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Updated 2019-02-15 19:23
Former Trump Officials Are Supposed to Avoid Lobbying. Except 33 Haven’t.
by Derek Kravitz It’s been more than two years since President Donald Trump, who rallied campaign supporters with calls to “drain the swamp” of lobbyists and their ilk, took office. But despite that campaign promise, Washington influence peddlers continue to move into and out of jobs in the federal government.In his first 10 days in office, Trump signed an executive order that required all his political hires to sign a pledge. On its face, it’s straightforward and ironclad: When Trump officials leave government employment, they agree not to lobby the agencies they worked in for five years. They also can’t lobby anyone in the White House or political appointees across federal agencies for the duration of the Trump administration. And they can’t perform “lobbying activities,” or things that would help other lobbyists, including setting up meetings or providing background research. Violating the pledge exposes former officials to fines and extended or even permanent bans on lobbying.But loopholes, some of them sizable, abound. At least 33 former Trump officials have found ways around the pledge. The most prominent is former Interior Secretary Ryan Zinke, who resigned in December after a series of ethics investigations. He announced Wednesday that he is joining a lobbying firm, Turnberry Solutions, which was started in 2017 by several former Trump campaign aides. Asked whether Zinke will register as a lobbyist, Turnberry partner Jason Osborne said, “He will if he has a client that he wants to lobby for.”Among the 33 former officials, at least 18 have recently registered as lobbyists. The rest work at firms in jobs that closely resemble federal lobbying. Almost all work on issues they oversaw or helped shape when they were in government. (Nearly 2,600 Trump officials signed the ethics pledge in 2017, according to the Office of Government Ethics. Twenty-five appointees did not sign the pledge. We used staffing lists compiled for ProPublica’s Trump Town, our exhaustive database of current political appointees, and found at least 350 people who have left the Trump administration. There are other former Trump officials who lobby at the state or local level.) Stay InformedGet ProPublica’s Daily Digest. Join 100,000 discerning readers and get everything we publish by signing up for ProPublica’s Daily Digest. As we’ve reported before, some former officials are tiptoeing around the rules by engaging in “shadow lobbying,” which typically entails functions such as “strategic consulting” that don’t require registering as a lobbyist. Others obtained special waivers allowing them to go back to lobbying. In a few cases, they avoided signing the pledge altogether. Legislation aimed at closing some of the loopholes is contained in the Democratic-led ethics reform package, HR 1, the “For the People Act,” which had its first hearing in front of the House Judiciary Committee last month. (The same bill was proposed in the previous session of Congress, and the sponsors cited ProPublica’s reporting.)Increasingly, both lobbyists and the firms that hire them are taking advantage of a loophole unique to the Trump ethics pledge: A clause that allows former political appointees to lobby on “any agency process for rulemaking, adjudication or licensing” despite the five-year lobbying ban. “Rulemaking” includes deregulation, a Trump administration priority. “Rulemaking is mostly what agencies do, and that’s what most lobbyists do. So that’s a pretty big carve-out,” said Virginia Canter, a former Obama administration ethics attorney who now works for the nonprofit Citizens for Responsibility and Ethics in Washington. Companies have taken notice.
Large Natural Gas Producer to Pay West Virginia Plaintiffs $53.5 Million to Settle Royalty Dispute
by Kate Mishkin and Ken Ward Jr., The Charleston Gazette-Mail The second-largest natural gas producer in West Virginia will pay $53.5 million to settle a lawsuit that alleged the company was cheating thousands of state residents and businesses by shorting them on gas royalty payments, according to terms of the deal unsealed in court this week.Pittsburgh-based EQT Corp. agreed to pay the money to end a federal class-action lawsuit, brought on behalf of about 9,000 people, which alleged that EQT wrongly deducted a variety of unacceptable charges from peoples’ royalty checks.The deal is the latest in a series of settlements in cases that accused natural gas companies of engaging in such maneuvers to pocket a larger share of the profits from the boom in natural gas production in West Virginia.This lawsuit was among the royalty cases highlighted last year in a joint examination by the Charleston Gazette-Mail and ProPublica that showed how West Virginia’s natural gas producers avoid paying royalties promised to thousands of residents and businesses. The plaintiffs said EQT was improperly deducting transporting and processing costs from their royalty payments. EQT said its royalty payment calculations were correct and fair. Stay InformedGet ProPublica’s Daily Digest. Join 100,000 discerning readers and get everything we publish by signing up for ProPublica’s Daily Digest. A trial was scheduled to begin in November but was canceled after the parties reached the tentative settlement. Details of the settlement were unsealed Wednesday.Under the settlement agreement, EQT Production Co. will pay the $53.5 million into a settlement fund. The company will also stop deducting those post-production costs from royalty payments.“This was an opportunity to turn over a new leaf in our relationship with our West Virginia leaseholders and this mutually beneficial agreement demonstrates our renewed commitment to the state of West Virginia,” EQT’s CEO, Robert McNally, said in a prepared statement.EQT is working to earn the trust of West Virginians and community leaders, he said.Marvin Masters, the lead lawyer for the plaintiffs, called the settlement “encouraging” after six years of litigation. (Masters is among a group of investors who bought the Charleston Gazette-Mail last year.)Funds will be distributed to people who leased the rights to natural gas beneath their land in West Virginia to EQT between Dec. 8, 2009, and Dec. 31, 2017. EQT will also pay up to $2 million in administrative fees to distribute the settlement.Settlement payments will be calculated based on such factors as the amount of gas produced and sold from each well, as well as how much was deducted from royalty payments. The number of people who submit claims could also affect settlement payments. Each member of the class that submits a claim will receive a minimum payment of at least $200. The settlement allows lawyers to collect up to one-third of the settlement, or roughly $18 million, subject to approval from the court.The settlement is pending before U.S. District Judge John Preston Bailey in the Northern District of West Virginia. The judge gave it preliminary approval on Monday, which begins a process for public notice of the terms and a fairness hearing July 11 in Wheeling, West Virginia. Payments would not be made until that process is complete.
ProPublica Named a Finalist for Shadid Award for Journalism Ethics
by ProPublica The Center for Journalism Ethics at the University of Wisconsin-Madison announced that “A Betrayal” by ProPublica reporter Hannah Dreier is one of five finalists for the Anthony Shadid Award for Journalism Ethics. The award honors journalism displaying high ethical standards in the pursuit of truth.Co-published with New York magazine, “A Betrayal” chronicled the experience of Henry, a Long Island high school student who wanted to get away from his brutal gang, MS-13. He worked with law enforcement for about a year, helping police and the FBI arrest his fellow gang members and believing authorities would offer him a new life. Instead, they betrayed him by turning over his file to immigration authorities.Dreier came across Henry’s case in October 2017 while reporting on Long Island about the casualties of the Trump administration’s bungled crackdown on MS-13. She spent months gaining Henry’s trust. Marked for deportation to his native El Salvador, and then for death as an informant, he and his lawyer decided that a news story might be a last remaining option to save his life.Henry called Dreier from his jail ward dozens of times in the weeks after their first meeting, whispering into the receiver as other MS-13 members tried to eavesdrop. He arranged for her to be given his cellphone, and she combed through years of text and WhatsApp conversations, as well as exchanges he had with his FBI handler. He helped her make a glossary of Spanish gang slang so that she could understand some coded messages. He also agreed to let ProPublica use a video and photos of him.As soon as Dreier started reporting, she began thinking about how to balance Henry’s desire to tell his story with the threat to his life. She consulted with gang and law enforcement experts and adopted some restrictions that Henry did not ask for. She left out details about where he might go if he were released from jail, and she refrained from contacting sensitive sources. ProPublica and New York magazine didn’t publish his last name or run photos that might reveal his identity.The impact from the story was extraordinary. Hundreds reached out, offering Henry jobs and a home, and donating to a fundraiser that brought in $35,000 to help him find a safe place to live once he was released or deported. The Department of Homeland Security opened a civil rights investigation. ICE said it would stop creating detailed gang memos, which jeopardize informants, and offered to move Henry into protective custody. Officials who had refused to testify on his behalf in immigration court suddenly were on board. Amid intense public attention, the judge granted all parties an extension.In the end, “A Betrayal” didn’t stop Henry’s deportation to El Salvador, but, with the money that readers donated and the extra time allowed by delaying the hearing, he was able to set up a plan to go from there into hiding in a safe third country.See a list of all five Shadid Award finalists here.
HUD’s System for Processing Public Records Requests Died During the Shutdown
by Molly Parker, The Southern Illinoisan The partial federal shutdown ended weeks ago, but one lingering effect turns out to be citizens’ ability to get public records from a government agency.The U.S. Department of Housing and Urban Development’s public records management and tracking system has been offline since early January, when a contract to run it lapsed.Four Freedom of Information Act officers at HUD said the lack of a system has drastically slowed their ability to process requests and has presented challenges in tracking the dozens of them the agency receives each week.Members of the public can no longer submit requests via HUD’s website or track their status. Late last week, the agency updated its website to include new instructions for filing a FOIA request via email, fax or mail.“We knew the government was going to go dark during the shutdown, but we did not anticipate that the machinery would literally be removed while it was shut down,” said Austin Evers, executive director of American Oversight, a nonprofit ethics watchdog that has filed numerous Freedom of Information Act lawsuits against federal agencies during the Trump administration. Stay InformedGet ProPublica’s Daily Digest. Join 100,000 discerning readers and get everything we publish by signing up for ProPublica’s Daily Digest. HUD spokesman Brian Sullivan said the agency is working to select a new vendor after its contract with Copper River Enterprise Services expired on Jan. 7. He did not answer a question about when the system would be operational again. “Nothing was lost during this ‘outage,’ and work continues on the receiving/processing end,” Sullivan added.Many federal agencies stopped processing records requests because FOIA staff were not considered essential, meaning they were not on the job. What makes HUD distinct is that when the government reopened, the main system for processing and tracking requests was no longer working.HUD employees say that as a result, they have also had to redact public records manually.The now-shutdown system allowed for the automated online redaction of routine sensitive data that is usually withheld under FOIA, HUD noted in a budget document about five years ago.Even before the partial shutdown, HUD’s sluggish response time to records requests was flagged by the agency’s inspector general. That December 2017 report was critical of the agency’s tool for locating agency records and datasets.HUD received 2,383 public records requests last year, and it responded to 2,245. Still, the agency ended the year with more than 1,000 requests pending, up from just over 400 at the end of the 2014 fiscal year, agency records show. Though HUD received roughly the same number of requests in those years, HUD officials have blamed delays on requests from journalists and others seeking more voluminous records, datasets and email correspondence between officials.
Senate Committee Grills Navy Official Over 2017 Collisions, Seeking Data to Prove Conditions Have Changed
by Robert Faturechi and T. Christian Miller A member of the Senate Armed Services Committee on Tuesday called on Navy officials to provide hard data showing they have improved conditions on their ships in the months since two destroyers were involved in back-to-back collisions that left 17 sailors dead.The senator, Angus King of Maine, made the demand of Adm. Philip Davidson, the top military commander in the Pacific, days after ProPublica published an investigation into the deadly mishaps in 2017, the Navy’s worst accidents at sea in four decades. The investigation showed that the Navy’s most senior leaders, uniformed and civilian, had failed to act on repeated warnings that the 7th Fleet, based in the Pacific and renowned as the largest armada in the world, was at risk — its sailors poorly trained and overworked, its ships in physical decline.The Navy since the accidents has pledged a host of reforms, from improved staffing to better training.“I want real numbers. I don’t want general ‘We’re working on staffing’ or ‘We’re working on more training,’ because these were avoidable tragedies,” King, an independent who caucuses with Democrats, said during a Senate Armed Services Committee hearing. “I would like to see specific responses from the Navy. Not promises and not good feelings.”Davidson was in charge of ensuring that the Navy’s fleets were properly manned at the time of the collisions, and he personally drafted a reform plan. He praised the Navy’s track record by pointing out that most ships were not colliding.“The fact of the matter is 280-odd other ships weren’t having collisions,” Davidson said. “More than a dozen of those ships were performing exceptionally well.”King interrupted Davidson.“Airplanes are landing all over America, and just because they aren’t all crashing doesn’t mean they don’t need a high level of maintenance,” he said. “To tell me that isn’t very convincing. I think it was 40 years since we’d had collisions of this nature. Are you saying that there were no failures that led to these collisions because there were 280 ships that didn’t have collisions? Isn’t that the standard? No collisions?”Davidson said he had read the first installment of ProPublica’s investigation, which detailed what went wrong on the USS Fitzgerald in the first of the two accidents. But he said he had not read the second installment, which laid out the years of warnings made by sailors on the decks of ships, commanders and top civilians officials in Washington about the state of the Navy’s ships before the crashes.T. Christian Miller, Robert Faturechi and Megan Rose are writing about their experience reporting on the Fitzgerald disaster and the Navy’s neglect of its ships and sailors at sea for ProPublica's Disaster in the Pacific newsletter. Sign up.King urged him to read it.“It’s one of the most sobering analyses of a disaster that I’ve ever seen,” King said. “And it takes responsibility all the way through the very top of the Navy to this Congress.”“There were multiple warnings, it wasn’t acted upon and I want to be reassured that it is being acted upon,” King said.Davidson was appearing to help brief the Armed Services Committee on military operations in the Pacific, and the latest assessment of threats posed by China and North Korea, among other countries.Davidson agreed to provide the data King was asking for on ship maintenance, staffing levels and crew training, but he said the Navy has already been providing Congress with quarterly updates on improvements.He also defended the Navy’s efforts to fix problems in its 7th Fleet, based in Japan. The Navy has said it has completed 80 percent of more than 100 reforms developed in the aftermath of the tragedies. Navy officials have declined to provide specifics to ProPublica.“I’ve been quite pleased with the progress the Navy’s made,” Davidson said.The Navy’s updates have come mostly in the form of oral briefings, behind closed doors at the Navy’s request, that have focused more on a discussion of reforms and anecdotal improvements — and have been short on hard readiness data that Congress can use to see trends over time, an aide to the House Armed Services Committee said.“They’re not even reports,” the aide said.The Navy did not immediately respond to a request for comment.
ProPublica Wins 22 Awards for Excellence in News Design
by ProPublica The Society for News Design honored ProPublica with 22 Awards of Excellence in this year’s Best of Digital Design competition. ProPublica received three silver medals, which recognize work with an aesthetic and technical proficiency that “should stretch the limits of the medium — representing an elevated level of execution and originality in pursuit of powerful storytelling,” in addition to 19 bronze medals awarded to ProPublica and ProPublica Illinois.Here are the silver medal-winning projects:“To See How Levees Increase Flooding, We Built Our Own,” a collaboration with Reveal and Vox, won in the category of Features, Use of Multimedia. Led by ProPublica’s Al Shaw, Lisa Song and Katie Campbell and Ranjani Chakraborty, a ProPublica-Vox video fellow, the team hired engineers at the St. Anthony Falls Laboratory at the University of Minnesota to build models of four levee scenarios to see how the height and placement choices of levees can put surrounding communities at greater risk of flooding. “How you can control the flow and see how levees react is a really engaging way to show this information,” said contest judges.A project from the ProPublica Local Reporting Network, “Powerless: What it looks and sounds like when a gas driller overruns your land,” by the Charleston Gazette-Mail and ProPublica, won for News Features, Business/Finance, Science, Technology, Transportation, Environment & Health. The multimedia package by Ken Ward Jr. of the Gazette-Mail and ProPublica’s Al Shaw and Mayeta Clark used drone footage in its reporting to show that, even if you own your land, you aren’t entitled to the minerals underneath it — allowing natural gas companies to drill right on private property. Judges said: “I really like how the map doesn’t really slam you. It very gradually loads those things in to give you time to process what you’re viewing.”The Facebook Political Ad Collector won for Graphics, Use of Data. To shine a light on targeted political advertising on Facebook, a team that included Jeremy B. Merrill, Ally J. Levine, Ariana Tobin, Jeff Larson and Julia Angwin built a browser plugin allowing Facebook users to automatically send us the ads displayed in their news feeds, along with information on why they were targeted. This helped ProPublica build a database that lets the public see how ads are targeted to different categories of people. “They did a really good job collecting data themselves,” judges said. “And they made it easy to explore.”The 19 bronze medal-winners include:ProPublica — Organization, Story Page DesignAl Shaw — Overall IndividualPowerless: What it looks and sounds like when a gas driller overruns your land, ProPublica and The Charleston Gazette-Mail — Business/Finance, Science, Technology, Transportation, Environment & Health; Use of Multimedia; Use of Maps (3 awards)Miseducation, ProPublica — Use of Data; New Tools (2 awards)We will keep on fighting for him, ProPublica Illinois — Business/Finance, Science, Technology, Transportation, Environment & HealthUnprotected, ProPublica, co-published with Time — Use of MultimediaThe Waiting Game, ProPublica, Playmatics and WNYC — NationalCould Your Police Department Be Inflating Rape Clearance Rates?, ProPublica, Newsy and Reveal — Local IssuesLevees Graphics, ProPublica, Reveal and Vox — Line of CoverageOne Night on a Private Garbage Truck in New York City, ProPublica and the Investigative Fund — Use of MapsTrump Town, ProPublica — Use of DataThe Ticket Trap, ProPublica Illinois and WBEZ — Use of Data“Standing by their convictions” Twitter thread, ProPublica — Social Media Design - Shared Image and Card Design“The Killing Fields” Instagram stories, ProPublica — Social Media Design - Social Media Stories or Thread Design30 Years of Negligence at Tyndall Air Force Base, ProPublica — Social Media Design - Use of MultimediaBloodstain-pattern analysis Twitter thread, ProPublica — Social Media Design - Use of Information GraphicsSee a list of all the Best of Digital Design winners here.
Appeals Court Rules Key Anti-Age Discrimination Protections Don’t Apply to Job Seekers, Only Employees
by Peter Gosselin In a decision last month, the 7th U.S. Circuit Court of Appeals in Chicago has sharply limited a federal law that protects workers who are 40 and older from age bias by ruling that key provisions only apply to those who already have jobs, not those seeking them.The 8-4 decision, written by Circuit Judge Michael Scudder, a Trump administration appointee, said the “plain language” of the Age Discrimination in Employment Act shows that in enacting the measure, Congress aimed its sweeping prohibition against discrimination at employees but “did not extend that same protection to outside job applicants.”The ruling prompted a fierce dissent from Circuit Judge David Hamilton, an Obama administration appointee, who accused the majority of taking a “deliberately naïve approach” to the law and “closing its eyes to fifty years of history, context and application.”The ADEA’s anti-discrimination language originally matched that of the 1964 Civil Rights Act, which covers race, gender, religion and other categories. And for much of the last half-century, federal courts have treated provisions of the two laws as largely interchangeable.The ruling came in a lawsuit brought by an Illinois lawyer, Dale Kleber, who was 58 in 2014 when he applied for a senior attorney position with CareFusion Corp., a unit of medical device maker Becton Dickinson & Co., but was passed over for an interview. The job eventually went to a 29-year-old candidate. Stay InformedGet ProPublica’s Daily Digest. Join 100,000 discerning readers and get everything we publish by signing up for ProPublica’s Daily Digest. Kristen Cardillo, a spokeswoman for Becton Dickinson, said in statement the company was “pleased” with the decision. “Fostering an inclusive and diverse culture is at the very heart of our core values,” she said. Lawyers for Kleber said they haven’t decided whether to appeal to the U.S. Supreme Court.The decision in the Kleber case is the second in which an appeals court has said that the ADEA’s strongest provisions only apply to employees and one in a string of cases since the 1990s that have shrunk what counts as age discrimination, giving employers new leeway to oust or refuse to hire older workers.A deeply divided 11th U.S. Circuit Court of Appeals in Atlanta ruled in 2016 that executive Richard Villarreal, then 49, had not suffered age discrimination when a subcontractor for R.J. Reynolds Tobacco Co., following Reynolds guidelines, discarded his resume and those of almost 20,000 other older applicants in hiring a regional sales manager. Among other things, Reynolds’ lawyers argued that if the law was read to apply to applicants it could prohibit hiring programs for internships and entry positions aimed at young people and “impose massive litigation costs on employers.”The majority in the Chicago case cited the Villarreal decision in ruling against Kleber.Sen. Robert Casey, a Pennsylvania Democrat who’s the ranking member on the Senate Select Committee on Aging, called the new decision “yet another example of the discrimination that older workers face – either on the job or while applying for a job.”Casey called for strengthening the ADEA.Dara Smith, a senior attorney with the AARP Foundation who represented Kleber, called the Chicago ruling “very disappointing and frustrating” and said it means that the ADEA is “not particularly useful for older job applicants.”While she said the law still bans explicit age limits in job postings, she acknowledged the prohibition is weak. The Chicago court rejected Kleber’s argument that the language in CareFusion’s job ad, which asked for applicants to have “no more than 7 years” experience, effectively ruled out older workers like him from applying.Under the law, older applicants and employees can still prevail if they can prove employers intentionally discriminated against them. But in a 2009 decision, the Supreme Court set a higher bar for proving intentional age bias than for any other type of legally prohibited discrimination, saying that age must be the sole reason for a worker being unfairly treated.The issue of whether anti-age discrimination protections cover job applicants has taken on new importance as evidence has mounted that older workers are more apt than generally appreciated to lose longtime jobs and have trouble getting hired for anything like comparable work.ProPublica and the Urban Institute, a Washington think tank, analyzed data from a government-funded study that since 1992 has followed a nationally representative sample of Americans from the time they turn 50 through the rest of their lives.The analysis, published in December, showed that between entering the study and leaving paid employment, 56 percent of older workers were laid off or left longtime jobs under such financially damaging circumstances it’s likely they were forced out. Only one in 10 of these workers ever again earns as much as they did before their employment setback.In both the Chicago and Atlanta cases, the decisions that federal anti-age bias protections don’t apply to job applicants prompted sharply worded dissents.The dissenters argued that drawing a line between employees and job applicants ignores the intent of the legislators who wrote and enacted the ADEA. “In simple terms,” said Ralph Yarborough, a U.S. senator from Texas who was the measure’s chief sponsor, during a hearing, “this bill prohibits discrimination in hiring and firing.”Hamilton, who wrote the dissent in the Chicago case, said the majority decision “undermines the stated purpose of the statute…to address unfair employment practices that make it harder for older people to find jobs.”
What Do You Know About County Jails in California? Talk to Us.
by Beena Raghavendran, ProPublica, Jason Pohl, The Sacramento Bee, and Ryan Gabrielson, ProPublica The Sacramento Bee and ProPublica are investigating conditions in California’s county jails. We need your help understanding what’s going on in the facilities, big and small.An average of 137 people die in jails across the state each year. We want to know more about the people behind these numbers, and we want to hear from others about their experiences in California’s county jail system.We’re looking for people who have spent time in county jails across California. We’re also seeking the impressions of family members and others who know someone who’s been incarcerated.We want to learn more about crowding, inmate treatment and access to resources in jails. And we want to hear from people who can tell us what is — or is not — working in the jail system. You can read more about our project here.Your submission is confidential. We won’t publish any information you share without your permission, and we won’t voluntarily share what you tell us here with the government or third parties. If you’d rather talk on Signal or WhatsApp, which are more secure, send a message to 347-244-2134. You can also email our reporting team at CaliforniaJails@propublica.org.Fill out the form.
Chicago Public Schools Monitored Social Media for Signs of Violence, Gang Membership
by Aaron Leibowitz for ProPublica Illinois, and Sarah Karp, WBEZ Chicago In January 2017, after a social media analyst for the Chicago Public Schools reviewed the Facebook profile of a Roosevelt High School student and began to suspect he might be in a gang, a police officer was summoned to the school to conduct an intervention. There wasn’t any imminent threat of violence, but the officer and a school district security official met with the student. They asked if he was in a gang.“That is my business,” the student replied, according to a report from the intervention.The officer, a member of the Chicago Police Department’s Gang School Safety Team, told the student he needed to be more respectful. The student said he was not in a gang but did hang around gang members.The officer asked for their names, but the student wouldn’t give them. The officer asked if the student was considering joining a gang. He said he wasn’t sure. The student, the report concludes, “seemed to not be motivated and provided very short answers.”Over the past four school years, more than 700 CPS students have been called into interventions like this one based on social media activity that points to their possible gang involvement. The interventions are one result of a $2.2 million award the district received in 2014 through the U.S. Department of Justice’s Comprehensive School Safety Initiative, which provides grants for violence prevention efforts.The grant covered salaries for two intelligence analysts and social media monitoring software to analyze students’ online conversations, though officials stopped using the software in 2017. Jadine Chou, the school district’s chief of safety and security, said the analysts used keyword searches to find threats at the program’s target schools, rather than plugging in individual students’ names.Funding for the program ran out after 2018, but district officials said they plan to continue it in some manner, saying it keeps kids safe and gives them much-needed support.“It’s a program we’re very proud of,” Chou said. “Our main goal is to redirect students to a positive path.”But the approach has raised concerns, in part because most students and parents weren’t told about the program or that school officials would be taking on a greater role in monitoring students’ lives. And it expanded the role of the Gang School Safety Team, a small police unit created in 2008 with a somewhat narrow mission: to intervene after a young person gets shot. After a shooting, officers show up at the victim’s school, seeking to ease tensions and head off retaliation. With the program, officers went into schools before violence erupted.Monitoring can save lives if it’s done right, said Desmond Patton, an associate professor at the Columbia University School of Social Work who studies social media and gang violence in Chicago. But it can also venture into over-policing, what Patton describes as a sort of virtual stop and frisk that disproportionately targets people of color.“Oftentimes when we talk about threats and violence and trauma, we are really speaking about black and brown communities,” Patton said. “So we are not zooming in on the young people at Jones College Prep or Walter Payton or Northside,” top Chicago high schools with more white students than black students.Of the 24 schools in the monitoring program as of last year, 16 are majority black and five are majority Hispanic. Most are on the South or West sides. Forty-six percent of all CPS schools are majority black, according to the latest available data.“It feels like a surprising invasion of privacy,” said Carisa Parker, whose daughter is a freshman at Morgan Park High School, one of the target schools. Though she has no indication her daughter’s social media activities have been monitored, she said the district owes it to parents to explain how and why her Far Southwest Side school and the others were chosen.“These Officers Just Care So Much”Knowing that violence between students often can be traced to social media posts, CPS officials pursued the grant as one way to head it off. Some principals say such posts play a role in more than 90 percent of fights between students, according to a report on the program by the University of Chicago’s Crime Lab, which helps cities study violence reduction efforts.In 2015, the district began the pilot, known as “Connect and Redirect to Respect,” at 16 elementary and high schools to monitor students’ public-facing social media. It eventually grew to 24 schools, covering some 25,000 students, according to the Crime Lab. If students were found to have posted gang-related material, then district security specialists and school administrators would meet with the student and link them with mentors, counselors and part-time or summer jobs.In cases where the student posed with a gun or appeared to threaten violence, officers from the Gang School Safety Team were brought in. Officers were also present in some cases where no gun was involved, incident reports show, and they weren’t called in every time there was a gun. Dive Deeper Into Our ReportingOur newsletter is written by a ProPublica Illinois reporter every week Discover what makes Illinois tick from our team of investigative journalists covering the state. Delivered every Friday. A review of more than 400 incident reports from the 2016-17 and 2017-18 school years by ProPublica Illinois and WBEZ shows that a police officer was brought in or informed at least 87 times. In dozens of other instances, the district’s records offer no clear indication of whether an officer intervened.The interventions typically occurred in the same way. First, an analyst found a post or got a tip about a post, most often on Facebook, that showed a student flashing gang signs or holding what appeared to be a gun. The analyst told the district security specialist, who started an intervention — sometimes with a police officer present, and almost always with a school dean or principal in the room.The student was asked about gang ties, warned of the dangers of posting gang-related content on social media and encouraged to delete the relevant posts while the adults watched.In many cases, the student denied being in a gang and insisted the weapons in the photos were BB guns or toys, according to the review of the incident reports.A few times, students expressed discomfort with the police being present. In one instance, a student at Sullivan High School, on the Far North Side, saw two police officers in the room and exclaimed: “I don’t like police!”In another case at Taft High School, on the Far Northwest Side, the Gang School Safety Team and a police officer based at the school met with a student who was seen displaying gang signs on Facebook. The student first refused to answer questions and then called his or her mother, who told the officials to speak with her lawyer.But the approach made sense, Chou said, because the goals weren’t punitive.“These officers just care so much, and I think the students feel that,” she said. “It’s not a method of, ‘Hey, you better do this or I can lock you up.’ It’s, ‘As a police officer, I’m telling you I care about your safety.’”The review of the more than 400 incident reports suggests the district mostly avoided punishing students. Only a handful of incidents appear to have prompted arrests — those were physical fights that stemmed from online spats, with the interventions occurring later — and the reports rarely indicate that students were disciplined for their posts, although administrators sometimes threatened discipline if the posts continued.Some incidents did rise to emergency levels. At least four times, the Gang School Safety Team was called to investigate school shooting threats made on social media, and officers made after-hours visits to students’ homes to tell parents and make sure the student didn’t have access to a weapon. In one case, a student was disciplined for posting an advertisement through Facebook as a “School Shooter,” touting himself as a “very talented aimer with great gun skill.” But CPS was alerted to those threats through tips, rather than monitoring by the analysts, incident reports show.Frank Cabrera, a senior and class president at Steinmetz College Prep on the Northwest Side, said he imagines district officials implemented the program with “good in their heart.” But he wishes he and his classmates were told their school was a part of it. Chou said school officials have mentioned to parents at community meetings that the district monitors social media for threats, but ProPublica Illinois and WBEZ found that many students and parents at the target schools were unaware.“Communication is key between everyone,” Cabrera said. “It just shocks me that we didn’t know.” Frank Cabrera, a senior and class president at Steinmetz College Prep on the Northwest Side, said students should have been told school officials were monitoring their social media for signs of gang activity. (Joshua Lott for ProPublica Illinois)Questions About TransparencyAdvocacy groups like the American Civil Liberties Union of Illinois find it difficult to justify broadening the function of police in communities they say are already over-policed.“If they are going to monitor, there needs to be notice to the students and the parents about what sites are being monitored, how they are being monitored … and what they are going to do with all of that information,” said Rebecca Glenberg, a senior staff attorney for the group.District policy says school officials should only call the police for one of two reasons: to seek help with an “emergency situation” or to notify them of a crime. In documents about the monitoring program, CPS officials said social media posts indicating gang affiliations don’t warrant a call to police, unless there’s also a gun involved or a threat of violence.In non-emergency cases, administrators are supposed to make “reasonable efforts” to contact a parent or guardian before calling police. That contact is mandatory in cases with elementary school students and encouraged in those with high school students. But incident reports — like the one for the Taft student who called his or her mother — suggest the effort is not always made.Even when arrests aren’t made, advocates worry the intelligence gathered by police will have negative consequences for students, especially given that some interventions include officers pressuring them to admit their gang affiliations. Glenberg wondered if students’ names are being added to the department’s controversial gang database.“The police have been completely non-transparent,” Glenberg said. “So if we don’t know the criteria to get on there, if there are any, and we don’t know what is happening with all the data that is collected with the social media monitoring, then I think everything is on the table.”Chou, the district’s safety chief, said there’s no need for concern that a student identified through the program would end up on the gang database. But a police commander who oversees the Gang School Safety Team was less unequivocal.“I think anything could progress,” said Cmdr. Christopher Kennedy of the Gang Investigations Division, which includes the Gang School Safety Team. “I would hate to say, ‘No, absolutely not, never,’ because any scenario could build. But in general circumstances, we are not using this as a means to input as a dossier to keep on anyone.” In one case at Taft High School, the police department’s Gang School Safety Team and a police officer based at the school met with a student who was seen displaying gang signs on Facebook. (Joshua Lott for ProPublica Illinois)Sgt. Gus Vasilopoulos of the Gang School Safety Team said police often create their own documentation of the interventions. The school district has no written agreement with the Police Department prohibiting the unit from documenting interactions with students or even adding them to the gang database.“There are so many that we don’t document everything, [but] if we talk to the kid, we do document and we do some kind of gang investigative” supplemental report, Vasilopoulos said.A lack of transparency about the program itself has also prompted skepticism. The school district apparently implemented the monitoring without telling students and parents.This is not only problematic but also a missed opportunity, said Parker, the Morgan Park parent, who had two older children graduate from the school. She said she’d never want her child in a room with police without a parent there, and she’d also want to know about a disturbing post so she could talk to her child about it.Chou said there’s a difference under district policy between “interventions,” where a parent does not need to be present, and “meetings,” where parents must be brought in.“They’re not meetings,” Chou said of the program. “We do interventions.”Even some school officials weren’t told their students were being monitored. In August 2016, when the Crime Lab conducted interviews with 26 administrators, “only a few” at the target schools knew of the program’s existence. Administrators at schools the Crime Lab used as controls to measure outcomes said the concept made them uneasy.“When we described the program to the control schools, a few did not want the program because they felt like it could be an invasion of the students’ privacy,” the Crime Lab wrote in a progress report.Chou emphasized that the intelligence analysts only look at public posts, or screenshots of posts shared with them. They don’t send friend requests to evade privacy settings, she said, and she acknowledged that the software they stopped using in 2017 not only proved ineffective, but also made her uneasy.“That general model, society has spoken on that,” Chou said. “We’ve determined that is not the right answer for us.”Still, three-quarters of administrators interviewed by the Crime Lab said their schools monitored social media on their own, typically by having a staff member friend students on Facebook and check their posts at night and on weekends.“It’s How We Do Business”With some of the grant money from the Department of Justice, CPS hired the two analysts to comb through students’ publicly searchable social media, including posts made off campus and after school. Both analysts previously worked as security officers for the district, according to resumes obtained by ProPublica Illinois and WBEZ.The grant also subsidized the district’s use of a surveillance software called Dunami, which has been purchased in the past by the FBI and the Department of Defense and helps users identify influential figures and map out human networks based on social media activity. The district used the tool until 2017, when officials decided other methods — namely, manual keyword searches by the analysts and following up on tips from staff and community members — were more effective and less intrusive.To measure the effects of the program, the Crime Lab compared shooting victim data at target schools with data from schools with similar demographics.In a final report released in late January, the lab said students at the target schools experienced almost 30 percent fewer shooting incidents outside of school than students in the control schools, though the Crime Lab said this result was not statistically significant because the sample was too small.The report did find statistically significant drops in misconduct incidents and out-of-school suspensions at the target schools when compared with the control schools. Overall, the Crime Lab said the data pointed to “the promise of this innovative approach.”Now, with funding for the grant expired, school officials acknowledged in a December memo to the Department of Justice that the number of students identified through social media searches would “drastically” decline. But Chou said an intelligence analyst remains on staff. Social media monitoring is going to continue.“This is really not even a program anymore, in the sense that this is how we keep children safe,” she said. “It’s how we do business.”
In Navy Disasters, Neglect, Mistakes, and 17 Lost Sailors
by Nate Schweber and T. Christian Miller
Domineque Ray Is Executed in Alabama After Supreme Court Bid Fails
by Lauren Gill for ProPublica At 9:44 Thursday night, the curtain opened on the execution chamber at the Holman Correctional Facility in Atmore, Alabama. Domineque Ray lay strapped to a gurney, according to his lawyer, who was present. Looking into the witness room, Ray pointed his right index finger — an Islamic gesture to show the “oneness” of God — and spoke in Arabic, “There is no god but God, and Muhammad is the prophet.”Ray, convicted of three murders committed as a teenager, was soon dead by lethal injection, his last moments having been sealed by the U.S. Supreme Court earlier that day. Ray’s lawyers had won a stay from the 11th U.S. Circuit Court of Appeals after arguing that the prison’s refusal to allow an imam to be with him in the chamber was a violation of religious freedom protections. But in a 5-4 ruling, the Supreme Court found that Ray’s appeal on religious grounds had come too late. Dissenting, Justice Elena Kagan called the decision “profoundly wrong.” Domineque Ray (Courtesy of Peter Racher)Spencer Hahn, one of Ray’s lawyers, said he was on the phone with Ray Thursday when they found out that the stay had been vacated. “He could not believe it,” Hahn said of Ray. “Nobody could believe it. We’ve had stays taken away from us in the past, but this was so obviously unconstitutional.”Hahn on Friday said the prison had failed to honor its pledge that Ray would have access to an imam “immediately prior” to the execution. Instead, Hahn said, Ray’s last contact with his chosen religious adviser came three hours before his death. A request for comment to the Alabama Department of Corrections was not immediately returned.Ray, 42, was convicted in 1999 of killing two teenage brothers in his hometown of Selma. Later that year, he was convicted of raping and killing a 15-year-old Selma girl. The jury at the second trial voted 11-1 for the death penalty.Ray’s lawyers, insisting on his innocence, mounted various unsuccessful appeals over the years, alleging that prosecutors withheld critical evidence about other suspects, and most recently, claiming that prosecutors withheld documents showing that Ray’s alleged partner in the murders, Marcus Owden, was suffering from schizophrenia when he testified against Ray at the two trials. Owden had confessed to the crimes in exchange for being spared the death penalty. On Thursday, the Supreme Court declined to review the claim of prosecutorial misconduct.One aspect of Ray’s appeals concerned the adequacy of his representation during the penalty phase of the second trial. His lawyers argued that Ray’s trial lawyers had failed to present evidence of Ray’s impoverished and abusive childhood as well as his mental health history. The trial lawyers said they had been limited in their ability to research Ray’s life. Both state and federal judges rejected the claim of inadequate counsel. Stay InformedGet ProPublica’s Daily Digest. Join 100,000 discerning readers and get everything we publish by signing up for ProPublica’s Daily Digest. ProPublica recently contacted nine of the 12 men and women who served on the jury in Ray’s 1999 trial. Some did not want to talk. Others said they had no qualms about Ray’s execution. The one juror who had voted to spare Ray, Angela Rose, said the details of Ray’s upbringing did not surprise her. One juror who had voted for death, Nathaniel Holmes Jr., said he wished he’d known the details of Ray’s childhood back in 1999. He said he hoped he hadn’t made a mistake.Rose, in a brief interview Friday, said, “From Day One, I felt bad because of the verdict that was given.” Rose had initially voted to acquit Ray, but later joined in the unanimous guilty verdict.“You can take a man’s life all day long, but are you really getting justice taking a life for a life?” she asked. “I still feel they should’ve given him life instead of giving him the death penalty.”Peter Racher, who had represented Ray in his appeals for more than a decade, spent the hours before the execution at a gas station near the prison, waiting for the Supreme Court’s ruling and, after it came, went to the execution chamber.Racher said Ray’s left arm shuddered for several seconds after the lethal injection, but that his eyes soon closed, and he was pronounced dead at 10:12 p.m.ProPublica spoke with Ray by telephone on Jan. 23. Ray was confident that the courts would rule in his favor.“The warden said it’s just protocol they have to follow,” he said. “I was like, ‘Okay, I understand, but there’s still protocol under the U.S. Supreme Court that I follow.’”According to Racher, Ray will be buried in an Islamic ceremony in Mobile.
New Evidence Emerges of Possible Wrongdoing by Trump Inaugural Committee
by Justin Elliott, ProPublica, and Ilya Marritz, WNYC Federal prosecutors in New York are circling Donald Trump’s inaugural committee as part of a wide-ranging investigation into possible money laundering, illegal contributions and cash-for-access schemes. Now, WNYC and ProPublica have identified evidence of potential tax law violations by the committee.A spokesman confirmed that the nonprofit 58th Presidential Inaugural Committee paid the Trump International Hotel a rate of $175,000 per day for event space — in spite of internal objections at the time that the rate was far too high. If the committee is deemed by auditors or prosecutors to have paid an above-market rate, that could violate tax laws prohibiting self-dealing, according to experts.Tax law prohibits nonprofits from paying inflated prices to entities that are owned by people who also control or influence the nonprofit’s activities.“Every legitimate nonprofit is very concerned with this,” said Doug White, a veteran adviser to tax exempt organizations, speaking generally. “You’re benefiting a private person, and you’re using the nonprofit to do it.”The inaugural committee also spent at least $1.5 million at a hotel in which the investment firm of the committee’s chairman, Tom Barrack, held a small stake.In addition, the inaugural nonprofit appears not to have disclosed multiple gifts to the committee on its tax return, as required by law.Trump’s inaugural committee spent more than $100 million, almost twice the amount spent on the next-most expensive inaugural party, that of Barack Obama in 2009. In addition to probing how the nonprofit spent its money, investigators are examining whether the inaugural received improper donations from foreigners. Inaugural nonprofits are prohibited from receiving donations from people who are not U.S. citizens. Get More Trump, Inc.Stay up to date with email updates from WNYC and ProPublica about their ongoing investigations. The committee paid a total of $700,000 to the Trump International Hotel for event spaces for four days in January 2017. At the time, a consultant working for the inaugural committee expressed her concern over email that the price quoted by the Trump hotel — $175,000 per day for several event spaces — was too high, as ProPublica and WNYC reported in December.“Please take into consideration that when this is audited it will become public knowledge,” wrote Stephanie Winston Wolkoff, an experienced New York-based event planner, suggesting a fair rate for the event spaces would be at most $85,000 per day, less than half of what was ultimately paid. That fee did not cover catering.Ari Krupkin, an event planner at the Markham Group in Washington, said event space rentals typically come as part of a package that includes catering and audio-visual. Without those services included in the price, he said, “$175,000 a day seems more than egregious.”“It could be a tax law violation,” said Brett Kappel, an attorney at Akerman LLP who advises nonprofits. “Those emails would be of great interest to the Internal Revenue Service if they were to conduct an audit. They probably will be of great interest to the U.S. Attorney’s office in the Southern District of New York, which is investigating the inaugural committee.”Tax law bars nonprofits such as the inaugural committee from insider deals that would unduly benefit people — in this case the Trump family — that have influence over the nonprofit, Kappel said. In legal parlance, these are known as excess benefit transactions. A key question would be whether the Trump hotel charged the inaugural committee above-market rates, which could violate tax rules, Kappel said. If an IRS audit found such a civil violation, the inaugural committee would have to pay taxes on the amount of money it overpaid.It could become a criminal violation, Kappel said, if investigators uncover evidence that people knew that charging above-market rates to enrich the Trump Organization was illegal and did it anyway.A question on the mandatory nonprofit tax return, Form 990, asks whether the organization engaged in any excess benefit transactions. The inaugural committee checked the “No” box.The inaugural committee’s tax return states that it had a written conflict-of-interest policy, but the spokesman declined to provide the policy to reporters. Atchley & Associates, the Texas firm that prepared the tax form, did not respond to requests for comment.The inaugural committee has said that overall, for the event spaces and other expenses, it paid more than $1.5 million to the Trump hotel, as first reported by ABC and The New York Times.Ivanka Trump, the president’s daughter and an executive at the Trump Organization at the time, was on the email chain about the Trump hotel event. She connected Rick Gates, the inaugural committee’s deputy chairman, with a hotel executive when Gates was seeking a price quote for the ballroom. Ivanka Trump’s spokesman in December said she only passed on the note and said that the inaugural should pay a “market rate.” Her spokesman did not respond to inquiries for this story.In her email, Wolkoff, who was a friend of Melania Trump’s, pointed out that since other venues were donating their spaces, the Trump hotel’s rate was particularly troubling. The company that runs events at Union Station, the site for the inaugural’s candlelight dinner, donated the iconic space, according to a contract obtained by WNYC and ProPublica. Barrack’s own wine was also on the menu at the Chairman’s Global Dinner, an exclusive inauguration week event hosted by Barrack. “It was my honor to have donated wine from my personal vineyard, completely free of charge,” Barrack told Vinepair.The Union Station donation and the wine do not appear to be included on the inaugural committee’s tax return, which is supposed to report non-cash contributions. The committee spokesman declined to answer detailed questions about the omission and other issues.In addition, the inaugural spent money at a hotel then partly owned by the investment firm of Barrack, the businessman and friend of Donald Trump’s who chaired the inaugural committee. The committee has said it spent at least $1.5 million at the Fairmont, a Washington hotel owned by the conglomerate AccorHotels. Barrack’s investment firm Colony Capital owned a roughly 5 percent stake in AccorHotels at the time of the inaugural, which it sold soon after. AccorHotels is run by a longtime former Colony executive. The inaugural spent as much or more at the Fairmont as it did at at the Trump International, the Times reported.The White House and the Trump Organization did not respond to requests for comment. White House press secretary Sarah Huckabee Sanders said this week that the subpoena to the inaugural committee “has nothing to do with the White House.”This week, ProPublica and WNYC reported that Barrack’s firm developed a plan after the inaugural to profit from its close ties with Trump and the incoming administration.
What ProPublica Is Covering This Year
by Jess Ramirez We cover many things at ProPublica, from the border, to health, to police abuse. But all of our work is ultimately about one thing: holding the powerful to account. We do it through rigorous, precise journalism. It takes time, but it all starts with listening.That’s why we’re laying out what we’re covering. If you have tips, documents or data on any these issues, contact us.Business and IndustryPatricia Callahan: “I investigate hidden hazards in our homes, on our roads and in our workplaces. Send me tips about defective products and other dangers that businesses and regulators have failed to correct.”
ProPublica Nominated for 4 National Magazine Awards
by ProPublica The American Society of Magazine Editors nominated ProPublica for four of its 2019 National Magazine Awards (also known as the Ellies), which honor excellence in print and digital media. ProPublica was recognized as a finalist for public interest, reporting, digital innovation and social media.Our series on the gang MS-13 was nominated in the public interest category. The powerful narratives by ProPublica reporter Hannah Dreier, who spent a year and a half reporting on Long Island, showed how the government’s bungled crackdown on MS-13 has torn apart the lives of Latino immigrants — deporting innocent teenagers, burning law enforcement sources and failing to prevent further violence. Dreier spent months gaining the trust of a teenage informant who helped the FBI catch fellow MS-13 members, believing authorities would offer him a new life. Instead, they betrayed him, leaking his name and handing him to ICE. Dreier’s next story depicted a mother searching for her missing son, whom police had dismissed as a runaway until his macheted body was found in the gang’s “killing fields.”The series’ final article featured an asylum-seeker accused of gang membership and deported for drawing a devil, his school mascot but also an MS-13 symbol. A school-based police officer reported the doodle, circumventing privacy protections. In response to the series, Long Island police began investigating the mishandling of MS-13 murders and the officers who belittled the distraught mother. Homeland Security opened a civil rights investigation, and ICE changed a practice that jeopardizes informants.Unprotected, co-published with Time magazine, was nominated in the reporting category. Led by reporter Finlay Young and photojournalist Kathleen Flynn, the story looked into an acclaimed charity called More Than Me. Founded by American Katie Meyler, the Liberian school promised to rescue some of the world’s most vulnerable girls from life on the streets; but from the very beginning, children placed under its care were being raped by one of the nonprofit’s leaders. Following publication, More Than Me apologized to the victims, and for the first time, it conceded it had failed them. The charity announced schoolwide HIV testing. The board chair resigned, along with two other board members, while Meyler took a leave of absence pending two internal inquiries. The Liberian government also announced a multi-agency inquiry.The Waiting Game, an immersive news game created by ProPublica and WNYC, was nominated in the digital innovation category. Based on the real case files of asylum-seekers from five countries and interviews with the medical and legal professionals who evaluate and represent them, the Waiting Game lets players walk in the shoes of an asylum-seeker, from the moment they choose to come to the United States to their final hearings before an immigration judge. Users experience their life, day by day, click by click. Created by ProPublica assistant managing editor Sisi Wei, along with Playmatics’ Nick Fortugno, the Waiting Game strives for the same level of research as a traditional news story and seeks to help players understand a complex issue by giving them a more personal and emotional experience. ProPublica senior reporting fellow Kavitha Surana and WNYC reporter Matt Katz also contributed to the project.Work based on our series Documenting Hate was nominated in the social media category. As part of the initiative to address hate crimes (what they are, who perpetrates them and who is victimized by them), ProPublica told many of these stories on social media. Based on an investigation by reporter A.C. Thompson, ProPublica’s social visuals and graphics producer Lucas Waldron compiled video and images from social media, as well as messages from a secret neo-Nazi chatroom, to identify members of white supremacist groups who committed violence throughout the country. We shared our investigation natively on social media platforms including Twitter, Instagram, YouTube and Facebook. The work has been seen by millions and had significant impact. Five of the men identified have since been arrested, with prosecutors widely citing ProPublica’s work.
How We Investigated the Navy’s Twin Disasters in the Pacific
by T. Christian Miller, Robert Faturechi and Megan Rose We set out to reconstruct the accidents in which the USS Fitzgerald and the USS John S. McCain collided with cargo vessels within a few months of each other in 2017, the deadliest accidents at sea in the Navy in four decades. We sent out a team of reporters to interview scores of current and former sailors, officers and commanders, as well as family members and friends. We conducted dozens of interviews with current and former Navy admirals and senior civilian leaders, including the former secretary of the Navy. We attended courts-martial and military hearings. We spoke with experts in ship construction, maritime law and military justice. Many sources were interviewed multiple times. Interviews were conducted in Japan, Virginia, Maryland, California and Washington, D.C.We obtained two confidential reports on the collisions that included more than 13,000 pages of documents, photos and transcripts of sailor interviews. The material included ship logs, disciplinary records and raw data. Navy sources provided emails, internal memos and accounts of private meetings. We also relied on the Navy’s publicly released reports, here, here, here and here, which detailed shortfalls in training, equipment and manpower. We drew upon testimony given by Navy officials to Congress, as well as testimony and motions delivered during courts-martial.We used reports from the U.S. Coast Guard, the Government Accountability Office and numerous other official sources. Several news outlets have extensively reported on the collisions, including Stars and Stripes and USNI News. The Navy Times published a multipart series containing portions of the confidential reports that we reviewed. To understand the Fitzgerald, we toured a ship of the same class, built our own 1:700 scale model and used computer simulations to recreate the Fitzgerald and spaces on board. The Navy did not grant interviews with current Navy leaders. It also did not answer the majority of questions contained in a 10-page list sent by ProPublica in October 2018.To reconstruct scenes in the narrative, ProPublica combined written accounts, transcripts, interviews and ship logs. ProPublica attempted to contact those mentioned by name in this story. In cases where people turned down our requests for interviews, or where we received no response, we used transcripts of interviews, written statements and interviews from eyewitness sources. All statements in quotation marks are exact quotations taken from interviews or transcripts. In a very few cases, scenes rely upon interviews or testimony from a single source.The following people contributed to our reporting: Robi Bean, Sophie Chou, Jeff Ernsthausen, Stefan Fichtel, Xaquín G.V., Joshua Hunt, Ian MacDougall, Claire Perlman, Gabriel Sandoval, Ann Schneider, Nate Schweber, Lucy Sexton, Ginger Thompson and Lucas Waldron
Years of Warnings, Then Death and Disaster
by Robert Faturechi, Megan Rose and T. Christian Miller When Vice Adm. Joseph Aucoin was elevated to lead the vaunted 7th Fleet in 2015, he expected it to be the pinnacle of his nearly four-decade Navy career. The fleet was the largest and most powerful in the world, and its role as one of America’s great protectors had new urgency. China was expanding into disputed waters. And Kim Jong-un was testing ballistic missiles in North Korea.Aucoin was bred on such challenges. As a Navy aviator, he’d led the “Black Aces,” a squadron of F–14 Tomcats that in the late 1990s bombed targets in Kosovo.But what he found with the 7th Fleet alarmed and angered him.The fleet was short of sailors, and those it had were often poorly trained and worked to exhaustion. Its warships were falling apart, and a bruising, ceaseless pace of operations meant there was little chance to get necessary repairs done. The very top of the Navy was consumed with buying new, more sophisticated ships, even as its sailors struggled to master and hold together those they had. The Pentagon, half a world away, was signing off on requests for ships to carry out more and more missions.The risks were obvious, and Aucoin repeatedly warned his superiors about them. During video conferences, he detailed his fleet’s pressing needs and the hazards of not addressing them. He compiled data showing that the unrelenting demands on his ships and sailors were unsustainable. He pleaded with his bosses to acknowledge the vulnerability of the 7th Fleet.Aucoin recalled the response: “Crickets.” If he wasn’t ignored, he was put off — told to calm down and get the job done.On June 17, 2017, shortly after 1:30 a.m., the USS Fitzgerald, a $1.8 billion destroyer belonging to the 7th Fleet, collided with a giant cargo ship off the coast of Japan. Seven sailors drowned in their sleeping quarters. It was the deadliest naval disaster in four decades.Barely two months later, it happened again. The USS John S. McCain, its poorly trained crew fumbling with its controls, turned directly in front of a 30,000-ton oil tanker. Ten more sailors died.Sign up for updates from T. Christian Miller, Robert Faturechi, and Megan Rose about their investigation into the Fitzgerald disaster and the Navy’s neglect of its ships and sailors.The Navy, embarrassed and scrambling to explain to Congress and America’s allies how such seemingly inexplicable disasters could have happened, moved quickly to prosecute members of ship crews it declared all but incompetent and to strip senior officers of their commands.But the swift, seemingly decisive action masked a much more damning story of failure by the Navy’s top command and the Pentagon. Aucoin had hardly been the only one detailing the once-proud 7th Fleet’s perilous condition. The alarms had been sounded up and down the chain of command, by young, overmatched sailors, by veteran captains and commanders, and by some of the most respected Navy officials in Washington.Two three-star admirals told ProPublica they had explicitly notified superiors of the growing dangers. The two people who served successive terms as undersecretary of the Navy, the No. 2 position in the civilian command, said they had, too. They produced memos, reports and contemporaneous notes capturing their warnings and the silence or indifference with which they were met. Now, frustrated by what they regard as the Navy and Pentagon’s papering over of their culpability for the twin tragedies, these officials and others have broken with Navy custom and are speaking candidly, naming names and raising concern that the Navy could well repeat its mistakes. (Read more about how we investigated this story.)Three-star Adm. Thomas Copeman, who from 2012 to 2014 was in charge of the fitness of the Navy’s ships for combat, had made clear to his superiors in 2013 that it was getting harder to “look the troops in the eye and say, ‘Hey, just do it.’”Copeman said he was pushed out of his job after he spoke out. But he doesn’t regret it.“If you’re an admiral in the Navy,” he said, “you may have to make that decision to send people into combat, and you better not have blood on your hands the rest of your life because you didn’t do everything you could in peacetime to make them ready.”These firsthand accounts by Aucoin, Copeman and others are supported by thousands of pages of internal Navy records, public reports and confidential investigations obtained by ProPublica: a 2010 report that all but predicted the accidents; data kept by admirals vividly demonstrating how thin the 7th Fleet was stretched; a 13,000-page investigation that lays bare the extraordinary risks commanders were willing to have their sailors face.Those records include the account of a sailor on the McCain who warned superiors before the collision: “It’s only a matter of time before a major incident occurs.” The account of another sailor on the ship suggested why: “Incompetence is the standard.” An officer on the Fitzgerald told ProPublica he warned his bosses people could die without changes.At the Pentagon, Navy Undersecretary Janine Davidson repeatedly told her boss, Navy Secretary Ray Mabus, that the Navy was plowing money into buying new ships while its current fleet was falling dangerously into disrepair. His expanded fleet would take years, even decades to build; the risks were immediate. Mabus, appointed in 2009, served the entire two terms of the Obama administration, leaving just months before the crashes.“His priority was shipbuilding. He made it very clear,” Davidson said of Mabus, whom she accused of blocking her from speaking to Congress about her concerns. “Anybody who had a different opinion was shut down.”Robert Work, Davidson’s predecessor, informed senior officials at the Pentagon that the Navy’s fleet was being overtaxed by missions that were of limited value. Work, who went on to be the deputy secretary of defense, said the Pentagon repeatedly rejected his analysis.Despite the stresses on the 7th Fleet, Navy leaders were reluctant to push back on the relentless requests from Pentagon commanders to send the fleet’s ships on missions, even those that the Navy’s own admirals and ship captains considered of questionable value.Mabus said Davidson, once considered a possible successor, was angling to boost her political profile when she raised alarms. He readily acknowledged that he had been committed to building a stronger Navy through buying new ships.“Quantity has a quality all of its own,” Mabus liked to say.Magnifying the 7th Fleet’s troubles, and the Navy’s broader state of decline, were brutal and sudden budget cuts during the Obama administration by a Congress riven by continued partisan enmity.ProPublica, months ago, asked to discuss its findings with the current Navy leadership and sent detailed questions about the 7th Fleet, including charges from former commanders that the American public had not heard the full story behind the deadly crashes in the Pacific. The Navy responded with a statement saying it had committed to reforms that included improved training and better staffing of its warships.“We have implemented several changes over the past year and a half to ensure we meet the high standards of performance that the American people must expect from us,” Adm. John Richardson, the Navy’s top military officer, said in the statement.But the fleet’s relentless pace still forces crews to work 100-hour weeks or more. And the Government Accountability Office, Congress’s watchdog, reported in December that the Navy “continues to struggle” with fixing its ships and putting enough sailors on them.“The men and women of the Navy deserve better,” Aucoin said. “The truth needs to come out to prevent this kind of tragedy from ever happening again.”Chapter 1: “Only a Nitwit of the Highest Order …”There’s no disputing that Mabus — the onetime governor of Mississippi and a politician admired for his savvy — faced daunting challenges when President Barack Obama named him Navy secretary in 2009.The Navy had seen its budget cut by almost 25 percent in real dollars in the 1990s, after the Cold War ended. The 600 ships the Navy boasted in the late 1980s would shrink by half. Then, the administration of George W. Bush committed America to two long and frustrating land wars.Tens of thousands of sailors were dispatched to relieve ground troops in Afghanistan and Iraq, reducing crew sizes on ships and depriving the ships of sailors with specialized skills. Between 2006 and 2009 alone, more than 1,200 sailors were taken off cruisers and destroyers like the Fitzgerald and the McCain and sent to the Middle East.In the early 2000s, the Navy embarked on a quest for so-called efficiencies. Vern Clark, the Navy’s top military officer during much of the Bush era, brought an MBA to the job and pitched his cuts to the force using the jargon of corporate downsizing. Smaller crews were “optimal” crews. Relying on new technologies to do the work sailors once did was described as “capital-for-labor substitutions.”Promising a “workforce for the 21st century,” Clark’s team tried out new training and staffing ideas, including a decision that officers no longer needed to attend months of classroom training to learn the intricacies of operating billion-dollar warships. Instead, aspiring Surface Warfare Officers, charged with everything from driving ships to launching missiles, could learn mostly at sea with the help of packets of CDs. The program was widely derided by sailors as “SWOS in a Box.”The efficiencies even included eliminating a requirement for ship captains to post lookouts on both sides of ships, a cut that would later prove crucial when the Fitzgerald’s crew failed to see a fast-closing cargo ship until it was too late.In an interview with ProPublica, Clark said these reforms were intended as experiments for a more streamlined and ready Navy and should have been regularly re-assessed.“Only a nitwit of the highest order would continue down this path without seeing if it’s working,” he said.Mabus, taking on a downsized, marginalized Navy, wasn’t ambiguous about what needed to be done: replenish the fleet’s number of ships. The worldwide fleet had fallen to just 278 ships before Mabus was sworn into office.His plan made strategic sense. The world’s oceans were a re-emerging battleground. China was expanding its Navy, and it routinely patrols contested waters around the South China Sea to assert its dominion. Russia has become newly assertive in the waters off its coasts, especially in the Arctic. And North Korea’s aim of building missiles to reach mainland America is best contained by a robust Navy presence offshore.To maintain control of the world’s oceans, military and congressional leaders have determined that the Navy has to build new ships to meet new threats. Projecting American power and values across the globe required gray hulls on the horizon.Mabus, a Democrat, meant for a restocked fleet to be his lasting legacy. Over his nearly eight years in office, the longest tenure of any Navy secretary in a century, he boasted the Navy signed contracts to build 86 ships — twice the total as had been approved in the prior seven years under the Bush administration. When he left office in 2017, Mabus said the Navy was set to have 308 ships by 2021.For Clark, by then retired, it was a surprising use of the Navy’s limited budget.“When I looked at the shipbuilding, I couldn’t believe my eyes,” he said. “I knew how much money we had.”Chapter 2: “We’re Using the Fleet Too Much”About the same time Mabus took charge, the full impact of Clark’s cuts were becoming obvious in the fleet. Building ships was fine, even necessary, but some military professionals thought the priority should have been fixing the dangerous shortcomings with the current fleet.The Navy called three-star Adm. Phillip Balisle out of retirement to investigate the state of its operations. The fleet was in decline, with two warships so neglected they were unfit for combat. He delivered a sobering assessment.In 2009, Balisle and a team of investigators had traveled to the Navy’s power centers, in Norfolk, Virginia; Hawaii and San Diego, interviewing senior enlisted sailors, private contractors and officers up and down the chain of command. They toured ships, gathered data and received briefings from senior officials in Washington.They were alarmed by what they saw. Clark’s “optimal manning” had reduced crew sizes for warships. Destroyer crews had shrunk on average from 317 sailors a decade earlier to 254. Then the Navy shorted the ships even further, exacerbating what was already a critical situation. Ships had roughly 60 percent of the enlisted leaders needed to mentor and train young sailors. And to make up for the short-staffing, the Navy simply extended the crews’ workweeks.Balisle’s team determined the Navy’s 283 surface ships needed 4,500 more sailors to be staffed to recommended levels.The condition of those ships was also declining as the Navy reduced time devoted to maintenance. Ships that once docked for 15 weeks for repairs were sent to sea after just nine weeks. The effects were dramatic; destroyers the Navy hoped would last for 40 years were hanging on for just 25. Reports of problems with certain radar systems were up, and sailors were increasingly unable to make fixes on their own.A legion of poorly trained junior officers aboard the ships were being promoted, Balisle warned, creating a generation of unprepared leaders.Balisle’s report, dated February 2010, was delivered to Mabus and to Congress.“It appears the effort to derive efficiencies has overtaken our culture of effectiveness,” Balisle said in the report. He then took aim at the “downward spiral” of the Navy’s culture, in which a commitment to excellence had been badly eroded.“From the most senior officers to the most junior petty officer, the culture reveals itself in personal attitudes ranging from resignation to frustration to toleration,” he wrote. “While the severity of current culture climate may be debated, its decline cannot.”The report left Work, then the undersecretary of the Navy and Mabus’ No. 2, shaken. He decided to act.Work, a widely respected figure at the Pentagon, said he began using his monthly meetings with then Deputy Secretary of Defense Ash Carter and his counterparts at the Army, Marines and Air Force to detail the stress on the Navy’s ships. The Navy was being asked to conduct too many operations, Work told them, some of debatable merit. The problems were real, he said, and the risks to readiness considerable.“We’re using the fleet too much,” Work told the Pentagon. “We have to say ‘no’ more often.”Work said he brought Carter round after round of data showing the demands on the fleet were degrading its readiness to counter threats.Specifically, Work recalled raising concerns about a request around 2011 to have two of the Navy’s 11 aircraft carriers — and their escort ships — in the Persian Gulf at all times, an unusual demand that would require putting off repairs and training.The request came from the commander of CENTCOM, the uniformed officer responsible for all operations in the Middle East. In the military, the wishes of what are known as combatant commanders are all but paramount. They are often dealing with issues of utmost national security: the war in Afghanistan, the development of nuclear weapons in North Korea, ISIS fighters in the Middle East, Al Shabab terrorists in the Horn of Africa, the expansionist aims of China and Russia.Individual combatant commanders, who report to the secretary of defense, are in charge of military operations inside six global regions, no matter which branch of the military is conducting the operation. The leaders of the Navy, Army and Air Force are responsible for delivering trained and equipped troops. They can lobby the Pentagon against an operation they feel is ill-advised, but the final say goes to the defense secretary, and ultimately the president.Navy officials — from captains helming ships to three-star admirals — told ProPublica that many commanders’ operations seemed unnecessary, such as shows of force requested by allies, joint-training exercises with foreign militaries or so-called presence missions in non-contentious parts of the world. As Aucoin struggled to find ships to patrol off nuclear-armed North Korea, his superiors sent a destroyer to help the small Pacific islands of Tuvalu and Nauru enforce their fisheries laws.Some extolled such operations as key to maintaining so-called soft power — keeping allies happy, telegraphing might without direct military force. But others saw them as a luxury a strapped Navy could no longer support. When the Navy had 600 ships, about 100 were at sea at any given time. With half as many ships, the Navy still keeps about 100 at sea. In other words, as the Navy shrunk its fleet, it increased the workload on its sailors.The commanders “would ask for ships, they would ask for airplanes, they would ask for troops,” Work said. “And it was very, very difficult for the Department of Defense to say no because almost every single request that came in was judged as high risk if not approved.”Work said Carter dismissed his concerns and even questioned the analyses done by Work’s aides. “He would send us back and say, ‘I don’t believe the data,’” Work recalled. “We’d come back with more data. He’d say, ‘I still don’t believe it.’”Carter did not respond to emailed questions from ProPublica.Work, who would later serve as deputy secretary of defense from 2014 to 2017, also could not expect much backup from his boss. For Mabus, the incessant demands on his aging fleet helped justify buying more ships.“From Secretary Mabus’ perspective, the more ships in the fleet, the better,” Work said. “And the more ships that were out and about, the better.”In an interview, Mabus, in fact, said he didn’t recall the Balisle report that had so worried his deputy.“I’m sure I knew about it when it came out,” he said.Chapter 3: A “Hollow” NavyThree-star Adm. Thomas Copeman wore a smile as he approached the lectern at an annual Navy symposium at the Hyatt hotel in Arlington, Virginia. A stack of notecards in hand, he cracked a few jokes about the Navy officials in attendance being distracted by their dinner plans or their BlackBerrys.It was January 2013, and it had been almost three years since the Balisle report. Copeman had been nursing a host of frustrations.Officers on the decks of ships were telling him they needed more sailors, and better trained ones, to operate and maintain their equipment, he told the crowd. Commanders were robbing specialists from some ships to make the crews of other ships whole, a Band-Aid solution. The workweek had been extended, vessels were degraded, parts were breaking and increasingly ships lacked the spares to replace them.Readiness was supposed to be his job, but he’d had trouble getting it done. Echoing the words of Balisle three years earlier, he said, the Navy was headed toward a “downward spiral.”The Navy’s surface forces needed $3.5 billion, he said, just to fix what was wrong with training alone.Copeman raised the specter of a “hollow” Navy.“I can’t tell you whether we’ve gotten to that point,” he said. “But I will tell you that we’re getting closer to it.”The path forward was for the Navy’s civilian leadership to determine, Copeman told the assembled Navy officers. He would salute and follow orders no matter what. But the obvious solution was to stop building new ships and start taking care of the current fleet.Copeman knew as he said it that his solution stood in stark contrast to the agenda set out by Mabus.“I heard him and his immediate staff state more than once that they can ‘catch up with readiness in a year or two, but you couldn’t do the same with ships,’” Copeman told ProPublica.The blowback to Copeman’s public airing was swift.Within hours of leaving the stage, the calls began. Within a few days, he was contacted by four different representatives for Mabus and for Chief of Naval Operations Jonathan Greenert. A Mabus representative told Copeman it was extremely disappointing he was not supporting the secretary’s shipbuilding agenda. A Greenert aide asked how he could have betrayed Greenert.Mabus and Greenert said they had no knowledge of the calls.Greenert later summoned Copeman and asked him to submit his retirement papers early. The decision, Greenert told ProPublica, wasn’t due to Copeman’s public criticisms but “was associated with the availability of the best and fully qualified successor for the position.”Copeman said in an interview he didn’t second-guess his decision to be frank.“It’d be tough to look in a mirror if I’d stayed silent,” Copeman said.Still, he believes the order to retire may have had a chilling effect on other top commanders speaking out.“I think that many flag officers took notice,” he said.A third-generation Navy officer, Copeman fired off a couple more memos before retiring, hoping he might at last get the leadership’s attention.The first warned of the fleet’s increasing “configuration variance” problem: The same systems operated in dozens of different ways on different ships, confusing sailors as the Navy shifted them from one vessel to another.“I liken it to this,” Copeman told ProPublica. “You have a car with a steering wheel and a gas pedal and one day you walk out and get in your car and an iPad sits were your steering wheel used to be and the gas pedal is no longer there.”Copeman enlisted a four-star admiral, Bill Gortney, to sign the memo and distribute it in the upper echelons of the Navy. His memo would prove prescient. Four years later, confusion over the McCain’s new steering system caused the ship to turn in front of an oil tanker.Finally, three months before retiring, Copeman issued a dire warning about the lack of trained sailors.“If we continue to invest in the latest and greatest equipment and the most capable weapon systems without making an equivalent investment in our workforce, we will move further away from being a ready force,” the memo read.A staffer thanked Copeman for his input, but Copeman never saw any changes. (Greenert said both memos contributed to reforms.)Around that time, Congress compounded the Navy’s problems.Facing a budget impasse over the conservative Tea Party’s demands for deficit reductions, Democrats and Republicans agreed to allow a supercommittee composed of a dozen members from each party to come up with a compromise. If they failed, more than $1 trillion in cuts would hit military and domestic programs, wonkily known as sequestration. It was a scenario designed to be so catastrophic that it would guarantee a deal got done.Navy officials warned Congress that the sudden drastic cut would be disastrous — and many lawmakers echoed that concern.“The feeling was this won’t happen,” Greenert said.It did.In 2013, the Navy got $9 billion less than it had budgeted for, its penalty under budget sequestration. Even advocates for slashing defense spending considered the cut reckless.The Navy trimmed its budget in part by cutting software and computer upgrades planned for DDG-class destroyers — including the Fitzgerald, the McCain and several other destroyers based in the 7th Fleet.“Before we went to sequestration we were planning to do a bunch of stuff for the DDGs. Sequestration happened. Plans changed,” Dave McFarland, the Pentagon’s deputy for surface ship warfare, told a reporter in 2014.Three years later, the Fitzgerald would set sail with many of its computers and software out of date. For instance, its primary navigation system, known as the Voyage Management System, was running on Windows 2000 — the oldest version among ships based in Japan. Sailors would say that the navigation system would wrongly plot their position or the position of other ships.After the cuts, Greenert warned Congress, “Unless this nation envisions a significantly diminished global security role for its military, we must address the growing mismatch in ends, ways and means.”The Navy propped up its budget for ship maintenance with special funding designated for the war on terror. This led to unpredictable funding and hasty spending, according to a former Navy official who worked on budgetary matters. And when the anticipated funding fell short, maintenance simply didn’t get done.Even more damaging was the reliance by Congress on stopgap budget fixes known as continuing resolutions, which kept funding at the level of the previous year until lawmakers passed a new budget. The measures kept the money flowing but restricted how it was used, blocking the Navy from launching new projects and changing spending priorities as its needs changed.“They were killers for us,” Mabus said.A former ship captain recalled getting to shore during one continuing resolution with a long list of urgent maintenance needs: “They come back to me and say: ‘There’s no way we can afford that. Tell me what you’re not going to do.’”He asked to skip their planned weapons modernizations and instead take care of some of the more pressing maintenance projects. But he was told he couldn’t cut the weapons modernizations because they were already in the base budget.“What you’re talking about is analogous to taking a big 55-inch TV,” he said, “and putting it in a leaky shack. How long do you think that’s going to last?”Chapter 4: “Sleepwalking” Into RiskShortly after Janine Davidson took over as undersecretary of the Navy in the spring of 2016, she began touring shipyards in San Diego, Seattle and Norfolk and visiting the decks of ships at sea.The evidence of neglect was everywhere. The previous May, the GAO, recalling the warnings of Balisle and Copeman, had told Congress that the Navy had a serious readiness problem in the Pacific. Many crew certifications — proof of competency in such things as navigation and ballistic missile defense — were expired. And the Japan-based ships were deteriorating.In response, the Pentagon told the GAO the Navy was “well aware of the risks” and accepted them as the cost of increasing its presence in the region. Navy and Pentagon leaders promised to ease the pace, but they instead ramped up operations. When the GAO reviewed the certifications again after the crashes of the Fitzgerald and McCain, it found that the lapses of certifications had increased more than fivefold since 2015.As Davidson was digging, Thomas Rowden, the three-star admiral who had succeeded Copeman in overseeing surface ship readiness, began confiding in her that problems were getting worse.To Davidson, it was clear: “It’s sleepwalking into a level of risk you don’t realize you have,” she said of the Navy in 2016.The shortcomings, she found, extended beyond the Navy’s ships. Pilot training was down, and the backlog for fighter jet repairs was growing. From 2013 to 2015, aviation mishaps went up by almost 50 percent. In 2016, two Super Hornets collided during a training mission off the coast of North Carolina. Davidson said the final straw was discovering the Navy’s budget for ship maintenance was $800 million short.“I was like: ‘What? How does that happen?’” Davidson said.Davidson had joined the Air Force in 1988, becoming the first woman to fly the C–130, a military transport aircraft. As a civilian, she turned her focus to military operations, later serving as a deputy assistant secretary of defense from 2009 to 2012, overseeing military war plans.As Mabus’ undersecretary, she said, “My role was to probe.”When Mabus wasn’t traveling, she’d join him and other senior officials, including Thomas Oppel, his chief of staff, around a Pentagon conference table. There, she’d make her case for dedicating money and energy to shoring up the Navy’s beleaguered and overmatched men and women and ships.Mabus refused to budge.A former Navy official recalled Mabus’ blunt response: “We’re building ships. I’m not going to move more money.”The room, in those moments, would fall silent. The conversation was over.Taking her concerns to Congress wasn’t an option for Davidson. Oppel — who served as the enforcer for his more genteel boss — had told her to stop talking to lawmakers when she was first beginning to poke around on readiness shortfalls, before she realized the true extent of the problem.“They didn’t want me going up there,” Davidson said.Mabus didn’t dispute Davidson’s account, and he defended his decision to stop her from talking to Congress.“If you’ve got concerns, great. Bring them to me,” he said. “But if you’re a political appointee, we got to have one message. Particularly going to Congress.”Oppel insisted that requiring Davidson to do so was not an effort to silence her.“There was never an attempt to muzzle anybody,” Oppel said.Mabus said the issues Davidson brought to him were motivated by careerism. Her priority was becoming the next secretary of the Navy, he said, and to make herself stand out, she purposely staked out positions that differed from his. Davidson denied this was her motivation.“I’m not sure she, regardless of what my agenda had been, she would have agreed with it,” he said.Rep. Adam Smith, the chairman of House Armed Services Committee, told ProPublica he was alarmed to learn that an undersecretary of the Navy was dissuaded from bringing her concerns to Congress.“Hearing that leadership at the Pentagon actively worked to withhold information from us is deeply troubling,” Smith said. “Especially when that information could have helped us better fund readiness accounts critical to helping prevent accidents like the ones that cost the lives of 17 sailors.”Chapter 5: “Calm down, Joey”Almost from the moment he took over the 7th Fleet, Aucoin was on collision course with his boss, four-star Adm. Scott Swift.Aucoin led with an understated, reserved style; even his personal call sign, typically a self-deprecating or derogatory joke, was an uninspired “Joey.”Swift was garrulous and politically adroit, with eyes on ultimately being elevated to the combatant commander for the Pacific region — considered one of the choicest jobs in the military. To do that, he needed to impress his superiors with “can do” volume and no complaints.Ironically, Swift’s boss, Adm. Harry Harris, who was then the Pacific combatant commander, had once had Swift’s job, and during his tenure there in 2014, Harris’ staff complained to the GAO that the pace of operations demanded from the 7th Fleet was unsustainable. But when he was promoted in 2015, Harris, too, ramped up the demands.Harris could not be reached for comment.Aucoin said Swift relentlessly ordered his fleet out on ballistic missile defense and other missions — including some Aucoin believed were unnecessary. Breaks between deployments were so short there often wasn’t time for the crew to do basic training.That breakneck “operations tempo,’’ as the Navy calls it, left Aucoin worried about mistakes. “If we cannot get peacetime navigation” right, Aucoin wrote in his 2016 message to his commanders, “we will face real risk when we enter the fog of war.”At one point, he had four assignments and just two ships available. He had to ask the Japanese to fill in and escort an American aircraft carrier for him. At one point, Aucoin recalled, he begged Swift to borrow a couple of ships from the Navy’s San Diego-based 3rd Fleet and was denied.In January 2017, Swift had ordered that the USS Curtis D. Wilbur, a destroyer, be pulled out of maintenance early for an intelligence mission. The voyage did not strike Aucoin as urgent, and the ship needed repairs.“In my 38 years of doing this kind of stuff,” Aucoin said, “I did not deem it worth the squeeze to have this ship go out.”Aucoin thought at the time he had a solid case. Swift overruled him yet again.“It’s like a broken record. It keeps on happening over and over again,” Aucoin told ProPublica. “It’s running our fleet ragged.”Aucoin only recalled rare instances when Swift would accede to one of his requests, in one case agreeing to ease up the fleet’s responsibilities in the South China Sea.Then, in January 2017, the USS Antietam, a guided missile cruiser on loan from the 3rd Fleet, ran aground on a shoal in the Tokyo Bay, in part because its skipper was in a rush that morning to get underway. No one was injured, but the ship gushed hundreds of gallons of hydraulic oil into the sea.The commanders in Aucoin’s 7th Fleet were worried.They put together a troubling statistical picture: The fleet’s pace of operations was the highest in the Navy. Training was down. Certifications, which crews received after proving they were prepared to handle crucial warfighting duties, had dropped from 93 percent completed in 2014 to 62 percent in 2016. That year, only two of the fleet’s 11 destroyers and cruisers received all recommended maintenance. One ship only got a quarter of its scheduled upkeep.In February, Aucoin decided to send the data to Swift, thinking perhaps that would persuade him to ease up.“Excellent work,” Swift emailed the next day, according to Aucoin. Swift promised that his deputy, three-star Adm. Phillip Sawyer, would “look at the need to reduce Operations to match the fleet assigned.”The pace of operations did not let up. Aucoin said he never heard another word.But he was copied on many of Swift’s regular updates to his bosses: Harris and Adm. John Richardson, the head of the Navy. The emails typically began with a rosy refrain such as, “I have no issues requiring your assistance at this time.”Swift declined to discuss Aucoin’s allegations or whether he took any actions as a result of the warnings. In a brief email, he said that readiness funding is not a new problem for the Navy and that it is a “much more systemic issue than any one individual.” After the crashes, the Navy accurately detailed weaknesses, he said, and is now fixing them.Aucoin had directed an aide to monitor manpower in the fleet, coding vessels green if they had enough sailors; those with fewer than needed, yellow; and those where the situation was dire, red. For months, much of the 7th Fleet had been red and yellow. Frustrated, he asked to see the same chart for U.S.-based ships. They were all green.In 2014, the Navy had moved to ensure fully trained sailors filled every post — but only on U.S.-based ships. Those ships were also given dedicated time just for training, but ships in the 7th Fleet had to squeeze it in at sea between missions.Based in Yokosuka, Japan, the fleet is the Navy’s largest overseas installation, encompassing about 20,000 sailors and up to 70 ships and submarines. As its commander, Aucoin was responsible for an area with 36 countries and half the world’s population.Why, then, were the U.S.-based ships better taken care of? Aucoin made clear his upset and worry to Swift.“Calm down, Joey, we’ll take a look at this,” Aucoin recalled Swift saying.Aucoin didn’t get a critical influx of sailors, ideally a group of senior chief petty officers who could help train his greener crews. But he got Swift, and Navy policymakers in Washington, to agree to come to Yokosuka for a conference where Aucoin could show them the problems firsthand.As Aucoin’s concerns over the fleet’s readiness grew, its success, always crucial to American interests, was becoming even more important as the war of words between President Donald Trump and Kim Jong-un intensified. North Korean state media was saber-rattling about launching nuclear missiles at Guam and California. In April 2017, Trump threatened to send “an armada, very powerful.”But in the Pacific, one of Aucoin’s subordinates Capt. Jeffrey Bennett, who was in charge of the squadron of ships that included the Fitzgerald and the McCain, knew that power had been diluted.He ran around the Yokosuka ship repair facility trying to triage repairs. The ships were grossly undermanned. His direct commander, one-star Adm. Charles Williams, would call him on short notice and order him to send ships out, sometimes within hours. If he couldn’t find one, Williams ordered him to recommend a “ship based on the least impact to training and maintenance schedules,” he wrote.Williams declined to answer questions.Bennett called it “forced to source” — he was ordered to provide a ship to fulfill a mission, even when he objected. All his concerns were sent regularly through the ranks to Aucoin and then Swift.“My Chain of Command was fully informed,” Bennett later wrote in a letter to a military judge after he’d been sanctioned for his role in the collisions.Bennett’s predecessor had also specifically warned “senior leadership” in a July 2016 memo about the wholesale risks “currently being taken regarding navigation and operations.”By 2017, 11 of the 7th Fleet’s cruisers and destroyers were, on average, short five operations specialists and at half capacity for deck seamen, the grunts essential for ships to run. Forty-nine sailors were temporarily shifted to other ships to fill gaps, strapping their home ships and at times requiring them to operate systems they’d never been trained on. Almost half the ships lacked a senior quartermaster, one of the most important navigational posts, including the Fitzgerald, which investigators later found contributed to the crash.It’s hardly the picture the Navy’s top command presented to Congress. Indeed, on Feb. 7, 2017, four-star Adm. William Moran, vice chief of naval operations, testified before the House Committee on Armed Services. The Navy was in top shape, he testified.Overseas fleets, including the 7th, he said, were “operationally ready to respond to any challenge … and they have the training and resources they need to win any fight that might arise.”Chapter 6: “In No Way … Prepared for an Actual Real-World Emergency”At 1:30 a.m. on June 17, 2017, the USS Fitzgerald collided with a container ship off the coast of Japan. Ocean water flooded in through a gaping hole, killing seven sailors in the room where they slept and temporarily trapping the ship’s commander in his bunk.Standing with the families of the ship’s crew, Aucoin and his wife watched from the pier as the disabled Fitzgerald limped back to port. Navy divers plunged into the ship’s depths to recover the bodies of the young sailors, one by one.Aucoin said the crash seemed to jolt Swift into action. He sent Aucoin a draft of a white paper he was preparing for his superiors on cruiser and destroyer readiness in the fleet. The data it relied on, Aucoin said, was the same data he’d sent Swift in February.Aucoin found it hard to be gracious: “I honestly feel that leadership failed to heed my recommendations” about the unrelenting pace of operations, he said he wrote back to Swift, “and its negative impact on training and maintenance.” He recommended that Swift stop pulling his ships away from their most significant training exercises for missions.Swift, he said, did not reply. The Navy did not halt operations in the 7th Fleet to determine what had gone wrong with the Fitzgerald.On Aug. 21, 2017, Aucoin got the call that another of his destroyers was involved in an avoidable crash. This one was worse than the last. Ten sailors dead.Aucoin phoned Swift that Monday to tell him he was heading to Singapore, where the mangled USS McCain was to pull in.“No, you stay,” Aucoin said Swift told him. “I want to see you in Japan on Wednesday.”The subsequent internal investigation of the McCain crash, obtained by ProPublica, unspools an almost inconceivable collection of lapses and blunders. Many were foreshadowed during the previous seven years, from the Balisle report in 2010 through Aucoin’s pleas for help.According to the investigative report, the McCain was steaming through the crowded Singapore Strait en route to a shipyard on the country’s northern coast, when the captain noticed that one of his sailors was having difficulty staying on course and maintaining the ship’s speed at the same time.The captain ordered a second crew member at a different computer console to take control of the speed, but that only led to more confusion and eventually panic. No one fully understood how to use the new touchscreen navigation system. For several minutes, the crew mistakenly thought it had lost control of the steering. Then they accidentally slowed the propeller on only one side, forcing the McCain to turn sharply left.The errors led the McCain to careen into the path of a oil tanker more than three times its size. The impact ripped a giant hole in the McCain’s side, flooding a sleeping area, and much like it had with the Fitzgerald, trapping and drowning the sailors inside. Only two of the 12 men in the room escaped.The initial investigation chronicled a familiar list of deficiencies: The ship had too few sailors, and those it did have were getting just four to five hours of sleep a day. The chief petty officer in charge of teaching the sailors how to use the new steering system had received less than an hour of instruction.In a survey of the crew the year before, sailors had alerted their leaders about their lack of training on the ship’s new systems.“Many sailors commented they were doing maintenance without fully understanding what they were doing,” the investigation found. Meanwhile, the fixes for major system failures and deterioration were described as “putting a Band-Aid on equipment to make senior leadership happy.”“We may be able to pass certifications but in no way be prepared for an actual real-world emergency or casualty,” one sailor said.Chapter 7: “You Choose Your Battles”Two days after the McCain crashed, Aucoin sat in the front row of the base movie theater in Yokosuka, the same place the Navy had memorialized the Fitzgerald sailors just nine weeks earlier. He had gathered hundreds of top officers and enlisted sailors for what the military calls a “safety stand down.” Operations stop for a day and the focus is turned to discussing what went wrong.Back in Washington, members of Congress were demanding action after a second historically deadly Navy accident in as many months.In the theater, Aucoin’s assistant got his attention. He needed to check The Wall Street Journal.“Vice Adm. Joseph Aucoin, the three-star commander of the U.S. Seventh Fleet in Yokosuka, Japan, will be relieved of command on Wednesday…,” the story read.Aucoin knew Swift was scheduled to arrive in about 90 minutes. He rushed from the theater and fired off a blunt email to the Navy’s top military leader: His warnings had been routinely ignored, and he didn’t appreciate learning from a newspaper that he was to be fired.When Swift arrived at Aucoin’s office, he sank into the couch. Both men began crying, Aucoin recalled. Swift told him that if he hadn’t fired Aucoin, he’d have been the one under fire.“They should be looking at you,” Aucoin said he responded.No commanders ranked higher than Aucoin were fired.Swift did not get a promotion and retired. He is now a visiting scholar at the Massachusetts Institute of Technology.Swift’s deputy, Sawyer, who Aucoin said did not respond to his warnings, took over Aucoin’s command.Rowden, who succeeded Copeman and worried aloud to Janine Davidson, was forced to retire at a lower rank.The four-star admiral in charge of setting the ships’ manpower levels, Phil Davidson, was allowed to write the Navy’s report on the systemic problems that contributed to the collisions. He was then promoted.Sawyer and Phil Davidson did not respond to requests for interviews.Janine Davidson became president of Metropolitan State University of Denver. As a Democrat, she was expected to stay on in a Hillary Clinton administration, potentially taking over as Navy secretary. When Mabus shut down her readiness complaints, she backed down, expecting she’d have another run at it the following year, after the election.“You choose your battles,” she said. “It was a ‘We’ll get at it next year’ kind of thing.”As for Mabus, the Navy secretary departed before the crashes and started his own consulting firm. His office, high above K Street in Washington, is decorated with his old campaign memorabilia and Navy honors. Oppel, his former aide, joined him there. In his interview with ProPublica, Mabus assumed no responsibility for either collision. He called the Navy’s two deadliest accidents in decades coming within weeks of each other “a coincidence.”“Both of them were failures on those ships,” he said.On Sept. 7, 2017, the House Committee on Armed Services called Moran, the second-highest ranking Navy officer, back to account for his reassurances before the collisions that the 7th Fleet was ready for any challenge.“I personally made the assumption, and I have made the assumption for many, many years that our forward-deployed Naval force in Japan was the most proficient, well-trained, most experienced force we had, because they’re operating all the time,” said Moran, who is reportedly next in line to become the Navy’s top commander.“I’ve made the assumption. It was a wrong assumption, in hindsight.”T. Christian Miller, Robert Faturechi and Megan Rose are writing about their experience reporting on the Fitzgerald disaster and the Navy’s neglect of its ships and sailors at sea for ProPublica’s Disaster in the Pacific newsletter. Sign up now and we’ll send you updates as soon as they publish.The following people contributed to our reporting: Robi Bean, Sophie Chou, Jeff Ernsthausen, Stefan Fichtel, Xaquin Gonzelez Veira, Joshua Hunt, Ian MacDougall, Claire Perlman, Gabriel Sandoval, Ann Schneider, Nate Schweber, Lucy Sexton, Ginger Thompson and Lucas Waldron
The Cook County Sheriff’s Office Says Its Gang Database Is on Lockdown, but Questions Remain
by Mick Dumke In January, aides to Cook County Sheriff Tom Dart began telling other county officials that their office was no longer using its gang database.Many welcomed the news. After all, the gang-affiliation data had been collected through an often subjective and error-prone process, with potentially devastating consequences, as I reported in July. More than 350 other government agencies had access to the database and could use it in investigations, despite its flaws. And people listed in the database had no way to object or to change the information.But weeks after Dart began touting his decision, the sheriff’s office has resisted calls to destroy the database immediately or publicly explain other details of its plans. Commissioners are still negotiating with Dart and his aides to hold public hearings and create a permanent ban on the gang database.“We want something on the record,” said county Commissioner Alma Anaya, who has pressed for restrictions on the gang database and other data collected by the county. “It’s about transparency.”Cara Smith, a top aide to Dart, said the sheriff’s office has been open and collaborative, and she blamed the stalemate over the database on Anaya and her supporters, who have rallied against the sheriff. Cook County Sheriff Tom Dart (M. Spencer Green/AP)“They want drama around this,” Smith said. “And there is none.”Law enforcement agencies around the country maintain secret lists and databases that raise questions about civil rights and due process. The Chicago Police Department’s gang database was riddled with obvious errors and illogical entries when I first acquired a partial copy of it last year. It included dozens of alleged gang members who were in their 70s or 80s, for example, and 15 who were 118 or older. Last June, a group of men whose names were in the database sued the department, arguing the database was racially biased and full of mistakes, which had led to false arrests, lost job opportunities and deportation proceedings. The city has moved to dismiss the lawsuit and the matter remains in court.Sheriff’s officials argued their Regional Gang Information Database was different: They said it had safeguards in place to ensure records were verified and access restricted. But when the office released a copy in July, I found it was still marred by questionable information. Hundreds of individuals in the database were listed as dead, while others had no gang affiliation identified, though that was supposed to be the reason they were included. As with the Chicago police database, people in the sheriff’s database could not correct flawed information — yet 371 other government agencies could access it.A few weeks later, county Commissioner Jesus “Chuy” Garcia, who represented a district on Chicago’s Southwest Side, began meeting with sheriff’s officials to discuss the database. He also asked the county’s inspector general to audit the data. When Garcia left the board to take a seat in Congress, Anaya, his successor, continued the discussions.Smith said sheriff’s officials told Garcia and his aides from the beginning that they were planning to “terminate” the database.“We have been working with the county board for somewhere close to eight or nine months on concerns about the gang database,” Smith told me this week. “We’ve been an open book about how it works and how it’s used.”By December, sheriff’s officials began asking outside law enforcement agencies if they wanted to take it over. In letters to commissioners, the officials said the database wasn’t generating enough information to justify the resources they put into maintaining it.Anaya said she grew concerned the database might be moved to another agency before the sheriff’s office addressed her concerns.On Dec. 7, days after she was sworn in to the board, Anaya proposed an ordinance to get the sheriff’s office to slow down. It would require the sheriff to keep the database until the inspector general’s work is done and the county board holds a public hearing. In the meantime, the office would have to stop adding names to the database and notify everyone added to it in the last five years. The board’s 16 other commissioners signed on as co-sponsors, and the measure was assigned to the board’s Criminal Justice Committee. A committee meeting was scheduled for Jan. 23. Cook County Commissioner Alma Anaya (Courtesy of Cook County government website)The sheriff’s office moved ahead anyway. On Dec. 10, it notified the hundreds of other agencies with access to the database that unless one of them agreed to take it over, Dart’s office would take it offline. After receiving no “serious” offers, the sheriff’s office disabled the database on Jan. 15, according to Smith and other officials.An aide to Dart informed Anaya in a letter the next day. She said the sheriff’s office also argued that her ordinance needed to be changed because the database wasn’t in use and no one besides top sheriff’s aides could access it.But Anaya said she and some other commissioners still had questions. Among them: What would happen if Cook County got a new sheriff? How could sheriff’s officials be sure no one else had a copy of the data? Does Dart’s office maintain any other databases?“It seemed like the sheriff thought that this was no longer an issue by decommissioning” the database, Anaya said. She said she still wanted a public hearing.Commissioner Larry Suffredin said he advised Anaya to rework her ordinance to reflect Dart’s new promises. “If they’re willing to say, ‘We’re not going to use it,’ we need to put it into law,’” said Suffredin, a board veteran from north suburban Evanston.Negotiations continued in a meeting among sheriff’s officials, Anaya, Suffredin and Commissioner Stanley Moore, chair of the Criminal Justice Committee. Among other issues, they discussed if it was practical to notify people in the database, since other agencies had entered some of the names and it could expose the county to lawsuits.Still, the group kept working on a replacement ordinance that everyone could support. Suffredin and Anaya proposed two public hearings, one focused on how the database has been used, the other on what steps should be taken next. Dart’s aides agreed to participate.Suffredin said he expected to keep working on the ordinance with other commissioners at the Jan. 23 committee meeting. Dive Deeper Into Our ReportingOur newsletter is written by a ProPublica Illinois reporter every week Discover what makes Illinois tick from our team of investigative journalists covering the state. Delivered every Friday. But Dart didn’t wait for that meeting to try to convince other commissioners that he’d already taken care of the database. On Jan. 21, the sheriff’s office sent a letter to commissioners to “clear up any confusion.” The regional gang database had been “taken offline and terminated,” the letter said, and the data was confined to computer drives “secured in a safe in our server room.”Some commissioners saw the letter as Dart’s way of saying, “Nothing to see here,” as one told me. But to anyone reading closely, it contained some significant caveats. While the gang database was no longer available online, the data itself would not be erased until 2024. The letter said the sheriff’s office was required to hold onto the data for five years under federal rules. Yet the rules it cited actually put a five-year limit on how long such records can be maintained.Also, the letter stated that the sheriff’s office will keep collecting and maintaining gang data in other formats: “We will continue to interview detainees upon intake at Cook County Jail to gather information which assists in classification of them and enhances the security of staff and detainees.”Commissioners who had questions were encouraged to call the sheriff’s office.Those questions wouldn’t be answered in public — at least not yet. The next day, Moore announced he was canceling the committee meeting, and with it, the first public discussion about Anaya’s ordinance.Instead, on Jan. 23, Anaya and several community groups held a press conference at the county building, blasting the cancellation.In an interview, Moore told me that he called off the meeting after hearing from Dart’s office. “There was a language change in the legislation that the sheriff’s office wasn’t happy about. So I said, ‘I’m going to cancel the meeting until they can work it out.’”Dart wasn’t the only official who wasn’t ready to talk openly about the database. The county board president, Toni Preckwinkle, has vowed to eradicate the city’s gang database if she’s elected mayor in the municipal elections held this month and runoffs in April.But when it comes to the county’s database, Preckwinkle has been more cautious.“President Preckwinkle supports dissolving gang databases, which for years have disproportionately and wrongly targeted black and brown people who have no idea how they got on these types of databases or how they can remove their names from them,” spokeswoman Becky Schlikerman emailed me. “We are pleased the Sheriff’s Office has decommissioned the County’s database and that it will no longer be used. We are confident the sponsor and the chair of the committee will work together to propel the measure forward.”That means it’s back to Dart and Anaya.Smith said that sheriff’s officials are not opposed to testifying in public, once all the parties have agreed on the language for the new regulations.“If the county board wants to have a hearing on it, we will of course participate and answer any questions,” Smith said. “If they want to have a hearing tomorrow, we’ll be there.”But the parties haven’t reached an agreement yet. And that means a lot of questions — about the data the sheriff’s office collected and about the data it still collects — haven’t been answered.
Detective in Elkhart, Indiana, Wrongful Conviction Case Dies in Apparent Suicide
by South Bend Tribune The former Elkhart police detective who was central in an investigation that led to the wrongful convictions of Keith Cooper and another man died this week in an apparent suicide, authorities said.Steve Rezutko, 78, was found Tuesday afternoon at his home on Sturdy Oak Drive, just north of Elkhart, county coroner James Elliott said.Rezutko was an Elkhart police officer for more than 30 years, starting in 1969. He served in the Army for three years before joining the Police Department. On the police force, he rose to the rank of sergeant and then was named a detective. After resigning from the Police Department, Rezutko worked as a corrections officer at the St. Joseph County Jail. He retired last year.Rezutko was the lead detective in a 1996 shooting that resulted in the convictions of Cooper and Christopher Parish. After the evidence in the case unraveled, Parish had his conviction overturned in court and got a $4.9 million settlement, and Cooper received a gubernatorial pardon based on innocence.Rezutko’s death this week came in the midst of a lawsuit filed by Cooper against the city of Elkhart, Rezutko and several other former officers. Last month, the city disclosed long-missing records that showed Rezutko’s 2001 resignation from the Police Department came after an internal investigation into improper contact with female informants. For more than a decade, the city had failed to disclose those records in lawsuits filed by Parish and Cooper.Cooper alleges he was wrongfully convicted largely because Rezutko showed witnesses suggestive photo lineups. His lawsuit also claims the city of Elkhart condoned or enabled misconduct that led to his conviction.
ProPublica and ProPublica Local Reporting Network Projects Are Finalists for the Goldsmith Prize for Investigative Reporting
by ProPublica Projects by ProPublica and the South Bend Tribune, a participating newsroom in the ProPublica Local Reporting Network, are two of seven finalists for the Goldsmith Prize for Investigative Reporting. ProPublica was recognized for its “Zero Tolerance” series and the Tribune for “Accused in Elkhart.”Led by ProPublica senior reporter Ginger Thompson and reporters Michael Grabell and Topher Sanders, “Zero Tolerance” dug into conditions at Border Patrol detention centers where thousands of children separated from their parents, as well as unaccompanied minors, have been sent. Jodi S. Cohen, Duaa Eldeib, Melissa Sanchez, Adriana Gallardo, Alex Mierjeski, Claire Perlman, and Ken Schwencke also contributed to the series.The investigation began in June 2018, when ProPublica published a secret audio recording that captured the unmistakable sounds of children, recently separated from their families at the Mexican border, sobbing and begging for their parents. The cries were played by lawmakers on the floors of Congress and by protesters at demonstrations across the country. Within 48 hours of ProPublica’s publication, President Donald Trump signed an executive order to end the policy and keep immigrant families together. A federal judge in California ordered that parents and children be reunited within 30 days. Stay InformedGet ProPublica’s Daily Digest. Join 100,000 discerning readers and get everything we publish by signing up for ProPublica’s Daily Digest. ProPublica pressed on with a newsroom-wide investigation into detention facilities for immigrant children. Reporters on many beats — in our newsrooms in New York and Chicago — pitched in and filed public records requests for police reports and call logs concerning more than 100 shelters for immigrant children nationwide. The stories that emerged revealed hundreds of allegations of sex abuse, fights and missing children. Arizona Gov. Doug Ducey ordered a statewide inspection of the shelters, leading to the shutdown of two centers run by Southwest Key after the nonprofit failed to provide proof that all its employees had completed background checks.Months after the Trump administration’s “zero tolerance” policy was reversed, Thompson revealed that families were still being separated at the border. She told the story of a 4-year-old Salvadoran boy taken from his father by authorities, who claimed, without evidence, that the father was a gang member. The Department of Homeland Security quickly changed course and returned the boy to his father two weeks after publication.The “Accused in Elkhart” investigation by the Tribune and ProPublica revealed deep flaws and abuses of power in the criminal justice system in Elkhart, Indiana — from new revelations in the wrongful convictions of two innocent men, to the promotions of police supervisors with serious disciplinary records, to the mishandling of police misconduct cases. Driven by Tribune reporter Christian Sheckler and ProPublica reporter Ken Armstrong, the investigation also found that, while the police chief and most of the department’s supervisors had been disciplined for misconduct, carelessness and incompetence, they kept their jobs and were often promoted.In the aftermath of this reporting, two police officers were charged with battery for the beating of a handcuffed man. Previously, the officers had been issued only reprimands, and the incident became public only after the news organizations began investigating it. The police chief resigned, and Elkhart’s mayor announced an independent review of the city’s Police Department — before abandoning his own re-election campaign.In addition to these two projects, an investigation by reporter Connor Sheets of AL.com — recently selected as a participant in the ProPublica Local Reporting Network during 2019 — is also a finalist for the Goldsmith Prize. See a full list of Goldsmith finalists here.
Death and Valor on an American Warship Doomed by its Own Navy
by T. Christian Miller, Megan Rose and Robert Faturechi It’s the dead of night, and the USS Fitzgerald is on a secret mission to the South China Sea.
Confidential Memo: Company of Trump Inaugural Chair Sought to Profit From Connections to Administration, Foreigners
by Justin Elliott, ProPublica, and Ilya Marritz, WNYC The investment firm founded by the chairman of Donald Trump’s inaugural committee, Tom Barrack, developed a plan to profit off its connections to the incoming administration and foreign dignitaries, according to a confidential memo obtained by WNYC and ProPublica.“The key is to strategically cultivate domestic and international relations while avoiding any appearance of lobbying,” the memo says. Colony, which primarily invests in real estate, sought to capitalize on its access to the White House to get an early lead on infrastructure investments and to attract assets from potential investors.Federal prosecutors in Manhattan on Monday subpoenaed documents from the nonprofit 58th Presidential Inaugural Committee, including anything related to foreign donations. Such donations to presidential inaugural committees are barred by law. Investigators are probing whether foreigners gave money in exchange for influence with the incoming Trump administration, NBC News reported.The memo, from Barrack’s investment firm, then called Colony NorthStar, is dated February 2017, just a month after the inaugural festivities organized by Barrack, who is a longtime Trump friend. Get More Trump, Inc.Stay up to date with email updates from WNYC and ProPublica about their ongoing investigations. The Colony memo shows how the company was positioning itself to take advantage of Barrack’s relationship with Trump and foreign officials immediately after the president was sworn in. Barrack hosted a chairman’s dinner during inaugural week, with his own invite list, which included businesspeople and foreign dignitaries.“‘Contact’ — ‘Cultivation’ — ‘Conversion’ should be the mantra and objective of Colony NorthStar’s international program in DC and internationally,” the memo said. No other firms “can currently match the relationships or resources that we possess,” it added.The memo outlines a “strategic plan” for Colony, which now has $44 billion under management, to ramp up its operations in Washington and open an office there. It envisions “setting up roundtables between Ambassadors and members of the Administration to cultivate relationships” in areas including infrastructure and plans to “tie into international bilateral meetings already occurring with key members of the Trump Administration. This would include taking a leadership role in forming the events, the participants, and the agenda.”Barrack’s company should do all this while keeping a low profile, seeking to build a “subtle brand,” the memo says.A Colony spokesman said in a statement: “This memo was simply an outline of a proposed potential business plan which was never acted upon or implemented. Colony at no time has maintained a DC office.” View noteA person familiar with the creation of the memo said it was written by Rick Gates, who was deputy chairman of the inaugural committee and was then hired by Barrack as a Colony consultant. The memo is on Colony letterhead. Gates, who was fired by Colony after he was indicted in Robert Mueller’s Russian interference investigation in October 2017, did not immediately respond to a request for comment. Gates has pleaded guilty to conspiracy and lying to the FBI, and he is cooperating with law enforcement.While Colony says the plan in the memo was never adopted, Barrack was frequently present at meetings with government officials in the early months of the Trump administration.Calendars obtained by the watchdog group American Oversight show that Treasury Secretary Steven Mnuchin met at least three times with Colony executives in the four months following the inaugural.An April 14 meeting with Mnuchin at a private room at the Georgetown restaurant Fiola Mare included the ambassadors of Oman, Kuwait, Jordan, the United Arab Emirates, Bahrain, Qatar and Saudi Arabia.Also at the dinner: Tom Barrack and Rick Gates.Barrack, who is of Lebanese descent and speaks Arabic, has cultivated business ties in the Middle East over many decades.In early 2017, Gates and Barrack identified an investment idea based on the Trump administration’s emerging Middle East policy. Barrack threw his weight behind a proposal to spread nuclear power technology to Saudi Arabia, and considered buying a stake in U.S. reactor manufacturer Westinghouse, he told ProPublica in 2017. That plan stalled.Much of the February 2017 memo outlines how Colony could capitalize on Trump’s public-private infrastructure proposals, which have not materialized.Another document obtained by WNYC and ProPublica — an invitation list for the Jan. 17, 2017, inaugural event, the Chairman’s Global Dinner — shows the breadth of Barrack’s international connections.The dinner was billed as a celebration for Washington’s diplomatic corps, and it took a week to configure the Washington venue to accommodate the featured entertainment, a Las Vegas revue known as Steve Wynn’s Showstoppers. President-elect Trump gave a speech at the dinner.In addition to ambassadors from around the world, over 100 guests from different walks of life are listed as being invited by Barrack.Among them: Mohamed Alabbar, an Emirati property developer, Yousef Al Otaiba, the ambassador of the United Arab Emirates in Washington, and the ambassadors of Qatar and Saudi Arabia.Barrack’s list also included Tennessee property developer Franklin Haney, who reportedly has drawn the focus of federal prosecutors in connection with his $1 million donation to the inaugural committee. Haney did not immediately respond to a request for comment.Some events that week were reserved for high-dollar donors. It’s not clear which guests may have paid to attend the Chairman’s Global Dinner, or what their contribution was. It’s also not clear which invited guests actually attended.Colony, a publicly traded company, has not fared particularly well in the first two years of the Trump administration. A troublesome merger cost the company its CEO, and Barrack returned as chief executive last November.One bright spot for Colony’s business in the Trump era has been more than $7 billion of inflows to its investment funds, a quarter of that from Saudi Arabia and the United Arab Emirates, The New York Times reported in June.
In Elkhart, Indiana, Another Conviction Gets Tossed. The Star Witness Was Hypnotized, a Fact the Prosecutor Concealed.
by Christian Sheckler, South Bend Tribune and Ken Armstrong, ProPublica A federal appeals court has overturned an attempted murder conviction in Elkhart, Indiana, saying a prosecutor concealed “explosive” evidence that the state’s sole eyewitness had been placed under hypnosis prior to trial, throwing into doubt the witness’s reliability.The court’s opinion, issued 25 years after the defendant, Mack Sims, was convicted, is the latest rebuke of Elkhart’s criminal justice system, which has been the subject of an ongoing investigation by the South Bend Tribune and ProPublica.The prosecutor who failed to disclose the hypnosis, Charles C. Wicks, is now an Elkhart Superior Court judge, presiding over felony and misdemeanor cases.Sims was arrested in November 1993 on suspicion of shooting Shane Carey, a security guard sitting in his car. Police said they found Sims about a half-hour after the shooting, crouching behind a nearby trash bin. In 1994, Sims was convicted in a jury trial of attempted murder and sentenced to 35 years in prison. He’s currently at Westville Correctional Facility, in the state’s northwest corner. No physical evidence linked Sims to the shooting. The state’s case hinged on Carey’s identification of Sims as the shooter. Stay InformedGet ProPublica’s Daily Digest. Join 100,000 discerning readers and get everything we publish by signing up for ProPublica’s Daily Digest. Under a 1963 U.S. Supreme Court case, Brady v. Maryland, prosecutors must disclose evidence that could be viewed as favorable to the defense. When Sims stood trial, Wicks, the case’s prosecutor, did not inform the defense that he had referred the victim to a hypnotist. The hypnotist was a physician’s assistant Wicks knew from the Kiwanis Club.Courts generally frown on testimony from witnesses who have undergone hypnosis, because the practice often leads to an increase in false memories, alongside any legitimate improvements in a person’s recall. The Supreme Court has warned that a person under hypnosis is vulnerable to “confabulation,” filling gaps in the memory with fantasy, and to memory “hardening,” which increases a person’s confidence in both accurate and inaccurate recollections.“Given the well-known problems that hypnosis poses for witnesses’ memories, we can be confident that Carey’s identification testimony would have been subjected to withering cross-examination,” the federal appeals court wrote in a 2-1 opinion. “The prosecution’s case against Sims depended completely on Carey’s credibility, which the suppressed hypnosis evidence would have severely undermined.”Wicks declined to comment through an assistant Monday, saying that in his current position as a judge, he could not discuss how Sims’ prosecution had been handled.In Sims’ case, the victim’s hypnosis was not publicly revealed until 2012, while Sims was seeking a new trial. During a hearing in Elkhart Superior Court, then-prosecutor Graham Polando disclosed a conversation he had with Wicks — by then a judge — prior to the hearing.Wicks told Polando that “the victim in this case identified the … defendant, Mr. Sims, only after hypnotism,” Polando said in court. What’s more, according to the federal appeals court opinion, Polando said Wicks “asked me not to disclose what he told me” about Carey’s hypnosis.When called to testify during the hearing, Wicks said he did not remember telling Polando the victim could identify Sims only after being hypnotized. Wicks said he did not disclose Carey’s hypnosis to the defense because Carey had “never wavered” in his identification of Sims as the shooter, even before he was hypnotized.But at trial and on appeal, Sims’ lawyers challenged the reliability of Carey’s identification even without taking into account the hypnotism. Carey testified that he had glass in his eye after the shooting, and that when shown photos after surgery, he was “real groggy.” Some details in Carey’s initial description of the suspect did not match Sims’ appearance when he was arrested.The investigation of Sims has parallels to the prosecutions of Keith Cooper and Christopher Parish, two men wrongly convicted in Elkhart of a 1996 robbery in which a man was shot and seriously wounded. Parish had his conviction overturned on appeal and the charges against him dropped. Cooper received Indiana’s first gubernatorial pardon based on innocence.In the Cooper and Parish cases, key investigative records went missing, including a photo lineup that was shown to the victim. In the Sims case, likewise, at least one photo lineup shown to the victim was not documented or preserved, according to court records. In overturning Sims’ conviction, the federal appeals court noted the investigation’s patchy documentation, writing that “gleaning from the record precisely when photographic lineups were conducted and their result is difficult.”Attorneys for Cooper and Parish alleged that police engaged in suggestive lineup procedures while asking eyewitnesses to identify the robbers. Sims’ attorneys alleged the same; in the 1994 trial, the victim testified that the night he was shot, police came to the emergency room and showed him a single photo of a suspect, a move the defense argued was so suggestive as to taint any subsequent identification. A detective testified that Carey was shown multiple photos that night, not just one.In the Cooper and Parish case’s aftermath, the city failed for more than a decade to disclose records that detailed why the case’s lead detective was later forced to resign. (He engaged in sexual misconduct with an informant, according to those records.) In the Sims case, the use of hypnosis on the star witness remained hidden for more than a decade.The key detective in the Cooper and Parish case had a lengthy disciplinary record, according to his personnel file. The detective in the Sims case, John Faigh, had a disciplinary record that was even longer.In October 1993, one month before Sims was arrested on suspicion of shooting the security guard, Faigh was suspended for a day: He had arrested a man for child molestation when, by statute, the purported victim was too old to qualify as a child. “The simple fact that a juvenile detective does not know the age limits which constitute child molest is just totally embarrassing,” a captain wrote in a disciplinary letter.By the time Faigh retired from the Police Department in 2010, he had been disciplined at least 20 times, according to his personnel file. One time he fired his shotgun at a fleeing vehicle, hoping “he would hit either the radiator or tire,” a disciplinary report said. For endangering the driver and a passenger, Faigh was suspended for five days and removed from the SWAT team. Faigh’s personnel file also documented repeated errors while preserving or submitting evidence; once, he failed to properly seal and catalogue evidence collected at a hospital from a rape victim, according to personnel records.Faigh did not return messages left Monday requesting an interview. In 2009, when questioned by the city’s civilian oversight board about his disciplinary record, Faigh said, “In no manner have I ever disgraced the Elkhart Police Department, myself, or my credibility.”Wicks, the prosecutor in Sims’ trial, also figured in Parish’s appeal, opposing a request for a new trial. After an evidentiary hearing in 2004, Wicks filed written arguments that contained one misstatement of fact after another. A state appeals court later granted Parish’s request.In the Sims case, an Indiana deputy attorney general, while opposing a new trial, conceded in oral arguments that Wicks should have disclosed the use of hypnosis. During those arguments, in November, two of the federal appeals court judges quizzed the deputy.One judge asked her if she had ever “come across a more calculated or deliberate violation of Brady than this.”Another judge asked why Wicks would have suggested hypnosis unless he had concerns about the witness’s ability to identify the defendant.After a five-second pause, the deputy attorney general said, “I don’t, I don’t have an answer to that, your honor.”“I bet you don’t,” the judge said.
Pennsylvania Police Now Limited in Flagging Undocumented Immigrants to ICE
by Kavitha Surana Last year, ProPublica and The Philadelphia Inquirer reported that the Pennsylvania State Police had no guidelines preventing troopers from engaging in behavior that raised questions of racial profiling and unlawful arrests:
National Press Photographers Association Honors Kathleen Flynn for Photography on ProPublica Investigation
by ProPublica The National Press Photographers Association awarded the NPPA Humanitarian Award to Kathleen Flynn, an independent photographer and documentary filmmaker, for her career covering human rights issues and injustices.The organization specifically recognized Flynn’s photography for ProPublica’s 2018 investigation, “Unprotected,” co-published with Time magazine, which looked into an acclaimed charity called More Than Me. Founded by American Katie Meyler, the Liberian school promised to rescue some of the world’s most vulnerable girls from life on the streets, but from the very beginning, children placed under its care were being raped by one of the nonprofit’s leaders.Days after the investigation, Meyler temporarily stepped aside as CEO, and the organization’s board chairman resigned. Amid protests in Liberia calling for the government to revoke More Than Me’s accreditation and permission to run its schools, seven Liberian government agencies vowed to take action as part of a “full-scale investigation” into the charity.See a list of all the NPPA award winners here. Kathleen Flynn, special to ProPublica
Domineque Ray Is Set to Be Executed Thursday. Did He Ever Really Have a Chance at Being Spared?
by Lauren Gill for ProPublica On the morning of July 29, 1999, 12 men and women filed into the jury box in the Dallas County Courthouse in Selma, Alabama. The day before, they had convicted Domineque Ray of raping and killing a 15-year-old girl in a cotton field outside of town. It had taken just an hour and 40 minutes to deliver their verdict.It was a terrible crime, and not the first killing Ray, 22, had been convicted of. Five and a half months earlier, Ray had been found guilty for his role in the murders of two teenage boys in Selma.Now, shortly after 9 a.m., the jury was set to hear testimony on whether Ray’s life should be spared or if he should be sentenced to die.Juries in death penalty cases have been required to separately weigh questions of guilt and punishment for more than four decades. Those facing the possibility of death get to argue for mercy; they’re allowed to present evidence that might temper a jury’s willingness to recommend execution a defendant’s limited intelligence, for instance, or history of victimization. The obligation of defense lawyers in such cases, the U.S. Supreme Court has held, is considerable. Get Our Top InvestigationsSubscribe to the Big Story newsletter. Don’t miss out on ProPublica’s next investigation. Sign up and get the Big Story email whenever we break news. William Whatley Jr. was Ray’s lead defense lawyer in the Dallas County courtroom. Whatley was a former prosecutor, and this was not his first death penalty case as a defense lawyer. But he opted to let his co-counsel, Juliana Taylor, make the presentation to the jury. Taylor, just three years out of law school, had little experience. She’d never been the lead lawyer in a criminal trial. And she’d worked on just one capital case.Whatley and Taylor put a single witness on the stand, Ray’s mother. She testified that she loved her son, and that his life had not been easy. His father, she said, had disowned him, and she had tried her best. The testimony lasted roughly 10 minutes.The jury, after two hours of deliberation, voted that Ray be sentenced to death. He is set to die by lethal injection on Thursday.In the two decades since the jury’s decision, lawyers for Ray have mounted appeals in both state and federal court, insisting he deserves a new trial. They have alleged that Whatley failed to adequately represent Ray. They have alleged that prosecutors withheld evidence of other suspects in the murder of the young girl. They have argued that members of the jury knew a police detective involved in the case and should have been kept off the panel.Most recently, in an appeal still making its way through the Alabama courts, the lawyers have argued that the state withheld critical evidence involving Ray’s chief accuser, his alleged accomplice in the murders. The lawyers have asserted that Marcus Owden, who confessed to the three killings, had been suffering from schizophrenia when he testified, and that prosecutors withheld that fact from Ray’s defense team.Prosecutors have denied the claims of misconduct, and they have prevailed in each of Ray’s appeals. William Whatley Jr., the defense attorney in Domineque Ray’s original trial, stands in the courtroom at the Dallas County Courthouse where the trial was held. (William Widmer, special to ProPublica)But the question of whether Ray was adequately represented during the penalty phase of his trial has shadowed the case almost from the time the jury returned its verdict for death. In appeals filed in state and federal court beginning in 2003, Ray’s lawyers have attacked Whatley’s performance, saying it failed to meet the constitutional standard required of defense lawyers in such proceedings.Whatley failed to hire an investigator to explore Ray’s background. He withdrew a request to have Ray evaluated by a forensic neuropsychologist. There were family members who said they would have been willing to testify, but they were not found, much less put on the stand. School records weren’t researched, nor were records chronicling Ray’s experience in foster care.“Ray was sentenced to death by a jury and judge who simply had no idea of who Ray actually is and how he came to be a defendant in a capital case,” read his 2011 federal petition for habeas corpus. “Whatley and Taylor prepared virtually no mitigation case at all, making it all but certain that jurors would recommend the death penalty.”In their filings, Ray’s lawyers have laid out the details of what they say was a horrifying upbringing for a boy with an 80 IQ. Ray, 17 at the time of the first murders, had been beaten as he went from household to household from the age of 3 on — bouncing between Selma, Chicago, New York, Philadelphia, Virginia and South Carolina. After being left in an abandoned building in Chicago, he’d been taken in by state child welfare officials. He was then sent off to suffer more, sexually abused by his stepmother’s family as a toddler and encouraged by his mother to have sex with her friends when he was a teenager. He never made it past eighth grade. He’s since been diagnosed with schizotypal personality disorder, characterized by severe social anxiety, paranoia and unusual beliefs.Robert Dunham, executive director of the Death Penalty Information Center, said there is no reliable national data on how often those convicted in a death penalty case get spared as a result of information made available to juries at the penalty phase.“In most of the country, nobody keeps track,” Dunham said. “It’s one of our biggest gripes.”There are, though, any number of cases — in Alabama and other states — where juries have opted against execution for even those convicted of the most brutal crimes. Barry Lee Jones, then 20, was convicted of sodomizing and murdering his 7-month-old, but an Alabama jury voted to spare him after defense lawyers and an investigator worked with his mother, sister, aunt, uncle and family spiritual adviser to put together his life story. Looking at school records, they found some evidence of mental disability. Whatley was the lead lawyer.In Ohio, then-Gov. John Kasich commuted the death sentence of Raymond Tibbetts in 2018 after a juror wrote to him saying he had learned of the defendant’s abusive childhood only after he had voted for execution. The juror told Kasich he was upset that he didn’t have all of the information when he made his decision. The defense table in the courtroom at the Dallas County Courthouse where Ray's original trial was held. (William Widmer, special to ProPublica)In federal death penalty cases over the last 30 years, juries have opted against execution in roughly two-thirds of them. Those spared include Zacarias Moussaoui, the man often called the 20th hijacker in the 9/11 terrorist attacks. A psychologist and friends testified about Moussaoui’s abusive childhood, his years in an orphanage and a diagnosis of paranoid schizophrenia.With Ray’s scheduled execution days away, ProPublica interviewed a number of people connected to that disputed moment in the Dallas County Courthouse. Whatley, the trial lawyer; Europe Ray, the brother who said he would have been happy to testify in 1999; the appellate lawyer who to this day is trying to save Ray’s life; and jurors from the trial, including some who had voted for death and one who had not.Whatley, for his part, stands by his work on Ray’s behalf. He had no access to much of the material later uncovered about Ray’s childhood. But he has his regrets, too. He said he should have hired an investigator specifically to explore Ray’s life, education and mental health. He’s done it in many of the death penalty cases he’s handled since, and in the 28 capital murder trials he’s completed, just one of his clients has been sentenced to death: Ray.“I’ve done this a long time, I’ve been practicing law now for 34 years, and I know that I could have done better representing Domineque if I would have had somebody to guide our investigation of mitigation evidence,” Whatley said.The Trial Lawyer: “I Mean, I Would Have Loved to Have Had It”The murders happened 18 months apart, and they went unsolved for years.First, two brothers, Ernest and Reinhard Mabins, 18 and 13, were shot dead in their Selma home in February 1994. They were found by their parents, but there were few leads and no arrests.Then, in August 1995, the decomposing remains of Tiffany Harville, 15, were found by a farmer driving his tractor in a field outside of town. She’d been raped and knifed to death. Months later, a local man was jailed and charged.But on Aug. 18, 1997, with the Mabins killings unsolved and the man arrested for the Harville murder awaiting trial, Owden walked into the Selma Police Department headquarters. Accompanied by his pastor, Owden, 21, said he and his longtime friend, Ray, were responsible for all three killings. They had wanted to start their own gang, and had killed the Mabins boys and Harville to establish their bona fides. Owden had found religion, and confessing was the right thing to do, he said.Ray was quickly interviewed by detectives. After several hours, he made a videotaped confession, saying he had played a role in the three murders. The duplex where brothers Ernest and Reinhard Mabins lived when they were murdered in 1994. (William Widmer, special to ProPublica)Whatley only came to represent Ray in the three murders after Ray’s first lawyers withdrew from the case, citing a dispute over whether Ray should seek a plea bargain.In an interview, Whatley said the chances of Ray being acquitted seemed daunting. While Ray later recanted his confession, it would be admissible as evidence. Owden had agreed to plead guilty to all three killings to avoid the death penalty, and he was set to testify against Ray. Whatley said that almost from the start he saw avoiding the death penalty as his top priority.“I try to educate my clients, and my client families, that this is what we do. It’s not like a regular criminal case,” Whatley said of his strategy in death penalty cases. “They hang up on the guilty, not guilty. Yes, it’s important. Every case is important, but the focus on the punishment phase is so much more important when the state is actively seeking the death penalty.”Whatley was born in Dothan, a midsize city in the southeastern corner of Alabama, and later attended the University of Alabama Law School. While friends of his were studying wills and trusts and property law, he signed up to assist lawyers in court as a third-year student. He had no interest in paper pushing, he said, and quickly became enamored of the rush of standing up in front of a jury.After graduating from law school in 1984, Whatley worked for Alabama Attorney General Charles Graddick. In the attorney general’s office in Montgomery, Whatley worked in the Capital Punishment Unit. He prosecuted one death penalty case himself, but he also spent time helping the office answer appeals in death penalty cases, where those convicted had alleged inadequate defense counsel. He’d review the work of the defense lawyers and question them during hearings.Ray’s trial for the Mabins killings — in February 1999, five years after the slayings — lasted under three days. Owden testified. There was testimony about a fingerprint found at the home that allegedly matched Ray’s. Ray, against Whatley’s advice, opted to testify himself, and he denied killing the boys, friends of his family he had known for years.The jury quickly convicted Ray, and the penalty phase came next. Whatley handled the presentation. Ray’s mother was the lone witness. She testified roughly as she would later: Ray’s childhood was rough and full of struggle. The jury deliberated for 50 minutes before returning a vote to spare Ray. The vote was seven for life without parole, five for death.In Alabama, prosecutors need to persuade at least 10 of 12 jurors that a death sentence is appropriate. At least seven votes are needed to recommend life without parole. But at the time, judges had the power to overrule a jury’s recommendation, whether it was to spare the defendant or see him or her executed. The judge let the jury’s recommendation stand. The mother of the Mabins boys had told the judge at the sentencing hearing that she did not want to see Ray killed.The Harville trial still loomed. Prior to the breakdown over plea bargain options, Ray’s first two lawyers had made two important requests of the judge in the Harville case: to be allowed to hire an investigator to work on the case, and to have Ray evaluated by an independent forensic neuropsychologist.Whatley, with months to prepare, managed to persuade Ray not to testify. But Owden was set to take the stand again, and Ray, while he denied raping Harville, had confessed to stabbing her at least once with a knife. But Whatley did have some material to work with. No physical evidence had been produced placing Ray at the scene of the murder. A local man had spent 18 months in jail charged with the murder, accused of killing her because she refused to have sex with him.Yet Whatley chose to withdraw the requests that had been made by the prior lawyers. Whatley told the judge there was no need for a psychiatric exam. He had met with Ray and saw no signs of a significant mental health issue. A state psychologist had met with Ray briefly and concluded the same thing. Whatley also said there was no need for any more money for an investigator. A former state trooper had done some initial work with the first defense lawyers, but Whatley said he’d been told there was nothing else to be investigated. County Road 468, where the decomposing remains of Harville, 15, were found by a farmer driving his tractor. (William Widmer, special to ProPublica)The trial in late July 1999 was as short as the first, and it ended with another conviction.Whatley, in an interview, said he was comfortable allowing Taylor, his young co-counsel, to handle the penalty phase. She had been responsible for talking to people about Ray’s background, Whatley said, and was regarded as a promising young lawyer. Taylor today said she was qualified to make the presentation but was hampered by Ray’s refusal to help.Whatley said Ray would not discuss his childhood, other than to say it was unremarkable, and he provided no contacts for others in his family who might testify. Ray’s mother had given the lawyers a short list of people from his neighborhood whom they could talk to. Whatley admitted he never looked into Ray’s experiences in school. He said he didn’t ask for a mental health expert to testify during the penalty phase because he didn’t see the need to. He said if he’d asked at the start of the trial for an expert to help pick the jury, the judge would have laughed him out of the courtroom.Ray’s mother, Gladys, was the sole source of information about her son, Whatley said.“We didn’t know of anybody else. We didn’t know of any other person there, and we had no other person,” Whatley said.Today, Whatley has no trouble understanding how helpful it would have been to have known more.“I mean, I would have loved to have had it,” he said.But Whatley said the single greatest factor that led to the jury recommending death was that the judge allowed prosecutors to tell the jury of Ray’s prior conviction in the Mabins case. He said he objected to the admission of the prior conviction but lost.“I knew as soon as they heard it that they were going to vote for death,” he said of the jury. “I knew they were going to do it. You could see it in their faces.”Ray’s lawyers today fault Whatley for not having moved earlier and more aggressively to bar the prior conviction from being introduced. He could have filed a formal motion, they said, but he did not.Whatley’s assessment of his work is mixed. Defense lawyers were paid poorly, even in capital cases. And lawyers were required to ask the judge for any and all resources. Whatley was paid just over $9,000 for his months of work.Whatley does not cite his modest compensation as an excuse for his work, but he concedes without hesitation that, given the enhanced requirements for lawyers in such cases today, the job he was able to do in 1999 falls short of the constitutional standard. As a result, he emphatically believes Ray deserves a new hearing on his sentence.“I just, I hate it,” he said. “I just don’t think it was fair the way it turned out.”The Brother: “I Can Recall It Like Day One”The Chicago police found Europe and Domineque Ray running in an alley in the fall of 1980. The boys, 5 and 4, told the officers they lived in a nearby abandoned building. Their mother, they said, had gone missing days before.Inside the building, newspapers covered the floor. A mattress was the lone bit of furniture. The single appliance was a refrigerator. When the police opened it, it held a single can of Coca-Cola.Europe would later describe a nightmarish existence in the building. Maggots. Rodents. Abusive boyfriends who beat Gladys. Europe remembers one of the boyfriends holding him above his head and threatening to throw him down a flight of stairs. Domineque looked on, frozen in place.“You wouldn’t believe that a human could live there,” Verna Mullins, a great-aunt who lived in Chicago, said of the building. A childhood photo of Domineque and Europe Ray with their mother. (Courtesy Europe Ray)For Europe and Domineque, the abandoned building in Chicago was but one stop on a journey of pain and dislocation. The boys had both been born in Selma to Gladys Ray. She had married at 17 and was soon overwhelmed after she separated from the boys’ father. She would struggle with drugs, poverty, abusive men and her own mental health problems, including at least one suicide attempt. The boys wound up in foster care with their great-aunt, then back with their father and then back once more with their mother in Selma. Europe told the authorities at different points that they were beaten or abused by everyone: mother, father, stepmother, boyfriends, siblings. Domineque was dressed up in girls’ clothes for sport. He was sexually abused, according to court filings made as part of his appeal.“I can recall it like Day One,” Europe, in a recent interview, said of his shared childhood experiences.Earl Cobb, the boys’ father, denied any abuse, saying they had always been “one big, happy family.”Europe said he was shocked by the telephone call he got sometime in the early 2000s. Europe had escaped Selma and built a new life for himself in Indianapolis. He’d married and had a child. He had a job as the activity director at a senior center in the city. He d put distance between himself and his family, including Domineque.The call was from students at New York University Law School. Bryan Stevenson, the author of the book “Just Mercy,” was a professor there. Stevenson, widely known for his work on behalf of Alabama inmates on death row, also ran a death penalty legal clinic. Students investigated cases of men on death row in Alabama, and they were now at work on Domineque’s case.Europe had known his brother had run into trouble in Selma. But he had no idea Domineque was facing the death penalty. And he couldn’t understand why he had never been contacted by any lawyers for his brother earlier. When he learned only his mother had testified during the penalty phase, his confusion and upset worsened.“Maybe they thought my mom was enough, I don’t know,” Europe said. “But it would have been nice if they would have come and reached out.”In part, he said, because he knew his mother would not tell the whole story of their childhood and her role in it. Europe said his mother, who died in 2012, had asked for forgiveness over the years. But she held her secrets tight. He’s not at all surprised she wasn’t going to disclose them in a public courtroom.“I don’t think the truth was supposed to be revealed,” Europe said. “I think that was going to be something that was never revealed.“But I remember it.”In September 2006, over roughly two hours on the witness stand, Europe told his version of the truth. He was appearing as part of his brother’s appeal for a new trial, or at least a new sentencing hearing. It was not easy. He and his brother, he said in an interview, had never talked about their childhood traumas. He wasn’t eager to have the world know what he had suffered, or at whose hands. The intersection of Broad Street and Water Avenue in downtown Selma. (William Widmer, special to ProPublica)Europe, in interviews and testimony, said there had been bright spots in their lives. Europe, as a student at Southside Middle School in Selma, had dreamed of enlisting in the Navy. He brought home A’s and B’s on his report cards. And while Domineque struggled — he had trouble writing because of a hand injury and didn’t seem to absorb schoolwork — he loved music and was on his school’s dance team, performing hip-hop routines during halftime at sports games. At the age of 13, Domineque got a job at the local animal shelter, where he would spend his days taking care of the city’s abandoned cats and dogs, Europe said. He got into mixed martial arts and worked out at a local youth center under the care of a former boxerBut back at home, his mother had abandoned him for her boyfriends. He’d had sex with friends of his mother’s to help her out financially, a social worker later discovered. And he grew apart from his family.Domineque wound up done with school after eighth grade. He got into a series of minor scrapes with the law, charged with harassment or trespassing or burglary. And he developed a friendship with Owden — they bonded over karate and Jackie Chan movies — that changed his life forever. The house on North Mechanic Street where Domineque Ray and his family lived with his grandmother. (William Widmer, special to ProPublica)Domineque has always denied ever being abused. He says that his childhood was nothing more than “average,” and that stories of trauma and exploitation are made up. Even his mother’s milder version of his difficult upbringing, he has said, was false, the result of her being on medication.He was furious with Europe over the testimony he gave as part of a bid to save his life. Europe knows that Domineque is upset with him but maintains that they both lived the life he chronicled on the stand. The two talk by phone occasionally, and Europe hopes to visit his brother before the execution, but he will not attend it. As for whether his brother killed the Mabins and Harville, Europe says he’ll never know. “To be honest with you, I don’t know if he did it or he didn’t,” he said.“He’s angry at me because I told the truth,” Europe says of his brother. “There were things that, I don’t know, he was ashamed of, or he didn’t want no one to know about, or whatever. But I wanted to give the true statement.”The Juror: “I Just Hope I Didn’t Make a Mistake”Once the door of the jury room closed behind them in July 1999, the 12 jurors took an initial vote as to whether to recommend death or life without parole for Ray. Again, 10 votes were needed to recommend death, seven for life.Angela Rose, one of the jurors, said she and two other women voted to spare Ray. Rose, recalling the deliberations in a recent interview in Selma, said that over the next couple of hours, people took turns making their cases. Several said that a death sentence would ensure Ray would never walk the streets again. They didn’t trust the judge’s promise that if they voted for life without parole, Ray would never be freed. Angela Rose, one of the jurors in Ray’s trial. (William Widmer, special to ProPublica)Rose, along with Sandra Jackson and another woman whose name they couldn’t remember, argued that empathy was required. They said it should be God who dealt with Ray.“Allow God to work this,” Rose said she told the jurors.Rose says one of the other jurors quickly shot back something to the effect of “God might just take too long. We need to just go ahead and get this guy off the streets so he won’t hurt anyone else’s child.”Soon, there were enough votes for death. Jackson, in an interview, said she switched her vote because she was convinced if the jury returned a vote sparing Ray, the judge would have overruled it. The other woman whose name they couldn’t remember joined Jackson, though for what reasons it is not clear.Rose said she pleaded through tears: “Please, don’t do this. Don’t do this. Don’t do this.”The jury for Ray’s trial had been selected in the course of a single day. A pool of some 120 people — housewives, retail workers, salesmen, state forestry employees — had been reduced to a panel of eight women and four men, eight of them white, four black. They had been asked questions about their views on the death penalty and if they knew anything about the case.The performance of Ray’s lawyers during jury selection became one of the many elements of Ray’s appeals. Two jurors had admitted knowing the lead detective on the case, and another said he knew the expert forensic witness who would also be called to the stand by the prosecution. At least three said they had heard or learned about the case. Ray’s lawyers have argued that Whatley’s failure to use any kind of challenge to the seating of those jurors amounted to inadequate counsel.Nathaniel Holmes Jr., questioned during jury selection, had said he did not know many of the details of the case. Holmes, then 53, is an Army veteran who later worked for United States Postal Service. In an interview, Holmes did say word of Harville’s murder had swept through town. His sister had a local store that sold beer, and she had grown familiar with the teenager, often kicking her out, Holmes said.Born in Selma in 1946, Holmes shared his name with his father, Nathaniel Holmes Sr., who is said to have been the first black police officer on the city’s force. His mother worked as a seamstress in the city’s downtown.Holmes, in an interview, said he had never been called for jury duty before and had hoped he would not be chosen.He recalled making his way to the jury box and realizing he actually hadn’t thought much about the death penalty before. But he remembered ultimately feeling confident he could recommend it, if necessary. It was, he said, an appropriate punishment for those who violated one of the Ten Commandments: Thou shalt not kill.“Young and black,” Holmes said he first noted upon seeing Ray in court. The 22-year-old sat with his head in his hands, expressionless. Whatley said he had instructed Ray not to show emotion in front of the jury, something Holmes said he took as a sign that he had no remorse. Above: A view of the Edmund Pettus Bridge in Selma. Below: A mural depicts the violence of “Bloody Sunday” on March 7, 1965. (William Widmer, special to ProPublica)The deliberations on guilt or innocence did not take long. Rose said some jurors argued that Ray must have killed Harville because he didn’t testify. “He was evil,” one juror remembered thinking. Rose, the woman who held out for sparing Ray, at first refused to find him guilty. To her, Ray’s blank expressions seemed like the look of helplessness and confusion. But she eventually relented, a decision she would not discuss today.Holmes, having voted to convict, voted for death.Rose, hearing about Ray’s childhood, said the fuller picture of his life did not surprise her, and she thinks if the jury had heard it in 1999, it might have made a difference. Jackson agreed and now regrets having changed her vote.In all, ProPublica contacted nine jurors from the case. Two had died, and the other could not be located.One juror who served on the jury in 1999, Norman McDonald, a grocery store supplier, said he was not interested in hearing all the details of Ray’s upbringing, information that had only come to light in the 20 years since Ray was sentenced to death. “I don’t want to hear anymore. It wouldn’t have made a difference. He had no business killing that child,” McDonald said.Maple Perkins, the wife of Cecil Perkins, one of the black men on the jury, said her husband wasn’t interested in talking about the case. But in an interview, she said she had known Harville’s family well. Perkins had not disclosed that during jury selection. Cecil Perkins would not be interviewed about his jury service.Tammy Fancher also served on the jury. She now owns a gas station and deli on state Road 14. She initially said she didn’t remember much about the case and didn’t want to talk about it. But then she did, saying bluntly, “I think they should fry his ass.” She said she looked Ray up on the internet often and knew he was scheduled for execution on Thursday.“I can’t believe we’ve left his ass in prison and spent all this money on his ass when he should already be dead,” she said. As for Ray’s childhood, Fancher said it would not have changed her decision. “Just because you was raised in the ‘hood and you ain’t got no damn money don’t give you the right to kill people,” she said. The Green Street Baptist Church stands partially burned in a residential neighborhood. (William Widmer, special to ProPublica)Holmes, however, was one juror interested in hearing about Ray’s life. Now 72, he had little specific recollection of Ray’s mother’s brief testimony, and he said that, at least to date, he had never regretted his vote for the death penalty. He’d prayed over his decision, he said.Told Ray’s lawyers had researched his background, Holmes was curious. “So what did he find out?” Holmes asked.An impoverished, violent household, he was told. It’s the account of Europe, Ray’s brother, who said he would have been eager to testify about it in 1999.“Lord, have mercy,” Holmes said occasionally.Sexual abuse, he was told.“Lord, have mercy,” he said. “You don’t have to take me through no more.”Holmes was asked whether he would have wanted to know such things back in 1999.“They brought these kids in the world and forgot all about them,” Holmes said of Ray’s parents. “Ain’t no love there, no sympathy, no nothing there.”Holmes criticized Ray’s lawyers for not bringing the information to the jury. Had they, he said, “presented all of this to the 12 people that were there, then maybe we would have reconsidered.“You can’t go out there and half-ass do a job. You can’t do it,” he said.“I just hope I didn’t make a mistake,” he added.Did he regret his vote?Holmes sighed.“Yeah,” he said. The Dallas County Courthouse in downtown Selma. (William Widmer, special to ProPublica)The Last Advocate: “You Know, It’s a Damn Hard Question”When Peter Racher received a letter inviting him to attend a luncheon hosted by the American Bar Association’s Death Penalty Representation Project in 2002, he threw it away. Racher, a lawyer in Indianapolis, was busy. And his specialty was environmental law, not death row appeals.But another lawyer at Racher’s firm got the same letter and was intrigued.“You ought to take that letter out of your trash can and give it some more thought,” he told Racher.Persuaded by the promise of a free lunch, Racher soon found himself in the chambers of Larry McKinney, chief judge of the southern district of Indiana. Representatives from the Death Penalty Representation Project told those gathered that there were people on death row in Alabama who did not have lawyers. Alabama, they said, doesn’t provide post-conviction counsel for death row inmates.Racher signed on, and he was told about a death penalty inmate who was nearing the deadline to file a post-conviction appeal and didn’t have a lawyer. Students at NYU had discovered that the information about the defendant’s background presented to the jury in 1999 consisted of 3 1/2 pages of testimony from his mother. Nothing more.Racher went to meet with Ray at Holman Correctional Facility, a maximum-security prison in Atmore, Alabama. Ray was nervous. He was aware this was Racher’s first capital case. But he accepted the offer of representation.“He’s not entitled to me — he’s not entitled to an environmental attorney from Indianapolis,” Racher said. “He deserves far better.”Three years later, Racher, having filed a voluminous appeal of Ray’s conviction and his sentencing, was in front of the Alabama judge who had presided over Ray’s trial in 1999 for the Harville murder. Racher attacked every aspect of the state’s case and Whatley’s defense — what he argued was the lack of physical evidence in the Harville murder, what he said were Whatley’s errors and omissions, what he said were the unexplored inconsistencies in Owden and Ray’s confessions. Peter Racher in a meeting room at the law offices of Plews Shadley Racher & Braun in downtown Indianapolis. Racher is managing the current appeals process for Ray's case. (William Widmer, special to ProPublica)Racher called nine witnesses to buttress his argument that Ray had been denied adequate representation during the penalty phase, including Europe Ray; Regina Marshall, one of Gladys Ray’s best friends who had watched her endure abusive boyfriends again and again; and Mullins, the great-aunt who delivered a video deposition chronicling her recollection of the family’s time in Chicago. He put on a neuropsychologist who said Ray’s childhood traumas were so great he had buried them. Racher also called Catherine Boyer, a psychologist who testified she had diagnosed Ray with schizotypal personality disorder. He put Whatley on the stand and had him admit how little of Ray’s life he knew.At the end of the proceedings, Judge Tommy Jones praised Racher. “I think you have done a fantastic job,” he said.Racher thought it had been a success. And his confidence wasn’t without some cause.In 1984, the U.S. Supreme Court decided in Strickland v. Washington that defendants were denied their Sixth Amendment right to counsel when two conditions were met. First, the attorney’s performance is deficient, and second, the deficient performance must have been so damaging that there is a reasonable probability that the trial’s outcome would have been different. The opinion was important, but its vagueness left many wondering what exactly a deficient performance in a capital murder case entails.In 2003, the Supreme Court cleared this up in Wiggins v. Smith. In its opinion, the court said that a lawyer’s performance is deficient when it falls below established norms at the time of the trial. Lawyers must examine their client’s background, such as medical history, educational history, employment and training history, and family and social history, to obtain all information that is reasonably available for the penalty phase, it said.And two years later, the Supreme Court decided in Rompilla v. Beard that attorneys cannot solely rely on their client and his or her family’s word when it comes to investigating mitigating evidence. Regardless of what a client says, attorneys have a duty to conduct a full investigation, the opinion said.Racher’s confidence, in the end, was misplaced.On Aug. 6, 2007, Jones denied the appeal. Referring to testimony about Ray’s childhood, the order read: “The Court finds that there is no reasonable probability that more details about Ray’s home life would have caused a different result in the jury’s recommendation at the penalty phase of the trial.” He added that his belief death was the right outcome would not have been changed either.The Alabama Court of Criminal Appeals affirmed the denial in February 2011, followed by the Alabama Supreme Court in September of that year. Racher then filed a petition for habeas corpus in federal district court on Sept. 19, 2011. The 138-page document included more than 50 pages in which Racher argued that Ray’s trial attorneys were ineffective for failing to put Europe Ray, other family members and experts on the stand during the penalty phase.The district court turned down the petition, as did the 11th U.S. Circuit Court of Appeals. The judges said that they were “troubled” by Whatley’s minimal investigation, but that “there is no ‘reasonable probability’ that at least two jurors would have changed their recommendation and the sentencing judge would have ruled differently.”Frustrated, Racher decided to travel to Selma to meet with Jones, who had returned to private practice. At dinner, Racher said, he couldn’t believe that new details of Ray’s life would not have affected Jones’s sentencing decision. How could it not?“You know, it’s a damn hard question,” Racher recalled Jones saying. Racher said he asked Jones to sign an affidavit saying he had misspoken in court when he said his mind would not have been changed. He didn’t budge. Racher searches through files related to Ray's case in the basement of his law firm. (William Widmer, special to ProPublica)At his law office in downtown Selma in January, Jones declined to discuss the case. “I’m not really interested in talking about that. It’s over and done. You have a good day,” he said before shutting the door. He did not respond to a specific question about Racher’s story of their dinner conversation.Racher’s last hope is what he says is a more recent discovery: that the state knew Owden was suffering from schizophrenia when he confessed and later testified. He’d first learned of that possibility when he visited Owden in prison in the spring of 2017. And he has introduced in a court filing Department of Corrections medical records that he says prove the point — the kinds of records Whatley had requested at trial and that Racher had been seeking for years.To date, the bid has failed. The Alabama courts have held that Ray and his lawyers had to have discovered the information earlier.“It’s enormously frustrating and frightening as a lawyer, as an American,” Racher said. “It is shocking that in this country we commit people to their deaths despite open and obvious evidence that there has not been due process.”Racher, 62, has known Ray for 16 years. He said he and his firm have put more than $2 million worth of work into the case.“I really do care for him,” Racher says of Ray.On Nov. 8, 2018, Racher received a call from Ray. He had been summoned to the warden’s office in shackles and read his execution warrant. The state had scheduled his execution for Feb. 7, 2019, and sent him off with a physician for an examination in preparation for its administration of lethal drugs. Domenique, left, and Europe Ray at a 2006 hearing. (Courtesy of Peter Racher)In January, Racher received another call from Ray. He had been called down to warden’s office again to provide a list of people he wanted her to permit to visit him in his last week and the spiritual adviser he wished to counsel him in his final moments. Ray wanted an imam that visited the prison regularly, not the chaplain, he told her. It was against Alabama’s policy to allow a religious leader other than a chaplain in the execution chamber, the warden told him, refusing to provide him with a copy of the policy.Racher’s team filed for a stay of execution, saying the courts needed time to properly consider Ray’s request for an imam. On Feb. 1, that request was rejected.“I’ve thought that maybe the death penalty is something that should exist because it represents something about our expression of horrific crime committed by people who are beyond, you know, beyond rehabilitation,” Racher said. “But this whole experience with Domineque’s case has convinced me that no matter how much uncertainty a person has about the morality of capital punishment, it’s an absolute indisputable fact that we as a people are incapable of administering it in a way that is fair and just.” William Widmer, special to ProPublicaThe Inmate: “Man, Who Are They Talking About”Ray, 42, is set to be the 64th inmate executed by the state of Alabama since 1976. In July, he was given a choice: to die by lethal injection or by inhaling deadly amounts of nitrogen, an untested method for execution. Ray, who years ago converted to Islam, said his faith would not allow him to play a role in his own death, and so he is scheduled to be killed by lethal injection, the state’s standard method.Alabama uses a three-drug combination, but the way they are actually administered is a closely guarded secret. In the past two years, there have been complications with a number of executions. Ronald B. Smith heaved and coughed for 13 of the 34 minutes it took to kill him, according to accounts of those who witnessed the execution. In February 2018, executioners spent nearly two hours unsuccessfully trying to find a vein in Doyle Lee Hamm as he continued to lose blood, before officials ultimately decided to cancel the execution.“I’m not going to pick a way to die,” Ray said. “That’s against the law in Islam, that’s against my belief, and that’s against my faith.”Last Friday, after losing his effort to have an imam be present with him at his execution, he said he had reconsidered and now was willing to be killed by what is called nitrogen hypoxia. The state in 2018 had given the option to all death row inmates but said they had to decide in a prescribed time period. Fifty-one inmates opted for nitrogen hypoxia, recognizing that it will take years for Alabama to figure out how to carry out the untested method. Read More Ignoring Innocence The Wrongfully Convicted Forced Into Plea Deals Walking While Black Pedestrian Enforcement and Racial ProfilingIn a telephone interview in January, Ray insisted on his innocence, and he remained confident the discovery of Owden’s possible mental health issues would result in a stay of his execution. He insists, as well, his childhood was just fine. His parents were great, spiritual people.His routine as his execution approaches, he said, is consistent. He wakes up in his cell about the size of a small bathroom around 1 a.m. He said he prays and meditates, then reads and writes letters to family and friends. At 3:30 a.m., breakfast is served. Some days, he goes outside for a walk. On Fridays, he says he attends an Islamic service. Ray said he is weeks away from being certified as an imam through a California Islamic University.He talked in the interview about what he says are the many indignities of incarceration, but it’s the most basic insult he hopes the state gets right if he is executed. For years, the state, in court papers and prison records, has repeatedly misspelled his given name, Domineque.“Every time I read it, when I read my documentation for court, I’m like, ‘Man, who are they talking about?’ Are they talking about me or are they talking about somebody else? It’s something else.”
Domineque Ray Is Set to Be Executed Thursday. Did He Ever Really Have a Chance at Being Spared?
by Lauren Gill for ProPublica On the morning of July 29, 1999, 12 men and women filed into the jury box in the Dallas County Courthouse in Selma, Alabama. The day before, they had convicted Domineque Ray of raping and killing a 15-year-old girl in a cotton field outside of town. It had taken just an hour and 40 minutes to deliver their verdict.It was a terrible crime, and not the first killing Ray, 22, had been convicted of. Five and a half months earlier, Ray had been found guilty for his role in the murders of two teenage boys in Selma.Now, shortly after 9 a.m., the jury was set to hear testimony on whether Ray’s life should be spared or if he should be sentenced to die.Juries in death penalty cases have been required to separately weigh questions of guilt and punishment for more than four decades. Those facing the possibility of death get to argue for mercy; they’re allowed to present evidence that might temper a jury’s willingness to recommend execution a defendant’s limited intelligence, for instance, or history of victimization. The obligation of defense lawyers in such cases, the U.S. Supreme Court has held, is considerable. Get Our Top InvestigationsSubscribe to the Big Story newsletter. Don’t miss out on ProPublica’s next investigation. Sign up and get the Big Story email whenever we break news. William Whatley Jr. was Ray’s lead defense lawyer in the Dallas County courtroom. Whatley was a former prosecutor, and this was not his first death penalty case as a defense lawyer. But he opted to let his co-counsel, Juliana Taylor, make the presentation to the jury. Taylor, just three years out of law school, had little experience. She’d never been the lead lawyer in a criminal trial. And she’d worked on just one capital case.Whatley and Taylor put a single witness on the stand, Ray’s mother. She testified that she loved her son, and that his life had not been easy. His father, she said, had disowned him, and she had tried her best. The testimony lasted roughly 10 minutes.The jury, after two hours of deliberation, voted that Ray be sentenced to death. He is set to die by lethal injection on Thursday.In the two decades since the jury’s decision, lawyers for Ray have mounted appeals in both state and federal court, insisting he deserves a new trial. They have alleged that Whatley failed to adequately represent Ray. They have alleged that prosecutors withheld evidence of other suspects in the murder of the young girl. They have argued that members of the jury knew a police detective involved in the case and should have been kept off the panel.Most recently, in an appeal still making its way through the Alabama courts, the lawyers have argued that the state withheld critical evidence involving Ray’s chief accuser, his alleged accomplice in the murders. The lawyers have asserted that Marcus Owden, who confessed to the three killings, had been suffering from schizophrenia when he testified, and that prosecutors withheld that fact from Ray’s defense team.Prosecutors have denied the claims of misconduct, and they have prevailed in each of Ray’s appeals. William Whatley Jr., the defense attorney in Domineque Ray’s original trial, stands in the courtroom at the Dallas County Courthouse where the trial was held. (William Widmer, special to ProPublica)But the question of whether Ray was adequately represented during the penalty phase of his trial has shadowed the case almost from the time the jury returned its verdict for death. In appeals filed in state and federal court beginning in 2003, Ray’s lawyers have attacked Whatley’s performance, saying it failed to meet the constitutional standard required of defense lawyers in such proceedings.Whatley failed to hire an investigator to explore Ray’s background. He withdrew a request to have Ray evaluated by a forensic neuropsychologist. There were family members who said they would have been willing to testify, but they were not found, much less put on the stand. School records weren’t researched, nor were records chronicling Ray’s experience in foster care.“Ray was sentenced to death by a jury and judge who simply had no idea of who Ray actually is and how he came to be a defendant in a capital case,” read his 2011 federal petition for habeas corpus. “Whatley and Taylor prepared virtually no mitigation case at all, making it all but certain that jurors would recommend the death penalty.”In their filings, Ray’s lawyers have laid out the details of what they say was a horrifying upbringing for a boy with an 80 IQ. Ray, 17 at the time of the first murders, had been beaten as he went from household to household from the age of 3 on — bouncing between Selma, Chicago, New York, Philadelphia, Virginia and South Carolina. After being left in an abandoned building in Chicago, he’d been taken in by state child welfare officials. He was then sent off to suffer more, sexually abused by his stepmother’s family as a toddler and encouraged by his mother to have sex with her friends when he was a teenager. He never made it past eighth grade. He’s since been diagnosed with schizotypal personality disorder, characterized by severe social anxiety, paranoia and unusual beliefs.Robert Dunham, executive director of the Death Penalty Information Center, said there is no reliable national data on how often those convicted in a death penalty case get spared as a result of information made available to juries at the penalty phase.“In most of the country, nobody keeps track,” Dunham said. “It’s one of our biggest gripes.”There are, though, any number of cases — in Alabama and other states — where juries have opted against execution for even those convicted of the most brutal crimes. Barry Lee Jones, then 20, was convicted of sodomizing and murdering his 7-month-old, but an Alabama jury voted to spare him after defense lawyers and an investigator worked with his mother, sister, aunt, uncle and family spiritual adviser to put together his life story. Looking at school records, they found some evidence of mental disability. Whatley was the lead lawyer.In Ohio, then-Gov. John Kasich commuted the death sentence of Raymond Tibbetts in 2018 after a juror wrote to him saying he had learned of the defendant’s abusive childhood only after he had voted for execution. The juror told Kasich he was upset that he didn’t have all of the information when he made his decision. The defense table in the courtroom at the Dallas County Courthouse where Ray's original trial was held. (William Widmer, special to ProPublica)In federal death penalty cases over the last 30 years, juries have opted against execution in roughly two-thirds of them. Those spared include Zacarias Moussaoui, the man often called the 20th hijacker in the 9/11 terrorist attacks. A psychologist and friends testified about Moussaoui’s abusive childhood, his years in an orphanage and a diagnosis of paranoid schizophrenia.With Ray’s scheduled execution days away, ProPublica interviewed a number of people connected to that disputed moment in the Dallas County Courthouse. Whatley, the trial lawyer; Europe Ray, the brother who said he would have been happy to testify in 1999; the appellate lawyer who to this day is trying to save Ray’s life; and jurors from the trial, including some who had voted for death and one who had not.Whatley, for his part, stands by his work on Ray’s behalf. He had no access to much of the material later uncovered about Ray’s childhood. But he has his regrets, too. He said he should have hired an investigator specifically to explore Ray’s life, education and mental health. He’s done it in many of the death penalty cases he’s handled since, and in the 28 capital murder trials he’s completed, just one of his clients has been sentenced to death: Ray.“I’ve done this a long time, I’ve been practicing law now for 34 years, and I know that I could have done better representing Domineque if I would have had somebody to guide our investigation of mitigation evidence,” Whatley said.The Trial Lawyer: “I Mean, I Would Have Loved to Have Had It”The murders happened 18 months apart, and they went unsolved for years.First, two brothers, Ernest and Reinhard Mabins, 18 and 13, were shot dead in their Selma home in February 1994. They were found by their parents, but there were few leads and no arrests.Then, in August 1995, the decomposing remains of Tiffany Harville, 15, were found by a farmer driving his tractor in a field outside of town. She’d been raped and knifed to death. Months later, a local man was jailed and charged.But on Aug. 18, 1997, with the Mabins killings unsolved and the man arrested for the Harville murder awaiting trial, Owden walked into the Selma Police Department headquarters. Accompanied by his pastor, Owden, 21, said he and his longtime friend, Ray, were responsible for all three killings. They had wanted to start their own gang, and had killed the Mabins boys and Harville to establish their bona fides. Owden had found religion, and confessing was the right thing to do, he said.Ray was quickly interviewed by detectives. After several hours, he made a videotaped confession, saying he had played a role in the three murders. The duplex where brothers Ernest and Reinhard Mabins lived when they were murdered in 1994. (William Widmer, special to ProPublica)Whatley only came to represent Ray in the three murders after Ray’s first lawyers withdrew from the case, citing a dispute over whether Ray should seek a plea bargain.In an interview, Whatley said the chances of Ray being acquitted seemed daunting. While Ray later recanted his confession, it would be admissible as evidence. Owden had agreed to plead guilty to all three killings to avoid the death penalty, and he was set to testify against Ray. Whatley said that almost from the start he saw avoiding the death penalty as his top priority.“I try to educate my clients, and my client families, that this is what we do. It’s not like a regular criminal case,” Whatley said of his strategy in death penalty cases. “They hang up on the guilty, not guilty. Yes, it’s important. Every case is important, but the focus on the punishment phase is so much more important when the state is actively seeking the death penalty.”Whatley was born in Dothan, a midsize city in the southeastern corner of Alabama, and later attended the University of Alabama Law School. While friends of his were studying wills and trusts and property law, he signed up to assist lawyers in court as a third-year student. He had no interest in paper pushing, he said, and quickly became enamored of the rush of standing up in front of a jury.After graduating from law school in 1984, Whatley worked for Alabama Attorney General Charles Graddick. In the attorney general’s office in Montgomery, Whatley worked in the Capital Punishment Unit. He prosecuted one death penalty case himself, but he also spent time helping the office answer appeals in death penalty cases, where those convicted had alleged inadequate defense counsel. He’d review the work of the defense lawyers and question them during hearings.Ray’s trial for the Mabins killings — in February 1999, five years after the slayings — lasted under three days. Owden testified. There was testimony about a fingerprint found at the home that allegedly matched Ray’s. Ray, against Whatley’s advice, opted to testify himself, and he denied killing the boys, friends of his family he had known for years.The jury quickly convicted Ray, and the penalty phase came next. Whatley handled the presentation. Ray’s mother was the lone witness. She testified roughly as she would later: Ray’s childhood was rough and full of struggle. The jury deliberated for 50 minutes before returning a vote to spare Ray. The vote was seven for life without parole, five for death.In Alabama, prosecutors need to persuade at least 10 of 12 jurors that a death sentence is appropriate. At least seven votes are needed to recommend life without parole. But at the time, judges had the power to overrule a jury’s recommendation, whether it was to spare the defendant or see him or her executed. The judge let the jury’s recommendation stand. The mother of the Mabins boys had told the judge at the sentencing hearing that she did not want to see Ray killed.The Harville trial still loomed. Prior to the breakdown over plea bargain options, Ray’s first two lawyers had made two important requests of the judge in the Harville case: to be allowed to hire an investigator to work on the case, and to have Ray evaluated by an independent forensic neuropsychologist.Whatley, with months to prepare, managed to persuade Ray not to testify. But Owden was set to take the stand again, and Ray, while he denied raping Harville, had confessed to stabbing her at least once with a knife. But Whatley did have some material to work with. No physical evidence had been produced placing Ray at the scene of the murder. A local man had spent 18 months in jail charged with the murder, accused of killing her because she refused to have sex with him.Yet Whatley chose to withdraw the requests that had been made by the prior lawyers. Whatley told the judge there was no need for a psychiatric exam. He had met with Ray and saw no signs of a significant mental health issue. A state psychologist had met with Ray briefly and concluded the same thing. Whatley also said there was no need for any more money for an investigator. A former state trooper had done some initial work with the first defense lawyers, but Whatley said he’d been told there was nothing else to be investigated. County Road 468, where the decomposing remains of Harville, 15, were found by a farmer driving his tractor. (William Widmer, special to ProPublica)The trial in late July 1999 was as short as the first, and it ended with another conviction.Whatley, in an interview, said he was comfortable allowing Taylor, his young co-counsel, to handle the penalty phase. She had been responsible for talking to people about Ray’s background, Whatley said, and was regarded as a promising young lawyer. Taylor today said she was qualified to make the presentation but was hampered by Ray’s refusal to help.Whatley said Ray would not discuss his childhood, other than to say it was unremarkable, and he provided no contacts for others in his family who might testify. Ray’s mother had given the lawyers a short list of people from his neighborhood whom they could talk to. Whatley admitted he never looked into Ray’s experiences in school. He said he didn’t ask for a mental health expert to testify during the penalty phase because he didn’t see the need to. He said if he’d asked at the start of the trial for an expert to help pick the jury, the judge would have laughed him out of the courtroom.Ray’s mother, Gladys, was the sole source of information about her son, Whatley said.“We didn’t know of anybody else. We didn’t know of any other person there, and we had no other person,” Whatley said.Today, Whatley has no trouble understanding how helpful it would have been to have known more.“I mean, I would have loved to have had it,” he said.But Whatley said the single greatest factor that led to the jury recommending death was that the judge allowed prosecutors to tell the jury of Ray’s prior conviction in the Mabins case. He said he objected to the admission of the prior conviction but lost.“I knew as soon as they heard it that they were going to vote for death,” he said of the jury. “I knew they were going to do it. You could see it in their faces.”Ray’s lawyers today fault Whatley for not having moved earlier and more aggressively to bar the prior conviction from being introduced. He could have filed a formal motion, they said, but he did not.Whatley’s assessment of his work is mixed. Defense lawyers were paid poorly, even in capital cases. And lawyers were required to ask the judge for any and all resources. Whatley was paid just over $9,000 for his months of work.Whatley does not cite his modest compensation as an excuse for his work, but he concedes without hesitation that, given the enhanced requirements for lawyers in such cases today, the job he was able to do in 1999 falls short of the constitutional standard. As a result, he emphatically believes Ray deserves a new hearing on his sentence.“I just, I hate it,” he said. “I just don’t think it was fair the way it turned out.”The Brother: “I Can Recall It Like Day One”The Chicago police found Europe and Domineque Ray running in an alley in the fall of 1980. The boys, 5 and 4, told the officers they lived in a nearby abandoned building. Their mother, they said, had gone missing days before.Inside the building, newspapers covered the floor. A mattress was the lone bit of furniture. The single appliance was a refrigerator. When the police opened it, it held a single can of Coca-Cola.Europe would later describe a nightmarish existence in the building. Maggots. Rodents. Abusive boyfriends who beat Gladys. Europe remembers one of the boyfriends holding him above his head and threatening to throw him down a flight of stairs. Domineque looked on, frozen in place.“You wouldn’t believe that a human could live there,” Verna Mullins, a great-aunt who lived in Chicago, said of the building. A childhood photo of Domineque and Europe Ray with their mother. (Courtesy Europe Ray)For Europe and Domineque, the abandoned building in Chicago was but one stop on a journey of pain and dislocation. The boys had both been born in Selma to Gladys Ray. She had married at 17 and was soon overwhelmed after she separated from the boys’ father. She would struggle with drugs, poverty, abusive men and her own mental health problems, including at least one suicide attempt. The boys wound up in foster care with their great-aunt, then back with their father and then back once more with their mother in Selma. Europe told the authorities at different points that they were beaten or abused by everyone: mother, father, stepmother, boyfriends, siblings. Domineque was dressed up in girls’ clothes for sport. He was sexually abused, according to court filings made as part of his appeal.“I can recall it like Day One,” Europe, in a recent interview, said of his shared childhood experiences.Earl Cobb, the boys’ father, denied any abuse, saying they had always been “one big, happy family.”Europe said he was shocked by the telephone call he got sometime in the early 2000s. Europe had escaped Selma and built a new life for himself in Indianapolis. He’d married and had a child. He had a job as the activity director at a senior center in the city. He d put distance between himself and his family, including Domineque.The call was from students at New York University Law School. Bryan Stevenson, the author of the book “Just Mercy,” was a professor there. Stevenson, widely known for his work on behalf of Alabama inmates on death row, also ran a death penalty legal clinic. Students investigated cases of men on death row in Alabama, and they were now at work on Domineque’s case.Europe had known his brother had run into trouble in Selma. But he had no idea Domineque was facing the death penalty. And he couldn’t understand why he had never been contacted by any lawyers for his brother earlier. When he learned only his mother had testified during the penalty phase, his confusion and upset worsened.“Maybe they thought my mom was enough, I don’t know,” Europe said. “But it would have been nice if they would have come and reached out.”In part, he said, because he knew his mother would not tell the whole story of their childhood and her role in it. Europe said his mother, who died in 2012, had asked for forgiveness over the years. But she held her secrets tight. He’s not at all surprised she wasn’t going to disclose them in a public courtroom.“I don’t think the truth was supposed to be revealed,” Europe said. “I think that was going to be something that was never revealed.“But I remember it.”In September 2006, over roughly two hours on the witness stand, Europe told his version of the truth. He was appearing as part of his brother’s appeal for a new trial, or at least a new sentencing hearing. It was not easy. He and his brother, he said in an interview, had never talked about their childhood traumas. He wasn’t eager to have the world know what he had suffered, or at whose hands. The intersection of Broad Street and Water Avenue in downtown Selma. (William Widmer, special to ProPublica)Europe, in interviews and testimony, said there had been bright spots in their lives. Europe, as a student at Southside Middle School in Selma, had dreamed of enlisting in the Navy. He brought home A’s and B’s on his report cards. And while Domineque struggled — he had trouble writing because of a hand injury and didn’t seem to absorb schoolwork — he loved music and was on his school’s dance team, performing hip-hop routines during halftime at sports games. At the age of 13, Domineque got a job at the local animal shelter, where he would spend his days taking care of the city’s abandoned cats and dogs, Europe said. He got into mixed martial arts and worked out at a local youth center under the care of a former boxerBut back at home, his mother had abandoned him for her boyfriends. He’d had sex with friends of his mother’s to help her out financially, a social worker later discovered. And he grew apart from his family.Domineque wound up done with school after eighth grade. He got into a series of minor scrapes with the law, charged with harassment or trespassing or burglary. And he developed a friendship with Owden — they bonded over karate and Jackie Chan movies — that changed his life forever. The house on North Mechanic Street where Domineque Ray and his family lived with his grandmother. (William Widmer, special to ProPublica)Domineque has always denied ever being abused. He says that his childhood was nothing more than “average,” and that stories of trauma and exploitation are made up. Even his mother’s milder version of his difficult upbringing, he has said, was false, the result of her being on medication.He was furious with Europe over the testimony he gave as part of a bid to save his life. Europe knows that Domineque is upset with him but maintains that they both lived the life he chronicled on the stand. The two talk by phone occasionally, and Europe hopes to visit his brother before the execution, but he will not attend it. As for whether his brother killed the Mabins and Harville, Europe says he’ll never know. “To be honest with you, I don’t know if he did it or he didn’t,” he said.“He’s angry at me because I told the truth,” Europe says of his brother. “There were things that, I don’t know, he was ashamed of, or he didn’t want no one to know about, or whatever. But I wanted to give the true statement.”The Juror: “I Just Hope I Didn’t Make a Mistake”Once the door of the jury room closed behind them in July 1999, the 12 jurors took an initial vote as to whether to recommend death or life without parole for Ray. Again, 10 votes were needed to recommend death, seven for life.Angela Rose, one of the jurors, said she and two other women voted to spare Ray. Rose, recalling the deliberations in a recent interview in Selma, said that over the next couple of hours, people took turns making their cases. Several said that a death sentence would ensure Ray would never walk the streets again. They didn’t trust the judge’s promise that if they voted for life without parole, Ray would never be freed. Angela Rose, one of the jurors in Ray’s trial. (William Widmer, special to ProPublica)Rose, along with Sandra Jackson and another woman whose name they couldn’t remember, argued that empathy was required. They said it should be God who dealt with Ray.“Allow God to work this,” Rose said she told the jurors.Rose says one of the other jurors quickly shot back something to the effect of “God might just take too long. We need to just go ahead and get this guy off the streets so he won’t hurt anyone else’s child.”Soon, there were enough votes for death. Jackson, in an interview, said she switched her vote because she was convinced if the jury returned a vote sparing Ray, the judge would have overruled it. The other woman whose name they couldn’t remember joined Jackson, though for what reasons it is not clear.Rose said she pleaded through tears: “Please, don’t do this. Don’t do this. Don’t do this.”The jury for Ray’s trial had been selected in the course of a single day. A pool of some 120 people — housewives, retail workers, salesmen, state forestry employees — had been reduced to a panel of eight women and four men, eight of them white, four black. They had been asked questions about their views on the death penalty and if they knew anything about the case.The performance of Ray’s lawyers during jury selection became one of the many elements of Ray’s appeals. Two jurors had admitted knowing the lead detective on the case, and another said he knew the expert forensic witness who would also be called to the stand by the prosecution. At least three said they had heard or learned about the case. Ray’s lawyers have argued that Whatley’s failure to use any kind of challenge to the seating of those jurors amounted to inadequate counsel.Nathaniel Holmes Jr., questioned during jury selection, had said he did not know many of the details of the case. Holmes, then 53, is an Army veteran who later worked for United States Postal Service. In an interview, Holmes did say word of Harville’s murder had swept through town. His sister had a local store that sold beer, and she had grown familiar with the teenager, often kicking her out, Holmes said.Born in Selma in 1946, Holmes shared his name with his father, Nathaniel Holmes Sr., who is said to have been the first black police officer on the city’s force. His mother worked as a seamstress in the city’s downtown.Holmes, in an interview, said he had never been called for jury duty before and had hoped he would not be chosen.He recalled making his way to the jury box and realizing he actually hadn’t thought much about the death penalty before. But he remembered ultimately feeling confident he could recommend it, if necessary. It was, he said, an appropriate punishment for those who violated one of the Ten Commandments: Thou shalt not kill.“Young and black,” Holmes said he first noted upon seeing Ray in court. The 22-year-old sat with his head in his hands, expressionless. Whatley said he had instructed Ray not to show emotion in front of the jury, something Holmes said he took as a sign that he had no remorse. Above: A view of the Edmund Pettus Bridge in Selma. Below: A mural depicts the violence of “Bloody Sunday” on March 7, 1965. (William Widmer, special to ProPublica)The deliberations on guilt or innocence did not take long. Rose said some jurors argued that Ray must have killed Harville because he didn’t testify. “He was evil,” one juror remembered thinking. Rose, the woman who held out for sparing Ray, at first refused to find him guilty. To her, Ray’s blank expressions seemed like the look of helplessness and confusion. But she eventually relented, a decision she would not discuss today.Holmes, having voted to convict, voted for death.Rose, hearing about Ray’s childhood, said the fuller picture of his life did not surprise her, and she thinks if the jury had heard it in 1999, it might have made a difference. Jackson agreed and now regrets having changed her vote.In all, ProPublica contacted nine jurors from the case. Two had died, and the other could not be located.One juror who served on the jury in 1999, Norman McDonald, a grocery store supplier, said he was not interested in hearing all the details of Ray’s upbringing, information that had only come to light in the 20 years since Ray was sentenced to death. “I don’t want to hear anymore. It wouldn’t have made a difference. He had no business killing that child,” McDonald said.Maple Perkins, the wife of Cecil Perkins, one of the black men on the jury, said her husband wasn’t interested in talking about the case. But in an interview, she said she had known Harville’s family well. Perkins had not disclosed that during jury selection. Cecil Perkins would not be interviewed about his jury service.Tammy Fancher also served on the jury. She now owns a gas station and deli on state Road 14. She initially said she didn’t remember much about the case and didn’t want to talk about it. But then she did, saying bluntly, “I think they should fry his ass.” She said she looked Ray up on the internet often and knew he was scheduled for execution on Thursday.“I can’t believe we’ve left his ass in prison and spent all this money on his ass when he should already be dead,” she said. As for Ray’s childhood, Fancher said it would not have changed her decision. “Just because you was raised in the ‘hood and you ain’t got no damn money don’t give you the right to kill people,” she said. The Green Street Baptist Church stands partially burned in a residential neighborhood. (William Widmer, special to ProPublica)Holmes, however, was one juror interested in hearing about Ray’s life. Now 72, he had little specific recollection of Ray’s mother’s brief testimony, and he said that, at least to date, he had never regretted his vote for the death penalty. He’d prayed over his decision, he said.Told Ray’s lawyers had researched his background, Holmes was curious. “So what did he find out?” Holmes asked.An impoverished, violent household, he was told. It’s the account of Europe, Ray’s brother, who said he would have been eager to testify about it in 1999.“Lord, have mercy,” Holmes said occasionally.Sexual abuse, he was told.“Lord, have mercy,” he said. “You don’t have to take me through no more.”Holmes was asked whether he would have wanted to know such things back in 1999.“They brought these kids in the world and forgot all about them,” Holmes said of Ray’s parents. “Ain’t no love there, no sympathy, no nothing there.”Holmes criticized Ray’s lawyers for not bringing the information to the jury. Had they, he said, “presented all of this to the 12 people that were there, then maybe we would have reconsidered.“You can’t go out there and half-ass do a job. You can’t do it,” he said.“I just hope I didn’t make a mistake,” he added.Did he regret his vote?Holmes sighed.“Yeah,” he said. The Dallas County Courthouse in downtown Selma. (William Widmer, special to ProPublica)The Last Advocate: “You Know, It’s a Damn Hard Question”When Peter Racher received a letter inviting him to attend a luncheon hosted by the American Bar Association’s Death Penalty Representation Project in 2002, he threw it away. Racher, a lawyer in Indianapolis, was busy. And his specialty was environmental law, not death row appeals.But another lawyer at Racher’s firm got the same letter and was intrigued.“You ought to take that letter out of your trash can and give it some more thought,” he told Racher.Persuaded by the promise of a free lunch, Racher soon found himself in the chambers of Larry McKinney, chief judge of the southern district of Indiana. Representatives from the Death Penalty Representation Project told those gathered that there were people on death row in Alabama who did not have lawyers. Alabama, they said, doesn’t provide post-conviction counsel for death row inmates.Racher signed on, and he was told about a death penalty inmate who was nearing the deadline to file a post-conviction appeal and didn’t have a lawyer. Students at NYU had discovered that the information about the defendant’s background presented to the jury in 1999 consisted of 3 1/2 pages of testimony from his mother. Nothing more.Racher went to meet with Ray at Holman Correctional Facility, a maximum-security prison in Atmore, Alabama. Ray was nervous. He was aware this was Racher’s first capital case. But he accepted the offer of representation.“He’s not entitled to me — he’s not entitled to an environmental attorney from Indianapolis,” Racher said. “He deserves far better.”Three years later, Racher, having filed a voluminous appeal of Ray’s conviction and his sentencing, was in front of the Alabama judge who had presided over Ray’s trial in 1999 for the Harville murder. Racher attacked every aspect of the state’s case and Whatley’s defense — what he argued was the lack of physical evidence in the Harville murder, what he said were Whatley’s errors and omissions, what he said were the unexplored inconsistencies in Owden and Ray’s confessions. Peter Racher in a meeting room at the law offices of Plews Shadley Racher & Braun in downtown Indianapolis. Racher is managing the current appeals process for Ray's case. (William Widmer, special to ProPublica)Racher called nine witnesses to buttress his argument that Ray had been denied adequate representation during the penalty phase, including Europe Ray; Regina Marshall, one of Gladys Ray’s best friends who had watched her endure abusive boyfriends again and again; and Mullins, the great-aunt who delivered a video deposition chronicling her recollection of the family’s time in Chicago. He put on a neuropsychologist who said Ray’s childhood traumas were so great he had buried them. Racher also called Catherine Boyer, a psychologist who testified she had diagnosed Ray with schizotypal personality disorder. He put Whatley on the stand and had him admit how little of Ray’s life he knew.At the end of the proceedings, Judge Tommy Jones praised Racher. “I think you have done a fantastic job,” he said.Racher thought it had been a success. And his confidence wasn’t without some cause.In 1984, the U.S. Supreme Court decided in Strickland v. Washington that defendants were denied their Sixth Amendment right to counsel when two conditions were met. First, the attorney’s performance is deficient, and second, the deficient performance must have been so damaging that there is a reasonable probability that the trial’s outcome would have been different. The opinion was important, but its vagueness left many wondering what exactly a deficient performance in a capital murder case entails.In 2003, the Supreme Court cleared this up in Wiggins v. Smith. In its opinion, the court said that a lawyer’s performance is deficient when it falls below established norms at the time of the trial. Lawyers must examine their client’s background, such as medical history, educational history, employment and training history, and family and social history, to obtain all information that is reasonably available for the penalty phase, it said.And two years later, the Supreme Court decided in Rompilla v. Beard that attorneys cannot solely rely on their client and his or her family’s word when it comes to investigating mitigating evidence. Regardless of what a client says, attorneys have a duty to conduct a full investigation, the opinion said.Racher’s confidence, in the end, was misplaced.On Aug. 6, 2007, Jones denied the appeal. Referring to testimony about Ray’s childhood, the order read: “The Court finds that there is no reasonable probability that more details about Ray’s home life would have caused a different result in the jury’s recommendation at the penalty phase of the trial.” He added that his belief death was the right outcome would not have been changed either.The Alabama Court of Criminal Appeals affirmed the denial in February 2011, followed by the Alabama Supreme Court in September of that year. Racher then filed a petition for habeas corpus in federal district court on Sept. 19, 2011. The 138-page document included more than 50 pages in which Racher argued that Ray’s trial attorneys were ineffective for failing to put Europe Ray, other family members and experts on the stand during the penalty phase.The district court turned down the petition, as did the 11th U.S. Circuit Court of Appeals. The judges said that they were “troubled” by Whatley’s minimal investigation, but that “there is no ‘reasonable probability’ that at least two jurors would have changed their recommendation and the sentencing judge would have ruled differently.”Frustrated, Racher decided to travel to Selma to meet with Jones, who had returned to private practice. At dinner, Racher said, he couldn’t believe that new details of Ray’s life would not have affected Jones’s sentencing decision. How could it not?“You know, it’s a damn hard question,” Racher recalled Jones saying. Racher said he asked Jones to sign an affidavit saying he had misspoken in court when he said his mind would not have been changed. He didn’t budge. Racher searches through files related to Ray's case in the basement of his law firm. (William Widmer, special to ProPublica)At his law office in downtown Selma in January, Jones declined to discuss the case. “I’m not really interested in talking about that. It’s over and done. You have a good day,” he said before shutting the door. He did not respond to a specific question about Racher’s story of their dinner conversation.Racher’s last hope is what he says is a more recent discovery: that the state knew Owden was suffering from schizophrenia when he confessed and later testified. He’d first learned of that possibility when he visited Owden in prison in the spring of 2017. And he has introduced in a court filing Department of Corrections medical records that he says prove the point — the kinds of records Whatley had requested at trial and that Racher had been seeking for years.To date, the bid has failed. The Alabama courts have held that Ray and his lawyers had to have discovered the information earlier.“It’s enormously frustrating and frightening as a lawyer, as an American,” Racher said. “It is shocking that in this country we commit people to their deaths despite open and obvious evidence that there has not been due process.”Racher, 62, has known Ray for 16 years. He said he and his firm have put more than $2 million worth of work into the case.“I really do care for him,” Racher says of Ray.On Nov. 8, 2018, Racher received a call from Ray. He had been summoned to the warden’s office in shackles and read his execution warrant. The state had scheduled his execution for Feb. 7, 2019, and sent him off with a physician for an examination in preparation for its administration of lethal drugs. Domenique, left, and Europe Ray at a 2006 hearing. (Courtesy of Peter Racher)In January, Racher received another call from Ray. He had been called down to warden’s office again to provide a list of people he wanted her to permit to visit him in his last week and the spiritual adviser he wished to counsel him in his final moments. Ray wanted an imam that visited the prison regularly, not the chaplain, he told her. It was against Alabama’s policy to allow a religious leader other than a chaplain in the execution chamber, the warden told him, refusing to provide him with a copy of the policy.Racher’s team filed for a stay of execution, saying the courts needed time to properly consider Ray’s request for an imam. On Feb. 1, that request was rejected.“I’ve thought that maybe the death penalty is something that should exist because it represents something about our expression of horrific crime committed by people who are beyond, you know, beyond rehabilitation,” Racher said. “But this whole experience with Domineque’s case has convinced me that no matter how much uncertainty a person has about the morality of capital punishment, it’s an absolute indisputable fact that we as a people are incapable of administering it in a way that is fair and just.” William Widmer, special to ProPublicaThe Inmate: “Man, Who Are They Talking About”Ray, 42, is set to be the 64th inmate executed by the state of Alabama since 1976. In July, he was given a choice: to die by lethal injection or by inhaling deadly amounts of nitrogen, an untested method for execution. Ray, who years ago converted to Islam, said his faith would not allow him to play a role in his own death, and so he is scheduled to be killed by lethal injection, the state’s standard method.Alabama uses a three-drug combination, but the way they are actually administered is a closely guarded secret. In the past two years, there have been complications with a number of executions. Ronald B. Smith heaved and coughed for 13 of the 34 minutes it took to kill him, according to accounts of those who witnessed the execution. In February 2018, executioners spent nearly two hours unsuccessfully trying to find a vein in Doyle Lee Hamm as he continued to lose blood, before officials ultimately decided to cancel the execution.“I’m not going to pick a way to die,” Ray said. “That’s against the law in Islam, that’s against my belief, and that’s against my faith.”Last Friday, after losing his effort to have an imam be present with him at his execution, he said he had reconsidered and now was willing to be killed by what is called nitrogen hypoxia. The state in 2018 had given the option to all death row inmates but said they had to decide in a prescribed time period. Fifty-one inmates opted for nitrogen hypoxia, recognizing that it will take years for Alabama to figure out how to carry out the untested method. Read More Ignoring Innocence The Wrongfully Convicted Forced Into Plea Deals Walking While Black Pedestrian Enforcement and Racial ProfilingIn a telephone interview in January, Ray insisted on his innocence, and he remained confident the discovery of Owden’s possible mental health issues would result in a stay of his execution. He insists, as well, his childhood was just fine. His parents were great, spiritual people.His routine as his execution approaches, he said, is consistent. He wakes up in his cell about the size of a small bathroom around 1 a.m. He said he prays and meditates, then reads and writes letters to family and friends. At 3:30 a.m., breakfast is served. Some days, he goes outside for a walk. On Fridays, he says he attends an Islamic service. Ray said he is weeks away from being certified as an imam through a California Islamic University.He talked in the interview about what he says are the many indignities of incarceration, but it’s the most basic insult he hopes the state gets right if he is executed. For years, the state, in court papers and prison records, has repeatedly misspelled his given name, Domineque.“Every time I read it, when I read my documentation for court, I’m like, ‘Man, who are they talking about?’ Are they talking about me or are they talking about somebody else? It’s something else.”
A “Bittersweet” Moment: Court Says VA Was Wrong in Denying Vietnam Veterans Benefits
by Beena Raghavendran Tens of thousands of Navy veterans didn’t set foot in Vietnam during the Vietnam War, but spent their time on ships patrolling the waters surrounding the country. And for decades, that distinction — exactly where they put their feet — made all the difference.Veterans with “boots on the ground” were eligible for benefits if they had an illness connected to exposure to the toxic chemical Agent Orange, which was sprayed as a defoliant during the war. Veterans on ships in inland waters, such as rivers, also could get benefits. But those who were on ships farther away weren’t compensated, even if they had the same illnesses and believed they had the same exposure. The chemicals could have washed into the sea, where Navy ships were distilling water for their own uses — like showering, washing clothes and making food.That is poised to change as a result of a court ruling this week.The U.S. Court of Appeals for the Federal Circuit, in a 9-2 decision, ruled that the Department of Veterans Affairs was wrong to deny benefits to those dubbed “Blue Water” Navy veterans. Previous court opinions had backed the VA. This could affect up to 90,000 people who served.In 2015 and 2016, ProPublica and The Virginian-Pilot wrote about the struggle of the Blue Water Navy veterans, as well as other Vietnam veterans and their families trying to get benefits they feel they are owed. In light of this week’s court ruling, we checked back with some of the Blue Water veterans we featured in our stories to hear what the decision means to them.Wilson McDuffie, 73 Sumter, South CarolinaWhen we last talked to him: in a story published Sept. 11, 2015 Wilson McDuffie Then: “How do I think or how do I feel? It doesn’t matter. It really has no bearing upon what the government is going to do or what the VA is going to do based on what I feel or what I think. I know for a fact what I did … but as far as proving it to someone that wasn’t there, that’s not possible.”Now, after this week’s ruling: Wilson spent years trying to prove to the VA that his ship was in “brown water,” which is the term for veterans who served in inland waters (and are compensated because of their proximity to Agent Orange, based on the VA’s previous interpretation of the law). The VA denied him benefits multiple times, Wilson said. On Monday, he said he got a call from a VA representative saying there was a letter coming to him that would include some favorable information. That letter, which arrived on Thursday, said he’s now eligible for Agent Orange-related benefits based on being in a “brown water” area during Vietnam and having two conditions linked to Agent Orange exposure (diabetes mellitus, Type 2, and peripheral neuropathy).He called the court decision “very bittersweet.”“The sweet part is, [the court] finally made a decision in favor of the veterans that should have been made a long time ago and stuck with. And the bitter part is so many have died, so many have gotten ill and aren’t going to be able to financially use much as they could have. And of course, people like me have just gotten older.”Jim Smith, 68 Virginia Beach, VirginiaWhen we last talked to him: in a story published Sept. 11, 2015 (here, too)Then: “I was there,” Smith said. “Agent Orange was there. Would I have gotten cancer anyway? Maybe. But maybe not.” Jim SmithNow: Smith has prostate cancer, but the VA is only compensating him for tinnitus — an injury unconnected to Agent Orange that the VA covers because he was a naval aviator and the noise of flying jets could have contributed to it. Smith’s claim is still open, so under the new ruling, the VA should compensate him for the prostate cancer and give him retroactive compensation. Smith wonders if the VA will appeal the ruling to the U.S. Supreme Court. And if it doesn’t appeal, he asked, how will the decision get implemented?“We’re a dying breed in every sense of the word. We’re not creating more Vietnam veterans, we’re losing them every day. ... Yes, it’ll make life easier for a while and that kind of stuff, but it’s just I think good that we’re recognized as having been exposed to it so one of these days when they start doing studies saying, ‘Well, how were their children affected by it?’ it’ll mean something more to my son and perhaps even my grandchildren someday.”Eddie Johnny, 75 Stockton, CaliforniaWhen we last talked to him: in a story published Sept. 11, 2015Then: “I didn’t even know what Agent Orange was until after I got out of the service.”Now: One of the activists in Johnny’s VFW group texted him the news about the ruling at about 11 p.m. on Tuesday, but he didn’t read it until early the next morning. During those early morning hours, when he can’t sleep, he sometimes writes letters to members of Congress about the Blue Water Navy veterans. Not this time.“There’s never a bad time to get good news,” he said.He called the decision a “long time coming.” He said he had “a lot of illness related to Agent Orange and I actually thought I would really die before it came through. I saw a few of my buddies leave here [die] without getting any benefits at all.”
The Curious Case of a Kentucky Cybersecurity Contract
by Jessica Huseman, ProPublica, and Daniel Desrochers, Lexington Herald-Leader In the months after the 2016 elections, state election administrators spent millions of dollars investigating and addressing the cyber intrusions that had penetrated voting systems in dozens of states. Kentucky Secretary of State Alison Lundergan Grimes emerged as one of the loudest voices calling for improvements.In February 2017, at an elections conference dominated by talk of cybersecurity, Grimes claimed to have found the perfect answer to the threat: A small company called CyberScout, which she said would comb through Kentucky’s voting systems, identify its vulnerabilities to hacking and propose solutions.Three days later, Assistant Secretary of State Lindsay Hughes Thurston submitted paperwork to give the company a no-bid two-year contract with the State Board of Elections, or SBE, for $150,000 a year. She did not inform the SBE — the agency that oversees the state’s voting systems — that she was doing so. Stay InformedGet ProPublica’s Daily Digest. Join 100,000 discerning readers and get everything we publish by signing up for ProPublica’s Daily Digest. At the time, CyberScout was new to voting-related cybersecurity. The company acknowledges that it had never had an election-systems client before.CyberScout’s CEO and his wife had given Grimes a total of $12,400 in contributions over several elections, along with $4,000 to state Democratic groups. (All of the donations fell within state limits.) Ultimately, the contract went through — Grimes denies the contributions had any influence — and CyberScout delivered little in the way of results, according to 15 election officials interviewed for this article. CyberScout’s contract was not renewed after the first stage expired in June.The story of the CyberScout contract, told here in detail for the first time, suggests a consequence of the unprecedented power that Grimes has amassed as chief elections officer. (The first two articles in this series explored how she expanded her power as well as some of the voter-privacy concerns raised by her actions.) It shows what can happen when one person consolidates decision-making authority that has historically been divided, by design, among different entities.Grimes has been criticized for overstepping her role as secretary of state by taking day-to-day control of the SBE, a nonpartisan agency that is constitutionally separated from the secretary of state’s office (albeit chaired by the secretary of state). Grimes’ expansion of power, and the ways in which she has used that power, are the focus of three ongoing investigations by state agencies. The investigators have also asked questions about the CyberScout contract, according to people who have been interviewed.“These allegations demonstrate exactly why Kentucky law is set up to have separation between the secretary of state and the State Board of Elections,” said Joshua Douglas, an election law professor at the University of Kentucky College of Law. “The point is to ensure transparency, oversight and checks on each entity. That may have broken down in this instance.”Grimes has called the complaints against her “unfounded” and “political,” though they have come from members of both political parties. “I urge all Kentucky agencies to realize partisanship has no role in safeguarding Kentucky against cyber threats,” she said in a statement in September addressing an episode in which some state government email accounts were hacked. “I want to reiterate to all Kentuckians, I won’t back down from doing everything I can to protect you and our elections.”CyberScout delivered for Kentucky, Grimes said in an interview for this article. The company, she asserted, uncovered “huge weaknesses” in the state’s voting systems. (She declined to detail those deficiencies, citing security reasons.) Grimes called CyberScout “an industry leader in security” with a focus on elections. As she put it, “We wanted to make sure we got the best of the best and no one could make any claims otherwise.”But that’s not how the state’s own experts viewed CyberScout at the time. “I want to be perfectly clear that contracting with them in no way [fulfills] the actual security needs of our systems and in no way will mitigate our risk of intrusion,” wrote Steve Spisak, a software developer for the Secretary of State’s office who built Kentucky’s voter-registration system, and Tom Watson, a software engineer for the SBE, in a March 30, 2017, email to an executive at the board. “In fact, they don’t offer any security devices or real-world experience of any type.”The origin of the connection between CyberScout and Grimes is murky. Adam Levin, the founder and CEO, said he and Grimes had been in contact long before the secretary of state tapped his company. “I had spoken to her for years about cybersecurity,” he said before abruptly ending an interview when pressed about their relationship. For her part, Grimes said she was “unaware” whether or not she had met Levin.What seems clear from interviews with multiple people involved in the state’s election security is that Grimes’ team did not divulge the political contributions when the state was considering a contract for CyberScout. It was not legally required to do so. More specifically, the contributions were not disclosed to the SBE. Don Blevins Sr., a board member at the time the contract was processed (and, like Grimes, a Democrat), said he would have opposed a contract with CyberScout if he’d known about the donations. “In no way would I have ever gone along with that,” he said. “I find that outrageous.” “They Don’t Offer Any Security Devices or Real-World Experience of Any Type”Steve Spisak and Tom Watson, software developers for the secretary of state and SBE, respectively, expressed “some very real concerns with the legitimacy” of CyberScout “in regards to the security needs of the State Board of Elections.” Page 1 of Watson Spisak Contributed to DocumentCloud by Jillian Kumagai of ProPublica • View document or read text Not only did Grimes fail to disclose the financial links, her team misrepresented how far negotiations with CyberScout had progressed, according to members of the SBE. On Feb. 21, 2017, the day after Thurston sent the initial proposal for the contract “on behalf of the State Board of Elections,” CyberScout gave the board an overview of the company and its offerings.Blevins called the presentation “vague,” and he said it provided little guidance as to how CyberScout and its subcontractor, Nordic Innovation Labs, would proceed and what work product they would provide. “I asked a bunch of questions, but then just shut up because I wasn’t getting anywhere,” he said.Board members unanimously voted that day to “allow the State Board of Elections to engage with CyberScout in the future.” They said they believed they were opening the negotiation process. But in the following months, documents show the secretary of state’s office represented this vote to government agencies and the public as having approved a contract with CyberScout.Shortly after the meeting, the contract proposal was rejected by the Kentucky Finance and Administration Cabinet. It cited a lack of evidence that CyberScout was uniquely qualified for the project, a state requirement for a no-bid contract. Without consulting the SBE, Thurston and CyberScout resubmitted the proposal with a more detailed justification letter on March 7. That submission was approved by March 24.Grimes maintains that any issues with the contract should be blamed on the Finance Cabinet, which she said is run by “Republican Gov. Matt Bevin.” The Finance Cabinet responded that it “relies on the integrity” of statements made by constitutional officers.Board members remained unaware that the proposal had been submitted or approved. They continued to raise questions about CyberScout during this time. “I know we had previously voted on approving to allow the Secretary and staff to further engage in discussion,” wrote Josh Branscum, a Republican board member on April 18, 2017. “Have we received any proposal fee or scope of services to look at as a board before we vote to enter into any type of official contract?” Michael Adams, another Republican board member, asked when the board could expect to receive a more detailed proposal.Thurston responded by asserting that the board had already approved the CyberScout contract. “You will recall on February 21, 2017, the Board unanimously voted to engage CyberScout,” she wrote.Confusion swirled inside the SBE. The agency’s staff also was unaware that a contract with CyberScout had already been submitted and approved. They were actively researching other cybersecurity contractors. Matt Selph, the assistant executive director of the SBE at the time, said he and then-Executive Director Maryellen Allen appealed to Thurston in a meeting that month, telling her they were not interested in working with CyberScout.Despite these recommendations, Thurston repeatedly represented to the Finance Cabinet that, as she put it in one letter, CyberScout had “expertise in elections cyber security that is unmatched by any other cyber security firm.” Grimes did not respond when asked what research she or Thurston had done to substantiate this assertion, and Thurston did not respond to calls for comment. “The Only Cybersecurity Firm That Can Well Position Kentucky”In letters to the Kentucky Finance and Administrative Cabinet on Feb. 21, 2017, and March 7, Thurston cited the urgency of protecting state voter systems and CyberScout's “unmatched” expertise. Page 1 of Sole Source Letter Contributed to DocumentCloud by Jillian Kumagai of ProPublica • View document or read text In interviews with ProPublica and the Herald-Leader, multiple cybersecurity experts disagreed that CyberScout was uniquely qualified. Most had never heard of the company. Numerous firms provide near identical services, and several of the services listed in the contract were redundant to those offered by the U.S. Department of Homeland Security for free. (According to its website, CyberScout was founded in 2003 as a consumer-oriented operation called Identity Theft 911 and adopted its current name in 2017. CyberScout spokeswoman Lelani Clark said, “As of today, we believe that no other firms offer the spectrum of election security services we do.”)Kentucky would have been well aware of these services and other qualified vendors in February 2017, according to Jennifer Morrell, an elections consultant heading up the Democracy Fund’s Election Validation Project. Election officials, she said, were “almost exclusively focused on cybersecurity resources and information” at the time.Morrell previously ran elections in Arapahoe County, Colorado, and briefly retained Nordic Innovation Labs, CyberScout’s subcontractor, to pilot a new auditing technique. She called Nordic’s work “a complete failure and waste of money.” CyberScout cited this Colorado project in the letter that stated the firm was uniquely qualified for the Kentucky assignment. Morrell said nobody called her for a reference. (Nordic referred a request for comment to CyberScout.)In the same letter and various reports produced for the state, Eric Hodge, the director of consulting for CyberScout, also claimed “the team” had done similar work in Ohio, Massachusetts and California. When contacted, all three states denied working with CyberScout or Nordic Innovation Labs. Asked about the discrepancy, Hodge said Harri Hursti, a recognized voting-machine security expert and the founding partner of Nordic, had been part of a cybersecurity report commissioned by the Ohio secretary of state in 2007. Hursti was one of 23 named experts in the report. Hodge did not respond to claims regarding the other states.The deal with CyberScout worked out as the SBE staff feared. No one in Kentucky could point to a specific change spurred by CyberScout, and SBE employees indicated all changes made in the last two years came as a result of recommendations by the Department of Homeland Security. The company’s contract ended in June, ultimately costing the state about $150,000.CyberScout “did absolutely zero work and got paid a bunch of money,” Selph said.Selph was fired in late 2017, after he submitted a complaint about Grimes, including his objections to the CyberScout contract, to the Executive Branch Ethics Commission. Grimes said Selph was fired after harassing employees of the SBE. He has denied that allegation and has filed a whistleblower lawsuit against the state. “Similar Work in Other States”Eric Hodge, the director of consulting for CyberScout, claimed the company was qualified to work in Kentucky and pointed to “the team’s” past work in Ohio, Massachusetts and California. The three states denied working with CyberScout or its subcontractor. Page 1 of Hodge Letter Contributed to DocumentCloud by Jillian Kumagai of ProPublica • View document or read text Current SBE employees have also expressed confusion as to CyberScout’s work product. As late as August, emails show SBE staffers expressing confusion about the work CyberScout had performed and the bills the company sent.In his own complaint, which he submitted to multiple state agencies and the SBE, Jared Dearing — a Democrat picked by Grimes as executive director of the SBE — recommended an audit of vendors used by the SBE despite internal objections. He recommended that vendors who provided campaign donations be investigated.Hodge said it didn’t matter if the SBE was unhappy. “Our client is the secretary of state,” he said. All that matters, he said, was that Grimes was satisfied. In fact, CyberScout’s contract is with SBE. (Clark defended the company’s work and maintained that Kentucky’s IT staff was “hostile” to being audited and dismissive of security concerns.)County clerks also remain unclear as to what services CyberScout provided. As part of its contract, the company visited a handful of counties to offer guidance on shoring up their wireless connections and on the security of elections systems.Hodge rejected criticism of the company’s county visits. For example, he asserted that the Crittenden County clerk was “overjoyed” at the company’s recommendations. In an interview, Carolyn Byford, the clerk in the county, said people from CyberScout followed her around during a special election held in September 2017 but issued no report or recommendations. “All it did was make me anxious that day,” she said. “Elections are tough enough as it is.”In late December, more than six months after the contract expired, CyberScout published a 20-page public report summarizing its work in Kentucky. The report is missing elements generally seen in reports released by cybersecurity contractors. Most, for example, explain the methodology used for security tests. CyberScout did not do so.The remainder of the report contained rehashed recommendations made to the SBE over the year the contract was active. Some were pasted verbatim from the notes section of a PowerPoint presentation given to the board months before. There were multiple typographical and grammatical errors and inconsistencies: On one page, CyberScout recommended that Kentucky join a multistate group on cybersecurity. On the next page it congratulated the state for having joined the group.Hodge declined to answer questions about the report’s inconsistencies.Herald-Leader reporter Bill Estep contributed to this story.
“Doubling Down”: With Private Care Push, Trump’s VA Bucks Lawmakers and Some Veterans Groups
by Isaac Arnsdorf When Congress passed a bill last year to transform the Department of Veterans Affairs, lawmakers said they were getting rid of arbitrary rules for when the government would pay for veterans to see private doctors.Under the old program, veterans could go to the private sector if they would have to wait 30 days or travel 40 miles for care in the VA. Lawmakers and veterans groups, including conservatives, criticized those rules as arbitrary. The new law, known as the Mission Act, was supposed to let doctors and patients decide whether to use private sector based on individualized health needs.On Wednesday, the Trump administration proposed new rules, known as access standards, to automatically make veterans eligible for private care. Instead of 30 days, it’s 20 days for primary care or 28 days for specialty care. Instead of 40 miles, it’s a 30-minute drive for primary care or a 60-minute drive for specialty care.The announcement appeared to do little to settle the debate over whether the VA’s rules are arbitrary.“Twenty days is just as arbitrary as 30 days,” Bob Wallace, the executive director of Veterans of Foreign Wars, one of the largest veterans service organizations, said in a statement. Stay InformedGet ProPublica’s Daily Digest. Join 100,000 discerning readers and get everything we publish by signing up for ProPublica’s Daily Digest. What is clear about the new rules is that they are dramatically more permissive. The new drive-time standard alone will make 20 percent of veterans eligible for private primary care and 31 percent eligible for private specialty care, up from 8 percent for both kinds of care under the old program, according to a briefing document circulated on Capitol Hill.“This is doubling down on the administrative rules such as drive times and wait times,” said David Shulkin, the former VA secretary who was fired last year by President Donald Trump, in part over disagreements about this bill. “I was in favor of a system that was clinically based, that put veterans’ needs first and allowed the right match of services. This is just changing and loosening the administrative rules.”VA spokeswoman Susan Carter declined to comment.Last month, a ProPublica investigation of the private-care program that the administration is now expanding found overhead costs that were much higher than industry standards and comparable government programs. In response to the article, VA Secretary Robert Wilkie acknowledged that the agency was “taken advantage of” with these overhead costs and vowed to improve.On the campaign trail, Trump presented himself as a champion for veterans, and as president he frequently boasts about what his administration has done for former service members. But at the same time, he has enthusiastically supported shifting more veterans to private medical care, over the objection of major veterans groups that want to preserve the VA’s health system. He has also plunged the VA into chaos by upending his own leadership team at the agency and handing vast influence to three men nicknamed the “Mar-a-Lago Crowd” because they meet at the president’s resort in Florida.The new access standards are the most important step toward reshaping the VA in line with Trump’s vision of enlarging the private sector’s role.“None of this should be a surprise to anybody: President Trump has made it clear from pretty much the moment he started running he wanted full choice,” said Dan Caldwell, the executive director of Concerned Veterans for America, a political group that advocates for more private care and that is backed by the Koch brothers, the industrialists who have donated hundreds of millions of dollars to conservative causes. “This does get us closer to full choice. That’s the model we want to get to.”The VA is planning to continue widening the access standards, dropping the wait time for primary care to 14 days in 2020, according the agency’s briefing materials.Already, according to the document, almost half of the VA’s primary care sites (69 out of 141) have wait times longer than 20 days, meaning their patients could get private care. In gastroenterology, 81 out of 128 sites have waits longer than 28 days. But, the document cautioned, “This data is not reliable.”According to people present for briefings on Wednesday, congressional staff and veterans groups had a long list of questions that largely went unanswered by VA officials. Among them:
A Power Grab in Kentucky Sparks a Revolt
by Jessica Huseman, ProPublica, and Daniel Desrochers, Lexington Herald-Leader The September 2018 meeting of the Kentucky State Board of Elections was strikingly contentious. There was shouting, cross-talk and threats to eject staff — all playing out in a public forum in front of TV cameras.But the most unusual moment, perhaps, was this: Two board members moved to rescind the votes they had cast at the previous meeting, only three weeks before. They claimed that Kentucky Secretary of State Alison Lundergan Grimes, whose position also makes her chairwoman of the State Board of Elections, or SBE, had essentially misled them into granting her unprecedented day-to-day power over the SBE. The board members’ efforts to void the resolution failed. Grimes cast the deciding vote.Today, Grimes wields that new power over the SBE — and she’s facing a revolt by some staff as well as a loss of trust from many of the county clerks who administer elections, according to interviews with more than 30 people involved in the election-administration process, as well as documents and emails. “Alison has just got so much more access to things than any other secretary of state I’ve known,” said Julie Griggs, the clerk of McCracken County, who has worked in that office for 30 years. (Like Grimes, Griggs is a Democrat.) “It’s too much control for one person to have.” Stay InformedGet ProPublica’s Daily Digest. Join 100,000 discerning readers and get everything we publish by signing up for ProPublica’s Daily Digest. Tension between Grimes’ office and the SBE has “turned our office upside down,” longtime SBE employee Sheila Walker wrote in an email to the board in August, adding that the agency had “never experienced anything like this in past years.”Meanwhile, Grimes has slowed the process of cleaning the state’s voter rolls. That could put Kentucky out of compliance with an agreement it signed with the U.S. Department of Justice to improve the accuracy of its rolls. In an interview, Grimes denied the state was out of compliance.Grimes asserts that as the state’s chief elections officer, it’s only natural that she exercises close control of both the secretary of state’s office and the SBE. She has cited the SBE’s resolution granting her day-to-day control of the agency as an endorsement of the breadth of her power. Consistent with the resolution and Kentucky law, Grimes has “taken an active role in the operations of the SBE,” according to a statement provided by her legal team. The statement denied that she has introduced partisanship into the SBE.Kentucky has long split election oversight between two agencies to reduce the possibility of partisan control, according to experts. The secretary of state manages the candidate nomination process, while the SBE handles almost all other state election functions, such as maintaining voter rolls and coordinating with the 120 county clerks in the state who oversee polling sites.In keeping with the goal of nonpartisanship, past secretaries have presided over the board meetings of the SBE but allowed its staff to run day-to-day operations unfettered. “It appears that Grimes views the SBE as an arm of her office,” said Trey Grayson, who served as secretary of state from 2004-11. “I certainly didn’t.”Three state agencies are now investigating what multiple SBE staff members have called a “power grab” by Grimes. The investigations largely originated with complaints by those staffers, who charged that Grimes was encroaching on the SBE’s responsibilities.One aspect of the secretary of state’s response to the investigations suggests how closely the agency oversees the SBE: An assistant secretary of state, Erica Galyon, requested the right to sit in when investigators question SBE staffers, as did Luke Morgan, a lawyer that Grimes retained to represent the SBE.That proposal did not go over well with the Kentucky Personnel Board, one of the agencies investigating Grimes. A lawyer for the Personnel Board emailed Galyon and Morgan, rejecting their request to be present. The email quoted messages from unnamed SBE staffers. One noted, “Our staff has been intimidated enough...is it possible to request that they not be there?” Another employee wrote, “We all just want to do our job and not be in constant fear of SOS staff retaliation.” (Grimes’ statement defended Morgan’s right to be present for the investigative interviews but did not address Galyon’s role.)The power struggles have led to a stalemate. SBE staff is unwilling to trust the secretary of state’s office, which they’ve been told to report to, and Grimes has been stymied in her attempts to remove the SBE’s two top executives.SBE employees say Grimes’ team is controlling even basic tasks. For example, they say they’ve been barred from meeting with third parties — including the Department of Homeland Security, which regularly assists states with cybersecurity services — without consulting the secretary’s office.The SBE has been barred from having staff meetings without someone present from the secretary’s office. The SBE is also no longer allowed to handle its own public records requests. Document requests made to the SBE for this article were decided by the office of the secretary of state.Asked what’s driving Grimes’ efforts to expand the scope of her role, her communications director, Lillie Ruschell, said, “I think the secretary has made it pretty clear that first and foremost, it’s her job to [have day-to-day oversight] and second, she is somebody who is on the ground every year and every day.” Ruschell added: “She’s only as involved as she feels she needs to be. She’ll back off if she needs to, but if she needs to or wants to [be involved] that’s her prerogative.”Grimes’ attempts to expand her power first surfaced publicly in the fall of 2017. That’s when Matt Selph, then assistant executive director of the SBE, filed a complaint against her to the SBE. Among other things, it detailed a litany of ways in which he claimed Grimes and her team were increasingly asserting control over the SBE: insisting on approvals of new hires and even that Grimes’ office had to vet any correspondence between SBE staff and the organization’s board.Grimes and her supporters brushed off Selph’s complaint as a partisan attack by a Republican. She persuaded the board to fire him. Not, she maintained in a closed session, in retaliation, but because he had allegedly harassed two employees. In an interview for this article, Grimes said Selph was terminated “for the protection of the workers at the State Board of Elections.”Don Blevins Sr., who was on the board at the time and voted against the termination, called the accusations “weak.” And interviews for this story with more than 25 people who had worked with Selph failed to turn up anyone who witnessed any harassment. Nearly all said they believed Grimes fabricated the accusation to justify the firing, a statement echoed by Selph, who fought in the Iraq War and asserted that Grimes attempted to portray him as a troubled veteran to try to tar him. (In her statement, Grimes did not address the allegations that she fabricated the claim. For his part, Selph filed a whistleblower lawsuit against the state.)Complaints about Grimes cycled back into view in late August 2018. Jared Dearing, a Democrat who Grimes had selected as executive director of the SBE, filed a complaint that was strikingly similar to Selph’s.Grimes snapped into action. She called an emergency meeting of the SBE for the next day, Aug. 28. At the meeting, most of which was closed to outsiders, she and Dearing squared off against each other, trading heated arguments as the board members watched in stunned silence. Dearing at the Aug. 28 meeting of the SBE. (Alex Slitz/Lexington Herald-Leader)Eventually, Dearing was asked to leave the room. After he departed, Grimes continued to assail him at length, using words she has repeated to the media multiple times since, that he has a “fundamental misunderstanding” of her office’s statutory authority. Her extended criticisms of Dearing left the impression that Grimes wanted him ousted, according to a person with close knowledge of the board.The emergency meeting ultimately lasted six hours. Before it ended, Grimes took one more step that would spark a controversy. Having grappled directly and indirectly with Dearing over the extent of their respective sway, Grimes insisted that the board needed to at least reaffirm her powers.Weary after the hours of combat, the board decided to “pacify” Grimes, according to the source with knowledge of the board and multiple others who have spoken to board members, by adopting a resolution that reaffirmed her powers. They viewed it as a harmless step.The vote was 4-0 (two board members were absent and the chair tends not to vote unless there is a tie). But two of the four who voted would almost instantly regret their actions.Only three weeks later, the board reassembled for a regular meeting, with a full complement of six members and the chair present. Republican members DeAnna Brangers and Josh Branscum attempted to rescind the previous vote.“Frankly, I’ve come to regret my vote on it,” Brangers said, according to an audio recording of the meeting. Board members, she explained, were “under the impression that it really just codified things that are already written in state and federal law. I mean, who can argue with that?” After she began to look at the resolution in more detail after the meeting, Brangers said, she realized she’d made a mistake. (Brangers did not explain how she missed the plain language of the resolution, which stated that the secretary of state “is necessarily charged with the day-to-day oversight of regular operations of the Kentucky State Board of Elections and its staff. …”)It was too late. The effort to rescind the vote split along partisan lines and Grimes cast the deciding vote against the motion. Since then, she has repeatedly pointed to the disputed resolution as proof of the board’s confidence in her.That confidence isn’t universal. In late September, the Kentucky County Clerk’s Association presented a letter signed by all 120 clerks in support of Dearing and Jennifer Scutchfield, Dearing’s second-in-command. Kenny Barger, the Republican clerk in Madison County, co-authored the letter with a Democratic clerk. “It comes to a breaking point sometimes, where you just have to call it and speak out,” he said.Clerks have begun calling board members to express concern. Many interviewed for this article contend that Grimes has damaged the relationships between her office and the clerks, people she has little authority over but whose cooperation she and the SBE need to implement statewide programs. Grimes is term limited as secretary of state — her tenure runs out at the end of 2019 — and clerks hope her replacement will be less controlling.Another point of controversy has been Grimes’ handling of a federal order regarding voter-roll maintenance. SBE board members and staff argue that she has prevented the board from complying with the order.Grimes has long opposed what she refers to as “purges” of the voter roll. Like many Democrats, she views them as attempts to suppress voting. In the wake of a June 2018 Supreme Court ruling that granted Ohio the ability to remove people’s registration if they skip voting for several elections and fail to respond to a mailer, Grimes said she would never remove Kentuckians from the rolls for that reason.At the time, Kentucky was already under fire for improper list maintenance. In early 2018, the Department of Justice joined a lawsuit against the state filed by conservative activist group Judicial Watch. The DOJ alleged that, since 2009, Kentucky had violated federal law by failing to send postcards to verify that voters’ address records are up-to-date and accurate. The lack of checking, the DOJ claimed, resulted in a voter roll with numerous incorrect entries. The state signed a consent decree on July 3 that committed Kentucky to implementing the address-checking process now and in the future.The process has revealed a significant number of outdated registrations. Almost 300,000 postcards have been returned as undeliverable, suggesting that those voters do not live at those registered addresses. That’s equivalent to about 8 percent of registered voters in the state.But no further actions have been taken, and some staffers and board members believe that’s intentional. Dearing’s complaint alleges that the day the consent decree was signed, Grimes insisted he stop the address-checking process. A week later, after Dearing complained about the legality of the request, according to the complaint, then-assistant secretary of state Lindsay Hughes Thurston told him and Scutchfield they could restart, but they were to “slow walk” the process.The delays have frustrated some county clerks. “That reflects on me,” said Griggs, the clerk in McCracken County. “My county. And I don’t like that.”The Justice Department concluded that the SBE was dragging its heels, according to a letter DOJ attorney David Cooper sent to the state in mid-September. Kentucky had agreed to begin sending additional mailers before Aug. 8 and failed to do so. Among other things, the letter asserted that the SBE had “ceased” what had been productive working discussions “and directed that all further communication take place through outside counsel.” Cooper wrote that Kentucky had “fallen short of its obligations” under the consent decree. (Neither the DOJ nor Judicial Watch responded to requests for comment.)Morgan, the lawyer Grimes retained for the SBE, responded to the DOJ letter, asserting that the Justice Department had in fact approved a delay in order to ensure no voter was unfairly disenfranchised. He has since claimed the same to board members, and emails show at least one board member has asked Morgan to send proof that the DOJ made such an agreement. To date, Morgan, who did not respond to a request for comment, has not done so.Compliance with the consent decree has become a major part of one investigation of Grimes, according to people questioned by investigators. Kentucky’s attorney general appointed Mark Metcalf as an independent counsel last year, initially to examine the allegations raised by the SBE’s Dearing. Metcalf declined to comment, citing the ongoing investigation. (Grimes’ statement to ProPublica and the Herald-Leader did not address the issues raised about the consent decree.)Grimes appears unlikely to change her approach even under the pressure of investigations. At the September SBE meeting, after the Executive Branch Ethics Commission issued an advisory opinion finding that her access to the voting registration system may require her to recuse herself from her role as chief elections officer in 2019 should she run for office, Grimes responded that the ethics commission was “all Republican” and that it was “attempting to try and justify their use of taxpayer dollars to have interference in this board.” She added, “No outside agency can determine how this board runs.”
OxyContin Maker Explored Expansion Into “Attractive” Anti-Addiction Market
by David Armstrong Not content with billions of dollars in profits from the potent painkiller OxyContin, its maker explored expanding into an “attractive market” fueled by the drug’s popularity — treatment of opioid addiction, according to previously secret passages in a court document filed by the state of Massachusetts.In internal correspondence beginning in 2014, Purdue Pharma executives discussed how the sale of opioids and the treatment of opioid addiction are “naturally linked” and that the company should expand across “the pain and addiction spectrum,” according to redacted sections of the lawsuit by the Massachusetts attorney general. A member of the billionaire Sackler family, which founded and controls the privately held company, joined in those discussions and urged staff in an email to give “immediate attention” to this business opportunity, the complaint alleges.ProPublica reviewed the scores of redacted paragraphs in Massachusetts’ 274-page civil complaint against Purdue, eight Sackler family members, company directors and current and former executives, which alleges that they created the opioid epidemic through illegal deceit. These passages remain blacked out at the company’s request after the rest of the complaint was made public on Jan. 15. A Massachusetts Superior Court judge on Monday ordered that the entire document be released, but the judge gave Purdue until Friday to seek a further stay of the ruling. Get Our Top InvestigationsSubscribe to the Big Story newsletter. Don’t miss out on ProPublica’s next investigation. Sign up and get the Big Story email whenever we break news. The sections of the complaint already made public contend that the Sacklers pushed for higher doses of OxyContin, guided efforts to mislead doctors and the public about the drug’s addictive capacity, and blamed misuse on patients.Citing extensive emails and internal company documents, the redacted sections allege that Purdue and the Sackler family went to extreme lengths to boost OxyContin sales and burnish the drug’s reputation in the face of increased regulation and growing public awareness of its addictive nature. Concerns about doctors improperly prescribing the drug, and patients becoming addicted, were swept aside in an aggressive effort to drive OxyContin sales ever higher, the complaint alleges.Among the allegations: Purdue paid two executives convicted of fraudulently marketing OxyContin millions of dollars to assure their loyalty, concealed information about doctors suspected of inappropriately prescribing the opioid, and was advised by global consulting firm McKinsey & Co. on strategies to boost the drug’s sales and burnish its image, including how to “counter the emotional messages” of mothers whose children overdosed. Since 2007, the Sackler family has received more than $4 billion in payouts from Purdue, according to a redacted paragraph in the complaint.“The payments were the motivation for the Sacklers’ misconduct,” the complaint says. “And the payments were deliberate decisions to benefit from deception in Massachusetts, at great cost to patients and families.”In 1998, two years after OxyContin was launched, Dr. Richard Sackler, a son of Purdue co-founder Raymond Sackler, instructed executives in an email that its tablets were not merely “therapeutic” but also “enhance personal performance,” like Viagra. Fifteen years later, he complained in another email that a Google alert he set up for OxyContin news was giving him too much information about the drug’s dangers.“Why are all the alerts about negatives and not one about the positives of OxyContin tablets?” he asked a company vice president. Staff immediately offered to replace Sackler’s alert with a service that supplied more flattering stories, according to the complaint.The redacted paragraphs leave little doubt about the dominant role of the Sackler family in Purdue’s management. The five Purdue directors who are not Sacklers always voted with the family, according to the complaint. The family-controlled board approves everything from the number of sales staff to be hired to details of their bonus incentives, which have been tied to sales volume, the complaint says. In May 2017, when longtime employee Craig Landau was seeking to become Purdue’s chief executive, he wrote that the board acted as “de-facto CEO.” He was named CEO a few weeks later.In a statement today in response to questions about the redacted material, the company said that Massachusetts “seeks to publicly vilify Purdue, its executives, employees and directors by taking out of context snippets from tens of millions of documents and grossly distorting their meaning. The complaint is riddled with demonstrably inaccurate allegations.”Purdue acknowledged in the statement that it was considering acquiring the rights to sell drugs that combat addiction or reverse the effects of an overdose. It criticized the state for “casting in a negative light” the company’s exploration of a potential acquisition of an addiction treatment that was already on the market, “even though the company never actually made the acquisition.”Purdue also pointed out that OxyContin is approved by the Food and Drug Administration. It said that most opioid overdoses “now result from heroin and illicit fentanyl.”The Sackler family was once best known for its philanthropy. Its name is engraved on museums and university buildings across the world. A group of activists has called on organizations to stop accepting Sackler donations and for the family name to be stripped from some institutions. Aggressive marketing of OxyContin is blamed by some analysts for propelling the crisis that has resulted in 200,000 overdose deaths related to prescription opioids since 1999.After its 1996 launch, OxyContin rapidly became a top seller. But reports of patients abusing the drug soon followed. OxyContin contained more pain relief medication than older drugs, and crushing and snorting it was a simple way to get high fast. In 2007, Purdue pleaded guilty to federal charges of understating the risk of addiction and agreed to pay $600 million in fines and penalties. Still, the company argued publicly that OxyContin has “done far more good than harm,” and it sought to place responsibility for the bad acts on “certain of its supervisors and employees.”Privately, the complaint suggests, the Sacklers were concerned about alienating two executives, then-CEO Michael Friedman and then-legal counsel Howard Udell. Friedman and Udell each pleaded guilty in 2007 in U.S. District Court in Abingdon, Virginia, to a misdemeanor charge of misbranding OxyContin, as did a former executive. The board signed off on the three executives’ decisions to plead guilty. No member of the Sackler family pleaded guilty.Purdue paid $5 million to Udell in November 2008, and up to $1 million in November 2009, the complaint states. In February 2008, the company paid $3 million to Friedman. The complaint doesn’t mention any payments to the former executive.“The Sacklers spent millions to keep the loyalty of people who knew the truth,” the complaint alleges.Udell died in 2013. A person answering a phone number listed to Friedman declined comment.The plea deals did little to hinder OxyContin sales or the Sacklers’ hands-on management. At the direction of the board, Purdue repeatedly increased its sales force, which pushed doctors to prescribe higher opioid doses. Protesters outside the headquarters of Purdue Pharma on Aug. 17, 2018. (AP Photo/Jessica Hill)In 2008, the same year that Purdue paid Udell and Friedman, Richard Sackler advised other family members that it was important to select a new chief executive who was loyal to the family. “People who will shift their loyalties rapidly under stress and temptation can become a liability from the owners’ viewpoint,” he allegedly wrote. A defendant in the Massachusetts lawsuit, Richard Sackler served in a number of different positions at the company before being named president in 1999 and then co-chairman of the board in 2003.The company did install five new, non-family board members in the wake of the federal investigation. But in hundreds of board votes, the new directors never opposed the family, according to the complaint. Although Purdue does not operate outside the U.S., board meetings took place at a castle in Ireland as well as in Bermuda, London, Portugal and Switzerland.When sales results disappointed, Sackler family members didn’t hesitate to intervene. In late 2010, Purdue told the family that sales of the highest dose and most profitable opioids were lower than expected, according to the complaint. That meant an expected quarter-end payout to the family of $320 million was at risk of being reduced to $260 million and would have to be made in two installments in December instead of one in November.That news prompted a sharp email question from Mortimer D.A. Sackler, whose late father, also named Mortimer, was a Purdue co-founder. “Why are you BOTH reducing the amount of the distribution and delaying it and splitting it in two?” he asked. “Just a few weeks ago you agreed to distribute the full 320 [million dollars] in November.” The complaint doesn’t say how much was ultimately paid.From 2009 until at least 2014, McKinsey helped Purdue shape its message for selling OxyContin and overcoming concerns about addiction and overdoses, according to redacted passages. The consultant told Purdue in a slide presentation that it could increase prescriptions by convincing doctors that opioids provide “freedom” and “peace of mind” and give patients “the best possible chance to live a full and active life.”Purdue staff, according to the complaint, told the Sacklers that McKinsey would study “patient pushback” to encourage hesitant doctors to prescribe opioids. In a meeting with Purdue executives, McKinsey planned how to “counter the emotional messages from mothers with teenagers that overdosed in [sic] OxyContin" by recruiting pain patients to talk about the need for the drugs.In a 2013 report, McKinsey recommended directing sales representatives to focus on the most prolific opioid prescribers because that group writes “25 times as many OxyContin scripts” as less prolific prescribers. Because prescription rates rose in tandem with visits from sales reps to doctors, McKinsey recommended increasing each salesperson’s quota from 1,400 visits a year to closer to 1,700. McKinsey estimated that targeting the most frequent prescribers could boost OxyContin sales by hundreds of millions of dollars. The quotas rose, as did total visits, the complaint states. Purdue said it planned to decrease visits relating to opioid products, and any increase was due to promoting a laxative. Purdue Pharma headquarters in Stamford, Connecticut. (AP Photo/Jessica Hill)McKinsey also recommended Purdue fight back against efforts by a major pharmacy chain, the U.S. Drug Enforcement Agency and the U.S. Department of Justice to stop illegal opioid prescribing, the complaint states. These new rules were cutting into sales of the highest doses, which were also the most profitable, it says. The complaint doesn’t say if Purdue followed McKinsey’s recommendation. Purdue said the recommendations “actually relate to ensuring continued access to pain medicines for appropriate patients.”A McKinsey spokesman declined comment.In September 2014, Purdue embarked on a secret project to join an industry that was booming thanks in part to OxyContin abuse: addiction treatment medication. Code-named Project Tango, it involved Purdue executives and staff as well as Dr. Kathe Sackler, a daughter of the company co-founder Mortimer Sackler and a defendant in the Massachusetts lawsuit. She participated in phone calls and told staff that the project required their “immediate attention,” according to the complaint.Internally, Purdue touted the growth of an industry that its aggressive marketing had done so much to foster.“It is an attractive market,” the team working on the project wrote in a presentation. “Large unmet need for vulnerable, underserved and stigmatized patient population suffering from substance abuse, dependence and addiction.”While OxyContin sales were declining, the internal team at Purdue touted the fact that the addiction treatment marketplace was expanding.“Opioid addiction (other than heroin) has grown by ~20%” annually from 2000 to 2010, the company noted. Although Richard Sackler had blamed OxyContin abuse in an email on “reckless criminals,” the Purdue staff exploring the new business opportunity described in far more sympathetic terms the patients whom it now planned to treat.“This can happen to any-one – from a 50 year old woman with chronic lower back pain to a 18 year old boy with a sports injury, from the very wealthy to the very poor,” it said.Company documents recommended becoming an “end-to-end pain provider.”Initially, Purdue intended to sell one such medication, Suboxone, which is commonly retailed as a film that melts in the mouth. When Kathe Sackler asked staff members to look into reports that children might be swallowing the film, they reassured her. They responded, according to the complaint, that youngsters were overdosing on pills, but not the films, “which is a positive for Tango.”In 2015, Purdue turned its attention to another potential product, the overdose reversing agent known as Narcan, calling it a “strategic fit.” Purdue executives discussed how its sales force could promote Narcan to the same doctors who prescribed the most opioids. Purdue said in the statement Wednesday that it decided against acquiring the rights to sell Suboxone and Narcan.While those initiatives appear to have stalled or ended, Richard Sackler received a patent last year for a drug to treat addiction, according to the complaint. The patent application states that opioids are addictive and refers to people who suffer from substance use disorders as “junkies.”Besides being a defendant in the Massachusetts case, Richard Sackler was deposed in a lawsuit against Purdue in Kentucky, which the company settled. It’s believed to be the only time a member of the family has been questioned under oath about OxyContin and its addictive properties. The Kentucky Court of Appeals has ordered the release of his deposition, in response to a motion by STAT, but Purdue is asking the state Supreme Court to review the ruling. Hundreds of other lawsuits filed by states, cities, counties and tribes against Purdue have been consolidated in a pending case in federal court in Ohio.The Massachusetts complaint cites multiple incidents of Purdue allegedly sitting on information, sometimes for years, about doctors it had reason to believe were inappropriately prescribing OxyContin. In 2012, a Purdue employee appealed to the company’s head of sales to alert health insurers to data the company collected about doctors suspected of abusing or illegally prescribing OxyContin. The list of doctors was code-named Project Zero.“At a basic level, it just seems like the right and ethical thing to do,” the employee wrote. “Doing so could help those companies identify those physicians that may be of a concern, not just with respect to our products, but also other” pain medications. “As a result, if it reduces abuse and diversion of opioids then it seems like something we should be doing.”The idea was rejected and the employee left the company a month later, according to the complaint.
Ex-IBM Executive Says She Was Told Not to Disclose Names of Employees Over Age 50 Who’d Been Laid Off
by Peter Gosselin In sworn testimony filed recently as part of a class-action lawsuit against IBM, a former executive says she was ordered not to comply with a federal agency’s request that the company disclose the names of employees over 50 who’d been laid off from her business unit.Catherine A. Rodgers, a vice president who was then IBM’s senior executive in Nevada, cited the order among several practices she said prompted her to warn IBM superiors the company was leaving itself open to allegations of age discrimination. She claims she was fired in 2017 because of her warnings.Company spokesman Edward Barbini labeled Rodgers’ claims related to potential age discrimination “false,” adding that the reasons for her firing were “wholly unrelated to her allegations.” Stay InformedGet ProPublica’s Daily Digest. Join 100,000 discerning readers and get everything we publish by signing up for ProPublica’s Daily Digest. Rodgers’ affidavit was filed Jan. 17 as part of a lawsuit in federal district court in New York. The suit cites a March 2018 ProPublica story that IBM engaged in a strategy designed to, in the words of one internal company document, “correct seniority mix” by flouting or outflanking U.S. anti-age discrimination laws to force out tens of thousands of older workers in the five years through 2017 alone.Rodgers said in an interview Sunday that IBM “appears to be engaged in a concerted and disproportionate targeting of older workers.” She said that if the company releases the ages of those laid off, something required by federal law and that IBM did until 2014, “the facts will speak for themselves.”“IBM is a data company. Release the data,” she said.Rodgers is not a plaintiff in the New York case but intends to become one, said Shannon Liss-Riordan, the attorney for the employees.IBM has not yet responded to Rodgers’ affidavit in the class-action suit. But in a filing in a separate age-bias lawsuit in federal district court in Austin, Texas, where a laid-off IBM sales executive introduced the document to bolster his case, lawyers for the company termed the order for Rodgers not to disclose the layoffs of older workers from her business unit “unremarkable.”They said that the U.S. Department of Labor sought the names of the workers so it could determine whether they qualified for federal Trade Adjustment Assistance, or TAA, which provides jobless benefits and re-training to those who lose their jobs because of foreign competition. They said that company executives concluded that only one of about 10 workers whose names Rodgers had sought to provide qualified.In its reporting, ProPublica found that IBM has gone to considerable lengths to avoid reporting its layoff numbers by, among other things, limiting its involvement in government programs that might require disclosure. Although the company has laid off tens of thousands of U.S. workers in recent years and shipped many jobs overseas, it sought and won TAA aid for just three during the past decade, government records show.Company lawyers in the Texas case said that Rodgers, 62 at the time of her firing and a 39-year veteran of IBM, was let go in July 2017 because of “gross misconduct.”Rodgers said that she received “excellent” job performance reviews for decades before questioning IBM’s practices toward older workers. She rejected the misconduct charge as unfounded.Legal action against IBM over its treatment of older workers appears to be growing. In addition to the suits in New York and Texas, cases are also underway in California, New Jersey and North Carolina.Liss-Riordan, who has represented workers against a series of tech giants including Amazon, Google and Uber, has added 41 plaintiffs to the original three in the New York case and is asking the judge to require that IBM notify all U.S. workers whom it has laid off since July 2017 of the suit and of their option to challenge the company.One complicating factor is that IBM requires departing employees who want to receive severance pay to sign a document waiving their right to take the company to court and limiting them to private, individual arbitration. Studies show this process rarely results in decisions that favor workers. To date, neither plaintiffs’ lawyers nor the government has challenged the legality of IBM’s waiver document.Many ex-employees also don’t act within the 300-day federal statute of limitations for bringing a case. Of about 500 ex-employees who Liss-Riordan said contacted her since she filed the New York case last September, only 100 had timely claims and, of these, only about 40 had not signed the waivers and so were eligible to join the lawsuit. She said she’s filed arbitration cases for the other 60.At key points, Rodgers’ account of IBM’s practices is similar to those reported by ProPublica. Among the parallels:
Facebook Moves to Block Ad Transparency Tools — Including Ours
by Jeremy B. Merrill, special to ProPublica, and Ariana Tobin A number of organizations, including ProPublica, have developed tools to let the public see exactly how Facebook users are being targeted by advertisers.Now, Facebook has quietly made changes to its site that stop those efforts.ProPublica, Mozilla and Who Targets Me have all noticed their tools stopped working this month after Facebook inserted code in its website that blocks them.“This is very concerning,” said Sen. Mark Warner, D-Va., who has co-sponsored the Honest Ads Act, which would require transparency on Facebook ads. “Investigative groups like ProPublica need access to this information in order to track and report on the opaque and frequently deceptive world of online advertising.”For the past year and a half, ProPublica has been building a searchable database of political ads and the segments of the population advertisers are paying to reach. We did this by enlisting thousands of volunteers who installed a web browser extension. The tool shared the ads users see as well as Facebook’s details on why the users were targeted.In a statement to ProPublica, Facebook said the change was meant to simply enforce its terms of service. (The Guardian also published a story Sunday flagging the change.)“We regularly improve the ways we prevent unauthorized access by third parties like web browser plugins to keep people’s information safe,” Facebook spokesperson Beth Gautier said. “This was a routine update and applied to ad blocking and ad scraping plugins, which can expose people’s information to bad actors in ways they did not expect.”Facebook has made minor tweaks before that broke our tool. But this time, Facebook blocked the ability to automatically pull ad targeting information.The latest move comes a few months after Facebook executives urged ProPublica to shut down its ad transparency project. In August, Facebook ads product management director Rob Leathern acknowledged ProPublica’s project “serves an important purpose.” But he said, “We’re going to start enforcing on the existing terms of service that we have.” He said Facebook would soon “transition” ProPublica away from its tool.Facebook has launched an archive of American political ads, which the company says is an alternative to ProPublica’s tool. However, Facebook’s ad archive is only available in three countries, fails to disclose important targeting data and doesn’t even include all political ads run in the U.S.Our tool regularly caught political ads that aren’t reflected in Facebook’s archive. Just this month, we noticed four groups running ads that haven’t been in Facebook’s archive:
A Onetime Rising Democratic Star Faces Questions About Voter Privacy
by Jessica Huseman, ProPublica, and Daniel Desrochers, Lexington Herald-Leader In an appearance on MSNBC in July 2017, Kentucky Secretary of State Alison Lundergan Grimes expressed her vehement opposition to giving voter data to President Donald Trump’s voter fraud commission, which had requested it from election officials in all 50 states. The privacy risks were simply too high, she said.“There is not enough bourbon here in Kentucky to make this request seem sensible,” Grimes said. “Not on my watch are we going to be releasing sensitive information that relates to the privacy of individuals.”But beginning months before she made that statement, Grimes’ own staff had been looking up hundreds of voters in the very same registration system. One of her former staffers first revealed the practice last summer but provided little detail.Now, an investigation by ProPublica and the Lexington Herald-Leader shows that the searches were extensive and targeted prominent state politicians, including gubernatorial candidate Rocky Adkins, who could have been Grimes’ opponent in the Democratic primary. Grimes, who had been considering a bid, announced last week that she has decided not to run for the governorship.Grimes’ luster has dimmed of late. She was seen as a rising Democratic star when, at age 35, she ran a doomed race against Sen. Mitch McConnell in 2014. Now, three state agencies are pursuing investigations against her office — a result of complaints filed by numerous state employees and officials. At least four have quietly filed complaints with the Executive Branch Ethics Commission; two others have complained publicly. (In addition, Grimes’ father was indicted on federal charges for allegedly making illegal campaign contributions to her 2014 Senate campaign; he has pleaded not guilty.) Grimes has defended her conduct. Stay InformedGet ProPublica’s Daily Digest. Join 100,000 discerning readers and get everything we publish by signing up for ProPublica’s Daily Digest. Grimes’ staff made questionable use of its unprecedented access to the voter registration system, or VRS. They looked up applicants for non-political positions with the seeming purpose of discovering their party affiliation. State law prohibits inquiring as to whether such applicants are Republicans or Democrats.Her staff searched for hundreds of voters, mostly state employees outside the secretary of state’s office, for no discernible reason. Documents show they looked up current and former employees, a federal judge, the Kentucky education commissioner and every member of the Kentucky Board of Education.They even searched for members of the ethics commission who are investigating Grimes herself.Presented with questions from ProPublica and the Herald-Leader, Grimes took a two-pronged stance: She cast doubt on the accuracy of the logs that revealed the searches while defending her right to engage in such searches.Grimes asserted that the search logs had “not been verified” despite the fact that similar logs were provided last August to the agencies investigating Grimes’ conduct, including the ethics commission, the state personnel board and a special prosecutor appointed by the Kentucky attorney general. She also said it “boggles my mind” that anyone would criticize her access to the system given that she is the state’s “chief elections official.”On Jan. 24, six nights after ProPublica and the Herald-Leader posed questions about the VRS searches, Grimes went to Franklin Circuit Court in Frankfort. She filed a pre-emptive action requesting that a judge declare her right to gain access to the VRS. The suit names as defendants the executive director and assistant executive director of the Kentucky State Board of Elections or SBE, which is charged with overseeing the state’s elections and maintaining the voter rolls. (The executive director has filed an ethics complaint against Grimes.)The filing asserts that Grimes’ office is “legally entitled to access the VRS pursuant to federal and Kentucky law. Indeed, access is necessary to perform the duties imposed on the Secretary of State by federal and Kentucky law.” The filing describes assertions that Grimes’ staff used the VRS to uncover party affiliations as “inaccurate” but goes on to assert that the office has the right to that information because Kentucky law requires the SBE staff to be bipartisan.At least one Democratic election official in Kentucky takes a different view. “It’s inappropriate for the secretary of state’s office to have access at all,” said Don Blevins Jr., the clerk for Fayette County. “The fact that they’re abusing that privilege is no surprise.” Grimes during a special meeting of the State Board of Elections at the Kentucky State Capitol in Frankfort, Kentucky, on Aug. 28, 2018. (Alex Slitz/Lexington Herald-Leader)Grimes runs the first secretary of state’s office in Kentucky history to have such access. Trey Grayson, who held the position from 2004-11, said he could not think of a reason he or his staff would have needed it. Any need to access the system, he said, could have been accomplished by consulting the SBE. (The SBE is separate from the secretary of state’s office but closely linked to it; it’s chaired by the secretary of state.)In fact, when Grayson served as secretary of state, Kentucky’s ethics commission ruled he could run for a Senate seat without recusing himself as chief elections officer expressly because he had no access to the rolls, which could have given him an advantage. The ethics commission has since said that opinion no longer stands in light of Grimes’ access.Grayson said such separation “provided comfort for Kentuckians that no one person — specifically, the secretary of state — had too much authority over elections,” he said, adding that he and his predecessors “had the good sense to maintain that setup.”State Sen. Damon Thayer introduced a bill several weeks ago that would block the secretary of state’s office and the board members of the SBE from accessing the VRS. The searches “make you pause,” Thayer said. “You wonder, is she conducting some sort of witch hunt?”Grimes’ use of the VRS first raised questions in early 2017 when Matt Selph, then assistant executive director of the SBE, noticed that a voting precinct had been deleted from the system. He found that Grimes and seven of her staff members had administrative access to it.It allowed her staff to see, and change, extensive personal data, though there’s no indication that they did so. One state official called the information “a starter kit for identity theft.” That access was then reduced to “read-only” in February 2017.Pieces of the voter roll contained in Kentucky’s VRS have always been accessible. The public has the ability to search for a person’s party affiliation and voting precinct if they can supply a first name, last name and year of birth. Anyone can also buy a more extensive version of the voter roll for a fee. That version includes each voter’s full name, birth year, party affiliation, address, precinct and whether the voter has cast a ballot (but not for whom) in the past five years.Internal access to the system reveals far more. Administrators can view voters’ drivers license numbers, every address ever linked to a voter, full birth dates, phone numbers, email addresses, Social Security numbers for some voters, disability status, military status and the addresses of voters — like domestic violence survivors — who have petitioned to have their address kept off the public roll.Relatively few people have full access. County clerks and their deputies have such privileges in order to add people to the voter rolls but can make changes only in their counties. The SBE maintains the voter roll for the state and has the ability to make changes statewide. Grimes and her staff demanded the same access as the SBE staff before the 2016 election, claiming they needed it to monitor voter complaints.Grimes says she no longer has access to the system, but her assistant secretary of state and elections director have maintained read-only privileges. Months after his discovery, Selph submitted a detailed 12-page complaint to the ethics commission and the board of the SBE, explaining his objections to her staff’s access to the VRS, among other things. The board voted to fire him shortly thereafter. (Selph has since filed a whistleblower suit against the state.) Matt Selph in the Lexington Herald-Leader office in Lexington. (Charles Bertram/Lexington Herald-Leader)Selph’s concerns have been echoed by current SBE Executive Director, Jared Dearing, and multiple county clerks, who say there is no legitimate reason for Grimes to have access to the database.In August 2018, as part of his own complaint letter, Dearing first publicly accused Grimes and her staff of not only having inappropriate access, but also of searching for employees as well as job applicants in order to identify their political affiliation.ProPublica and the Herald-Leader have examined documents that reveal the applicants Dearing was alluding to. They show that in April 2018, Lindsay Hughes Thurston, then an assistant secretary of state and now a Fayette County district judge, looked up Rashad Cleveland and Alan Hess. At the time, both were applicants for an IT position at the SBE. Hess is registered as a Republican and Cleveland as a Democrat. Dearing told the Personnel Board that Thurston had encouraged him to hire Cleveland, despite his view that Hess was more qualified. Dearing ignored this recommendation.Attorneys representing the SBE have sometimes said searches of job applicants were part of “standard background checks.” But Thomas Stephens, the head of the state agency that performs background checks, also testified that the only information available in the voter roll unavailable in a state background check was political affiliation. “At this point, I am disturbed,” he said of the searches, adding that he could not “fathom” any need to use the VRS as part of a background check.In several instances, Grimes’ staff engaged in what seem to be highly political searches. For example, Mary Sue Helm, director of elections in the secretary of state’s office, searched for Adkins, a member of the Kentucky house, during the 2018 legislative session after he said he was interested in running for governor. Grimes was then considering entering the race. In July, Helm looked up former Lt. Gov. Crit Luallen, who spent much of the summer stumping for Democratic congressional candidate Amy McGrath and has endorsed and donated thousands to Attorney General Andy Beshear, another Democratic gubernatorial candidate.Adkins said he “needed to know more before commenting” and then declined to comment when presented with more information. Luallen said, “I can’t imagine why my name was looked up.”For her part, Thurston summoned records for Thomas Fulton, a federal judge who’d presided over a swearing in ceremony for new citizens on the day he was searched. She sought records for “Benjamin Adams,” potentially Brig. Gen. Benjamin F. Adams III, the current commissioner of the Kentucky Department of Veterans Affairs. And she checked out a former veterans affairs commissioner, Norman Arflack, who is now the United States marshal in eastern Kentucky.Only days before Sherry Whitehouse was named as a Democratic board member of the SBE in April, Thurston looked her up, too. On a single day in May, Thurston searched for more than 100 people, many of whom appear to be state employees across a range of agencies. Records show she continued her searches, even after being publicly criticized for the practice, until she left to become a judge.Thurston did not reply to a written list of questions. Neither Whitehouse, Frazier nor the Department of Veterans Affairs returned calls seeking comment. A spokesperson for the Board of Education declined to comment.At the September SBE meeting, which occurred after Dearing had publicly accused Grimes of inappropriate access, Grimes did not address these searches. Instead, she directed her ire at Dearing, who she said had jeopardized the security of Kentucky’s voter registration system by releasing search logs to investigators.“Respectfully, Mr. Dearing, it is highly inappropriate for you as the executive director to put information about our voter registration system, the security of which is paramount to our cybersecurity efforts, in the public domain without the authorization of the chair, without the authorization of the board attorney and in the fashion in which you are attempting to do it now,” Grimes said.“That’s why they call me a whistleblower,” Dearing interjected. Grimes then threatened to have state police remove him from the meeting.
When Illinois Laws Meet Real People
by Logan Jaffe We’ve had lots going on lately. As you know, last week we published our first investigation into video gambling in Illinois. We’re excited that the story, co-published with WBEZ and the Chicago Sun-Times, was also published in a number of newspapers across the state: The State Journal-Register in Springfield; the Journal Star in Peoria; the Rockford Register Star; and The Southern Illinoisan, to name a few. As part of our video gambling investigation, you may remember, we’re looking to hear from people who believe they or someone they know are compulsive video gamblers — and responses have been coming in. Thank you for sharing your stories with us and for helping to spread the word. Some responses have been heartbreaking to read. All of them will help inform the reporting we do in the future. Please keep them coming.In non-gambling news, our reporting on vehicle tickets in Chicago — and how the city’s current policies burden the poor — seems to have influenced the city’s mayoral race. Check out our new story, with partner WBEZ, on where the candidates stand on ticket and debt collection reform.If you are affected by or interested in this issue, please consider joining our Facebook group for Chicago drivers navigating vehicle ticket troubles or attending our event Wednesday that’s focused in part on our interactive database, The Ticket Trap. Register here. Due to the extreme cold weather forecast for Wednesday, Jan. 30, we are rescheduling the Driven Into Debt event. We will share updated information soon. Dive Deeper Into Our ReportingOur newsletter is written by a ProPublica Illinois reporter every week Discover what makes Illinois tick from our team of investigative journalists covering the state. Delivered every Friday. One more thing. Two weeks ago, I wrote to you asking for your feedback on our newsletter to help shape how we communicate with you in the future. Thank you so much for your thoughtful responses. We’re taking them to heart. I want to share a few with you:“I really enjoy the tone of the newsletter. It feels familiar, but not overly so; informative without being pedantic; engaged but not constantly talking about urgency and crises (fair for this to be the tone of many communications, but also exhausting); and genuine.”Thank you! That’s exactly the balance we’re trying to strike (and it is genuine to the vibe of our newsroom).“Particularly given my interest in Illinois, I’d love to see you highlight local journalism from other papers, radio station, etc., beyond the ones you collaborate with.”Noted. We’ve heard from a number of subscribers who said they mostly read our newsletter to stay informed about issues around the state, so this seems like an easy add. Plus, we’re reading and listening to stories by our Illinois colleagues all the time!“I use your newsletter to stay in touch with my roots. … I enjoy and appreciate both your ‘muckraking’ journalism but also the softer side of your reporting that highlights the things I love and miss about the Midwest.”Part of our goal is to be transparent about who we are as people and what we’re learning and thinking about as we report stories. We also know it’s important to get out of Chicago, and it’s something we want to do more. And we’re always looking to hear from you about what’s happening where you live. Write us anytime.Until next week …Logan Jaffe
Everybody in Chicago’s Mayor’s Race Says They Want Ticket Reform
by Melissa Sanchez, ProPublica, and Elliott Ramos, WBEZ Chicago All 14 candidates still in the running to be Chicago’s next mayor are talking about how the city’s vehicle ticketing system burdens motorists in low-income and minority communities, and each has pledged reform.Their proposals seek to address a range of problems uncovered by ProPublica Illinois and WBEZ over the past year that show how unpaid tickets are driving thousands of motorists into debt and even bankruptcy.Some of the plans have already been introduced by local or state lawmakers but so far failed to gain traction. The support of a new mayor would improve their odds of passage.A number of candidates have proposed overhauling the city’s existing payment plan structure, which now requires motorists with significant ticket debt to make a down payment of $1,000 or more and can be difficult for poor people to manage. Some candidates have suggested a tiered payment structure according to debtors’ ability to pay or allowing community service alternatives to payment. A proposal to do something similar was introduced to the City Council in October but remains stalled in the Finance Committee. Dive Deeper Into Our ReportingOur newsletter is written by a ProPublica Illinois reporter every week Discover what makes Illinois tick from our team of investigative journalists covering the state. Delivered every Friday. In addition, several candidates suggested ending a decades-old practice of suspending driver’s licenses over unpaid tickets, which disproportionately affects motorists from majority black neighborhoods. Outgoing Mayor Rahm Emanuel’s administration opposed a bill in the legislature that would have ended license suspensions for non-moving violations, including unpaid parking tickets.A related measure introduced to the City Council in November also is stuck in the Finance Committee.Other mayoral candidates have advocated ending a municipal “anti-scofflaw” policy that prevents residents with ticket debt from getting city jobs and working as ride-share or taxi drivers and restricts them from other city programs, unless they’re on a payment plan or in bankruptcy.The proposals dovetail with a citywide task force led by City Clerk Anna Valencia that is looking at the disparate effects of city fines and fees and plans to present recommendations to the new mayor when he or she takes office in May.The mayoral election is Feb. 26, although no candidate is expected to receive enough votes to win outright. Runoff elections are April 2.Valencia said she was encouraged to see more people calling for a review of the issue.“I look forward to working with elected officials, candidates, and the next Mayor on how we can implement recommendations that work for all Chicagoans, the financial health of the City and our communities,” she said in a statement.Here’s a rundown of how the 14 candidates say they would fix the city’s ticketing and debt collection system. The descriptions come from interviews, emailed statements and responses to a WBEZ candidate questionnaire. Gery Chico, a former head of the Chicago and state school boards, said he would eliminate the city’s controversial speed and red-light camera program and reassess all city fees and fines. “The city’s traffic enforcement has numerous problems and needs to be overhauled,” his campaign said. Bill Daley, former White House chief of staff and brother and son of former Chicago mayors, proposed an eight-year statute of limitations on ticket debt collection; none currently exists. He also proposed holding a one-time amnesty to allow low- to moderate-income motorists to settle ticket debt by paying original fine amounts; setting a progressive price structure for city stickers and related fees; ending license suspensions for unpaid parking tickets; and overhauling the payment plan structure. Amara Enyia, a West Side activist, organizer and policy consultant, features slogans to “Ban The Boot” prominently on her campaign website. “Mobility is a key way for people to work,” she said. “And when they can work, they can generate the income that they need to live and that includes to pay debts.” Enyia also supports lowering the down payment requirements to enter city payment plans in addition to setting a progressive fee structure and allowing community service alternatives to debt repayment. Bob Fioretti, a former alderman, said he would end license suspensions for unpaid tickets; raise the number of unpaid tickets motorists can accumulate before their vehicles are booted; overhaul the payment plan structure; and hold a one-time amnesty to waive late fees and penalties when underlying tickets are paid. “Study after study shows the parking ticket system is set up in a discriminatory way, penalizing most the people who can afford it least,” he said in a statement. “No Chicagoan should have to file for bankruptcy in order to get their car out of the city auto pound.” La Shawn Ford, a state representative, proposed reducing the size of late penalties; currently, unpaid tickets double and accrue a 22 percent collections charge. He also proposed reconsidering the base cost of all tickets and lowering prices for tickets commonly issued in low-income neighborhoods. Ford, who has co-sponsored a bill to end license suspensions for unpaid tickets, said he would continue to support this legislation if elected mayor. “When you take away cars and a person’s ability to drive to a job, you cripple their family,” he said. Jerry Joyce, a former Cook County assistant state’s attorney, did not offer many specifics but said he “would conduct a complete analysis of the city’s vehicle ticketing systems to explore this matter and make any required changes moving forward.” John Kozlar, a lawyer who has twice run unsuccessfully for City Council, also did not offer any specifics but said he would support efforts to reduce the disparate effects of ticketing on minority communities. Lori Lightfoot, former head of the Chicago Police Board, said she would allow a grace period for city sticker renewals; conduct an audit into bias in ticketing; end the city’s “anti-scofflaw” policy for taxi or ride-share drivers in limited cases; and end driver’s license suspensions for non-moving violations. “We cannot accept a system that has such a devastating impact on low-income people and people of color,” she said in a statement. Garry McCarthy, former Chicago police superintendent, said he would support a process to determine drivers’ ability to pay fines and fees and consider community service alternatives to debt repayment in cases where license suspension could lead to job loss. “I will ensure that a person is not penalized into poverty,” he said in a statement. Susana Mendoza, Illinois comptroller and former city clerk, has been attacked by other candidates for her role in a 2011 decision as clerk to raise the cost of fines for motorists who don’t purchase required vehicle stickers. ProPublica Illinois and WBEZ have reported on how the price increase, combined with disparities in enforcement, led to an explosion in debt and bankruptcies for black Chicagoans. Now, Mendoza is calling for a review of all city fines and penalties, saying that “it’s clear that under the current system, city tickets can too quickly become debt spirals that compound and make it impossible for someone living paycheck-to-paycheck to pay off.” She’s also proposed capping late penalties, limiting license suspensions and a statute of limitations on debt collection. Toni Preckwinkle, Cook County Board president, said she would roll back city sticker fines to 2011 levels and institute a graduated cost schedule for city stickers. She also supports ending license suspensions for parking ticket debt; reforming the payment plan structure; eliminating penalties for booted and seized vehicles; and ending the “anti-scofflaw” policy for city employment. Neal Sáles-Griffin, a tech entrepreneur, called the financial consequences of unpaid tickets a “moral failing of our leadership.” He said he would give residents more time to pay outstanding debts and provide community service alternatives to debt repayment. Paul Vallas, a former Chicago Public Schools CEO, called for a study of the ticketing system. “I strongly suspect these policies are costing Chicago more in the long-term than they are benefiting the City in the short term,” he said in a statement. Vallas said he wants to end the city’s controversial red-light camera program and its “anti-scofflaw” rules for city employment. He also said he would consider a fees and fines amnesty program that would waive late penalties. Willie Wilson, a businessman who has previously run for mayor, said he would eliminate the city’s red-light and speed camera program and create some kind of ticket debt amnesty program. Wilson said he would look into creating free parking days downtown and revisit existing contracts with private ticketing companies. “I will make sweeping changes across the system to rid the citizens of outrageous nickel-and-dime taxes and fees including righting the ticketing, booting and red light camera systems,” he said.
Ex-Sanitation Salvage Workers Protest: “All We Want Is for Them to Pay Us What They Owe Us”
by Kiera Feldman for ProPublica The temperature was barely above zero in the Bronx on Martin Luther King Jr. Day, but more than a dozen former garbage workers showed up outside the offices of Sanitation Salvage, once one of the major private trash haulers in the city. They carried signs and demanded wages they say they are owed by the company, which surrendered its license in November after a series of revelations about its troubled operations.Andres Hernandez said he’d worked as a Sanitation Salvage driver for seven years. Manuel Matias said he’d started working at Sanitation Salvage at age 17 and was paid off the books for years. Alex Amante said the cold was all too familiar — he’d regularly worked the city’s streets at night in such temperatures, doing shifts that he and other workers said could be 18 or even 21 hours long.The former Sanitation Salvage workers picked the day to protest intentionally. When King was assassinated in Memphis, Tennessee, in 1968, he’d come to the city in support of its sanitation workers, who were on strike over low pay and dangerous conditions following the deaths of two workers.“All we want is for them to pay us what they owe us,” Hernandez said.The former Sanitation Salvage workers said they and others were owed money from both their last weeks on the job in 2018 and for working off the books for years at a rate of $80 per night. In 2015, after an investigation, the U.S. Department of Labor concluded that Sanitation Salvage owed workers $385,000 in unpaid overtime accumulated over the previous three years alone, but the company never paid it.The former workers’ demands have the support of Corey Johnson, the speaker of the New York City Council. When Sanitation Salvage declared it was out of the trash business late last year, Johnson publicly called on the city agency that oversees the industry, the Business Integrity Commission, or BIC, to “ensure that this private company pays any wages it owes to current and former employees before it shuts down permanently.”In 2018, Sanitation Salvage was the focus of a series of articles by ProPublica exposing its history of safety issues and role in two recent deaths, claims of exploitation by workers, and its cozy relationship with the union representing those workers. The union, long run by a mobster, was seen by many of its ostensible members to be in league with Sanitation Salvage’s owners; in 2013, the National Labor Relations Board found that management unlawfully threatened to fire workers who opposed the union. The BIC eventually declared the company an “an imminent danger to life and property” and suspended its operations. Months later, following the company’s return to business, it surrendered its license for good.Spokesmen and lawyers for Sanitation Salvage have repeatedly defended the company’s record, arguing it was unfairly run out of the industry by overzealous regulators looking to score political points with safety and labor advocates.The company’s owners and lawyers did not respond to requests for comment on Monday’s rally and the claims of wages owed. The company has previously argued that the U.S. Department of Labor findings from 2015 were without merit.Antonio Reynoso, the chairman of the City Council’s Sanitation Committee, has introduced a package of bills he says will provide greater protection to workers in the private trash industry. The legislation, which will be the subject of a hearing next Tuesday, would mandate that the BIC take action against union officials who have certain criminal convictions or associate with members or associates of organized crime or anyone convicted of a racketeering activity. Another of the measures would “require the Business Integrity Commission to refer labor and wage violation cases involving private carters to the New York State Attorney General, the United States Department of Labor, and other relevant city, state, or federal law enforcement agencies.”Jane Meyer, a spokeswoman for the BIC, wrote in a statement: “Worker abuses are unacceptable and this administration is cracking down on bad actors in the trade waste industry. We have been working closely with the City Council to institute reforms, including the legislation currently before the Council that would give BIC more oversight over trade waste unions.” Stay InformedGet ProPublica’s Daily Digest. Join 100,000 discerning readers and get everything we publish by signing up for ProPublica’s Daily Digest. The BIC has long had the power to refer any reports or evidence of wage and labor violations to state and federal authorities. In the months before suspending Sanitation Salvage’s license, the BIC said it had conducted an extensive audit and investigation of the company’s operations. The BIC’s spokeswoman said that the agency had “referred claims of unpaid wages at Sanitation Salvage to an appropriate investigatory body,” but she did not provide further details. The BIC said an earlier audit of the company’s dealings from 2013 to 2015 resulted in the agency fining Sanitation Salvage $85,000 for its failure to properly maintain books and records.A representative from Reynoso’s office said the councilman thinks that the BIC “should already be referring out cases to the relevant enforcement agencies when they find wrongdoing” and that it is critical to codify this step into law. The representative said he was unaware if the BIC had referred claims of unpaid wages and financial irregularities at Sanitation Salvage to the state attorney general.“If not, we would certainly push them to do so, as well as calling on the attorney general to ensure that those wages are recovered,” Asher Freeman, Reynoso’s legislative director, wrote in an email.A spokesperson for the state attorney general, Letitia James, said James “will continue to look out for the rights of working people. If allegations of impropriety are brought to the Office of Attorney General, we will pursue the facts wherever they may lead.”James, the former New York City public advocate, has long used the consulting firm Hamilton Campaign Network in her campaigns for office. Her campaign paid the firm roughly $2.4 million during her bid for attorney general last year. The head of that firm, John Emrick, is also a registered lobbyist for Sanitation Salvage. The Bronx hauler has paid Emrick’s lobbying firm, the MirRam Group, more than $120,000 since 2016 to lobby against a variety of pending city measures involving the private waste industry.The spokesperson for James would not comment when asked if Emrick’s roles with the campaign and lobbying firms would present any kind of conflict for James if the issue were referred to her office.Emrick did not immediately respond to a request for comment.ProPublica’s investigation of Sanitation Salvage showed its drivers and helpers often worked punishing shifts of 18 hours or longer, racing to complete routes with 1,000 stops or more. The workers regularly picked up young men on the street to help work shifts, paid off the books and for little money. Mouctar Diallo, 21, was one such worker — what the company called a “third man.” Diallo, a Guinean immigrant, died on the job when he fell off a Sanitation Salvage truck in November 2017. The BIC eventually determined that both the driver and the helper on the truck lied to investigators at the scene when they said they had no idea who Diallo was and instead described him as a homeless man who had inexplicably jumped on the truck.At the rally on Monday, Alexis Robinson said he, too, had been a “third man” and had worked several times with Diallo on a notoriously long nighttime shift that the company called Route 3. John Rojas, another off-the-books worker and Robinson’s cousin, said he began working at Sanitation Salvage after Diallo’s death. Route 3 became his route.“The suicide route, we called it,” Rojas said.
Students! ProPublica Wants to Pay for You to Attend a Journalism Conference in 2019
by Lena V. Groeger We are proud to announce our fourth annual Diversity Scholarship program. ProPublica will be sponsoring need-based scholarships for 20 students to attend an eligible journalism conference in 2019. Anyone who is a U.S. resident is welcome to apply. We especially encourage students from an underrepresented group — including people of color, women, LGBTQ people and people with disabilities — to apply.The $750 scholarships will go to students who would otherwise be unable to attend. These conferences offer great opportunities for networking and professional development, especially for those just starting out in journalism. Scholarship recipients will also have the opportunity to meet up with any ProPublica staff also in attendance. Check out last year’s scholarship recipients.You can apply for the scholarship here. The deadline to apply is Feb. 15.Students will be able to select a conference as part of their application. This year, we’ve added additional eligible conferences that ProPublica staff members regularly attend. Students will have the following options:AAJA, Asian American Journalists Association
What ProPublica Is Doing About Diversity in 2019
by Lena V. Groeger, Liz Sharp, Sisi Wei, and Stephen Engelberg ProPublica is committed to increasing the diversity of our workplace as well as of the journalism community more broadly, and each year we publish a report of what we’re doing about it. Here are our posts from 2018, 2017 and 2015.Our CommitmentWe believe that it is crucial to fill our newsroom with people from a broad range of backgrounds, ages and perspectives. We are committed to recruiting and retaining people from communities that have long been underrepresented, not only in journalism, but investigative journalism in particular. That includes African Americans, Latinos, other people of color, women, LGBTQ people and people with disabilities.Changes From Last YearIn the past year, here’s what we’ve done to work toward greater diversity at ProPublica and beyond.
Why Aren’t Hedge Funds Required to Fight Money Laundering?
by Heather Vogell For many years, the federal government has required banks, brokerages and even casinos to take steps to stop customers from using them to clean dirty money.Yet one major part of the financial system has remained stubbornly exempt, despite experts’ repeated warnings that it is vulnerable to criminal manipulation. Investment companies such as hedge funds and private equity firms have escaped multiple efforts to subject them to rules meant to combat money laundering.The latest attempt, which began in 2015, appears to have ground to a halt, according to sources familiar with the process.“You’ve got several trillion dollars, the management of which nobody is required to ask any questions about where that money is coming from,” said Clark Gascoigne, deputy director of the Financial Accountability and Corporate Transparency Coalition. “This is very problematic.” Stay InformedGet ProPublica’s Daily Digest. Join 100,000 discerning readers and get everything we publish by signing up for ProPublica’s Daily Digest. The Financial Action Task Force, an intergovernmental organization that seeks to combat money laundering around the world, characterized the lack of anti-money laundering rules for investment advisers, such as those who manage hedge funds and private equity funds, as one of the United States’ most significant lapses in a report two years ago.The push to regulate hedge funds and similar investment firms took off after the Sept. 11 attacks, when Congress passed the Patriot Act. Among other things, the law required federal agencies to take new steps to keep illicit money out of the U.S. financial system. The Treasury Department exempted investment firms at the time, planning to return to them after tackling other sectors. “Eighteen years ago, the Patriot Act required investment companies to install their own AML [anti-money laundering] programs,” said Elise Bean, a former staff director of the U.S. Senate investigations subcommittee who supports the proposed rule. “But Treasury has yet to enforce the law,” she said.The Treasury Department, through its Financial Crimes Enforcement Network, or FinCEN, initially proposed rules in 2002 and 2003 requiring firms like hedge funds and their investment advisers to adopt anti-money laundering measures. That attempt languished as FinCEN waited for the Securities and Exchange Commission to retool its approach, said Alma Angotti, who wrote the original proposal while at FinCEN and is now co-head of global investigations for the consulting firm Navigant. So much time passed that FinCEN withdrew the proposed rules in 2008. FinCEN then launched its second attempt to impose such regulations seven years later.That second attempt is the one that has now crawled to a virtual stop. “It’s the kind of thing that should have taken two to three years, not 17,” said Joshua Kirschenbaum, senior fellow focusing on illicit finance at the nonpartisan think tank the German Marshall Fund and a former supervisor in FinCEN’s enforcement division.Hedge funds and private equity funds can be attractive to big-dollar launderers who prize the funds’ anonymity, the variety of investments they offer and, in some cases, their use of off-shore tax and secrecy havens, experts say. After 2001, the number of annual hedge fund launches surged more than threefold, according to one report, and investments by high net worth individuals exceeded those of institutional investors.“They’re a black box to everyone involved,” Kirschenbaum said. “They’re sophisticated and can justify moving hundreds of billions.”Money launderers seek to hide illicit proceeds by making it appear they come from legal sources. Laundering hides crimes as diverse as drug dealing, tax evasion and political corruption. Experts say the massive, untracked streams of cash it creates can fuel more illegal activity, including terrorism.That’s one reason banks are required to implement protocols aimed at identifying and reporting dodgy transactions to authorities, and verifying that customers are who they say they are.FinCEN’s latest proposed rule targets investment advisers who manage funds for clients such as hedge funds. The rule would apply primarily to the largest advisers with $100 million or more in assets under management, who are required to register with the SEC.“As long as investment advisers are not subject to AML program and suspicious activity reporting requirements, money launderers may see them as a low-risk way to enter the U.S. financial system,” the proposed rule states, noting that in 2014, 11,235 advisers registered with the SEC reported roughly $61.9 trillion in assets for their clients.Foreign political corruption is one of the money laundering risks for investment advisers, Angotti said. Instead of needing quick access to their money, the ultra-wealthy involved in such graft often want to park their illicit profits somewhere safe, making them more tolerant of fund rules that can delay withdrawals for a year or more.Having federal anti-money laundering protocols is no panacea. Regulators periodically conclude that certain banks and brokerages are not abiding by various aspects of the rules. Last year, for example, regulators announced more than $2 billion in penalties against Morgan Stanley Smith Barney, Charles Schwab & Co., UBS Financial Services, CapitalOne Bank and others, according to a company that tracks such enforcement. (The companies neither admitted nor denied the allegations against them.)Experts say it’s impossible to quantify how much money may be laundered through hedge funds. And prosecutors retain the right to charge such a fund if it is proven to have participated in money laundering; but without the FinCEN rules, regulators cannot fine the fund’s managers for, say, not taking steps to prevent abuse.There are multiple reasons the attempts to adopt rules have bogged down. The principal ones include the financial industry’s cascade of requests for modifications to the rule and inertia among federal bureaucracies, according to people familiar with the process.The industry has tended to proclaim that it favors the principle of anti-money laundering rules — while simultaneously contesting many of the specifics. Several industry groups contend that the proposed rule overstates the risk that private equity funds will be used for illicit finance.“We’re very supportive of having an aggressive AML regime,” said Jason Mulvihill, general counsel of the American Investment Council, which represents private equity funds. But, he added, “if you were trying to launder money, the last place you’d want to put it is in a private equity fund” because of the industry’s standard practice of requiring investors to leave their investments in place for 10 years. And, he added, most private equity firms already have some anti-money laundering policies in place, just in case.Mulvihill’s organization has proposed that FinCEN exclude advisers who require investors to hold their investment for more than two years — a carve-out included in the original FinCEN proposal — which effectively would allow most private equity funds to remain exempt from the anti-money laundering rule.The Investment Adviser Association also supports the goal of the regulations, said Karen Barr, the group’s president and CEO. But it worries that some advisers will need to implement costly changes that aren’t warranted. Those include advisers who also have clients for whom they provide recommendations, not money management. “We think investment advisers are a low risk because they don’t hold assets,” she added. More than half have 10 employees or fewer, she said, and “the sort of cumulative effect of all these regulations on small shops is really burdensome.”In response to a request for an interview, a spokesman for the Managed Funds Association, which represents hedge funds, referred to a letter the group sent FinCEN in 2015, in which it stated that it “strongly supports adoption of the Proposed Rule.” The letter also included 25 pages of “background,” suggestions and requests for clarification.Industry concerns were not the only reason for the rule’s stasis, said former FinCEN employees who spoke with ProPublica. They said staffing, competing agency priorities and other factors also contributed. The Trump administration’s general slowdown in rule-making added to delays, they said.The rule’s implementation would also require coordination with the SEC, whose job it would be to make sure investment advisers are complying. Policing advisers has not been a major priority for the agency, which five years ago examined only 8 percent of registered advisers. The agency increased the number to 15 percent in 2017.FinCEN and Treasury spokespeople did not return calls or provide answers to questions about the proposed rule that ProPublica sent by email. Many Treasury employees are not working because of the government shutdown. A spokesman for the SEC said the agency could not answer questions about the rule until the shutdown ended.Seeing the rule flounder is vexing for Angotti. Some firms may be effectively executing their own anti-money laundering measures, she said. But without more scrutiny, she said, “who knows?” Such steps are expensive “and it requires them to turn away business,” Angotti said. “Without strong enforcement, it’s hard to get businesses to do this stuff.”
ProPublica Wins John Jay College/Harry Frank Guggenheim Award for Excellence in Criminal Justice Journalism
by ProPublica ProPublica’s multipart investigation on flawed federal and local law enforcement practices in the struggle against the MS-13 gang won the John Jay College/Harry Frank Guggenheim Award for Excellence in Criminal Justice Journalism. The multimedia package, by reporter Hannah Dreier and video journalist Nadia Sussman, was recognized in the “series” category of the prize, which is administered by the Center on Media, Crime and Justice at John Jay College.Dreier’s first story, “A Betrayal,” published in collaboration with New York magazine, chronicled the story of a teenage informant who helped police arrest fellow MS-13 gang members only to have his life endangered when law enforcement turned over his file to immigration authorities.A second piece, “The Disappeared,” in partnership with Newsday and “This American Life,” exposed the negligence and indifference of the Suffolk County Police Department on Long Island when confronted with a wave of nearly a dozen missing Latino teenagers. While the department ignored families’ concerns about their missing children, labeling the teens as runaways, it turned out that many of the missing had been murdered by MS-13 members. Within a week of publication, the Police Department announced that it will revisit cases in which families have alleged misconduct, and both of the detectives featured in our investigation are now under internal affairs review.“The enterprise and hard work of these journalists shed light on some of the darker corners of U.S. law enforcement,” said Karol V. Mason, president of John Jay College of Criminal Justice, on this year’s award winners. “Their work makes clear the continuing importance of the role played by the media in helping Americans understand today’s criminal justice challenges.”See a list of all the winners here.
Former MS-13 Member Who Secretly Helped Police Is Deported
by Hannah Dreier Henry was twice forced to join the brutal gang MS-13, first in El Salvador and then on Long Island. Twice, he tried to escape its violence. He became an informant, helping law enforcement arrest other MS-13 members.But his FBI gang task force handler broke a promise to help him, and immigration authorities revealed his identity, as we reported last year. This month, Henry was deported to El Salvador, despite warnings that MS-13 members there would hunt him down and kill him. He’s now gone into hiding.In an unusually emotional decision, a copy of which was recently obtained by ProPublica, an immigration judge, Thomas Mulligan, wrote that he was “very sympathetic” to Henry and found the 19-year-old’s testimony “truthful.” Nevertheless, Mulligan ruled that he had no choice but to deport him under U.S. and international law, because Henry had admitted to participating, albeit under duress, in two MS-13 murders when he was 12 years old, and because his chances of being tortured in El Salvador were less than 50 percent.Henry “had a very difficult childhood and was roped into a gang life from a very young age,” Mulligan wrote in his Nov. 27 decision. Yet the court “does not have the discretionary authority to take such humanitarian factors into its consideration.”His deportation illustrates how hard it has become for immigrants fleeing MS-13 to find asylum in the U.S., even if they have shown a commitment to helping law enforcement. A new Trump administration directive that immigrants targeted by gangs should not be granted special status has increased the odds against them. Run by the U.S. Department of Justice, immigration courts are required to follow its guidance. Get Our Top InvestigationsSubscribe to the Big Story newsletter. Don’t miss out on ProPublica’s next investigation. Sign up and get the Big Story email whenever we break news. Issued in June 2018, while Henry was in detention, this guidance “flavors the whole ruling” in his case, said Lenni Benson, who teaches immigration law at the New York Law School and reviewed Mulligan’s decision.She said the judge could have granted Henry asylum if he believed there were mitigating factors in the murders. The U.S. has allowed child soldiers who committed serious crimes under duress to stay in the country, she said. “In U.S. law, for a child to have culpability as an adult, you generally have to be over the age of 14,” she said. “What’s important is that the judge says, ‘I do believe you.’”Henry, whose last name is being withheld for his safety, was raised by his grandmother in El Salvador after his parents moved to the U.S. when he was a small child. He was recruited into MS-13, which enlisted him on the condition that he kill a rival gang member. Henry held a gun while an older MS-13 member put his hand over Henry’s and pulled the trigger. Soon after, he helped kill a man with a machete, on the instructions of a gang leader who threatened to kill him if he didn’t obey. “He was pressured into killing two individuals when he was only twelve years old and was forced to witness many other forms of violence and cruelty that would be extremely traumatizing for any human being,” Mulligan wrote.Henry vowed to break with the gang and came to live with his mother on Long Island when he was 15. But there were MS-13 members on Long Island, too. They recognized Henry and reminded him that gang membership is binding until death. Fearing for his life, he rejoined.In desperation, Henry wrote a letter to his English teacher, describing his gang history, his constant fear and his yearning for a fresh start. A school-based police officer introduced him to Angel Rivera, a Suffolk County homicide detective assigned to the FBI’s Long Island Gang Task Force. Believing authorities would help him start a new life, Henry provided information about other MS-13 members.Despite Henry’s cooperation, police turned his file over to Immigration and Customs Enforcement. ICE detained him, identified him in a document as an informant and jailed him alongside those he informed on. The Department of Homeland Security’s Office for Civil Rights and Civil Liberties is conducting an ongoing investigation into ICE’s treatment of Henry.Mulligan criticized Rivera for “mistakenly” assuring Henry that he would help him. “This was poor police work and misled” Henry, he wrote. At the hearing, Rivera said Henry had indeed been trying to leave the gang, but the information he gave was not very useful. Rivera did not respond to requests for comment.Asylum hearings often take less than an hour, but Henry’s lasted for six sessions over seven months. The school police officer, George Politis, testified that if MS-13 found out what Henry had done, “I do believe he would be killed.” Henry’s English teacher and a school administrator testified that he had sought their help.ICE portrayed Henry as a danger to the community who was only pretending to cooperate with law enforcement. Under questioning by an ICE lawyer, Henry testified at length about a dozen murders he witnessed in El Salvador, including one person being fed alive into a wood chipper. He described watching the gang torture a member-turned-informant by pulling out his fingernails. “He started screaming for us to kill him, because the pain was too much,” Henry said in a whisper in the courtroom.Mulligan was unconvinced by ICE’s arguments. He found Henry “generally credible” and his desire to leave the gang “believable.” However, he said that under U.S. law, a person who has committed a serious crime cannot receive asylum, and so Henry was disqualified by the two murders in El Salvador.Henry had also asked to stay in this country under the 1987 United Nations Convention Against Torture. The treaty, which the U.S. has signed, bans deporting people who are “more likely than not” to be tortured if they returned home.Mulligan said Henry’s fears of being tortured in El Salvador by MS-13 or police death squads were understandable. Still, he said, the Salvadoran government is making progress against gangs and extrajudicial killings, and so Henry did not prove the probability of torture.After the judge ruled against him, Henry had to decide whether to accept deportation. Immigration law experts said that an appeal might well have succeeded.“It’s unusual to see that level of sympathy expressed while also denying everything. I would be very optimistic about that appeal,” said Heather Axford, supervising staff attorney at Central American Legal Assistance. Axford said she has gotten several similar cases reversed in federal courts.Henry’s family encouraged him to stay and fight, because they worried that his return to El Salvador would endanger not only him but his relatives, since MS-13 has been known to target families who shelter snitches. But an appeal would have taken years, and Henry felt his life was at risk in his New Jersey detention center. He said gang members detained there were becoming increasingly adamant that they knew he was an informant, and a friend on Long Island and relatives in El Salvador received threats.Henry’s health was also deteriorating. In the gang, his nickname had been “Triste,” Spanish for “sad.” In recent months, the jail guards gave him a new nickname, “Skinny.” Two of his asylum hearings were postponed because he was ill. Henry took up yoga to try to deal with his mounting anxiety and worked a night shift in the jail kitchen because he was afraid to sleep in the dark with gang members around him.In the end, Henry accepted the ruling and on Jan. 10, he was deported. His lawyer, Bryan Johnson, arranged for a team to meet him at the airport in El Salvador and get him to Europe. “Henry ended up a refugee of both El Salvador and the United States,” Johnson said. Out of concern for Henry’s safety, ProPublica held this story until he left El Salvador.Drawing on tens of thousands of dollars donated by readers to a fund created by Johnson, Henry is now setting up a new life in a European city, where he is seeking asylum. He plans to work during the day and to finish high school. He said he was grateful to readers for allowing him to create a makeshift witness protection system for himself. “I have broken with the gang forever now, that’s one good thing to have come of all this,” he said. “I hope I helped people see how hard it is to make that kind of change. You never know what’s going to happen, but the important part is to try.”
Correction: Stories on Insanity Defense Included Factual Errors and Inaccurate Data
by ProPublica and The Malheur Enterprise Over the past year, the Malheur Enterprise and ProPublica published a series of stories about Oregon’s handling of people found “guilty except for insanity.” The reporting was prompted by the case of Anthony Montwheeler, an Oregon man who was charged in 2017 with killing two people shortly after his release by Oregon’s Psychiatric Security Review Board.The stories prompted calls for reform by state officials and lawmakers who convene next week for this year’s meeting of Oregon’s Legislature.An inquiry from a reader prompted ProPublica to review the underlying data and assertions in stories published in November and December. We found errors of fact and analysis that need to be corrected.One key assertion in the series was that insanity defendants are charged with crimes after they are freed more frequently than people freed after serving prison sentences.A story originally published Nov. 14 and updated Dec. 12 said that 23 percent of defendants found “guilty except for insanity” were charged with felonies within three years of their release. The article said that only 16 percent of people Oregon freed from prison in a comparable period were charged with felonies within three years.Both figures are inaccurate, as is the assertion that insanity defendants have a higher recidivism rate than those released from prison.ProPublica staff reviewed all 419 cases of individuals found “guilty except for insanity” for felony charges and released by the PSRB from Jan. 1, 2008, to Oct. 15, 2015. Our review showed that the actual percentage of people released by the PSRB and charged with felonies within three years was 16 percent. (The original story and our review relied on data compiled by a public records aggregator that may not be complete.)Our original count of felonies was inflated by multiple mistakes. In some instances, we incorrectly tallied misdemeanor charges as felonies. In others, we mistakenly included people charged with felonies outside the three-year window.We also misstated the recidivism rate among people released from Oregon’s prisons. The state does not track the number of people charged with felonies after they are freed. The rate we cited in the story — 16 percent — arose from a misreading of state records.It is possible to compare the rates of felony convictions between people freed from prison and from PSRB oversight. Had we done so, the story would have stated that 8 percent of people released by the PSRB were convicted of new felonies in Oregon within three years, compared with 29 percent of those freed from prison.Our stories included other factual errors. A story on Nov. 14 said that “Oregon releases people found not guilty by reason of insanity from supervision and treatment more quickly than nearly every other state in the nation.” Our review of the reporting on which this statement was based found that it does not support the characterization that Oregon moves “more quickly than nearly every other state.”Another story published on Nov. 14 quoted a 1986 study by Dr. Joseph Bloom as finding that 16 percent of people released by Oregon’s PSRB between 1978 and 1980 had been arrested for felonies after release.In fact, Bloom’s study did not include this statistic. It did say that 42 percent of those released by the PSRB were subsequently arrested for either felonies or misdemeanors; it offered no further breakdown.The story quoted the study as saying that 42 percent of those released by the PSRB were arrested within 18 months of being freed. The correct figure is 37 percent. The story also misstated how many post-release records Bloom and his co-authors analyzed; it was 123 people, not 144.The same story mischaracterized a study analyzing recidivism among people freed by Connecticut’s Psychiatric Security Review Board, saying that 16 percent of the people freed by the board were later re-arrested, with about a third for felonies. In fact, the study reported that at least 17 of the 32 people were arrested for felonies after their release — more than 50 percent. The story incorrectly stated how many individuals’ outcomes were analyzed in the study. It was 196, not 215. In another story, we said that Connecticut’s board had far fewer people under its supervision than Oregon’s — 20 as opposed to 500. The correct figure for Connecticut was 151 in 2016-17.In stories published in November and December, we attempted to calculate the number of people released by the PSRB who attacked others, asserting that they assaulted police, first responders, family members and service workers. While there were violent incidents involving each of these categories, we could not replicate the precise numbers cited in those stories.The errors in our stories cloud what has been an increasingly informed debate in Oregon about possible flaws in the state’s laws and procedures.The board’s only published statistic on recidivism — that 0.46 percent of people under supervision commit crimes — does not capture the reality of what happens once that supervision ends. The board has acknowledged that it does not track those outcomes.We did. In reporting these stories, we identified 526 people who were found guilty except for insanity on felony charges who were released by the PSRB between 2008 and 2017. (In some stories, we looked at the recidivism rates for a smaller group, the 419 people who had been freed before Oct. 15, 2015. They were free for at least three years, a frequently used metric in academic studies of recidivism.)Of the 526 released over the decade, records show that 115 were subsequently charged with felonies; 84 with misdemeanors. According to Oregon records, 16 individuals were charged with serious crimes of violence, including murder, rape, attempted sexual abuse of a minor, kidnapping, sexual abuse, aggravated assault and attempted murder.The errors in our stories are regrettable, particularly at a time when the accuracy and fairness of news organizations is under constant assault. We hope that Oregonians can look beyond them to the essential findings described above.
Long-Lost Records Surface in Wrongful Conviction Case, Detailing Lead Detective’s Fondling of Informants
by Christian Sheckler, South Bend Tribune, and Ken Armstrong, ProPublica Newly released documents show the lead detective in an Elkhart, Indiana, police investigation that led to a pair of wrongful convictions was forced to resign because of sexual misconduct with an informant, the details of which the city had failed to disclose for more than 10 years.The former detective, Steve Rezutko, was the main investigator in the convictions of Keith Cooper and Christopher Parish, a case that was chronicled by the South Bend Tribune and ProPublica last year and was replete with errors by police, the prosecution and judges.The two wrongfully convicted men had been seeking the documents on Rezutko’s resignation as they pursued lawsuits against the city and individual officers. But they were repeatedly told the documents couldn’t be found, according to trial transcripts and other court records.The difficulties they faced getting records are similar to those faced by the Tribune and ProPublica. Local government agencies, including the Elkhart Police Department, denied or delayed access to some public records and, in other instances, released files that were incomplete. Stay InformedGet ProPublica’s Daily Digest. Join 100,000 discerning readers and get everything we publish by signing up for ProPublica’s Daily Digest. Elliot Slosar, Cooper’s attorney, called the city’s failure to disclose the Rezutko records before now “shocking,” and he has asked a judge to issue sanctions against Elkhart in a pending lawsuit.Slosar said the records on Rezutko — which include one informant’s allegation that Rezutko paid her for oral sex — are critical to Cooper’s claim that he was framed, because the information “undermines Rezutko’s credibility and demonstrates his willingness to induce witnesses and informants to cooperate on cases.”In the 20-plus years since Cooper and Parish were found guilty in a 1996 robbery in which a man was shot and seriously wounded, the prosecution’s evidence has unraveled while being scrutinized in one criminal or civil proceeding after another. Parish had his conviction overturned and received a $4.9 million settlement. Cooper received Indiana’s first pardon based on innocence and filed a lawsuit of his own.But one mystery has lingered: Why, exactly, was the case’s lead detective forced to resign in 2001, and where were the records that documented the reason he was pushed out?Now, the city has disclosed files of two internal investigations that concluded Rezutko had inappropriate sexual contact with informants, at least one of whom he admitted paying.The city released the files to Slosar this month in Cooper’s ongoing federal lawsuit against Elkhart and several former officers. According to the motion filed by Slosar on Wednesday, the new documents were disclosed by the city’s lawyers on Jan. 4, after repeated letters demanding them.“Perhaps most troubling of all, the City refuses to provide any explanation regarding its withholding of the documents,” Slosar wrote. “Defendants’ silence is telling, as the withholding is indefensible.”Vlado Vranjes, the corporation counsel for Elkhart, did not respond to phone and email messages seeking comment.Martin Kus, an attorney representing Elkhart in the Cooper case, told a reporter on Thursday: “Because it’s pending litigation, I’m not going to talk about it. This will be responded to, and it will be a detailed response. I would certainly invite you to stay tuned.”When a reporter called Rezutko on Thursday, he declined to discuss the allegations about his conduct, referring questions to his lawyer. That attorney, Andrew Williams, did not respond to interview requests left by phone and email.Cooper has said he was wrongfully convicted largely because police showed witnesses suggestive photo lineups and obtained a false statement from a jailhouse informant who claimed Cooper confessed to the crime. His lawsuit maintains the Police Department’s policies or practices enabled or condoned misconduct by officers.By law, prosecutors must disclose information that could undermine the state’s case. Slosar said his law firm is now investigating whether critical records about Rezutko’s misconduct were withheld in other cases where Rezutko’s investigative work and credibility were at issue.Cooper is seeking either a default judgment in which the city would be found automatically liable, or for a judge to instruct a future jury the city had improperly withheld information about Rezutko’s disciplinary history for years.Newly Disclosed RecordsIn his motion for sanctions, Slosar noted the city had earlier disclosed a summary sheet of disciplinary actions against Rezutko. The sheet listed nine instances in which Rezutko had been disciplined. Seven had descriptive details. Two, Slosar noted, did not.The summary of a three-day suspension that Rezutko received in 1996 said only: “????” As for Rezutko’s resignation in 2001, the summary said simply: “Charge of Malfeasance Sustained.”The records released this month fill in those blanks.In July 1996, Elkhart’s police chief at the time suspended Rezutko for three days because of “improper touching” with a female informant in Rezutko’s squad car, while he was on duty.The woman told police that Rezutko touched her breasts and rubbed her leg, and that he placed her hand on his penis.When questioned during an internal affairs investigation, Rezutko said he was seeking information from the woman about a murder case. He admitted he and the woman touched each other. He said he gave the woman a total of $20, but he “never intended to buy sex or purchase sex.”“I didn’t know how to remove myself from that situation and keep her calling me with information,” he said. “So, I thought for now, we do a little of this … she’s happy, I’m happy and we go on about our business.”In the 2001 investigation, a woman who acted as an informant for Rezutko told police that she had performed oral sex on Rezutko for $30 or $40, and that the two had touched each other sexually. Rezutko, when questioned by an internal affairs lieutenant, denied the oral sex, but he admitted the two touched each other when he gave her a ride home one day. “[W]e fondled one another and uh, I let her out in the alley behind her house,” Rezutko said.He described it as a “quick short thing” and said his actions were “inappropriate.”Parish LawsuitWhen Parish filed his lawsuit in 2007, the lack of documentation about Rezutko’s departure confounded even the judge overseeing the trial.“We sought the documents. Elkhart didn’t have them,” Parish’s attorney, Jon Loevy, told the judge.“Somebody has to know why he resigned,” U.S. District Judge Rudy Lozano said.Rezutko, when deposed in 2008 in the Parish lawsuit, said he was not told of anything specifically he had done wrong — the investigation had something to do with sex, he said — or given the names of those accusing him. But the records released this month show Rezutko was provided names and details.When the lawsuit went to trial in 2010, the judge granted a request by attorneys for Rezutko and Elkhart to disallow questioning about the officer’s disciplinary history.In an interview this week, Slosar said his legal team was considering whether to re-examine Parish’s settlement in light of the newly disclosed records from Elkhart: “The real issue would be, by withholding all these documents, did the city fraudulently induce Mr. Parish into a settlement that should have been worth more?”
As the Cabinet Churns: Who’s Still Standing Among Trump’s Top Advisers
by Rob Weychert and Anjali Tsui
Austin Police Department Orders Deeper Investigation After Audit Finds It Misclassified Cleared Rape Cases
by Mark Greenblatt and Mark Fahey, Newsy, Bernice Yeung, ProPublica, and Emily Harris, Reveal from The Center for Investigative Reporting WASHINGTON — The Austin Police Department will ask a third party to examine how it handles rape investigations from start to finish, following a state audit that found some cases were misclassified in a way that made it appear the department had solved more cases than it had. Austin Police Chief Brian Manley at a press conference in March 2018. (Eric Gay/AP Photo)The announcement comes as the APD released the full findings of a review by the Texas Department of Public Safety, which audited the department following an investigation by Newsy, Reveal from The Center for Investigative Reporting and ProPublica. The news report showed how Austin and dozens of other police departments across the country frequently use “exceptional” clearances to close rape cases, increasing clearance rates while leaving suspects on the streets.The initial findings from the DPS audit, which looked at three months of Austin rape reports from 2017, concluded that nearly one-third of the cases the APD had exceptionally cleared were misclassified.The full report reveals Austin police often failed on multiple fronts. To clear a case exceptionally, the FBI requires police to have enough evidence to make an arrest, to know who and where the suspect is, and for there to be a reason outside their control that prevents an arrest. Cases that fail to meet all four requirements cannot be cleared exceptionally. The DPS report shows that out of 95 exceptionally cleared rapes auditors reviewed, Austin police had failed to meet the FBI requirements 30 times. In 17 of those cases, police failed to meet at least two of the FBI’s tests. In five cases, police did not meet any of the four criteria.“While we’re glad this audit has been completed, it confirms that we have serious issues and we need to take quick action that corrects the patterns that allowed these cases to be handled improperly,” Austin Mayor Steve Adler said in a joint statement with Mayor Pro Tem Delia Garza. Stay InformedGet ProPublica’s Daily Digest. Join 100,000 discerning readers and get everything we publish by signing up for ProPublica’s Daily Digest. At a press conference Wednesday, Austin Police Chief Brian Manley said the department does not yet know who the third-party investigator will be, but he intends for the entity to look into how his department investigates rape from the earliest stages when a 911 call is received until a case is closed by investigators.“We will welcome this outside review,” he said. “If there are things we can be doing differently or better to implement best practices, we will do so and we will look forward to doing so.”Manley also announced he had ordered other changes, including the addition of another supervisor to the sex crimes unit and new policies for clearing crimes.He said the APD has already completed the retraining of its detectives, a task the department said this month it would do after receiving preliminary findings from the state’s audit. Manley said one of the most significant reforms will be the introduction of a new computer system that requires detectives to answer four questions to show a case meets the FBI requirements before they can clear a case exceptionally.The announcement of a new, more comprehensive review of the entire rape investigation process comes in the wake of pressure from rape survivors, advocates and City Council members following the investigation by Newsy, Reveal and ProPublica.Some advocates were skeptical about Austin police choosing who investigates the department’s handling of rape cases.“APD should not get to decide who grades them,” said Kristen Lenau, co-founder of the Survivor Justice Project. “In order for this to be a truly independent evaluation that builds much needed trust in this community, survivors and advocates need to be a part of the selection process.”The department’s decision pre-empts an anticipated resolution from City Council member Alison Alter, who has said she is working with advocates to determine the most effective, credible way to dig into why so many rape investigations end with no arrest in Austin. The police department reported a 2016 rape clearance rate of 51 percent, well over the national average of 37 percent. But only 17 percent of rape investigations led to an arrest, according to internal records reviewed by Newsy.A spokeswoman for Alter said she expects her resolution to be posted for public review by late Friday and to be voted on at the council’s next meeting on Jan. 31.The spokeswoman said the resolution will direct the city manager to conduct a retrospective, comprehensive evaluation of the last seven years of documented sexual assault cases in Austin, to be carried out by a nongovernmental entity, one that doesn’t have a relationship with the APD.Alter’s spokeswoman says the resolution “will not solely gather data, but also will direct the city manager to evaluate the health of our public safety system” and report back to the council with recommendations for how to better align with national best practices.Many communities facing similar problems with rape investigations have adopted the “Philadelphia Model,” a process initiated by former Philadelphia Police Commissioner John Timoney, who approached the Women’s Law Project and other community advocates to ask for help in reviewing cases and restoring community faith in the police.When Newsy, Reveal and ProPublica showed Manley the results of our data analysis last fall, he maintained that APD was correctly using exceptional clearance, pointing to an internal review.However, the review — obtained by KXAN-TV in Austin — shows that police found about one-quarter of cases were improperly classified. Still, police maintained to us that they had discovered no problems until this week. Manley pointed to confusion among those on his staff who did the audit.“I don’t believe they recognized the significance of the findings,” Manley said. “Most of us are police officers and not a lot have a background in statistics.”
The FBI Says Its Photo Analysis Is Scientific Evidence. Scientists Disagree.
by Ryan Gabrielson At the FBI Laboratory in Quantico, Virginia, a team of about a half-dozen technicians analyzes pictures down to their pixels, trying to determine if the faces, hands, clothes or cars of suspects match images collected by investigators from cameras at crime scenes.The unit specializes in visual evidence and facial identification, and its examiners can aid investigations by making images sharper, revealing key details in a crime or ruling out potential suspects.But the work of image examiners has never had a strong scientific foundation, and the FBI’s endorsement of the unit’s findings as trial evidence troubles many experts and raises anew questions about the role of the FBI Laboratory as a standard-setter in forensic science.FBI examiners have tied defendants to crime pictures in thousands of cases over the past half-century using unproven techniques, at times giving jurors baseless statistics to say the risk of error was vanishingly small. Much of the legal foundation for the unit’s work is rooted in a 22-year-old comparison of bluejeans. Studies on several photo comparison techniques, conducted over the last decade by the FBI and outside scientists, have found they are not reliable. A side-by-side photo comparison of bluejeans from a 1996 robbery and bombing case published with an article on the bureau’s clothes identification method. (Journal of Forensic Sciences)Since those studies were published, there’s no indication that lab officials have checked past casework for errors or inaccurate testimony. Image examiners continue to use disputed methods in an array of cases to bolster prosecutions against people accused of robberies, murder, sex crimes and terrorism.The work of image examiners is a type of pattern analysis, a category of forensic science that has repeatedly led to misidentifications at the FBI and other crime laboratories. Before the discovery of DNA identification methods in the 1980s, most of the bureau’s lab worked in pattern matching, which involves comparing features from items of evidence to the suspect’s body and belongings.Examiners had long testified in court that they could determine what fingertip left a print, what gun fired a bullet, which scalp grew a hair “to the exclusion of all others.” Research and exonerations by DNA analysis have repeatedly disproved these claims, and the U.S. Department of Justice no longer allows technicians and scientists from the FBI and other agencies to make such unequivocal statements, according to new testimony guidelines released last year.Though image examiners rely on similarly flawed methods, they have continued to testify to and defend their exactitude, according to a review of court records and examiners’ written reports and published articles.ProPublica asked leading statisticians and forensic science experts to review methods image examiners have detailed in court transcripts, published articles and presentations. The experts identified numerous instances of examiners overstating the techniques’ scientific precision and said some of their assertions defy logic.The FBI declined repeated requests for interviews with members of the image group, which is formally known as the Forensic Audio, Video and Image Analysis Unit. Get Our Weekly DispatchUpdates on what our newsroom is covering and uncovering. Sign up to receive weekly updates on what our newsroom is covering and uncovering. ProPublica provided the bureau written questions in September and followed up in November with a summary of our reporting on the bureau’s photo comparison practices. The FBI provided a brief prepared response last month that said the image unit’s techniques differ from those discredited in recent studies. It said image examiners have never relied on those methods “because they have been demonstrated to be unreliable.”But the unit’s articles and presentations on photo comparison show its practices mirror those used in the studies.The bureau did not address examiners’ inaccurate testimony and other questionable practices.Judge Jed Rakoff of the United States District Court in Manhattan, a former member of the National Commission on Forensic Science, said the weakest pattern analysis fields rely more on examiner intuition than science. Their conclusions are, basically, “my hunch is that X is a match for Y,” he said. “Only they don’t say hunch.”Rakoff said that image analysis hadn’t come before him in court and wasn’t taken up by the commission but said that investigators, prosecutors and judges should make sure evidence is reliable before using it.Scandals involving other areas of forensic science have shown the danger of waiting for injustices to become public to compel reform, Rakoff said.“How many cases of innocent people being wrongly convicted have to occur before people realize that there’s a very broad spectrum of forensic science?” Rakoff asked. “Some of it is very good, like DNA. Some of it is pretty good, like fingerprinting. And some of it is not good at all.”Details on FBI caseloads and testimony are not readily available to the public. As such, there is no way to determine exactly how often image examiners testify and when their photo comparisons serve as central evidence in prosecutions. In court, examiners have said they analyze photos in hundreds of cases a year, according to trial transcripts.To try to identify some of those cases, ProPublica searched court databases and found more than two dozen criminal cases since 2000 in which documents mentioned the FBI’s image examiners, nearly all cases that were appealed and thus had a substantial written record. Few criminal convictions, though, make it to an appeal.None of the appealed cases led to judges reversing convictions, nor has evidence emerged to show that the defendants were innocent. Still, flaws in forensic science techniques often emerge decades after they’ve been allowed by judges and been used to secure convictions.The problems with the FBI’s photo comparison work plague other subjective types of forensic science, such as fingerprint analysis, microscopic hair fiber examination and handwriting analysis, said Itiel Dror, a neuroscientist who trains U.S. law enforcement on cognitive bias in crime laboratories. Dror is a researcher at University College London, frequently teaching at agencies like the FBI and New York Police Department on ways to minimize personal beliefs from influencing casework.Even DNA analysis can be swayed by bias, Dror said. But pattern-matching fields like image analysis are especially vulnerable. Image examiners’ lab work is, generally, only seeing if evidence from a suspect “matches” that from a crime scene.“Many of them are more concerned by what the court accepts as science rather than being motivated by science itself,” Dror said.A Plaid Shirt, and Staggering OddsThe image unit has characterized its lab work as akin to that of biologists and chemists. “Just as DNA examiners can point to repeating base pair matches to justify an identification, image examiners must be able to point to actual physical features on a face or body to justify their conclusions in court,” an FBI publication from 2008 read.A bank robbery trial 16 years ago was a watershed for such testimony. Prosecutors charged an ex-convict with robbing a string of banks across South Florida over two years. Richard Vorder Bruegge, an FBI image examiner, told jurors that the button-down plaid shirt found in the defendant’s house was the exact shirt on the robber in black-and-white surveillance pictures. The examiner said he matched lines in the shirt patterns at eight points along the seams.The prosecutor asked Vorder Bruegge what were “the odds in which two shirts would be randomly manufactured by the company, having all those eight points of identification lining up exactly the same?”Only 1 in 650 billion shirts would randomly match so precisely, Vorder Bruegge said, “give or take a few billion.” An exhibit showing a 2001 photo comparison of a bank robber’s shirt in surveillance video to a shirt seized from a defendant’s home and modeled by FBI Lab examiner Richard Vorder Bruegge. The red arrows point to shirt features that allegedly match. (FBI Forensic Audio, Video and Image Analysis Unit, via Wilbert McKreith)Prosecutors had presented jurors with days of circumstantial evidence against the ex-convict, Wilbert McKreith, before Vorder Bruegge took the stand. Witnesses had seen a burgundy-colored sedan similar to McKreith’s Mercedes-Benz outside a majority of the robberies. And McKreith made cash purchases totaling about $10,000 during the period the robberies occurred, even though he had no steady income. (He said he borrowed money from his parents.)But when the jury convicted McKrieth, who is serving a 92-year prison sentence, Vorder Bruegge’s photo comparison and statistics were the only evidence that had directly connected the defendant to the crime spree.The statistics were also preposterous, seven statisticians and independent forensic scientists told ProPublica.The features Vorder Bruegge matched might be common in plaid shirts, making them of little value for identifying the garment, said Karen Kafadar, chair of the statistics department at the University of Virginia. No one has studied the alignment of lines on men’s button-down shirts. There is no database of shirt features allowing Vorder Bruegge to calculate the probability of a random match, a statistic used to explain results from DNA typing.Kafadar has worked in forensic science validation for the past two decades, contributing to a groundbreaking study of the FBI’s bullet lead analysis. She said Vorder Bruegge’s statements are brazen.“Somehow they feel perfectly entitled to make outrageous statements,” said Kafadar, who said the 1-in-650-billion claim “makes about as much sense as the statement two plus two equals five.” In this photo comparison exhibit, Vorder Bruegge placed white arrows pointing to lines he contended helped identify the defendant’s shirt as the one worn by the robber in a December 2000 bank heist. (FBI Forensic Audio, Video and Image Analysis Unit, via Wilbert McKreith)Research has bolstered some of the image unit’s practices. Last year, a federal study determined that professional image examiners matched faces more accurately than untrained students — providing the first scientific basis for a photograph comparison field.However, in the past six years, FBI examiners participated in preliminary tests on techniques for identifying faces and hands in pictures with skin features — freckles, folds and creases, moles and blemishes. In both, participants couldn’t consistently mark the features to use in an analysis. They marked a certain number of creases or freckles on a face or hand the first time and came up with very different counts the next.Those studies found alarming inconsistency. If examiners cannot mark the same features each time they use a technique, “then you can’t rely on the result, I think that’s what any statistician would say,” said David Kaye, a Penn State University law professor and expert on DNA analysis. “It’s not a reliable measure.”The FBI response to ProPublica said the image unit’s own methods differ from those in the studies. But the unit’s published descriptions of its practices show they are effectively the same as the ones tested by researchers.Image examiners testified about conclusions based on these methods as recently as last year. The lab has not conducted, or has not published, similar research on its techniques for matching clothes or cars in pictures.In 2014, an FBI face comparison contributed to a wrongful arrest in Colorado, detailed in an article by The Intercept. But image analysis has otherwise drawn little scrutiny.Such deficiencies rarely matter in court. Few defense lawyers receive training in science or statistics, leaving them ill-suited to dispute expert witnesses. Examiners from Quantico seem “virtually unchallengeable” on the stand, said Lara Bazelon, a former federal public defender who is now a University of San Francisco law professor.“I think everyone looking back has regrets about things that they’ve done as a lawyer,” Bazelon said, “but one of mine certainly is accepting a lot of the science that I got in discovery as, ’Well, it came from the FBI Lab and it sounds really sophisticated, so it’s probably true.’”For the Nation’s Crime Lab, a ReckoningThe FBI opened the laboratory in 1932, and for the next 60 years its forensic science was more revered than scrutinized.Then, in August 1995, lawyers for a defendant on trial in the bombing of the World Trade Center called Frederic Whitehurst, a chemist on the bureau’s explosives unit, to testify. Whitehurst told the court his lab colleagues had produced inaccurate reports in the case.He had complained within the lab for years about unqualified explosives examiners and shoddy scientific practices. The FBI mostly dismissed the concerns and, Whitehurst said, reassigned him to a different unit as retaliation. So he went public — on the stand and to the press.The Justice Department’s Office of the Inspector General was already investigating Whitehurst’s allegations. Its final report, released in 1997, confirmed the explosives unit had “significant instances of testimonial errors, substandard analytical work, and deficient practices” in several cases, including the World Trade Center and Oklahoma City bombings.Officials at the bureau had overlooked the explosives unit’s bad practices and didn’t move urgently to fix them, Bill Esposito, then FBI deputy director, said at the time. “While the issues raised by the Inspector General concern only a small part of the total volume of work done annually in the lab, we recognize that even one problem is too many.”The lab already knew about a second problem.As the explosives unit became a scandal, the Justice Department began reviewing the top FBI hair and fiber examiner’s work on hundreds of cases.The in-house review looked at examiner Michael P. Malone’s lab work and sworn statements in more than 250 cases. It found Malone routinely misrepresented his results as valid and his error rate as less than 1 percent. Justice Department officials did not make the finding public, nor did it notify lawyers for the defendants in those cases, or scrutinize the rest of the hair unit, reporting by The Washington Post revealed in 2012.Advances in DNA analysis technology were rattling many forensic science fields, revealing wrongful convictions won with other crime-lab evidence. Microscopic hair comparisons were particularly vulnerable to debunking because follicles contain genetic material. For decades, examiners told jurors that crime scene hairs came from defendants. DNA analysis later proved the hairs did not in dozens of cases. (The FBI replaced microscopic hair comparisons with DNA in 1999.)Prompted by the Post’s investigation, the Justice Department finished an expansive review of hair comparison testimony. Hair examiners matched defendants to follicles in 268 trials; all but 11 contained scientific error. They were more conservative in their written lab reports, about half of which included a misstatement. Like other forensic science reckonings, the public disclosure came years after the FBI stopped relying on the method.Another unit at the FBI Lab had for decades matched bullets by their chemical compositions.FBI chemists asserted the mix of elements in a round could determine whether its lead matched ammunition seized from defendant’s cars and homes. In court, they said crime scene rounds were “indistinguishable” from the suspects’ bullets, even suggesting they came from the same box. The bureau had no science to back its claims.Facing court challenges, the FBI in 2002 asked the National Academies of Sciences, Engineering and Medicine to study the methods and value of bullet lead analysis.The report by researchers in 2004 said the examiners’ testimony went further than the chemical analysis allowed. “The available data do not support any statement that a crime bullet came from a particular box of ammunition,” the academies’ report said.Further, one bullet could match anywhere from 12,000 to 35 million other bullets. FBI officials discontinued lead analysis a year later.Also in 2004, fingerprint examiners wrongly matched a print from a train bombing in Spain to a lawyer and Muslim convert in Portland, Oregon. Agents arrested and detained the lawyer for more than two weeks, without criminal charges, before Spanish law enforcement disproved the FBI’s conclusion.Following each scandal, the bureau moved to shutter the discredited unit or correct the disputed method. It did not comprehensively search past casework for convictions based on the lab’s inaccurate evidence, nor did it evaluate whether other units had the same bad practices — unproven techniques, fabricated error rates, misleading testimony.“The FBI Lab is a fixer,” Whitehurst said in an interview last year. Examiners have many incentives to find evidence that helps a conviction, he said.In 2009, the National Academies of Sciences published a wide-ranging evaluation of the forensic sciences and their deficiencies. It recommended crime labs be moved out of the police and prosecuting agencies that have always run them. To date, Houston and Connecticut are the only jurisdictions that have made their crime labs independent of the police. The Justice Department never publicly considered separating Quantico from the FBI.A 2016 report by former President Barack Obama’s council of science and technology advisers highlighted the lack of validation in several pattern evidence fields. It also called on the FBI to dramatically increase spending on studies to prove its methods. U.S. Department of Justice officials rejected most of the advisers’ conclusions. Federal law enforcement has doubled down on unproven forensic science.In 2017, then-Attorney General Jeff Sessions closed the National Commission on Forensic Science, ending an effort to set standards for crime laboratory practices. The department also stopped its internal review of testimony from FBI pattern evidence units.In a law review article last year, two high-ranking FBI Lab scientists dismissed validation concerns as uninformed. They wrote that, already, “every forensic discipline practiced in an accredited forensic laboratory must demonstrate that it is reliable, accurate, and fit for its intended use.”Quantico is, indeed, accredited. But the lab has never proven photo analysis is reliable. It has increasingly done the opposite.Science and the Supreme CourtFrom its beginnings, photo comparison has been a craft and FBI image examiners more like tradespeople than scientists. Methods are taught through apprenticeships, with new examiners doing casework alongside lab veterans.After Congress passed a law in 1968 requiring banks to have security equipment, most banks installed surveillance cameras. Meanwhile, Eastman Kodak sold the public millions of pocket-size cameras and amateur photographers took billions of exposures of life and, occasionally, of crimes.Pictures flooded the bureau as evidence. The lab formed a team called the Special Photographic Unit to find information in images and manage the bureau’s inventory of 35 mm cameras. No scientific background or advanced degrees were required.The analysis was rarely straightforward, said Gerald Richards, who led the photo unit in the 1980s and early 1990s and is now retired. Photographs were fuzzy and poorly lit, especially those from bank cameras. Robbers often wore masks. When a criminal’s face was obscured, they looked at the ears, shirts, pants and shoes.Fingerprint examiners focus only on the swirls and deltas on human fingertips. Hair fiber examiners only analyzed hairs and fibers.But image examiners created a tapestry of techniques that cross into photography, physics, clothes manufacturing, dermatology, auto body design, human aging and statistics. Still, the unit requires examiners to study photography and little else before working on criminal cases. There weren’t even formal courses on photo comparison until 2005, court records show.Judges long accepted examiners’ testimony as expert opinion without much debate. Agents were experts because they worked at the FBI Lab.Then, in June 1993, the Supreme Court transformed the law around scientific evidence. The court’s ruling in Daubert v. Merrell Dow Pharmaceuticals Inc. said federal judges need to assess “whether the reasoning or methodology underlying the testimony is scientifically valid” before allowing it at trial.Methods should be tested, the opinion said, and results should be based on reliable data that includes error rates. None of the pattern evidence fields met that standard. The Daubert decision posed an existential threat to many forensic sciences.A month later, the image unit dodged a legal mine set by Daubert. The 9th U.S. Circuit Court of Appeals heard arguments on a bank robbery conviction in Southern California. A jury had convicted James D’Ambrosio based in large part on an FBI image analysis of denim jeans in surveillance pictures. A scientist for the defense testified that clothing comparison was unproven. The appellate court upheld D’Ambrosio’s conviction without weighing the scientific merit.Clothes comparison escaped without damage. But all of the unit’s methods seemed vulnerable to challenge. The image unit was filled with former field agents and lab technicians, few of whom held advanced degrees. None had a background in research or academic publishing.That changed in 1995 when the FBI hired Vorder Bruegge, the scientist whose testimony about plaid shirts would help prosecutors obtain a conviction in the string of Florida bank robberies.Before the FBI, Vorder Bruegge, then 31, had spent the previous four years working for a NASA contractor and vying for a spot in the space program. He earned a doctorate in geology from Brown University, where he had studied Venus’ mountain belts and had written for science journals.An Explosion and a “Barcode” for BluejeansIn the Daubert opinion, the Supreme Court listed validation testing as the best way to meet the evidence standard. Those studies can be complicated to organize and are risky. What if the results disprove what examiners have said under oath for decades?The next option was peer review, a term indicating the methods had been vetted by outside experts, then published in a science or academic journal. Vorder Bruegge was soon at work on an article that would put denim jean identification, the technique already challenged in court, into the scientific literature.On April 1, 1996, a bomb had exploded in a lobby of The Spokesman-Review in Spokane, Washington. As police rushed to the newspaper’s office, three men robbed a nearby bank and detonated another bomb on their way out.A similar attack followed three months later at a Planned Parenthood clinic in Spokane and the same bank branch. The bombs caused building damage but no injuries. Surveillance video showed three men in ski masks, heavy jackets and denim jeans.Agents arrested the members of a right-wing militia group and after searching their homes, seized 27 pairs of jeans. Back at the lab, Vorder Bruegge compared the pants against still images from bank video. He concluded that a pair of the defendants’ jeans were identical to those worn by one of the attackers in the first robbery, and therefore must be the same pants.Shortly after the militia members received life sentences in prison, Vorder Bruegge submitted an article to the Journal of Forensic Sciences titled, “Photographic Identification of Denim Trousers from Bank Surveillance Film.” The article implied his method of jeans identification was a novel technique, though the photograph unit had long used it.Vorder Bruegge said each light or dark patch of denim was a unique characteristic and, taken together, they formed a “barcode.”The seized pants were J.C. Penney “plain pocket” jeans, which the department store chain marketed as nearly indistinguishable from more expensive Levi’s 501 jeans.Designs might be similar, but wear marks reveal to FBI examiners the jeans’ true identity, Vorder Bruegge argued.At six points in the article, he acknowledged the method was not validated. That was of little concern, he wrote, because “the presence of such a large number of significant characteristics in a known pair of blue jeans precludes the possibility (or probability) of their having occurred by mere coincidence.”In requests for responses from the FBI, ProPublica repeatedly sought an interview with Vorder Bruegge; the FBI declined.With the article, Vorder Bruegge advanced the legal argument for image analysis further in three years than the FBI Lab had the previous three decades. It helped an array of methods meet the Daubert standard and become admissible scientific evidence in criminal trials.Leading forensic scientists, statisticians and clothes manufacturing experts reviewed Vorder Bruegge’s article at ProPublica’s request. They said the FBI examiner’s central claims were misleading or wrong.He wrote that manufacturing defects like dropped stitches, where a stitch is missing, are identifying features — the equivalent of a facial scar.Not at all, said Alicia Carriquiry, director of the Center for Statistics and Applications in Forensic Evidence and an Iowa State University professor. Sewing machines can drop stitches in a consistent manner, embedding the same set of stitches in garment after garment.“This could be that the same sewing machine in China is producing a drop stitch in the same position in every last pair of jeans until they change that needle,” Carriquiry said. Thousands of pairs of jeans would have the same feature.The barcode pattern is unique because the stitching varies between pairs, Vorder Bruegge wrote.But jean manufacturing has been standardized across the industry for a long time, said Charles Jebara, chief executive of Alpha Garment, which sells jeans under Nicole Miller and other labels. The number of stitches per inch along a seam is much the same from one factory floor to another. “They’re using the same kinds of machines, the same general processes to get that operation done,” Jebara said.Denim in various pairs of jeans is so similar that the FBI’s hair and fiber unit long ago deemed it useless as evidence. “Because of the commonality of blue denim cotton fibers, we don’t even bother to compare them in the FBI Laboratory,” an examiner testified in a 1991 murder trial.Suzanne Bell, head of the forensic science department at West Virginia University, read Vorder Bruegge’s article when it was first published. Its flaws mirror those of many fields: examiners making statements they cannot prove, Bell wrote in response to ProPublica’s questions.“The problems usually arise in over-selling the value and implying probabilistic information when there really is none,” she wrote. “You can see that in the article.”Jeans comparisons could help ongoing investigations, but they aren’t conclusive evidence. “It wouldn’t stand scrutiny today,” Bell wrote.A Bank Robbery Case Puts Clothing Analysis on TrialThe FBI Lab put its new scientific literature to use in Florida.In 2002, prosecutors charged Wilbert McKreith, an ex-convict and entrepreneur, with robbing eight banks along the Fort Lauderdale coastline. The evidence gathered against McKreith wasn’t overwhelming.But agents had seized a plaid button-down shirt from McKreith’s house and sent it to the image unit at Quantico for analysis. Vorder Bruegge got the case.In the lab, he put on McKreith’s shirt and stood in poses similar to the robber in surveillance pictures while another examiner took photographs. Vorder Bruegge compared pictures of himself to those of the robber, focused exclusively on how parts of the shirt lined up along the seams.On many mass-produced shirts, the lines on one section don’t align with those of other sections, causing the patterns to clash where they’re stitched together. FBI image examiners routinely testified those clashing patterns were “individual characteristics” that can identify a garment.In the case of U.S. v. McKreith, Vorder Bruegge took the old method one giant leap further by adding statistics. He concluded the defendant’s shirt matched the robber’s at eight different points, court records show. And then he calculated the probability that a random shirt — not McKreith’s — would match as precisely.Measuring the pixelated bank photo, Vorder Bruegge decided the odds that one feature would match on a random plaid shirt were only 3 percent. If two features matched, the random match probability dropped to one-tenth of a percent.For all eight features, the chance that a shirt other than McKreith’s would match was just 1 in 650 billion, the examiner decided.Prosecutors used Vorder Bruegge’s testimony in an effort to erase any doubt about McKreith’s guilt. In the Fort Lauderdale federal courthouse, the FBI examiner cited his Journal of Forensic Sciences article on jeans comparison to establish his methods were valid.John Howes, McKreith’s defense attorney, asked the court to suppress the image analysis as unscientific. But he didn’t see the article before they were in court, and he never read it.The judge ruled Vorder Bruegge’s testimony met the Daubert standard and was admissible. The decision enshrined the FBI unit’s techniques and testimony as reliable scientific evidence.Near the close of McKreith’s trial, Roger Stefin, an assistant U.S. attorney, asked Vorder Bruegge what his analysis determined about McKreith’s shirt and the robber’s shirts in pictures from several banks.“They’re all the same shirt,” he said. Vorder Bruegge matched features on the robber’s shoulder, where the shirt fabric was bunched and blurred, in a surveillance image of a November 2000 bank robbery. He’d previously written that precise measurements of clothes in pictures are often unreliable. (FBI Forensic Audio, Video and Image Analysis Unit, via Wilbert McKreith)In fact, Vorder Bruegge’s original analysis did not link McKreith’s plaid button-down shirt in one of the earliest robberies, of a Commerce Bank branch in May 2000, according to the written lab report. The surveillance images were not detailed enough and “it was not possible to identify” the defendant’s shirt “as the shirt worn by the robber to the exclusion of all other shirts.”Vorder Bruegge directly contradicted his report in court. He explained at length to jurors how he matched shirts in that case, with four large Commerce Bank photo exhibits.The jury convicted McKreith of seven robberies. Now 60, he is held at a federal penitentiary in California’s Central Valley, with 76 years remaining on his sentence. He’s exhausted his appeals, most of which attempted to dispute the FBI Lab findings.The statisticians who reviewed Vorder Bruegge’s materials for ProPublica said the examiner’s calculations cannot be correct. Vorder Bruegge’s statistic — 1 in 650 billion — is simply too astronomical to be true, said Kaye, the Penn State professor. There isn’t a database documenting features on plaid-shirt seams like there is for human DNA, making it impossible to determine the likelihood a different shirt would appear to match the robber’s shirt.Many problems in the examiner’s testimony went unnoticed, or were simply unknown, during trial. For example, Vorder Bruegge undercut the precision of his calculations when he admitted having rounded down the shirt measurements used in his calculations because “it makes the math easier.”The jeans article, which Vorder Bruegge cited as proof his methods are accepted science, does not mention any of the techniques he used in the shirt comparison.Further, Vorder Bruegge wrote in the article that measurements of objects in photographs are “less accurate when measuring curved objects such as a draped trouser leg,” the article said. The photographed shirts in the McKreith case were curved around shoulders and arms.On the stand, Vorder Bruegge didn’t mention that his precise measurements might be inaccurate.“It may be an honest belief,” Kaye said, “though terribly flawed.”Five years after the trial, Vorder Bruegge described his methods in a presentation to the National Academies of Sciences, including clothes identification and random match probabilities.Testing the Techniques, and Coming Up ShortImage examiners at the bureau have boasted they can figure out who’s who in photographs even under the most difficult circumstances so long as they can see details on the skin. Scars, tattoos and chipped teeth make identifications straightforward.Examiners contend they can do the same with only common skin marks: freckles, blemishes, wrinkles, creases on the lips.“By using these traits, effectively the ’texture’ of the face, examiners have been able to differentiate between identical twins in images,” members of the unit wrote in an FBI publication.The same principle has been applied to the back of suspects’ hands. In some cases, most commonly sexual assaults, the assailant takes pictures of their criminal act and one of their hands stays in the frame. Investigators find the images on a computer hard drive and want to confirm the photographed hand belongs to their suspect.Military investigators asked the FBI Lab for such an analysis in 2013, in a case involving a U.S. Air Force lawyer accused of raping a child. Christopher Iber, an examiner in the image unit, received the evidence and set about comparing hands.At trial, Iber “testified that based on similar features between the two hands — such as knuckle creases, hand creases, and blemishes — in his opinion, the hands depicted in the two photographs were the same,” an Air Force appellate decision states.Iber did not respond to interview requests.The military lawyer was convicted at court-martial; he tried to overturn the conviction, in part, by arguing Iber’s work was not valid. But the defense didn’t challenge the underlying science of hand comparison at trial, and the appeals court dismissed the argument.Unbeknownst to the courts, the FBI Lab itself was challenging the science behind its skin mark comparisons, somewhat inadvertently.Vorder Bruegge partnered with Patrick Flynn, a University of Notre Dame computer science professor, on a research project in 2011. They served together on a group writing standards for facial identification by law enforcement.Facial recognition algorithms match photos primarily by measuring the relative distances between a face’s landmarks — specific points on the eyes, nose, brow and so on. Flynn believes adding skin marks to the formulas can help their accuracy. The FBI Lab had already been using those features in image analysis, so Vorder Bruegge lent his experience.Photos of identical twins were ideal for testing the idea, Flynn said, as their facial landmarks are exactly the same but their freckles and creases were believed to be different. The algorithm would try to locate skin marks, but he had graduate students mark them, too, just as examiners do.An early finding disputed the FBI’s contention that each identical twin had his or her own unique features. Researchers documented that twins share freckles much the way they share all other genetic traits.The FBI’s response to ProPublica said the unit’s twin comparisons in casework “dating to the early 1990’s demonstrate that these individuals can be easily distinguished from one another based on these patterns, when the marks are visible.”But the study continued, next examining how consistently the computer found skin marks compared with the human participants. The algorithm did badly, but the humans were completely unreliable. All the participants came up with different sets of freckles and blemishes. Moreover, participants were asked to locate skin features on the same photos twice, and they came up with different results each time.The study had troubling implications for the FBI’s image unit. If examiners mark different features to analyze each time they look at a picture, their entire technique is likely unreliable. Science demands consistent results.It does not appear the bureau has undertaken a study on its examiners’ performance, even as similar research results have continued to come in.In 2012, the Defense Forensic Science Center, the U.S. military’s crime laboratory, tested hand comparisons. Researchers intended to develop an algorithm that could identify people the way the FBI Lab does. They began with the first step in validation, confirming examiners could consistently locate skin features on the back of hands in pictures.The results were unexpectedly poor. Professional examiners came up with differing sets of freckles and sunspots each time they reviewed the hand images, and they didn’t even seem to use the same method as one another.Most damning, the trained forensic scientists were no more reliable than students. The military researchers published their results in the Journal of Forensic Sciences in November 2015.“It’s another example of the familiar story,” said Simon Cole, a University of California, Irvine, criminology professor and pattern evidence researcher. “Use in court first, validate second.”That did not dissuade the FBI Lab. A bureau image examiner testified on the results of a thumb comparison in a May 2017 child pornography trial.But Vorder Bruegge had taken notice. Around the time of the trial he selected Derek Boyd, an anthropology graduate student at the University of Tennessee, for a summer internship at Quantico solely to conduct an in-house hand comparison study. Vorder Bruegge took pictures of his own left hand, then marked its features as a participant in a study of hand comparison. (Image from poster board presented at the American Academy of Forensic Sciences in February 2018. Courtesy Derek Boyd.)Three interns and three FBI examiners documented knuckle creases and other skin features on pictures Vorder Bruegge took of his own left hand. Boyd said he expected the results would bolster the hand comparison technique.Instead, they debunked the method a second time. Examiners were no better than interns. All were inconsistent and imprecise.“I was fascinated by how the human eye is still outperforming the algorithm,” Boyd said in an interview. “Yet what we found here is the human eyes don’t necessarily agree. That’s alarming.”Vorder Bruegge and the other examiners had muted reactions when he delivered the study results, Boyd said. “There was just kind of a, ’OK, well, that’s good to know,’” he said.
Two New Lawsuits Allege Surgical Errors During Heart Transplants at St. Luke’s in Houston
by Mike Hixenbaugh, Houston Chronicle, and Charles Ornstein, ProPublica Two new lawsuits have been filed against Baylor St. Luke’s Medical Center by patients who say they suffered serious injuries as a result of surgical errors during heart transplants at the troubled Houston hospital.The suits, both filed Friday in Harris County District Court, bring to five the number of malpractice complaints involving heart transplants that have been leveled against St. Luke’s or its doctors since a Houston Chronicle and ProPublica investigation last year documented deaths and unexpected complications in the once-renowned program.In August, the federal government cut off Medicare funding for heart transplants at St. Luke’s, citing its failure to make changes needed to improve outcomes. The hospital is appealing.In one of the lawsuits filed last week, Lazerick Eskridge alleges that Dr. Jeffrey Morgan sewed a major vein closed during his heart transplant in February 2017, causing blood to back up into his head and requiring an emergency repair in the operating room. That led to several serious complications and resulted in a three-month hospital stay, according to the lawsuit.In the other case, Ronald Coleman alleges that Morgan sutured his colon to his diaphragm during his heart transplant in October 2016, damaging the digestive organ and causing Coleman’s abdomen to fill with feces. That caused serious infections, the lawsuit says, leading to several follow-up surgeries and “nearly costing Mr. Coleman his life.”Eskridge’s story was detailed in a Chronicle and ProPublica report last year. Coleman’s case has not been made public before now.Both patients survived their ordeals but continue to suffer debilitating complications, according to their lawsuits. Get Our Top InvestigationsSubscribe to the Big Story newsletter. Don’t miss out on ProPublica’s next investigation. Sign up and get the Big Story email whenever we break news. St. Luke’s and Morgan each declined to comment on the lawsuits, as did Baylor College of Medicine, which is named as a defendant in both cases as Morgan’s employer. In previous interviews, all three have defended the quality of care provided to heart recipients at St. Luke’s.Hospital leaders also defended Morgan in past statements and interviews, calling him a skilled surgeon who they said had successfully turned the heart program around after a string of deaths in 2015. The hospital’s heart transplant survival rates improved in 2016 and 2017, meeting national benchmarks.In October, however, after losing Medicare funding, hospital leaders announced they had hired two new heart surgeons, effectively replacing Morgan as leader of the program.The latest lawsuits come as the federal Centers for Medicare and Medicaid Services conducts a comprehensive investigation into care provided at St. Luke’s after the recent death of an emergency room patient who received a transfusion of the wrong blood type. Following that mishap and numerous other care lapses reported by the Chronicle and ProPublica over the past year, the hospital announced Monday that it was replacing its president, its chief nursing officer and a top physician.Even as the hospital seeks to move forward under new leadership, it continues to deal with fallout from the problems in its heart transplant program. Three other lawsuits have already been filed in Harris County on behalf of St. Luke’s patients who died or suffered serious complications after receiving new hearts. The hospital has declined to comment on pending litigation and has filed motions denying wrongdoing in two of the earlier cases; the third doesn’t name the hospital as a defendant.The two most recent lawsuits accuse Morgan of making technical mistakes with sutures during surgeries. A similar problem occured in one of his first transplant operations after taking over as the top heart transplant surgeon at St. Luke’s in 2016, according to six medical professionals familiar with the case.In that case, doctors and hospital staffers told reporters that Morgan sewed shut another major vein that carries blood back to the heart, and the patient died a few weeks later. The patient’s family has not filed suit and Morgan has not commented on the situation, citing patient privacy.In the case of Eskridge, Morgan said in a statement last year that his vein tissue was “severely abnormal” because of past cancer treatments and also was distorted by wires attached to the cardiac devices in his chest. Morgan said he used sutures to reinforce the vein’s connection to the heart, but due to “concern for narrowing,” he had to perform an operation to bypass the vein.According to Coleman’s lawsuit, he struggled to recover after receiving a new heart in October 2016. More than two weeks passed before an abdominal surgeon discovered what had gone wrong, according to the lawsuit. Part of his colon had to be removed as a result.Coleman suffered life-threatening infections in the weeks that followed, the lawsuit says. He remained in the hospital for three months.Because Coleman and Eskridge survived one year after their transplants, both of their surgeries are considered successes based on the main metric used to calculate transplant program mortality rates, and both contribute to the hospital’s claim of improved outcomes in recent years.The lawsuits, which were filed by separate law firms, both accuse Morgan of omitting key details about what went wrong when filling out operative reports in the patients’ medical files, a violation of protocol that makes it more difficult to provide timely treatment.Both lawsuits also accuse St. Luke’s of “malicious credentialing” for allowing Morgan to continue operating after receiving complaints from several physicians about his surgical abilities, as reported last year by the Chronicle and ProPublica. At least two cardiologists grew so troubled, they said they began referring some patients to competing hospitals for transplants.Morgan remains on the faculty at Baylor and still has privileges at St. Luke’s, officials have said. But he no longer holds his previous title as surgical chief of heart transplants at either institution.
How Illinois Bet on Video Gambling and Lost
by Jason Grotto and Sandhya Kambhampati, ProPublica, and Dan Mihalopoulos, WBEZ With the last streaks of daylight fading on a mild October evening, the cars pulled up in waves at Piero’s Italian Cuisine, an old-school Las Vegas hotspot known for its osso buco.Cadillacs with tinted windows. Taxis and rideshares. A black Bentley limousine and a white minivan. Men and women emerged, most casually dressed, there for the first of a series of posh, private events hosted by the video gambling industry during the 2018 Global Gaming Expo, North America’s largest gambling trade show. They included gambling executives, lobbyists — and about a dozen Illinois lawmakers.The politicians had flown to Las Vegas to learn about the latest developments in the gambling industry and to discuss its expansion in Illinois, including proposals that would, among other items, license six new casinos in the state, legalize sports betting and increase the wagering limit on video gambling machines. The plans, lawmakers have said, would brighten the state’s gloomy financial picture without having to raise taxes or cut spending.It wouldn’t be the first time Illinois has placed a big bet on gambling. Nearly a decade ago, state lawmakers legalized video gambling. Today, more than 30,000 video slot and poker machines operate outside casinos here, more than any other state in the country.The machines, which legislators said would generate billions of dollars in revenue for the cash-strapped state, are spread out over 6,800 establishments, dotting highways and towns from Winnebago County in the north to Alexander County in the south. Step outside the borders of Chicago, where video gambling remains illegal, and you will see feather flags, billboards and neon signs advertising video slots and poker in bars and restaurants, truck stops and storefront gambling parlors.Illinois now has more locations to legally place a bet than Nevada.But the meteoric rise of video gambling has proven to be little more than a botched money grab, according to a ProPublica Illinois investigation of a system that has gone virtually unchecked since its inception. Based on dozens of interviews, a review of thousands of pages of state financial records and an analysis of six years of gambling data, this unprecedented examination found that far from helping to pull the state out of its financial tailspin, the legalization of video gambling instead accelerated it and saddled Illinois with new, unfunded regulatory and social costs.Meanwhile, video gambling companies have exploited the deeply flawed legislation to reap hundreds of millions of dollars in profits, while the cities and towns that bear the brunt of the social costs related to gambling receive a fraction of those proceeds.At every key point, state officials made decisions that undercut taxpayers and helped the companies that market video gambling. Lawmakers accepted a far smaller share of the profits than what’s charged in other states, giving the companies a much larger piece. They went forward with the program assuming the machines could be installed in Chicago — they couldn’t. They ignored the inevitable regulatory and social costs. And they did not anticipate the extent to which video gaming would cut into casino profits, which are taxed at a higher rate. The net effect: People in Illinois gambled a lot more, but most of the additional money ended up in the coffers of the companies behind video gambling.As states and cities across the country consider gambling expansions to stabilize wobbly finances, Illinois’ experience with video gambling stands as a cautionary tale, a lesson that has become even more urgent since the U.S. Supreme Court in May opened the door to the spread of legalized sports betting.Illinois lawmakers from both parties passed the Video Gaming Act in 2009 with little debate and unrealistic revenue projections. They did so during the depths of the worst financial crisis since the Great Depression, promising video gambling would help fund a $31 billion building program to create jobs and upgrade the state’s infrastructure.Within months of the law’s passage, the state began borrowing hundreds of millions of dollars against the anticipated revenue. Bond documents claimed video gambling machines would raise $300 million each year to help cover the debt payments.It wasn’t until 2017, eight years after the legalization of video gambling, that the state came close to collecting that amount. By then, video gambling had brought in less than $1 billion to pay the bond debt, $1.3 billion short of what lawmakers anticipated.But the costs of video gambling had already exacted a heavy toll on the state.As gambling moved outside casinos, tax revenue earmarked for state education funding dropped, resulting in a $70 million decline in education funding between 2013 and 2017.The regulatory expenses for video gambling proved far higher than anticipated, forcing the state to divert $83 million from casino taxes to support the work of the Illinois Gaming Board, run by five part-time members.In recent years, the gaming board has been plagued by accusations of questionable conduct, including bid-rigging and violations of the Open Meetings Act. Current board officials said that their legal issues stem from conflicting and often vague statutes and that there was never an intent to violate the law.Not surprisingly, problem gambling has become a major issue in the state, one that affects hundreds of thousands of people with little response from Springfield. Numerous studies from around the world have found that access and density of gambling options drive addiction. Yet Illinois is one of only two states with legalized video gambling — the other is West Virginia — that has never conducted research to measure the prevalence of gambling addiction.Despite pledges to increase funding for addiction services to match the massive growth in gambling outlets, the state spends less today than it did before legalizing tens of thousands of algorithm-driven machines so adept at making people play faster and longer they have earned nicknames like “electronic morphine” and “the crack cocaine of gambling.”More often than not, these machines are found in lower-income communities, according to a ProPublica Illinois analysis of demographic and gaming board data. Devices can be found in Berwyn but not Oak Park, Waukegan but not Lake Forest, Harvey but not Palos Park. In fact, as the average income level of a municipality decreases, the average number of machines increases.The companies that own and operate the machines, called terminal operators, have reaped nearly $2 billion in revenue since video gambling went live in September 2012. Recently, that largess has become concentrated in a handful of companies, with the top five terminal operators controlling nearly 50 percent of the video gambling market, according to internal gaming board reports.The companies have made those profits in no small part because their trade group, the Illinois Gaming Machine Operators Association — which picked up the tab for the Las Vegas dinner — wrote the Video Gaming Act. The group declined comment for this story.The General Assembly passed the legislation without scrutinizing the details, including the low tax rate on the machines. At 30 percent, with 25 percent going to the state and 5 percent to local governments, it’s much lower than most other states with video gambling. In West Virginia and South Dakota, video gambling is taxed at 50 percent. In Oregon, where the state owns and operates video gambling machines through the state lottery, the tax rate is 73 percent. Pennsylvania, which recently legalized video gambling but hasn’t yet gone live, has set a tax rate of 52 percent.Even casino gambling here is taxed at a higher rate, with a progressive formula that can reach as high as 50 percent.State and local politicians have benefited from video gambling. In 2010, the year after the Video Gaming Act passed, the industry’s lobbying arm contributed $131,205 to political campaigns, five times that of the previous election cycle. The group’s donations now total more than $830,000 since 2009. One company, Effingham-based terminal operator J&J Ventures, has contributed an additional $600,000 to state and local races, the most of any terminal operator, according to an analysis of state campaign contribution records.Video gambling has been a boon for bars, restaurants, truck stops and some fraternal organizations as well, providing additional revenue that has undoubtedly helped proprietors and created or maintained service industry jobs. But while some individual businesses have made money from video gambling, the municipalities that have welcomed it haven’t fared as well.That’s because the Video Gaming Act allocates just 5 percent of the revenue from the machines to local governments, even though they shoulder the bulk of the social costs related to gambling. Since 2012, the roughly 1,000 towns, cities and counties with video gambling have received $283 million in tax revenue, according to an analysis of gaming board data.A ProPublica Illinois review of local financial records shows that even in towns saturated with video slot and poker machines, the devices in most cases accounted for roughly 1 percent to 3 percent of local revenue in 2017.Rockford, for example, brought in nearly $1.6 million in tax revenue from the machines that year, more than any other local government. That amounted to about 1.3 percent of the city’s $129 million in general revenue, according to financial data submitted to the comptroller’s office.In 2013, 63 percent of the state’s population lived in communities that banned the industry, mirroring statewide polls that repeatedly showed a solid majority of residents were opposed to it. By 2017, industry lobbying efforts and tight local finances had flipped the percentages so that 63 percent of the state’s population lived in communities with video gambling.Despite all the broken promises of video gambling, some lawmakers are now pushing for another big bet on the industry, with some members of the General Assembly eyeing an expansion vote in the early days of Gov. J.B. Pritzker’s administration. Many Chicago politicians also want to open the city to gambling; all the front-runners in the city’s Feb. 26 mayoral primary [support some version of a casino](https://chicago.suntimes.com/politics/chicago-mayoral-election-questionnaire-taxes-city-finances/), and some want to bring in video gambling as well.That’s why the crowd gathered at Piero’s in October, enjoying dinner at the iconic, white tablecloth restaurant featured in the Martin Scorsese mobster film “Casino.” Among them was the co-owner of the industry’s primary lobbying firm, which shepherded the Video Gaming Act through the legislature in 2009: Joseph Berrios, former chairman of the Cook County Democratic Party and the longtime county assessor until [being voted out of office last year](https://www.propublica.org/article/politic-il-column-cook-county-assessor-race-berrios-kaegi-raila).Berrios is an ally of [House Speaker Michael Madigan](https://www.propublica.org/article/politic-il-column-michael-madigan-chicago-polling-place), the lead sponsor of the Video Gaming Act in the House before ceding that role to Democratic Skokie Rep. Lou Lang. Lang was a staunch gambling proponent before he resigned from the General Assembly this month.As he stepped from the cab that October night, wearing a white guayabera, Berrios paused for a moment before entering the restaurant.“We’re an industry running strong,” he said. “After January, we’re going to be looking at a bunch of things to make us a lot stronger and a lot better.”A Rushed New LawOn the afternoon of May 21, 2009, the crowd packing the gallery overlooking the ornate Illinois House chambers, with its gilded ceiling and crystal chandeliers, became so raucous that Rep. Art Turner, the Chicago Democrat presiding over the session, had to issue an admonishment.“I’d like to ask if we could tone down the noise and also remind the guests in the gallery that we do not allow clapping and shouting,” he reprimanded the gambling supporters and labor leaders who had gathered to watch the final vote on a bill to generate revenue for a $31 billion spending plan, dubbed Illinois Jobs Now!Less than 48 hours earlier, a five-page proposal tinkering with an obscure provision of estate tax law had morphed into the 280-page bill now before the House. Included in the revenue-generating legislation was the Video Gaming Act, the largest gambling expansion in Illinois since the creation of the state lottery in 1974. Lawmakers were counting on video gambling to generate nearly a third of the revenue for Illinois Jobs Now!It was a critical period for the state and its politicians.For more than a decade, Illinois’ fiscal issues had prevented the General Assembly from funding infrastructure projects.The 2010 election loomed, and the state was reeling amid the worst economic downturn since the Great Depression. Unemployment had reached double digits. Homes were being foreclosed. Public sentiment across the country had soured on incumbents, giving rise to the Tea Party movement and making politicians from both parties skittish.Months earlier, Gov. Rod Blagojevich had been arrested on corruption charges and [impeached](https://www.propublica.org/article/blago-gov-no-more-090129), becoming the fourth governor since the 1970s — both Democrat and Republican — to be [indicted](https://www.propublica.org/article/everything-you-want-to-know-about-blagos-indictment-403).Supporters of the gambling law told their colleagues it would help fund the $31 billion building program to create jobs while repairing roads, constructing schools and completing other infrastructure projects across the state.Illinois Jobs Now! gave incumbents positive news to run on.Introduced by Senate President John Cullerton, a Chicago Democrat, the bill represented a rare display of bipartisanship in Springfield, with Republican leaders signing onto the proposal as lawmakers heaped praise upon one another for working across party lines.The bill passed both chambers by large margins.Along with legalizing video gambling, the bill increased sales taxes on a host of products, including candy and liquor, while boosting fees for vehicle licenses and registrations. Bond documents show that legislators projected $1 billion overall in annual revenue, with $300 million coming from video gambling.The gambling industry had spent years lobbying to legalize video gaming, but opponents — a coalition made up largely of church leaders — had managed to block previous efforts. This time, the lobbyist for anti-gambling forces only learned of the bill that day, leaving opponents just an hour before the measure was introduced.The Illinois Gaming Board, the state agency tasked with regulating the new industry, didn’t receive much more notice. It had learned about the legislation the week before — even though the law would increase the complexity of its work and exponentially expand the number of entities it oversees without providing any additional funding or staff to do it.“We were not consulted prior to its passage, so we had no knowledge of what was in the bill,” said Aaron Jaffe, a former state legislator and Cook County Circuit Court judge who was then the board’s chairman.Madigan declined a request for an interview for this article. Cullerton could not be reached. Tom Cross, the House minority leader when the Video Gaming Act passed, said he voted for it but is not a staunch supporter of video gambling.“It’s not something that I think is good for the state,” he said.Former Senate Minority Leader Christine Radogno, who was part of the leadership team that negotiated the Illinois Jobs Now! legislation, said lawmakers should have spent more time examining the video gambling industry.“Certainly, in hindsight, it should have been studied more,” she said in an interview. “My personal assessment is that it seems like a very lonely and unhealthy thing to be doing. I have no doubt that it preys on problem gamblers and vulnerable people.”Pat Quinn, who had become governor less than six months earlier, after Blagojevich’s impeachment, had previously denounced video gambling as “a bad bet.”Running for re-election, Quinn reversed course and signed the bill into law on July 13, 2009.In a recent interview, Quinn said the need to stimulate Illinois’ economy during a historic economic downturn trumped his reservations about video gambling. He added that he insisted on an “opt-out” clause that would allow municipalities to block video gambling in their towns.“I wasn’t particularly excited about video gambling,” he said. “It’s very hard to get legislators to vote for funding. I had to make a decision, and it was imperative to get people back to work.”Unintended Consequences, Immediate ShortfallsThe speed and lack of planning that marked the legalization of video gambling created a cascading series of unintended consequences that continue to plague the state today.The legislature assumed video gambling would be up and running within a year of the bill’s passage, to quickly begin generating revenue. Instead, it took three years.The liquor industry, which bristled at the tax increase for alcohol also contained in the bill, tied up the legislation in court, claiming the General Assembly had violated the state constitution by passing multiple substantive measures in a single bill. Regulatory hurdles also contributed to delays.And lawmakers had counted on tens of thousands of machines being installed in Chicago to meet their revenue projections. But they somehow failed to take into account a century-old ordinance that banned gambling in the city without a referendum, which then-Mayor Richard M. Daley never embraced.The General Assembly borrowed against the projected revenues anyway. Within a year, Illinois had issued nearly $2.5 billion in general obligation bonds — loans backed by state revenues — before it had received a single penny from video gambling.By the time video gambling machines were turned on and players could start betting, in September 2012, the state had borrowed more than $5 billion. Debt payments reached about $340 million that year. Yet video gambling brought in just $30 million to cover them. The shortfalls meant the state had to draw from other sources.With the budget already running massive operating deficits, the failure of video gambling to generate projected revenues exacerbated the state’s fiscal woes. Credit rating agencies began downgrading Illinois’ debt. That increased borrowing costs as pension payments and unpaid bills butchered the state’s balance sheet.The state’s financial picture became so bleak it borrowed more than $1 billion between 2010 and 2013 to cover debt payments for capital projects that had been completed years earlier, spending future tax dollars to pay old bills — plus interest.“The way the General Assembly constructed the capital program, by relying on video gambling revenue that failed to materialize, accelerated the state’s financial crisis,” said Laurence Msall, president of the nonpartisan Civic Federation, a government research organization.Though lawmakers said money from video gambling and other new taxes and fees for Illinois Jobs Now! would fund $31 billion in building projects, those revenue streams have accounted for $10.5 billion in spending.Video gambling revenue, plus other taxes and fees included in the law, was supposed to go into a special fund to pay down debt from Illinois Jobs Now! Legislators even passed a separate measure that required it. But records from the state comptroller’s office show that through 2017, just over half of the $4.8 billion collected in the capital projects fund actually went to cover the debt for Illinois Jobs Now!Legislators wrote other laws to divert more than $600 million to pay down debt for an earlier building program, Build Illinois, which itself was supposed to be covered by sales tax revenue. An additional $1.5 billion went directly to the general fund, which is used to pay for the state’s day-to-day operations.The legalization of video gambling also triggered another shift in the state’s revenues, one that led to a drop in education funding. While the bulk of video gambling revenue goes to fund Illinois Jobs Now!, most of the state’s casino revenue flows into the Education Assistance Fund, which provides grants to public elementary and secondary schools, colleges and universities for building projects and other expenses.But when video gambling became legal, gamblers no longer had to travel to the state’s 10 casinos to place a bet. Between 2013 and 2017, state revenue from casinos in Illinois declined 15 percent, from $462 million to $393 million, as income from video gambling machines grew nearly 900 percent, from $30 million to $300 million, state records show.The cannibalization of casino revenue contributed to a 22 percent decline in the amount of money going to the Education Assistance Fund between 2013 and 2017, leaving fewer dollars for the state’s struggling schools.In fact, video gambling has caused the overall percentage of gambling industry profits going to the state to fall. That’s because the state levies a progressive tax on casinos that can reach as high as 50 percent. The more casinos make, the higher their tax rate.Video gambling is taxed at a flat rate of 30 percent regardless of how much the industry makes. As more gamblers turned to video slots and poker, the state’s cut of gambling profits dropped.In 2007, when casino revenue peaked at $1.9 billion, the industry paid about $819 million in taxes, a rate of 42 percent. By 2018, revenue from casinos and video gambling brought in $2.8 billion, up 42 percent, but the state’s share of the money was $891 million, up just 9 percent.Much of the growth in gambling revenue came as the country began one of the longest economic expansions in U.S. history and as video slot and poker machines saturated the state, more than tripling between 2013 and 2018.Researchers say it is unwise to count on gambling revenue to remain steady over time because it is a form of discretionary spending. That’s especially true if the economy slows.“You cannot count on revenues from gambling; they are highly volatile and often deteriorate quickly,” said Lucy Dadayan, a senior research associate with the Urban-Brookings Tax Policy Center at the Urban Institute, who has spent years examining state and local gambling revenue around the country. “If we hit another recession, then definitely gambling revenue is going to be one of the first to be hit hard.”Underfunded, Overwhelmed RegulatorsBefore the introduction of video gambling, the Illinois Gaming Board’s duties were limited to licensing and regulating the state’s 10 casinos. Each casino has a cap of 1,200 “positions,” the number of places to make a bet inside, including slot and poker machines.Six years later, the board oversees more than 30,000 additional positions, the equivalent of 25 more casinos. And those positions are scattered across more than 6,800 locations in nearly every corner of the state.Yet when the General Assembly passed the Video Gaming Act, it set aside no money for additional staff or resources to implement the law and oversee the industry.Jaffe, then the chairman of the gaming board, opposed video gambling, in no small part because he felt there was no way to regulate the industry, he said.“It’s just too big of a job,” Jaffe said. “In order to regulate it, you need a bigger board and more people. It’s absolutely ridiculous to think you can do a proper job with the resources available.”Long before a handful of legislators and lobbyists decided it was time to legalize — and tax — video gambling, the industry had been thriving illegally.For decades, bars, restaurants, bowling alleys and fraternal organizations housed video slot and poker machines billed as “simulated gambling devices.” Most had amusement tax stamps from the state revenue department and didn’t pay out. Instead, the machines produced printed slips showing how much was “won” or “lost.”But the machines were widely known to be used for illegal gambling, with payouts coming from envelopes of cash stashed under the table or behind the bar. In most cases, operators split profits 50-50 with establishment owners, just as they do under the Video Gaming Act.Known as “gray” machines, for their nebulous legal status, video gambling had long been associated with Chicago-area organized crime. Less known were the tight-knit groups of amusement companies from other parts of the state that ran “gray” machines while providing establishments with jukeboxes, pool tables and other coin-operated devices.Lobbyists for these amusement operators drafted the Video Gaming Act, according to industry insiders and lawmakers, creating licensing guidelines and determining how profits would be divided among operators, establishments, local governments and the state.Those operators also began entering into video gambling contracts with their existing clients well before the board could set up a regulatory structure or conduct the thousands of investigations needed to make licensing decisions.Once the law passed, the gaming board was tasked with sorting out these relationships while attempting to keep unsavory operators — including those with ties to organized crime — out of the industry.The board estimated it would need a staff of 350 to do the job, according to internal agency reports. Yet the number of workers has never topped 286 and dipped as low as 233 in the past three years, even as the industry has grown. At one point, the board had a single lawyer to help regulate what has become a highly litigious industry.Often, the board must face off against companies that have more resources, time and expertise than the state. One reason for the lack of resources: The Video Gaming Act fails to provide enough money to cover the regulatory costs.The law designates 75 percent of licensing and administrative fees to pay for investigators and attorneys to vet licensing applications as well as write and enforce rules. But those fees are much lower than other jurisdictions. Pennsylvania, for example, charges $25,000 to apply for a terminal operator’s license. The price in Illinois: $5,000.The owners of licensed establishments, such as bars and restaurants, pay just $100 annually to maintain a license and, until December, paid nothing at all to apply for it, even though the board expends extensive resources on licensing decisions. Last month, legislators passed a law instituting a $100 application fee.“We clearly have some fees that are shockingly low,” said Illinois Gaming Board Chairman Donald Tracy, a Springfield attorney, appointed by former Gov. Bruce Rauner in 2015. “Why would you do that if you’re trying to get revenue for the state? I guess you have go back and ask who drafted this legislation. If it’s gaming lobbyists, maybe that explains why the fees are so low.”Lang, the Skokie Democrat who sponsored the bill, overestimated how much fees would bring in, telling fellow lawmakers they would provide $4.5 million a year for regulatory expenses. Instead, fees have never generated more than $3.4 million. Lang did not respond to a request for comment.Even if the administrative fees had met projections, regulating video gambling has turned out to cost far more. Legislators never studied how much it would cost to regulate video gambling, even though board members say the industry now makes up the vast majority of the agency’s work.In 2013, the first full year of legalized video gambling, state financial reports show the board spent $15 million regulating the industry. Those costs reached $17 million by 2017. Yet fees set aside for regulatory expenses averaged just $2.9 million during that time, leaving a total shortfall of more than $83 million over five years.Filling in the funding gap: casino revenue. Yet casino revenue has been in decline. That decline, coupled with the state’s budget woes, caused the gaming board’s budget to fall more than 6 percent between 2013 and 2017, despite rapid growth in the number of video gambling machines and locations around the state.“My view is that there should be some kind of professional study to review the licensing fees and the taxes, and I have suggested that,” Tracy said.What’s more, a month before the Video Gaming Act passed, Quinn signed an executive order removing the board from under the Illinois Department of Revenue and making it a stand-alone agency.Jaffe, then the board chairman, had requested the move, arguing the Revenue Department’s control of the gaming board slowed hiring and other moves the board wanted to make. But when he made the request, Jaffe was unaware the board’s responsibilities would soon greatly expand.One of state government’s largest agencies, the Revenue Department provided oversight and supplemented policy decisions with an army of analysts, lawyers and technical experts.Without that support, an underfunded agency overseen by five part-time board members — who receive $300 a meeting — found itself regulating a sprawling industry with little supervision. The vague law and its weak administrative rules made licensing and contract decisions seem arbitrary, leading to a series of missteps.In at least two cases, the board reversed decisions to permanently bar people from the industry whom it deemed unfit, after court challenges claimed the moves exceeded the board’s legal authority.A ProPublica Illinois review of meeting minutes and interviews with two board members, including Tracy, found the board’s former administrator entered into a legal agreement with a video gambling operator from Louisiana without board knowledge or approval. The former administrator, who left his position in March after 16 years, declined to comment.And in May, a Cook County Circuit Court judge ruled in a lawsuit that the board had violated the Open Meetings Act by improperly going into a closed session, then misrepresented what happened in meeting minutes.ProPublica Illinois has filed a Freedom of Information Act lawsuit seeking a recording of the closed session at the center of that case.In a statement, Tracy disputed the judge’s ruling but said the board has changed its procedures for going into closed session. He also said that conflicts between the Video Gaming Act and the Open Meetings Act have made the board vulnerable to lawsuits from the well-funded industry.“We have a statute that is somewhat sparse, to be kind.” Tracy said in an interview. “And we’re talking about high-stakes licenses that have tremendous potential value. As a result, when we say no, we get sued.”In another lawsuit, a Cook County judge froze an exclusive state contract to test video gambling machines and ordered the board to reconsider the contract after evidence suggested gaming board staff gave preferential treatment to a New Jersey-based company. The contract was rebid, though Tracy denied the board had shown preferential treatment.The board’s government attorneys often have little expertise in gambling litigation compared to the industry’s more experienced, high-priced lawyers, Tracy said.“There’s just so much money in this industry,” he said. “We are litigating against people with the very best lawyers, companies that can put unlimited amounts of time into these cases and spend hundreds of thousands of dollars litigating against us.”Another Push to ExpandThe rush to legalize video gambling in hopes of generating quick, painless revenue battered the state’s finances, left unfunded social and regulatory costs and exposed the gaming board to a barrage of legal challenges.None of that has stopped some members of the General Assembly from pushing yet another massive gambling expansion bill as they continue to forage for ways to bring in revenue without raising taxes or cutting spending.In the more than nine years since the Video Gaming Act passed, the influence of the industry has only increased. And lawmakers seem ready to make many of the same mistakes. At hearings last fall on a new gambling expansion bill, there was no discussion about whether the gaming board can handle a larger workload and little acknowledgement of the social costs of gambling.Now, as newly sworn-in legislators open the 101st General Assembly, with a rookie, billionaire governor who was a longtime investor in Elgin’s Grand Victoria Casino, here’s what lies on the table: sports gambling; six new casinos; and, for the video gambling industry, higher wagering, bigger payouts and even more machines.How We Analyzed Video Gambling in IllinoisFor our series, [“The Bad Bet: How Illinois Bet on Video Gambling and Lost,”](https://propublica.org/series/the-bad-bet) ProPublica Illinois examined video gambling in Illinois, the impact slot and poker machines have had on the state’s finances, and the social costs associated with video gambling.For this first story, we conducted a demographic analysis of where the machines are located. We found as the average income level of a community decreases, the average number of machines increases.Read more about [our data analysis and methodology](https://projects.propublica.org/graphics/video-gambling-illinois-analysis).
Do You Know Someone Struggling With Video Gambling? Help Us Understand Video Slot and Poker Addiction in Illinois.
by Logan Jaffe If you live in Illinois, you've probably noticed: Video gambling machines are almost everywhere. From bars, restaurants, truck stops, pizza parlors, fraternal organizations and all sorts of storefronts, more than 30,000 of them are scattered across the state. That’s more than in any other state in the country.When state lawmakers legalized video gambling in 2009, they claimed the machines would raise $300 million a year to finance infrastructure projects and cover Illinois' debt payments. That didn’t happen. Local governments were told the machines would bring in much-needed revenue for their cities and towns. Those revenues were underwhelming.There have been social costs, too. Gambling addiction has become a big problem in Illinois, with potentially hundreds of thousands of people affected. As the state has added tens of thousands of video gambling terminals throughout the state — though outside casinos — in less than six years, there's been virtually no research and little spending to understand how the rapid expansion of gambling in Illinois has affected the lives of people who live here.So we’re asking you to share with us your story about how video gambling — and possible addiction — has affected you or someone you know. By contributing your story, you’ll help us understand and continue investigating an overlooked cost of the state’s massive gambling expansion: the health of our families, friends and community members, and the failure of lawmakers to deliver on their promises.Your submission is confidential and information will not be published without your consent. If you’d like to tell us something else about video gambling that’s not related to addiction, please email us at gambling@propublica.org. Fill out the form on web browser.
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