aware of any vendor that has been deemed non-responsible solely because of a failure to pay appropriate wages.” At least 25 companies and organizations, including Fedcap, have received a New York City or state government contract within three years of federal and state investigators finding that they had owed at least $100,000 in back wages to their workers, according to an analysis of nearly six years of contract records beginning in 2018, as well as wage-theft databases obtained from the U.S. and New York Labor departments. Between January 2018 and September 2023, those employers received about 160 contracts collectively worth more than $500 million from dozens of city and state agencies — all within three years of committing wage theft, according to the analysis. The contracted work included catering, career assistance, nursing, security services, and highway and subway construction. With Fedcap, its history of wage theft was hardly hidden. A 2018 investigation by the U.S. Department of Labor found that Fedcap had failed to pay required retirement benefits for over one year, then subsequently failed to pay the correct amount for workers at a New York City location. The agency expanded its investigation to 18 other federal offices and facilities served by Fedcap, and it also found that the company illegally deducted third-party administrative fees from its workers’ wages. The company agreed to pay $2.8 million to more than 400 workers to resolve the violations. “When employers receive federal funds to provide services to the government, they must comply with all applicable laws to ensure that their employees receive legally required pay and benefits,” said David An, Wage and Hour Division District Director in New York City, in a press release about the case issued by the agency. Then, in 2021, a worker for Fedcap’s job placement program filed a class-action lawsuit on behalf of herself and co-workers, alleging that the company committed wage theft against them. In court documents, the lead plaintiff, Brickzaida Aponte, alleged that she regularly worked long hours — sometimes 100 hours a week — but was denied full wages. Aponte, who worked for the company for eight months ending in January 2019, also alleged that Fedcap made her work through unpaid breaks and required her to work double shifts that involved commuting to other locations without compensating her for the travel time. Fedcap denied wrongdoing but settled the case last year, agreeing to put $850,000 into a settlement fund for approximately 4,000 workers, as well as attorney’s fees and other expenses. Among the 25 contractors, Fedcap committed the highest amount of wage theft, according to our analysis of state and federal wage theft databases. Within three years of the 2018 Labor Department investigation, the company received 25 city and state contracts worth nearly $100 million. Since then, it has also received at least five additional contracts worth $18 million. (One of those was initiated within months after settling the class-action lawsuit last year.) The contracted work included providing rehabilitation services for mentally ill and formerly incarcerated people, as well as job placement programs. In an email to Documented and ProPublica, Fedcap spokesperson Josh Vlasto defended the company, noting that some of the problems with payments occurred during a “change in systems” and that once it became aware of the issue, Fedcap “immediately corrected the error and paid the required funds with interest.” Vlasto also said that other than determining that back wages were owed, the Labor Department didn’t issue “any fines, penalties, or other punitive assessments.” The law that Fedcap violated — which sets wage and benefit standards for employees working on government contracts — does not authorize penalties or fines, according to the Department of Labor. Vlasto added that his company had been willing to “vigorously contest” the class-action lawsuit but decided to settle the case “not because of any admission or finding of fault but because as a nonprofit we could not afford a lengthy litigation.” Aponte, the lead plaintiff in the class-action lawsuit, declined to comment. Worker advocates said New York’s current rules are too vague and loose to be effective. “The system is broken,” Elizabeth Joynes Jordan, co-legal director at Make the Road New York, an immigrant-rights organization that has advocated for workers in labor disputes, wrote in an email. “The city and state must do more to ensure that they are not awarding major contracts to wage thieves.” The ability of wage-theft violators to receive government contracts in New York stands in contrast to Washington state and a number of cities across the country — such as Houston, Philadelphia and two Ohio cities, Cleveland and Columbus — that have much tighter restrictions. In Washington, for instance, companies and organizations are banned from bidding on all government contracts after a single willful wage-theft violation. In Cleveland and Columbus, companies are banned from bidding on government contracts after they’re found to have committed any amount of wage theft, whether intentional or not. The ban stays in place for three years in Washington, Cleveland and Columbus — regardless of whether they pay back wages to their workers. Washington Attorney General Bob Ferguson said in a statement that his state’s ban is based on a premise that “taxpayer-funded government contracts should only go to those who play by the rules and pay their workers the wages and benefits they’ve earned.” Others, including New Jersey and cities like Philadelphia and Somerville, Massachusetts, have gone even further, passing laws that allow them to strip wage-theft violators of their business licenses. In New York, however, recent efforts by state lawmakers to ban the awarding of government contracts to companies that commit any amount of wage theft have failed in the face of opposition from industry groups, such as the Business Council of New York State, which represents more than 3,000 companies and chambers of commerce. In 2021, for instance, then-state Sen. Brian Barnwell, a Democrat from Queens, proposed legislation to bar wage-theft violators from bidding on government contracts in cities with a population of 1 million or more in the state — which would have covered only New York City. But his bill failed to gain traction and died without getting a single committee hearing. Assemblymember Jo Anne Simon, who represents several neighborhoods in Brooklyn, told Documented and ProPublica that she’s determined to keep trying. She said she believes wage theft “should be disqualifying” for any vendor bidding on government contracts; without such a provision, “the state is subsidizing wage theft.” Vetting Can Fail to Flag Wage Theft In order to receive each of its government contracts, Fedcap had to undergo what’s known as a “vendor responsibility” determination, a two-step vetting process required by both city and state rules. First, the company had to disclose to contracting agencies information about itself that could be considered “unfavorable” or “negative” — such as whether its business license had ever been suspended or whether the company or its officials had come under a government investigation of any kind during the past five years. Next, the agencies had to conduct their own vetting of Fedcap’s background by examining a number of factors, including the company’s performance on previous government contracts, financial capacity and record of “integrity.” Under the city’s rule, the agencies were specifically required to check whether the company had committed labor law violations. The state asks in its vendor responsibility questionnaire if the vendor was found to have committed any willful violations of labor law in the past five years. According to Brill at the state Office of General Services, a wage theft violation “doesn’t automatically make a vendor non-responsible.” He explains that a finding of non-responsibility “depends on multiple factors, such as the nature of the violation, the vendor’s role, whether the vendor has cured the problem, whether they have paid their restitution, etc.” Based on what was flagged during the vetting process, each agency then had to determine whether Fedcap should be deemed a responsible vendor. Documented and ProPublica reached out to the 10 city and state agencies that awarded contracts to Fedcap within three years of the 2018 Labor Department investigation. The news organizations wanted to find out whether the company’s wage-theft history had been flagged during the vetting process and, if so, how they still decided to award contracts. The agencies included the city Department of Social Services, which gave nine contracts worth $65 million to the company to provide career assistance; the state Education Department, which gave two contracts worth $11 million for vocational rehabilitation services; and the city Department of Health and Mental Hygiene, which gave three contracts worth $9 million for rehabilitation for people with mental illness and other services. Of the five agencies that responded to our inquiries, three — the city Department of Correction, the state Education Department and the city Department of Health and Mental Hygiene — confirmed that they had flagged Fedcap’s wage-theft history in their own vendor responsibility reviews. The other two told Documented and ProPublica that they followed the required vetting process but did not say more about the decision to award contracts to the company. Five other agencies, including the Social Services Department, did not respond to repeated requests for comment. Spokespeople for two agencies — the Education Department and the Health and Mental Hygiene Department — explained that they had decided to offer contracts because the company had repaid back wages. Sen. Brad Hoylman-Sigal, a Democrat whose district in Manhattan runs from Greenwich Village to the Upper West Side, said in a statement that he believed New York should adhere to a policy like those in some other locations and not do business with companies that have committed wage theft, regardless of whether they paid back wages. “I’m glad that, in the case of Fedcap Rehabilitation, back wages were repaid,” Hoylman-Sigal said. “But without any additional fines, and new government contracts coming in, there is nothing to stop places like Fedcap from continuing to exploit their workers in the future.” Documented and ProPublica also found that the vetting process doesn’t always catch cases of wage theft. Since 2018, two state agencies awarded five contracts worth more than $2 million to All Metro Health Care, a Valley Stream-based home health care services company, which committed wage theft against the highest number of workers among the 25 companies and organizations we examined. Neither of those agencies flagged the wage theft during their reviews, even though federal and state investigators had documented or open cases of wage theft before the contracts were awarded. From 2015 to 2022, federal and state investigators found that the company had committed 31 separate cases of wage theft, totaling more than $650,000 in back wages for 3,400 workers. All Metro’s parent company, Modivcare, did not respond to questions about the company’s wage-theft violations. In a statement it said the company “is dedicated to ensuring fair wages for all its teammates, with stringent policies in place to prevent wage theft.” And it said that since it acquired All Metro Health Care in November 2020, it has “been vigilant in ensuring that it aligns with Modivcare’s high standards.” In addition, in 2017, two former All Metro workers filed a lawsuit seeking class-action status against the company. In court documents, the two plaintiffs accused the company of “systemic wage abuse,” including the violations of the minimum wage and overtime rules. One plaintiff, home health aide Chereda Ivory, alleged that she worked multiple 24-hour shifts a week but was paid the wages for only 13 hours per shift. The other plaintiff, support services aide Jacqueline Sistrunk, alleged that she was denied an extra hour of pay that she was entitled to under the “spread of hours” regulation for days she worked for more than 10 hours. In December 2022, the court approved the lawsuit’s class-action status, which covers approximately 23,000 workers, and the case is ongoing. In court papers, the company denies the allegations and states that “Plaintiffs and the purported class members have been fully and properly paid for all hours and all time which they are entitled to compensation for.” Jennifer O’Sullivan, spokesperson for the state Office for People With Developmental Disabilities, which awarded four contracts to All Metro, told Documented and ProPublica that “our vetting process did not identify any instances that would disqualify the vendor.” She also noted that the agency awarded contracts “through a strict and competitive procurement process, which includes due diligence of a vendor’s business practices.” O’Sullivan added that her agency doesn’t have “access to information about investigations by the Department of Labor.” Details of federal investigations are publicly available, and the state Labor Department also keeps a database of substantiated wage theft cases; although it is not public, the state DOL shares data with “enforcement partners” and other entities with which it has established data sharing agreements, a spokesperson for the agency wrote in an email. Spokespersons for both the DOL and the Office for People With Developmental Disabilities did not respond to follow-up questions about whether they have a data-sharing agreement. Danielle De Souza, a spokesperson for the state Health Department, wrote in an email that her agency awarded one contract after conducting “a full review of all information provided by the vendor and through additional research efforts.” But a review of the agency’s contracting documents obtained through records requests shows that All Metro’s wage theft history was not flagged during the vetting process. Jennifer Freeman, spokesperson for the Office of the New York State Comptroller, wrote in an email that a vendor’s failure to disclose all required information “may be the basis for a finding of non-responsibility.” But she noted: “It is the responsibility of the state contracting entity to follow up as appropriate and reassess its responsibility determination in light [of] any relevant new information brought to its attention.” The Office for People With Developmental Disabilities did not respond to this assertion. Assemblymember Linda Rosenthal, a Democrat who represents the Upper West Side and the Clinton neighborhood in Manhattan, said checking vendors’ wage-theft history with the Labor departments should always be part of the vetting process. If the agencies aren’t checking, she said, they are “cutting corners” and inadvertently encouraging “more of the bad behavior” by wage theft violators who would find it “easy to escape scrutiny.” Tougher Bills Under Consideration This year, New York lawmakers are trying once again to pass bills that would make it difficult for wage-theft violators to do business in the state. In February, Sen. Jessica Ramos, a Democrat who chairs the Senate’s Labor Committee, introduced a package of three bills related to wage theft. While Ramos’ measures don’t call for a ban on the awarding of state contracts to wage-theft violators, they would allow the state to place a stop-work order or suspend liquor and business licenses if a company owes more than $1,000 in back wages to workers. But Frank Kerbein, director of the Center for Human Resources at the Business Council of New York State, said stricter measures are “unnecessary,” pointing out that there’s already a vetting process for vendors. If wage-theft violators are still receiving government contracts, he said, “they’re not vetting correctly.” Kerbein added that the Business Council supports requiring each vendor’s wage-theft history to be checked during the vetting process. Without stricter measures, worker advocates said, companies that adhere to the law are at a competitive disadvantage against unscrupulous companies that can underbid on government contracts. Ferguson, Washington’s attorney general, said that’s what his state’s ban has been able to prevent. “We believe this law has deterred wage theft and helped level the playing field for companies that play by the rules,” he said in a statement. “I hope this law serves as a model for other jurisdictions across the country.” In Columbus, Rob Dorans, a city councilmember, said his city used the same argument to counter business groups that initially opposed its 2021 ordinance that bans the awarding of city contracts to wage-theft violators. “We’re just asking everyone to follow the law,” said Dorans, explaining that he sees the ordinance as a way to “disincentivize” companies from committing wage theft. “Why should one company be competing against another company for a city contract and one of them their business model is predicated on stealing from working people and the other folks are doing things the right way?” Methodology Identifying wage-theft violators that have received government contracts required us to gather data from a variety of sources: wage-theft data from the U.S. and New York Labor departments, and contract data from the New York state and New York City comptroller’s offices. In order to focus on recent events, we looked at all contracts from 2018 until September 2023, when we downloaded the contract data. Each contract listed both a start date and a date when it passed through the state or city comptroller’s office, which can occur before or after the contract has started. Our goal was to include contracts from the earliest known moment that they were on the agency’s radar, so for our analysis we used whichever of those two dates came first. With our timeframe in place, we set out to look for companies that had received contracts within three years of a wage-theft case with either the federal or state Labor Department. We found hundreds of initial matches spanning 2015 to 2022 in federal and state wage-theft databases that we obtained in 2023. That was too many to vet, so we decided to look for the biggest violators, which we verified by cross-referencing the business addresses associated with the wage-theft cases and contracts. Ultimately we identified 25 companies and organizations that had owed a total of at least $100,000 in back wages within three years of receiving contracts. Because wage-theft cases can span many months — from the date of the violations to when an investigation was opened to when it was finally resolved — we had to rely on the dates each regulator made available to us. The state wage-theft database only indicated the date when the case was first opened. The federal data did not include a date when the case was opened, but we used the nearest equivalent available, which was the last date that violations occurred. For the federal database, we only included wage-theft cases that listed a business address in New York state. While this wasn’t perfect, we felt this approach gave us a fair window into the intersection of wage theft violations and contracts. Our analysis is very possibly an undercount, since we may have missed some additional companies due to use of subsidiaries or variations in how a company name appears across the databases. Ultimately, we found these 25 companies and organizations had received more than $500 million in contracts from New York state and New York City. Not all that money has been paid out, sometimes because the contract is ongoing or because the services weren’t fully utilized. And three of the companies — including All Metro — had contracts for which the state did not pay them directly; instead, the contract value represented the estimated amount that would be paid by customers through the state’s home health care marketplace program.

— Inside Ziklag, the Secret Organization of Wealthy Christians Trying to Sway the Election and Change the Country

 

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.

— Two Reporters Covering Education in the Midwest Followed the Money … to a School in New York

 

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.

— Nike Pledged to Shrink Its Carbon Footprint. It Just Slashed the Staff Charged With Making That Happen.

 

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.

— He Was Convicted of Killing His Baby. The DA’s Office Says He’s Innocent, but That Might Not Be Enough.

 

at 7/11/24 3:00am

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.

— The Gospel of Matthew Trewhella: How a Militant Anti-Abortion Activist Is Influencing Republican Politics

 

at 7/10/24 4:00am

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.

— Texas Sends Millions to Crisis Pregnancy Centers. It’s Meant to Help Needy Families, But No One Knows if It Works.

 

at 7/9/24 5:00am

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.

— West Texas Pastor Who Used Illegal Donations From Churches to Campaign for Office Is Fined $3,500

 

at 7/8/24 4:00am

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.

As of 7/26/24 7:16pm. Last new 7/26/24 4:19am.