A veteran D.C. police officer says the Metropolitan Police Department’s Gun Recovery Unit deploys illegitimate tactics in a war on guns that have fostered an adversarial relationship between the department and the communities they are supposed to serve.
‘Let Me See That Waistband’
A veteran D.C. police officer says the Metropolitan Police Department’s Gun Recovery Unit deploys illegitimate tactics in a war on guns that have fostered an adversarial relationship between the department and the communities they are supposed to serve.
Around 11:30 p.m. on Jan. 12, 2020, officers with the Metropolitan Police Department’s Gun Recovery Unit (GRU) turned their unmarked Chevy Malibu onto a residential street in Washington, D.C., where they spotted Dalonta Crudup walking with a backpack slung around his shoulder.
Crudup, a 23-year-old Black man, noticed the Malibu and shifted his backpack to both shoulders. According to a statement of probable cause, that was enough for the plainclothes GRU officers to jump out of their vehicle and stop Crudup.
“You don’t got no weapons on you?” one officer asked Crudup.
Crudup lifted his shirt and showed the police his waistband. There was no gun there. He told them he had marijuana—which is legal in D.C.—on him. Multiple times, the police, all wearing tactical gear, asked Crudup if they could search his backpack for weapons. Each time, Crudup told them no.
Then one of the cops claimed they heard something in the backpack. They patted it down, said they felt marijuana inside, and took the backpack. The officers said they found a gun and placed Crudup under arrest.
After his arrest, Crudup was offered a plea deal by the United States attorney’s office but refused to plead guilty. The police had no justifiable reason to stop him, let alone search him, and he knew that.
“What was written on the probable cause affidavit was just egregiously unconstitutional, in my opinion. I mean, he literally was stopped because he was walking while Black with a backpack,” Sweta Patel, one of Crudup’s lawyers, told The Appeal. “They really didn’t give any probable cause, reasonable suspicion, or anything.”
Fifteen minutes after Crudup declined to plead guilty, prosecutors dropped his gun charges.
Crudup is one of four plaintiffs in an ongoing class action civil rights lawsuit that attorneys Patel and Michael Bruckheim filed in federal court against the D.C. government. The lawsuit alleges that the GRU—which focuses on the interdiction and recovery of illegal weapons and the apprehension of people involved in illegal gun crime—has a policy of stopping, frisking, and searching Black people without reasonable suspicion or probable cause, and that they fabricate information to justify the stops, frisks, and searches. According to the lawsuit, despite D.C. having some of the strictest gun control measures in the country, the GRU has a “practice and custom of treating African American people as though they all carry illegal handguns.”
The lawsuit says the GRU officers use a person’s presence in a “high crime” neighborhood as a reason to approach them and often cite a person shielding themselves from officers jumping out of an unmarked car or running as further justification for a stop. When GRU officers ask if they can search someone, they often characterize how that person responds to the question as “suspicious” in order to justify a search, even if the person did not consent.
In November, attorneys for the city government wrote in a motion filed with the court that the “plaintiffs’ claims have no merit and should be dismissed” in part because “the officers had reasonable suspicion to support the stops and searches.” They said that none of the plaintiffs disputed that they were in possession of a firearm without a license and also denied that the GRU has a policy of engaging in unconstitutional stops and searches.
The leadership’s focus on GRU is stat driven. Leadership focuses on how many guns GRU recovers and if an arrest is made with the recovery. There is very little, if any, review of how the gun was recovered or how the arrest was made.Anonymous, a former command-level official with the Metropolitan Police Department
Now, a nearly 30-year Metropolitan Police Department veteran is speaking out about the GRU, blasting the unit as statistics-driven and engaged in a pattern and practice of illegal stop-and-frisks. The Appeal obtained a five-page letter written by the former command-level official about the GRU and the roles that this person says former chief Peter Newsham and current chief Robert Contee played in enabling them.
“These outdated practices have resulted in the adversarial relationship between the community and the police department,” the veteran wrote. “Sadly, the police leadership’s response to community concerns is to double-down on the practices that are of most concern to the community.”
The Appeal also spoke with the veteran, who said they were moved to write the letter out of concern for D.C.’s residents whose trust has been violated by the police, especially young Black men whose lives are being “ruined” by gun charges “inhibiting their future.” They requested anonymity out of fear of retaliation. Last year, Sgt. Charlotte Djossou alleged in a lawsuit that she was retaliated against for blowing the whistle on department abuses that included narcotics division supervisors instructing officers to target young Black men in low-income neighborhoods for jump-outs and reclassifying felonies as misdemeanors in order to improve crime statistics.
“The leadership’s focus on GRU is stat driven,” the veteran wrote. “Leadership focuses on how many guns GRU recovers and if an arrest is made with the recovery. There is very little, if any, review of how the gun was recovered or how the arrest was made.”
In early 2019, former chief Newsham defended the department’s use of stop-and-frisk as “constitutional.” In March of this year, Chief Contee said the department has not used jump-outs as a tactic in years, according to the Washington Post. But the veteran says the GRU violates residents’ Fourth Amendment rights and the practice is central to its gun seizures.
A “dubious tactic employed by GRU is jumping out on groups of people and fishing for statistics,” the veteran wrote. “Members of GRU would drive up to an area where multiple people were hanging out, jump out of the truck, and force everyone present to submit to stop and frisk without any articulable reason for being stopped and frisked other than their mere presence at the scene.”
The Metropolitan Police Department did not respond toThe Appeal’s request for comment about GRU’s tactics and allegations of civil rights violations by the unit. But Kristen Metzger, deputy director of the department’s communications office, emailed a statement to The Appeal emphasizing that “under Chief Robert Contee’s leadership, MPD has begun examining the Department’s strategies related to guns and violence. Chief Contee emphasizes a strategic approach aimed at getting the right guns out of the wrong hands in our communities. MPD has already shifted resources to focus on an intelligence-based policing approach to identify, interdict and interrupt violent offenders within the District.”
In the letter, the veteran accused the department of misrepresenting data regarding police stops gathered after the 2016 passage of the Neighborhood Engagement Achieves Results (NEAR) Act. The act compels the collection of information about the stop—such as the reason it happened, how long it lasted, whether it resulted in an arrest, and the race of the person stopped—and the release of that data to the public. But the department has a troubled history with compliance.
In February, ACLU-DC sued the police department. “MPD has failed to uphold its promise” of complying with the NEAR Act, the organization wrote in a statement, and “as of February 2021, MPD has not published any data since March 2020, and its published data only covers 6 months in 2019. No data on stops conducted in 2020 has been published.”
Days after the ACLU-DC filed the lawsuit, the police released stop data from Jan. 1 through June 30, 2020. The department released data for the rest of 2020 the following month and promised a comprehensive 2020 stop data report in April. The 2019 data released in March 2020 was also released after a 2019 ACLU-DC lawsuit.
The veteran says in their letter that when a judge ordered the release of stop data after the 2019 lawsuit, department command attempted to “manipulate the results” in order to evade accusations of racial bias. According to the veteran, one commander told officers to perform more stops in parts of D.C. with white residents “to balance the number of pedestrian stops against black individuals in her district.” Another commander instructed police to perform more car stops of white drivers “to neutralize the number of vehicle stops made against black individuals in his district.”
The result was more racial profiling rather than a reduction in stops: “Neither commander had a goal of decreasing unnecessary stops against blacks, only to offset the total number by increasing target stops against whites.”
Stop data shows that between July 22, 2019, and Dec. 31, 2019, 72 percent of all the department’s stops were of Black residents and 87 percent of “non-ticket stops” were of Black residents. Forty-six percent of D.C.’s population is Black. A 2020 National Police Foundation report revealed that between August 2019 and January 2020, 87 percent of stops, 91 percent of arrests, and 100 percent of use-of-force incidents by the Narcotics and Specialized Investigations Division, which includes GRU, were of Black people.
Although the Metropolitan Police Department is hesitant to release stop data as required by the NEAR Act, the veteran wrote, it closely tracks gun seizures, and command officers are held accountable for those statistics: “If there is a drop in the total recoveries as compared to the prior month, the Chief inquires as to why there is a decrease and what the Commanders plan to do to restore the number of recoveries. What is apparently absent in the agency’s review of gun recoveries is how the guns were recovered, specifically the constitutionality of the recovery.”
Each week, the department’s gun seizures are released publicly with details about each gun, the name of the person who allegedly possessed the gun, what they were charged with, and often a photograph of the gun.
Alex Vitale, a professor of sociology at Brooklyn College and the author of “The End of Policing,” told The Appeal that this focus on data conflates transparency with accountability.
“Both government officials and a lot of legal advocates come around to this idea that since we can’t really change anything—or we don’t really want to change anything—let’s collect some data,”Vitale said. “But we don’t need to haggle over the data. We need to quit engaging in this kind of enforcement.”
“The impression it leaves me, as a resident of the city,” said Patrice Sulton, executive director of D.C. Justice Lab and a member of the DC Police Reform Commission, “is that people in leadership care most about the number of guns they collected. That’s the metric they are paying attention to.”
You remember they used to put all of the drugs and the money out on the table? Now it's all about guns right?April Goggans, Black Lives Matter D.C.
According to department data, Dalonta Crudup’s Smith & Wesson M&P Bodyguard .380 caliber handgun was one of 46 guns the GRU recovered between Jan. 6 and Jan. 13 last year.
April Goggans of Black Lives Matter DC told The Appealthat the tactic of displaying gun seizures for the public is an example of how the police department’s “war on guns” mirrors the numbers game that fuels the war on drugs.
“You remember they used to put all of the drugs and the money out on the table?” Goggans said. “Now it’s all about guns right? And people in the city care about guns so they’re like, ‘Get them off the street’ but you try to tell people that there’s this many stops, this many searches, and they’re not finding a weapon most of the time—and the homicides are going up.”
In 2007, the year the GRU was formed, there were 181 homicides in D.C. In 2020, there were 198.
In the letter, the veteran expressed concern about a highly publicized June 2018 incident in which the GRU searched a group of Black men hanging out in front of Nook’s Barbershop in the majority-Black Ward 7. Video of the incident posted by Black Lives Matter DC showed plainclothes GRU officers attempting to conduct a search of a man in the group. When the man put his arms up, an officer pulled a gun from his pants. Officers then told the group that they had probable cause to search all of them for weapons.
The officers “then turned their attention to the other men present and forced them all to submit to a frisk,” the veteran wrote. “The justification the officers gave, which was supported by the Chief, was if there was justification to frisk one person, there was justification to frisk everyone.”
No other guns were seized by the GRU in front of the barbershop that day. Ward 7 commissioner Anthony Lorenzo Green said residents believed that police planted the weapon seized that day—a BB gun, which is illegal to possess in D.C—and that it was taken from an undercover officer, not a civilian, on the scene. “No one was arrested because none of the other men had drugs or firearms in their possession,” Green wrote in a June 24, 2018, letter to then-chief Newsham. “The officers acknowledged they did not get a call for loitering… I am convinced your department is not collecting that [NEAR Act] data because you want to hide the fact that your officers are making up opportunities to harass black and brown people in our city.” The Metropolitan Police Department denied that the man was an undercover officer and that the gun was planted.
During a 2018 D.C. City Council hearing held as a result of the incident, then-Councilmember at-Large David Grosso asked Newsham, “Why are we using the same tactics 30 years later?”
“It’s not the same tactics,” Newsham insisted.
Contee, then assistant chief, defended the incident to the council. He said it was an example of “intelligent policing,” which he differentiated from jump-outs because the cars parked in front of Nook’s had tinted windows and officers observed people going in and out of the vehicle. That was reasonable suspicion to search the group, Contee explained.
BLM DC’s Goggans told The Appeal that the tactics displayed in the Nook’s incident are commonplace within the GRU. She said the unit also detains people who don’t have weapons on them until the person can point them in the direction of a gun or someone who has a gun. “With Gun Recovery, they will get guys and they will say, ‘We’ll let you go if you call friends to bring a gun,’” Goggans said.
The veteran wrote that a 2018 video recorded by Ward 8 Councilmember Trayon White is illustrative of this GRU tactic. The video shows two teens detained for allegedly having an empty magazine.
“The GRU members told the teens they would not be released unless they disclosed the location of a gun or a person armed with one,” the veteran wrote. “MPD’s leadership has been made aware of this dubious tactic yet has taken no corrective action.”
Goggans described the GRU engaging in targeted harassment such as calling out the names of people while on patrol to “thank” them for talking to them—a clear implication that they are informants, which would threaten their safety in the neighborhood.
“The police see Black folks, people in this community, as enemy combatants. So once you’ve determined somebody is an enemy combatant, then the way you engage them is different,” Goggans said.
This “warrior” approach to policing is embraced by the GRU, Goggans said. She cited a 2016 photo of GRU members posing in front of a flag with “Gun Recovery Unit” written on it, along with the image of a skull with a bullet hole between its eyes and the words “Vest Up One In The Chamber.” The photo was part of a 2017 complaint by the advocacy group Law for Black Lives. That same year, Goggans notes, Officer Vincent Altiere of a plainclothes unit called Powershift was photographed wearing a shirt featuring a Grim Reaper, a Celtic cross, which is widely used as a white supremacist symbol, and the phrase “let me see that waistband.”
Bowser can wax poetic all she wants about George Floyd, but at the end of the day, Muriel Bowser is guilty of facilitating the very same kind of racist police here that killed George Floyd.Sean Blackmon, Stop Police Terror Project D.C.
D.C.’s war on guns raises constitutional concerns—and it also comes with fatal consequences. On Sept. 3, 2020, Metropolitan Police Department officers chased, shot, and killed Deon Kay after they said they acted on a tip that someone in the area had guns in their vehicle. Officers pursued Kay, who had a gun and ran. Although a GRU officer did not kill Kay, the ACLU-DC connected his death to the police’s focus on gun seizures.
“The D.C. police department’s approach to gun recovery has been dangerous and ineffective for years,” ACLU-DC executive director Monica Hopkins said. “The tragic shooting and death of 18-year-old Deon Kay is the logical conclusion of a policy that not only meets violence with violence, but actually escalates and incites it—especially in our Black communities.”
Kay’s killing came after a summer of protests in D.C. against police violence following the death of George Floyd in Minneapolis—and months after Mayor Muriel Bowser renamed two blocks of 16th Street NW “Black Lives Matter Plaza.” Bowser, however, seemed to justify Kay’s death as a necessary part of the police department’s war on guns.
“I know the officer was trying to get guns off the street,” Bowser said. “And I know he encountered somebody with a gun.”
Sean Blackmon of Stop Police Terror Project D.C. told The Appeal that Bowser’s stance on Kay is typical of a mayor who opposed the D.C. Council defunding the police by $15 million last year, then requested that $43 million be redirected to the police budget. Blackmon also pointed out that Bowser supported “Mr. Stop and Frisk himself, Mike Bloomberg” in the 2020 Democratic presidential primary.
“Bowser can wax poetic all she wants about George Floyd, but at the end of the day, Muriel Bowser is guilty of facilitating the very same kind of racist police here that killed George Floyd,” Blackmon said.
According to FiveThirtyEight, a Black person in D.C. is 7.3 times more likely to be arrested than a white person and 13.4 times more likely to be killed by a police officer.
Yet Bowser continues to support a 2019 citywide initiative called felons-in-possession that makes gun possession a federal charge for people with felony records, even though U.S. prosecutors revealed last year that the policy was enacted only in majority-Black districts. D.C. Attorney General Carl Racine called the initiative, which exposes people to harsher sentencing, “discriminatory.” A group of Black prosecutors also opposed it because of its “negative racial and social impact,” and an April 2020 amicus curiae brief from ACLU-DC argued that the initiative “makes federal cases out of purely local criminal matters.”
Bowser and then-chief Newsham both said they did not know felons-in-possession was not being applied citywide. The initiative remains in place today and has the support of Acting Chief Contee. Biden-appointed Acting U.S. Attorney Channing D. Phillips recently announced that felons-in-possession policy would remain in place even though a former assistant U.S. attorney called it “racist, unjust and unlawful” and said that Black people comprise 97 percent of felons-in-possession charges.
The racial disparities perpetuated by these kinds of federal initiatives has been known for decades. James Forman Jr.’s 2017 book “Locking Up Our Own: Crime and Punishment in Black America” notes that during the 1990s, then-U.S. attorney for D.C. Eric Holder said of Operation Ceasefire, which encouraged police to “stop cars, search cars, seize guns”: “I’m not going to be naive about it. The people who will be stopped will be young black males, overwhelmingly.”
GRU’s strategies resemble Holder’s Operation Ceasefire. He encouraged officers to “wrangle consent,” Forman wrote, and “blur the distinction between commands that a driver must obey (such as providing license and registration, or stepping out of the car) and requests that he may decline (such as giving permission to search).”
“But it was more than fear of crime or the credibility of black law enforcement officials that sold Operation Ceasefire,” Forman continued. “Also critical was the fact that the program targeted guns, not drugs.”
The veteran criticized former police chief Newsham for not only enabling the GRU but criticizing those who questioned the unit’s tactics, including fellow law enforcement.
Newsham “blamed [prosecutors] when cases were thrown out for procedural errors as opposed to using these cases as learning opportunities to better train his officers,” the veteran wrote.
The dismissal of handgun charges against a Black man after federal prosecutors said there was no probable cause for the arrest angered Newsham, the veteran wrote. During one staff meeting, Newsham “called the USAO [United States attorney’s office] ‘soft on crime’ and stated judges were no better.”
Newsham, who is now the Prince William County police chief, responded to The Appeal’s request for comment in an email from the department’s Public Information Supervisor: “Chief Newsham believes these claims are preposterous, inflammatory and/or noncontextualized, without knowing who you spoke to or what their motive was for suggesting these things, he would be unable to make any further comments on the matter. As for Chief Contee, Chief Newsham has every confidence that he is a very capable and committed police leader who will do what is in the best interest of public safety in the District of Columbia.”
A 2018 report by the radio station WAMU that analyzed almost 500 Metropolitan Police Department gun cases filed between 2010 and 2015 showed that nearly 40 percent of those cases were dismissed.
“MPD historically, and more so over the past four years, has demonstrated a pattern and practice of unconstitutional conduct,” the veteran wrote. “Even after having these concerns brought to its attention through citizen complaints, video footage of officer conduct, dismissed criminal cases, lawsuits, and court orders, MPD took no action to institute remedial training, implement new policy, or issue any discipline to officers for Fourth amendment violations. There is no accountability for these actions but instead plenty of praise for these results.”
The veteran also argued that Contee, who replaced Newsham at the beginning of the year, was complicit in GRU policy and practices.
“He was the Assistant Chief overseeing GRU,” the veteran wrote, during a time period that includes the Nook’s Barbershop incident and the recorded incident involving two teens. According to the veteran, Contee did not make any “meaningful” changes to GRU’s roster, its policies, or its training after those high-profile incidents.
“This statement is not accurate. The incident at Nook’s Barbershop was investigated by our Internal Affairs Division and the allegations of improper stops and searches were determined to be unfounded,” Metzger of the police department’s communications office wrote to the Appeal. “MPD is committed to listening and learning from the community and recently announced a partnership with Howard University to host community listening sessions.”
They love to play those semantic games. But at the end of the day, if you're violating my basic rights, if you're abusing me, if you're beating me, if you end up killing me, you could call it a pizza party—it doesn't change what it is.Sean Blackmon, Stop Police Terror Project D.C.
On Jan. 2, Contee was sworn in as chief, and he also spoke to the media about Antonie Smith, who was shot and wounded by department officers that morning. A resident had reported Smith was armed with a handgun.
“I have a swearing-in ceremony shortly in about an hour or so, but you know, this will continue to be a fight for the Metropolitan Police Department to get illegal guns off of our streets,” Contee said.
Three hours after the shooting, the police posted a photo of Smith’s gun on the department’s Twitter account.
In the weeks leading up to the D.C. Council’s vote to confirm Contee as Chief, he began talking reform. In a March 11 interview with the Washington Post, Contee said the department needed “to think beyond just getting the gun,” and change its approach on gun policing—especially within the GRU.
“I want to be more strategic about getting the right guns out of the wrong hands. We have already shifted resources to focus on an intelligence-based policing approach to identify, interdict, and interrupt violent offenders within the District,” Contee told the Judiciary & Public Safety Committee on March 25. “The goal is to build strong criminal cases on offenders and groups to ensure those repeat offenders cannot continue to endanger our communities.”
The Post quoted an internal memo from Commander John Haines, head of the Narcotics and Special Investigations Division, which houses the GRU. “No longer are we focused on getting guns,” the memo reads. “The focus will be on those that pull the trigger and directly or indirectly harm others.”
On March 31, the Judiciary & Public Safety Committee unanimously confirmed Contee, setting him up for a vote by the council on a date to be announced.
The veteran told The Appeal that they are not surprised to see Contee defending the GRU even as he calls for gun policing reforms. In the Post, Contee said officers are not “stopping as many people as they can to get whatever guns they need” and he does not “want that to be the perception of what is happening.”
“I think he’s saying what people want to hear. By saying ‘I’m not saying you’ve done anything wrong, we just need to change everything,’ he’s towing the line, he’s telling [the officers] ‘I got your back,’” the veteran said. “Getting guns off the street is worthy, but we don’t have to violate rights. It doesn’t help to make an arrest and violate someone’s rights: The case gets thrown out, and the person goes free.”
In an email to The Appeal, Metzger pointed to the Violence Reduction Unit, formed in 2020, as an example of how changes to gun policing have already begun: “The goal of this Violence Reduction Unit (VRU) is to build strong criminal cases on offenders and groups to ensure those repeat offenders cannot continue to endanger our communities. The VRU is already seeing success with its casework and MPD will continue to work with residents to ensure that our strategies support—and don’t undermine—the vibrant and safe communities where our residents—our youth, families and seniors—can thrive and succeed.”
For Stop Police Terror Project D.C.’s Blackmon, announcing new policing strategies and new units and denying the existence of jump-outs is another way for the department to avoid responsibility for its harmful and unconstitutional practices.
“They love to play those semantic games,” Blackmon said. “But at the end of the day, if you’re violating my basic rights, if you’re abusing me, if you’re beating me, if you end up killing me, you could call it a pizza party—it doesn’t change what it is.”
Goggans recognizes that some Black residents of D.C. who endure most of the city’s violent crime are willing to “trade off” freedoms for feeling safer: “I feel like so many people are OK with [GRU] because it’s like ‘good violence’ because it feeds off the fact that people are rightfully fearful of violence.”
People accept this kind of policing because it is the only solution offered by the city and substantively funded, Brooklyn College’s Vitale explained.
“This is what we call a supply side strategy to managing gun violence, right? Gun control laws, gun interdiction, gun enforcement. But D.C. is not funding the demand side enough, which is, ‘What are we doing to work with young people so that they don’t choose to pick up guns in the first place?’” Vitale said. “Anyone Black in D.C. already knows what’s going on. I think it’s pretty clear that that they just shouldn’t be doing the vast majority of the stops and a huge amount of them are pretextual.”
Sulton told The Appeal that “the message being sent to these officers is they are to hunt guns and drugs,” and that D.C. is “trying to solve violence with violence” and “trauma with trauma.”
“We can’t afford to keep doing this,” Sulton said.
A report released this month by the DC Police Reform Commission, of which Sulton is a member, makes numerous police recommendations policy including the immediate suspension of GRU and similar specialized units “unless and until the Department produces data showing they address violent and otherwise serious crime more effectively than ordinary patrol units.”
Crudup attorney Bruckheim said that unlike Crudup and the other class action clients, most arrestees in gun cases plead out, even when their Fourth and Fifth Amendment rights have been violated. When they do not enter a guilty plea or their charges are dismissed, the weapons seizure has already been memorialized in police department data as successful.
“At the end of the day, if they find a gun, they figure, ‘You know what, we got a gun off the street. So who cares if we violated someone’s rights,’” Bruckheim said. “But the fact is the Constitution of the United States is not limited by geography. I understand how some people will say, ‘What’s the big deal? At the end of the day, they recovered contraband, the city’s a little safer and so on.’ But you can’t go about it by violating the rights of citizens, number one. No matter what.”
On Feb. 9, about 50 people gathered on the front steps of California’s Capitol building in Sacramento to commemorate the second anniversary of the killing of Willie McCoy by the Vallejo police. McCoy, 20, was shot 38 times as he slept in his vehicle in a Taco Bell drive-thru.
“It’s happened multiple times: unarmed citizens losing their life with a false narrative behind it. This one had a knife. This one had a gun. False narratives,” McCoy’s brother Kori McCoy said at the February rally while wearing a photo of body camera video of his brother in the moments before officers killed him. “We are not the lunatic fringe. We are not conspiracy theorists. These things actually have happened and take place.”
Since Willie McCoy’s 2019 killing, a special prosecutor and a consultant hired by the city of Vallejo determined that the officers’ actions were justified because McCoy had a gun in his lap. Crime scene photos show a weapon in the vehicle after officers pulled McCoy’s lifeless body out.
“If he reaches for it,” Officer Mark Thompson said “you know what to do,” according to the body camera footage of the killing.
The police’s initial statement on the killing described McCoy “suddenly” beginning to move before he “quickly reached for the handgun on his lap.” But the footage shows McCoy simply scratching his shoulder.
An analysis by The Appeal determined that there have been about half a dozen fatal shootings in Vallejo in the last decade where the officer’s justification of the events was contradicted by witnesses or their own body cameras. But despite such inconsistencies and the fact that Vallejo officers have killed 19 people since 2010, the department has fired just one officer in connection with a fatal shooting during that time. The Solano County district attorney’s office has also cleared officers of wrongdoing in every police homicide case in recent history.
As accountability for police killings in Vallejo remains elusive, new and disturbing allegations about misconduct at the department have surfaced. In July 2020, local nonprofit newsroom Open Vallejo reported that some officers celebrated fatal shootings with barbecues and bending the tips of their badges. Former Vallejo captain John Whitney says he was fired for reporting the practice to the mayor and police chief, among other officials.
“The district attorneys are essentially turning a blind eye to what is going on to the citizens they’re supposed to be representing,” civil rights attorney Adante Pointer told The Appeal. Pointer represented several families of people killed by Vallejo officers. “Instead, I think there’s an inherent conflict of interest and, for most district attorneys, there’s a crisis of a lack of conviction in the sense of them wanting to hold people who offend the community’s sense of consciousness accountable.”
The Appeal examined 17 fatal shootings by the Vallejo police over the last decade and found at least six cases where the person shot was unarmed or the evidence against the deceased relied solely on the shooting officers’ testimonies.
Anton Barrett Sr.
It was just after midnight on May 28, 2012, and a group of Vallejo officers that included Sean Kenney and Dustin Joseph pursued Anton Barrett Sr. and his son. Officers claimed that the white 1999 Lexus sedan that the Barretts were in did not have its headlights on. Barrett Sr. stopped the car at a dark cul-de-sac on the city’s west side, then got out and fled on foot. Anton Barrett Jr., hid in nearby bushes. A K-9 officer, Mark Thompson, sicced his dog on Barrett Jr.
Kenney said he heard “a pop or a boom sound” in the back of a residence in the cul-de-sac that he believed was a gunshot, according to an affidavit filed by Fabio Rodriguez, who is now a lieutenant. Kenney confronted Barrett Sr. between the apartments. Kenney said Barrett Sr. reached into his waistband area and began removing “a black metallic object” that Kenney later described as “the scariest thing he had ever seen.” According to a report from the Solano County DA, Kenney was “in fear for his life” and shot Barrett Sr. five times in the chest, abdomen, and back.
The “black metallic object” was not a weapon—but a black metallic wallet. Although the department’s statement on the incidentreleased later that morning didn’t mention the metal wallet, three days later a police evidence clerk took photos of Rodriguez holding the wallet alongside a Glock pistol to corroborate Kenney’s claim that Barrett held the object like a firearm.
“I noted that the wallet is similar in shape and size to the frame of the Glock, they are the same in color, and have a square and round appearance at times,” Rodriguez wrote in his report.
In clearing Kenney in the shooting, then-Solano County DA Donald du Bain wrote that Barrett’s death wasn’t due to “any unlawful conduct by the officers,” but instead “his demise was the result of his own conduct and poor decisions.”
“They said that his wallet looked like a gun,” civil rights attorney Melissa Nold said at the Sacramento rally in February. “I’ve never seen a wallet that looked like a gun, but that officer [Sean Kenney] gunned him down, no charges.”
In the early morning hours of Oct. 21, 2012, residents on Alameda Street were awakened by loud shouting and banging noises. At 1:28 a.m., Vallejo officers were dispatched to a residence in the 2500 block of Alameda Street on a report that two men were arguing, trying to burn their house down, and had broken car windows in front of their home. Officers—including Kenney, who was involved in the Barrett Sr. shooting, and off-duty Sausalito police officer Ryan McMahon—arrived at the scene at 1:33 a.m. and found Jason Jessie running naked into his home. When officers confronted Jessie inside, they noticed smoke. Then, they said, Jessie’s partner Jeremiah Moore “appeared from the back of the interior of the house with a rifle” and “placed the barrel of the rifle directly against an officer’s stomach.”
The DA’s report says McMahon yelled “he’s got a gun” or something similar.
Kenney fired his .40-caliber pistol, hitting 29-year-old Moore. Kenney told investigators that Moore continued to reach for the rifle, so he fired two more times.
Vallejo police command staff commended Kenney for not pausing while shooting to re-evaluate the incident “as taught in the past,” but rather firing continuously “until the threat stopped.” As The Appeal reported in 2019, Vallejo police are taught to use the “zipper drill,” a method where an officer fires numerous rounds into an adversary, starting low in the body and “zipping” the barrel of the gun up toward the head while continuously shooting.
But in April 2014, a neighbor of Moore’s told KQED that he was waving his arms uncontrollably and didn’t have a rifle in his hands when he was shot. That August, the Solano County DA’s office found that Moore’s killing was “clearly justified.”
A 2014 lawsuit filed in federal court on behalf of Moore’s family says he was on the autism spectrum, which caused him to move his limbs when he was nervous. The lawsuit also states that Vallejo police falsely reported Moore was threatening officers with a gun. The city settled the lawsuit for $250,000 in 2016.
Vallejo police have paid out more than $13 million because of police misconduct lawsuits over the last decade and anticipate another $50 million for outstanding claims.
Around 4:30 a.m. on Sept. 2, 2012, Mario Romero and his brother-in-law, Joseph Johnson, sat in Romero’s 1992 Ford Thunderbird in North Vallejo when officers Kenney and Joseph said they pulled up to the scene because of a burglary report. The officers said that as they approached the vehicle they saw Romero reach for something in his waistband and that he appeared to handle a gun as he stepped out of the car. Then, as Romero and Johnson’s families watched, the officers shot the men.
Romero, 23, was shot 30 times and died at a local hospital. Johnson was shotonce through the hip and survived.
“I couldn’t think of any other … physiological reason why he would reach towards his waistband,” Kenney said in an interview with detectives Todd Tribble and Mat Mustard, who was then the head of Vallejo’s police union. Johnson later told police he didn’t recall Romero getting out of the car or seeing a gun, according to the DA’s report.
The department’s statement on the incident said Kenney and Joseph first fired into the car at Romero, unaware if they hit him. They said Romero “put both his hands down toward his body and entered the interior of the vehicle reaching toward the center console.” Kenney and Joseph reloaded and fired again, only stopping after Romero slumped back into the driver’s seat. Several of Romero’s family members maintained they witnessed an officer fire while standing on the hood of Romero’s car. But investigators say Kenney did not stand on the hood of the vehicle while shooting Romero. Officials acknowledged that Kenney did stand on the hood, but only after the shooting was over.
Joseph said he didn’t find a gun when he searched the driver’s side of the vehicle. But Kenney said he later found a replica Beretta PX4 pellet gun wedged between the driver’s seat and center console with the barrel pointed at the floorboard and the magazine at the front of the car.
“I grabbed the handgun, start to clear it and then uh, it, kind of a dumb move on [my] part, I realize I don’t have [a] glove on and there’s a bunch of blood and then, everything else all over the place. So I put the gun back in the position that I found it,” Kenney told detectives.
Romero’s family disputes the police narrative of the incident, particularly their characterization of him as a drug-dealing gang member. Cyndi Mitchell, one of Romero’s sisters, said her brother was not engaged in a crime when police killed him.
“They attempted to create a narrative to paint him as a bad person when he was just sitting in front of his house, minding his own business,” Mitchell said. “This police-issued training weapon got planted inside Mario’s car with no fingerprints on it, except for Sean Kenney’s, in my brother’s blood. They created a narrative to match what was going on.”
Mitchell also said that because the seat belt in Romero’s car was broken “when he was murdered, his biggest fear was getting a seat belt ticket.” Indeed, Mitchell’s family said that when Romero’s body was removed from the vehicle after he was shot, he had to be cut out of his seat belt, which was tied in a knot.
In 2013, DA du Bain cleared Kenney and Joseph in Romero’s killing, writing they “had no viable choice but to defend themselves by eliminating what appeared to them to be a very real threat.” Du Bain also dismissed allegations that the replica gun was planted, saying: “It would be unreasonable to believe that anyone, in an attempt [to] fabricate evidence to justify a shooting, would choose to plant a replica firearm such as a pellet gun rather than a real firearm.”
Kenney—who shot five people during his more than 10-year career in Vallejo—has the highest number of shootings in the Vallejo Police’s Department. He was promoted to detective in 2013 and retired in 2019. He later founded Line Driven Strategies, LLC, which trains officers in California on de-escalation techniques, including “how to legitimize the profession to the naysayers,” according to emails obtained by The Appeal.
Joseph works for Line Driven Strategies and the Fairfield Police Department. In November, nine people who were protesting his hiring in Fairfield were arrested at a City Council meeting.
This is a man who continuously is imagining guns. And they still didn’t fire him. It’s a systemic problem, over and over.Melissa Nold, civil rights attorney
Just after midnight on Jan. 23, 2017, Vallejo police responded to reports of people fighting at a house on the corner of Sacramento and Nebraska streets. Minutes after he arrived on the scene, Officer Zachary Jacobsen shot Angel Ramos four times on a balcony from “15 to 20 meters,” or 50 to 65 feet away. Jacobsen said there was sufficient light to see that Ramos had a knife and was making stabbing motions toward a person on the ground.
Later that day, Vallejo police put out a statement describing the incident as a “21 year old male was holding a knife and presented himself as an immediate and lethal threat to the victim down on his back.”
“Actually what happened is that he was in a fist-fight with an equally sized adult,” Nold, the civil rights attorney, said at the Sacramento rally, “and he wasn’t armed and they lied to vilify him in the public eye so nobody would give a damn that he was murdered in his home in front of his family.”
Several witnesses told officers that Ramos didn’t have a knife when he was shot, but a knife with Ramos’s DNA was found in the kitchen sink, according to police. Officer Jeremy Callinan said he didn’t see Ramos with a knife, but if Jacobsen hadn’t shot him, “he would have used deadly force to protect the victim’s life.”
In February 2018, Solano County DA Abrams determined that Jacobsen “acted lawfully” “to defend others from imminent death or great bodily injury.”
Ryan McMahon—the off-duty Sausalito police officer riding with Sean Kenney when he killed Jeremiah Moore—was hired by the Vallejo Police Department in 2017.
On Feb. 13, 2018, McMahon saw 33-year-old Ronell Foster riding his bike at night without a light. In about a minute, McMahon chased Foster, shot him with a Taser twice, struck him repeatedly with his flashlight, and shot him in the back and the back of the head. McMahon activated his body camera after killing Foster. Body camera footage shows Foster grabbing McMahon’s flashlight before turning away from him as McMahon began shooting.
In an initial statement, Vallejo police said there was “a violent physical struggle” before McMahon “discharged his duty firearm in self-defense.” A statement posted the next day said Foster “managed to forcibly take away a metal flashlight from the officer and armed himself with it, presenting it in a threatening manner.”
Vallejo police said the shooting was justified because Foster was armed with McMahon’s flashlight; the department reiterated that justification in the “Information on Officer-Involved Shootings 2015-2020” fact sheet on its accountability and transparency page.
Pointer, the attorney representing Foster’s family, told The Appeal that Vallejo police release information “under the guise of transparency, continuing to double down on the lies that Ronell Foster deserved to be killed because he was armed with a flashlight.”
“That is a completely false fabrication and frankly a very weak and unsupported excuse to justify what I believe to be the murder of an unarmed man who was simply trying to defend himself,” Pointer said. “The idea and statement to say he was armed is simply not true.”
In a February 2020 deposition in a civil case brought by Foster’s family, McMahon said that “I assessed in my head, ‘Hey, this guy took my light, he’s going to hit me with my light’ and the next thing I knew I was shooting.” McMahon also said that he was not contacted by investigators with the Solano County DA—who cleared him in the incident—nor interviewed by Vallejo police’s command staff.
In September, McMahon was fired, not for killing Foster, but for allegedly endangering another officer while firing at Willie McCoy in 2019.
The city of Vallejo also settled the Foster case in September for $5.7 million. It is one of the largest payouts for a police killing in the history of the Bay Area. Pointer told The Appeal that the huge settlement is indicative of the city’s concerns that a jury would have given the family an even larger amount had the case proceeded to trial. “It’s more probably damage control than it is accepting the seriousness of the travesty that took place here,” he said.
Last year, in the early morning hours of June 2, Vallejo police responded to calls of vandalism and looting at a Walgreens on Redwood Boulevard. When officers arrived, cars filled with people scattered, and one hit a police vehicle. Unrest was spreading across the U.S. after the police killing of George Floyd in Minneapolis just days before, and police were on edge.
“It looks like they’re armed,” Captain Lee Horton broadcast to other officers.
Seconds later, Detective Jarrett Tonn fired his tactical rifle five times from the backseat of a moving unmarked police truck. One of his shots hit 22-year-old Sean Monterrosa of San Francisco in the neck, killing him. “Hey, he pointed a gun at us!” Tonn yelled to his fellow officers, according to body camera footage.
Monterrosa was not holding a gun, but a hammer that he’d used to try to pry open a pharmacy locker inside the store. It was Tonn’s fourth on-duty shooting in five years.
“Each one of those people he shot at previously he claimed was armed,” Nold said. “None of them were armed. This is a man who continuously is imagining guns. And they still didn’t fire him. It’s a systemic problem, over and over.”
Vallejo Police Chief Shawny Williams waited 38 and a half hours to announce that the shooting was fatal. He first said Monterrosa was kneeling with his hands held above his waist when he was shot. Williams later changed his description of the incident after the Vallejo Police Officers Association (VPOA) released its own version of events, which included allegations that Monterrosa “engaged” officers and was “crouched into a tactical shooting position.”
Williams’s description later mirrored the VPOA’s story, but he told the San Francisco Chronicle he was merely clarifying the “narrative.”
Two Vallejo lieutenants—Fabio Rodriguez and Michael Nichelini, the president of the VPOA—were put on leave related to the alleged destruction of evidence in Monterrosa’s killing. In July, the California Department of Justice announced that it was investigating. “The allegations concerning destruction of evidence under the watch of the Vallejo Police Department are significant,” said Attorney General Xavier Becerra, who was just confirmed by the U.S. Senate to head the Department of Health and Human Services.
DA Abrams has recused her office from two of the most recent fatal police shootings—McCoy and Monterrosa—citing the public’s distrust in her.
The public information officer for the Vallejo Police Department did not respond to multiple requests for comment from The Appeal.
Pointer says too often prosecutors allow police officers to justify killing people who are holding everyday objects, from a phone to a bag of Skittles.
“To put it bluntly, these DAs do not have the will or the moral conviction to do right and hold officers accountable and that just sends the worst message possible, which essentially feeds into what we’re seeing: An officer, whether a person is armed or not, gets to say, ‘I feared for my life,’” he said. “And that, in and of itself, is justification for a person to lose their life. And that’s just completely unacceptable. This is just going to continue to happen until they’re voted out of office or just kicked out of office.”
Correction: an earlier version of this article stated that former Vallejo captain John Whitney alleged in a recent whistleblower lawsuit that he was fired for reporting the practice of officers bending their badges to celebrate fatal shootings to District Attorney Krishna Abrams and others. Whitney says he fired for reporting the practice to the mayor and police chief, among other officials. This article has also been updated to clarify that officer Sean Kenney did not stand on the hood of Mario Romero’s vehicle while shooting him. Officer Kenney did stand on the hood, but only after the shooting was over.
Former Louisiana Supreme Court Chief Justice Bernette Johnson’s fiery dissents on mass incarceration and sentencing in America’s most carceral state garnered international attention. But the rise of the first Black woman on the court was characterized by one battle after another with the Deep South’s white power structure.
Former Louisiana Supreme Court Chief Justice Bernette Johnson’s fiery dissents on mass incarceration and sentencing in America’s most carceral state garnered international attention. But the rise of the first Black woman on the court was characterized by one battle after another with the Deep South’s white power structure.
It was late October, only a week after Fair Wayne Bryant walked out of Louisiana State Penitentiary at Angola. Bryant’s freedom had not been preordained. The 63-year-old was more than two decades into a life sentence for breaking into a carport storeroom in Shreveport. Bryant’s arrest stemmed from a police search of a van he was riding in where hedge clippers were found. The owner of the home said that the hedge clippers belonged to him; Bryant denied taking them and Bryant’s cousin said they were his.
He had been intermittently incarcerated since he was a young man.
Bryant was previously convicted, and sentenced to 10 years in prison, for the 1979 attempted robbery of a cab driver during which an accomplice shot the driver. He was then convicted in 1987 for the theft of multiple telephones, a remote control, and “a robot” from RadioShack, and sentenced to two years of hard labor. In 1991, he was sentenced to 18 months of hard labor after forging a $150 check. Then, in 1992, he was sentenced to four years for another burglary.
The now-infamous life sentence, covered everywhere from the Guardian to CNN, was a result of Caddo Parish district attorneys invoking the state’s habitual offender statute—in August 1997 and again in February 2000.
For decades, Caddo was a snakepit of racism in which Black people were wrongfully prosecuted and frequently prevented from serving on juries at a courthouse that, until 2011, proudly displayed the flag of the Confederacy. Attorneys for Felton Dorsey, a Black man sentenced to death in Caddo Parish in 2009 for killing a white former firefighter, wrote in a brief that he suffered discrimination in his case because Black people were struck from his jury and “the quintessential symbol of white supremacy looms over the courthouse.”
And yet, here Bryant was, chatting via Zoom. He’s got a gleaming bald pate, a kink in his back, and some pain in his shoulder. He’s flummoxed by cellphones, having last used a push-button model.
Bryant was recalling where he learned of the dissent, written by the chief justice of the Supreme Court, Bernette Johnson—the first and only Black woman to hold the position.
“I was in the dormitory, man, in penitentiary. An inmate counselor that was from my hometown, he got an email that morning.” Bryant was shocked, primarily because in July 2020 the Louisiana Supreme Court refused to review his sentence. “That was one writ that they shouldn’t have denied.”
“It is cruel and unusual to impose a sentence of life in prison at hard labor for the criminal behavior which is most often caused by poverty or addiction,” the counselor read to Bryant. In her July 31 dissent, Johnson had noted with withering precision that laws like the habitual offender statute were the “modern manifestation” of post-Reconstruction era “pig laws,” which allowed Southern states to enslave Black Americans without running afoul of the 13th Amendment. “Pig laws,” Johnson wrote, “targeted actions such as stealing cattle and swine—considered stereotypical ‘Negro’ behavior—by lowering the threshold for what constituted a crime and increasing the severity of its punishment.”
In her dissent, Johnson also blasted the profound moral and fiscal costs of mass incarceration. “Since his conviction in 1997, Mr. Bryant’s incarceration has cost Louisiana taxpayers approximately $518,667,” Johnson wrote, “Arrested at 38, Mr. Bryant has already spent nearly 23 years in prison and is now over 60 years old. If he lives another 20 years, Louisiana taxpayers will have paid almost $1 million to punish Mr. Bryant for his failed effort to steal a set of hedge clippers.”
“This man’s life sentence for a failed attempt to steal a set of three hedge clippers is grossly out of proportion to the crime and serves no legitimate penal purpose,” she concluded. “For the reasons cited, I would grant the defendant’s writ application.”
The significance of this rifle-shot dissent was not immediately clear to Bryant. He understood, though, that he had an ally on the state’s highest court. But he could see that, despite her seniority, the chief justice was but one voice—that of a Black woman on a court otherwise white and male. “I understand everything that she went through, trying to help me,” Bryant says, his voice filled with unnerving equanimity. “But sometimes, you ain’t going to be successful in everything you set out to do in life. You’re going to always have someone somewhere fighting against you.”
This is particularly true, not just in Louisiana but in state supreme courts across the country. In Florida, the all-white Supreme Court bolstered executions amid a pandemic. And in a 4-3 vote, Michigan’s court—which has since flipped to Democrats—hamstrung Governor Gretchen Whitmer’s efforts to mitigate the spread of COVID-19.
“State supreme courts matter because they are the primary interpreters of state law. In the U.S., we have both federal law and state law, and the federal courts will defer to the interpretation of a state law by its own state supreme court,” Loyola University New Orleans law professor Andrea Armstrong told The Appeal. The state supreme courts are also important because, in criminal cases, they generally handle the appeal. “That may be the first time that someone is looking at whether the punishment is excessive, for example, as compared to other cases.”
Johnson, 77, retired at the end of last year. She was often a sole voice arguing for justice. It was a lonely position, for which she fought ferociously. That the chief’s enemies, on and off the court, had for decades been so intent on limiting her influence—even colluding to prevent her from assuming the position of chief justice—made her accomplishments all the more impressive.
Over the last four months, The Appeal talked to dozens of people from Johnson’s life, including friends, classmates, judges, and former clerks. She did not respond to multiple requests for an interview.
Inequality and Disparities
Bernette Joshua was born on June 17, 1943, in Donaldsonville, Louisiana, a farming community northwest of New Orleans. Her mother and Navy man father and three brothers lived under the segregationist yoke of Jim Crow.
From the beginning, Joshua’s intelligence and willingness to do the work was apparent. “Bernette was really smart,” said Cynthia Spears-Hills, a classmate at Walter L. Cohen High School in New Orleans, named for a free Black man who held office under presidents William McKinley and Theodore Roosevelt. Spears-Hills rued that she herself had not been sufficiently academics-minded to take courses with the future jurist—the class of 1960’s valedictorian.
Joshua’s first choice for college was Columbia University, but it didn’t admit women. Instead, she took a full scholarship to Spelman College, the famed historically Black women’s college in Atlanta. The Greensboro sit-in—a nonviolent protest against a segregated lunch counter in the North Carolina city, organized by the Student Nonviolent Coordinating Committee—occurred earlier that year, and it captured the students’ imagination.
“You have taken up the deep groans of the century,” Martin Luther King Jr. said in an address at Spelman that April. “The students have taken the passionate longings of the ages and filtered them in their own souls and fashioned a creative protest.”
Even professors were encouraging; Howard Zinn, chairperson of the college’s history and social sciences department, lent students his car to get to a demonstration.Lois Moreland, a beloved political scientist, provided counsel. “I was not a strategist for the movement, but I was supportive in the sense that anybody who is under pressure wants a sympathetic sounding board,” she recalled in an oral history.
Parents were terrified that their children would take part in off-campus demonstrations, with the murder a few years earlier of Emmett Till still fresh and the Ku Klux Klan, clad in burgundy robes, picketing in downtownAtlanta. (The yearbook editors made light of the terrorist organization, captioning a photo of Spelman women sitting with a classmate clad in a white hoodie, “They are celebrating Barbara’s great achievement—she is now a member of the Ku Klux Klan.”) So, for the most part, the students remained on campus, where they met up with men from Morehouse College for an hour or so a week, enjoyed co-ed bowling, or attended “sweetheart dances” at which they were serenaded. Every Sunday was vespers, and then lectures from the likes of civil rights leaders Julian Bond and Howard Thurman.
Spelman students were aware of how their parents scraped to send them to college. They knew their primary purpose was to study. But it was impossible not to engage in civil rights struggles. Leronia Josey, a classmate of Joshua’s, told The Appeal, “The inequity and the disparities and stuff were enough to drive you nuts, you know?” Josey, who became a lawyer, remembered her father sending the administration a letter, begging to keep his daughter away from protests.
Joshua, who wrote for the student newspaper and headed the school’s NAACP chapter, was a class standout. But she was hardly alone. There was Marcelite Jordan, who became the first Black female general officer of the United States Air Force; Alice Walker, author of “The Color Purple”; and Ida Rose McCree, a firebrand activist who was photographed holding a sign that read “WE WANT TO SIT DOWN LIKE ANYONE ELSE” as King, to her right, was led away by Atlanta police.
For Joshua and her fellow political science majors, the law was seen as a potential instrument of justice and equality. During those years of protests and “mass meetings” at Spelman, and Saturdays picketing a local department store, she became acquainted with attorneys. The summer after graduation, she worked for the NAACP Legal Defense and Educational Fund on desegregation cases in the South. Joshua saw that, while Brown v. Board of Educationwas a judicial landmark, enforcement required filing dozens of lawsuits across Louisiana—an experience that convinced her to go to law school. “I had a chance to see these civil rights lawyers at work,” she later told Louisiana Bar Journal, “and I decided that this was a way to be a change agent.”
Louisiana State University had admitted Black students to its law school once before. In 1951, Pierre Charles, Robert Collins, and Ernest “Dutch” Morial began their studies. Charles dropped out after one semester, but Collins and Morial graduated in 1954. “Generally there was not a great deal of hostility,” Morial would say, but there were, he allowed, “some who shunned myself and Collins.”
It was another decade before LSU law school—whose dean, Paul Hebert, had been a Nuremberg trial judge—admitted more Black students. In September 1965, Joshua and Gammiel Gray (now Poindexter) began their studies. Gray, a future General District Court judge in Virginia, had wanted to be a lawyer since she was 7 years old in Baton Rouge. She didn’t want to do civil rights cases in particular (although eventually, she would); she had a generalist, storefront vision of criminal and civil law, focused on solving problems specifically for Black clients.
Classes were divided into two sections, and the university intentionally grouped the women together. Joshua and Gray had only each other on campus, and they held their own. More than a third of the aspiring lawyers dropped out by the end of the first year, and less than half of the initial class of students managed to graduate.
On a campus where future Ku Klux Klan leader David Duke would soon roam the grounds, the pair faced constant discrimination. A contract law professor had difficulty looking Gray in the face. “It was clear,” she told The Appeal, “he could not stand me being there.” Classmates were often no better and refused to sit next to them. Not long after several legal challenges to the Civil Rights Act of 1964, there was a class discussion of the interstate Commerce Clause being used by Congress to impose integration of public facilities in the South. A professor said legislation was justified because Black Americans couldn’t find public restrooms and restaurants during travel. According to Poindexter, a male student shouted, “Well, they goin’ on a trip. Why can’t they make their own bologna sandwiches and carry it with them? And fry their own chicken and carry it with them? Why do I have to give up some of my rights?”
Often, classmate Charles Weems told The Appeal, the white law students made their opinions of Black people known by hanging Confederate flags in the back windows of their vehicles.
Benjamin Shieber, their constitutional law professor, was an exception. He treated the women with respect, and when Gray’s father died her senior year, he attended the wake. Shieber, 92, remembers when Martin Luther King Jr. was murdered. He wore a black tie to quietly mark the occasion. “Most of the students in the law school were, I’m sorry to say, racist at that time,” he said. “They were not at all unhappy about the fact that Martin Luther King had been assassinated.”
The summer before their second year, Joshua and Gray got jobs organizing in southwest Louisiana—in Opelousas, Lafayette, and Lake Charles. The area was home to an often violent white population, strongly against integration more than a decade after Brown v. Board. Joshua and Gray immersed themselves in the communities and spoke at rallies. They aimed to recruit young people for “freedom of choice” schools. Gray got a sense of Joshua’s worldliness, and her knowledge of oppression, abroad and at home. She talked about South Africa and apartheid. Or how Louisiana department stores were being forced to finally hire Black people. “These bougie middle-class Black people wouldn’t stay out of the stores when they were being boycotted. And then, when the jobs opened up, their children are the first ones who think they ought to have [them],” Joshua told Gray with some disdain.
The next summer, the pair went to Washington, D.C., where Joshua worked for the Justice Department and Gray for the Equal Employment Opportunity Commission. The months they were roommates were glorious for Gray. She’d never met so many people, and loved the city and its freedom. She made up her mind to return after law school.
Later, however, when the women were planning their next steps, Gray asked Joshua about moving to Washington. “Gammiel, we’ve done that,” Joshua replied. “That’s what you do when you’re 22. Now we need to go back home and start our work.”
The Work Begins
Joshua returned home to Louisiana. In 1969, she became the managing attorney at the New Orleans Legal Assistance Corporation. As recounted in the Times-Picayune, she focused on consumer protection in the Lower Ninth Ward, a majority Black, working-class neighborhood. Salespeople frequently saddled the neighborhood’s homeowners with onerous interest rates. “You had folk who owned this little house, they owned this little piece of land,” she told the paper in 2019. “Someone passes by one day, knocks on the door and asks, ‘Wouldn’t it really look nice if you put some aluminum siding up?’ Then, all of a sudden, you miss a payment and there is a horrendous interest rate and now you’ve lost your house.”
For four years, starting in 1974, Joshua was assigned to cases in federal and state district courts, as well as in juvenile court. She married Paul Johnson, with whom she would have three children: Mark, David, and Rachael, a future judge.
In 1981, Johnson became New Orleans deputy city attorney for Ernest Morial, the city’s first Black mayor and a fellow LSU grad. In addition to overseeing a largely Black cadre of younger attorneys, Johnson represented the city in cases ranging from private property disputes to police brutality. Notably, she worked on litigation stemming from the police strike of 1979, which was staunchly opposed by Morial and led to a historic cancellation of Mardi Gras parades.
Johnson was exhaustively prepared and intensely focused. When asked about his first impressions of her, Michael Bagneris, Morial’s then-executive counsel, hesitated a bit then said: “She didn’t take any shit from you.”
The job of deputy city attorney was not generally a stepping stone, but for Johnson it was. She left the mayor’s office after a few years, and in June 1984 announced a run for a seat on the Orleans Parish Civil District Court.
The next month, Johnson’s 13-year-old son Mark died of heat stroke during a high school football practice. He was, she told a reporter, a healthy and active kid. As a newspaper account described it, the coach “forced their son Mark to keep running in the heat and humidity even after he complained of feeling ill” and deprived the players of breaks. According to reports, the Johnsons sued the coach and the school for $516,000.
As a Black person, you never think you’ll get justice at any judicial level, state or federal. You always had all-white everything: white judges, white this, white that, white police officers. To get any judicial help at a state level, you needed somebody who at least looked like you.Ronald Chisom, New Orleans activist
At the outset of 1985, Bernette Johnson, 41, became Judge Johnson. She was the first woman elected to the Orleans Parish Civil District Court.
It was a monumental moment. The history of Black lawyers and Black judges in Louisiana is rife with racism and suppression. Jim Crow kept the legal profession all-white. It wasn’t until 1950 that Southern University—like Spelman, an HBCU—graduated its first law school class. It wasn’t until 1978 that Orleans Parish Civil District Court had a Black judge, when Revius Ortique Jr. was appointed by the Louisiana Supreme Court. And while there had been a smattering of Black judges across the state, there had never been a Black justice on its Supreme Court, which was established in 1813. This was true in the years after Reconstruction, when Black Americans began to migrate to New Orleans, and it was true a century later, when they comprised more than half the city’s population.
Indeed, that was by design.
The state’s Supreme Court was kept all-white by making it as difficult as possible for Black Louisianans to vote. In 1898, undermining the 14th and 15th Amendments, state lawmakers instituted, among other measures, literacy tests and property requirements. Voting registration among Black Louisianans plummeted. “Even once the Voting Rights Act [of 1965] began opening up voting rights in registration and in legislative races, there was a presumption that the judiciary was ‘above politics,’ so the VRA would not, and could not, apply to judicial races,” William Quigley, professor of law and director of the Loyola University Law Clinic, told The Appeal.
Exacerbating the civil rights crisis, the lines for the Supreme Court seat were redrawn in 1974, as New Orleans was becoming a majority-Black city.
There were a constitutionally mandated seven justices on the Louisiana Supreme Court, elected from six geographical judicial districts. All but one of the districts elected one justice apiece. The First District—comprising Orleans, Plaquemines, Jefferson, and St. Bernard parishes—elected two. By the late 1980s, the population of Orleans Parish was majority-Black, but the population of the four parishes combined was 63 percent white.
This made it nearly impossible for residents of New Orleans, then the most populous city in the state, to elect a Black justice to the Supreme Court.
Enter Ronald Chisom, a renowned local activist who took on slumlords. Chisom was tired of decisions regarding his humanity being made entirely by white people. “As a Black person, you never think you’ll get justice at any judicial level, state or federal. You always had all-white everything: white judges, white this, white that, white police officers,” Chisom, 79, told The Appeal. “To get any judicial help at a state level, you needed somebody who at least lookedlike you.”
On Sept. 19, 1986, as Johnson was nearly midway through her first term on the civil district court, Chisom became the lead plaintiff in alawsuit challenging the constitutionality of the First District. He and the other plaintiffs—including New Orleans lawyers Marie Bookman, Walter Willard, and Ernest Morial’s son, Marc—sued Governor Charles “Buddy” Roemer.
Chisom’s legal team, comprising Quigley, local attorneys, and legal giants Pamela Karlan and Lani Guinier, argued that Louisiana’s election system violated not only the 1965 Voting Rights Act and the 14th and 15th Amendments, but 42 U.S. Code § 1983, which prohibits the deprivation of individual civil rights as well. The lawyers argued that the state’s First District should be cleaved into two districts: Orleans Parish would elect one justice, while St. Bernard, Jefferson, and Plaquemine parishes combined would elect the other. That way, the vote of New Orleans residents would finally carry a weight equal to that of residents in the other, whiter parishes.
Chisom’s lawyers also sought class certification of the approximately 135,000registered Black voters of Orleans Parish and, at minimum, a temporary halt to Supreme Court elections until the legal proceedings were over.
U.S. District Judge Charles Schwartz Jr. wasn’t persuaded—he said that Section 2 of the Voting Rights Act did not apply to the election of state judges—and granted Louisiana’s motion to dismiss the lawsuit.
Chisom’s legal team persisted, and less than a year later, the lawsuit progressed to the Fifth Circuit Court of Appeals. One judge, Samuel D. Johnson, argued that Section 2 of the Voting Rights Act did apply to state judicial elections. Judge Johnson reversed the decision, and the court battles continued for several years until, in 1991, the U.S. Supreme Court ruled in favor of Chisom.
“No one was certain we would win,” said Quigley. “All of us were certain justice was on our side.”
As a consequence of the decision and a federal consent decree, the Louisiana Legislative Black Caucus had to create a compromise. It was a delicate situation. Two justices, Pascal Calogero and Walter Marcus Jr., were already representing Orleans Parish. If the lines were redrawn, one would likely lose a seat in an election.
The settlement, reached in 1992, was called Act 512. The plan was for the number of justices on the Supreme Court to temporarily increase to eight, and sit in panels of seven, similar to an appellate court. (Supreme courts have the power to assign any judge to their benches, an action most commonly used if there’s a recusal.) The temporary eighth justice, known as the “Chisom seat,” would be picked from the court of appeals and be from New Orleans. According to the consent decree, that justice would “participate and share equally in the cases, duties, and powers of the Louisiana Supreme Court” and “share equally in all other duties and powers of the Supreme Court, including, but not limited to, those powers set forth by the Louisiana Constitution.” Once Calogero and Marcus retired, the seat would automatically get redrawn and the Supreme Court would shrink back to seven. The settlement was to remain in effect until 2000.
As a direct result of the compromise, Revius Ortique, a lifelong New Orleanian who served in World War II, earned his law degree from Southern University in 1956, and litigated civil rights cases, was elected that year to the Fourth Circuit Court of Appeal. He became the state’s first Black Supreme Court justice.
Perschall v Louisiana
There’s little in the newspapers about Johnson’s early years on the Orleans Parish Civil District Court, to which she was re-elected in 1990. There are, however, scattered news items that give a window into her decisions.
In November 1987, Johnson ruled that Fair Grounds Race Course couldn’t require its jockeys to sign waivers absolving the track of liability. In September 1990, when New Orleans teachers went on strike, she declined to force the school system to hire certified substitutes, on the grounds that such an act was “beyond the authority of this court.” Three years into her second term, in December 1993, she ruled that the New Orleans Police Department was negligent for failing to discipline an officer accused of brutality.
Marc Morial tried several cases before Johnson. “She was a no-nonsense judge,” he said, “very studied in the law, not suffering clowning and foolishness in the courtroom.” Ulysses Gene Thibodeaux, the chief judge of the Third Circuit Court of Appeal, said Johnson was known for having “an empathy for those who came before her, because she had walked in their shoes.”
In 1994, two Supreme Court seats opened up because of the retirements of Ortique and a white justice named Pike Hall Jr. Johnson, who had recently been elected chief judge of the district court, announced a run for the Fourth Circuit—which, under the Chisom compromise, meant a seat on the Supreme Court. She had run for the seat two years earlier and lost to Miriam Waltzer.
Also running for the Orleans Parish seat was Waltzer, who is white and Jewish, and Fourth Circuit judge Charles Jones, who is Black. Both Johnson and Jones were publicly opposed to Waltzer being in the race. “If someone agrees with civil rights and has all their life, then they need to be with us,” Johnson told reporters. “And if someone says they agree with us on civil rights, but they’re opposed to us [being a Supreme Court justice], then their whole life has been a lie.” Jones, too, was blunt: “The race is about race.”
Waltzer denied that she was standing in anyone’s way, and suggested voters could elect whomever they liked: “Now that the playing field is leveled, I think I can play on it just like anybody else.”
Waltzer won 49 percent of the primary vote to Johnson’s 42 percent, while the rest went for Jones. Nonetheless, a week later, out of the belief that a runoff would be corrosive for the city—and because, she told The Appeal recently, threats of violence were made toward her family—Waltzer withdrew.
Five weeks later, in November 1994, Johnson was sworn in as associate justice by Mayor Marc Morial—whose father she worked for so many years earlier.
The attacks on Johnson’s legitimacy as a justice began almost immediately. Clement Perschall Jr., a white attorney from Metairie—a New Orleans suburb once home to David Duke and, more recently, the office of U.S. Representative Steve Scalise—filed a suit in district court, asserting that the legislation that created the temporary eighth seat was unconstitutional. He believed that, as a lawyer, he was therefore “unable to provide predictable legal advice to his clientele.” Perschall, asked the court to strike down the law and void every Supreme Court decision rendered since the Chisom settlement took effect.
With Perschall’s lawsuit bouncing around the courts, Johnson focused on the work. Shefound the Supreme Court vastly different from the district court, where she could “sign my name and make something happen.” Now Johnson had to convince three or more colleagues to take her side.
In November 1996, five justices agreed to bypass the lower courts and hear Perschall’s challenge to the Chisom seat, with oral arguments to begin the next year. That same month, she and Chief Justice Calogero implored their colleagues to overturn the death sentence of Albert Lavalais III—a Black man who at age 19 murdered a woman at the behest of her white husband, George Smith. Smith was sentenced to life in prison for ordering the murder. Johnson, in her dissent, detailed the historical resonance of Lavalais’s situation—he was a farmhand whose family had for years worked on Smith’s thousands of acres—and rebuked the prosecutor for saying Lavalais was an example of “plantation culture”:
“As can be expected with any ‘plantation culture’, after living on the land for several generations, individuals become economically dependent, and can easily be intimidated into carrying out the wishes of landowners, even when doing so is not in their own best interest. Such individuals become bound by emotional ties which are not easily untangled. Because of these circumstances underlying Lavalais’ actions and the nature of his relationship to Smith, Lavalais was under the domination and control of Smith, and such fact should have been a mitigating factor during the sentencing phase of Lavalais’ trial.”
Angela Smith’s body was never found. Lavalais’s death sentence was commuted to life in prison.
No one was certain we would win. All of us were certain justice was on our side.Bill Quigley, Professor of law and director of the Loyola University Law Clinic
“8TH SUPREME COURT SEAT IN JEOPARDY,” blared a Shreveport newspaper in February 1997, when Johnson, as well as justices Marcus and Calogero—whose seats were being questioned—recused themselves during a hearing at which Perschall asked the court to invalidate the agreement that brought Johnson to the bench.
Perschall, once again, argued that the seat was unconstitutional. The state’s lawyers argued conversely. Furthermore, they said, because state law and the federal court settlement were indistinguishable, the Louisiana Supreme Court was in no position to determine constitutionality. “You are being asked to do the unthinkable—having Louisiana law invalidate federal law,” said an attorney for the state.
With the lawsuit still pending in federal court, the Supreme Court ruled in July 1997 that the Chisom settlement had, in fact, violated the state’s constitution. However, because the seat had been created by the legislature, the court felt it couldn’t undo it. Thus, the seat would remain. Morial was furious. “This opinion sends a very disturbing signal to the nation about Louisiana,” he said. “What this does is create the prospect that compromise is replaced with conflict.”
In December, Charles Schwartz, the federal judge who years earlier had been unpersuaded by the Chisom lawsuit itself, upheld the creation of the seat.
James Williams, an ambitious attorney who oncecollaborated with U.S. Supreme Court Justice Clarence Thomason a law journal publication, became Johnson’s clerk not long after the Perschall decision. If she was angry or resentful that her colleagues ruled the seat she occupied was unconstitutional, Johnson didn’t let it show. But, he said, “it was certainly a frustrating feeling.”
In January 1998, in her capacity as chairperson of the National Bar Association’s Judicial Council, the country’s largest organization of Black judges, Johnson invited Thomas to speak at the summer’s annual convention. The group’s members were furious and moved to rescind the invitation. The contretemps thrust the organization into the national spotlight. Johnson was unmoved by the dissension. “The British are sitting down with the Irish. Palestinians are talking with Jews. And the Hutus can make peace with the Tutsis. But we can’t live with Clarence Thomas,” she said.
Johnson didn’t mind angering colleagues, whether from the Judicial Council or on the bench. “She pisses them off quite often,” Alanah Odoms, head of the ACLU of Louisiana, said recently. By the late 1990s, taking a humane position on the inequities of the criminal legal system put Johnson decidedly out of step with Louisiana. Williams said the disproportionately negative effect on Black people in the state “kept her up at night.”
Johnson wasn’t a traditional liberal (her jurisprudence was arguably to the right of, say, Miriam Waltzer’s), but her opinions could seem progressive. This is particularly true on a court that had only become more conservative. Morial said that, historically, Louisiana’s Supreme Court was progressive for a Southern state, and remained so at least through the 1970s and 1980s. But then the state at large went from purple to red, and the court went with it. That was “a frustration to Justice Johnson.”
Black people in Louisiana had few allies on the court. Consider the case of Dobie Gillis Williams, convicted of murder in 1984 and sentenced to die. His lawyers argued that, in the event of a stay, Williams deserved a new execution date. The Supreme Court, with the exception of Johnson, disagreed, and Williams—famously championed by Sister Helen Prejean—was executed by lethal injection in 1999. That December, Johnson was, again, the lone dissenter when the court restored the life sentence of James Tyrone Randall, convicted of simple robbery, of a bicycle, and previously for possession of stolen goods; the sentence, applied under the habitual offender laws, had been vacated by an appeals court. Then, in 2001, Johnson was alone in arguing that Emmett Dion Taylor, a Black man accused of murdering an elderly pharmacist, should be granted an appeal. His lawyers believed that prosecutors intentionally kept Black people off the jury.
That same year, in a widely publicized case, the Supreme Court upheld Timothy Jackson’s sentence of life without the possibility of parole for shoplifting a $160 jacket. Jackson, a New Orleanian with a sixth-grade education, struggled with substance use disorder. Instead of giving him the standard two-year sentence, the court—taking into account a conviction in juvenile court and two car burglaries—decided he should spend the rest of his life incarcerated. After Louisiana’s Fourth Circuit Court of Appeals decreased the sentence, the Supreme Court majority ruled, as the ACLU put it, “that judges may not depart from life sentences mandated by the habitual offender law except in rare instances.” Johnson wrote, “This sentence is constitutionally excessive in that it is grossly out of proportion to the seriousness of the offense.”
By then, Johnson was in her second term as associate justice. She had finally been elected to the Supreme Court itself, and the Chisom seat vanished.
The most pivotal moment in Johnson’s career on the court was arguably one entirely out of her control. On the morning of Sunday, Jan. 10, 2010, Chief Justice Catherine “Kitty” Kimball awoke to find that she could not walk in a straight line. “Honey, I’m having a stroke,” she said to her husband. Almost precisely a year prior, she had been sworn in as chief—a position given to the member of the court with seniority. Kimball, the first woman elected to the court, succeeded Calogero.
Kimball was released from the hospital in Baton Rouge in February 2010, after surgeons removed a clot in her brain. But within months, Kimball told reporters she couldn’t see out of her right eye, had not resumed her administrative or judicial duties, and was participating in Tuesday conferences from home. She planned to return to the court at the end of the year. But in April 2012, six years before the end of her term, and two years and two months after the stroke, Kimball announced her retirement—effective Jan. 31, 2013.
Kimball had returned to the court, but only briefly and not at anywhere near full capacity. Johnson picked up the slack in her absence.
The Battle for Chief
By the summer of 2012, two justices were vying to be chief: Johnson and Jeffrey Victory, who was sworn in to the Supreme Court a month and a half after Johnson was sworn into the Fourth Circuit. The Louisiana constitution was clear: “The judge oldest in point of service on the supreme court shall be chief justice.” Victory, a social conservative, had argued for more than a decade that he should have seniority, but because a vote on the next chief was far in the future, he hadn’t made an issue of it. On June 12, Johnson informed her colleagues that a “transition team” would begin working on her succession. Victory, however, believed Johnson’s time on the Fourth Circuit effectively didn’t count, and within hours of Johnson’s announcement, he and the other justices reportedly met to discuss an alternative. (“I have no knowledge of any such meeting, and if it did occur, I was not present,” former justice Greg Guidry, now a federal judge appointed by President Donald Trump to the Eastern District of Louisiana, told The Appeal.) Kimball, according to Johnson, offered a compromise: Johnson would take over as chief in 2017, after Victory and Jeannette Knoll, who took office in 1997. Johnson rejected the offer. The day after the transition announcement, Kimball wrote a memo to the justices, soliciting their opinions on seniority. The memo was framed as a matter of personal belief (“Any sitting Justice interested in a legal determination of this matter may file with the Clerk of Court…”), when it was, in practice, an end run around Chisom. Johnson hired James Williams and filed a lawsuit in federal court to stop the process. She argued the constitutionality of her seniority had been settled since 1992, so it wasn’t up for debate. The next day, three federal judges recused themselves from the case, and it was transferred to district court. The Justice Department’s civil rights division, which had been asked by Black lawmakers to intervene, supported Johnson, pointing to the Chisom settlement.
On July 25, Johnson addressed the state Senate Judiciary Committee. She told its members that, in nearly a year as acting chief justice following Kimball’s stroke, “I was never challenged by any other justice or staff as to my authority as acting judge.” To demonstrate that Johnson had indeed been a justice longer than Victory, Williams showed the committee a photograph taken early in Johnson’s first term. The group shot of the court’s eight justices had arrived in the mail, sent anonymously. Johnson was in the photo; Victory was not.
The next month, Governor Bobby Jindal entered the fray. In a motion filed with the district court, his executive counsel said the decision over who would succeed Kimball as chief should be left to the state.
That the lawsuit was necessary at all was because of “a racially motivated effort to bar a Black woman from occupying this key role on the state’s highest court,” Kristen Clarke, president of the Lawyers’ Committee for Civil Rights Under Law, told The Appeal. (Clarke was recently nominated as assistant attorney general for civil rights in the Biden administration.) In July 2012, Johnson’s lawyers, including Clarke, filed a motion in federal court to affirm her qualifications to serve as the chief justice of the Supreme Court.
A racially motivated effort to bar a Black woman from occupying this key role on the state's highest court.Kristen Clarke, President, Lawyers’ Committee for Civil Rights Under Law
On Aug. 16, 2012, in the U.S. District Court for the Eastern District of Louisiana, arguments began in Chisom v. Jindal. Among the defendants were Kimball, Victory, Knoll, as well as associate justices Guidry, Marcus Clark, and John Weimer—who, it was alleged, colluded to prevent Johnson from being chief. (Attempts to reach Kimball, Victory, Knoll, Clark, and Weimer for this story were unsuccessful.) There was an overflow crowd in Judge Susie Morgan’s courtroom, with Black judges from around the state sitting in the jury box. As the lawyers saw it, this was another chapter in the landmark Chisom case, and Ronald Chisom himself was in the crowd. In a courtroom down the hall was another group of attendees, most of whom wore black buttons emblazoned with ‘BJJ’ and ‘CHISOM’ in white type.
The arguments were largely a retread of the Perschall case: Was the Chisom seat the constitutional equal of the other Supreme Court seats? If it was, Johnson had seniority and deserved to be chief. “In 200 years, every chief justice has ascended to the position by ascending automatically,” Williams told the court. Williams said that, because of the consent decree, Johnson was the equal of her fellow justices from the moment she was elected to the Fourth Circuit. To emphasize Johnson’s seniority, Williams again produced the group photo of the justices. “Obviously, Justice Victory is noticeably absent.”
The lawyer for the state argued that it wasn’t taking a position on who should be chief. “No one has suggested that Justice Johnson should not be the next chief justice,” he said, disingenuously, and the matter should be left up to the state Supreme Court to decide.
After the hearing, Chisom stood in the courthouse plaza. “To put it under the state—I’m nervous about that,” he said, according to The Associated Press. “I’m frightened about that.”
Chisom’s fear wasn’t borne out. On Sept. 1, Judge Morgan sided with Johnson. “The Court finds that the Consent Judgment provides for Justice Johnson’s service on the Louisiana Supreme Court … from November 16, 1994, to October 7, 2000, to be credited to her tenure on the court for all purposes under Louisiana law,” she wrote.
Jindal’s lawyer asked the Fifth Circuit to review the ruling, but the state dropped its appeal and the Supreme Court, with Johnson, Knoll, and Victory recused, voted unanimously to make Johnson chief.
“In my opinion, the justices listened to the wisdom of the public,” said Quigley, the law professor who was on Chisom’s legal team. “They lost big in court, and lost even bigger in the court of public opinion. They are smart lawyers who made a grave mistake. They realized their mistake and cut their losses.”
On a cold New Orleans day, Feb. 28, 2013, hundreds of people crowded in front of the Supreme Court in the French Quarter. Watching a Black woman take the oath of office as the most powerful jurist in the state was, for many in attendance, an overwhelming experience. It was also a resounding defeat for Jindal, who was in his second term as governor and was considered one of the most promising figures in the Republican Party.
The Chief Dissents
In the late 1990s, after Perschall, there was an incident that James Williams remembers with clarity. Johnson had a meeting with her three clerks.“Look, our opinions are not going to convince anybody of our position” she told them. “So instead of watering down our position to try to get votes that we’ll never get, we’re better off with strong dissents.”
Dissents aren’t a consolation prize for the losing side of a decision; they are both an insight into intracourt conversations, and a hint of the law’s possibilities—a signal to lawyers where a judge’s votes would lay. As society changes, values and laws change with it. In November, the U.S. Supreme Court denied the appeal by prisoners in a Texas geriatric prison, who asked that a lower court’s order mandating that COVID-19 safety protocols be followed. In her dissent, Justice Sonia Sotomayor bluntly described the consequences of her conservative colleagues’ actions: “If the prison fails to enforce social distancing and mask wearing, perform regular testing, and take other essential steps, the inmates can do nothing but wait for the virus to take its toll.” More recently, when Sotomayor broke with the majority in the decision to allow the federal execution of Dustin John Higgs to proceed, she blasted the Department of Justice’s string of government-sanctioned killings in 2020 and 2021. “To put [this moment] in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades,” she wrote, concluding: “This is not justice. … I dissent.”
A century ago, U.S. Supreme Court Justice John Marshall Harlan was known as “the Great Dissenter,” most famously breaking with his colleagues on Plessy v. Ferguson, the 1896 decision that established the “separate but equal” doctrine. The Plessy ruling was a “bible,” said Justice Thurgood Marshall, himself known for contributions to the law through dissents. Marshall used them to argue for affirmative action, in favor of true desegregation, and, repeatedly, against the death penalty. Marshall would ask his clerks, Loyola University’s Armstrong told The Appeal, “So, how do you feel about writing dissents?”
“It’s not just vanity that makes a judge or justice take time to write a dissent,” said Armstrong. “It is their contribution to a vision of what the law does.” It was as chief justice that Johnson truly cemented her legacy—which, to a great degree, is found in her dissents.
On March 12, 2019, John Esteen collapsed in front of the parole board. Decades earlier, the Gulf War veteran had been convicted of multiple offenses, including those involving cocaine and racketeering. Like Fair Wayne Bryant, Esteen had been sentenced under habitual offender laws. His punishment, 150 years, was effectively a death sentence.
With hindsight, one can draw a line between a pair of Johnson dissents and a second chance for Esteen.
In 2007, Wesley Dick was serving a life sentence of hard labor without the possibility of parole on a 2000 conviction for heroin distribution. Dick had been incarcerated for eight years and was attempting to have his sentence reduced. Dick had reason to believe this was possible; in 2001, the Louisiana state legislature passed reforms that included the elimination of life without the possibility of parole sentences for distribution of heroin.
The court ruled, however, that such reforms could not be applied retroactively. Johnson, then an associate justice, energetically dissented. She cited the 2001 reforms, and argued their intent was “clear and unambiguous.” The reform language, Johnson said, was obviously meant to give incarcerated people a chance to reduce a penalty from mandatory life imprisonment to a lesser sentence of five to 50 years. Johnson also took issue with the majority-held view—that a sentence reduction was an executive branch power, and, therefore, the judiciary had no role. “It is axiomatic that establishing penalties for criminal offenses is the province of the legislative branch of government and that sentencing is the province of the judicial branch of government,” she wrote.
In 2015, Johnson got another chance to fight habitual offender sentences when Esteen filed a writ application to the Fifth Circuit Court of Appeal. He lost. Once again, Johnson dissented. In doing so, said a source close to the chief, she provided “a road map that he was able to use to win the issue.” (This person requested anonymity because they still maintain professional ties to the court.) Those around Johnson noticed that she would sometimes use dissents to communicate directly with incarcerated people in Louisiana, who have little voice, representation, or advocates in the outside world. Her willingness to take a strong stance on cases involving incarcerated people is particularly important in Louisiana, one of the most carceral states in the U.S. While it was true, Johnson wrote, that the 2001 reforms were prospective, subsequent legislation was retroactive. Old sentences, including Esteen’s—which she deemed illegal—could be reduced. Indeed, “the court in which the sentence was imposed may, at any time, correct a sentence that exceeds the maximum penalty authorized by law. The judiciary therefore has authority to amend its judgments after they become final as a result of the legislature’s reassessment of the appropriate penalties for an offense.”
Johnson was aware of the implication of her line of reasoning; it could potentially affect the sentences of hundreds of incarcerees. Unfortunately for Esteen, the majority of the court disagreed with Johnson, believing that, as Armstrong put it, the only remedy to correct this sentence was “an executive power,” such as the Risk Review Panel.
By 2018, however, the Supreme Court got in step with Johnson, who had recently thrown the court’s support behind the Louisiana Justice Reinvestment Task Force. Created by the state legislature—and stacked with lawmakers, judges, prosecutors, law enforcement officials, and attorneys—the task force sought to address the state’s unparalleled levels of incarceration, and to reform the bail system. Among its policy recommendations: a reappraisal of the habitual offender laws.
By this point, Esteen had been filing appeals for years. Now it was early 2019, and he hoped to overturn a dozen years of sentencing law precedent. This time, he was victorious. By 4-3, the justices found that district court judges had the power to immediately reduce sentences stemming from the draconian drug laws and habitual offender laws.
In her concurrence, Johnson took a victory lap. She reminded the court how long she had pushed to reduce these sentences. “I dissented in [State v.] Dick, believing the majority in that case ignored a clear mandate from the legislature. The majority in this case now corrects that error,” she wrote, concluding that Esteen and “similarly-situated inmates are entitled to seek relief through the courts.”
Esteen, however, did not win immediate relief. He remained at Angola, and two months later, a district court judge resentenced him to 100 years. Even as other incarcerated people were released because of the Supreme Court decision bearing his name, Esteen remained imprisoned.
It was the 100-year sentence that enabled his case to be heard by the parole board. On his way to meet the board, he was greeted by other prisoners at Angola. “You’re leading the way for all of us here,” one said to him. “Y’all be blessed, my brothers,” Esteen told them. The three-member board took into account that Esteen had earned a bachelor’s degree behind bars and was a model prisoner. “You have done all the things you’ve done without regards to whether it will please us or not,” a parole board member told him.
Esteen was free.
Johnson had been a prophetic voice on criminal legal system issues, but her final year as chief justice was perhaps her most profound on the bench.
On May 25, 2020, as the COVID-19 pandemic cut a swath through the U.S., Minneapolis police officers arrested a Black man named George Floyd for allegedly using a counterfeit $20 bill to buy cigarettes. Seventeen minutes later, Floyd was dead, pinned down by a white officer who had a knee on his neck for nearly nine minutes.
In the aftermath of Floyd’s death, the largest racial justice movement in decades began across the country.
On June 8, Johnson wrote a letter to her colleagues on the bench, and in the executive and legislative branches of the Louisiana government. Johnson was set to retire at the end of the year, and this was one of her final opportunities to go on the record about racism embedded in the criminal legal system, and the role she and other judges played in this failure. The two-page letter displays a clear-eyed awareness about the racism in Louisiana’s criminal legal system, history, and that people protesting in the streets were driven in part by years of inaction from her profession:
“[T]he protests are the consequence of centuries of institutionalized racism that has plagued our legal system. Statistics show that the Louisiana criminal legal system disproportionately affects African Americans, who comprise 32% of our population in Louisiana, but 70% of our prison population. African American children in Louisiana are imprisoned at almost seven times the rate of White children. Our prison population did not increase fivefold from 7,200 in 1978, to 40,000 in 2012 without decisive action over many years by the legislature and by prosecutors, juries and judges around the state. We are part of the problem they protest.”
Johnson wrote that the criminal legal system was imperiled precisely because it appeared to value white lives over Black lives. “Is it any wonder why many people have little faith that our legal system is designed to serve them or protect them from harm?” she asked. “Is it any wonder why they have taken to the streets to demand that it does?”
In the concluding paragraph, she implored her colleagues “to spend some time reflecting on the ways in which we ask others to accept injustices that we would not.”
Associate justices were not pleased.
African American children in Louisiana are imprisoned at almost seven times the rate of White children. Our prison population did not increase fivefold from 7,200 in 1978, to 40,000 in 2012 without decisive action over many years by the legislature and by prosecutors, juries and judges around the state. We are part of the problem they protest.Bernette Johnson, Former Chief Justice of the Louisiana Supreme Court
The Future of the Court
In the months preceding the election to fill her seat, Johnson continued to issue opinions that tested the bounds of Louisiana legal doctrine. In June, she argued for a retroactive ban on split-jury verdicts, which were intentionally discriminatory and “disproportionately affected Black defendants and Black jurors.” (In April, the U.S. Supreme Court reversed a life without parole sentence in Louisiana for Evangelisto Ramos, who contended that his conviction by a non-unanimous jury was an unconstitutional denial of the Sixth Amendment right to a jury trial.) In August, Johnson issued an opinion regarding Fred Kidd Sr., a Black man convicted by a non-unanimous jury of attempted second-degree murder. “There are some rules of procedure untethered to our history of discrimination against African Americans where the question of retroactive application may carry less weight,”Johnson wrote. The non-unanimous jury rule was “intentionally racist.”
Until recent years, Louisiana was the only state where one could be convicted to a sentence of life without parole on a verdict of 10-2; in late 2018, voters ended the practice. Then in September, mere weeks before Fair Wayne Bryant was freed from prison, the chief took another whack at habitual offender sentencing: “Because drug laws and habitual offender sentencing provisions have been disproportionately used against African Americans, we exacerbate and normalize this disparity if we ignore it in our proportionality analysis under the Eighth Amendment.” (Jason Williams, the newly elected Orleans Parish district attorney, pledged to end the use of habitual offender sentencing.)
These robes would not be easy to fill once the chief stepped down. Three judges, all Black women, ran to replace Johnson on the seat that so many, including Ronald Chisom and the state’s Black legal establishment, fought so hard to secure.
The significance of Johnson’s absence from the court was hard to overstate. In October, Judge Ulysses Gene Thibodeaux of the Third Circuit worried that “many of the issues that she fought for, many of the ideas that she articulated—many of the inclusionary aspirations that she wrote about and spoke about—are going to become secondary.” That these issues had mattered to the court at all was a consequence of the power and influence Johnson amassed over several decades. “That is the power of being chief justice,” Thibodeaux said.
“She has been an unwavering yet sometimes solitary voice for civil rights for all, including some of the most marginalized communities across Louisiana,” said Kristen Clarke. “Her loss, it will create a tremendous void.”
Piper Griffin, who succeeded Johnson as judge on the Orleans Parish Civil District Court, won the election by default, after her remaining opponent dropped out.
Griffin, 58, met Johnson when she began practicing law in 1987. Johnson had a reputation, as a dedicated, intelligent jurist who, despite sitting on the state’s highest court, remained active in the community, Griffin told The Appeal late last year.
It was just after the election, and Griffin discussed how Johnson’s legal views tended to make her enemies rather than friends. It’s the curse, perhaps, of being near the law’s vanguard. As someone widely considered to be in Johnson’s mold, did Griffin find that worrisome?
She did not. “We live in very different times,” she said, noting that Johnson had had to fight simply to retain her seat and then to achieve her seniority. Griffin said that she would not have to engage in these fights because Johnson already fought them. “Do I foresee myself as someone who will have to fight battles? I don’t know.”
Marc Morial, Johnson’s longtime friend and supporter, expects a lot of the new justice. She will have opportunities to boldly stake her claim on the court, to ensure that her beliefs and convictions are enshrined in the books.
“My hope is that she will continue the principled jurisprudence of Justice Johnson and Justice Ortique,” he said. “If Justice Griffin has to write dissents—so be it.”
In late March, four weeks after the first COVID-19 death in the U.S. was confirmed in Washington State, King County health officer Jeff Duchin issued an emergency order authorizing all cities and towns to “reduce the density of existing homeless shelters and encampments” and provide supportive housing to higher-risk individuals in need. By early April, officials in King County—which includes Seattle and is one of the most populous counties in the U.S—negotiated emergency leases with local hotel owners, many of whom were struggling with drastic, COVID-19 induced vacancies.
State and local officials nationwide issued “de-intensification” measures similar to King County’s in order to move homeless people out of so-called congregate shelters and into settings where they could more easily socially distance. The moves often faced local protests and legal battles.
Last year, more than 10,000 homeless adults in New York City were moved from shelters to hotels. While the most vocal resistance came from residents on the Upper West Side, early last month an appellate court ruled that more than 200 homeless men living at an Upper West Side hotel could stay at least another five months. In Austin, Texas, lawmakers just voted to purchase two hotels for homeless people, and will use diverted police budget funds to provide wraparound services for those who’ll live there. In Los Angeles, some people experiencing homelessness can be placed in hotel and motel rooms through “Project Roomkey,” and on the federal level, President Biden has ordered that FEMA increase its reimbursement rate for non-congregate homeless shelters to 100 percent through September.
But a months-long battle in Renton, a midsize suburb of Seattle, illustrates the resistance that advocates for homeless people face when relocating them to hotels, even in liberal communities.
Red Lion Hotel in Renton was one of the facilities that signed a 90-day lease with King County in April, under terms that could be renewed with 30-day extensions. The arrangement allowed for roughly 235 unhoused people living in Seattle’s Downtown Emergency Service Center (DESC) to be transferred to the Red Lion, along with DESC staff.
“Things happened very quickly, we literally had just a few days, but for many of our clients it was their first time in years with their own room and bathroom,” DESC executive director Daniel Malone told The Appeal.
The city of Renton, however, was unhappy that so many homeless people moved into the Red Lion. Officials were also dismayed with what they considered insufficient consultation from King County prior to negotiating the lease. Renton officials demanded that King County and the DESC put in writing exactly when homeless residents would transition out of Red Lion. Local business owners complainedof investing in additional security measures and dealing with property damage caused by homeless people; the police and fire departments reported a spike in 911 calls from the hotel, though they were not always tied to actual incidents requiring first responder assistance. Renton Chamber of Commerce CEO Diane Dobson, who did not respond to a request from The Appeal for comment, led the charge in lobbying the city for clarity on when homeless residents would leave the Red Lion. In May, Mayor Armondo Pavone urged the county to close the Red Lion emergency shelter by July 9. By June, Renton issued a formal code violation against the hotel, arguing it had violated the city’s zoning laws. Among other arguments, Renton officials said the unhoused residents were exceeding the “transient” nature of hotel stays, and that the meal, medical, and mental health services provided to them exceeded the “sleeping purposes” of hotels. Renton then gave King County until Aug. 9 to relocate the residents, and pledged fines of $250 per violation per day after the deadline. “King County must respect City of Renton zoning codes and … Renton will take action to enforce our laws—just like we would do with any other land use violator,” the mayor said in a June 30 press release. Pavone urged King County to “define a timetable and transition plan” so residents could get the long-term services they need, save county taxpayers money, “and so that “Renton citizens and businesses can be relieved of extraordinary impacts the shelter has brought to the city.”
King County officials countered in court that sheltering homeless people at the Red Lion remains necessary in light of the public health emergency and given that the county lacks “access to an equally safe or better alternative location” for the homeless residents.
Not all Renton residents supported their city’s opposition to housing homeless residents at the Red Lion. “They kept saying ‘We’re not NIMBY’ but it’s talking one way and doing something else,” local activist Winter Cashman-Crane told The Appeal.
As the dispute between Renton and King County raged, Red Lion’s owners and staff said they were subjected to abuse from the community. “Ever since we agreed to partner with King County, my partners, my employees, and I have been subject to discrimination, harassment, and vitriol by our neighbors and local community leaders,” Dayabir Bath, a co-owner of Red Lion and leader in the local Sikh community, saidin a court filinglast summer.
By August, the hearing examiner hired to adjudicate Renton’s complaint concluded that the emergency shelter was in violation of Renton’s land-use laws, but if King County applied for an “unclassified use” license to operate during the pandemic, it had a good chance at approval given the legal deference that public health officials receive during emergencies.
King County appealed the decision, but in November, Renton’s City Council introduced an “emergency ordinance” to define how homeless shelters can operate in their city. Renton’s proposed ordinance would limit homeless shelters to 100 people, even if there was additional space in the facility. If it passed and went into effect, over 100 homeless people would be forced to leave Red Lion by June 1, and the remainder by January of next year.
Many urged the council to reject the proposal, including Duchin, the county’s chief health officer. Research conducted by the University of Washington found that the shift from shelters to hotels was successful in stemming COVID-19 among the homeless population. The researchers also found that moving individuals to non-congregate settings improved their feelings of stability, health, and well-being, and increased rates of transition to permanent housing. “If passed, the ordinance will interfere with our efforts to control the spread of COVID-19,” Duchin wrote in a letter.
During a City Council meeting, Alison Eisinger, director of the Seattle/King County Coalition on Homelessness, said there were at least 400 fewer shelter spaces in King County than prior to the pandemic, and eliminating hotel rooms would be detrimental. “When you talk about having to pass this ordinance on an emergency basis, I wonder what that emergency looks like compared to the emergency of COVID-19, the emergency of homelessness, and the emergency of racism in our communities,” she said.
Providers noted that even if Renton characterized its new land-use category in positive terms of allowing for homeless services, in reality the ordinance carried so many new requirements that it would effectively make it impossible for organizations like the Downtown Emergency Service Center to afford operating in the city. And the 100-person cap would mean even if providers could purchase vacant hotels, they would be forced to leave rooms empty.
On Dec. 14, the ordinance passed 5-2. Chip Vincent, Renton’s administrator of community and economic development who helped write the legislation, stressed that the city wanted “to figure out how to make this work” but also “wanted to have a blueprint” for the future. He told The Appeal it bothers him that Renton “has been villainized,” and he complained that local reporters fail to mention that of the 39 cities in King County, Renton is the only one with a homeless day center in its city hall.
“I take great pride in that fact, and we have our own housing authority because we fundamentally believe it’s important to provide affordable housing,” he said. “We’re a majority-minority city, we don’t have half the assets and resources as some other cities, yet Renton does not run from these issues, and we embrace these challenges. I hate the fact that this has been communicated as Renton is a bunch of NIMBYs.” Vincent argued that the 100-person cap was necessary to most effectively serve the neediest residents.
“Council members keep saying no one is kicking anyone out, yet it’s like you’re literally putting into law something to shut us down,” said Malone, the DESC executive director. “This last year has been horrible for everybody, and it’s just been incredible that on top of the very challenging work we do in general, we’ve had to also deal with this legal and municipal code wrangling.”
Renton maintains its earlier code violation charge against Red Lion is now moot because of the new ordinance. But the lawsuit hasn’t been dismissed; Renton City Attorney Shane Moloney told The Appeal he cannot comment on it or the ordinance.
The DESC and King County plan to continue appealing the hearing examiner’s decision in Superior Court. “And we think their ordinance conflicts with the eviction moratorium and measures the county health office deemed necessary for the pandemic, and we also think it opens up new issues of discrimination,” Malone said. In mid-December, Red Lion had its first COVID-19 outbreak even though it regularly tests its staff and residents. About 30 residents and staff members tested positive, and one resident died in early January. Malone said the outbreak can likely be traced to two fire alarm incidents at the hotel where residents gathered in the lobby and then outside for several hours.
Malone says although the DESC is searching for facilities beyond Renton, he’d like to avoid returning to its former congregate shelter in Seattle, after seeing the benefits clients experienced when they had their own rooms.
Austin’s moves on homelessness might be instructive. While dozens of residents protested the hotel purchase on Jan. 31—holding up signs that read “No Homeless In Residential Areas” and “Do You Want a 56% Increase In Crime?”—the City Council remained resolved in moving forward, and even purchased a second facility. Austin City Councilmember Greg Casar summed it up after the Feb. 4 vote: “Housing saves lives.”
At least five people involved in the Capitol rally on Jan. 6 attended a violent pro-Trump “Patriot March” in San Diego just three days after the democracy-shaking event. But police declared an unlawful assembly that only applied to anti-fascist counterprotesters.
David Ramses, Kick Cunningham, Tony Be, and a far-right influencer known as MagaPit also attended the Patriot March after participating in the Capitol rally. And they’re visible in an Instagram video of Proud Boys burning the Black Lives Matter banner. The men are part of the ultra-nationalist group New Patriot Wave; the group rebranded from its previous iteration, the American Coalition Party, because of social media bans. Ramses, Be, Cunningham and MagaPit posted a selfie at the Capitol during the rally. To date, none of the people identified by The Appeal who were at the Capitol on Jan. 6 and then attended the San Diego march have been charged by the U.S. Department of Justice in its scores of insurrection-related prosecutions.
The Jan. 9 march was organized by the New Patriot Wave group, which posted a video of one of their members defacing a George Floyd memorial last summer on Instagram. San Diego has an active anti-fascist community, and a similar march, scheduled for September, was canceled because organizers feared they would be outnumbered by counterprotesters. But emboldened by the Capitol insurrection, a sizable crowd turned out for the Patriot March, andsome brought weapons including knives, smoke grenades, and replica handguns.
Last summer, San Diego police sent a bike squad to follow Black Lives Matter protests. But on Jan. 9, only four officers looked on as a large anti-fascist group dressed all in black confronted small groups of right-wing protesters. An anti-fascist protester who goes by the alias Coyote told The Appeal that right-wing protesters verbally abused the crowd: “It was just motherfucker this and that.” Then, at around 1 p.m. scuffles broke out between the opposing groups and anti-fascists used bear spray on right-wing protesters, causing several bystanders to call 911. Coyote said that participants in the Patriot March “were really shocked that the police didn’t do anything [to defend them]. I thought they were sick of protecting them, especially after what happened at the Capitol.”
When asked why the San Diego police were unaware of DeMeo’s participation in the Capitol rally, spokesperson Shawn Takeuchi told The Appeal that the department “would not know this information.” Another person in the Patriot March was wanted by the Los Angeles Police Department for allegedly committing a hate crime in front of City Hall on Jan. 6, the same day as the insurrection. Takeuchi told The Appeal that “we would not necessarily be told by LAPD they were seeking this individual.”
But the presence of several people involved in the Capitol rally and a man who allegedly committed a hate crime—as well as the fact that three of the four arrests made on Jan. 9 were of counterprotesters—has led activists to ask if they were the subject of disparate treatment by the San Diego police during the Patriot March.
One Patriot March participant produced a long knife, but was disarmed by counterprotesters with skateboards. The police department’s event log includes multiple mentions of a man in possession of a knife fitting the man’s description. The log notes “male w/knife. WML [white male] Black hoodie, brown pants” and “poss male w/large knife in sheath.” The timing of the note about the knife in the event log (2:27 p.m.) and description of the man both fit with what The Appeal saw and photographed of him. California law allows for the open carry of fixed-blade knives. However, it defines “open carry” as a “knife carried in a sheath that is worn openly suspended from the waist of the wearer.” Takeuchi said the department has not taken any action against the man because “I do not believe any victims of this threat have contacted us.”
Another person in the Patriot March wielded a BB gun. The police event log shows that the department received reports of a young man stating that he had a gun in his waistband that afternoon. He was later detained but his name was not included in police reports because he is under 18.
San Diego mayor Todd Gloria refused multiple requests for comment from The Appeal about the Patriot March.
When the police department declared an unlawful assembly that afternoon, it did so for only the anti-fascists assembled at Hornblend and Mission streets, not the march participants gathered about one block south, near Grand and Mission.
On May 10, 2012, Enrique Cruz was led into a holding cell at the Vallejo Police Department after a car chase. The 29-year-old used the stainless steel toilet before peering through the rectangular window on the cell’s door.
A few minutes later, Detective Kent Tribble opened the door. Cruz, who was dressed in a dirty white T-shirt and baggy gray pants and had his long brown hair in a ponytail, took two large steps back. He turned around and put his hands behind his head. Tribble patted him down.
According to a jail cell videoobtained by The Appeal, Tribble stood over Cruz as he sat on the cell’s white bench with his arms folded. Then Cruz put his hands up, palms out, before Tribble lunged at him, slamming him against the concrete wall. Tribble punched Cruz in the head twice before Officer Eric Jensen entered the cell. They put their arms around Cruz’s neck and head before wrestling him to the floor.
Tribble punched Cruz about half a dozen more times as officers Joshua Coleman, Jared Jaksch, James Melville, and Jason Potts ran into the cell and piled on him. After the officers placed Cruz in handcuffs and in leg chains, Tribble stood up and walked around the cell. Then Jensen put his knee on Cruz’s neck, rendering him nearly motionless on the concrete floor as he bled from his head.
Later, Cruz was charged, along with felony evading and DUI, for resisting Tribble and Jensen, although prosecutors from the Solano County district attorney’s office subsequently dropped the resisting charge.
Tribble did not face any disclosable disciplinary action from the Vallejo Police Department in the Cruz incident. The Appeal checked federal and state court records, and there is no record of a lawsuit brought against Tribble on behalf of Cruz. The city attorney’s office has no record of a settlement paid to Cruz.
Michael “Kent” Tribble is now a lieutenant with the Vallejo Police Department—and he has a history of force beyond the Cruz incident that includes killing an allegedly unarmed man and allegedly putting a gun to a man’s face outside an Oregon bar while off duty.
Despite these incidents, Tribble has been promoted by two Vallejo police chiefs and, according to the city attorney’s office, has no disclosable disciplinary records. California prohibited the disclosure of all police disciplinary records until recently, when a new law required departments to release them when an officer fires a gun, uses force that resulted in death or serious injury, commits sexual assault, or engages in dishonesty. Tribble earns more than $400,000 a year in salary and benefits. His bio on the department’s new website is blank.
“He had the type of personality where he really got off on the power and the violence. And he just hurt and destroyed so many people,” said Cheryl McLandrich, a former deputy public defender in Solano County, where Vallejo is located. “I’m just absolutely amazed that they put him in a position of authority.”
Tribble declined to comment when contacted by The Appeal, and referred all questions to the police department’s public information officer.
“The City has no disclosable records related to discipline against Lt. Tribble,” public information officer Brittany K. Jackson wrote in an email to The Appeal. Jackson declined to comment on the specific incidents involving Tribble described in this article.
Tribble—whose brother, Robert “Todd” Tribble, is now also a lieutenant with Vallejo police—is among the command staff of the San Francisco Bay Area’smost violent police department. The force of about 100 officers for a city of 120,000 residents had the third-highest rate of police killings per capita in California between 2005 and 2017, according to the local NBC affiliate.
In 2012, Vallejo police killed six people, about 20 times the rate in both Oakland and San Francisco that year. In April of 2012, the Solano County DA cleared Tribble in the fatal shooting of Guy Jarreau Jr. A month later, his assault of Cruz in the holding cell was captured on tape and reviewed by the DA’s office.
In 2019,The Appeal reported that Vallejo police supervisors who reviewed shootings for potential policy violations praised officers for their use of the “zipper drill” in which an officer “fires numerous rounds into an adversary, starting low in the target’s body and ‘zipping’ the barrel of the gun up toward the person’s head while continuously shooting.”
Until recently, no Vallejo police officer was known to have been terminated in connection to the department’s19 fatal shootings in the last decade. On Sept. 1, Vallejo’s current police chief, Shawny Williams, issued anotice of termination to Officer Ryan McMahon after an Internal Affairs investigation found he engaged in “unsafe conduct and neglect for basic fire safety” that put his fellow officers at risk during the February 2019 shooting death ofWillie McCoy. Six officers were involved in the killing of McCoy, who was asleep in his car in a Taco Bell drive-thru when officers fired 55 bullets at him. Michael Ramos, a former San Bernardino County district attorney and special prosecutor hired to review the case, recently determined the officers were justified.
On Feb. 13, 2018, McMahon also beat, tased, and shot Ronell Foster to death for riding his bike at night without a light. The city settled a lawsuit with Foster’s family for $5.7 million last year, the largest settlement of the nearly $16 million Vallejo has paid out for claims against its police department. Facing another $50 million in legal claims and federal civil rights lawsuits, the city declared a “public safety emergency” in October, temporarily cutting the Vallejo Police Officers Association (VPOA) out of key decision-making processes. The union called it “an illegal power grab.”
Last year, two other lieutenants—including the president of the VPOA—were placed on leave related to allegations of evidence destruction in the June 2 killing of 22-year-old Sean Monterrosa of San Francisco.
Early that morning, in the midst of the George Floyd protests and widespread looting in Vallejo, Detective Jarrett Tonn responded to a report of possible looting at a local Walgreens. Outside the store, Tonn fired five shots from his tactical rifle from the backseat of an unmarked police truck, killing Monterrosa. In body camera footage, Tonn said: “Hey, he pointed a gun at us.” But Monterrosa was holding a hammer.
In August, Monterrosa’s family filed a federal civil rights lawsuit against Tonn and the city of Vallejo. The lawsuit alleges that Tonn was involved in at least three nonfatal shootings within the past five years. According to the suit, in 2015 Tonn fired his weapon 18 times in two seconds while trying to arrest Gerald Brown, who was allegedly in a stolen vehicle ramming his police vehicle. Brown survived the shooting. In October, the city of Vallejo responded to the lawsuit, arguing, among other things, that Tonn is entitled to qualified immunity.
The California Department of Justice is also reviewing allegations of destruction of evidence in the Monterrosa case by Vallejo officers as well as conducting a broad review of the department’s policies.
“The allegations concerning destruction of evidence under the watch of the Vallejo Police Department are significant,” Attorney General Xavier Becerra said in a statement last summer. “For public trust to exist, each and every part of our criminal justice system must operate in cohesion and there’s little room for error. That’s why we’ve accepted Chief Williams’ request to take a look at what happened with the evidence and relay our findings to the District Attorney’s Office for review.”
Last year, a former Vallejo police captain said he’s filing a whistleblower lawsuit after he says he was fired for reporting unlawful and unethical behavior at the department, including officers bending their badges to commemorate shootings, as first reported byOpen Vallejo.
The Vallejo Police Department hired Tribble on March 24, 2003, just three months after it hired his brother, Todd.
The following month, Tribble beat Regynald Jackson, a 49-year-old disabled former Travis Air Force Base employee, in the head with his baton and broke Jackson’s leg in two places before the baton broke. Jackson was handcuffed behind his back when Tribble assaulted him, according to a federal civil rights lawsuit filed in 2005. Jackson was charged with resisting arrest and battery upon a police officer, but he was acquitted at trial. In 2007, the citysettled Jackson’s lawsuit for $27,500.
On Feb. 26, 2006, Tribble responded to a call about three men arguing in a vacant lot near 309 Kentucky St. When he arrived, Tribble went around the side of the house, and when his shoulder mic went off, a man inside, Manzell Wesley, yelled out of the window to see who was there.
“It seems like a fairly normal reaction to say, ‘Who’s there?’ and to be alarmed if you hear someone sneaking up around the back window of your home,” said McLandrich, the public defender assigned to Wesley’s case.
Tribble tased Wesley three times through the window. Wesley was charged with resisting arrest. Later, Tribble testified that Wesley threatened his family, an allegation disputed by a resident at the home. A judge dismissed the resisting charge.
McLandrich said that before Vallejo implemented body cameras in2015, it was “almost impossible” to beat a charge where an officer said someone made a threat against them. “They would do that all the time to justify their actions, and I am extremely skeptical that such a threat ever took place,” she said.
McLandrich said Tribble was known for physical aggressiveness, which earned him the nickname “Captain Taser” among prosecutors.
In March 2006, less than a month after Tribble tased Wesley, he and Officer Jeremie Patzer deployed their Tasers on Jimmy Merlos for allegedly not putting his hands up. McLandrich represented Merlos, and she said police reports of the incident contained omissions and false statements, such as claims that Merlos did not attempt to put his hands up, when he attempted to do so as Tribble and Patzer tased him. Merlos nonetheless received three years of probation.
In July 2006, Eric Garfield Williams was pulled over in North Vallejo. In alawsuit filed in federal court, Williams alleged that Tribble, Officer Sean Kenney, and Corporal Richard Botello repeatedly hit him while he was in handcuffs. Williams said Tribble banged his face on the pavement until he was unconscious and defecated and urinated in his pants. In 2012, a judge dismissed Williams’s lawsuit.
On Oct. 8, 2006, Terry Jasper went to Kaiser Permanente Vallejo Medical Center after learning his son had been injured in a car accident. After Tribble told him he wouldn’t be able to see his son, Jasper went to the bathroom where “Tribble followed him in, threw him against the wall, and placed him in a choke hold,” according to a statement his attorney submitted in Solano County court.
Tribble claimed in his report that Jasper was fleeing, drunk, and combative, but Jasper denied drinking that day. In statements submitted to the court, witnesses said Tribble attacked Jasper unprovoked and later threatened Jasper’s nephew with his baton.
Jasper was charged with public intoxication and disturbing the peace. McLandrich was assigned to his case and became skeptical of the police’s version of events because Tribble’s name was on the report. A judge granted her a Pitchess motion—a defendant’s request under California law to inspect a law enforcement officer’s personnel file for evidence of police misconduct—but Tribble’s file remains under seal. The charges against Jasper were dismissed in November 2007.
“It’s so fucked up to put someone in the position where anywhere these officers can make a statement that you did anything or said anything that could result in these charges and allowing them to have impunity for beating the shit out of you,” McLandrich said. “Obviously, it didn’t hurt his career too much.”
On Dec. 11, 2010, Tribble shot and killed 34-year-old Guy Jarreau Jr., a New Orleans native who lived in Vallejo for the last eight years of his life, according tohis obituary. In clearing Tribble of any criminal wrongdoing, then-Solano County District Attorney Donald du Bainwrote that investigators found Jarreau fled a crime scene with a firearm and drew it when Tribble cornered him in an alley. Tribble was promoted to detective the following year.
Jarreau’s family, however, alleged he was helping fellow Napa Valley College classmates make an anti-violence video when Tribble pulled up in an unmarked vehicle wearing plain clothes and gave no warnings before shooting Jarreau. According to a federallawsuit, Jarreau was holding a green cup when he was shot while he had hands in the air and Tribble unnecessarily waited to get him medical attention. The city settled the suit for $49,000 in 2017.
Tribble fired his gun again on duty in April 2012 while allegedly trying to protect now-Captain Jason Potts during an undercover cannabis deal. Tribble did not hit his intended subject.
In the fall of 2012, Robert Wilson lived with his wife and teenage son at 1251 Locust Drive in Vallejo. A neighbor complained that they were squatting, so on Oct. 17, Tribble and other members of a Vallejo police tactical unit traveled to the residence to forcibly remove them.
Tribble later testified that he threw a flash bang into the doorway while Wilson was trying to close the door on them.
Felicia Carrington, Wilson’s public defender, told The Appeal that Wilson was going to the door to see why his dog was barking when police tried to enter the house.
“They hit him in the head. I mean like no conversation whatsoever and they shoot and kill his dog,” she said. “The way it played out was so overly aggressive and unnecessary.”
“And that really apparently pissed them off. They broke his leg,” Carrington said. “And then he went down on the ground, they had him on his stomach, and he started saying the Lord’s Prayer.”
During her questioning of Tribble at Wilson’s trial in October 2016, Carrington alleged that Tribble knelt down to Wilson and before spitting in his face said, “There ain’t no God. I am your god.” Tribble denied that he made the comment or spit on Wilson, but Carrington said Tribble became visibly upset when she asked about his prior discipline for using excessive force.
“He came unglued. He was so pissed off,” Carrington said. She remembered that Tribble slammed the wooden gate to the galley and the door on his way out of the courtroom. “It was a sight. It was so unprofessional and so telling of what he does and who he is. You can’t regulate yourself in front of a judge and a jury? I can’t imagine what some of our clients have experienced with him. It’s scary.”
But Carrington wasn’t done exploring Tribble’s violent history. In Wilson’s trial, she also wanted to raise an off-duty incident involving Tribble in Oregon two years after he entered Wilson’s home, and a year after he was promoted tosergeant and became the assistant leader of Vallejo’s SWAT team. His brother was the team’s commander at the time.
On Sept. 27, 2014, Stuart Epps and Dustin Pomeroy were celebrating their birthdays with a group of friends in Bend, Oregon. The first bar they visited that night was Summit Saloon, where Tribble and retired Vallejo police officers Kevin Coelho and Kevin McCarthy were drinking upstairs.
“They stuck out like sore thumbs,” Epps told The Appeal.
Pomeroy testified in 2016 that the officers stared at his friend’s then-fiance. When his friend said something about it, Tribble allegedly gripped his face in the palm of his hand and shoved him into a group of people. Security broke up the fight.
After a drink at another bar, Epps decided to run ahead of his friends to the next nightspot. That’s when he encountered Tribble, Coelho, and McCarthy again.
“I was pretty much pummeled to the ground,” Epps later testified, claiming that Coelho put him in a chokehold. “And as things fade to black, officer Tribble had his pistol at the end of my nose.”
Pomeroy testified that he saw Epps being punched and kicked while unconscious, and that Tribble punched Epps in the head up to five times before pointing his gun at Epps’s head.
“I just remember being pummeled to the ground and then a pistol, literally at the end of my nose, while I was being choked out unconscious,” Epps recently told The Appeal.
Cell phone video shows Tribble later standing over Epps, who remained unconscious on the sidewalk. “Fuck you, you little pussy,” Tribble yelled as he walked away.
Bend Police let everyone go. Epps looked Tribble up after a local TV station identified him.
“Are you fucking kidding me? That’s who I just ran into?” Epps remembers thinking. “It gave me a good deal of anxiety and paranoia. The promotion thing is bullshit. His ass should have been fired well before he came to Bend.”
Epps says the Vallejo Internal Affairs officer who followed up with him offered an apology, but he never heard more on the department’s response and local authorities didn’t charge anyone in the incident. Epps was twice contacted by attorneys representing clients in cases involving Tribble, the last being Carrington.
Epps and Pomeroy flew to the Bay Area to testify in Robert Wilson’s trial in October 2016, but Solano County Superior Court Judge Daniel J. Healy wouldn’t let the jury hear their testimony. He did warn Solano County Deputy District Attorney Judy Ycasas that her office should “take some ownership” of such accusations against Tribble when calling him to testify.
“I think there probably is going to be an occasion when this information is going to be relevant and admissible against Tribble,” Healy said. “But this isn’t it.”
The judge’s decision frustrates Epps and Carrington, who say they want juries to learn about Tribble’s conduct.
“It’s next to impossible to bring that before jurors,” Carrington said. “But I think now, in this time, people are more receptive to it and willing to actually believe it, if we can get that information in front of them. It’s just very difficult and frustrating.”
In January 2017, three months after Epps and Pomeroy testified in open court—not before a jury—about Tribble’s alleged conduct in Bend, then-Police Chief Andrew Bidoupromoted Tribble to lieutenant, where he has also served as adepartment spokesperson. Tribble is now one offour lieutenants, including his brother, overseeing the department’s patrol division.
Bidou, who now works for the Pacific Gas and Electric Company, did not reply to a request for comment from The Appeal.
Tribble has also worked in Internal Affairs, investigating andclearing officers involved in fatal shootings who then commit further acts of force.
Carrington told The Appeal that when cases are built on the testimony of a certain group of Vallejo officers—Tribble among them—they deserve extra scrutiny.
“Every time you saw that name on that police report, you knew there was going to be some aggressive conduct or you would have to delve even deeper,” she said. “You’re gonna take more time on this particular case, because there were some underlying issues, almost always.”
One of the lawsuits pending against the Vallejo Police Department demands that it be put under the oversight of a federal monitor because of its “unconstitutional conduct,” just like nearby Oakland.
Puneet Cheema is the manager of the Justice in Public Safety Project for the NAACP Legal Defense and Educational Fund, which pushes for accountability for police brutality and misconduct through community oversight and changes to laws and policies, among other things. Cheema told The Appeal there’s historically been a failure of internal and external accountability and oversight in the 18,000 independently run police departments in the U.S.
Cheema says although there has been a vacuum of federal oversight of troubled departments under the Trump administration, the Biden administration has the opportunity to take police misconduct seriously.
“When there are robust investigations, it sends a signal to other police departments of what will not be tolerated and what the standard should be for conduct,” Cheema said. “And that has a ripple effect where at least some agencies will proactively take measures to shore up their internal systems. There will always be agencies that resist that need more direct pushing.”
Hidden Foster Care: All Of The Responsibility, None Of The Resources
Outside of the traditional foster care system exists a shadow system of potentially hundreds of thousands of children removed by CPS to their relatives or family friends—without a court case, monetary support, or due process.
Hidden Foster Care: All Of The Responsibility, None Of The Resources
Outside of the traditional foster care system exists a shadow system of potentially hundreds of thousands of children removed by CPS to their relatives or family friends—without a court case, monetary support, or due process.
In August 2018, Laura* got a call from Child Protective Services. The agency asked if she could pick up 1-year-old Sophie in a small Texas town several hours away from Laura’s home in Houston.
Laura wasn’t related to Sophie, but she was in the room when she was born. Laura had been in Sophie’s mother Ashley’s life since Ashley was a teenager, when Laura dated Ashley’s stepfather. During that time, Ashley’s mother died by suicide. Since then, and long after Ashley’s father and Laura had broken up, Ashley would call Laura when she needed help.
And she did need help. In 2005, Laura enrolled Ashley in rehab for substance use disorder. In the decade after that, Laura only heard from Ashley a few times, until 2016, when Ashley called again. She was pregnant, had gotten kicked out of rehab, and was in a bad relationship.
Laura and her husband built a room onto their Houston home and moved Ashley in. Sophie was born that fall, and the unlikely family began settling into a rhythm. But stability didn’t last. When Sophie was about five months old, Ashley again began to struggle, and Laura suspected that Ashley was using drugs again.
When she found proof, Laura kicked Ashley out. She told her Sophie could stay, but Ashley took her daughter with her out of town. For about a year, Laura kept tabs on them as best she could, with Ashley even bringing Sophie to visit once. But in summer 2018, CPS called Laura with an ultimatum: If she wanted to care for Sophie, she needed to immediately pick her up. If not, she’d enter foster care.
Laura and her husband decided to take Sophie in while Ashley entered rehab again. The hope was that Ashley would get back on her feet, and that Sophie would be safe with people who loved her. “We never agreed to take the child for the long term, but were more than happy for her to stay in a loving, supportive home, and the only home she has ever truly known,” Laura told The Appeal.
But Ashley hasn’t been able to get back on her feet since then, and the agreement CPS initiated with Ashley, a temporary custody order, has expired. Laura and her husband have incurred tens of thousands of dollars in legal fees trying to achieve stability for Sophie, by placing her with either the couple or another loving family. But Laura and her husband, who had plans to retire, are instead caring for a 4-year-old child—without any legal rights, monetary support, or state services for the girl. (*Laura, Ashley, and Sophie’s names have been changed to protect the child’s identity.)
Removing children from their parents and placing them with relatives is a common occurrence in Texas, and around the country, as child welfare authorities intervene in situations like Sophie’s. But unlike the traditional foster care system, no court case is initiated, and no lawyers are present to advise either parents or caregivers of their rights. Legal advocates say these arrangements lead to confusion around custody rights, are ripe for coercion of the parent, and leave caregivers without any support in caring for children.
The phenomenon has been termed “shadow foster care” or “hidden foster care” by legal researchers, who estimate that these informal arrangements are made at a rate on par with the traditional foster care system. In fiscal year 2014 in Texas, there were just over 30,000 children placed in the foster care system, with CPS cases in the courts overseen by judges; that year, the state made 34,000 informal placements of children with relatives as a result of a CPS investigation, which had no court cases attached. That number seems to be declining, according to recent data acquired from the Texas Department of Family and Protective Services. This year, DFPS reported about 12,000 children currently in such placements; more than 1,000 of these arrangements have been closed each year for the last five years with the child’s relatives still caring for them, without a custody order in place.
“There’s a lot of pressure to intervene relatively less and keep kids out of foster care,” Josh Gupta-Kagan, an associate law professor at the University of South Carolina, told The Appeal. Last year, Gupta-Kagan wrote a Stanford Law Review article about the legal problems with hidden foster care. “Also, foster care is really expensive, so if you can place kids with—or induce parents to voluntarily transfer custody to—someone else who doesn’t get paid, this can make your numbers look great, and saves everyone money.”
Laura and her husband spent more than a year parenting Sophie while in legal limbo, and when their temporary custody agreement with Sophie’s mother expired, they decided they needed help. Laura tried to initiate a case with CPS and get certified as a foster parent so that Sophie would qualify for services. But after CPS spoke with the family, the agency closed their case. “CPS threatened that she had already been with us for two years and was basically our responsibility now, even though we had no legal rights. [The caseworker] said this was a private matter and we would have to deal with it,” Laura said. “Otherwise, we would have to call CPS and say we could no longer care for her—and they would come and take her, and we would never see her again.”
Child welfare advocates and researchers have long believed that when children cannot be with their parents, the next best thing for their well-being and development is to be placed in kinship homes, with biological relatives or with “fictive kin,” like Laura, who have established relationships with the child. Sibling groups are more likely to stay together in kinship homes, and children move around less and have fewer behavioral problems. They’re also more often able to stay in the communities where they live and know people, giving them some sense of stability through the upheaval of family disruption.
But kinship placements are poorly compensated by the state compared to nonrelative foster homes. Currently in Texas, kinship caregivers are entitled to $11.55 a day per child, or about $345 a month—less than half of what a licensed nonrelative foster parent would bring in for each child designated at a “basic” level of care. That assistance lasts up to a year. Before 2017, when the Texas Legislature passed the bill to pay caregivers monthly, kinship families in Texas were only entitled to a one-time $1,000 stipend, plus $500 each year. In a state where 75 percent of maltreatment findings are for neglect—which is often poverty-related—instead of abuse, family members who take in children are also often struggling in poverty. And even that kinship rate is reserved for caregivers of children in the formal foster care system who meet all of the requirements; for those that took on children without CPS initiating a case, they receive nothing.
Many kinship placements happen organically, such as when a parent asks a relative to care temporarily or permanently for their child. But when CPS is involved, the “voluntary” aspect of these placements has been called into question in legal challenges dating back to the 1990s. Because these agreements are often offered as an alternative to having a case with CPS initiated—with an increased likelihood of the child ending up with a stranger—legal advocates like Gupta-Kagan say it’s inherently coercive and could be used to restrict parents’ rights when the agency might not have sufficient evidence to remove a child if they took the case to court. This year, a federal appeals court ruled that a Kentucky couple could sue social workers who allegedly threatened to remove their children if the parents didn’t agree to a “prevention plan” that didn’t allow the mother to be unsupervised with her newborn after a false-positive drug test.
In a court, CPS needs “to show abuse or neglect, that the child is in significant imminent risk of harm from that abuse or neglect, and show that the removal is necessary to protect the child, not some other remedy,” Gupta-Kagan said. “The question you have to ask is how much do you really trust CPS agencies to get all of that right all of the time, such that they should be allowed to do this without any due process checks?”
In his Stanford Law Review article, he goes further: “It is as if a police department investigated a crime, concluded an individual was guilty, did not file charges or provide him with an attorney, and told him he had to agree to go to jail for several weeks or months, or else it would bring him to court and things could get even worse.”
“When you look at it on paper, we want to avoid CPS bringing court cases, that’s the goal,” Tiffany Cebrun, a staff attorney at the Foster Care Advocacy Center (FCAC) in Harris County, told The Appeal. “In court you want permanency, there’s a rush to termination [of parental rights]. A lot of workers want to close out cases quickly.”
Still, she said, FCAC has several clients who “CPS kind of coerced” into taking relatives’ children. “A lot of caregivers were told they would have support,” Cebrun said. And without a court case, parents, many of whom are struggling with substance use disorder, aren’t given resources or treatment, either.
Though a parent loses the ability to live with and care for their child in these informal arrangements, they are not technically considered removals. So there’s very little data about the arrangements, both in Texas and around the country, because the federal government doesn’t ask states to report them.
There’s ample evidence that this practice is widespread around the country. “The number of children who pass through hidden foster care each year is roughly comparable with the number of children removed from their families, brought to court, and placed in formal foster care,” Gupta-Kagan notes in his article. A study of nearly 6,000 children in 83 counties nationwide estimated that when children were removed from home after a CPS investigation, nearly half of the time they were placed with relatives informally, with no court case initiated.
The lack of data has Gupta-Kagan and other legal advocates concerned that amid budget tightening due to economic effects of the coronavirus pandemic, the scope of these removals will increase, without any sense of how many children’s lives are being affected this way—or how much needed support these families will be going without.
Valerie Jackson is a psychologist who founded and runs Monarch Family Services, an agency that focuses on kinship placements. She’s experienced many situations like Laura and Sophie’s, where guardians are given care of a child but no support or sufficient documentation to go along with it. DFPS calls these “parental child safety placements” temporary and says they “should last no longer than 60 days.” But Jackson says there are many families who are altered long-term as CPS instigates the move of children and then exits the process. “If the state doesn’t take conservatorship they say, ‘God bless you and good luck’—they get nothing,” Jackson told The Appeal. “The majority of these families are low-income and with limited resources and limited knowledge of how to access resources, which increases the probability of placement breakdown…Or, if they remain in the care of this relative, they’re unable to survive comfortably.”
In San Antonio, Judge Peter Sakai, who has long presided over child welfare cases in Bexar County, said he often saw cases in his court where placements had broken down after long stretches of time where families were subject to these informal agreements. “San Antonio is known and it’s been documented that we have a lot of kids with their relatives—a lot. And a lot is through CPS intervention,” Sakai told The Appeal.
As child welfare cases increased in Bexar County in the early 2010s, the county considered adding another judge to oversee these cases. “We were reading the removals that were coming across the court’s desk,” said Sakai’s court administrator, Barbara Schafer. “The kids have been placed with grandma for three years and now it’s time to remove. What?! Y’all had them there for three years on a safety plan?”
“Safety plans,” another term for these informal removals, are problematic for relatives who want to enroll children in a new school or get insurance for them. Unlike custody orders, these plans are “just a big old sign that says ‘CPS is involved in my life.’ It’s not a legal binding document, it’s not filed into court. CPS uses it as leverage to say, ‘If you violate it, we’ll remove the kids,’” Schafer said.
Instead of hiring a new judge, Schafer had another idea: a separate “family preservation” docket, where appointed attorneys get a flat $1,200 fee to file custody orders for relatives who are caring for children in place of their parents. Since its inception in 2015, the docket has finalized about 300 cases involving nearly 400 children, Schafer said.
These families get a custody order and are linked to federally funded services like Medicaid or Temporary Assistance for Needy Families, but they don’t get the monthly stipend that would provide substantial monetary assistance. Still, “Kids deserve to be taken care of and go to the doctor,” Schafer said, and “a lot of the grandparents are like, ‘We don’t want CPS in our home anymore.’”
That’s a crucial point: Many advocates whose goal is to limit the reach of the child welfare system say that informal, community-led arrangements that spring up in response to parents struggling with poverty or addiction can help shrink the scope of a family regulation system that violates parents’ rights and traumatizes their children—especially Black and Native children, who are disproportionately represented in foster care.
“Informal kinship care is the solution to a lot of this, but the state doesn’t want it to happen because then they don’t have oversight,” said Alan Dettlaff, the head of University of Houston’s Graduate School of Social Work and a founder of the Upend Movement, a network of organizations that promotes abolishing the child welfare system. “When the child welfare system first started, Black children were intentionally excluded. Black families and communities came together and developed their own ways to care for children—it’s about trusting Black families and communities to take care of their children.”
Still, Dettlaff advocates for more of these informal arrangements—with financial support. “We remove kids for neglect and place them in strangers’ homes, and give the stranger a monthly stipend to take care of the child,” he told The Appeal. “What if we just gave that $1,000 a month to the mother who needed it?”
When CPS told Laura and her husband that their case was closed in May, the couple didn’t know what to do. They had a grown biological child and weren’t sure if they were up for parenting Sophie until adulthood. Ashley, who hadn’t been able to achieve sobriety, decided that she wasn’t able to provide Sophie with the life she deserved. But CPS refused to get involved, saying only that if Laura returned Sophie to Ashley, they’d initiate a case against Laura and her husband for endangerment.
“They convinced us to take on the child, so they could wash their hands of yet another case, but offered no direction or services,” Laura said. “The worst part is they did not speak to the long-term issues, effects, or needs the child might have.”
Laura and her husband recognize that they are lucky enough to afford tens of thousands of dollars in legal fees related to Sophie’s case, and put Sophie in a private preschool. The majority of kinship caregivers have incomes below 200 percent of the poverty line—and about 40 percent of these caregivers are below the poverty line—but Laura and her husband are still stretched thin. They’ve decided to adopt Sophie. Their retirement plans are gone for now; instead, they’ve moved to the suburbs so Sophie can attend a more affordable preschool. “It was not in our grand scheme of things, but the only way for us to continue consistency with this child is for us to adopt her,” she said. “We still think it’s unfair for her to be with such old parents, but we still have life left in us.”
Roxanna Asgarian reported this story with the support of the Fund for Journalism on Child Well-Being, a program of the USC Annenberg Center for Health Journalism’s 2020 National Fellowship.
Many of the 230,000 women and girls in U.S. jails and prisons were abuse survivors before they entered the system. Research for The Appeal shows that at least 30 percent of those serving time on murder or manslaughter charges were protecting themselves or a loved one from physical or sexual violence.
‘No Choice But To Do It’
Many of the 230,000 women and girls in U.S. jails and prisons were abuse survivors before they entered the system. Research for The Appeal shows that at least 30 percent of those serving time on murder or manslaughter charges were protecting themselves or a loved one from physical or sexual violence.
This story was produced in partnership with the Pulitzer Center and The New Republic.
Tanisha Williams met Kevin Amos on Dec. 29, 2002, the last day of his life. Kevin, 19, lived with his parents, but sometimes visited his girlfriend and their infant daughter at the red-shingled apartment complex in Saginaw, a mid-Michigan city where Tanisha, 20, and her 32-year-old roommate, Patrick Martin, shared a basement two-bedroom. It was a dry, frigid winter, and a thin layer of snow coated the ground. That evening, Kevin came by for a drink. Patrick introduced him to Tanisha. She poured two glasses of Crown Royal on ice. Patrick had already been drinking all day. In a bedroom, three of Patrick’s children were watching TV. After a time, Tanisha headed to the kitchen. She heard Patrick’s voice rise and stepped back into the living room, where she saw Kevin bleeding from the mouth and Patrick’s hand raw, “the meat missing off [his] knuckle,” she would later testify. The metal braces Kevin wore had torn Patrick’s skin.
Kevin ran for the door, but Patrick ordered Tanisha to block his path. She obeyed. Patrick was 6 foot 2 inches tall and 215 pounds, always armed; he outweighed Tanisha, who is 5-foot-7, by nearly 100 pounds. Patrick dragged Kevin to the loveseat, pistol-whipped him unconscious, stripped him naked, and kicked him repeatedly in the head and genitals. At some point—no one involved in the incident could remember the exact sequence of events—Patrick’s cousin, Terrance Shepard, arrived. Months later, according to court transcripts, Patrick would confess to a girlfriend that he attacked Kevin because Kevin was “mean mugging” him—or looking at him the wrong way.
Patrick became concerned that Kevin would defecate. Trash bags and duct tape were fetched. Tanisha considered escaping, but she was barefoot and in a remote building with two male cousins. “I began screaming and yelling,” she told me. Patrick grabbed her by her collar, picked her off the ground, and slammed her against the wall, twisting the fabric of her shirt and pressing his fist into her neck. The drywall cracked, Tanisha recalled, and her throat closed. “Get down or lay down,” Patrick said, his gun to her face. Then he released his grip.
Tanisha knelt on the floor. Following Patrick’s instructions, she began to wrap tape around Kevin’s head.
“How did you feel doing that?” Doug Baker, a prosecutor at the Michigan attorney general’s office, asked her at trial years later.
“Why did you do that?”
“Because I ain’t have no choice but to do it.”
Tanisha was born in 1982 in Saginaw, once the center of a thriving automobile gear industry. A manufacturing decline in the late 20thcentury led to urban decay. Crime rose; buildings sat vacant. Tanisha and her four siblings lived in a spartan 900-square-foot home. She remembers sitting in the house with only popcorn to eat, waiting for their mom to return. When Tanisha was a toddler, one of her mother’s boyfriends dipped her feet in a tub of scalding water. Her mother grabbed her before the man could fully submerge her. A layer of skin peeled off her feet, which are still tough and scarred.
When Tanisha was about 6 years old, her mother was diagnosed with cancer. She married her boyfriend at the time so that he could act as guardian for her children while she underwent prolonged treatment. According to Tanisha, the man was addicted to drugs. Many days, Tanisha did odd jobs in the neighborhood and collected bottles to buy chips and hot dogs for her little brothers, walking alone in the dark to get food for them all. At night, her stepfather entered her room and offered her ice cream— especially appealing because she was often “super hungry”—in exchange for sex acts. Tanisha’s mother later found out about the abuse. “You done slept with my husband,” Tanisha recalls her mother saying. “I don’t want to look at you.” Tanisha was around 10 years old.
When Tanisha was 13, her family moved to Georgia. At 14, she became pregnant by a 26-year-old man. She had an abortion and was sent back to Saginaw to live with her father, whom she barely knew.
Sharon Sanders was married to Tanisha’s father then; Tanisha and Sanders still consider themselves related. (In 2014, Tanisha’s father was incarcerated for the sexual abuse of multiple young female relatives; he and Sanders later divorced.) Tanisha was “a hurt, angry, disturbed young girl,” Sanders told me.
At 17, Tanisha had her first child. Tanisha told me that, at the time, she was “not able to be a mom.” She left the baby with Sanders, dropped out of school, and bounced around, staying with adults who lived “the faster life.” Until then, her only job had been at a fast-food restaurant; she remembers making less than $5 an hour. She found she could make $200 for oral sex: Her clientele, mostly drug dealers, paid big money as a show of status. Then, as now, Tanisha was slender, with close-cropped hair, high cheekbones, and an exuberant personality; she wore tight, sparkly dresses and organized parties where she provided sexual services. She found the work easy. “I was already introduced to being utilized by men.”
At 19, Tanisha fell in love, got pregnant, and stopped doing sex work—but her boyfriend abused and cheated on her. She left her second daughter with him, slept in abandoned cars, showered in hotels, and sold small quantities of drugs to make money. She summarized that period in one word: “Survival.”
Tanisha turned 20 in June 2002. Around that time, a step-cousin introduced her to Patrick Martin, a father of five who had recently separated from his wife. Patrick and Tanisha quickly decided to live together. Their relationship was pragmatic, not romantic: Tanisha needed a home, and Patrick wanted a domestic partner. They would split bills and maintain independent enterprises. “This is a perfect set-up,” Tanisha recalled thinking.
Tanisha soon learned, however, that Patrick had plans to act as her pimp, which she did not agree to. He started “jumping” her, once slapping her so hard that she saw “a flash of light.” He beat and choked her, commandeered her finances, and demanded that she cook, clean, and care for his children. He confiscated her gun because, she would later tell a detective, “wasn’t nobody else … gonna have a pistol but him.”
“I could’ve went back to sleeping in cars, but my pride was too high,” Tanisha told me. “I could deal with this while I stack some money somehow. I was figuring it out.”
Then, just after Christmas, Kevin Amos stopped by for the glass of Crown Royal.
She summarized that period in one word: "Survival."
I first heard from Tanisha in February of this year when an envelope arrived in my P.O. box containing a response to a questionnaire that I had sent. “I’m at the beginning of my project,” I had written in an accompanying letter to Tanisha and 548 others detained at Women’s Huron Valley Correctional Facility in Michigan. “My goal is to write an article about why and how women end up in prison on murder charges…I have attached 16 questions…Tell me everything you think I should know about your story.”
Tanisha later told me that she had lugged a communal typewriter to her bunk and fed the paper in. “I applied duct tape to the victim’s head,” she typed. “Only while a gun hung over me forcing me to assist…In each step I thought I would die.”
Over the last 21 months, I have sent my letter, questionnaire, and, as a modest show of appreciation, a crossword puzzle to thousands of women. New mail arrives weekly, and I’m sending out batches to more states. For the purposes of this article, I have analyzed, coded, and run statistics on 608 surveys: These are the responses from a total of 5,098 surveys sent to people serving time on murder and manslaughter charges in 45 state facilities for women in 22 states.
I started the project in late 2018, after I began investigating the story of Nicole Addimando, a young mother in upstate New York who had killed her abusive partner in what she said was an act of self-defense. In the course of that reporting, I came upon dozens of cases across the country in which a woman insisted that she had been trying to protect herself or a loved one, while the state countered that she was a cold-blooded killer and sought a harsh prison sentence.
The stories were voluminous but anecdotal. Race and socioeconomic circumstances often played a prominent role, which is fitting given the history of gender-based criminalization in the United States. One of the first recorded cases occurred in 1855, when an enslaved Missouri 19-year-old named Celia killed her master, who had raped her since she was 14. She was represented by a slave owner, convicted by a white male jury, gave birth to a stillborn baby, and was hanged.
I found limited studies, conducted in single prisons or states, consistently showing that up to 94 percent of people in some women’s detention facilities experienced physical and sexual violence prior to incarceration. However, I couldn’t find systemic data to support what experts told me, and what I witnessed while reporting: Women’s prisons are populated not only by abuse and assault survivors, but by people who are incarcerated for their acts of survival.
About 230,000 women and girls are incarcerated, an increase of more than 700 percent since 1980. The female prison population is dwarfed by the larger population of more than two million men, on whom conversations about mass incarceration center. For most people in prison, the criminal legal system has stripped away context and circumstance, leaving only a conviction on record.
Women must also navigate gendered binaries in a system designed by and for men: offenders are violent, victims are docile; offenders kill, victims die. Female victims should fit a paradigm of innocence: a petite, heterosexual, white woman with a clean record. Tanisha does not conform, though she has been unyieldingly victimized. But even women who do square with the paradigm struggle because they survived. “Lawyers say the only correct battered woman when talking about self-defense is a dead one,” Sue Osthoff, co-founder of the National Clearinghouse for the Defense of Battered Women, told me. By engaging in violence in order to live, a woman cannot be a victim. Her survival itself becomes reason to condemn her.
In January 2019, I interviewed Rachel White-Domain, a post-conviction attorney for incarcerated survivors of domestic violence in Illinois. I pressed her, as I had others, for data on women in prison for defending themselves. White-Domain did not know the statistics. “If you’re so interested, you could just ask the women directly,” she said. That comment was the seed from which this work has grown.
In consultation with Thania Sanchez, then an assistant professor of political science at Yale University, I designed 16 questions to assess the abuse and trauma backgrounds and unique pathways of women into U.S. prisons. (Sanchez now works in the ACLU’s data and analytics department.)
My two-page survey asked for demographic information—age, race, and sentence length—and posed qualitative questions. Those who speak of abuse are subject to doubt and skepticism; in a courtroom or a prison, they are often accused of trying to avoid consequences by making “the abuse excuse.” To reduce any appearance of dishonesty, I did not ask “priming” questions about domestic abuse, sexual violence, or self-defense. Instead, my queries concerned the respondent’s relationship to the person they were convicted of killing; the days leading up to the event; factors they believed contributed to their conviction.
I contacted the media liaison or public information officer at the departments of corrections in the majority of states and requested a list of all women incarcerated on murder and manslaughter charges. Some officials denied my request, but many sent names: more than 1,000 in Florida, just 11 in Maine. Once I had the lists, I filled in each salutation by hand.
As in any data collection effort, the majority of recipients did not respond. People in prison face particular hurdles in corresponding: censorial mailroom staff, fear of retribution from staff and administration, distrust of media, legal concerns, and constraints that include count times, chow calls, and lockdowns. Incarcerated respondents had to pay for a 55-cent stamp despite working jobs that were unpaid or, in some states, began at less than 4 cents an hour.
Mental illness, which affects nearly half of those in prison, was another hurdle: “Every prosecutor describes women convicted of murder as cunning, diabolical, monster, and evil,” Kwaneta Harris wrote from Texas. “I’ve yet to encounter these ‘monsters.’ Although I’ve met plenty of women with mental illness, untreated and undiagnosed … the ones who you really need to talk to are too mentally damaged to talk to you.”
Still, 604 cisgender women, one transgender woman, and three transgender men replied. They said that they wanted their stories told: sometimes anonymously, sometimes with their identities central. Many wanted to make known their own experiences and those of others. One woman serving life in prison, who had transferred between state and federal facilities for 17 years, repeated a common sentiment: “I have lived amongst thousands of different women prisoners from different countries, ethnicities, and cultures. I have probably come across six of these women whom I would even think were murderers. Many of us were defending ourselves, with the wrong people at the wrong time, taking cases for someone else, or not guilty completely.”
The racial breakdown of responses roughly mirrored that of the larger female prison population, which is majority white but disproportionately women of color. My respondents were 53.7 percent white; 32.7 percent Black; 8.8 percent Hispanic; 3 percent American Indian and Alaska Native; 1 percent mixed race; and 0.8 percent Asian. Their ages spanned 18 to 83. The median age was 43, which skews older than the median age, 36, for all incarcerated people. Nearly 30 percent were serving life sentences, including life without the possibility of parole. Overall, the average sentence, including life sentences (weighted at 100 years) was 55 years.
Seventy-two percent of respondents had been represented by state-appointed defenders, meaning they most likely qualified as indigent. A 2015 Prison Policy Initiative analysis found that the median annual income for a woman prior to her incarceration was $13,890, 58 percent of the income of a woman who was not incarcerated and 34 percent of the income of a man who was not incarcerated. “No money for attorneys, unfamiliar with the legal system,” one respondent summarized. Another woman wrote that her case was her lawyer’s first-ever murder trial. One wrote that the judge fell asleep and her attorneys “said it was okay.”
Sixty percent of respondents reported experiencing abuse— physical, sexual, emotional, or some combination of the three—before entering prison, much of it during childhood, while only 9 percent reported no abuse. (Thirty-one percent did not give enough information for a determination.) The fact that a majority of respondents had been abused suggests a nexus between abuse and incarceration for women. Abuse is also most likely underreported.
“I have yet to meet a person who hasn’t been sexually or physically abused,” wrote Kwaneta from Texas. Later, Kwaneta told me that she had been kidnapped and gang raped as a child, and the perpetrators were never charged. (Her mother confirmed this.) Kwaneta is incarcerated for killing a boyfriend who she told me abused her. Her attorney, she said, didn’t want her to “disparage” the dead at trial. She did not push back. “The stigma and shame of allowing myself to continually accept abusive behavior is stronger than the shame of being a convicted murderer.”
Having a female body had opened the respondents up to harm long before they were considered to have harmed others. They reported being raped at gunpoint, raped while being driven home from babysitting, raped by fathers, stepfathers, brothers, grandfathers, cousins, uncles, foster relatives, and sometimes sisters and mothers. “Raised for sex,” wrote one woman. “Ruined before I had a chance,” wrote another. “Not sure how I got off the beaten path, but I was molested by a sheriff from age 7 to about 9 years old, think that pretty much did it.”
They wrote, too, of enduring physical violence: forced to kneel “on uncooked grits until my knees were bloody,” kicked “with steel-toed boots,” hit in the head with “a tire wrench.” They wrote of crushing poverty and upheaval: One woman had used “the bathroom outside for years, shower[ing] in the water hose.” Another said that when she was 19, she lived with her drug-addicted mother in a “condemned house” in the days leading up to the killing she committed when she fought off an attempted rape.
A confluence of life factors usually converged—many beyond a person’s control. I received a letter in purple crayon from a 32-year-old Black woman who wrote that “the judge … gave me to [sic] much time and I was 11 when I did the murder.” I looked up her story, which was public record: As a child, she had been raped, abandoned, neglected, cycled through abusive foster homes, and diagnosed as mentally ill and developmentally disabled. Before her 12th birthday, she stabbed a stranger in the heart with a kitchen knife. For nearly two years, she lived in an isolated cell in an adult jail before being sent to a facility for children with mental illnesses. When she turned 18, a judge sentenced her to 18 to 40 years.
Childhood abuse and neglect rippled out into adulthood. More than 40 years of research and multiple studies show that abuse begets abuse: sexual victimization in childhood raises the risk of sexual victimization in adulthood; children who have been objectified and betrayed can have issues with trust and may find it difficult to navigate adult relationships. My survey found that people abused as children were more than twice as likely to report abuse as adults: nearly 75 percent reported revictimization, versus 33 percent among those who didn’t report abuse as children—meaning that those with abuse histories are more than twice as likely to be victimized in their later years.
Forty-three percent reported experiencing intimate partner violence, nearly double the rate of the general populace. Of those, 41 percent—nearly 18 percent of all respondents—said they were in prison for killing a romantic partner. They wrote that they had killed men who had broken their ribs, backs, knees, skulls—men on whom 911 had been called (in one instance 300+ times). Men who had knocked them awake and said, “I feel like beating a bitch up.” According to the Centers for Disease Control and Prevention, roughly half of female homicide victims in the U.S. are killed by a current or former male partner.
“That morning he said, ‘One of us is going to die today,’” wrote a woman who had been brutalized for decades. “I just snapped.”
Respondents found it hard to prove that they had been abused, because domestic violence and rape are private violations, usually without witnesses. But even if they had evidence, they faced another problem: There was a dead body, and it wasn’t theirs.
Jema Donahue wrote from Missouri, asking me to contact her mother, who shared legal files with me. The files showed that in 1999, Jema, then 13, was raped by a 20-year-old man. Jema’s family was devastated by their attempts at seeking justice. The man’s mother was the town mayor, and police and prosecutors, Jema said, resisted investigating and prosecuting. The perpetrator eventually pleaded guilty to statutory rape, though Jema said he had used force, and she experienced bleeding and physical pain for days. The rapist’s friends harassed the family. Jema was bullied and switched schools. Later, Jema fell into abusive relationships. Her husband physically, sexually, and psychologically terrorized her for eight years—attacks that she sometimes reported to authorities. In 2017, Jema’s mother took out an order of protection. Within two weeks, Jema’s husband broke into the family home and attacked Jema. Jema shot him. A judge sentenced her to 10 years, noting that “everybody stayed in the relationship” and “somebody died.”
“It was supposed to be me,” Jema wrote to me. “I never thought I would be the survivor and he ‘the victim.’”
Of my respondents, 30 percent reported that they, like Jema, were in prison for trying to protect themselves or loved ones from physical or sexual violence. If my findings are representative of the population incarcerated for murder and manslaughter in all U.S. women’s detention facilities, they suggest that, conservatively, more than 4,400 women and girls are serving lengthy sentences for acts of survival, and that there are most likely others in similar circumstances serving time on lesser charges. While many claimed straightforward self-defense against a romantic partner, others wrote of trying to survive in ways that exist outside the typical ideas of gender-based violence.
A woman was often convicted for a man’s actions or for her involvement with a man who committed a crime. Thirty-three percent of respondents said that they had been convicted of committing their crime with a male partner, and 13 percent said that they had been convicted of committing their crime with their abuser—often, like Tanisha, under duress.
“In a lot of cases, the women are not blameless,” Carol Jacobsen, director of the Michigan Women’s Justice & Clemency Project, told me. “They played some part, many times under terrible duress. Many times, they didn’t have a whole lot of choices.”
“I should get prison time, but not 50 years,” wrote a woman who had driven a car for her abusive boyfriend after he killed a man during a burglary. “Fifty years for driving a car under duress…with the threat always there to kill me and take away my kids for talking or leaving him.”
Motherhood figured prominently in a woman’s decisions; 64 percent of my respondents said they were parents, 22 percent said they were not, and 14 percent did not answer the question. “One topic…affects the majority of female prisoners: Our children,” wrote Kwaneta in Texas. “We care about our children. Bars and razor-wire don’t erase motherhood.”
Some women said they were in prison for trying to protect a child. A white woman was serving 40 years in the South for shooting the man she said had beaten her daughter and raped her toddler grandson, and a Black woman was serving life in a mid-Atlantic state for shooting a man she witnessed molesting her 5-year-old son.
Other women were convicted because they had not protected a child. In Michigan in 2010, Corrine Baker, a 25-year-old survivor of childhood sexual abuse, threw her body in front of her 4-year-old son in an attempt to bear the brunt of her boyfriend’s attack. Corrine and her son were hospitalized after the beating. The boy died, and Corrine gave an interview to a local TV station; in the video, she has two black eyes and wounds dotting her face. She is serving 13 to 30 years for her failure to save her child.
In Florida, Mary Rice wrote that she was forced to accompany a man on a multistate killing spree, during which she was starved, drugged, and raped. She never tried to escape, she told me, because her kidnapper knew where her mother and three children lived. In the end, he shot himself in the head and police took Mary, who had injuries across her face and body, into custody. Mary was prosecuted. The assistant state attorney told the jury “she wanted a bad boy and she got one.” Mary was sentenced to life in prison plus 30 years. “I just lived through it,” Mary wrote to me. “The state needed to blame someone. I was the person they blamed.”
Mary went to trial, but about half of respondents pleaded guilty—often because they were marginalized or did not trust their lawyer. I received a response from an indigenous woman in the Northwest who said she had pleaded guilty to murder, despite acting in self-defense against a man who was “abusive physically, emotionally, verbally, and mentally,” had raped her daily, and threatened to keep her child if she left. I called her public defender. He told me the woman had a weak case and added that in court, women often played the victim. “Women get a lot of fuckin’ benefit of the doubt,” he said.
“I see a lot of pleas,” White-Domain, the Illinois attorney for incarcerated domestic violence survivors, told me. “People who have lived their whole lives not being believed—if they are women, people of color, maybe also a sex worker, maybe a drug user—think they won’t be believed by a jury. And they are correct.” In my data set, those who went to trial received a sentence nearly two times higher than those who did not, and were approximately five times more likely to receive a life sentence. Black women, whether they went to trial or took a plea, received a sentence length that was roughly 10 percent higher than all others.
Tanisha, for her part, pleaded guilty in 2010 to second-degree murder while held in Saginaw County Jail, a situation she found herself in largely because she had tried to make amends for Kevin’s death. “I was ignorant to the system and its workings and it worked against me on every facet,” she told me. “The rules weren’t articulated for a person with zero understanding to understand.”
“The state needed to blame someone. I was the person they blamed.”Mary Rice, criminalized survivor
In late December 2002, Patrick wrapped Kevin in a blanket and put him in a closet. Within days, aided bytwo associates, he removed the body and dropped it down an embankment on the outskirts of town, above a river. About three months later, on March 23, 2003, during the spring thaw, two fishermen came upon Kevin’s corpse. On March 24, Kevin’s family was informed. Police made no arrests. The case went cold.
Two weeks after the killing, Tanisha and Patrick moved to a more isolated apartment. Tanisha had no car and no money. She slept during the day, when Patrick was gone, and kept a gutting knife tucked in her waistband. “Something was gonna happen bad for someone,” she told me. “Most likely me.” Within two months of Kevin’s death, Tanisha gathered some $200 and four outfits and fled to a roadside motel.
“I sat on that ugly bed,” Tanisha said. “I had to make a decision.” She was 20, without a home or anyone she trusted enough to talk to. She had been involved in a murder with a known drug dealer who threatened to kill her and knew where her family lived. Tanisha decided her only chance was to stay moving, and be quiet. “I pushed what happen to me to the deepest depths of consciousness,” she recalled. For the next two years, she fell into a cycle of sex work, drug use, and dealing. She lived on the run, involved with men who hurt her.
“I didn’t dream,” she said. “It was just darkness.”
But in 2005, Tanisha was pregnant and determined to get clean and make a change. In November, she gave birth to her third daughter, whom she named Hon’Esty. As Tanisha raised Hon’Esty, she began to see a man around town who bore an unnerving resemblance to Kevin. She thought constantly of Kevin’s mom. She feared intensely for her daughter’s safety, concerned that by having a fixed address, they were a target. Each time Tanisha entered her home at night, she left her child locked in the car, on speakerphone with her sister, as she swept the place with her gun cocked. Only once it was clear would she carry Hon’Esty inside. Later, two people testified at trial that Patrick said he was thinking about killing Tanisha; he worried that she would talk to police and had unsuccessfully attempted to convince her to meet up with him several times.
Tanisha made a New Year’s resolution for 2009: She would tell the truth. That February, she called an attorney she’d heard of named Steven Snyder. Tanisha told Snyder that she wanted to talk to police but needed immunity. Snyder called Lisa Speary, a Michigan State Police detective who had been handed the cold case in 2006. On Feb. 17, 2009, Snyder, Tanisha, and a Saginaw County prosecutor signed a proffer, a written agreement that allows a person to speak of a crime with the assurance that their words won’t be used against them in criminal proceedings. After an initial proffer, a client typically provides a piece of evidence that allows authorities to determine their value; then a better deal is negotiated. But Tanisha signed a single agreement that offered her no protection from charges. Then she gave Speary a two-hour interview, the first time she had ever spoken of the crime.
I showed the proffer letter to David Moran, co-founder of the Michigan Innocence Clinic. He characterized it as “lousy.” I asked Moran if it was unusual for an attorney to allow a client to give a full statement to police without discussing the content beforehand. “The lawyer would want to hear the client’s story before having her tell it in a proffer,” he said. (Snyder, who no longer practices law, did not respond to my interview request.)
Over the next months, Tanisha worked with Speary. They met in person at least five times, Tanisha underwent two polygraph exams, and she led Speary through the crime scene. She told Speary that Patrick “had this rage…he frightened me…he was more dangerous than the average guy that I have been involved in…he was dangerous without maybe knowin’ it.” And she told Speary that following the killing, she had “spiraled like super down.” Tanisha explained that she was coming forward to give closure to Kevin’s family—and to get closure for herself. “I just wanna apologize to the family … for even takin’ this long to get the strength to tell ’em what happened.”
Though Tanisha remained terrified of Patrick, she was also liberated. “I started having joy in my life,” she told me. She thought Snyder and Speary would protect her, and that a prosecutor would recognize her courage and commitment to justice.
“Why did you think that?” I asked.
“Because this is America. … I thought if I was just honest, the truth was going to set me free based off American values.”
Speary interviewed witnesses widely and collected evidence. Then, on June 22, 2009, Patrick called 911 to report that his girlfriend, a 44-year-old nurse named Debra Kukla, was unconscious in the garage. When police arrived, they found Kukla bludgeoned to death.
Tanisha told me that Speary had called her days before Kukla’s death; on the call, Speary asked for Tanisha’s permission to tell Patrick that she had been speaking with police. Petrified, Tanisha refused. She theorized that police had nonetheless confronted Patrick and that “he thought [Kukla] was the one who talked.” Tanisha turned 27 the day Kukla died. She recalled that Speary called her that morning “in a panic,” saying “he did it again,” and advising her to find a safe place because police didn’t know where Patrick was. (According to Tanisha, no one working for the state offered to provide her with security.) “I feel if I had never entered the agreement, Deb would be alive,” Tanisha told me. “Every year at my birthday I think about her, and I think that I survived.” Speary, now retired, didn’t respond to requests for an interview.
Tanisha also believed that her incarceration was related to the fact that Kukla was white. “They were like, ‘We have to get him off the streets by any means,’” she told me. “I believe they conjured up they moves, and I was the casualty.”
The attorney general’s office could not provide me with the exact date it took the case. But the office’s press secretary said it was approximately September 2009—nearly seven years after Kevin’s killing, but only months after Kukla’s. On Sept. 11, 2009, Patrick was arrested by an off-duty police officer who said he had witnessed him robbing a 7-Eleven. In March 2010, Tanisha was arrested at her job at a golf course. She was charged with first-degree murder and booked into Saginaw County Jail. Hon’Esty, then 4 years old, went to stay with relatives. “She just was always looking for me [after that],” Tanisha told me. “She would sit at her desk at school writing me letters.”
The court appointed William White, a private attorney with a county contract, as Tanisha’s defender. According to a letter that White later wrote to the judge, he was constrained by a “$1,000 cap” on his legal work for Tanisha. He billed for 36.5 hours, which means that, unless he was granted a fee extension, he was paid $27.40 per hour—a rate that diminished the more he worked. A homicide case, according to Moran, of the Michigan Innocence Clinic, “is the legal equivalent of performing brain surgery. It’s complex and requires a great deal of skill to be able to do it right.”
A 2008 National Legal Aid & Defender Association report on Michigan’s indigent defense systems studied sample counties and found that none of their public defender services were constitutionally adequate. The fixed-rate system, which exists across the U.S., created “a conflict of interests between a lawyer’s ethical duty to competently defend each and every client and her financial self-interests that require her to invest the least amount of time possible in each case to maximize profit,” according to the report.
Since 2011, legislative efforts have led to indigent defense reform in Michigan, and in 2019, Saginaw opened its first public defender’s office. Steve Fenner, a former prosecutor who heads the new office, told me that $1,000 to work a homicide was “insane” and that the previous system meant that attorneys “basically lost money” on major cases. But Fenner didn’t understand why Tanisha needed an attorney at all. “Why was she charged though? I don’t get it. That part is real baffling. She cooperated to solve a cold case, then the attorney general’s office turns on her? I’m virtually speechless.”
Tanisha had little interaction with White, her attorney. One day, White brought Sanders, Tanisha’s former stepmother, to a courthouse meeting. Sanders told me that she had arrived for what she believed was a hearing and was surprised to be taken aside by White, who asked that she convince Tanisha to testify at Patrick and Terrance’s trial.
Deputies brought Tanisha, in an orange jumpsuit, into the room. Sanders started to cry. “I say, ‘This has been going on for a long time, and it need to come to an end…release all of us from all of this…whatever it is that they seeking, you need to give it to them.” Sanders had no experience with the legal system and was caring for one of Tanisha’s daughters. She told me that she believed she was helping Tanisha and knew nothing about a plea deal. “I thought they was gonna let her come home … because she had gave them what they wanted.”
Tanisha, after two hours of Sanders’s exhortations and nine months in jail, agreed to testify in exchange for a second-degree murder plea that she originally believed was 20 years flat, not 20 to 40 years. “I took the plea ’cause I was sick of being in there, hearing my momma beg me,” she told me. White did not respond to a request for comment.
In January 2011, Tanisha testified for the prosecution. For the attorney general’s purposes, Tanisha needed to inhabit contradictory roles: moral and credible enough for a jury to trust, but blameworthy and sufficiently deplorable to exist as an extension of the man who killed Kevin and to therefore merit her own conviction. Doug Baker, the prosecutor, characterized Tanisha and the others as “jackals.”
Baker questioned Tanisha as a key witness over two days, using her testimony as a basis for a larger narrative. Then in his closing arguments, Baker alternately diminished and commended Tanisha. He told the jury that when Tanisha met Patrick, at 20, she was living “a wasted life…she is prostituting herself. She has children that she’s not living with.” Tanisha was “not a very reflective or thoughtful person.” But she “had some conscience” and had come forward. Tanisha had acted under duress, he said, but “that’s not a defense to homicide…The law says, no, you can’t do that. You’ve got to resist. You’ve got to—you’ve got to take your chances.”
In Michigan and many other states, the reason duress cannot be used as a defense for homicide is based on British common law, as summarized by Matthew Hale, a Puritan jurist, who wrote in an influential treatise in the 1600s that even “if a man be desperately assaulted, and in peril of death … he ought rather to die himself, than kill an innocent.” Hale also put forth other enduring writings and decisions. In one, he sentenced women to death for sorcery, one precedent used to justify the Salem witch trials. In another, Hale stated that by signing a marriage contract, “a wife hath given herself in this kind unto her husband, which she cannot retract.” A marital exception to rape law, based largely on Hales’s work, existed in England and Wales until 1991 and in North Carolina until 1993. The criminal legal system still treats spousal rape with leniency.
“[Tanisha’s] choice was she should die,” Jacobsen, of the Michigan Women’s Justice & Clemency Project, told me. “Or prison. That’s it. It doesn’t matter that he’s going to kill you…You let that happen.”
“Black women can be disposed as an object of punishment in order to demonstrate that the system works,” Alisa Bierria, an assistant professor of African American studies at the University of California, Riverside, and a co-founder of Survived & Punished, an organization that supports incarcerated survivors of gender-based violence, told me. “This is what the system does, that’s what it is: It has to perform justice in order to have good copy, but it performs that on the backs of Black women all the time because nobody is interested in the full dimensionality of their story as a human being.”
“Surviving all of that shit, I can’t even believe this is my life for real,” Tanisha told me. “I really be like, ‘God, what’s up? What is all of this about?’ I love taking care of the earth, I love kids…I got so much suffering and I never did nothing.” The authorities, she said, “didn’t and don’t care what happened to me. No one don’t even know how I lived…They got me in here and really don’t know what that man did to me that night.”
In October, Patrick Martin called me from Kinross Correctional Facility in northern Michigan, where he is serving life for armed robbery and two murders. (He pleaded no contest to killing Debra Kukla after a jury convicted him of killing Kevin Amos.) Patrick said that he had bipolar disorder with psychotic features, was “a full-blown alcoholic,” and had been institutionalized in 2007 and 2008. He described years of “madness,” and told me that his 2009 arrest was “almost a relief.” Patrick could not express why his mental illness and alcoholism manifested in lethal violence, including toward women, but he could speak clearly to why Tanisha and his cousin Terrance had participated in Kevin Amos’s murder. “I made them do that,” he said.
Would he have killed Tanisha, I asked, if she hadn’t obeyed?
“I always had them guns and stuff. … My own mom would be scared. At that time, [Tanisha] was terrified … I told them, ‘If you don’t do it, I’ma do you.’ So they did it, but it was out of fear. They wasn’t with the plan.”
Eight days later, I called Doug Baker, the prosecutor in Tanisha’s case, now chief of criminal enforcement and quality of life for the city of Detroit. We spoke at length about his reasons for charging and sentencing Tanisha to decades in prison, considering the role she played in the actual crime and in helping authorities.
Baker explained that when a witness has accepted a lengthy sentence, it can benefit the prosecutor who puts her on the stand. “Part of what goes into making a witness like [Tanisha] credible is that she’s paying for what she did,” Baker said. “And the jury hears that. If a jury takes somebody that gets…probation or whatever, that’s argued to the hilt by the other side that they would say and do anything to get this sentence.” This suggests that a prosecutor, who has nearly total discretion in charging decisions, may be incentivized to seek the most serious charges that ultimately carry extensive sentences.
Baker also argued that Tanisha’s sentence was a form of justice for Kevin and his family. Tanisha, he said, was “the one that actually in that sense literally took the life. She made sure that he wasn’t going to get those last breaths.”
At the 2011 trial, the medical examiner testified that Kevin died of asphyxiation, because there was duct tape on his mouth and liquid in his lungs. He also testified that two quarters were found in Kevin’s stomach and a bag of powder was found in his mouth, and that a dead person cannot swallow—so Kevin was alive when the quarters were put into his mouth.
Since her first interview with Speary in 2009, Tanisha has denied any knowledge of the bag or coins. At trial, a confidential informant for the state, a drug dealer, testified that he briefly stopped by the apartment on the night of the attack and saw Kevin bound on the floor. Within days, he helped dispose of Kevin’s body. In August 2003, eight months after the murder, the informant was in jail, looking to cut a deal to get out two months early. He told authorities about Kevin’s killing, and in order to prove that he was reliable, offered a detail that “nobody else would know except for somebody that had firsthand information,” he testified. The detail was that Patrick “said that he put 50 cents in [Kevin’s] mouth to make it look like a drug transaction.”
When I spoke with Patrick, he didn’t recall anything about the coins. Still, it seemed possible that Patrick may have removed and replaced the tape over Kevin’s mouth, the final act that killed him. (Terrance Shepard, serving a life sentence in a southern Michigan prison, declined to comment for this story)
At trial, Baker told the jury: “It’s 20 to 40 years out of her life. She—at least 20. It could be more.” On the phone, after we had discussed Tanisha’s story, Baker said, “I think that she would be a good subject for being paroled.”
At Tanisha’s March 2011 sentencing, Baker provided her with a letter on attorney general’s office letterhead. He wrote that she had participated in the homicide “after being threatened.”
“I can attest to Ms. Williams’ complete cooperation, candid testimony and remorse for her role in the crime,” Baker wrote. “There is no question that Ms. Williams, as a Prosecution witness, was of invaluable assistance in bringing the other Defendants to justice…We believe that Ms. Williams can be rehabilitated and someday live a law-abiding life.”
However, just before her arrest in 2010, Tanisha was stable and productive. She was sober, raising her daughter, and working three conventional jobs. “I was a proud, tax-paying citizen,” she told me. “I was on a positive path.”
I read Baker his 2011 letter. I asked him what Tanisha’s lengthy sentence was supposed to accomplish.
“It has a deterrent value, as well as a punishment value, as well as a rehabilitative value,” he said.
But neither Tanisha’s nor Patrick’s incarceration seemed to produce any constructive change in their closest circles. The cycle of gender-based violence and mental illness has continued. Patrick’s son Patrick Allen Martin Jr. was 11 when Kevin was killed. As a young man, he was sent to prison. “He was different when he came home,” his sister would later testify. He lived in a facility for people with mental health issues.
In 2019, Patrick Jr., then 27, shot MoeNeisha Simmons-Ross, Tanisha’s 26-year-old niece and a mother of three who was also pregnant with Patrick Jr.’s child. MoeNeisha and the baby died. Her brother told local media that MoeNeisha’s other children “were in the apartment and they saw what happened.”
“The system is a freaking violence-producing factory,” Bierria, the Survived & Punished co-founder, told me. “Relentless.”
“The system is a freaking violence-producing factory. Relentless.”Alisa Bierria, Assistant professor of African American studies at the University of California, Riverside, and a co-founder of Survived & Punished
A theme emerged in my research: As in Tanisha’s case, incarcerated women, before their involvement in the legal system, were regularly disregarded or damaged by state systems, from Child Protective Services to schools to police. Families and individuals in desperate situations did not have access to quality services, or to sustained services—and were often scared of seeking outside help. “In the Black community you don’t go to the cops,” Tanisha told me. “You just solve your own shit. And then with a crime, the code is you never talk, don’t ever talk, and I see why.”
Sandra Brown, a Black woman in Illinois, wrote of years of terror, beginning in childhood. She was beaten, spit on, and bullied at school. When she fought back, she was expelled, labeled “aggressive” and “dangerous.” At home, she was whipped. After she explained why she had welts on her legs to a trusted teacher, she says she “paid terribly for it.” Sandra was later a victim of domestic violence and rape. As a young mother, she was arrested for killing a woman in what she says was an act of self-defense. She was sentenced to 22 years in prison. “The tragedies we suffered as little girls and young women in a sense ‘groomed and doomed’ us to this current state of modernized slavery,” Sandra wrote me. “I have been the recipient of acts of violence since I was a child, and the law was virtually nowhere to be found. But the one time I fight back because I am afraid for my life, I am now a ‘violent’ offender.”
Bierria observed that stories of gender-based criminalization were the result of the legal system’s design and function. “It’s not, ‘Oh what a sad story, the prosecutor didn’t care, the defense was bad,’” she said. “Those things animate the system we have…What you see are formalized acts of profound, life-ending violence.”
What was the alternative, particularly for women?
“We have to build it,” Bierria said. Across the country, she said, people have long been engaging in concentrated, community-based anti-violence and transformative justice work, training, and education. “There’s no magic answer that will get us where we need to go. All we have is us…I think people are on it, and therefore I think there is a chance.”
The respondents to my survey offered various solutions, including childhood intervention, decriminalizing poverty, treating mental illness and addiction, effective protection for sexual and domestic violence victims, changing incentives for police and prosecutors, engaging offenders and victims in restorative justice processes, and capping sentence lengths. One woman suggested that people be permitted to tour prisons and jails: “Allow the public to see who is in their prisons.”
Tanisha, for her part, wanted to be seen—as a way to advocate for herself and others. I asked her why she responded to my letter in the first place. “I know everything I’ve been through,” she said. “This matters for women…I felt that every little bit helps.”
Tanisha understood that at each turn she had been failed: as an abused child, homeless teenager, traumatized young mother, and perhaps most significantly by a state apparatus that reduced and exploited her story and good-faith efforts to bring closure to Kevin and his family. But she remained hopeful. She never complained about the abysmal conditions at Huron Valley, with its endemic black mold, repeated scabies outbreaks, and waves of Covid. She meditates, does yoga in the mornings, pores over legal papers, and works disinfecting the facility at night.
I asked Tanisha how she remained so persistently optimistic. “It’s some favor,” she said. “Something in my spirit that sustains me.” She thought of her efforts to shine a light on injustice in biblical terms: as a mustard seed. In Scripture, the mustard seed is the smallest of seeds, but, when sown, becomes a tree, its branches filled with birds. “As long as we got a mustard seed, we can make it grow.”
More than 20 women accused Harry Morel, a longtime district attorney in Louisiana, of sexual misconduct. But Morel pleaded guilty to just a single obstruction of justice count while Mike Zummer, the FBI agent who investigated him, was fired. Now, Zummer is speaking about what he says is a grave injustice—at the hands of the Justice Department.
‘She Just Said She Wanted To Be Believed’
More than 20 women accused Harry Morel, a longtime district attorney in Louisiana, of sexual misconduct. But Morel pleaded guilty to just a single obstruction of justice count while Mike Zummer, the FBI agent who investigated him, was fired. Now, Zummer is speaking about what he says is a grave injustice—at the hands of the Justice Department.
Over the years, Carla had heard rumors that Harry Morel would make problems go away for women willing to perform “favors” for him. But she never believed the awful things she’d heard about Morel, who at the time was the district attorney of St. Charles Parish in Louisiana. Morel’s wife taught at her school; he also attended church with Carla’s family.
But one day in the late 1980s Morel took Carla to lunch in New Orleans—about a 30-minute drive from St. Charles Parish—and she couldn’t shake a bad feeling in her gut.
“I know girls that I grew up with, you know, if their boyfriends got in trouble, they had to do him a favor, I had heard all this,” she told The Appeal. “I didn’t believe it because he went to church! Until it happened to me.”
Morel was a big man, both in size and in political clout. He’d been the district attorney in St. Charles, a suburban parish of about 50,000 people, since 1979. (In Louisiana, counties are called “parishes.”) District attorneys are the most powerful players in the criminal legal system, and they have an even more outsize role in Louisiana because it is the mass incarceration capital of the United States. In smaller parishes like St. Charles, DAs maintain a kinglike status.
Carla’s connections to Morel also extended to the courthouse. Just before Morel took her to New Orleans, his office had helped Carla force her ex-husband to pay child support. That day, Carla’s mother dropped her off at Morel’s office to take photos for the local newspaper. Morel kept saying that he wanted to go out to celebrate. Morel said that he’d give her a ride back to her parents’ house, where she’d been staying since she left her husband, so she relented and got in the car with him.
After Morel turned east onto U.S. Route 90, she says she asked where they were going. He said New Orleans. While driving, she says he began complimenting her hair. She’d tied it up in a bun that day.
She recalls Morel telling her that her hair “looks good up, but it would probably look even better down.” When they made it to the restaurant in New Orleans, she says Morel continued to talk about her looks.
“He kept making comments—comments that I couldn’t believe a friend of my parents would make,” Carla said.
When they finished, Carla got back in the car with Morel, even though she’d said she could hitch a ride home with her friend, who worked at a nearby restaurant. As she cracked Morel’s car door open, he reached over and pulled it shut. Carla says he then grabbed her head and shoved it toward his crotch. She stiffened.
“What are you doing?” she gasped.
“You owe me,” Carla says Morel told her, his hand still on her head. “He kept saying, ‘I’ve done [you] all these favors,’” Carla recalled. “Like, ‘I got you all this money.’”
“I know your wife!” she says she shouted. She kept pushing back against his hand. “This is insane!” she recalls saying to Morel.
In a letter Carla later sent to a federal judge, she stated that Morel “sexually assaulted” her in the car that day. Carla told The Appeal he threatened her and told her never to speak about what happened. She said she then called a friend to help take her home. When she got there, she said she walked into the house and stared at her mother.
“Don’t you ever put me in that situation again!” she barked at her mom in what she said was a fit of misplaced anger at her parents for leaving her alone with Morel. But she was too embarrassed to explain what really had happened. So she lashed out. “Promise me!”
Carla spoke to The Appeal on the condition that her real name not be used. The Appeal allowed her to remain anonymous because she says she is a sexual assault victim and is identified only by a number in FBI documents in the Morel case.
Carla says she resolved to keep the secret of what happened that day. She stopped going to church so she could avoid Morel. She eventually moved away and bought a house in another state. She underwent therapy to learn to live with what she says Morel did to her. And she didn’t speak about the incident again—until the FBI showed up at her workplace decades later and told her she wasn’t the only person Morel had abused.
In all, the FBI identified 22 women who alleged that Morel touched them inappropriately, made sexually suggestive comments, or pressured them into performing sex acts while he was the St. Charles Parish DA. Of the 22, FBI records stated that 13 said they’d had some form of sexual contact with Morel. In FBI documents—transcripts, video, audio of covertly recorded conversations, as well as an 87-slide joint FBI and St. Charles Parish sheriff’s office PowerPoint summary of the casefeaturing nearly two dozen witness accounts, including Carla’s, that was released to the public by the St. Charles Parish Sheriff’s Office in 2016—federal investigators laid out their claims that Morel used his office for decades to target women with offers to help them out or make criminal cases disappear if they performed sex acts for him. Five women told the FBI they’d had oral sexual contact with Morel. Eight women stated they’d had other forms of sexual contact with Morel, and nine said that he had solicited sex from them. Carla, too, cooperated with the FBI and filed a written statement during Morel’s sentencing in federal court accusing Morel of sexually assaulting her.
Another woman, Danelle Keim, helped the FBI conduct a sting and catch Morel groping her on camera—but she died from a drug overdose less than 24 hours after news of her involvement in the case hit local newspapers.
But federal prosecutors never charged Morel with a sex-related crime. As part of his 2016 plea agreement, however, Morel signed a factual basis admitting that “on other occasions, between 2007 to 2009, [he] solicited sex from other individuals who were defendants or who had family members who were defendants in the St. Charles Parish criminal justice system. While soliciting sex from these individuals, Morel likewise used the office of the District Attorney to provide benefits to these other individuals, including falsifying community service reports.”
In the factual basis, Morel admitted to harassing Keim—identified only as “Individual ‘A’”—and attempting “to prevent and dissuade Individual ‘A’ from attending or testifying in an official proceeding, i.e., the federal grand jury, by telling Individual ‘A’ to ‘get rid of’ and to ‘destroy’ the evidence of a meeting they had and to deny the inappropriate nature of the meeting to law enforcement officials.”
The factual basis signed by Morel also states that, had “this case proceeded to trial, the Government would have presented credible testimony, documents, cellular phone records, cell site information, recorded conversations, video recordings, and other reliable evidence to prove, beyond a reasonable doubt, that Harry J. Morel Jr. obstructed justice, in violation of federal law.”
Morel was ultimately sentenced to three years in prison after pleading guilty to a single obstruction of justice charge in federal court in New Orleans. (He was also forced to pay a $20,000 fine and serve one year of supervised release.)
Morel served a little less than two years of his sentence—and he spent a portion of that time in a halfway house in New Orleans. He was released on Aug. 6, 2018. Morel’s legal team did not respond to multiple requests for comment for this story. In previous statements to the press, Morel attorney Ralph Capitelli has described the FBI’s claim that his client was a serial sexual predator as a “smear tactic” to influence the court during sentencing that was “both unfair and, in my judgement, impermissible.” Capitelli has also said that Morel “denied and still denies any type of sexual assault on any woman whatsoever.”
Some of the key people involved in the Morel case—the lead FBI agent who investigated him, the St. Charles Parish Sheriff, and multiple alleged victims—say it was a miscarriage of justice brought about by a flawed prosecution that treated a powerful man with kid gloves despite evidence suggesting he’d abused his elected position for decades.
Peter G. Strasser, the current U.S. attorney for the Eastern District of Louisiana, told The Appeal he could not comment on the case since he was not appointed to the position until 2018. The Appeal contacted every assistant U.S. attorney referenced in this story and did not receive a response; Strasser declined to comment on their behalf and stated that assistant U.S. attorneys are barred from speaking to the media. Though the FBI agent leading the investigation filed multiple complaints against federal prosecutors in relation to the case, internal department investigators have repeatedly cleared U.S. attorney’s office employees of wrongdoing.
Aya Gruber, a professor at the University of Colorado-Boulder Law School and former federal public defender, said the criminal legal system generally fails to prevent sexual and domestic violence, and prosecutors tend to focus on men from marginalized communities while balking at taking on more well-connected people.
“When I was a public defender, I saw plenty of men—and mostly marginalized men—prosecuted for sex assault for things like, say, grabbing somebody’s butt on a dance floor,” Gruber, author of “The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration,” told The Appeal. “The idea that the government never takes sexual assault seriously—personally I think it has a lot to do with who the people are and what their connections may be.”
One of the harshest punishments meted out in the Morel case was against one of the people who investigated him: New Orleans-based FBI Special Agent Mike Zummer, who says he was fired for complaining about a lenient plea deal for Morel and what he says was one federal prosecutor’s cozy relationship with Morel’s attorney. Zummer outlined these complaints in a series ofletters he sent the judge in Morel’s criminal case, Kurt Engelhardt, in connection with Morel’s sentencing for obstruction. The letters later became public as part of a civil lawsuit Zummer filed against the FBI.
Zummer complained to both Judge Engelhardt and the DOJ’s inspector general that Fred Harper, a federal prosecutor in the Eastern District of Louisiana, co-owned a vacation home with Morel’s attorney, Capitelli. In Zummer’s opinion, the relationship “caused at least an appearance” of partiality at the DOJ. In a 2018 report, the inspector general found “no evidence” that the relationship between Capitelli and Harper “improperly influenced” the U.S. Attorney’s initial decision not to bring charges against Morel in 2013.
Neither Harper nor Capitelli responded to requests for comment. The 2018 report also found no misconduct by DOJ officials.
In a press conference after Morel’s guilty plea in 2016, then-U.S. Attorney Kenneth Polite told the public that his office declined to file stronger charges against Morel due to “significant evidentiary concerns,” including a fear that the testimonies of Morel’s accusers would not stand up in court. Polite did not respond to a request for comment.
After Zummer reported his complaints—including in a letter to the U.S. Senate’s Judiciary Committee chair—he was suspended from the FBI and fired earlier this year. In October, the DOJ filed a bar complaint against Zummer, who holds a law license in Louisiana, for allegedly sending the aforementioned letters to the judge in Morel’s criminal case without proper approval from the DOJ. Zummer denies any wrongdoing.
In April 2017, Keim’s mother, Tammy Glover, sued Morel and an associate of Morel’s in St. Charles Parish civil court for racketeering. The lawsuit claimed Morel extorted sexual favors from Keim and at least 21 other women in exchange for reducing or dismissing criminal charges against them. The suit was later dismissed. One of Glover’s attorneys, Glenn C. McGovern, told The Appeal that the DOJ “dropped the ball” in its Morel prosecution and called the outcome “nauseating.”
“Sometimes things don’t work out, and sometimes the system doesn’t work,” he said.
That August, Zummer sued the FBI in federal court for violating his First Amendment rights; the defendants sought to dismiss the lawsuit, arguing, among other things, that they were acting within their discretion to suspend Zummer’s security clearance, and that he violated his FBI employment contract and other FBI regulations by disclosing his letters to Engelhardt. Some of Zummer’s claims have been dismissed by the court, but his assertion that his First Amendment rights were violated by the FBI for its refusal to publish his unredacted letter to the public remains part of his ongoing lawsuit.
Zummer told The Appeal this year that the outcome of the case shattered his faith in the DOJ. “Financially, you look at what I did, you look at my record, you look at his record, you look at where I’m at, compared to where he’s at,” he said. “Yeah, I mean—it pays to be a sexual predator.”
Zummer also filed a separate complaint with the DOJ’s Office of the Inspector General, the agency’s internal watchdog, alleging he’d been retaliated against for speaking out about the case. However, the office’s June 2018 report cleared the FBI and DOJ of any wrongdoing and stated that it did not find evidence Zummer had been retaliated against.
An FBI spokesperson declined to comment on Zummer’s firing, stating that the agency does not “comment on personnel matters.”
In court pleadings filed in response to Zummer’s pending federal lawsuit, the FBI has also argued that Zummer was legally suspended from the agency and that he was fired for violating the terms of his employment as a special agent.
“About one week before his security clearance was suspended, FBI officials informed Zummer that he could no longer be assigned investigative work because Zummer had taken the position that he was free to publicly disclose information he gathered during the course of his official duties as an FBI Special Agent,” attorneys for the FBI wrote in 2018. “FBI officials believed that it was Zummer’s position that this information, which was the property of the United States, could be disclosed without first receiving authorization from the FBI even though Zummer was obligated by the terms of the FBI Employment Agreement to seek and obtain authorization prior to disclosing FBI information.”
In October 2018, the OIG issued a separate report into allegations about Zummer, which also stated that he had disobeyed orders and violated the terms of his employment when releasing his letters to Engelhardt. But that investigation found “mitigating factors” in Zummer’s favor, including that the “instruction Zummer obtained” from the DOJ’s Office of General Counsel “was faulty.”
In a previous statement to the press, Capitelli called Zummer a “disgraced rogue FBI agent who is trying to desperately salvage his career.”
Mark Osler, a former assistant United States attorney in the Eastern District of Michigan (Detroit) who now teaches law at the University of St. Thomas in Minnesota, reviewed aspects of the Morel case at The Appeal’s request. He said that although Zummer might not have followed proper whistleblower procedure, he “obviously has a moral compass and took a big risk in making public something that he knew would harm him professionally.”
St. Charles Parish Sheriff Greg Champagne, who worked closely with the FBI on the case, told The Appeal he believes Morel received a lenient plea deal and that Zummer was mistreated by the FBI.
“I can honestly say I have never met anyone with more honesty and integrity than Mike,” he said. Before his tenure as sheriff, Champagne was a prosecutor in Morel’s office from 1982 to 1995. He said he was unaware that Morel was allegedly engaged in sexual misconduct until the FBI began its investigation years later.
“Do I believe he deserved more? Yes I do,” Champagne said of Morel’s prison sentence. “Knowing what I know and what I believe he did? Yeah. I think he should still be in prison to be honest with you.”
Tessie Keim, sister of deceased witness Danelle Keim, told The Appeal that Zummer became like family during the investigation and believes he was treated too harshly by the FBI.
“He lost it all over it,” she said. “And so we’re just extremely grateful. He knows if there’s anything he ever needed, he could just pick up the phone, call any one of us, and we’re there.”
Multiple efforts to reach Morel were unsuccessful.
The FBI’s first chance at investigating Morel came in 2001, when according to the agency’s internal PowerPoint outlining a timeline of the investigation, an unnamed witness contacted the agency and told agents that, as part of a DWI case, Morel asked her to meet. She told the FBI she believed he wanted sexual favors. But the FBI’s New Orleans field office closed the investigation shortly afterward because of a lack of evidence.
Also that year, Zummer says he was sitting in a group of cubicles at the FBI’s New Orleans field office when his boss asked if anyone would look into a tip that had just come in about Harry Morel.
I raised my hand, and that has changed my life.Mike Zummer, former FBI special agent
Zummer, 49, was born in the Chicago area and graduated with a political science degree from Duke University in 1993. He later enlisted in the Marine Corps, and did tours in the Persian Gulf and Western Pacific before taking a job with the FBI investigating white-collar crime in New Orleans. When President George W. Bush announced the invasion of Iraq in 2003, Zummer joined the Marines yet again, this time as an adviser for the Iraqi security forces and as a public-corruption investigator in Al-Anbar province. He earned a law degree from Stanford before returning to the FBI’s New Orleans field office.
This time, Zummer joined an FBI public corruption unit that, in tandem with the U.S. Attorney’s Office for the Eastern District of Louisiana, was hailed in the local media as “modern-day untouchables” after a series of successful post-Hurricane Katrina cases targeting New Orleans police and politicians. Jim Letten, the chief U.S. attorney in that office at the time, was so adept at prosecuting public corruption cases that President Barack Obama declined to dismiss him upon taking office, even though Letten had been appointed by President George W. Bush.
“I raised my hand,” Zummer said of his boss’s request. “And that has changed my life.”
Zummer’s boss at the FBI explained that the St. Charles Parish Sheriff’’s Office had received a 911 call from a woman who had asked for help taking care of a third party’s traffic ticket. According to the FBI and St. Charles Parish sheriff’s office PowerPoint summary of the case, she said she’d spoken to Morel four times, and that he suggested she travel to a house he owns in Mississippi where they could “play.” The woman asked Morel what she needed to do for the ticket. Morel backed off, but according to the FBI PowerPoint summary, he suggested they could “go do something” after the case ended. When she said she wasn’t going to have sex with him, Morel stopped calling her back. The third party with the ticket was sentenced to several years in prison.
“I basically called the FBI cold and got a referral and Zummer ended up calling me back,” Champagne, the St. Charles Parish sheriff, told the Appeal.
Zummer was eager to investigate Morel further, but the witness was uncooperative. “The natural thing for an FBI agent—and particularly in corruption—is to do something covert,” Zummer said. “You want to find somebody to wire up on him. We really had a hard time figuring out what to do.”
But Zummer’s luck changed on April 16, 2010, when Champagne’s office alerted the FBI that it had received a frantic 911 call that evening from a woman who said she was groped by Morel.
The caller sounded rattled.
“Um, yes sir, my name is Danelle McGovern,” she told a dispatcher, according to an audio recording and transcript of the 911 call, which were released publicly in 2016. (She pronounced her name “Danielle” and later returned to using her maiden name, Keim.) “I need to make a complaint. I need the cops out here.” She then gave her address—an apartment complex on East Club Drive, a tree-lined street in tiny St. Rose, Louisiana—to the dispatcher.
“And what was your name?”
“Danelle McGovern. I need to make a sexual harassment charge on Harry Morel.” “The district attorney?” the dispatcher asked.
“The district attorney, yes,” she responded. “I have all the evidence.”
As Keim provided the dispatcher with her phone number, she began to weep.
“OK, when did this happen?”
“Just now,” she said, sniffling audibly through tears. “He just left my house 10 minutes ago.”
Keim told the dispatcher that she’d recently been arrested for a DWI in St. Charles Parish and was meeting weekly with Morel to discuss what could be done about her case. She said she’d blown a 0.00 on a breathalyzer test and asked Morel for help.
“I didn’t know he was like that, you know?” she continued. “So he was like, ‘How about I come to your house?’ I just kinda felt that it kinda sounded weird, but he’s district attorney, so what harm can he do?”
“Exactly what did he do?” the dispatcher asked.
“He grabbed me,” she responded. “He kissed me and he touched me in my private area, he touched me in my ass. He wanted me to take off my clothes. He wanted me to take my pants off so he could please me.”
The dispatcher thanked Keim and hung up. By then, the sheriff’s office was aware of Zummer’s burgeoning investigation into Morel, so it asked the FBI to meet with Keim. Zummer arrived later at Keim’s one-bedroom apartment in St. Rose. Sheriff’s deputies were already at the home and ushered Zummer inside to meet Keim, a petite then-24-year-old. Keim had recently been arrested for a DWI and was supporting herself and her young son by working at a Quiznos.
Tessie Keim, Danelle’s younger sister, told The Appeal that Danelle had “such a large personality,” loved to sing and dance, and doted on her young son. At the same time, both sisters could be intense and intimidating when the need arose.
“She just was very strong, she just had an inner strength always, since we were kids—very fearless,” she said.
Although Keim sounded distraught on her 911 call, Zummer remembered that she was calm during his first visit with her.
“From the start, she just said she wanted to be believed,” Zummer said.
Keim told the FBI that Morel first tracked her down at the Quiznos where she worked and called her on the job. Keim met Morel in his office, where she told the FBI he showed her a picture of his house in Mississippi and hugged her. According to the FBI PowerPoint, after meeting Morel a second time, Keim assumed he was going to dismiss her case. But she told Zummer that when she got a court summons, she called Morel again and asked him to meet.
“He claimed he was in the neighborhood, I think back from a golf tournament, and he told her he’d come right by,” Zummer remembered.
Keim told investigators that her son wasn’t in the apartment when Morel arrived. According to a handwritten statement Keim filed with the St. Charles Parish sheriff’s office, Keim said Morel promised to help her—and also asked for sex. Keim said she told Morel she had to go pick up her son that night. In her statement, she told investigators that she tried to walk Morel out of her apartment, but “before I could open my door, he grabbed me and started kissing me and feeling on me. I backed away and when I turned around to open my door, he grabbed my privit [sic] area in between my legs and then ran his hans [sic] all over my ass. And was touching me very firmly.”
After she told him to leave, she wrote that Morel “told me to call him anytime, and if his wife answers, to just tell her I’m just calling about my case.”
But after Zummer’s first meeting with Keim, she stopped cooperating with the FBI. Zummer didn’t hear from Keim again until July 2011, when she went to meet with Morel to ask him to help her then-boyfriend, who faced burglary charges. By then, Keim had also been arrested for a second DWI in neighboring Lafourche Parish.
“That was where he started touching her with, I think I would say her ‘forced consent,’” Zummer said.
According to the FBI’s PowerPoint case summary, Keim met with Morel at the St. Charles Parish Courthouse on July 4, 2011. She told the FBI that Morel asked her if she was taking birth control, and that he wasn’t pleased when she said she wasn’t. Morel then allegedly grabbed her breast and kissed her. Keim said she heard someone nearby, so the pair agreed to meet at a satellite office that was likely to be empty. They took separate cars; Morel drove a white Chevrolet Suburban, while Keim drove a white Pontiac Grand Prix.
Once they were at the satellite courthouse, Keim told the FBI, Morel set ground rules. She alleged she could ask about her boyfriend’s case—but for every question, Morel would get to touch her body. After the first question, she said Morel grabbed her breast. When Morel eventually promised not to let her boyfriend go to prison until later, Keim said he put his hand down her pants. He wanted her to touch him, and she said she was having her period. She told the FBI he unbuttoned her pants and began breathing heavily; he said he’d be fast when they had sex. Morel asked if she wanted to go to a hotel room with him. Using her son as an excuse, she was able to escape.
Four days later, Morel asked Keim to meet him again, this time at a daiquiri shop. As Keim told the FBI, she sat next to him in his car. He told her he was doing a lot for her and that he wasn’t getting much in return. Morel said he was thinking of seeking a sentence of five to seven years in prison for Keim’s boyfriend—and then allegedly unzipped his pants and began touching himself.
Zummer was later alerted that Keim had met with Morel again. He and another agent contacted Keim and met her in a park. Zummer shared personal notes of the meeting with The Appeal; he remembers Keim as inebriated, barely able to walk, her eyes glazed over. Zummer drove Keim to a restaurant in Metairie, a city in neighboring Jefferson Parish, before taking her to a Starbucks as she sobered up. Zummer interviewed her again the next day. As she told him a story about sleeping while clutching toilet paper during a stint in jail to prevent others from stealing it, Zummer realized that this was the closest he’d gotten to someone on the opposite end of the criminal legal system.
“I knew how to put people in jail, but I didn’t know what happened to them afterwards,” he wrote.
After Keim was arrested in August 2011 for shoplifting from a Walmart, Zummer met her in jail and pushed her to cooperate with the FBI; he admitted that he threatened to charge her as a co-conspirator in the Morel investigation if she didn’t agree to do so, a decision he says he now regrets. Keim agreed to work with the FBI to put together a sexual bribery case against Morel, which required recording him explicitly agreeing to extort sex for legal favors.
The FBI then helped get Keim into a drug treatment program. Later, Keim told Zummer that she was bouncing between homes—so the agency helped move her into a new apartment with spare furniture from its New Orleans field office. Keim then agreed to start wearing a wire and record conversations with Morel. (Tessie Keim said she remembers helping fix Danelle’s wire to keep it hidden under her bra at one point.)
Several months after Keim began cooperating with the FBI, Morel stepped down from DA to a top assistant job because his daughter, Michele Morel, had decided to run for a judgeship in Louisiana’s 29th Judicial District. (He fully retired from the office in January 2013.)
In June 2012 , Keim entered a guilty plea in her DWI case in Lafourche Parish and was sentenced to 64 hours of community service. On July 17, Morel was recorded promising to help Keim fake that she’d been volunteering at a Lions Club outpost in St. Charles Parish as part of her community service requirements.
While on tape, FBI records state Morel then suggested meeting her for a drink. He again floated the idea of meeting her at his Mississippi ranch and joked that it would be fun to give her “mouth-to-mouth.”
Morel and Keim spoke again by phone three days later. According to FBI audio tapes of phone calls between them on July 20, 2012, Morel updated Keim on the status of her fake community service records before she mentioned that her son was out of the house that week. They soon hung up. But, per the FBI’s PowerPoint case summary, Morel called back shortly after and started suggesting the pair meet at her house. She was able to put him off a few days.
“Oh, God,” Keim breathed into a microphone hidden underneath her clothes. “He’s here.”
On July 23, 2012, Morel arrived at Keim’s new apartment wearing light-blue jeans and a tan polo shirt. He brought root beer and wine, sat down on a dark-colored couch in front of a coffee table and small potted plant, and started to make small talk. Zummer listened to the conversation from a secure location nearby. The FBI also set up a hidden video camera directly in front of the couch.
“When he pulled in, she kind of started crying a little bit from the tension,” Zummer said. “What was just so amazing about her is that you could hear it in her voice—that ‘oh, God,’ that very genuine fear. But as soon as he showed up, she was on. She swallowed her fear down and suppressed it and she was just on top of it.”
According to a transcript of the conversation obtained by The Appeal, Keim said she didn’t know how to uncork a bottle of wine, so Morel showed her. Eventually, she asked Morel if he minded her smoking a cigarette. He told her not to, because he was going to kiss her and wind up smelling like smoke. He asked about her new apartment, her new job at a local bar, her new car.
In a video of the sting, Morel asked Keim to kiss him—she relented and said she would give him a “peck.” Morel then pulled her body closer to his while he ran his hand down her buttocks. Morel also excitedly asked if he was “an important guy” and, if so, could order her to kiss him.
“I got a deal for you, though,” she said. “Let’s see if we can make a deal.”
“What is it?”
“What’s the furthest—we, we never really went, really, we never really went further than kissing and just kinda touching and feeling,” she said. “What do you want from me?”
What was just so amazing about her is that you could hear it in her voice—that ‘oh, God,’ that very genuine fear.Zummer, former FBI special agent
Everything hinged on that question. Morel was a longtime prosecutor, and investigators knew it would be hard to get him to incriminate himself.
“I don’t know,” he said, seemingly ducking the question. “I want to spend some time with you.”
“You say that but you never—and I know you’re busy—but you never—”
“Well, I think about making love to you but then, you know, it gets me nervous, too,” he said. “And I don’t—but that’s not why I’m helping you. So I just sort of back off.”
She told him she was nervous about making enough community service hours in her case—and suggested that she might be able to let Morel touch her if he was able to help falsify records showing she’d been keeping up with her hours. She pleaded with him not to let her go to jail.
Keim then made it clear she wouldn’t sleep with Morel until he gave her the new, faked records showing she’d been complying with her community service requirements.
“I’m just saying just let me see, once all this is done, let me see the papers so I’ll know that I’m OK,” she said.
“Whatever you want,” Morel said.
Shortly after, Keim asked Morel to visit her at work.
“I gotta stay away until I got the papers,” he joked.
With that, Zummer thought he’d nailed the district attorney.
On Nov. 29, 2012, Keim alerted Morel that they had been followed and photographed, according to the FBI’s PowerPoint case summary.
One photograph showed a red-brick building with white colonial columns and shutters around each door. A white Chevrolet Suburban sat one space away from a Pontiac Grand Prix. In front of the cars, a sign on the lot read “Harry J. Morel, Jr., District Attorney.”
Keim’s boyfriend had tailed their cars on July 4, 2011—the day Morel pressured Keim to have sex with him in a satellite office. And on Nov. 29, 2012, the boyfriend was asking Keim to send the pictures to the FBI. That day, Morel, in a blue gingham shirt, sat down with Keim at a table in his office.
“You know, I don’t like hearing all this,” he said, according to FBI recordings. “We gotta get rid of that and put this all behind us. You can’t talk to that guy.”
“I know,” Keim said. “That’s why I come to you. I’m not gonna fucking talk to him. I’m not answering my phone, I’m changing my fucking number, something. Or I can block it. I can block his number.”
The incident was a set-up, and Keim was nailing her acting role. The photos were real—she had asked her then-boyfriend to tail their cars and photograph them before she’d even begun cooperating with the FBI—but Keim and her boyfriend had already turned the images over to the FBI. And Keim was recording the November 2012 conversation with Morel.
Keim played Morel perfectly. Morel had recently coordinated sending two faked letters to the Lafourche Parish district attorney’s office, according to the factual basis later signed by Morel. John J. Landry III, who ran the Luling-Boutte Lions Club in St. Charles Parish, wrote that Keim volunteered for 64 total hours between July and September 2012 at the club. Landry falsely told prosecutors that Keim had helped out at bingo, swept, organized nursing home supplies, and even delivered meals to needy people.
Sitting with Keim that day in November 2012, Morel directed her to destroy the memory card containing photos of their two cars parked next to one another.
The FBI gave Keim a copy of the card and sent her the next morning to hand over the evidence.
“How are you going to destroy it?” she asked. “It’s hard. You can’t even—I can’t even break it. I tried to crack it.
“Throw it in the garbage,” Morel responded.
“Yeah,” he said.
“Aren’t you going to break it or something, cut it up?”
“Well yeah, I can do that,” he said. He added that he was going to “get a hammer.”
In early 2013, the FBI’s investigation into Morel became public, and a federal grand jury issued a subpoena demanding that Morel turn over the memory card. Morel, meanwhile, had hired his own legal team, led by veteran defense attorney Ralph Capitelli. Capitelli is well-connected in New Orleans; he unsuccessfully ran for Orleans Parish district attorney in 2008and this year was named the 63rd president of the organization that runs the Sugar Bowl college football game at the Superdome.
On Jan. 11, 2013, two major events in the case occurred. First, FBI agents arrived at the St. Charles Parish district attorney’s office and asked for consent to search the building.
Joel Chaisson II, who replaced Morel as St. Charles Parish DA, allowed the FBI to hunt through Morel’s office. According to the FBI’s investigative notes, an agent opened one of Morel’s desk drawers and found the torn open packaging for a memory card reader. Morel’s attorneys told the FBI that the memory card was in the office, but there was no card to be found.
That same day, the FBI paid Landry a visit. FBI agents showed Landry the faked papers that said Keim had worked there and asked whether he’d supervised her.
“Yeah, mostly,” Landry said. The FBI then asked him to pick Keim’s face out of a lineup of photos. He wasn’t able to do so. He then claimed it was “too early in the morning” to recognize her.
Five days later, Landry confessed. He admitted to the FBI that he’d faked Keim’s paperwork and other letters for Morel. He admitted to having falsified a letter for a local priest on Morel’s behalf. In exchange, he told the agency that Morel helped take care of traffic tickets for Landry’s acquaintances. The St. Charles Parish DA’s office later charged Landry with four counts of filing false records and four counts of conspiring to file false records. Although Chaisson’s office recused itself from the Morel investigation, it did not do so in Landry’s case. Chaisson’s office offered Landry a pretrial diversion agreement in which he agreed to complete 129 hours of community service and pay $2,500 in fines and fees in exchange for dropping the charges.
Keim was adamant that she didn’t want to take on Morel by herself. So Zummer and his partner continued their search for other women. Word was getting around the St. Charles Parish sheriff’s office that the FBI was on the hunt for tips about Morel. Sheriff Champagne told The Appeal that a friend told him his daughter—Carla—once came home upset after Morel took her to lunch in New Orleans.
“I think word got out that you could trust the sheriff’s office to pass on valid information,” Champagne said. “So we got a few more leads. One big one in particular was a friend of mine who came forward and told me about his daughter.”
Champagne says he passed the tip on to the FBI.
“Next thing I knew,” Carla told The Appeal, “there’s somebody at the front counter” of her workplace.
“It was an FBI agent,” she said. “I looked at him with a cold stare and said, ‘I’m not talking, you can’t make me, nothing’s ever going to come out of this.’” But, eventually, she agreed to cooperate as a witness.
The FBI’s investigation was also starting to attract significant media attention. Around the beginning of February 2013, Zummer said someone leaked Keim’s name to a reporter at the New Orleans Times-Picayune, the city’s newspaper of record. The reporter asked Keim to speak to him.
Keim called Zummer about the reporter. “I was out of town by this point, driving on the side of the road in Texas,” Zummer said. “We’re having an argument about it. I think I told her I’d never talk to her again if she’d talked to the press. And that really hurt her. I had become a big source of support for her.”
Keim mentioned that her boyfriend wanted to get engaged, but she wasn’t as enthused about it. She also fought with her boyfriend and some of his acquaintances and asked Zummer “to come help get rid of them, or whatever.” He told her to call the sheriff’s office.
Zummer said he stayed on the phone with Keim the night of Feb. 8 for hours. He estimates they talked on and off from the time he left Dallas until he hit Alexandria, Louisiana, on I-49 at about 5:15 p.m. She’d asked Zummer to stop by her home, but he said he wasn’t feeling well and that he was still hours from New Orleans.
“I was stuck in traffic about west of Baton Rouge on I-10, and I got some gas, and saw that it had hit the Times-Picayune and NOLA.com,” he said. “It didn’t name Danelle, but this ex-boyfriend was identified, and Morel would know who she was.”
Zummer said the drive home from Texas wore him out. He felt sick and fell asleep without remembering to plug his phone into its charger. He spent the morning of Feb. 9 watching “Law & Order” and trying to ignore a sore throat. But when his phone was finally charged, he saw that he had three voicemails, including one from the St. Charles Parish sheriff’s office. Sensing danger, he called the sheriff directly.
“Danelle’s dead, Mike,” the sheriff said. “I’m sorry.”
Zummer says he crawled into the shower and started weeping. Then, hands shaking, he put on a suit and drove to the crime scene. News reports later stated Keim’s new boyfriend, a 28-year-old named Matthew Savoie, called 911 in the early morning hours of Feb. 9 to report a drug overdose. In an arrest warrant application filed later that year, police said they arrived to find Savoie attempting CPR on Keim at 5:25 a.m. surrounded by puddles of water pooling around both floors of the house. Emergency medical professionals were unable to revive her.
According to Savoie’s arrest warrant, he said he met a friend in a Circle K parking lot on Feb. 8 who offered to distribute “mollies.” A different witness told detectives she later drove to Savoie’s residence and sold him five pills for $80. Savoie and Keim each took one at around 10 p.m., and then a second pill later that night. He says he fell asleep. In one interview, Savoie stated that he woke up in his bedroom and was alarmed when Keim wasn’t there. In another, he said he awoke around 4:30 a.m. in the kitchen, went to look for Keim, and found her lying facedown on the living room sofa. Savoie said he poured water on her and carried her upstairs, attempted to place her in the tub, and tried to wake her up by running the shower on her body. When that didn’t work, Savoie called 911.
The arrest warrant states that Keim ingested an “extremely high” dose of methylone, or MDMC—a cathinone analogue that drug dealers substitute for the more sought after MDMA, or Ecstasy.
The sheriff’s office ultimately arrested six people in relation to Keim’s death. Savoie was initially charged with the distribution, manufacture, or posession with intent to distribute a Schedule I controlled dangerous substance, as well as second-degree murder—a charge that carries a life without parole sentence in Louisiana. In November 2013, Savoie pleaded guilty to a lesser count of felony distribution of a Schedule I narcotic and was sentenced to 10 years in prison.
Zummer noted that in addition to the stress of the investigation, Keim had been dealing with a series of family and relationship issues. Zummer believes Keim and her boyfriend each took the same dose of MDMC, but because she was simply much smaller than Savoie, she overdosed.
On Feb. 22, 2013, Zummer, two FBI agents, and a victim specialist attended Keim’s funeral. By then, news had broken that Keim had been cooperating with the FBI. Zummer wanted to place an FBI lapel pin on Keim’s body. Even though his bosses disagreed, he handed the pins to Keim’s family, who placed them under her blouse during the viewing.
As Zummer met members of her family, he told them how much he admired her. “I did a tour in Iraq with the Marines,” he said, “and she’s as brave as anyone I’ve ever known.”
Tessie Keim said the experience was “kind of like an out-of-body experience for all of us.” She added that she now works with local women’s shelters to help carry on her sister’s legacy, as she believes Danelle would have helped other women deal with their trauma once the Morel case ended. “She wouldn’t be cowering from it, she wouldn’t be sad about it, she wouldn’t have been any of those things,” Tessie said. “She would have been joyous. So we just really are trying to live that way about the situation for her.”
When searching Keim’s home after she died, sheriff’s deputies found that she’d been keeping a diary. Zummer remembers another agent bringing the diary to him and showing him a page.
“I worked with the FBI because [of] what he did to me,” it read.
After Keim’s death, it seemed like the case against Morel was falling apart.
The online commenting scandal led to fallout for both the U.S. attorney’s office and at least one of its major cases. In December 2012, U.S. attorney Letten resigned; in September 2013, verdicts in the Danziger Bridge case—a police killing after Hurricane Katrina that left two dead and four others wounded—were overturned by Engelhardt, who blasted “grotesque prosecutorial misconduct” in his written opinion. (Later, five Danziger officers entered guilty pleas to charges that significantly reduced their sentences.)
“Everything was really set back,” Champagne told The Appeal.
Toward the end of 2012,veteran federal prosecutor Dana Boente—who briefly served as acting U.S. attorney general in 2017 after President Trump fired Sally Yates—was flown in from Virginia to temporarily oversee the office. Boente did not respond to a request for comment from The Appeal.
With their lead witness deceased, Zummer says he was under pressure. He says one prosecutor on the case pushed him to come up with new evidence within a few weeks’ time. Over the ensuing weeks, Zummer broke sharply with federal prosecutors over their assessment of the strength of the Morel case.
While Keim was alive, Zummer said prosecutors complained that she wasn’t a strong witness. After she died, prosecutors said the case couldn’t go on without her. According to a 2018 Office of the Inspector General report, which was recently made public as part of Zummer’s lawsuit against the FBI, Zummer said that on Feb. 15, 2013, a prosecutor—unnamed in the report—told him that “after [the witness’s death] the case against Morel, which was difficult before, has since become impossible.” According to Zummer, that same prosecutor also argued that Keim’s tapes would no longer be admissible in court. Zummer told The Appeal that he disagreed with the prosecutor on the admissibility issue. (On March 7, 2013—almost exactly a month after Keim’s death—Morel’s attorneys found the missing memory card and gave it to the FBI, according to the FBI’s PowerPoint summary of the case.)
On April 9, 2013, the U.S attorney’s office formally declined to file charges against Morel, according to the FBI’s PowerPoint. Zummer fumed. He hadn’t had time to find new witnesses.
“I did not understand why the case had been declined,” Zummer later wrote to Engelhardt. “I had not asked that it be prosecuted. I wanted to obtain records to identify potential victims for interviews. At the time, we were aware of three women, including Keim, and believed there could be more victims. The sudden declination appeared to be designed to stop the overt investigation before it had the opportunity to start.”
Zummer complained to the DOJ’s Office of the Inspector General in May 2013 that a prosecutor in the Eastern District of Louisiana, Fred Harper, co-owned a vacation home in Gulf Shores, Alabama with his girlfriend, Capitelli, and Capitelli’s wife. Zummer told the inspector general’s office that Harper was involved in meetings about the case prior to the 2013 decision to decline prosecution.
But the inspector general’s office reviewed Harper’s work text messages, emails, and phone records and also interviewed Harper and other lawyers in the U.S. attorney’s office. In a June 2018 report, it “found no evidence” that Harper “had any substantive involvement in the Morel case or in the declination decision, or that [Harper’s] relationship with the Defense Attorney improperly influenced the USAO’s declination of the Morel case.”
According to the DOJ Inspector General’s Office, which also reviewed property records, Harper had begun divesting himself of the condominium in November 2012 and fully ceded legal ownership of the property to his girlfriend in March 2013—one month before the U.S. attorney’s office made the decision not to pursue charges against Morel, and more than one month before Zummer complained about it. Alabama property records confirm that Harper has fully deeded his share of that home to his girlfriend.
Zummer demanded a meeting about the decision not to bring charges. On April 17, 2013, eight days after prosecutors made that decision, Zummer joined Boente, Harper, and several employees from the FBI and the U.S. attorney’s office to discuss the case.
According to Zummer, prosecutors sharply criticized the evidence against Morel. As Zummer told the inspector general’s office—which summarized his recollections in its 2018 report—the criticisms included the fact Morel had been doing favors for other people without asking for sex in return. The inspector general’s report did not indicate whether other participants in the meeting corroborated Zummer’s account.
Eventually, prosecutors agreed to allow Zummer to continue to search for new witnesses.
“For me, I was pretty much just standing up for Danelle,” Zummer said.
Osler, the law professor and former federal prosecutor, said that the kind of friction between Zummer and the federal prosecutors on the Morel case is commonplace at the DOJ. “People tend to have this view of the investigating agents and prosecutors like they’re offensive linemen and quarterbacks,” he told The Appeal. “But it’s not unusual for there to be real conflict there. And there should be, frankly, because it’s a prosecutor’s job to make sure bad cases don’t go to trial.”
But he also explained that federal prosecutors often have a cozier relationship with local district attorneys than they do with the FBI agents because they collaborate with local prosecutors on cases, team up on investigative work, and even split up forfeited assets after criminal convictions.
“You’re gonna need that person in the future,” Osler said. “If you are going to, as a U.S. attorney, go after a local county attorney, you better take the king down or not try. If you’re unsuccessful, you’re going to have a dangerous enemy and a lost partner that may prove to be necessary in the future.”
He added: “The U.S. attorney’s office and local officials often know each other really well, and sometimes they’re friends. The line being crossed in this case—the DA and U.S. attorney’s office on one side, the investigators on the other, is significant, and in some cases can be more significant than state-federal divide.”
Zummer’s team spent the next few years crisscrossing the South to locate more witnesses. His team interviewed more than 100 people and administered 39 polygraph tests. According to the FBI’s PowerPoint summary of the Morel case, at least 22 women identified as victims by federal investigators shared similar stories. One said Morel pressed his erect penis against her body and asked for sex. Another said Morel seemed turned on by track marks on her arm from heroin use, but that she ultimately arranged for Morel to have sex with a different woman instead. Other women reported performing oral sex on Morel, while another witness said he shoved his face into her crotch but she was able to escape. One woman stated that Morel performed oral sex on her.
Zummer said the story of one witness—who, according to FBI documents, Morel had asked to look up her skirt—stuck out in his memory.
“She was crying talking about it,” Zummer recalled.
Champagne, too, says he remembers another woman attempting to speak about her experience with Morel but becoming so upset she vomited. “Mike followed up on all of those leads—really, I’ve never seen anybody so tenacious and thorough as what he did,” Champagne said. “And there were roadblocks. I mean, roadblocks seemed to be thrown our way by the U.S. attorney’s office pretty much every step of the way after Jim Letten went.”
He added: “There were former judges calling, saying check into this woman check into that woman. Everything was a good case. All of a sudden, it all went away.”
Another woman, Monica Jackson, told The Appeal that, sometime between 2011 and 2012, she’d gone to Morel for help after a woman attacked her in the St. Charles Parish Courthouse. Frustrated by the incident, Jackson said she began crying in Morel’s office. She said Morel then walked up behind her and started rubbing her neck. She says he kept repeating that he could help not just her, but other loved ones that had gotten into legal trouble, too. Then she realized something.
“He was like, he was rubbing my shoulders, but really he was looking at my boobs,” Jackson said. “I just called him a fat bastard. He’s just gross, man, he’s a gross motherfucker.” She said she stormed out of his office and “never had any more encounters with him anymore.” Jackson later filed a lawsuit in federal court in Louisiana alleging that she was retaliated against by St. Charles Parish prosecutors for testifying in the federal grand jury’s investigation into Morel. Despite the fact that Jackson’s name had not been released to the public, she says she received anonymous phone calls telling her to “leave Harry alone,” and that someone placed a dead pigeon and cat by her front door.
The “defendants are all Caucasian and I am African-American, which is why I feel I am being targeted,” she stated in the suit. A federal judge dismissed her case.
In 2014, newly appointed U.S Attorney Kenneth Polite formally reopened the investigation into Morel. By 2015, Zummer felt he’d gathered enough evidence to potentially charge Morel using the Racketeer Influenced and Corrupt Organizations Act. Back then, federal prosecutors in New Orleans regularly brought RICO charges against street gangs. But according to Zummer’s letter to Engelhardt, prosecutors conveyed their concern over how it might look if the public found out about the 2013 complaint Zummer filed with the inspector general regarding Harper and Capitelli’s home.
“There was a discussion about how the complaint would make the USAO look if it did [become public knowledge],” Zummer wrote. According to both the FBI PowerPoint summary of the Morel case and Zummer’s letters to Engelhardt, the Department of Justice’s Organized Crime and Gang Section approved charging Morel with RICO violations in early 2016.
But federal prosecutors, who had been in plea negotiations with Morel since May 2015, balked and cut a deal instead. Zummer later alleged to Engelhardt that prosecutors initially considered charges that carried significantly longer potential prison sentences. Eventually, however, Zummer says he was informed that the plea deal had been reduced to just one obstruction charge carrying a maximum of three years’ imprisonment. Zummer also wrote that Morel’s attorneys, including Ralph Capitelli and his son Brian, had also threatened to expose “bombshells” about the agency.
“I believe the Capitellis were testing the government’s case by alleging wrongdoing,” Zummer wrote.
In Louisiana politics, it’s who you know. So Harry won and we lost.Monica Jackson, alleged victim
Osler told The Appeal that it’s rare for federal prosecutors to put the effort into getting charges approved through the DOJ’s main office in Washington, D.C., and then not follow through on filing them.
“Often, you’re talking about writing a 50-page memo to support that case,” he said.
On April 5, 2016, the U.S. attorney’s office formally charged Morel with one count of obstruction for ordering Keim to destroy her memory card full of photos. The charge carried a maximum sentence of 36 months’ imprisonment. Morel pleaded guilty April 20; he was disbarred soon afterward at his own request.
In a news conference the day of Morel’s guilty plea, Polite stood before reporters—with Zummer in the room—and said Morel had preyed on women for decades—despite the fact that his office had not actually charged Morel with any sex-related crimes.
Morel “perverted his position of power to take sexual advantage of desperate women who needed help—and he did this over and over again,” Polite said. “Some of these women needed help enforcing child-support obligations. Others had children who were in trouble with the law. Others were in trouble with the law themselves and were at the end of their rope.” Polite said he felt confident his office had forced Morel to plead to the strongest charge available according to the evidence—obstruction—before also noting the “dogged determination of Special Agent Mike Zummer.”
Zummer’s boss, New Orleans’s FBI Special Agent In Charge Jeffrey Sallet, then spoke, noting that Morel had been the top law enforcement officer in St. Charles Parish for 30 years.
“And what did he do with that tremendous privilege and responsibility?” Sallet asked. “He used it to prey on some of the most vulnerable individuals to satisfy his own sexual interests. This joint investigation uncovered more than 20 victims spanning 20 years. Harry Morel is nothing short of a sexual predator.”
Polite took questions. Reporters asked why, if the FBI had identified so many victims, Morel had been allowed to plead to a single obstruction charge. Polite stated that he was confident his office had brought the right charges after taking Morel’s age and health into account, among other factors.
“We hear ‘more than 20 victims’ and ‘more than 20 years’—he was called a ‘sexual predator’ here today,” a reporter in the room said. “A three-year obstruction charge? How do you tell victims who had to go through this that that is justice?”
“What I tell them, again, is that this is a slow process at times,” Polite responded. “Unfortunately, it is oftentimes an imperfect process. In many of these circumstances, we are dealing with very significant evidentiary concerns. We are dealing with vulnerable victims that, if exposed to the scrutiny of the media, or the scrutiny of the courtroom, would prove to be very difficult witnesses and may ultimately lead to no justice for this defendant.”
Bennett Capers, a law professor at Fordham University and former assistant U.S. attorney in the Southern District of New York (Manhattan), told The Appeal he “could easily see how this would be a difficult case to prove at trial, and how a federal prosecutor would accept a plea to an obstruction charge to dispose of the matter.”
“Any case that depends on lay person witnesses can be difficult,” Capers said, “and the difficulties compound when you add allegations of sexual assault, especially with victims whose credibility will be questioned.”
Champagne said he credited Polite with pushing to reopen the case, given that he had newly been appointed as U.S. attorney. And, as a former prosecutor, Champagne also worried the accusers would have not fared well in front of a “top-notch defense attorney.”
“A lot of these women—they were truly victims—but I’ve always said, I mean, he picked his victims well,” Champagne said of Morel. “He picked women with low self-esteem, with substance-abuse problems, and issues. I think it’s the type of women he knew would never, ever dream of going public against a powerful district attorney.”
Jackson, however, says she couldn’t help but laugh at how paltry the single charge was.
“The justice system didn’t help us at all,” she told The Appeal. “They let him escape through the cracks. In Louisiana politics, it’s who you know. So Harry won and we lost.”
Carla was petrified to see Morel again. But someone needed to say something. Keim was dead, and she resolved that she’d finally confront Morel at the federal courthouse in New Orleans.
“I was promised by the FBI that I couldn’t be hurt by Harry Morel,” she said. Carla said she attended Morel’s sentencing hearing as an observer but did not testify. Tessie Keim told The Appeal her mother ultimately did not attend the hearing.
Zummer read the government’s “factual basis”—a statement of the facts detailing a crime and its particulars that is agreed to by the prosecution and the defense, which forms a basis on which a judge can accept a guilty plea from the defendant. The document focuses almost exclusively on Morel’s involvement with Keim (identified as “Individual ‘A’”), and notes that Morel used his office to solicit sex “between 2007 and 2009.”
Zummer believed that the factual basis excluded significant pieces of evidence uncovered during the investigation and appeared to minimize both the number of alleged victims who’d spoken to the FBI and the years in which Morel was accused of misconduct. Enraged, Zummer asked the FBI if he could file a letter with the court accusing the U.S. attorney’s office of prosecutorial misconduct. The FBI told him to seek approval from the inspector general’s office, which forwarded his request to another office in the DOJ that ultimately told Zummer to talk to his supervisors. Starting to run out of time, Zummer submitted his letters to the FBI’s “prepublication review” office, which clears any public statements by bureau employees. That office told Zummer it would not review his letter. (Later, in October 2018, the OIG stated that the advice Zummer received from the DOJ “misled and frustrated” him.) On Aug. 15, 2016 two days before Morel’s sentencing hearing, Zummer fired off a 31-page letter to Engelhardt anyway.
“The purpose of my letter is to report misconduct by the United States Attorney’s Office for the Eastern District of Louisiana (hereinafter “USAO”) which has affected the prosecution of Morel,” Zummer wrote. “I believe that the USAO’s misconduct has resulted in a plea agreement with Morel based more on its own interest in covering up its misconduct than in advocating for a just result. I believe these matters are of public concern and deserve First Amendment protections.”
On Aug. 17, 2016, Morel appeared for his sentencing hearing at federal court in New Orleans. More than 100 people sent letters to Engelhardt pleading for leniency. Some big names vouched for the disgraced prosecutor: Former Louisiana Attorney General Richard Ieyoub wrote that Morel had “helped thousands of Louisiana’s citizens” and that he made “a mistake which I know he deeply regrets.”
“Your Honor, I want to thank the court in this matter, and I also want to apologize for my actions in this matter,” he said. “It’s unfortunate that I did what I did. I’m very sorry, and of course, I want to thank my family for the things that I—for sticking with me. It’s been tough on them—as tough on them as it’s been tough on me with the publicity and everything. So I want to thank those that wrote the letters, good friends that stood up for me. That’s basically it.”
Federal prosecutors also thanked Engelhardt for reviewing the letters sent that criticized Morel’s conduct, including Carla’s.
“We’ve appreciated that the Court has reviewed those letters that lay out some of what Harry Morel has done over the years as a district attorney, especially [Carla’s] and her discussion of what happened many years ago and the way that it’s impacted her since, that she was a desperate person seeking the assistance of Harry Morel and he took advantage of her,” Assistant U.S. Attorney James Baehr said during the hearing.
After comments from both Morel and the U.S. government, Engelhardt sentenced Morel to serve three years in prison, the maximum time allowed for his obstruction charge. (Engelhardt noted during the hearing that the government said Morel had “sexually victimized” numerous women “between 1986 and 2012,” but their stories would not affect Morel’s sentencing.)
Engelhardt added that the “very idea” of a prosecutor obstructing justice “would on its face” justify the three-year maximum sentence.
“For those of you who may think that Mr. Morel deserves a harsher sentence for his conduct, I must again remind you that the federal judges’ sentencing determination is limited by and to the charge or charges brought by the government—by the Department of Justice—that is, the United States Attorney for the district,” Engelhardt stated, adding that “any inquiries or complaints that the maximum sentence imposed today is just too low should be directed to those decision-makers and their discretion, not the judiciary.”
Upon hearing the length of Morel’s sentence, Tessie Keim said her family “took a breath, had our moment of human emotion and frustration and all of the things we felt, and then again we said, ‘OK, well we know that he’s going to get his own judgment day.’ So that’s where it is.’”
Zummer, meanwhile, was told he was suspended frominvestigative activity. On Aug. 30, 2016, he was told to move his desk to an empty nurse’s office on the second floor of the FBI building. He was also denied access to restricted or prohibited cases in the FBI’s computer system. Zummer sent a second letter to Engelhardt on Sept. 6. The letters sparked media interest in Zummer’s story: Local reporter Jim Mustian wrote a story for the Advocate noting that the then-sealed letter most likely contained “explosive and potentially privileged material, but, unlike the other correspondence sent to the judge, it has been withheld from the court record.” Mustian also reported that federal prosecutors had been fighting to keep Zummer’s complaints from going public—and had even asked the court to keep secret their legal arguments demanding that Zummer’s letter be sealed.The prosecutors argued that Zummer had revealed sensitive material—including information regarding 31 people (mostly FBI and U.S. attorney’s office officials) other than himself and Morel—and “breach[ed] his Employment Agreement.”
“Publicly filing these submissions, while not revealing the exact contents of the privileged portions, would still reveal information related to confidential communications that SA Zummer was not authorized to disclose to the Court or public,” FBI attorneys wrote.
On Sept. 15, Engelhardt issued an order in which he called Zummer’s allegations about the DOJ “troubling, to say the least.” He wrote that “the legitimate concerns of FBI Special Agent Zummer—that the Department of Justice is either unable or unwilling to self police lapses of ethics, professionalism and truthfulness in its ranks—are shared by the undersigned, particularly over the last few years.”
But Engelhardt did not enter either of Zummer’s letters into the case’s public record. Since then, the Department of Justice has never agreed to release either document without significant redactions. On Dec. 8 of this year, an assistant special-agent-in-charge at the New Orleans FBI field office argued in a declaration filed in federal court that releasing the full documents “could harm attorney-client communications within the FBI and the Department of Justice” and “chill” FBI “employees’ ability to have candid communications.”
On Sept. 16, 2016, Zummer emailed an assistant FBI special agent in charge and asked for an update on whether he might be placed back on active duty.
“Unfortunately, because you have taken the position that information you personally gather in the performance of your duties as an FBI Special Agent may be disclosed by you as a private citizen should you determine there is a need despite being instructed not to do so and without authorization, you have made it impossible for us to assign you investigative work,” his superiors wrote back. “This is not a punishment.”
On Sept. 30, Zummer was indefinitely suspended from the FBI, temporarily stripped of his security clearance, and escorted off the premises of the New Orleans office. On Oct. 17, Zummer emailed the staff of Senator Chuck Grassley of Iowa, the head of the Senate Judiciary Committee, alleging that Capitelli and Harper’s relationship may have led to Morel’s lenient sentence. On Nov. 15—seven days after Donald Trump won the presidential election—Grassley sent open letters to the DOJ’s inspector general, Attorney General Loretta Lynch, and FBI Director James Comey.
“Mr. Morel has admitted to soliciting sex from female defendants and female family members of defendants during his time as the St. Charles district attorney,” Grassley wrote. “However, Mr. Morel was not charged with any sexual offenses. Rather, Mr. Morel received a three-year sentence in 2016 after pleading guilty to a single count of obstructing justice. AUSA Harper and Mr. Capitelli, who represented Mr. Morel, owned a condominium together until March 2013 when AUSA Harper transferred his ownership to his girlfriend.”
Grassley further wrote that the suspension of Zummer’s pay and security clearance after he sent his letter to Engelhardt “looks like it could be a misuse of the security clearance process to mask retaliation for protected whistleblowing.”
The senator’s letter received national media coverage at the end of 2016 but disappeared from the news quickly afterward. The #MeToo reckoning that began with the fall of the film producer Harvey Weinstein wouldn’t begin until the following year.
On Aug. 7, 2017, Zummer filed a federal lawsuit against the FBI, Sallet, and 10 other bureau employees for free speech violations. (He later added three more defendants in an amended complaint.) In court motions, the FBI argued that Zummer had been suspended legally and that the information he had tried to disclose, in fact, “belonged to the United States.” Zummer also filed a complaint with the inspector general’s office, but in the office’s June 2018 report, the agency said it found “insufficient evidence” that Zummer had been retaliated against and stated that Zummer had not gone through proper whistleblower channels. In March of this year, Sallet, one of the people who suspended Zummer, was promoted to executive assistant director of the FBI’s entire human resources branch.
The FBI fired Zummer on April 29. His suspension from the agency lasted nearly four years. In August, Zummer began working as the in-house counsel for an activist group called Protect the FBI, which aims to help “safeguard the FBI from partisan politics” by helping whistleblowers file misconduct complaints. On Oct. 8, the DOJ’s Office of Professional Responsibility filed a letter with the Louisiana Bar suggesting that that agency investigate Zummer for his conduct in the Morel case.
Zummer now says he’s lost faith in the FBI’s mission and believes that new accusers coming forward with information about Morel should get a lawyer if possible.
“I would have a really hard time telling people they should come forward at this point,” he said. “I think the FBI and DOJ— the people at the top—pay lip service. They claim the FBI and DOJ look out for victims, and look out for witnesses, but in my experience, the institutions do not bear it out.”
Morel’s accusers are also struggling. Carla says she’s still terrified that Morel might find her one day. She said she’s undergone therapy and had to work to heal the damage Morel did not just to her, but to her entire family.
“I quit seeing my parents,” she said. “I didn’t see my mom as much as I should have, because I was so angry. And I didn’t want to go to Saturday Mass with them, because I didn’t want to see Harry Morel. I missed time with my mother.”
She added: “It’s a shame. But it’s his shame—not mine.”
Philadelphia Teacher Faces 65 Years In Prison After Another Person Torched A Police Car During A Protest
U.S Attorney William McSwain denies he’s targeted the social justice leader, but experts say prosecutors’ use of the man’s clothing and social media to argue that he should be detained pretrial is unusual.
Philadelphia Teacher Faces 65 Years In Prison After Another Person Torched A Police Car During A Protest
U.S Attorney William McSwain denies he’s targeted the social justice leader, but experts say prosecutors’ use of the man’s clothing and social media to argue that he should be detained pretrial is unusual.
Federal agents raided the West Philadelphia home of Anthony Smith on the morning of Oct. 28 and arrested him for allegedly aiding the destruction of a police car during racial justice protests. Federal prosecutors said Smith, a 29-year-old social studies teacher and an organizer with the Philadelphia Coalition for Racial Economic and Legal Justice, posed on May 30 for “celebratory photographs” on a flipped and spray-painted Philadelphia police vehicle and then placed “combustible materials” inside after an unnamed person lit it on fire.
Smith was hit with multiple charges in the October indictment; he faces a combined mandatory minimum sentence of seven years, and a maximum of 65 years. The raid on his home came just two days after Philadelphia police shot and killed 27-year-old Walter Wallace Jr. as his mother watched nearby. Philadelphiamagazinerecognized Smith this year as one of the city’s “most influential” leaders. He is also a plaintiff in an NAACP lawsuit filed over the Philadelphia Police Department’s use of chemical weapons and rubber bullets against protesters in the spring.
Smith’s case is one of nearly 300 nationwide brought by federal prosecutors against protesters over the last six months, and activists say that many of those charged have social justice backgrounds. Smith’s is also not the only case involving burning police vehicles. In late May, federal prosecutorscharged two young attorneys in New York City with throwing a Molotov cocktail through the broken window of an unoccupied police car. No one was hurt—but if convicted they would face mandatory minimum sentences of 45 years in prison. In Salt Lake City, federal charges were brought against four people for flipping and burning a police car during a spring protest. Some legal experts have questioned the federal government’s decision to get involved in what are typically considered local crimes.
Carissa Byrne Hessick, a University of North Carolina law professor who studies prosecutors, says conservatives have tended to argue more often against federal prosecutions in traditionally local matters, but liberal-leaning experts have leveled those critiques more frequently during the Trump era. “The decision to bring these cases seems like part of a broader Justice Department strategy to prosecute crimes committed at these protests with a level of harshness that local officials aren’t necessarily doing,” she said. “And to deal with complaints about policing and police violence not by working with activists or trying to calm the tensions, but instead to take a very hard line law-and-order stance.”
During the late October raid, Smith, one of three men charged in the indictment, was detained at his home and sent to Lehigh County Jail. On Nov. 5, prosecutors acknowledged that Smith has “no known criminal history prior to this offense” and has “substantial ties to the community” but argued that he should be detained pretrial “following his dangerous and violent activity that has resulted in these serious federal arson charges.” In their motion for pretrial detention, prosecutors cited a June social media post by Smith, a cartoon displaying a police car on fire with the caption “quit your day job.” They also said that during the raid on Smith’s home they found a T-shirt with the phrase “[I don’t] fuck with 12” (“12” is slang for “police”).
Smith’s lawyer, Paul Hetznecker, criticized the decision by William McSwain, the U.S. attorney for the Eastern District of Pennsylvania and a President Trump appointee, to bring the charges. He called it a political stunt aimed at criminalizing dissent. “The U.S. attorney charged Smith because he’s part of a politically progressive movement and the message [Attorney General] William Barr is sending is a political one on what are traditionally state court crimes,” Hetznecker said. “It’s a dangerous abuse of federal, prosecutorial, discretionary power.”
Local activists immediately began organizing for Smith’s release, planning rallies, collecting over 8,000 petition signatures, and writing more than 70 letters of support to the judge handling the case. On Nov. 9, Hetznecker filed a court brief calling the government’s evidence that Smith poses a threat “weak and ill-conceived” and a dangerous abuse of First Amendment protected speech. Hetznecker also noted “there is not one shred of evidence” that Smith had done anything in the months since the May incident to suggest he was a danger to the community.
Shima Baughman, a criminal law professor at the University of Utah and a national expert on bail and pretrial detention, told The Appeal she has never heard of prosecutors using T-shirt slogans and social media posts as evidence for pretrial detention. But prosecutors always aim to depict defendants as “high risk,” Baughman added, because people languishing in jail pretrial are easier to negotiate with. “They’re captive audiences in jail, more likely to take whatever deal they’re offered,” she said. “And if a defendant is in pretrial detention it makes it easier for a prosecutor to then say in court ‘look, this person was deemed dangerous.’”
On Nov. 9, a federal judge ruled that Smith was not high risk, could return to his home, and continue teaching his YouthBuild Charter School students over Zoom. (Sarah Burgess, YouthBuild’s director of curriculum and instruction, testified before the judge that Smith is a “deeply valued, and respected” member of their community.)
After being released from jail, Smith posted several updates on Facebook, including one where he claimed he’s been under surveillance and that federal agents seized pictures of his loved ones during the raid on his home. “Advocating for black life can never be wrong,” he wrote in a Nov. 11 post. “Police wanted to embarrass me and ruin my name but it backfired. I got the best support system on the planet.” Smith has a trial date scheduled for January. Hetznecker says he expects it to be delayed in part because the Eastern District of Pennsylvania has a major backlog of cases and the court has prioritized other cases during the COVID-19 pandemic.
Some advocates are hoping that the case against Smith and his co-defendants never goes to trial under a Joe Biden presidency. In September, McSwain told Philadelphia magazinethat he’d resign if Trump wasn’t re-elected, and rumors are floating that he might mount a U.S. Senate bid. Although a Biden-appointed U.S. Attorney could choose to drop the charges or prosecute the defendants on different terms, Justice Department veterans say career staff members are typically loath to drop existing criminal cases, even when there’s a change in administrations.
“I think we really don’t know what’s going to happen in a Biden DOJ in part because Biden has been signaling that he wants DOJ to be more independent, but a lot of people would characterize that to mean a return to how things were before President Trump,” says Hessick. “If [Biden appointees] come in and switch course on a bunch of individual cases then it makes it seem like the decisions were initially political…The question is will folks in the department continue on in the name of normalcy when the things that they were doing are not particularly normal?”
Jennifer Crandall, a spokesperson for the U.S attorney’s office, told The Appeal that McSwain is unable to comment on the Smith case. Last month, however, McSwain told the Philadelphia CBS affiliate that “Mr. Smith was not in any way targeted by my office. I knew nothing about Mr. Smith or his affiliations until the investigation was nearly complete. We do not investigate people at the U.S. Attorney’s Office. We investigate alleged criminal behavior.”
But Hetznecker maintains the federal government made a political decision in bringing charges against Smith one week before the election, and not leaving matters to state courts where there are lesser penalties. Barr has urged his U.S. attorneys to bring charges against Black Lives Matter protesters, including charges of “seditious conspiracy.”
When asked about Smith’s case, Philadelphia District Attorney Larry Krasner told The Appeal that he “usually has little to say” about cases brought by prosecutors outside his office and noted that he expects there to be a new U.S. attorney in the Eastern District of Pennsylvania soon. “And as with any federal case, if the feds chose not to pursue it and it came back into our laps we would look at it and we would try to do individual justice,” he said. “I’m not in a position to comment on the case, but I can say that the current U.S attorney, like so many Trump appointees, has tended to be far more interested in politics than justice.” As he awaits trial, Smith said he’s been thinking about protesters who do not have a wide base of community support. “I think about other prisoners who weren’t able to accumulate 70+ character letters,” he wrote on Facebook on Nov. 16. “Humility and kindness are very important to me. But for the innocent, and the targeted, their freedom should belong to them no matter how ‘nice’ they are.” Smith pledged to avoid being “shoved into a box of respectability” so someone else could remain incarcerated based on their personality.
New Orleans DA Candidate Allowed Race-Based Jury Selection
In 2016, the U.S. Supreme Court ruled that Keva Landrum violated the Constitution when, as a judge, she permitted nearly a dozen Black people to be struck from serving on a jury in a high-profile murder case.
New Orleans DA Candidate Allowed Race-Based Jury Selection
In 2016, the U.S. Supreme Court ruled that Keva Landrum violated the Constitution when, as a judge, she permitted nearly a dozen Black people to be struck from serving on a jury in a high-profile murder case.
In the early morning hours of April 10, 2011, Selvin Gonzales went out with a housemate to buy some drinks. They walked to a Shell station at Tulane Avenue and South Jefferson Davis Parkway in New Orleans’s Mid-City neighborhood, purchased soda and alcohol, and met a drug dealer outside the market. But an argument with the dealer ensued. As Gonzales walked back to his home near the 600 block of South Salcedo Street, someone shot him four times, killing him. New Orleans Police Department officers arrested a then-20-year-old Black man named Jabari Williams, and Orleans Parish prosecutors charged him with second-degree murder, which carries a mandatory life without parole sentence in Louisiana.
But the case unraveled in part because Keva Landrum, then an Orleans Parish District Court judge, allowed District Attorney Leon Cannizzaro’s office to strike 11 jurors—all Black—from Williams’s case. And she failed to allow before the jury evidence that Williams had an IQ of 68, well below the range (70-75) that indicates intellectual disability. Williams was initially convicted at trial in 2012. But after years of appeals, the U.S. Supreme Court vacated the conviction in 2016 and granted him a new trial based on actions Landrum took in court. In Williams v. Louisiana, Justice Ruth Bader Ginsburg wrote in a concurring opinion joined by three other justices that Landrum’s rejection of a defense challenge to the striking of a potential Black juror violated the Supreme Court rulingBatson v Kentucky. In Batson, the Court ruled that a prosecutor’s actions to strike four Black people from a jury without identifying a “neutral” reason that they should have been excluded violated the defendant’s Sixth and 14th Amendment rights.
In September 2016, the Louisiana Fourth Circuit Court of Appeals reinstated Williams’s conviction—but the Louisiana Supreme Court again remanded that decision in 2017 and demanded that Landrum “conduct a hearing and clarify its ruling on defendant’s Batson challenges.” The case has remained open since. Williams is imprisoned at the David Wade Correctional Center in Homer, Louisiana. Reached by The Appeal, Williams’s attorney, Michael Admirand, declined to comment on the case.
Landrum, who served as interim Orleans Parish district attorney for less than a year between 2007 to 2008, is on the precipice of again becoming New Orleans DA. On Nov. 3, Landrum advanced to a runoff against New Orleans City Council president Jason Williams, a criminal defense attorney who has run for the office before. But criminal legal reform advocates say Landrum’s record shows that, in addition to working as a tough-on-crime prosecutor under Harry F. Connick Sr., the New Orleans DA whose tenure was rocked by wrongful convictions, Landrum was too deferential to prosecutors when she served as a judge.
Landrum served as a line prosecutor, sex crimes and homicide screener, juvenile division chief, screening division chief, and first assistant under Connick’s successor, former U.S. Attorney Eddie Jordan. Jordan, the city’s first Black DA, resigned in 2007 amid a swirl of criticism: The city’s murder rate rose to the highest in the country while Jordan was accused by subordinates of being an absentee boss who lacked leadership skills. In 2005, a civil jury ordered the DA’s office to pay out $3.7 million after it found that Jordan had discriminated against 53 white employees whom he’d fired. Two years later, Jordan left the office to Landrum, who served as interim DA until Cannizzaro was elected in 2008 after defeating Williams and several other candidates.
Landrum has since faced criticism from criminal legal reform advocates for ramping up marijuana prosecutions during her short stint as the city’s top prosecutor. Under Jordan, prosecutors typically tried most cannabis possession charges as misdemeanors. But under Landrum, felony possession cases soared, in what was allegedly a scheme to boost felony conviction rates at a time when the city’s murder rate was soaring. (“I would disagree that I had a punitive record,” Landrum told The Appeal: Political Report in October when asked about her record on marijuana cases.)
As Cannizzaro took office—and built a reputation for Brady violations, jailing crime victims, and issuing fraudulent subpoenas—Landrum successfully ran for Orleans Parish District Court judge. Now, her judicial record is under a microscope as she runs for DA; Robert Murray Sr., the father of a man whom Landrum sent to prison in 2013—only for the conviction to be later vacated because of false testimony from the case’s lead witness—has spent $25,000 to run anti-Landrum ads and launch the website KevaExposed.com. In 2012, Robert Murray Jr. was one of three men accused by a Tulane University student of robbery. After one of the three men, former Tulane football star Trent Mackey, was acquitted in the case, Murray Jr. filed a request for a new trial based on the fact that the alleged victim had given conflicting accounts during different trials. Landrum denied that request—but Louisiana’s Fourth Circuit Court of Appeal tossed his conviction in 2017 and granted him a new trial. Murray Jr. later pleaded guilty to a lesser charge as part of a plea deal.
In an interview with The Appeal, Murray Sr. called Landrum “incompetent” and said he encouraged his son to take a plea deal to ensure that he wouldn’t get convicted a second time, despite the fact that his other co-defendants had been acquitted.
“When my son was granted a new trial through the Fourth Circuit, there was no way in hell that I’d let my son go through another trial in Keva Landrum’s court,” he said. “Anything could have happened. My son had already been away for almost three years. His mother cried every day and every night.” After Murray Sr. began publishing ads that called Landrum “corrupt” earlier this year, Landrum took Murray Sr. to court and persuaded a judge to temporarily ban him from promoting the ads.
“The DA’s office under Connick, under Landrum, under Cannizzaro, has been guided by a win-at-all costs culture,” Williams, Landrum’s opponent, said at a debate last Thursday.
Landrum’s campaign did not respond to a request for comment from The Appeal.
Landrum’s involvement in Jabari Williams’s Supreme Court case, however, has gone unexamined as she runs for DA.
According to court records, the two lead witnesses in the bungled murder case against Williams were victim Selvin Gonzales’s two housemates, Jorge Rodriguez and Carlos Sabillion. Gonzales, a Honduran national, moved to the U.S. five years prior and worked as a day laborer. On the morning Gonzales was killed, he and Sabillion took a walk to the nearby Shell station to grab some soda and beer. Sabillion told police that the men stood at an outside window paying for their drinks when Williams arrived in jeans and a white T-shirt and offered to sell them cocaine. Gonzales whipped out a wad of cash—but Sabillion said he chastised Gonzales and instructed him to get his money back and return the drugs. Sabillion said the two men walked back to their home and someone had followed them. Sabillion said the duo was then held up at gunpoint. As Sabillion ran towards their home, shots rang out, killing Gonzales.
New Orleans Police Department detectives interviewed Sabillion and showed him video footage from the Shell station’s security cameras. Sabillion identified Williams as the killer. (Sabillion would later state in court that he had been robbed by “Black people” in the past and that he struggled to tell Black people apart.) New Orleans police then publicly disseminated images of Williams and stated that he was a person of interest in the case. Williams turned up at a local police station shortly after and stated that he wanted to “set the record straight.”
The police department detectives who interrogated Williams stated in court that they used a method of questioning known as the “Reid Technique.” The technique developed by psychologist and former Chicago police officer John Reid in the 1950s was known for producing a high rate of false confessions, especially among children and the intellectually disabled. For most of the interview, Williams denied he’d killed anyone. But during a particularly accusatory line of questioning from the officers, Williams confessed to the killing. He almost immediately backtracked, saying he “thought I was telling you what you wanted to hear” and that the detective was “pressuring” him. Based on that confession, DA Cannizzaro’s office charged Williams with second-degree murder.
During a May 2012 competency hearing, state and defense experts disagreed about Williams’s intellectual disability. Although court-appointed psychiatrists suggested Williams’s IQ was most likely in the “seventy to seventy-nine” range, a doctor serving as an expert for Williams’s defense insisted that had an IQ of 63—potentially making him incompetent to stand trial. Landrum disagreed with the defense’s presentation on Williams and said the case could proceed. She later denied Williams’s motion to enter any evidence into trial suggesting that he was intellectually disabled, stating that the motions were a “back door way of trying to get in a mental disease or defective disorder or diminished capacity or a different way of trying to back door in” claims about his competency.
Jury selection began on June 12, 2012. During the first round of voir dire (a preliminary examination of jurors by judges and attorneys) prosecutors moved to strike six potential jurors, all of whom were Black, from the case. Williams’s attorneys objected. Prosecutors then provided a list of seemingly race neutral reasons to strike the jurors. One woman had recently been on a different jury that returned a not-guilty verdict in a burglary case. Another man had said during voir dire that perhaps some people wrongfully confess to crimes in order to take the fall for others. Prosecutors claimed one man had “bad body language,” while noting that another man “nodded” when a different potential juror complained that the “reasonable doubt” standard of proof was too low for some cases.
Another round of jury selection occurred. This time, prosecutors again moved to strike five potential jurors, all of whom were Black. Once more, Williams’s defense attorneys complained that the strikes seemed racially motivated and in violation of Batson.
“I disagree with you,” Landrum responded, according to court documents. Nonetheless, she allowed the state to provide reasons why two jurors deserved to be struck, including one man who said he’d give New Orleans police a “zero” rating, and another man whom the state said had been arrested in the past.
“She was laughing along with [potential juror] Mr. West, as well,” prosecutors said. “During the actual voir dire of this panel, she appeared disinterested and kind of had a—you know, slouched down in the chair, as if she didn’t want to be asked any questions.”
Williams’s attorneys then asked Landrum if she would also allow the state to provide its own reasons for rejecting the three other Black jurors, but Landrum declined and said she simply remembered the jurors’ voir dire well enough herself.
The case then proceeded to trial, and Williams was convicted of second-degree murder and sentenced to life without the possibility of parole. Williams later demanded a new trial, but Landrum rejected those requests. His appeals to the Fourth Judicial Circuit and Louisiana Supreme Court also failed. But, with help from the Promise of Justice Initiative, a nonprofit civil rights organization, Williams appealed his case to the U.S. Supreme Court.
Landrum’s seemingly off-the-cuff responses to Williams’s attorney’s complaints about jury selection helped sink the case. Because Landrum—not prosecutors—gave reasons that multiple jurors in the second round of voir dire should be struck, four U.S. Supreme Court justices said she’d violated the Constitution. Williams’s conviction was overturned.
“The judge is an arbiter, not a participant, in the judicial process,” Justice Ginsburg wrote in the 2016 concurring opinion. “Allowing the court to provide race-neutral reasons for the State violates [the Constitution].”
Minutes before the polls closed on election night in Chicago, massive city sanitation vehicles moved into position outside Trump Tower. Then, the Wabash Avenue bridge—between the president’s namesake building on the north bank of the Chicago River and the Loop central business district on the south—reared up, preventing pedestrians and traffic from crossing.
“Very medieval,” Steven Thrasher, a professor of journalism at Northwestern University, observed on Twitter. Trump Tower, which has been the gathering place for protests since the 2016 election, was suddenly “like a castle protected by the lords pulling up a drawbridge.” Days later bridges were raised again as Chicago residents celebrated Joe Biden’s projected victory in the presidential election.
Bridges raised above the river bisecting downtown have become a common sight in Chicago since late May, when protests over the police killing of George Floyd in Minneapolis began. It first happened on May 30, as night fell on the protests amid clouds of tear gas, the drone of helicopters, and the shouts of thousands. People who wanted to make their way out of downtown were confronted with dark walls of concrete, steel, and asphalt reaching skyward, severing movement across some of the city’s main thoroughfares. All but two of the bridges separating the Loop from the Magnificent Mile and other busy commercial neighborhoods to the north were raised.
Typically, the city’s river bridges are only raised to allow high-masted boats to pass in and out of Lake Michigan. But that night, for apparently the first time since 1855, the bridges became weapons in Mayor Lori Lightfoot’s aggressive crowd-control arsenal, which also included strategic public transportation shutdowns and highway exit closures to prevent access to downtown. With scarcely a few minutes’ notice—in the form of cell phone emergency alerts—the city announced a 9 p.m. curfew while simultaneously making it nearly impossible for people who’d gathered in the Loop to leave.
The pretext for these actions was public safety. “What started out as a peaceful protest has now devolved into criminal conduct,” Lightfoot said at a May 30 press conference an hour before the curfew. “We want to give people ample opportunity to clear the streets. We’re talking about 35 minutes. I think we’re giving them ample notice.” She said the curfew would help officers “be aggressive in arresting” people engaged in “criminal acts.”
But those who were stranded in the Loop decried Lightfoot’s use of municipal infrastructure, calling it a kettling tactic that makes it easier for police officers to make arrests indiscriminately. Many of the nearly two dozen bridges that span the moat of the Chicago River around the Loop remained raised or closed for days. The city would continue to raise bridges, shut down transit stops and even discontinue bike-sharing services in the vicinity of smaller protests throughout the summer, and in the wake of protests and looting in Chicago’s most prosperous commercial corridors in early August. Lightfoot’s bridge raising and choking of public transit has become so routine that the satirical news outlet The Onion recently declared Lightfoot was unveiling a plan “to replace Chicago’s public transit system with police.”
As Chicago residents and civic organizations documented the effects of these shutdowns, it became clear that they have had serious ramifications on people’s work commutes, healthcare routines, and personal finances. The shutdowns left many feeling that Mayor Lightfoot was more concerned about protecting downtown businesses and some of the city’s wealthiest residents than the police violence that brought people out to the streets. Similar curfews and transit interruptions have become a fact of life in other cities as a wave of demonstrations for racial justice has swept the country.
Robert Alexander, a criminal defense attorney who works in the Loop and lives in South Shore, on the city’s South Side, had been commuting to his office on the bus despite the COVID-19 pandemic. He often works weekends, so he was in the Loop on that Saturday in May. But when he checked the bus schedule he saw that his usual routes weren’t going farther north than 35th Street, nearly four miles away. The trains weren’t running either. “Then I got the notification that the curfew was happening at 9,” Alexander told The Appeal. “This was 8:58. Then I started freaking out.”
He could hear glass breaking on the street; the windows of Walgreens nearby had been smashed and the sprinklers were blasting inside the shop. When he opened ride-sharing apps, no cars were available. He decided he’d try walking the several miles to 35th Street, but when he emerged from his office and onto the street he “saw all these police cars going around and groups of officers walking around, yelling at people. Then I saw groups of white guys with bats walking around and I was like you know what I’m gonna go back to the office. … I’m not gonna lie, I was terrified.”
Alexander, who is Black, thought it would be safer for him to spend the night on the couch in the office even though his building’s call box had been smashed and he worried that someone might break in. He doesn’t remember which mode of transport he took to get home the next day. The road closures and transit interruptions continued into Monday and Tuesday of the following week, but Alexander had to get to his office, where all his clients’ documents are stored, despite the longer and more complicated commutes. “I have incarcerated clients and I was trying to work on motions to try to get them out and away from the pandemic,” he said. “There were police officers, the streets and sanitation trucks, the National Guard were blocking certain exits from the highway.” One day, his ride-share driver got lost making detours around closed streets. “We tried to pull over and ask a police officer for help, and she just screamed at us to keep moving and wouldn’t answer our questions.”
Kyle Lucas, who works at a hotel in the River North neighborhood and lives on the Far North Side, was also stranded the night of May 30. At one point in the evening, Lucas, who is also co-founder of transit advocacy group Better Streets Chicago, stepped outside and witnessed people panicking, crowds of cops, and a squad car in flames. “I remember people just desperately trying to get home,” Lucas told The Appeal. “They were scared.” At every turn, the city’s response to peaceful protests and civil unrest disappointed Lucas. “It’s definitely eroded my trust in the city, in the reliability of the transportation system, it’s eroded my views on the mayor and her commitment to enacting real change,” he said. “I think a lot of people saw the bridges being raised as if to protect the rich and the wealthy and the property downtown in light of people marching and protesting because of massive inequities and injustices in our city, particularly toward Black people. I think it was a very visual reminder for a lot of people of that disparity and I absolutely believe it escalated tensions and made people more angry.”
Over the next several days and throughout the summer as the city continued to limit transit service in response to protests and looting, Lucas, who was able to bike to work, watched some of his co-workers from farther-flung neighborhoods become consumed by the mental and financial strain.
One of them was Robyn Oliver, a security guard who lives in the Roseland neighborhood on the Far South Side, 14 miles away from the hotel near the Ohio and State Street intersection.
“You couldn’t even imagine the hell I had to go through to get to downtown,” Oliver told The Appeal. Normally her commute can take as long as two hours because she works the night shift when bus and “el” train service is more sporadic. But on May 30, as she was on her way to work, the train only made it as far north as 63rd Street. “They stopped the ‘el,’ there was no shuttle buses, no nothing, so I was just stuck there. … I was scared because I didn’t know the neighborhood.” Oliver—who regularly deals with harassment from young people who mistake her for a police officer because of her security guard uniform—said she ended up throwing her uniform jacket in the garbage that night after seeing people ransack a gas station. Ultimately she reached her supervisor who drove out to pick her up. For the next several weeks she was going to work hours earlier than usual, losing out on sleep. “I don’t start till 11 and I start showing up at 5,” she said “I had to show up early just to get there because they lifted the bridges and once darkness hits you’re on your own.” Ride shares weren’t a viable option because it would have cost her nearly $60 one way.
“I would never vote for Lightfoot again and I am gay,” Oliver said. (Lightfoot is Chicago’s first Black female, openly gay mayor.) She added that the usual lack of city services on the Far South Side, such as reliable transit and adequate streetlights were compounded by the city’s responses to the protests. She said Lightfoot’s actions didn’t seem to do much to protect her from the violence that broke out alongside these demonstrations, either. “She did not protect the South Side and us people that worked late nights. I’m going down there to protect their property, but yet I’m fittin’ to get my ass beat for being a security guard on the way.”
Late one evening in early August, Mike Gerardi was thinking about those disparities of race and class as he sat in gridlocked traffic on one of the city’s expressways. He lives in Beverly, on the Far Southwest Side, and at the time worked the night shift as a boiler engineer at the Cook County Jail. His commute along the city’s highways required passing a downtown interchange, which was blocked by huge sanitation vehicles. The city had again blockaded downtown as a rash of looting broke out after police shot a Black man in the Englewood neighborhood. Public transit routes were also interrupted, and the Chicago River bridges were raised once again.
Gerardi was nervous about clocking in for his shift on time. His bosses are strict about lateness and racking up an infraction over something like an unforeseen traffic disruption would perhaps prevent him from taking time off during a real emergency. He didn’t blame the looters as he sat in stalled traffic for more than 45 minutes, though. “By early August I almost felt used to it, this is the thing Chicago does now, block off downtown to keep looters out of the Mag Mile, to keep protesters out of the Loop,” he said. “A bunch of people running around are not the ones who closed off the exit ramp that made my commute bad that night.”
He said that although he didn’t think “breaking windows and setting things on fire” was the right way to get justice, but “at the same time [the city] using that as a reason to completely dismiss anger—that’s wrong, too. The fact that this happened means that something is wrong. … People were reacting to the same damn thing that keeps happening over and over. All the city seems to know to do about it is short-term damage control and wait until the whole thing goes away.” He imagines the thinking at City Hall to be “‘How can we make everyone feel safe until it goes away.’ I don’t think it’s an exaggeration to say that what they mean is ‘how can we make white people feel safe.’”
As Gerardi struggled to get to work, Cal Montgomery, who lives in Hyde Park on the South Side, was preparing to be discharged from Northwestern Memorial Hospital just off the Magnificent Mile. He heard that hospital staff was having trouble getting to and from work, and social workers, who are supposed to work with patients in person on discharge plans, were suddenly only available by phone. “That’s an access problem. Because a lot of [disabled people] have trouble on the phone,” Montgomery told The Appeal. “They were actually talking about holding my discharge because of concerns about whether I’d be able to get home.” Ultimately, he was released but had to cross a line of police at a still-operating river bridge to take the train that goes to his neighborhood. Their menacing looks surprised him. “It was clear they were waiting around for some kind of problem.”
When The Appeal contacted Lightfoot’s office for comment, a spokesperson said in an email that the mayor had “addressed this multiple times in the past” and referred The Appeal to statements she made about the shutdowns in prior press conferences. During an Oct. 30 press conference, Lightfoot was asked whether she would commit to not shutting down public transit in case of unrest after the election. As she has in the past, Lightfoot defended the practice by citing a need to protect transit workers who “felt threatened.” She said that during the unrest in May and June “we had people trying to take over buses … we had people trying to take over trains.” She said the transit employees’ union asked the city to protect their workers. (The union confirmed that Lightfoot’s statement was true.) “We know that in this city there are workers who really depend upon the transit authority to get to and from their place of business, but we also have to balance that against any security risk,” Lightfoot said. “If it’s necessary [to shut down transit] I’m not going to hesitate.”
In August, the ACLU of Illinois, which is a party in the litigation that led to federal oversight of the Chicago Police Department, filed a letter with federal court in Chicago arguing that the city’s imposition of a curfew, interruption of transit, and blockading of downtown areas “chilled speech” and had a disparate racial impact.
The restrictions “had a devastating impact on Chicagoans’ freedom of movement,” the letter stated. “People faced unnecessary hurdles, including increased police contacts, in traveling to and from protests, jobs, health care, and their homes during night hours. These hurdles had a disparate impact on the basis of race because of the outsized representation of people of color among essential workers.”
It’s unclear whether legal action can be brought against the city for its use of infrastructure to control protests, but Active Transportation Alliance is exploring its options. “I put in a call as a resident of Chicago to the Federal Transit Administration Office of Civil Rights to see if there were grounds on which to file a complaint,” the group’s advocacy manager, Julia Gerasimenko, wrote in an email to The Appeal. “I heard back that under the umbrella of an ‘emergency’ the agencies and government officials can pretty much do whatever they please if they can justify the emergency status. They felt that a complaint process with the Office for People with Disabilities would be a process more likely [to result] in a favorable outcome.”
This commentary is part of The Appeal’s collection of opinion and analysis.
Reading postmortems on the disappointing results of congressional Democrats this election cycle, one could be forgiven for thinking that Bernie Sanders, rather than Joe Biden, led the party to a catastrophic defeat that cost the party a majority in the U.S. House of Representatives. In reality, Biden, who positioned himself as a moderate during his presidential campaign, won the general election by a closer-than-expected margin that coincided with losses for the Democratic Party in the House, though the party maintained control of the chamber.
In 2018, the victory of centrist candidates in swing districts was presented by some in the media as a vindication of party moderates and a rejection of the left’s theory that running on bold, transformative policies are necessary for Democrats to retake the speaker’s gavel. In 2020, many of these same moderate freshmen failed to secure reelection. It’s peculiar, then, that these poor performances are also presented as a vindication of the party’s moderate wing, which retains firm control of House leadership and the broader party apparatus. Indeed, House Speaker Nancy Pelosi has faced almost no public scrutiny for the party’s losses in the House, and her reelection to the speakership remains a foregone conclusion.
Instead, the blame for harming the prospects of vulnerable House Democrats has fallen on Medicare for All advocates and proponents of defunding the police. On a strategic level, it’s understandable why critics of these policies, most notably House Majority Whip Jim Clyburn and Virginia Representative Abigail Spanberger, are using the poor reelection results to disparage their political opponents. What isn’t understandable, however, is how little pushback these critics are receiving.
Medicare for All is widely popular, and multiple swing seat House members supportive of Medicare for All won reelection. In preliminary exit polling, 57 percent of voters expressed support for the Black Lives Matter movement, though the movement to defund the police went essentially unrepresented at the ballot box (perhaps because policing is largely a state and local matter). Not a single Democrat running in a swing district ran in support of defunding the police.
As it stands, the Democrats who lost reelection are: Florida Representatives Donna Shalala and Debbie Mucarsel-Powell, New Mexico Representative Xochitl Torres Small, South Carolina Representative Joe Cunningham, Iowa Representative Abby Finkenauer, Oklahoma Representative Kendra Horn, Minnesota Representative Collin Peterson. They will likely be joined by New York Representatives Anthony Brindisi and Max Rose. With the arguable exception of Murcasel-Powell, none of these members support Medicare for All, and not a single one has given so much as lip service to the movement to defund the police. Indeed, Rose ran to the right on criminal justice policy and made his support for police a hallmark of his campaign. “I think that this is a critical moment where we should be investing in our police even more,” Rose said in an October debate. But even a commitment to more funding for the police did not stop the Sergeants Benevolent Association from calling Rose a “cop-hater”.
It should be noted that two House members, California Representatives Gil Cisneros and Harley Rouda, supported Medicare for All in 2018 and won, abandoned support for the policy once in office, and currently trail in their bids for reelection. While it would not be especially honest to claim that turning their backs on the policy could cost them their seats, this narrative makes more sense than the argument that Medicare for All damaged Pelosi’s majority.
Katie Porter, also a California representative and a crusader against corporate power who supports Medicare for All, easily won reelection to her traditionally conservative swing seat. Representative Mike Levin, a progressive who supports Medicare for All and other left-wing priorities such as the Green New Deal, also comfortably won reelection in a battleground district in the state. Oregon Representative Peter DeFazio, who represents a quintessential swing district and faced a star Republican challenger, won as a supporter of Medicare for All in tough territory. Representative Matt Cartwright, a supporter of Medicare for All, won reelection in his Pennsylvania-based swing seat, even as Trump carried the district. And Maine Representative Jared Golden (ME-02), also a supporter of Medicare for All, is on track to win reelection despite Trump winning his district. The idea that Medicare for All amounts to electoral poison in swing districts simply does not hold up to scrutiny.
Given the general underperformance by the party, it’s unsurprising that neither Democratic challengers supportive of nor opposed to Medicare for All fared well in swing districts. Moderate Democrats running in battleground seats who were seen as probable winners such as Texas Representatives Sri Preston Kulkarni, Gina Ortiz Jones, and Wendy Davis fared poorly, just as pro-Medicare for All candidates such as Texas Representative Mike Siegel and Nebraska Representative Kara Eastman were unable to win their contests. Embracing Medicare for All may not be a panaceafor the party’s misfortunes. But neither it nor the call to defund police can be blamed for poor down-ballot results, as the emerging media narrative is claiming.
Aidan Smith is an electoral analyst at Data for Progress. He is also the founder of Labyrinth, a new journal of electoral politics.
Law Enforcement Reformers Sweep Major Races In Los Angeles County
Candidates promising to remake Southern California’s legal system, won major races for DA, county supervisor, and City Council, among others while overcoming significant spending by pro-law enforcement groups.
Law Enforcement Reformers Sweep Major Races In Los Angeles County
Candidates promising to remake Southern California’s legal system, won major races for DA, county supervisor, and City Council, among others while overcoming significant spending by pro-law enforcement groups.
Los Angeles County residents elected reformer George Gascón for district attorney and approved Measure J, which would require the county to invest 10 percent of its locally generated, unrestricted revenues in the general fund. Through community investment and alternatives to incarceration, that money would address the disproportionate effect of racial injustice. Measure J would also prohibit use of those funds for carceral systems or law enforcement agencies.
Gascón, who previously served as assistant chief of police for the Los Angeles Police Department, chief of police in Mesa, Arizona, and San Francisco’s district attorney, has supported efforts to divert funding from incarcerating people. Criminal legal reform advocates have targeted Lacey, who has exonerated just a few of the thousands of cases her Conviction Review Unit has received and has not charged an LAPD officer for an on-duty shooting since taking office in 2012 (despite the fact that over 400 people have been killed in Los Angeles county by law enforcement or died in custody during her tenure). She has also continued to seek the death penalty despite Governor Gavin Newsom’s moratorium on capital punishment. In November 2019, advocates for reform told The Appeal that Lacey opposed efforts to legalize recreational marijuana and fought efforts to change the state’s felony murder rule.
Gascón’s win is especially consequential because the Los Angeles DA’s office is the largest local prosecutorial office in the U.S.
Gascón won the endorsement of numerous progressive groups, including the Working Families Party and Color of Change, after promising to divert people with mental illness or substance use disorder out of the criminal legal system. “If I win and we can show that [progressive policy] actually works, it will really begin to devalue the scare tactics that are being practiced now by Trump, and by my opponent, and by police unions throughout the country,” Gascón told The Appeal: Political Report in October.
“In looking at how we go forward, we must commit to appreciating the humanity in others,” she said. “The failure to see the humanity in others is what causes us to stereotype a Black man with sagging pants as a ‘gang member’—or to wrongfully assume that all law-enforcement members are abusive.”
In a Friday evening statement posted to Twitter, Gascón said that “this victory belongs to the countless community organizers that worked tirelessly, our thousands of volunteers, and every voter that joined this fight for a healthier, safer and more equitable system of justice.” He also thanked Lacey “for her decades of service to LA, the sacrifices she has made, & the barriers she breached.”
Elsewhere at the county level, state Senator Holly Mitchell won her race for the Los Angeles County Board of Supervisors’ District 2, which encompasses portions of the cities of Inglewood, Compton, and Culver City, as well as the Koreatown, La Brea, and Mar Vista neighborhoods. Mitchell criticized her opponent, former Los Angeles City Councilmember Herb Wesson, as an opportunist when it came to criminal legal reform: Although Wesson supported Black Lives Matter-Los Angeles protesters during this summer’s racial justice demonstrations, he supported a ballot measure in 2017 that would have made it harder to hold LAPD officers accountable for misconduct. (The Los Angeles Police Protective League, the LAPD’s largest union, also donated $50,000 to a pro-Wesson PAC this year.)
In contrast, Mitchell focused heavily on criminal legal reform during her tenure as a State Assembly member. In 2018, she announced that she successfully pushed the legislature to pass 10 bills as part of what she called her “Equity and Justice Package”—including measures banned life without parole sentences for children, eliminated significant court fees, prohibited children as young as 14 from being tried as adults, and banned children younger than 11 from entering the criminal legal system. Mitchell won by a significant margin—approximately 61 percent to Wesson’s 39 percent
The Los Angeles County sheriffs union and the Association of Deputy District Attorneys (ADDA) attempted to galvanize voters against the proposal. In July, the ADDA’s Michele Hanisee, argued that the measure was “a knee-jerk reaction to the recent civic unrest and not the product of thoughtful deliberation from a broad cross-section of stakeholders.” Also in July, Los Angeles Sheriff Alex Villanueva tweeted that the proposal would make LA streets “look like a scene from Mad Max.” The Association for Los Angeles Deputy Sheriffs also donated more than $2.5 million to a “No on Measure J” political action committee that circulated documents alleging that the measure would destroy city services.
And Proposition 20, which would have increased the number of felony offenses in the Golden State, failed despite support from law enforcement unions.
But perhaps the biggest upset was Nithya Raman’s victory over David Ryu in the race for Los Angeles City Council. Raman was a political newcomer when she announced her run for the council’s District 4, which includes portions of Sherman Oaks, Silver Lake, Los Feliz, and other cities. Thet race morphed into a local referendum on California’s Democratic Party establishment: Raman, who moved to Los Angeles from India in 2013 and served as the first executive director of Time’s Up Entertainment, centered her campaign on decarcerating the city’s homeless population, shrinking the size of the LAPD, and shifting city resources toward affordable housing efforts. In 2015, Ryu ran as an “outsider” candidate who promised to reform campaign finance laws and strip power from the city’s real estate investor class. But in the years since, housing rights advocates criticized Ryu for taking donations from the same developers he’d previously criticized. After Senator Bernie Sanders of Vermont endorsed Raman in October, Ryu’s campaign secured endorsements from Hillary Clinton and House Speaker Nancy Pelosi while making false claims about Raman, including that she wants to cut the LAPD’s budget “by 98 percent” overnight. After a long wait, Ryu finally conceded the race Friday evening—at that time, Raman had secured 52.4 percent of the vote.
“We showed through the success of our campaign that the ideas we were talking about had real electoral resonance,” Raman said in a live interview with The Appeal last month. “It showed the power of these progressive policies and how many people believed in them in Los Angeles. And I will say that, no matter what happens in November, we’ve already changed the terms of the debate in LA.”
CORRECTION: A previous version of this story identified Holly Mitchell as a state assembly member, rather than a state senator.
Before Fatima Iqbal-Zubair announced that she was running for the California State Assembly’s 64th District last year, she was a schoolteacher at Jordan High School. The school is in Watts, a historically low-income South Central Los Angeles neighborhood that has a significant number of Black and Latinx residents. Iqbal-Zubair remembers that cops randomly searched her students. Dirty water was in drinking fountains. The football team couldn’t practice because the playing field was contaminated with lead and arsenic.
Iqbal-Zubair later found that the oil refineries and steel mills that California lawmakers had crammed into the city’s poorest neighborhoods—the 64th Assembly District contains 25 percent of the state’s oil refineries—were poisoning her students. She also believed that local State Assembly member Mike Gipson didn’t seem particularly interested in fixing the problem.
“A child in my district is going to breathe bad air, going to be more likely to go to school that’s under-resourced, more likely to have barriers to getting a job, more likely to be evicted, more likely to be shot—the story of a child in my district is the intersectionality of all these issues,” Iqbal-Zubair told The Appeal.
Inspired by Bernie Sanders’s presidential campaigns in 2016 and 2020, Iqbal-Zubair decided to run for the state legislature on a progressive platform that includes pushing for universal healthcare, divesting from police and prisons and investing in alternative forms of justice, free and universal pre-kindergarten, and “clean air, clean water, and clean food for our communities.” If elected, Iqbal-Zubair would be both the first person of Sri Lankan descent to represent her district and first Muslim to ever serve in the California State Assembly.
The 64th District stretches from the Los Angeles harbor area all the way north through South Los Angeles, Compton, and up to Watts. Gipson, a former officer with the (since-disbanded) Maywood Police Department, served on the Carson City Council before taking a seat in the State Assembly in 2014. Since then, Iqbal-Zubair says Gipson has done little but serve as a recipient of corporate cash from Anheuser Busch, CVS-Caremark, Pepsico, Boeing, Geico, Coca-Cola, and AT&T. In 2019, the Los Angeles Times reported that Gipson received among the highest number of gifts—including trips to Chile and the Netherlands funded by a group with ties to the oil and gas industry—of any member in the state legislature. Gipson has also received police union money: According to the National Institute on Money in State Politics, he has accepted more than $30,000 from the Los Angeles Police Protective League over his last four elections. He’s accepted donations from the Long Beach Police Officers’ Association and Los Angeles School Police Management Association, too.
Iqbal-Zubair, who is running on a platform that includes divesting from police and creating a “community force” that could respond to less serious calls or mental health crises, told The Appeal that she saw the damage caused by random police searches of her students at Jordan High.
“It was normal to see police there for situations like truancy or for searching for, like, illegal substances,” she said. “In my mind, that should never be the case—there’s no reason to have police inside schools unless maybe a gun pulled out, but that’s not why they were there.” She said that she ran a robotics club to keep kids occupied after school, and that funding for police should instead be diverted into giving kids more learning opportunities.
Last year, Iqbal-Zubair worked as Gipson’s education commissioner—but she says she soon realized he was deeply connected to oil and gas companies. Gipson has taken tens of thousands of dollars from companies that either operate oil refineries near his district (such as Chevron, which operates the El Segundo Refinery a few miles from his district’s border, as well as Valero), and within his district, including Phllips 66 and Marathon Petroleum. Gipson’s voting record, too, seems to reflect his donors’ interests: In 2018, Gipson voted down a proposal to set a 100 percent “clean energy” goal in California by 2045. Then last year Gipson skipped voting on a bill to force oil companies to better prepare for spills—he also voted no on a proposal to strengthen emission-reporting requirements and transparency about abandoned oil wells.
Iqbal-Zubair says the district deserves a representative who will fight harder to ensure South Central Los Angeles residents can get the same basic life necessities as people in wealthier, whiter districts—including clean water, stores that sell healthy food, free public transit, and more trees and green space breaking up the endless miles of concrete in areas like Compton.
“Basic things we need to get include clean water, which is ridiculous to have to say, but we need clean water everywhere in my district, and in other areas of the state, like the San Joaquin Valley or San Bernardino,” she said. “We have clean water laws that are simply not implemented. And in many cases, there is clean water but the pipes are years or decades old, so we may need an infrastructure overhaul.” She added that when you “walk around the district, there are all these junk food places and liquor stores, which are not what the community is asking for. There are corporate interests putting them there and it’s making my community sick.” She also said she would push the state to create buffer zones between oil- and gas-production sites and residential areas, which she noted that Republican-dominated Texas has passed, but “progressive” California legislators have resisted.
Iqbal-Zubair performed well in the March 3 primary despite it being her first time running for office. Using small-dollar individual donations and door-knocking, she was able to pull in more than 32 percent of the primary vote. (Iqbal-Zubair identifies as a democratic socialist, as does Sanders, who won Los Angeles County in the state’s 2020 presidential primary.)
In California State Assembly races, the top two candidates regardless of party advance to the November general election and, because only Gipson and Iqbal-Zubair ran, they are facing off again in the general election. This time, she has more major endorsements that she hopes will help push her over the finish line, including from the Martin Luther King Jr. Democratic Club and Sanders. Iqbal-Zubair could also be one of multiple progressive—and openly democratic socialist—candidates to sweep into office in Los Angeles this year. Nithya Raman, endorsed by Sanders as well as Democratic Socialists of America, has run a grassroots, housing justice focused campaign for Los Angeles City Council that shocked local politicians and pushed incumbent Democrat David Ryu into a tight race. In response to Raman’s surge, major centrist Democrats including Hillary Clinton and U.S. Representative Nancy Pelosi have endorsed Ryu. This sort of attention from national politicians is not typical of local city council races.
Iqbal-Zubair told The Appeal that she’s excited to tap into the same support that’s also boosting Raman in Los Angeles.
“I think people are angry,” she said. “For one, I think when Bernie ran his first campaign, it opened up a consciousness in America and in LA that hasn’t been opened before. We considered it a movement and it pushed something in us.” But, she said, “it’s also a combination of what’s happening around us—we see the rates of homelessness rising, rates of environmental racism getting worse, see our schools getting worse.”
She added: “Northern California has legislators that are a lot more progressive than we are, New York has people becoming more progressive, and so I think Southern California is finally noticing and catching up to what the people want.”
In the years after a troubling number of suicides rocked his jail, Fort Bend County Sheriff Troy Nehls did little to remedy the long-standing problems at his facility. Instead, he posted angry rants about President Trump on Facebook and faced accusations of racially profiling Latinx drivers. Nehls, 52, has served as the sheriff of the Texas county—a suburb of Houston home to more than 800,000 people—since 2012.
In 2017, Nehls took to Facebook to blast the “offensive display” of a local woman named Karen Fonseca who had a sign on her family’s truck reading “Fuck Donald Trump and fuck you for voting for him.” Nehls then threatened to charge Karen and her husband with disorderly conduct. Nehls later deleted the Facebook post and backed off the threats of charges after the ACLU of Texas wrote in a Facebook post “Sheriff Troy E. Nehls, Constitutional Law 101: You can’t ban speech just because it has ‘f@ck’ in it.”
This year, Nehls used Facebook to attack racial justice protesters. “God bless President Trump for taking action to reinstate law and order and God bless all our service members and law enforcement officers out on the streets tonight,” Nehls wrote in a June 1 Facebook post in which he cheered on the president’s decision to send federal agents into cities to crack down on Black Lives Matter protests.
Now, Nehls is seeking the Congressional seat in Texas’s 22nd District, which has, in years past (and through a few re-districtings), been represented by Ron Paul, Tom DeLay, and Pete Olson, the retiring incumbent. The district, which includes parts of Brazoria, Fort Bend, and Harris counties, has been staunchly Republican historically, but is considered very competitive this year.
Even if Nehls is elected to Congress, his family may maintain its hold on the sheriff’s office. Nehls’ twin brother Trever Nehls has secured the Republican nomination to be the next sheriff of Fort Bend County.
Advocates for criminal legal reform are concerned that the brothers could end up controlling Fort Bend politics.
On October 16, a group of activists, including members of the League of United Latin American Citizens (LULAC), the Libro Trafficante movement, the National Association for the Advancement of Colored People and the Council on American-Islamic Relations of Houston gathered outside the Fort Bend County Justice Center to denounce the profiling Latinx drivers by Fort Bend County officers.
“This is under the administration of Sheriff Troy Nehls, who we have tried to interview several times,” LULAC and Libro Trafficante activist Tony Diaz said as a protester held a “Troy Nehls is a Racist” sign behind his head. “He should be speaking on this, he should be denouncing this, he should make this stop. Worse, we are in an election cycle — this could intimidate Latinos and others to even stray out of their house during the COVID-19 epidemic to vote.”
“How can you have the audacity,” Diaz added, “to not answer questions from our community and then run for office?”
Troy faces Democrat Sri Preston Kulkarni, a former Foreign Service officer, in the general election. Kulkarni nearly beat incumbent GOP Rep. Olson in 2018—because of that close race, the Democratic Congressional Campaign Committee has invested significant resources in Kulkarni’s 2020 run. Kulkarni has raised more than $4.5 million in the race—compared to Troy’s $1 million.
In the Fort Bend sheriff’s race, Trever’s opponent is Democrat Eric Fagan, a Black former officer with the Houston Police Department who once served on Houston Mayor Sylvester Turner’s personal security detail. Among other proposals, Fagan says he’d like to outfit each Fort Bend officer with body-worn cameras and has promised to bring “progressive policing” to the department. (Trever has also pledged to make his officers wear body-cams if elected.)
“I believe that the Sheriff should create and implement policies that focus on reducing the county jail population and also have programs for inmates to participate in while incarcerated that will help them when they re-enter the community,” Fagan wrote on his campaign webpage.
The Nehls brothers have a long law enforcement lineage: their father Edwin and older brother Todd were both sheriffs in their native Dodge County, Wisconsin. (Despite their long histories in Texas, the brothers, who live next-door to one another, still talk in Wisconsinite accents.) Both later also served in the U.S. Army Reserves and did tours in Iraq and Afghanistan. The Nehls’ also served in police departments in Fort Bend County—Troy with the Richmond Police Department and Trever with Sugar Land Police. In 2017, KUHF, Houston’s NPR affiliate, obtained documents showing that Troy was fired from the Richmond Police in 1998 for a staggering list of offenses, including: improperly buying a wall-plaque with public money; not telling his dispatchers he’d gone to a restaurant while on-duty; taking an extra off-duty job after he’d been told not to and then “misleading” his superiors about it; repeatedly being warned to do more police work; “improperly” arresting someone; and destroying state evidence.
Neither of the Nehls brothers responded to requests for comment from The Appeal.
But what Troy lacked in basic crime-fight skills, he made up for in bravado. Troy has repeatedly made headlines for making outlandish comments in the press and on social-media, especially as the Trump years have dragged on. Political Research Associates, a self-described “social-justice think-tank,” included Troy on its list of sheriffs “affiliated with far-right and anti-immigrant networks” after a “Patriot-movement” website listed Troy as an ally in 2013.
After a Fort Bend County homeowner shot an alleged robber to death in 2016, Troy defended the homeowner—and told the shooter to “go back” to where he came from.
“Don’t come into Fort Bend County and start waving guns around because you could leave in a bag,” Troy said. “We don’t need thugs coming into this county and pulling handguns and trying to rob us for our possessions. So that’s my warning to the criminals here, you may want to go back to Harris County [Houston].”
But it is the string of deaths at Troy’s jail—not his rhetoric on social media and elsewhere—that has local advocates alarmed.
On Sept. 27, 2015, a 40-year-old man named Heriberto Coreas attempted suicide inside the Fort Bend jail. He was transported to a Houston hospital, but he died three days later. In response, the Texas Commission on Jail Standards told Troy that jail staff were not checking on incarcerated people at regular intervals, so the facility was at risk of failing to meet minimum standards for state inspection.
On November 3, 2015, Eugene Ethridge Jr., died by suicide at the Fort Bend jail while detained on a DWI charge. According to a lawsuit filed by Ethridge’s father, Eugene Sr., against Fort Bend County and Troy, Ethdrige Jr. frantically pressed an intercom button asking for help the morning he died, but a guard allegedly left his post for at least two hours and thus Ethridge Jr.’s cries for help went unheeded. (Ethridge Sr.’s lawsuit was later dismissed.)
The sheriff department has also attracted scrutiny for its conduct outside the jail. In a Hosuton Chronicle investigation published in July of this year, reporters found patterns of racial profiling in stops made by its narcotics task force. One officer, for example, pulled over Latinx drivers 98 percent of the time —and of the 187 people he searched, 185 were Latinx.
“This blatant act of racial profiling will not be tolerated in my administration,” Fagan, Trever Nehls’s opponent, writes on his campaign site. “It’s wrong and illegal.”
After one of Troy’s primary opponents, far-right Christian conservative Kathaleen Wall, accused him of being soft on immigrants, he responded by posting an anti-immigration screed to his Facebook page.
“Let me set the record straight: I have never and will never support sanctuary cities,” Troy wrote. “Don’t just take my word, look at my record. In my 7 years as Sheriff, I’ve worked with ICE to detain over 2,500 criminal illegals for deportation processing—no one in this race, including Kathaleen Wall, can claim they’ve done more, or anything close, to addressing illegal immigration. My stance against sanctuary cities and against illegal immigration is undeniable.”
He added that he supports “President Trump 100 percent.”
In August, Troy attacked Kulkarni, his Democratic opponent, for taking donations from progressive organizations whom he said he support defunding the police. “In the most diverse county in the country, we don’t see tension between law-enforcement and the communities we serve,” he said, “because we work together and there’s a mutual respect.”
The following month, Troy released a television ad that depicted burning cars and called Kulkarni a “liberal extremist.”
“In congress, Troy Nehls will stand up to the anti-law-enforcement extremists and put our safety first,” intoned the ad’s narrator.
Despite its name, the Texas Railroad Commission doesn’t regulate railroads anymore. Instead, the three-person panel oversees the state’s gigantic oil and gas industries. Last year, Texas accounted for 41 percent of the nation’s crude oil production and 26 percent of its marketed natural gas production. It’s perhaps no surprise that in such an oil-rich state, the Railroad Commission has historically been staffed with industry allies such as Ryan Sitton, a former Occidental Petroleum and Marathon Energy employee who held a seat on the panel from 2015 until his primary defeat this year.
Now, the Texas Democratic Party is mounting a fight to give the public more control over one of the state’s most important but little known regulatory agencies. Chrysta Castañeda, a Dallas engineer and lawyer, is running for a seat on the commission. Her campaign could be well-timed: Despite Texas’s reputation as a Republican stronghold, 2020 might represent the best chance that the Democratic Party has had in years to take a seat on the state board that approves oil-drilling permits and regulates fracking. Even though no Democrat has won statewide office in Texas since 1994, huge early voter turnout—in Travis County (Austin) and Harris County (Houston)—suggeststhat there could be a blue wave this fall.
“Long story short: If we enforce the law here, we can dramatically impact the carbon gases pumped into the atmosphere,” Castañeda told The Appeal.
Castañeda has run for office before. In 2012, after nine men and no women filed for a U.S. House of Representatives seat in Texas’s 33rd Congressional District—which includes parts of Dallas and Fort Worth—she decided to enter the race (another woman later joined). After Castañeda lost that primary, she returned to her work as a trial lawyer. In April, she published a book about her time serving as oil magnate T. Boone Pickens’s personal lawyer in 2016. But she remained close to the state Democratic Party and told The Appeal that she’s dedicated to getting more women involved in Texas politics. Given Castañeda’s background working with energy industry titans like Pickens, the party approached her and asked her to run for the open Railroad Commission seat this year.
Castañeda was inspired to run in part by an oil and gas industry procedure called “flaring,” in which energy producers burn off unused natural gas and let it float away into the atmosphere. Technically, flaring is illegal in Texas—unless you have a permit from the Railroad Commission. As the U.S. began producing more natural gas over the last decade, the commission handed out thousands of flaring permits. In the 2008 fiscal year, the commission gave out just 107 permits, compared to 6,972 in fiscal year 2019. Energy producers use flaring to avoid spending extra money to store or transport excess gas. The thousands of flaring permits in Texas represent a profound environmental hazard because the practice releases methane, which warms the planet even faster than carbon dioxide.
“We light on fire enough natural gas to power the entire city of Houston continuously,” Castañeda said. “It’s harmful to our climate—and it causes human health problems like, asthma, premature births, and lung disease.” Castañeda also promises to push energy companies to plug abandoned wells, since many producers leave spent oil fields open, forcing taxpayers to clean up the mess.
Castañeda—who proudly states on her campaign’s website that she believes that humans cause climate change—faces Republican Jim Wright. Earlier this year,Wright defeated Ryan Sitton in the state’s Republican primary despite the fact that Wright has been accused in court of fraud and fined more than $180,000 by the Railroad Commission itself for allowing waste to pile up on oil fields he owns.
“I firmly believe that we must secure our border to protect our families, our infrastructure and our oil and gas industry,” he writes. “I know firsthand the dangers of a weak border. In 2017, a vehicle of illegal immigrants ran a stop sign and crashed into my wife’s jeep before leaving her unable to move and almost dead. Today she is a paraplegic confined to a wheelchair, saved by the Grace of God and because a neighbor found her and helped save her life.”
Still, Castañeda’s election could significantly tip the scales of power on such a small board. The other two commissioners are Republicans Christi Craddick and Wayne Christian, a former Texas Tea Party Caucus board member and President Trump supporter who has denied that human beings cause climate change.
Castañeda told The Appeal that she hasn’t had to fight to convince Texans that the Railroad Commission needs a member who believes in global warming.
“I’ve been incredibly well-received,” she said. “We’ve had endorsements in every newspaper in Texas—Texans get it.”
And, in order to help even more Texans “get it,” she’d like to change the board’s name to something more appropriate. Perhaps something with “oil” actually in the name.
NYPD Unit At Center Of Protest Policing Has Dozens Of Officers With Long Misconduct Histories
Civil liberties experts say the Strategic Response Group’s recent crackdown on ICE protests is the most brutal suppression of protests in decades—and many of its officers are the subject of significant misconduct allegations, including a supervisor with 32 complaints.
NYPD Unit At Center Of Protest Policing Has Dozens Of Officers With Long Misconduct Histories
Civil liberties experts say the Strategic Response Group’s recent crackdown on ICE protests is the most brutal suppression of protests in decades—and many of its officers are the subject of significant misconduct allegations, including a supervisor with 32 complaints.
This summer in New York City was defined by protests. The murder of George Floyd by a Minneapolis police officer drew hundreds of thousands into the streets in late May and early June, demonstrations that were fueled by violent confrontations with the NYPD in Union Square and downtown Brooklyn.
On May 29, Officer Vincent D’Andraia was filmed throwing Dounya Zayer to the ground and calling her a “stupid fucking bitch.” Zayer suffered a concussion from the incident and also said she later had seizures. Brooklyn District Attorney Eric Gonzalez charged D’Andraia with third-degree assault, fourth-degree criminal mischief, second-degree harassment and third-degree menacing. New York Attorney General Letitia James apologized to Zayer. After the initial post-George Floyd period and a period of looting of stores in Manhattan and the Bronx, the NYPD adopted a more hands-off stance toward the demonstrations, which have occurred nearly daily.
That silent detente abruptly ended last month. On Sept. 16, in response to awhistleblower claim that Latinx women in ICE custody were involuntarily receiving hysterectomies, daily demonstrations began outside a federal building in Lower Manhattan. Over the course of that week, 134 people were arrested during ICE protests, culminating in the kettling of 86 people in Times Square on Sept. 19 by officers from the Strategic Response Group, the NYPD’s controversial anti-terrorism and protest tactical unitcreated by former Commissioner Bill Bratton in 2015. “The violence in the enforcement we’ve seen is much more serious than anything we’ve seen in a long time,” Christopher Dunn, the legal director of the New York Civil Liberties Union, told The Appeal. He pointed to the 1988 Tompkins Square Park riot over gentrification and the policing of homelessness as the last comparable instance of widespread NYPD brutality. But the Tompkins Square clashes spanned two days—not several months.
Gideon Oliver, a civil rights attorney who has sued New York City over unlawful mass arrests during the 2004 Republican National Convention and Occupy Wall Street in 2011, said the NYPD’s actions in mid-September are a return to older, more confrontational tactics that include sweeping up large numbers of protesters on questionable legal grounds.
“There was obviously a tremendous and aggressive response to the Floyd protests and the uprisings in the beginning, and then I think there was a shift in tactics until the ICE-related protests in the last week and change,” Oliver said on Sept. 23. For months prior, large street marches went virtually unchallenged by police. “You can observe on the street that there’s been a shift in the way that police treat the protesters,” he said.
The NYPD did not respond to numerous requests for comment from The Appeal.
The NYPD’s shift in posture toward street protests and the leading role of its Strategic Response Group (SRG) in recent mass arrests, comes as the city’s two largest police unions have formally endorsed President Trump. As Trump encourages militias and counterprotesters, and defends the actions of lethal attacks on Black Lives Matter demonstrations, some fear that the NYPD’s politicization, return to old tactics, and new departmentwide public disorder training being administered on a precinct level portend for a chaotic autumn. The tactical shift is particularly conspicuous after police looked the other way at right-wing counterprotesters who drovecars through mass BLM protests and caused injuries.
Power Malu, a Lower East Side activist who was arrested in Times Square on Sept. 19, said the SRG is a familiar presence at demonstrations, and the unit has targeted specific organizers and groups. “They know who we are, and we know who they are,” he said, adding that the speed and overwhelming show of force of the Times Square arrests surprised organizers.
Commanded by Inspector John D’Adamo, the SRG is composed of more than 700 officers and divided into five borough-based teams plus the Disorder Control Unit (DCU). The unit, which predates the SRG, is known for bringing “hats and bats” (clubs and long batons) to protests and engaging in violent mass arrests of questionable legality. It was central to policing Occupy Wall Street, as well as the 2003 anti-war demonstrations and the 2004 Republican National Convention—where over 1,800 people were arrested and held for days without charges, resulting in a $18 million legal settlement. The DCU’s tactics included using military-style training to break up crowds through a“disperse and demoralize” strategy, using undercover officers tospread misinformation among crowds, arresting demonstrators early to “set a tone,” and arresting “potential rioters” before they committed crimes.
In addition to protests, the SRG is also used to monitor large parades and public gatherings, and for crime suppression patrols. From its inception, activists were alarmed at the NYPD’s conflation of counterterrorism and protest policing. “Terrorism and protest is what they’re trained to police,” Wylie Stecklow, a civil rights attorney who has represented clients involved in Occupy Wall Street mass arrests, told The Appeal. Stecklow said that when NYPD polices demonstrations they perceive as friendly, like the Blue Lives Matter protest in July in Bay Ridge, they take a hands-off approach. “When they are policing Occupy, the RNC, BLM, then it doesn’t matter if you’re participating in expressive speech activity, they’re not waiting for you to commit civil disobedience before they make that arrest.”
Activists quickly dubbed SRG “the goon squad”—and soon afterward the unit became known for its aggressive conduct and what appeared to be focused surveillance of particularly active protesters and groups. Officer Numael Amador was removed from the unit and suspended for choking two activists during an attempt to stop the deportation of immigration rights activist Ravi Ragbir in the winter of 2018. Even before the Ragbir incident, Amador had 15 Civilian Complaint Review Board (CCRB) complaints on his record, including four substantiated allegations. Also that year, SRG officers were photographedmanhandling City Council members Jumaane Williams and Ydanis Rodríguez. The unit has also been criticized for fatal shootings, conducting drunken driving stops, allegedly falsifying DUI charges to meet performance quotas, and backing away when the Proud Boys assaulted anti-fascist protesters outside an October 2018 event in Manhattan.
The Appeal reviewed videos from protests during early June (including mass arrests in Union Square and the South Bronx) and two weeks of sustained clashes with demonstrators in September and identified 62 SRG officers and supervisors. Of the officers identified:
46 had complaint histories with the Civilian Complaint Review Board, with an average of two incidents per SRG officer. By comparison, 40 percent of all NYPD personnel had two or more incidents of alleged misconduct.
292 misconduct allegations were filed with the CCRB against the 46 SRG officers. Of these, 42 officers racked up 142 abuse of authority complaints. 35 were accused of excessive force. 25 were responsible for 43 discourtesy complaints, and five tallied seven allegations of offensive language.
14 supervisors—sergeants, lieutenants, and captains—had multiple misconduct allegations. One SRG supervisor, Lt. Ischaler Grant from SRG 4 in the Bronx, has 32 complaints involving ten separate incidents in his file since joining the NYPD in 1990, including seven substantiated allegations. Only 2 percent of officers in the NYPD have more incidents of alleged misconduct than Lieutenant Grant.
SRG 4 had the most officers—12—with misconduct allegations. SRG 1 in Manhattan and SRG 2 in Queens both had nine officers with complaint histories, followed by Staten Island’s SRG 5 with six and Brooklyn’s SRG 3 with five.
(The CCRB substantiates less than 10 percent of misconduct allegations.)
Dunn of the NYCLU told The Appeal that the extensive disciplinary records of the SRG officers virtually guaranteed the “poorly conceived” unit would cause problems when put on the front lines of controlling demonstrations. “If you have a unit made up of officers with substantial histories of misconduct, you’re guaranteed to have problems when that unit is assigned to police protests,” Dunn said, adding that supervisors with thick personnel files “are not the people you want running a unit that interacts with protests.”
When the George Floyd protests in New York City began late in the spring, SRG officers deployed “Cobra teams” of bicycle and foot cops that have been front and center in violent clashes with demonstrators. On May 28, the very first demonstration in the city was disrupted by yellow-clad SRG bicycle cops, some of whom bludgeoned demonstrators with their mountain bikes. The Appeal has learned that Officer Yuriy Demchenko of SRG 3 is one of the officers accused of using his bicycle as a weapon, and is the subject of at least two use-of-force complaints.
Detective Craig Jacob of SRG 1 is also facing a use-of-force allegation for wielding his bike as a weapon during the May protests. Since joining the NYPD in 2004, Jacob has amassed 13 CCRB complaints, including two allegations of improperly pointing a weapon and one allegation of racially offensive language.
In 2018, Demchenko was the subject of acivil rights lawsuit accusing him of falsifying charges against a Coney Island woman whose house was raided in a narcotics sting. According to court records, Demchenko wrote up a criminal complaint claiming that marijuana, crack cocaine, and codeine were found during a search of the woman’s apartment, information gleaned from an anonymous tip. But no narcotics were recovered during the search. The city settled with the woman for approximately $24,000.
SRG also spearheaded the mass arrest of more than 250 demonstrators, legal observers, and medical workers on June 4 in the South Bronx, during a controversial weeklong citywide curfew. The mass arrests appeared to be orchestrated by Chief of Department Terence Monahan, the highest-ranking uniformed member of the NYPD. Monahan played a prominent role in the 2004 Republican National Convention arrests later ruled unlawful by a United State District Court judge.
Hundreds of demonstrators were diverted off Willis Avenue by a roadblock of 50 officers and then kettled at 136th Street and Brook Avenue by heavily armored SRG bike cops, many of whom had their names and badge numbers concealed. As was the case with the Union Square protests, SRG officers again battered people with their mountain bikes, forcing the crowd of hundreds into a street sealed on both sides by riot officers. Police climbed on cars to strike the crowd with batons. The SRG’s use of their bikes as “weapons” against protesters was highlighted by James, the state attorney general, in a report from her office on the NYPD’s handling of the summer protests.
The following day, Police Commissioner Dermot Shea claimed that the group organizing the march was seeking to hurt officers, not engage in protest. “This wasn’t again about protests, this was about tearing down society,” Shea said. Over 100 demonstrators were injured that evening, according to a Sept. 30 Human Right Watch report on the incident that labeled NYPD’s conduct as “serious violations of international human rights law” and the First Amendment.
Stecklow, the Occupy Wall Street attorney, is representing a dozen people arrested at the June 4 protest. He said the kettle was meant to sow fear and discourage protesters from turning out in the future. “Everyone was afraid of being trampled, contracting the virus, even being killed,” he said. “This was done by design—the next time there’s a protest, people are less likely to go out and join.” Stecklow has two separate civil suits in state courts challenging the NYPD’s policing of sidewalk protests, one of which is heading to trial.
The June 4 protest is the subject of at least 17 separate complaints under investigation by the CCRB. In an Oct. 2 appearance on WNYC’s “The Brian Lehrer Show,” Mayor Bill de Blasio said he had not read the Human Rights Watch report, and “some of that characterization doesn’t sound like what I heard at the time, including from our own observers.”
During the ICE protests in Times Square on Sept. 19, SRG officers quickly kettled several dozen marchers and cyclists, moving first on the bicyclists as they stepped into the street with the walk signal.
“They surrounded the bikers from the back and the front. This was a planned attack on peaceful protesters,” said Luis Galilei, a 27-year-old protester from Harlem who was one of the cyclists tackled and arrested by SRG cops in Times Square. Galilei, who faces a disorderly conduct charge along with the 85 others arrested that day, said the officers pinned him to the ground by pressing their knees into his back.
Video of the Sept. 19 mass arrests obtained by The Appealshow instances of SRG officers—some with extensive disciplinary histories—using force to arrest protesters who sat in the middle of Times Square in an act of mass civil disobedience. Sgt. Keith Hockaday, a former Bronx housing cop now assigned to SRG 2 out of the same borough, is seen using his baton to force activists to submit to handcuffs. Over his career, Hockaday has amassed 16 CCRB complaints, including five use of force allegations. None of the complaints against Hockaday were substantiated. He has also been the subject of at least 10 civil suits, including five cases settled by the city for $91,000 total that include allegations of false arrest, falsifying criminal charges, and illegal searches.
Another SRG supervisor who assaulted Times Square arrestees is Sgt. Steven Gansrow, a former narcotics officer in Brooklyn and Queens with 15 CCRB complaints in his personnel file, including two substantiated complaints for an unlawful stop-and-frisk. Gansrow is assigned to SRG 4 in Queens.
One of the SRG bike officers who set up the Times Square kettle was Sgt. Matthew Tocco of the Disorder Control Unit. Tocco has amassed 21 CCRB complaints since joining the NYPD in 2006, including allegations of chokeholds, improperly pointing a gun, beating suspects with his nightclub, excessive force, discourtesy, and refusing to provide his badge number. The majority of complaints—15 of which involve claims of excessive force—were accrued during his time in the West Village’s Sixth Precinct in the 2000s and 2010s. None of the complaints against Tocco were substantiated.
Also supervising the bike officers in Times Square that day was Sgt. Richard Jones from SRG 1, stationed on 42nd Street one and a half a blocks from the Hudson River. Jones, who has had nine CCRB complaints against him (none substantiated) since becoming an officer in 1999, has a history of alleged misconduct at demonstrations. On Dec. 17, 2011, he arrested Michael Premo at an Occupy Wall Street march and charged him with felony assault. In a criminal complaint, Jones claimed that Premo attacked and injured him while resisting arrest. After 14 months, 13 court appearances and four trial dates, a jury acquitted Premo of all charges. He filed a civil suit against Jones and the NYPD over the incident and received a $55,000 settlement. By surrounding the demonstrators and arresting them within seconds of issuing a pre-recorded dispersal order, SRG returned to tactics from the 2004 Republican National Convention that courts later deemed unlawful.
“In RNC cases, we sued them over a bunch of different arrest locations and practices—one of them was a kettle on 16th Street on August 31, 2004, the ‘day of anarchy,’ when the cops did all these pre-emptive arrests,” said Oliver, one of the attorneys involved in the convention litigation. “In Times Square, they did what they did in the Mott Haven kettle in the Bronx, which was to either direct and let protesters go down a certain place where they had a trap set up, with cops on both ends.”
“They need to provide a warning. It’s not sufficient for them to say, ‘OK, everybody disperse,’ and then come and make arrests,” said David Rankin, an attorney who spoke at a Sept. 21 press conference held by the Times Square arrestees.
The NYPD’s policing of demonstrations may have long-term consequences for a city struggling to dig its way out of COVID-19’s economic chasm. At least 98 notices of claim have been filed with the New York City comptroller in relation to the SRG-led Bronx mass arrest in June alone, potentially costing city taxpayers millions in legal settlements. Since May 26, the CCRB has received at least 18 complaints against SRG officers. The independent oversight agency is investigating more than 750 complaints related to the protests.
Each passing week seems to bring new instances of hyper-aggressive protest policing by the SRG.
On Sept. 26,SRG officers arrested a dozen demonstrators in a tumultuous scene on a West Village street, with riot and bicycle officers diving in among outdoor restaurant patrons to make arrests. The incident shocked passersby and drew instant criticism from legislators. Brad Hoylman, who represents the neighborhood in the New York State Senate, wrote on Twitter that he had contacted the NYPD for an explanation,labeling that evening’s events a “disturbing escalation of force” that was “unwarranted and unacceptable.
And on the night of Oct. 5, 24 demonstrators calling for the arrest of a Texas police officer who shot and killed Jonathan Price were arrested and briefly detained by SRG on minor charges—including preventing officers from NYPD’s surveillance specialists in the Technical Assistance Response Unit from filming the protest—in Lower Manhattan. In remarks to the media, Commissioner Shea insulted the protesters and said they were keeping officers away from calls about violent crime—even though the SRG has been ever-present at protests, and shooting incidents citywide have fallen since a midsummer peak. “We don’t need officers pulled away for these, sometimes I don’t know what you call them—peaceful protesters—maybe spoiled brats at this point,” Shea said.
The NYPD and SRG’s rough treatment of demonstrators for the last several months has fueled, rather than tamped down, street protests. Andom Ghebreghiorgis, a Bronx resident who was arrested on June 4 and spoke with Human Rights Watch for its report, said the initial demonstrations swelled “because police brutality protesters were being viciously, viciously attacked from Brooklyn all the way to the Bronx.”
“It has mobilized a lot of people to get out,” he said.
Florida’s Most Powerful Pro-Police Lobbying Group Is An Anti-Reform Force
The Florida Sheriffs Association gains a third of its multimillion-dollar budget by selling big-ticket items like trucks and mobile command centers to local sheriff’s departments and other government agencies.
Florida’s Most Powerful Pro-Police Lobbying Group Is An Anti-Reform Force
The Florida Sheriffs Association gains a third of its multimillion-dollar budget by selling big-ticket items like trucks and mobile command centers to local sheriff’s departments and other government agencies.
Florida Governor Ron DeSantis proposed legislation last month that would allow cops to charge people with felonies for appearing at a “violent” protest and allow anyone who “organizes” a “violent or disorderly assembly” to be charged under the Racketeer Influenced and Corrupt Organizations (RICO) Act.
The plan, presented at a press conference in the Lakeland area, would also give legal cover to drivers who kill or injure people with their vehicles if they were “fleeing for safety from a mob.” In 2017, during the Unite the Right rally in Charlottesville, Virginia, a driver killed a protester and was convicted of first-degree murder and other charges. In June, a man in Portland, Oregon, was charged with reckless driving and three felony hit-and-run counts after he was filmed driving into a crowd of racial-justice activists. Three people were injured, and two of the three were transported to the hospital. Under DeSantis’s proposal, if such crimes occur in Florida, those people would be protected.
Several lawmakers were standing behind the governor at the Sept. 21 press conference—and so was Gilchrist County Sheriff Bobby Schultz. In July, Schultz was named the new president of the Florida Sheriffs Association (FSA), arguably the most powerful anti-criminal justice reform and pro-police lobbying group in America’s fourth most-populous state.
“They are, without question, the most powerful lobby group that consistently opposes sentencing reform in Tallahassee and consistently lobbies for new felonies, new sentencing enhancements, new mandatory minimums, and opposes anything that might roll that back the war on drugs,” Greg Newburn, the Florida state policy director for FAMM (Families Against Mandatory Minimums), told The Appeal.
Although the FSA has yet to take a concrete stance on DeSantis’s package of bills—a spokespersonlater told the South Florida Sun-Sentinel’s Steve Bousquet that the group“conceptually support[s] his proposals”—Schultz’s presence at the press conference is a reminder that DeSantis’s perhaps unconstitutional legislation could be in enacted during the statehouse’s next legislative session in 2021. Each year, the FSA employs a battalion of lobbyists to ensure that prison sentences remain long, mandatory-minimum drug laws stay on the books, and police departments can buy up all the equipment they’d like.
The FSA has long been a force. It was founded in 1893, and its ranks included Napoleon Bonaparte Broward (the eponym of Broward County), who was Duval County sheriff at the time and eventually became Florida’s governor. But few, if any, accounts explain where the FSA gets so much money to fund its army of lobbyists each year: the sale of equipment to the state’s sheriff’s departments.
“We don’t take tax dollars to lobby against sheriffs,” Newburn said. “But they take tax dollars to lobby against us.”
The FSA has quietly become one of the most well-funded trade groups in Tallahassee. According to its 2017 IRS Form 990s (financial statements that nonprofits must file annually with the federal government), the FSA pulled in more than $11 million in total revenue and listed nearly $21 million in net assets. Its assets dwarfed those reported that same year by the Florida Chamber of Commerce (an estimated $8 million) and Associated Industries of Florida (an estimated $6 million), two of the state’s most well-known big-business lobbying groups.
But the FSA’s membership fees are just its second-largest source of revenue. An even larger portion—32 percent—came that year from what the organization calls its “cooperative purchasing program”—a service in which it conducts competitive bids for products and services and then allows government agencies to piggy-back off those contracts. The FSA says this process helps save government agencies both time and money, as they then need to field fewer competitive bids.
The FSA charges a 0.0075 percent markup on any item sold using its service. That may sound insignificant, but if a police department buys a new fleet of cruisers or ATVs (both available for purchase through the program), the markup adds up quickly. Additionally, any government agency can buy products from the program, not just cops. Other items for sale include: a police mobile-command center for $217,293, a police-rated Chevrolet Tahoe (one option is just under $34,000), a boat made for aquatic weed-whacking (including one for $50,000), a 38-ton operating-weight hydraulic excavator (one model runs $311,724), and a 40-ton landfill compactor (one of the choices is $658,717).
“Bidders are to include the administrative fee of three quarters of one percent (0.0075) in all bid prices,” according to the purchasing program’s contract terms and conditions. It adds: “The fee should never be listed as a separate line item on any purchase order.”
Critics note that the funding structure creates an incentive for cops to buy expensive items like trucks, since the FSA fee funnels cash directly into pro-police lobbying. The FSA says on its website that since starting the purchasing program in 1993, it has sold 55,000 vehicles to government agencies.
FSA employees did not respond to requests from The Appeal to discuss the organization’s program. But critics on the left and right told The Appeal that the FSA wields its huge, taxpayer-funded budget to lobby against the public’s interests.
“Ultimately, these are taxpayer dollars invested against the public interest to maintain draconian, racist sentencing laws and mass incarceration in Florida—and often your local Sheriffs and Chiefs are giving communities reform-minded lip service at home, while supporting the status quo in the state legislature,” Ida Eskamani, a community lobbyist who represents the Florida Immigrant Coalition, New Florida Majority, and Organize Florida activist groups in Tallahassee, said in an email to The Appeal.
Newburn’s group, FAMM, tends to align more with libertarian-leaning conservatives than Democrats. But he told The Appeal that when he tried to help pass bills that would roll back the war on drugs or shorten long prison sentences in Florida, he hit a wall when the FSA started lobbying against him.
He noted, for example, that the agency consistently lobbies to maintain Florida’s “85 percent rule,” a “truth in sentencing” law that requires people sentenced to prison in the state to serve at least 85 percent of their terms before becoming eligible for release.
“I think if you sat them down and asked why they do this, they’ll just say, ‘Well, we think it works,’” Newburn said. “But if you asked why they think it works, they will sit there dumbfounded. And if you’re waiting for them to give you an answer on that—grab a Snickers, because you’re going to be there for a while.”
In January, the FSA—then under Pinellas County Sheriff Bob Gualtieri—used its huge budget to create an institute that pushes pro-police scholarship. That month, the Florida Sheriffs Research Institute published a paper arguing that the state’s 85 percent rule helped reduce crime rates in Florida.
“What our first report finds is that the current research tells us that the 85 percent time-served law has been associated with significant reductions in the likelihood of recidivism,” Gualtieri said in a press release. “Truth in Sentencing works, and it is making our communities safer with less crime and fewer victims.”
“It was a dreadful paper,” he said. “It was really bad. But to their credit, at least they made an effort to make a coherent argument.”
Florida’s legislature meets to pass bills for just 60 days beginning every March. In a March 20, 2019, House Civil Justice Committee meeting, Gualtieri stood at a lectern on the FSA’s behalf and warned lawmakers that if local jails didn’t cooperate with ICE, it could lead to an incident similar to a 2017 case in Portland, Oregon, where an undocumented man released from jail, in Gualtieri’s words, “got out and raped a 65-year-old woman.”
During the 2020 legislative session, the FSA opposed a bill from Republican state Senator Rob Bradley that would have imposed limits on maximum sentences for those convicted of certain drug offenses. Even Americans for Prosperity, the lobbying group founded by brothers Charles and David Koch, supported Bradley’s bill. But after the FSA announced its opposition, the bill failed.
“There are very few things in the legislature we find bipartisan support behind,” Eskamani said, “but on criminal justice, Democrats and Republicans are finding common ground. Unfortunately, it’s law enforcement and prosecutors calling the shots.”
This commentary is part of The Appeal’s collection of opinion and analysis.
The COVID-19 crisis in state prisons and local jails is a result of many long-standing phenomena: inadequate carceral healthcare, overcrowding, societal contempt for people in prison, and limits on the public’s access to information about carceral systems. The failure to react early to the novel coronavirus was thoroughly bipartisan, with blue states failing alongside red ones, and Democratic politicians at the state and local level abdicating their responsibilities over incarcerated people just as much as Republicans.
But there is another story behind the crisis: President Trump has appointed a quarter of active federal appellate judges, and they have proved decisive in undermining legal efforts to force prisons and jails to constitutionally address the coronavirus.
Outbreaks of COVID-19 in the United States’s carceral systems were inevitable. But a well-organized effort among civil rights attorneys quickly resulted in lawsuits against state prisons and local jails that failed to protect incarcerated people. The litigation sought remedial measures such as the release of the most vulnerable on the basis of medical conditions and safety measures to limit the spread among the rest of the population.
The lawsuits had early success winning emergency relief from federal trial judges. In April, an incarcerated class alleged that the staff of the Oakland County jail, a vast complex with almost 1,600 beds outside of Detroit, did not consistently wear masks or provide soap to the detainees. It also alleged that the jail administration threatened detainees for not working even while sick. After one incarcerated person died of COVID-19 in a quarantined cell, jail staff moved his two cellmates back into the general population. In May, a federal district court judge sided with the plaintiffs and issued an injunction against the county jail. But two months later, a three-judge panel vacated the opinion. In a 2-1 split, with both judges in the majority appointed by President Trump, the Sixth Circuit Court of Appeals concluded that “the steps that jail officials took to prevent the spread of COVID-19 were reasonable.”
Similar scenarios played out with the jails in both Miami-Dade County and Chicago’s Cook County, which at one point had the biggest COVID hotspot in the U.S. With the majority including two Trump appointees, the Seventh Circuit vacated aspects of a district court decision that required socially distanced housing at the Cook County jail. Similarly, a Trump appointee to the Eleventh Circuit wrote for a 2-1 majority vacating a district court’s injunction, ordering relief to detainees at Miami-Dade County’s jail. He wrote that the jail could not be blamed for failing to enforce social distancing because it was impossible, and “failing to do the ‘impossible’ doesn’t evince indifference,” the legal standard at issue.
In an April case against the Orange County jail complex in California, a class of detainees said there was a lack of soap or COVID-testing, an inability to social distance, and the commingling of nominally quarantined detainees with the general population. The jail had over 100 confirmed COVID cases. These detainees, too, won an order demanding that the jail take remedial measures, such as waiving the “co-pays” that they must pay in order to receive medical treatment. The jail sought a stay from the Ninth Circuit Court of Appeals to pause the court’s order. But this time, the appellate panel was composed of two Democratic appointees and one Trump appointee. The panel split along party lines to uphold the trial court’s decision. The jail appealed to the Supreme Court, and in August, five conservative justices—including Trump appointees Neil Gorsuch and Brett Kavanaugh—sided with the Orange County jail. The four Democratic appointees to the Court noted that they would not have granted the stay.
In these COVID lawsuits—the four most prominent brought against state prisons or local jails—eight Trump-appointed judges or justices got a vote compared to eight judges or justices appointed by any Democratic president. All eight Trump appointees voted against the prisoner classes while all eight Democratic appointees voted for them, including Judge Susan Graber, Justice Stephen Breyer, and other moderate judges known for often deferring to the government. In all four cases, the Trump votes were ultimately decisive.
Before COVID-19, this outcome was not self-evident. The treatment of people in prison was once a highly salient and polarized issue, but that era has somewhat passed. Supreme Court Justices Antonin Scalia and Clarence Thomas were appointed by Republican presidents in the 1980s and 1990s. Scalia, who served until his death in 2016, and Thomas were openly contemptuous of plaintiff-friendly prison jurisprudence and argued it should no longer exist. In their view, the Eighth Amendment’s cruel and unusual punishment clause does not apply to prison conditions. Such a ruling would return incarcerated people to a pre-civil rights movement legal status referred to as “slaves of the state.”
But neither Justices Gorsuch nor Kavanaugh joined the Supreme Court with well-defined records on prison conditions, and the issue attracted little attention during their confirmations. Neither justice has demonstrated a significant interest in prison conditions since joining the Court, and the same could be said for the Court as an institution. Despite taking up 60 to 70 cases annually, the Supreme Court has not decided to hear a significant prison case in several years even though such cases make up over ten percent of the federal trial docket.
Several generations of Democratic judges have also been largely indifferent to prison conditions. In a 2015 case, the Supreme Court considered whether a prison had met the high bar of limiting religious practices, which they are only permitted to do if it “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” In Holt v. Hobbs, an Arkansas prison had forbidden a Muslim prisoner from growing a half-inch beard. The government identified “security” as its compelling interest for this rule, arguing that the man could hide contraband in his half-inch beard. The Court unanimously rejected the argument. But Justice Sonia Sotomayor, the most liberal justice on criminal legal system issues and race, published a separate concurrence to make it clear that although she agreed with ruling against the prison on these extreme facts, prisons were still owed great deference in matters of security on any closer call. This kind of reasoning at the highest court, from the most liberal justice, is precisely why a decisive split by political party on COVID-19 class actions was not necessarily predictable.
But the chasm of outcomes nonetheless occurred, and it is particularly notable on the eve of a presidential election. If Joe Biden wins, his judicial appointments will most likely look like those from a third term of President Barack Obama—mostly moderate liberals, valued more for their experience and diversity than for their ideological purity. There is no doubt that this slate of judges would hold radically different views on abortion, arbitration, class actions, immigration, and numerous other issues than judges appointed in a second Trump term. But before the COVID-19 lawsuits, where the votes of Trump’s appellate judges swayed the outcomes and unanimously favored the prisons or jails, it was less clear that there would be drastic differences between judges appointed by Biden and Trump on prisoners’ rights issues. The biggest pandemic in a century has radically altered that calculus. In the COVID-19 era, the question of whether people in prison received relief from the federal courts turned entirely on Trump’s appointments to the appellate bench. Prisoners’ rights issues turned out to be on the 2016 ballot after all—and they may well be on the ballot again in November.
Samuel Weiss is the executive director of Rights Behind Bars, which represents incarcerated people in civil rights lawsuits concerning their conditions of confinement.
This commentary is part of The Appeal’s collection of opinion and analysis.
Perhaps one of the more unexpected events this turbulent year has been the rate at which efforts to defund police departments gained national political traction. Local governments collectively spend roughly $100 billion per year on policing, and with big cities dedicating about 15 percent (if not more) of their budgets to police, a growing number of people are asking if it may make more sense to spend some of that money elsewhere, like on drug treatment, mental health, social work, or shelter. One of the many questions raised by the defund movement: Is spending on police justifiable from a policy perspective?
Remarkably, we do not have a good answer. If nothing else, there are only a handful of studies that really undertake clear cost-benefit analyses of policing. But the bigger problem is that even these studies fail to answer the question of the costs of policing, and that’s because of how they’re framed, not technical or methodological issues. There are at least three significant ways that these studies go astray.
The first thing to note is that even taken on their own terms, most studies of the effectiveness of police are not really measuring the effect of police. In reality, studies of the impact of police on crime are more studies of the impact of what Jane Jacobs, in her book “The Death and Life of Great American Cities,” called “eyes on the street.” What really deters is the risk of being seen by someone, not necessarily by someone who can or will make an arrest. These studies show that police can be those critical eyes on the street, but they do not show that only the police can be those eyes.
This may seem counterintuitive. The key issue is that most of the deterrent effect from policing does not come from apprehension, which is quite low: Police make arrests in fewer than half of all reported violent crimes and one-fifth or less for reported property offenses, and people report fewer than half of all crimes. As criminologist Daniel Nagin has pointed out, deterrence comes far more from the police’s “sentinel” function—simply their eyes on the street and willingness to intervene when crime occurs—than from their arrest powers.
But if observing what is happening is what matters most, showing that police effectively do so does not mean that only they can do so. Take private security. Few studies have measured the effect of (usually unarmed) private security on crime, even though the United States employs far more people as private security than as sworn police officers. The fewstudies that have, however, appear to show that private security also reduces crime, often quite substantially, and perhaps with less risk of lethal or serious violence.
The obvious counterargument is that private security only works because it can detain people until the sworn police make an arrest. Sure, to a point. First, even if true, it implies that we can rely far less on armed police officers than many current studies suggest. But second, and perhaps more important, it’s not entirely clear if that is true. As Nagin also points out, we tend to underemphasize the importance of informal punishment, which might actually be a far more significant deterrent threat than formal punishment, especially given how sporadically formal sanctions are actually imposed. Shame, stigma, that disappointed head shake from a person you respect: all these matter, too, and they can be imposed without arrest, much less any sort of trial or conviction. To the extent that these informal sanctions are key, then it’s the risk of any sort of credible detection of a crime, not detection with the threat of formal arrest, that really drives deterrence.
In fact, given the often fraught relationship between police and communities of color, detection by non-police actors may be more effective a threat than detection by the police. In many ways, this is what motivates programs such as Cure Violence, which relies on people respected in the community to intervene among people who are at risk for violent behavior—not the police, but former gang members and local pastors.
Our policing studies have shown only that police can be sufficient, not that they are necessary—or at least not as necessary as studies that focus exclusively on policing seem to suggest. There may be cases where the threat of formal punishment is still necessary, but likely far less often than conventional wisdom holds.
The second thing about our current assessments of the effectiveness of police is that they are cost-benefit analyses that measure the wrong costs. (This is a problem that plagues research on incarceration as well.) Perhaps ironically, they measure the benefits correctly: These studies try, as best as possible, to estimate how much people value any reduction in crime that comes from increased policing. But when it comes to costs, these studies don’t try to measure the social costs of policing. In other words, these studies don’t count George Floyd’s death as a cost, or the costs of far less publicized uses of force. They don’t estimate the impact of reduced civic engagement that comes in the wake of police violence, or the emotional and physical toll of the constant fear of police violence that forces Black parents to have “The Talk” with their kids. They don’t account for any of the micro or macro costs of, say, the fact that as many as 79 percent of all young Black men in New York City were stopped by the police at the peak of Stop, Question, and Frisk: the shame, the fear, the emotional and other effects of so racially targeted a policy.
Perhaps this oversight shouldn’t surprise us, since the fiscal costs of policing are generally the costs experienced by those who write these studies. Years ago I called the NYPD after my wallet was stolen from my apartment. They recovered my wallet—that’s the benefit—and since I was treated politely and with respect, the only cost to me really was my taxes that paid for the police. But it is almost surely the case that accounting for the social costs of policing will significantly affect how costs and benefits balance.
There’s a separate problem with using fiscal costs as the cost. The bulk of police budgets go toward wages, benefits, and overtime, which means that police spending is a form of government stimulus spending. Not necessarily an efficient one, but not exactly a cost either. It also means that the only way to really defund police is to cut pay, which itself will carry with it real costs—unemployment and the dislocations that brings—that shouldn’t be ignored normatively or politically. (Failure to think about how much criminal justice spending goes to wages has led to problematic reform suggestions when it comes to prison closures as well.)
Finally, studies of policing fail to confront the question of the opportunity costs of policing. Even if $1 spent on policing yields $1.63 in less crime—the findings of one well-designed and widely cited study—that doesn’t actually mean we should spend more money on policing. What else could that $1 get us? One study suggests that $1 spent on medical drug treatment cuts crime on average by about $4, and does so without the collateral costs of policing, and with a whole host of other physical, mental, medical, and social benefits. Other studies suggest that certain environmental changes such as improved lighting in neighborhoods could be as popular as hiring more police per dollar spent, and again without the collateral risks of police violence and with additional returns to people in those communities. In other words, showing that a $1 investment in policing has a positive social return does notautomatically mean “invest more.” And that outcome can be completely consistent with the idea of “investless,” especially when there are viable alternatives with higher documented returns, and when cities are already dedicating significant chunks of their budgets to policing.
None of this is to say that police are irrelevant or consistently impose net social harms; calls for defunding are not inherently calls for abolition. But even those who strongly believe that police play an important and essential role in the criminal legal system need to understand that none of the studies we have clearly establish that police must play a central role in fighting crime, or that the amount we spend on policing is at all optimal. It seems quite likely that the studies we do have establish, at best, an exaggerated upper bound on the returns on policing investment. Given the overlooked social costs, the net return is most likely lower than what these studies suggest. So, the opportunity cost issue is all the more important to confront—especially since many of these studies suggest that much of the police’s “sentinel” efforts could be substantially performed by other actors.
John Pfaff is a professor at Fordham Law School and the author of “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.”
In 2019, W.D. dated a man in Austin, Texas, who unbeknownst to her, began making plans to gang rape her. W.D. said the man used social media sites to find men willing to participate in the assault. Later, her boyfriend blindfolded her and he, as well as multiple strangers, penetrated without her consent. W.D. said that after confronting her boyfriend about the assault, he raped her again.
Despite the fact that W.D. provided the Austin Police Department with a trove of evidence—including text messages confirming the rape such as one from her boyfriend that said she “should be scared” because “I raped you”—the Travis County district attorney’s office instructed Austin police to drop the case because W.D. ’s prior consensual sex with her boyfriend “invalidated” the rape claims. (The Appeal is identifying W.D. only by her initials because or the brutal sexual assault she says she endured.)
The class-action gender-discrimination suit against Travis County, the city of Austin, Travis County District Attorney Margaret Moore, former DA Rosemary Lehmberg, Austin police Chief Brian Manley, and former Chief Art Acevedo, alleges that “for years female victims of sexual assault in Austin have been disbelieved, dismissed, and denigrated by the APD [Austin Police Department] and DA’s Office.” The lawsuit blasts the district attorney’s office for “systematically refus[ing] to investigate sex crimes against women based on biased assumptions about their gender.”
The plaintiffs say police and prosecutors failed to investigate at least one date rape, repeated sexual assaults that required hospitalization, and at least one gang rape that they reported to Austin police while Acevedo, who now runs the Houston Police Department, was in charge. (The lawsuit also alleges that Austin police didn’t investigate an additional date rape under Manley.)
W.D.’s claims in the lawsuit present a portrait of law enforcement failures in sexual assault cases. “Essentially,” the lawsuit says, W.D “presented the APD with a written confession to multiple crimes”—and her rapist, who led a brutal and calculated gang rape, went unpunished.
The lawsuit comes as Austin’s Democrat-dominated City Council is sparring with state conservatives overdefunding the local police department. In mid-August, Austin became one of the few major cities in America to substantively defund its police. On Aug. 13, the City Council unanimously voted to cut nearly $150 million from the department’s then $434 million budget and partially reinvest that money in other social services. (Austin Mayor Steve Adler, however, recently said that “in an over $400 million budget, we really voted to cut about $20 million.”) Texas Republicans quickly struck back. “We can’t let Austin’s defunding & disrespect for law enforcement endanger the public & invite chaos like in Portland and Seattle,” Governor Greg Abbott tweeted in September.
But the September lawsuit claims that sexual assault victims in Austin were failed long before this year’s budget cuts. “Women who survive sexual assault in Travis County therefore endure multiple traumas,” the lawsuit says, “first, the criminal assault itself; second, an investigation—assuming one even occurs—that puts the victims under a microscope and subjects them to invasive physical exams with little to no urgency for justice; and finally, the additional trauma of watching their cases and hopes for justice languish and ultimately vanish, due to the inaction and refusal to act by the law enforcement personnel charged with obtaining justice for them.”
In a 2018 case from the new lawsuit, a woman told police that she was drugged and raped at a conference held at an Austin hotel. Despite the fact that police obtained a video that showed her entering the hotel with a man who fit the description of her rapist and that “the footage also showed” that she “was unable to stand or walk independently”—police decided to “exceptionally clear” her case “without ever speaking to the victim.”
The Austin Police Department did not respond to requests for comment from The Appeal. Through a spokesperson, Moore defended her record as Travis County DA and said she believes she will win the case.
“I am confident that this Office has consistently fought for the constitutional rights of all citizens, including sexual assault victims, thoroughly and vigorously,” she said in an email. “I expect this lawsuit to be as unsuccessful in state court as it was in federal court.”
According to the lawsuit, about 1,000 sexual assaults are reported each year in Austin, home to just under 1 million million people and the University of Texas’s flagship campus. Of those complaints, the lawsuit states that just 25 annually are actually completed by law enforcement. The lawsuit also alleges that Austin police and prosecutors treat claims of sexual assault from men with far more seriousness and that rape kits and other key evidence that could be used to solve cases sit dormant once collected by officers.
The lawsuit makes particularly damning claims about Acevedo’s tenure in Austin, which lasted from 2007 to 2016. During that time, according to the lawsuit, the police department “maintained a wall in its sexual assault unit on which numerous pictures of female victims were posted—each one purportedly representing a ‘false report’ that officers had unilaterally determined had no merit.” Officers, the lawsuit says, “posted pictures of these ‘debunked’ female accusers on the wall as a matter of pride, as trophies of their ‘investigations.’” In May 2014, body cameras caught two Austin officers joking that, even if assault victims reported their rapes to the police, cops “can’t un-rape you.” And the lawsuit alleges that the department didn’t even take sexual assault allegations of female officers seriously: “Chief Acevedo dismissed allegations of sexual assault between officers as ‘bad sex’ or something the female officer just regretted after the fact, despite evidence demonstrating injury to the female officer.” (Acevedo’s office in Houston did not respond to a request for comment from The Appeal.)
The suit also accuses several prosecutors of making derogatory statements about female sexual assault victims, including calling some women “unworthy” or “bad victims” if, for example, they had previously consented to sexual contact with people who later raped them. In one case, the lawsuit alleges that prosecutors claimed they could not bring multiple charges against Saffa Bell, a man accused of five separate rapes. Even though they had taken a male victim’s case to trial, prosecutors said they could not prove the female victims’ cases because a jury would not believe the women did not consent to having sex with Bell. While men typically account for just 8 percent of sexual assault claims in the county, the lawsuit notes that half of the cases that Moore’s office takes to trial involve male victims.
“The culture at the DA’s Office supports the belief that a man would not willingly identify himself as a victim of sexual assault unless it were true,” the lawsuit says, “while simultaneously focusing on ‘false reports’ and the possibility of implied consent where female victims are concerned—even when the perpetrator is a stranger.”
This is not the first time Austin police, the Travis County DA, or Acevedo have been accused of failing to properly investigate sexual assault cases. In 2016, the department’s crime lab, which processed DNA evidence including rape kits, was shut down after state auditors found that employees were untrained and that testing procedures were so poor that they imperiled thousands of criminal cases in the county.
In 2017, Austin reported the highest number of rapes of any major city in Texas; the Travis County DA’s office told KUT, Austin’s NPR affiliate, that it had investigated 600 sexual assault cases that year. Of those cases, KUT reported that only one led to an actual conviction. That same year, the Austin/Travis County Sexual Assault Response and Resource Team (SARRT), a group founded in 1992 to help survivors navigate the criminal legal system, wrote a scathing letter accusing Moore of being complicit in a “system that condones rape and does not hold perpetrators, or itself, accountable.”
As part of that case, lawyers for former chief Acevedo, and current chief Manley argued that the women had not demonstrated that the police department’s policies violated “clearly established law” and, “both Manley and Acevedo are entitled to qualified immunity” in regards to the women’s civil rights complaints.
While that lawsuit is still being appealed, the four women in the September class action suit decided to sue the department in county court.
“Some of these women, their claims are still within statute of limitations, so it’s an option for the DA to open those cases up and we believe they at the very least they should consider that,” Jennifer Ecklund, an attorney representing the four women, told The Appeal. Ecklund, who also served as an attorney on the federal case, added that “the issue is systemic gender bias. What the plaintiffs want is for survivor voices to be heard—and to train and actually create a culture that is the polar opposite of what exists right now.”
In 2019, The Appeal reported that New York City Police Department appeared to be categorizing many sexual assault claims as “unfounded”—or false—when officers had actually never investigated the cases. One woman, Rachael Stirling, told The Appeal that after she reported being sexually assaulted by the man she’d been dating, Manhattan Special Victims Division Detective Lukasz Skorzewski didn’t arrest him even after he confessed on a controlled phone call to penetrating Stirling without her consent. Skorzewski himself later pleaded guilty to departmental charges after groping and kissing a sexual assault victim. He was suspended for 10 days and docked 30 vacation days.
There are also ongoing Internal Affairs Bureau investigations into misconduct by Special Victims Division officers. The bureau has repeatedly raided various division offices, including one raid that occurred in December.
In 2016, Vance’s office struck a plea deal with Robert Hadden, a wealthy, former Columbia University gynecologist accused of sexually abusing 19 women, that let him avoid jail time entirely. In January, an attorney for Hadden’s victims said he may be the “most prolific serial sexual predator in New York history.” That month, Evelyn Yang, the wife of former presidential candidate Andrew Yang, said she, too, was sexually abused by Hadden. On Sept. 9, Hadden was charged in federal court in Manhattan for enticing and inducing six victims to travel interstate to engage in illegal sexual activity. Federal prosecutors claim that Hadden sexually abused patients from 1993 to 2012—a civil suit filed against Hadden and Columbia University now has at least 140 plaintiffs. (Vance’s office has repeatedly denied treating wealthy white men like Epstein and Hadden with kid gloves.)
Marissa Hoechstetter, the only named plaintiff in the civil case, has also publicly asked Vance to resign. She told The Appeal that she feels dismayed that it often takes abuse of this magnitude for prosecutors to take claims of sexual assault seriously. Generally speaking, she said, law enforcement officials often fail to do basic legwork when investigating sexual assault cases, such as obtaining personnel records or employee complaints from people accused of assault. She added that prosecutor offices, including Vance’s, tend to keep their decision-making processes private—and that she’d like to see prosecutors open up about why they continually say sexual assault cases are “hard to prosecute.”
“For me, I could not get over this incredible betrayal, which was in some ways worse than what happened to me,” she said of her experience with Vance. “Because I did what was quote unquote ‘right,’ but it was within a system that preferences wealthy white men, especially in New York. I couldn’t let that go.” She said she hopes speaking about her case can “help shine a light into a very closed system that’s easy to hide behind.”
But Manhattan is far from the only jurisdiction where police fail to investigate sexual assault. In 2018, a joint ProPublica, Newsy, and Reveal investigation found that multiple U.S. police departments had been using a label called “exceptional clearance” to claim they’d solved far more sexual assault cases than they actually had. To “solve” a case through exceptional clearance, police are supposed to have found probable cause to arrest someone for a sexual assault, but have been prevented from doing so by circumstances out of their control such as a suspect’s death or a victim’s failure to cooperate. The reporters found that officers were simply applying the “exceptional clearance” label to cases they hadn’t properly investigated.
Jurisdictions with high “exceptional clearance” rates included Baltimore County; Hillsborough County, Florida (Tampa); Oakland, California—and Austin.
The new lawsuit filed in Austin last month by the four women came after Jose Garza, a former public defender, defeated incumbent Moore in the DA Democratic primary runoff in July. During the primary season, sexual assault victims, including two who’d been named in the 2018 federal lawsuit against the Austin police and the DA’s office, endorsed Garza, who said during a press conference that Moore had “lost the trust of survivors of sexual assault.” Moore told KXAN, Austin’s NBC affiliate, that the “idea that this office, under my leadership, has mishandled or not handled sexual assault cases is so easily refuted if you look at the actual record.”
But the September lawsuit alleges that Moore’s office and the Austin police failed to improve their record of investigating sexual assault. After the 2018 federal lawsuit, police stopped sending representatives to Sexual Assault Response and Resource Team meetings, despite the fact that the department had done so for decades. In 2017, Moore split from SARRT and created her own organization, the Inter-Agency Sexual Assault Team. Soon after, Austin police stopped sending representatives to SARRT meetings, despite the fact that the department had traditionally done so. Moore claimed the new group would better train police to investigate sexual assault. Advocates for assault victims, however, said Moore simply wanted to retaliate against SARRT for criticizing her record.
Furthermore, the suit alleges that after the 2018 federal complaint was filed, one of Moore’s assistant district attorneys called a family friend of one of the plaintiffs, accused the woman of consenting to sex with her alleged rapist, and further stated that “it’s always the women” who make it hard for prosecutors to prosecute sexual assault cases.
“We need to create a system that believes survivors when they come forward,” Ecklund, the attorney, told The Appeal. “We can all agree that we understand this is going to be a challenging process once they do report an assault, but there’s just no reason to accuse people of lying when there’s no evidence that’s happening.”
In a Small Illinois City, A Black Man Died After Officers Shoved A Baton In His Mouth. Black Officers Say They’ve Suffered At The Hands Of The Department, Too.
Lawsuits from Joliet Police Department officers are among at least 12 current federal complaints against the agency. The men say their civil rights lawsuits are part of a decades-long history of discrimination.
In a Small Illinois City, A Black Man Died After Officers Shoved A Baton In His Mouth. Black Officers Say They’ve Suffered At The Hands Of The Department, Too.
Lawsuits from Joliet Police Department officers are among at least 12 current federal complaints against the agency. The men say their civil rights lawsuits are part of a decades-long history of discrimination.
When Lionel Allen joined the Joliet Police Department in Illinois in 1989, he knew that it had a reputation for being hostile to Black officers. Around the same time, the department, which patrols a small city about an hour southwest of Chicago, was placed under a citywide affirmative action plan demanding the hiring of more Black officers.
But Allen didn’t expect that the battle to reform the department would take decades—or involve him personally.
As he rose through the ranks, Allen watched the department endure multiple scandals, including officers accused of using racial slurs and allegedly harassing a Black female officer. In 2018, Allen sued the department in federal court for race discrimination. He retired the following year after three decades on the force. In his federal complaint, Allen says the Joliet police tried to fire him for complaining about, among other things, white officers pepper spraying Black children and making fun of Black people while on duty. In November 2019, another Black officer, David Jackson, sued the department in federal court, claiming that he was retaliated against for defending Allen in interviews with local media.
“In Joliet, white guys can just about commit murder and nothing happens to them,” Allen told The Appeal this month. “But if a Black officer commits a small infraction, they blow it all the way out.”
The department is also facing a wrongful-death lawsuit involving Eric Lurry, a 37-year-old Black man who died after Joliet police violently “searched” his body in the back of a squad car during a drug arrest in January. In the months after Lurry’s death, his widow, Nicole Lurry, told the media that the police refused to release any information about the incident. In June, Sgt. Javier Esqueda leaked video of Lurry’s death to a CBS affiliate in Chicago. The footage showed Joliet cops hitting Lurry while he was handcuffed, placing a baton in his mouth, and pinching his nose shut for one minute and 38 seconds. (Joliet Police later said that, because Lurry was possibly overdosing, they placed the baton in his mouth to prevent him from biting down while they searched his mouth for drugs.)
In August, Will County Coroner Patrick O’Neil—who ruled Lurry’s death an “accidental overdose”—announced that he was resigning from his job early “for personal reasons.” He’d held the elected position since 1992.
Even Mayor Bob O’Dekirk has been caught up in the department’s racism scandals. During Black Lives Matter protests this year, O’Dekirk, a former Joliet officer, was filmed grabbing a protester before a scuffle ensued. Days later, a 20-year-old video surfaced online of O’Dekirk physically assaulting two men of color while working for the Joliet police. After former City Council member and pastor Warren Dorris, a Black man, held a press conference at his local church and demanded ODekirk’s resignation, the mayor told the press that “Warren Dorris needs to get over it and move on.”
In a voicemail message left with The Appeal, O’Dekirk said that he was not allowed to comment on Allen or Jackson’s cases but supports efforts to diversify the Joliet Police. (In June, before the decades-old video of O’Dekirk’s assault surfaced online, the city’s Black Police Officer Association said it supported O’Dekirk fully.) But O’Dekirk also referred to the recent Black Lives Matter protest in which he was filmed grabbing protesters as “a riot” that needed to be shut down by police.
The Joliet Police Department did not respond to requests for comment from The Appeal. But Allen says the department’s response to the Lurry case perfectly exemplifies the two-tiered disciplinary system that he says he worked under for decades.
“The white guy can almost commit murder,” Allen reiterated. “But the Black guy knows he’s going to get smashed the hardest.”
More than 100 years later, Black officers share similar stories. San Francisco Police Sgt. Yulanda Williams reportedly said she became a cop in 1990 in an effort to improve relations between the police and non-white communities. But in May 2019, Williams sued the San Francisco Police Department after she said she was retaliated against for testifying publicly about racism in the department. In 2015, text messages revealed during a federal court case showed San Francisco officers using a slew of racist, homophobic, and misogynist language, including one officer who referred to Williams as a “n****r bitch.”
Black officers say the Joliet Police Department, too, has long been a club that the city’s white male residents have used to exert control over the city. Indeed, many of white officers in Joliet belong to the Moran Athletic Club, a drinking and social club founded in 1931 that Allen says has not historically been a place where Black Joliet residents have been welcome.
The club’s longtime president, Richard Goepper, was a Joliet police officer for 27 years before becoming the city’s deputy liquor commissioner. Goepper, 72, unexpectedly collapsed and died at the club in August. (Representatives for the club did not immediately respond to messages from The Appeal.)
“Part of the problem with the department and the disparity in how discipline is handled is that most of the Black guys from the department are from Chicago, but we’re not even 10 percent of the force,” Allen told The Appeal. “But the white officers, most of them grew up in Joliet. Joliet has a small-town mentality, and they all know somebody who knows somebody, and they tend to do stuff Black officers don’t do, like hunting, fishing, golf, staying out drinking at the Moran Club. Black officers don’t do that.”
Over the years, Allen said he watched as other Black and Latinx officers ran up against the boys’ club that controls the police department. In 1994, then-Joliet Officer Cynthia Williams, a Black female officer was arrested by her own co-workers while off duty after she said she tried to stop her nephew from interfering with a white officer who had placed her brother in a chokehold. (She later sued the department for civil rights violations, but her case was dismissed.) The following year, a Black officer, Benjamin Billups, sued the city after he said he was passed up for a promotion that he’d been entitled to under the city’s affirmative action rules. (A state appellate court ultimately ruled in Billups’ favor in 1999.) In 1997, a Mexican-American former officer named Renaldo Hernandez sued the department, alleging that he had heard a fellow officer, Tom Stein, use racial epithets directed toward Black people and refer to people as “spics.” After Hernandez discussed the incident with a Black officer in the local courthouse, another officer went to Stein to inform him of the conversation. Hernandez says Stein then attempted to file criminal charges against him. The U.S. Seventh Circuit Court of Appeals ruled against Hernandez in November 1999.
According to Allen’s lawsuit, in 2015, Joliet’s white officers were given the opportunity to bid on which sector of the city they wanted to work in. Allen also claimed that a white officer named Michael Cochran took over the sector he’d been working for the last nine years. He then complained to another officer that he thought the move was racist, especially since he’d seen Cochran use mace on “10-11 year old Black children and then [mock] them when they cried,” called a fellow Black officer “big, black, and handsome,” and joked that he would arrest Black men who had “stolen fried chicken.” Allen says Lt. Marc Reid then initiated an internal investigation against Allen for “conduct unbecoming of a department member,” “frivolous complaints,” and “false statements,” even though Allen says he never filed any formal written complaints against anyone.
Allen then filed a complaint with the Equal Employment Opportunity Commission (EEOC)—and says former Chief Brian Benton said that he would be fired unless he withdrew the complaint.
“This was unprecedented in Joliet Police Department history,” Allen’s attorney, Aaron Rapier, told The Appeal. “After Lionel files his EEOC complaint, the department says to him, you have to accept a 30-day suspension without pay and withdraw your EEOC complaint, or you’ll be terminated.”
According to his lawsuit, Allen attempted to withdraw the complaint, but the EEOC refused and instead found that the department had retaliated against him. In 2018, Allen sued the department, Reid, and Benton. In a July 2018 court filing, a lawyer representing the city denied “any unlawful actions” by Benton, Reid, or the police department.
That same year, a fellow Black officer, David Jackson, became president of Joliet’s Black Police Officer Association (BPOA). Jackson began speaking out to other officers and the media on the BPOA’s behalf. Last year, Jackson, who alleges in his lawsuit that Reid also targeted him for being Black, told the city’s Times Weekly newspaper that he was concerned about Allen’s firing. Jackson says in response he was issued a one-day suspension for making public statements without proper authorization. In court filings, Jackson stated that current Chief Roechner “berated Jackson as if disciplining a child for questioning him on Allen” and vowed to get even with Jackson for fighting back against him.
Last year, Jackson asked the department to fund his trip to the National Black Police Association convention, but Jackson says Roechner said the city no longer had the funds. Jackson then sued Roechner and the city in November. In an amended complaint, Jackson said he was retaliated against for filing the lawsuit and that the department now says he is not an employee “in good standing.”
“The Joliet Police Department’s anti-black culture and history of retaliation dates back over twenty years,” Jackson’s suit alleges. “Minority Joliet police officers have long sought redress from state and federal courts, complaining of Joliet administrative level police officers’ resistance to affirmative action, use of ethnic slurs, abuses of power, discriminatory promotional practices, frivolous internal affairs charges and other acts that have humiliated and embarrassed them and held them back in their careers.” (In February, the city argued the suit should be dismissed and that multiple officers involved are entitled to qualified immunity.)
Marc Reid, the supervisor that both Allen and Jackson accused of targeting them based on their race was promoted to deputy chief in 2018.
Pennsylvania is home to one of the most restrictive probation and parole systems in the U.S. Probation sentences can be “stacked”: A person convicted of two misdemeanors, for example, can be sentenced to a five-year probation term for each and spend a total of 10 years under supervision. The state’s punitive probation and parole system explains why it has the third-highest proportion of residents under community supervision in the country.
Rapper and formerly incarcerated activist Meek Mill’s experience with probation in Pennsylvania has drawn substantial media attention. In 2008, Meek Mill, whose given name is Robert Rihmeek Williams, was sentenced to 11 to 23 months in prison on drugs and weapons charges followed by an eight-year probation “tail.” Subsequent encounters with correctional control—which included a failed drug test, alleged noncompliance with a court order limiting his travel, and even an arrest in New York City for popping a wheelie in front of a group of fans—repeatedly extended his probation term.
But Meek Mill’s experience with Pennsylvania’s probation and parole system is not atypical. Statewide, half of felony sentences with these “tails” have probation sentences that last longer than three years. Pennsylvania is an outlier when it comes to such sentences: 33 U.S. states prohibit probation sentences that are more than five years long for most offenses.
In January 2019, state Senator Anthony Williams introduced Senate Bill 14, a probation reform bill that proposed capping probation terms at three years for misdemeanors and five years for felonies, eliminating probation “tails,” and automatically removing people from probation after 18 months if they haven’t committed any violations. The original bill was supported by groups including the ACLU of Pennsylvania, the REFORM Alliance, Americans for Prosperity Pennsylvania, and FAMM (Families Against Mandatory Minimums).
But a series of amendments removed all of these provisions from the bill. “This bill would not have helped Meek Mill,” ACLU of Pennsylvania’s legislative director, Elizabeth Randol, told The Appeal in a phone call. “There’s nothing in this bill that removes or decreases the amount of time that somebody spends on probation.” Nevertheless, Meek Mill and the REFORM Alliance (co-chaired by the rapper) continue to support the amended version of SB 14.
The transformation of SB 14 from ambitious reform legislation to its current narrow focus was a long, convoluted process. In May 2019, a separate probation reform bill, House Bill 1555, was filed to the judiciary committee by state Representatives Sheryl DeLozier and Jordan Harris. At the time, the REFORM Alliance claimed credit for HB 1555 in a press release that touted Meek Mill’s support. As originally filed, HB 1555 wasn’t as robust as SB 14, but its provisions included automatic early termination of probation review at two years and caps on long probation sentences.
The original version of HB 1555 never reached Governor Tom Wolf’s desk. In December, the bill was amended by House Judiciary Committee chairperson Rob Kauffman. In addition to eliminating provisions related to automatic early termination and caps on longer probation terms, the bill added a provision allowing warrantless searches of people on probation for crimes involving weapons, drug trafficking, and sex offenses. DeLozier said the provision was added to appease probation officers, but the County Chief Adult Probation & Parole Officers Association of Pennsylvania explicitly opposed the provision. The amended version of HB 1555 ultimately never reached the floor for a final vote, and the provision relating to warrantless searches died with the bill.
The original version of SB 14 was introduced in January 2019, and sat in committee untouched for a year and a half. On June 24, the original text of SB 14 was replaced by a bill that effectively used the amended version of HB 1555 as a template. Criminal legal reform advocates say that one of its most problematic provisions is a distortion of HB 1555’s “good time credits” framework. In the first version of HB 1555, probationers could reduce their sentences by completing GED courses or vocational training. In the current version of SB 14, completing an educational or vocational program only leads to early eligibility for an “initial probation review conference” at two and a half years for misdemeanor probation terms and four and a half years for felony probation terms.
The amended version passed the Senate on July 15, and the bill needs to be passed by the House before it reaches the governor’s desk.
Advocates and probation officers told The Appeal that these provisions would complicate efforts to shorten probation sentences at the county level. “[Existing] law says that the court can terminate probation or decrease conditions without a hearing,” said Helene Placey, executive director of the probation and parole officers association. “We think that presumptive early termination is the way to go.” There’s no need to go in front of a judge and have a hearing.” Placey also cited research demonstrating that probation terms longer than one or two years have little positive effect on public safety.
Placey pointed to an early termination program already underway in York County, which has facilitated early termination for about 400 probationers each year since the effort began in November 2017. In a phone call with The Appeal, the county’s director of probation services, April Billet-Barclay, said the process happens “entirely on paper”: a probation officer sends a request for early termination to the district attorney’s office, who then signs off on the request and sends it to a judge. Billet-Barclay emphasized that mandating judicial hearings as part of the termination process would be burdensome. “It’s really not necessary … if the probationer comes in, you’re throwing more court costs and fines on them, because every time they come before the judge, they get more costs.” Significantly, inability to pay probation fees and other court costs already prevents many probationers from obtaining access to this early termination program.
The ACLU of Pennsylvania has pointed to other problems with the amended text of SB 14. In a July 15 statement, executive director Reggie Shuford noted that the bill requires probationers to pay their restitution in full before their probation term can be terminated, and it facilitates incarceration for technical violations. “The Legislature can no longer get away with gaslighting Pennsylvanians about their attempts at reform,” Shuford’s statement reads. “The reality is that this bill makes probation worse.”
In 2017, Gregory Parker admitted to Pittsburgh-area law-enforcement agents that he was involved in the 2013 murder of Marcus White, Jr., a 15-month-old baby. But Parker, now age 22, was not arrested—he was the Allegheny County district attorney’s star witness in a 2016 mass shooting in Wilkinsburg, a suburb about nine miles from Pittsburgh. Five people were killed in the incident, including a pregnant woman. Prosecutors relied on Parker’s testimony as a jailhouse informant in their case against two men—Cheron Shelton and Robert Thomas—accused of murder in the mass shooting. Prosecutors had beenseeking to put both men to death.
But the prosecutors’ gamble backfired spectacularly: neither Shelton nor Thomas were convicted. In February, Shelton was acquitted in after his attorneys said prosecutors waited until the night before the trial to divulge evidence that they’d struck a deal with Parker in exchange for his testimony, in violation of the U.S. Supreme Court decision Brady v. Maryland. So, the 2016 mass shooting remains unsolved. And, after prosecutors finally charged Parker with killing White this year, his family filed a federal lawsuit against the Allegheny County DA’s office alleging it knew of Parker’s culpability in the murder for years and chose not to arrest him.
Now, The Appeal has obtained even more evidence that defense attorneys say DA Stephen Zappala’s office hid from them—including a document alleging that law enforcement agents recorded an interview with Parker in 2018 that was not entered into evidence during Shelton’s trialuntil Shelton’s defense team complained.
“In 2018, the Allegheny County DA’s office made the decision to release Gregory Parker, a confessed baby killer, in order to salvage their death penalty case against Cheron Shelton and Robert Thomas,”Paul Jubas, an attorney representing both Shelton and White’s family, told The Appeal. As part of the family’s complaint, they’ve demanded that Zappala’s office be taken off the Parker case.
“They decided to use Gregory Parker in the Wilkinsburg massacre trial, to release him after he confessed to killing baby Marcus, and to not charge him for killing baby Marcus, despite the fact that they knew that he gave false information about the Wilkinsburg massacre,” Jubas added. During the case, testimony from two other key jailhouse informants—Kendall Mikel and Frederick Collins—also fell apart under basic scrutiny, and prosecutors ultimately declined to call either Mikel or Collins to testify during the trial.
The Wilkinsburg mass shooting isn’t even the first mass shooting case tainted by an informant scandal in the last decade. In 2011, a gunman in Orange County, California, shot eight people, including his ex-wife, to death in a local salon. While the shooter, Scott Dekraai, ultimately pleaded guilty, his public defender, Scott Sanders, revealed that Orange County law-enforcement officials had been secretly running an unconstitutional jailhouse informant program for years.Sanders accused Orange County prosecutors of planting an informant inside a local jail near Dekraai in order to elicit testimony from him. Then-California Attorney General Kamala Harris and the U.S. Department of Justice then launched probes into police informant usage, though no one was ultimately disciplined.
In the Wilkinsburg mass shooting case, prosecutors relied on three jailhouse informants against Cheron Shelton, and all three fell apart in their own unique ways.
Without testimony from these jailhouse sources, the Allegheny County DA’s office appeared to have a weak case. At around 10:45 p.m. p.m. on March 9, 2016, two people allegedly surrounded a backyard cookout in Wilkinsburg and opened fire. One shooter used a .40-caliber handgun and another used an assault-style rifle. The shooter with the handgun fired a blast meant to scare the people in the yard—and whoever used the assault rifle then shot people as they all tried to run inside the home.
Prosecutors decided not to rely on the second witness, Frederick Collins, because of his history of outbursts during court proceedings. In 2015, Collins began screaming during a hearing related to a domestic dispute and threatened to kill a woman involved in the incident. Collins was charged, and then, during a hearing related to those charges, he threatened to murder the judge overseeing his case.
That left the third witness, Parker. In February 2017, Parker was indicted. Parker then began cooperating with Allegheny County law enforcement—and on Nov. 30 of that year, he agreed to a sit-down, recorded interview with prosecutors. During that interview, Neal Carmen, an agent with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), was recorded saying that the government was “going to uphold our end, and we are going to do the best we can. There are guarantees in there that have already been talked about and are hoping to more than what is guaranteed, depending on what is needed.” Carmen also stated that he hoped to get Parker “back on the street” so he could become a productive member of society.
A Pittsburgh Police detective then yelled: “Hey Neal, it is still recording you know.”
(In a deposition that occurred during Shelton’s and Thomas’s case, Carmen stated that he’d only “guaranteed” that he would inform a judge that Parker had been cooperating with law enforcement, but admitted that Allegheny County Police had offered to help relocate Parker and one of his family members.)
“Exculpatory evidence was withheld in clear violation of Brady under the guise that it was protected grand jury material from other cases when, in fact, it was not grand jury material,” Shelton’s lawyers wrote.
But that’s not the only evidence that appears to have gone undisclosed. According to ATF and Allegheny County Police investigative documents obtained by The Appeal, law enforcement officials interviewed Parker again on Feb. 15, 2018. An Allegheny County Police report shows that Parker said he “had information regarding the Wilkinsburg homicide where 6 people were killed.” A county detective, Todd Dolfi, wrote that Parker said he spoke to a man inside the jail nicknamed “Millhouze,” who explained that someone at the cookout had killed a friend of theirs, and that the two shooters opened fire in revenge. The police report stated that Allegheny Police recorded Parker’s interview, but Shelton’s lawyers told The Appeal the DA’s office also withheld the audio until the last minute.
Eventually, Allegheny County prosecutors stopped relying on Parker’s testimony. In February, a local judge dropped the case against Thomas, granting a motion stating that prosecutors had insufficient evidence to bring it to trial. Allegheny County Common Pleas Judge Edward Borkowski added that relying on jailhouse informants was “treacherous waters; we know that from experience.”
Later that month, a jury acquitted Shelton of every count against him—including five counts of murder, homicide of an unborn child, three counts of aggravated assault, three counts of attempted murder, one count of conspiracy, and six counts of reckless endangerment.
But Shelton wasn’t free for long: On February 25, a federal grand jury in the Western District of Pennsylvania indicted Shelton on charges of felony possession of a firearm and ammunition by a convicted felon. Shelton has a prior felony drug conviction, and investigators say that during the mass shooting investigation, they found a .22-caliber rifle and ammunition in his mother’s home. Importantly, however, prosecutors do not believe that gun was used in the 2016 cookout massacre.
Joseph Amrine spent nearly a third of his life in prison condemned to die before the state’s case against him began to evaporate. Amrine was convicted in the murder of a fellow prisoner in a recreation room at the Jefferson City Correctional Center in 1985, and by 1998, several key witnesses recanted their statements.
In 2001, prosecutors under then Missouri Attorney General Jay Nixon pushed for an execution date anyway, arguing two years later before the state’s Supreme Court that Amrine had already tried and failed proving his innocence through lower courts.
In one exchange, Justice Laura Denvir Stith asked Assistant Attorney General Frank Jung, “Are you suggesting … even if we find that Mr. Amrine is actually innocent, he should be executed?”
“That is correct, your honor,” Jung said.
The court disagreed, and Amrine was exonerated. But the Missouri attorney general’s office has fought to maintain convictions in potential innocence cases.
The attorney general’s office has opposed calls for relief in nearly every wrongful conviction case that came before it and has been vacated since 2000, according to an Injustice Watch and The Appeal review of court records and a national database of exonerations. That includes 27 cases in which the office fought to uphold convictions for prisoners who were eventually exonerated. In roughly half of those cases, the office continued arguing that the original guilty verdict should stand even after a judge vacated the conviction. (The office, however, played no role in at least 13 exonerations during that time period.)
This year alone, the convictions of three men were vacated after lengthy legal battles with Attorney General Eric Schmitt’s office.
As the primary agency tasked with handling post-conviction issues, the office wields outsize influence over most wrongful conviction cases in the state. (State law allows local courts to handle cases where belated DNA testing could change a verdict, so a smaller portion of exonerations in Missouri are handled without the attorney general.)
The office’s decades-long pattern of stymieing exonerations has left the wrongfully convicted languishing in prison for years. And its stance on exonerations has persisted as elected attorneys general have come and gone, regardless of political affiliation.
A spokesperson for the attorney general’s office declined to discuss its handling of wrongful conviction cases.
But former Justice Michael Wolff, who sat on the state Supreme Court during Amrine’s petition for habeas corpus, told Injustice Watch and The Appeal that the office operates as though its job is to keep convictions intact, “even if you might have convicted an innocent person.”
“You have to pretend that the criminal justice system is without error, and you can’t pretend that,” Wolff said.
The office is currently fighting efforts that would allow the release of Lamar Johnson, who was convicted of murder in 1995. Last year, St. Louis Circuit Attorney Kim Gardner’s review of the case uncovered evidence that prosecutors withheld information about payments made to the sole eyewitness who has since recanted his testimony. Police fabrications by the lead detective about a motive for the killing, false testimony by the same detective, and a failure to disclose information about a jailhouse informant led to Johnson’s wrongful conviction, Gardner found. And even though Johnson has the support of Gardner, Schmitt argued that local prosecutors lack the authority to vacate convictions. The chief of the attorney general’s criminal division said that giving local prosecutors the power “has the potential to undermine public confidence” in the criminal legal system.
Johnson’s legal team detailed the attorney general’s blanket opposition to claims by the wrongfully convicted in a court filing earlier this year. One of the lawyers, Lindsay Runnels, also clashed with the office when she represented Lawrence Callanan, who was exonerated in June.
Runnels said the attorney general fought for years to uphold Callanan’s conviction despite a local prosecutor’s admission that he instructed an eyewitness not to disclose exculpatory evidence in the case, in violation of the U.S. Supreme Court decision Brady v. Maryland.
She said the attorney general’s office behaves as if “they’ve never seen an innocence case.”
“They think the system bats 1,000,” Runnels said.
Several lawyers interviewed by Injustice Watch and The Appeal noted that the office’s handling of exoneration cases has remained static under the leadership of both Democrats (Jay Nixon and Chris Koster) and Republicans (Josh Hawley and Schmitt).
Sean O’Brien, who represented Amrine, linked the office’s seemingly reflexive opposition to innocence claims with Missouri’s devotion to the death penalty, favoring finality in court decisions. But that approach “blinds you to innocence,” O’Brien said.
Later this year, Schmitt will face Democratic nominee Rich Finneran in an election for the attorney general seat. In an interview withInjustice Watch and The Appeal, Finneran criticized Schmitt’s handling of wrongful conviction cases and said he’d do things differently if he is elected.
“It certainly seems as though Eric Schmitt at least has a reflexive instinct to defend every conviction, regardless of whether or not it was properly obtained,” said Finneran, who also blasted Schmitt’s reliance on procedural arguments and technicalities in Johnson’s case as unethical.
Tricia Bushnell, the executive director of the Midwest Innocence Project who has worked on wrongful conviction cases in Missouri, Kansas, and other states, said the attorney general’s “obstructionist” stance is disingenuous.
In the case of Johnson, whom Bushnell also represents, the attorney general argues that Johnson has to request relief through a different avenue where the attorney general instead of the local circuit attorney would represent the state.
“Except how will justice be found there when they denied justice to everyone who’s ever filed there?” Bushnell said.
In Ricky Kidd’s case, the attorney general clashed with lawyers from the Midwest Innocence Project for seven years over the process of petitioning a court to review and overturn his conviction. By the time his lawyers got the process going, a co-defendant admitted that Kidd was not involved in the 1996 double murder that landed both men in prison on life sentences.
“Every time I lost, it was devastating … like a boxer taking a gut punch,” Kidd told Injustice Watch and The Appeal. “The Missouri attorney general’s office is not arguing that we’re not innocent, they’re arguing technicalities.”
Kidd was exonerated last year. But he said the ordeal took an emotional toll on him and his loved ones, especially his children, who are still struggling to make sense of what happened to their family.
“They’re so angry underneath that they don’t know where to place that anger,” Kidd said. “The state is not an individual. My daughters don’t know how to process what has really happened to them.”
Joshua Kezer was exonerated in 2009, 15 years after he was wrongly convicted for the murder of Angela Lawless. Kezer’s attorneys said that an alternate suspect—who did not resemble Kezer—was identified in the case but that this information was not disclosed to them.
“They have never said we’re sorry, they have never said we’re wrong,” Kezer said of the attorney general’s office. “And that is unacceptable.”
More recently, amid the COVID-19 pandemic, the attorney general’s office railed against the release of Donald “Doc” Nash. The 78-year-old Missouri man was accused of murdering his girlfriend in 1982 and convicted based in part on dubious expert testimony that has since been discredited—and may have also been fabricated.
Nash, who his attorney said suffers from heart problems, remained behind bars as COVID-19 spread through the facility where he was held. The state Supreme Court vacated the charges against him in July.
But even when the wrongfully convicted secure their release, their fight isn’t necessarily over. They must live with the fear that they could be tried again. In December, a St. Louis Post-Dispatch columnist warned two newly released exonerees who had avoided a clash with the state prosecutor, “The attorney general is coming for you.”
Brad Jennings was released from prison two years ago and exonerated in the death of his wife. Still, Jennings feared that the attorney general would keep trying to lock him up. He was right.
Prosecutors from the attorney general’s office appealed a judge’s decision to vacate his charges, arguing that it was Jennings’s responsibility to locate forensic testing evidence that the police had not disclosed at trial that would support his innocence claim. In April 2018, a panel of Missouri Court of Appeals judges wrote in a decision that they found the state’s argument to be particularly repugnant.
“Everybody needs to know that the truth doesn’t matter to the attorney general’s office,” Jennings said. “It’s just whether or not they can get somebody convicted.”
Now that more than 40 prosecutors’ offices across the country have created units to review the integrity of past convictions, law enforcement’s reticence to address wrongful convictions is no longer the norm, said Miriam Krinsky, executive director of Fair and Just Prosecution.
Krinksy, whose group includes local elected prosecutors from across the country, told Injustice Watch and The Appeal that the Missouri attorney general’s office seems “wedded to an old way of doing business, that autopilot of defending convictions at all costs.”
That mentality can cause real harm in the public’s faith and belief in the criminal justice system, Krinsky said, especially when cases like Johnson’s draw the attention of the nation.
“When we have individuals who spent decades behind bars because someone is claiming someone is time-barred, that’s an embarrassment and that’s a stain on the entire justice system,” Krinsky said. “This is the kind of thing where the ripple effect of allowing these sorts of practices to remain in place extend beyond a single jurisdiction.”
Bob Ramsey, who has represented Missouri exonerees Mark Woodworth, Cornell McKay, and Jennings, said he’s seen the attorney general’s office use what he called “dirty tactics” since the early 1990s.
“I’ve seen them stoop to unbelievable depths to preserve a conviction, and to obtain a conviction,” Ramsey said.
Ramsey said that in Woodworth’s case, the attorney general’s office discovered a plethora of evidence that should have been disclosed by the state prosecutors to the defense before trial, then dragged the case out for years. The withheld evidence included three letters: one from the judge to an assistant attorney general who tried the case acknowledging the pair had discussed the case on several occasions; a second letter letter from the victim to the judge that prompted the calling of a grand jury in the case; and a third letter from the local prosecutor to the judge indicating that the surviving victim was “adamant” that they charge another suspect, as well as information that the other suspect had violated an order of protection against the victim’s daughter.
Platte County Circuit Court Judge Owens Lee Hull Jr. eventually removed the attorney general’s office from the case and appointed a special prosecutor; Woodworth was convicted for murder twice, and both convictions were later thrown out on appeal. Ramsey said he’s unaware of any professional consequences that the office or its attorneys have faced as a result of its misconduct in the Woodworth case.
The assistant attorney general who tried Woodworth at his first trial, Kenny Hulshof, went on to become a U.S. representative for Missouri’s Ninth Congressional District. He held his seat for 12 years. Hulshof was also one of the prosecutors who tried Kezer.
In 2008, Hulshof ran for governor but lost to Nixon.
Kidd said society—not just the wrongfully convicted—pays a steep price for innocence cases. Both victims and communities are deprived of safety, while taxpayers pay for years of imprisonment and legal battles surrounding tainted convictions.
“I think that’s enough for anybody to say, ‘Wait a minute we gotta do better, we have to respond in a way that’s more thoughtful for the people who put us in office,’” Kidd said.
Jonah Newman and Annabelle Rice contributed reporting.
Texas Family Wants Justice For Deadly No-Knock Drug Raid
In February 2019, police officers in Killeen shot James Scott Reed in his home. One officer entered a guilty plea to evidence tampering, but Reed’s family is still suing the city and several officers in federal court.
Texas Family Wants Justice For Deadly No-Knock Drug Raid
In February 2019, police officers in Killeen shot James Scott Reed in his home. One officer entered a guilty plea to evidence tampering, but Reed’s family is still suing the city and several officers in federal court.
At around 6 a.m. on Feb. 27, 2019, the front door to James Scott Reed’s Killeen, Texas, apartment was nearly blown open.
Reed, then 41, had been expecting trouble. Weeks earlier, someone drove by his one-story duplex on West Hallmark Avenue and opened fire on his bedroom window. Reed’s home sat on a long street lined with humble, one-story houses with wide porches and empty asphalt lots that manage to look the same gray-brown color as the flat patches of grass growing along the road. After someone fired at his house, Reed bought a silver .380 Cobra handgun to defend himself.
The sun hadn’t yet risen when there was a bang at Reed’s door. Seconds later, his bedroom window was shattered. But this wasn’t another drive-by shooting. A flashbang device was then thrown into the broken window, followed by about a dozen Killeen Police Department SWAT agents descending on the tiny home. They’d obtained a warrant to conduct a “no-knock” narcotics raid on his house.
Reed likely didn’t know the men were officers when the flashbang flew into his bedroom. And it’s possible he still didn’t know they were law enforcement when they fired at least 23 bullets at him—including one that pierced his torso just under his right armpit. The bullet tore through both his lungs, severed his aorta, and later killed him.
In a series of varying—and in some cases contradictory—statements, some of the officers claimed Reed stuck his gun out of his bedroom window and fired a series of shots at them. But a woman staying with Reed at the time, Eva Marie Brocks, repeatedly told local media and investigators that she never saw Reed fire or point his gun at anyone. Instead, she says Reed was reaching for his dresser when he was shot to death by the police. In interviews with law enforcement officials, Brocks stated that the officers only announced they were law enforcement after the gunfire ended. Ballistics evidence also shows that Reed’s handgun was jammed and had a full magazine inside when police recovered it. According to a family lawsuit filed in May, no fired .380 cartridges were recovered from the scene.
“Somebody said ‘shots fired,’ and he didn’t even fire shots,” Brocks told KWTX, a Waco TV station, in 2019. “And that’s when all of them went to shooting.”
Despite the similarities of Reed’s case to the March 13 no-knock raid that killed Breonna Taylor—where plainclothes Louisville, Kentucky, police officers burst into her home, did not announce who they were, and killed her in her bed—Reed’s case has received little attention outside of Texas. One of the three officers who fired their guns that morning, Anthony Custance, initially denied shooting at Reed at all before admitting to Texas Rangers investigators that his story was false. Custance, who resigned from the department shortly after the shooting, was later indicted for tampering with the case’s evidence by hiding the rifle magazine he used during the shooting and reloading his gun to make it appear like it had never fired. In September 2019, Custance entered a guilty plea in the case and was sentenced to six years’ probation. He was also stripped of his law enforcement license.