Get Informed

Subscribe to our newsletters for regular updates, analysis and context straight to your email.

Close Newsletter Signup

What Brett Kavanaugh on the Supreme Court Would Mean for Criminal Justice

Trump’s pick to replace Justice Kennedy would most likely undermine the rights of criminal defendants and stall progress on solitary confinement, prisoners’ rights, and the death penalty.

Trump announces Brett Kavanaugh as his nominee to succeed Anthony Kennedy on the U.S. Supreme Court.
Credit: Chip Somodevilla/Getty Images

What Brett Kavanaugh on the Supreme Court Would Mean for Criminal Justice

Trump’s pick to replace Justice Kennedy would most likely undermine the rights of criminal defendants and stall progress on solitary confinement, prisoners’ rights, and the death penalty.

In 2015, Justice Anthony Kennedy wrote a concurrence in a death penalty case to sound the alarm on solitary confinement. The prisoner in that case, Davis v. Ayala, had probably “spent 20 years or more in a windowless cell no larger than a typical parking spot.” Kennedy noted that such confinement was typical on death row and lamented “the human toll wrought by extended terms of isolation,” which produces anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicide. Kennedy argued that prison conditions are too often ignored: “prisoners are shut away—out of sight, out of mind,” and the “judiciary may be required” to intervene.

Two years later, Justice Stephen Breyer wrote a similar dissenting opinion and voted to stay an execution based on a prisoner’s time in solitary confinement. “If extended solitary confinement alone raises serious constitutional questions,” he wrote, “then 20 years of solitary confinement, all the while under threat of execution, must raise similar questions, and to a rare degree, and with particular intensity.”

Together, the opinions opened a window for the Supreme Court to mandate urgently needed and constitutionally required reform. In the United States, about 25,000 prisoners are serving a substantial part of their sentences in solitary confinement, with 80,000 to 100,000 prisoners held in solitary at any given time. This includes children, for whom the effects of isolation are especially severe. With the conservative Kennedy and moderate Breyer inviting legal challenge, there was hope for meaningful judicial review.

But then Justice Kennedy announced his retirement, President Trump nominated D.C. Circuit Judge Brett Kavanaugh to replace him, and the window to challenge solitary confinement in the Supreme Court will almost certainly slam shut if he is confirmed.

Kavanaugh was chosen precisely for his party loyalty, conservative ideology, and “central casting” background as a white male swaddled in the prestige of elite private schools and powerful government institutions. Republican Senator John Kennedy of Louisiana had said that if Justice Neil Gorsuch has “got a twin, let’s nominate him,” and that is effectively what happened. Kavanaugh and Gorsuch went to prep school together. They clerked for Justice Kennedy on the Supreme Court together. And they were both appointed by President George W. Bush to a federal circuit court before Trump picked them for the Supreme Court.

Kavanaugh and Gorsuch also share similar views on criminal justice, each protecting the rights of criminal defendants in a limited set of cases. Indeed, Kavanaugh has received praise from criminal justice and civil liberties advocates for his laudable concerns about overcriminalization. But the same was true of Gorsuch, and his first vote of consequence on the Supreme Court led to an execution.

Overall, replacing Kennedy with Kavanaugh will only mean fewer legal protections for people ensnared in the criminal justice system. It’s unlikely that Kavanaugh would ever provide the decisive fifth vote for a criminal defendant or victim of police brutality. If he joins the Court’s more liberal members in a criminal justice case, Justice Gorsuch and perhaps Chief Justice Roberts would most likely join as well. But on certain issues—particularly conditions of confinement and the death penalty—Kavanaugh would solidify a conservative majority where Kennedy had been a potential vote, and even a leading voice, in favor of a more humane justice system.

Consider Kennedy’s pivotal role on issues of prisoner rights and excessive punishments. In 2011, he wrote the 5-4 opinion ordering California to release thousands of prisoners to reduce overcrowding. On capital punishment, he wrote 5-4 opinions holding that it is unconstitutional to execute minors and to impose the death penalty for rape. In 2010, Kennedy wrote the 6-3 opinion in Graham v. Florida holding that juveniles cannot be sentenced to life without parole for non-homicide offenses, and in 2012 he joined the 5-4 opinion in Miller v. Alabama holding that mandatory life without parole for juveniles is unconstitutional.

With Kennedy as the fifth Republican appointee, it was plausible that the Court would not only address long-term solitary confinement on death row but eliminate death row altogether. Kavanaugh’s confirmation would abruptly stall further progress in these areas.

Kavanaugh’s views on criminal justice are defined by a deference to law enforcement and a broad view of executive power that will enable more stops and searches, more arrests, more prosecutions, and an overly punitive justice system.

In a speech last year, Kavanaugh praised the work of former Chief Justice William Rehnquist to eliminate constitutional protections for criminal defendants and to uphold the constitutionality of the death penalty. Kavanaugh called Rehnquist his “judicial hero,” and singled out his efforts to eliminate the Fourth Amendment’s exclusionary rule—which bars the admission of unlawfully obtained evidence at trial—and to weaken Miranda v. Arizona, the seminal ruling that requires police to notify suspects of their rights to remain silent and to have counsel present before interrogating them.

Kavanaugh’s record on the D.C. Circuit reflects these views. In a concurrence, he wrote that the National Security Agency’s expansive warrantless surveillance program that collected phone data on hundreds of millions of Americans did not constitute a “search” under the Fourth Amendment. And he argued, in dissent, that a police officer did not violate the Fourth Amendment when he stopped a defendant without probable cause and unzipped his jacket to search for evidence.

In a series of decisions, Kavanaugh deferred to the executive branch on detainees held in Guantánamo Bay, defending the controversial use of military commissions to prosecute terror suspects and limiting the rights of detainees to challenge their confinement in federal court.

And on sentencing, last month Kavanaugh dissented from a decision that vacated a prison sentence because the trial judge improperly sought to make an example of the defendant without explaining why he was singled out for especially harsh treatment. Kavanaugh found this reasoning “confounding.”

Kavanaugh’s concerns about overcriminalization, on the other hand, are more circumscribed. He has argued that criminal prosecution requires clear notice of what constitutes a crime and what the consequences of that crime will be. Like Gorsuch, he has specifically questioned the “phalanx of federal regulatory crimes” that criminalize a widening swath of behavior without sufficient notice or guidance.

In United States v. Burwell, for example, the D.C. Circuit (including Judge Merrick Garland, President Barack Obama’s unsuccessful nominee to replace Justice Antonin Scalia) upheld a 20-year sentence enhancement for a man who used automatic weapons in a series of bank robberies, even though the government did not prove that the man knew that his weapon fired automatically. In dissent, Kavanaugh argued that “imposing an extra 20 years of mandatory imprisonment based on a fact the defendant did not know is unjust.”

But Justice Gorsuch’s record serves as a cautionary tale against drawing broad conclusions from Burwell. The rationale of Kavanaugh’s Burwell dissent mirrors much of what then-Judge Gorsuch wrote on the Tenth Circuit about the risks of overcriminalization. He too dissented over people who “sit in prison because … case law allows the government to put them there without proving a statutorily specified element of the charged crime.”

Yet on the Supreme Court, Gorsuch has evinced hostility toward criminal defendants across a variety of issues, often in dissent. He dissented when the Court held that police need a warrant to surveil suspects using cell tower data. In capital cases, he dissented when the Court provided relief to a Black defendant sentenced to die by a juror who used a racial slur to describe Black people and he dissented when the Court held that capital defendants have the right to maintain their innocence at trial, even when their lawyer wants to admit guilt. Gorsuch also joined an opinion holding that noncitizens detained under the Immigration and Nationality Act are not entitled to periodic bond hearings.

Adding Kavanaugh to the already conservative Roberts Court will only make it more so. Once promising efforts to improve conditions for prisoners and to further reduce if not eliminate executions would turn doubtful. But that is just the near term. Kavanaugh is only 53; Justice Gorsuch is 50. If Kavanaugh is confirmed, the once high-school classmates will serve on the high court together for decades.

Why This Mother And Daughter Were Jailed Without Being Charged With A Crime

A teenage girl spent weeks in jail, and her mother is still locked up on a $150,000 bond.

Illustration by Anagraph / Photos: (foreground) Metropolitan Museum of Art; (background) stevecoleimages, Getty

Why This Mother And Daughter Were Jailed Without Being Charged With A Crime

A teenage girl spent weeks in jail, and her mother is still locked up on a $150,000 bond.

Shantay Corley and her daughter, Zinya Corley, have not been accused of any crime. Yet they inspired a manhunt across New York State, were arrested in Manhattan, and hauled back to Syracuse to sit in jail.  Zinya, 17, was held in solitary confinement, according to her lawyer, for weeks before she was bailed out. Her mother is still sitting in jail on a $150,000 bond.

The mother and daughter were tracked down and arrested solely because prosecutors want to force them to testify as witnesses in a trial.

According to the police reports, on the morning of June 10, 2017, in Syracuse, Samuel Dixon was shot multiple times in his blue Toyota Solara. Police found him sitting in the driver’s seat, slumped over the passenger’s side. Within just a day or two, after canvassing some neighbors, detectives began to form a narrative about the shooting: Vernon Brockington, 35, had shot Dixon when Dixon had pulled up in front of Brockington’s home. There was neighborhood chatter that the two had been in a fight the night before.

Witnesses could not identify the shooter, but Shantay Corley, Brockington’s partner, and  Zinya, then 16, were in the home at the time. Police and prosecutors quickly zeroed in on them to pump for information.

Things escalated quickly thanks to a legal practice known as material witness warrants. Material witness warrants are meant to be used to arrest and detain people in unusual cases where prosecutors can prove that their testimony is essential to a case and that there’s reason to think the witness will not appear in court. The practice has recently come under fire in many places for enabling the detention of innocent people. These material witnesses aren’t always entitled to counsel (although the Corleys were assigned counsel in this case by the judge because they faced jail time). While the warrants are supposed to be rare, they represent an abuse of power that is often overused by certain prosecutors to force reluctant witnesses to testify.

In the Corleys’ case, police had already interrogated the mother and daughter several times. Police came across Shantay Corley the day of the shooting as she carried shopping bags into her home, but she refused to talk extensively to them, giving “one word answers,” and muttering “fuck you,” according to the police reports obtained by The Appeal

Shortly after the shooting, police and the Onondaga County district attorney’s office interviewed Zinya and Shantay about Brockington’s behavior that day. According to the police report, Zinya was picked up at her high school and taken to the police station to be questioned alone, without a parent. She told detectives that she had seen Brockington the morning of the shooting and had watched him change clothes after the gunshots were fired, which led investigators to think that her mother knew something more.

Shantay, eight months pregnant with Brockington’s child, was interviewed multiple times by police detectives both before and after being read her Miranda rights. At one point,  the detectives, who were executing a search warrant, climbed into Shantay’s home through an open window and then called her to come home for an interview, according to a police report. When she resisted answering the detectives’ questions, according to the official report on that interview, the detectives began to fill out the paperwork to arrest Shantay and asked her for people they could contact to take custody of her children. The police then told her she could “help her situation” if she corroborated her daughter’s narrative. Detectives’ notes indicate that they left her alone for about two hours in an interrogation room before she complied with a statement that matched her daughter’s. She also allowed detectives to look through her cell phone history and search her car. Notes describe her as “uncooperative” and “deceitful.”

The trial was expected to begin April 9, but on that date, the Corleys were nowhere to be found. This began a manhunt, which, by late May, led investigators to Manhattan, where mother and daughter were found living with relatives. There were conflicting accounts of what happened: The local news initially made the incident appear as though the two were in hiding, but Shantay’s lawyer told the court they were staying with her mother after they were evicted in April.

An assistant prosecutor told the local news that they had expended “a significant amount of resources” to find them. They were arrested and taken before Judge Matthew Doran, who allowed them to be held in jail.

According to Shantay’s lawyer, Tylyn Bozeman, her client was never served with a valid subpoena. There was no certificate of service. She told The Appeal that she  still had not even received documents like Shantay’s grand jury testimony, which could shed light on why the prosecutor thinks that her testimony is essential to the case.

Just last month, the United States Court of Appeals for the Second Circuit held that misusing material witness warrants was unconstitutional. The case involved Alexina Simon, who was arrested and detained by the Queens DA’s office for over two days for questioning as a potential witness in a case involving police misconduct.

Police said they tried to talk to Simon over the phone and at her home.  Investigators then went to Simon’s place of work—a Manhattan hotel where she was a housekeeper—and threatened to cuff her in public. It turned out that Alexina Simon was the wrong person; officials actually wanted to talk to her daughter, Alexandra. Even then, police still took Simon to the DA’s office for questioning. She sued.

This wasn’t the first time New York district attorneys have used questionable tactics. Brooklyn investigators used to routinely detain witnesses in hotel rooms before they capitulated. And in 2006, Russell Hernandez was incarcerated on Rikers Island for two years because the Bronx DA’s office wanted him to testify against two men who had allegedly robbed him in 2004. Hernandez, a native of Trinidad, was a green-card holder who was confined to immigration detention in 2006 based on a prior arrest. He was then transferred to Rikers and told that he should testify against the two accused men—who had threatened to hurt Hernandez—because he “would be deported anyway.” Hernandez did not testify and in 2008 he was summarily transferred back to immigration detention where he made bail.

The practice of arresting material witnesses stretches far beyond New York. In April of this year, the prosecutor in Salt Lake County, Utah jailed a teenager to ensure her testimony against a person accused of shooting someone. Alexus Irizarry, 18, was in a truck with friends when her companion was shot in the head. She later missed a court date because she was recovering from surgery. Despite her mother’s frantic calls, it took over a month before she was assigned counsel and released from jail.

When Irizarry finally testified, she was fully shackled. She later told the Salt Lake Tribune that she did not receive medical care for her post-surgical recovery in jail and that the incident triggered anxiety and depression over her friend’s death.

And a lawsuit by Civil Rights Corps and the ACLU has alleged that New Orleans DA Leon Cannizzaro has been jailing witnesses or threatening them with jail as a way to force them to meet with prosecutors. The complaint asserts that the DA’s office has requested at least 150 material witness warrants in the past five years, many of which were based on false reasons or omissions. As a result, innocent witnesses and victims of crimes have spent days and even weeks in jail. Many had bond amounts higher than the person accused of the crime.

Prosecutors argue that material witness warrants and other coercive measures are necessary because the “no snitch” culture means that witnesses and victims are reluctant to report crimes, much less testify in court against people who are their friends and relatives. Perhaps unsurprisingly,  getting witnesses to show up is an exercise in patience and skill.

Onondaga County DA William Fitzpatrick, whose office requested the Corleys’ warrants, claimed that his office had witness cooperation issues in 14 cases in 2014 and 2015. A Syracuse police spokesperson told the Post-Standard that 70 percent of victims refuse to cooperate with police. And Fitzpatrick added that material witness warrants were on the rise, even though his office doesn’t count them.

“Witness cooperation continues to be the number one challenge in every case that I handle,” Onondaga County Assistant District Attorney Rob Moran, the prosecutor on the Brockington case, told The Appeal. “Material witness warrants are a last resort. I do everything I can to avoid asking for one.”

But the strong-arming of witnesses and victims with threats of jail time and separation from children carries its own risks of false imprisonment and retraumatization. Coercing witnesses can also lead to false testimony and wrongful convictions, as the ACLU and National Association of Criminal Defense Lawyers explained in a brief supporting Simon’s claim against the city. Arresting innocent people also erodes trust in government, especially when the state itself seems to presuppose dishonesty.

It’s unclear if Onondaga County law enforcement has tried to address the root causes of the cooperation problem, or offer other incentives to testify beyond the threat of arrest. One Syracuse mother refused to allow her teenage son to testify against an alleged shooter, telling the Post-Standard the DA’s office “[treats] everybody like you’re a gang member.” She said the office offered no witness protection or other measures to ensure her son’s safety.

Even if witnesses still don’t want to cooperate with the prosecution, that’s not a good enough reason to incarcerate them, Cody Wofsy, a staff attorney with the ACLU Immigrants’ Rights Project, and one of the lead attorneys in the Simon case, said in a phone interview. “The fact that the police or prosecutor is unhappy with the witness’s unwillingness to answer questions in private, or unhappy with the answers they do provide, is not enough to lock up innocent people,” he said.

More in Explainers

Before Children’s Grisly Deaths, a Family Fought for Them and Lost

The Hart family’s apparent murder-suicide drew headlines, but the path to the tragedy started much earlier—in Texas.

The Harts (left to right: Hannah, Abigail, Ciara, Jeremiah, Jennifer, Devonte, Markis and Sarah)
Social media

Before Children’s Grisly Deaths, a Family Fought for Them and Lost

The Hart family’s apparent murder-suicide drew headlines, but the path to the tragedy started much earlier—in Texas.

Two neighbor kids bang on Sherry Davis’s door. They’ve seen her come home and know she can be counted on for handing out the little packs of Starburst she keeps nearby. Outside, the dingy affordable-housing complex in South Houston is overflowing with neighbors—a baby toddles after a young puppy, several guys hang around their cars.

Davis, visibly distraught, gives out some candy, but after she closes the door, her grief overcomes her. She hugs her best friend in the kitchen of her dimly lit apartment, and together they wail. Clarence Celestine, the father of two of Davis’s kids, shifts his body on the couch nearby, rubs his hands together, and tries to stay composed.

It’s April 13, and it’s been two days since they heard the news of what happened to her children. Two weeks earlier, 2,000 miles away in Mendocino County, California, a gold Yukon SUV was found at the bottom of a 100-foot cliff. Devonte, Jeremiah, and Ciara, along with their three adoptive siblings, were believed to have been inside. The bodies of the children’s adoptive mothers, Jennifer and Sarah Hart, were found in the driver’s and passenger’s seats; police suspect the plunge was intentional. After the crash was discovered, abuse allegations that had followed the family through three states and over 10 years began trickling out, forming a harrowing account of what had happened to Davis’s children since she had last seen them 12 years ago.

Clarence Celestine and Sherry Davis
Credit: Roxanna Asgarian

But for Davis, the grief was still shrouded in shock—she’d found out about the crash more than two weeks after it happened, when Celestine’s sister Priscilla Celestine was alerted by her former lawyer and called Davis with the news. “If she hadn’t found out, I don’t even think they would have told me,” Davis said in April. “They haven’t told me yet; they haven’t called or nothing.”

Davis lost custody of her children because of her cocaine addiction; she and Celestine gave up their parental rights in 2006. They hoped the children would be adopted by Priscilla, who had a stable job and no criminal record and who took in all four of Davis’s children. But Priscilla’s plans to adopt were dashed after a caseworker discovered Davis babysitting the children while Priscilla was at work.

As Priscilla continued to fight for the children, they were adopted in 2009 by the Harts, a couple based in Minnesota, who had already adopted three other children, Markis, Hannah, and Abigail. Although a string of abuse reports and investigations across several states would follow, the Harts’ carefully crafted narrative of a passel of formerly abused black children and two progressive white moms fighting for them gave them a cover for their own abuse.

The Hart children’s story exposed myriad flaws in the country’s child welfare system, where spotty communication between agencies in different jurisdictions let the Harts slip through the cracks as they fled from state to state, becoming increasingly isolated from the outside world. But it also shows the power of the Texas court that took the children in the first place. Rather than working to keep the children with their families, the court had a reputation for speeding up adoptions, and leaving frustrated and despairing family members in their wake.

An idyllic facade

For a long time, through the prism of social media, it looked as though the Hart children were leading a charmed life. Jennifer Hart regularly shared idyllic snapshots of the siblings playing with chickens, attending music festivals, roadtripping to national parks, reading books in the woods. They posted photos on Facebook of their adventures: two white lesbian moms, clutching their six black children, often in matching outfits, with wide grins plastered across all of their faces.

Hart and her wife, Sarah, made it seem as if they had rescued their children from horrible abuse. In a 2014 article on a New Zealand-based website called Paper Trail, Jennifer Hart said her son Devonte was born with “drugs pumping through his tiny body.” At 4 years old, Hart told the website, “he had smoked, consumed alcohol, handled guns, been shot at, and suffered severe abuse and neglect.” He had known few words besides curse words, was violent, and had disabilities, she said.

When the Hart family moved to a suburb of Portland, Oregon, in 2013, Devonte became a notable local fixture for the “Free Hugs” sign he would tote along to protests and festivals. In 2014, a photo of Devonte tearfully hugging a cop at Portland’s Black Lives Matter protest went viral. “People always tell us how lucky he is that we adopted him,” Hart told the New Zealand website two weeks before Devonte’s viral photo was taken. “I tell you, we most certainly are the lucky ones. Yes indeed, he is living proof that our past does not dictate our future.”

Still, there were early signs that the life the kids were leading was far from picture-perfect. In 2008, when the Harts were living in Alexandria, Minnesota, a teacher noticed a large bruise on Hannah, then 6, and reported it. Hannah told authorities that her mother had hit her with a belt; the Harts said the child had fallen down the stairs, and no charges were filed. Several months later, in February 2009, Devonte and his siblings were formally adopted into the family. In 2010, teachers saw bruises on 6-year-old Abigail. Although she told authorities that Jennifer Hart had hit her, Sarah pleaded guilty to misdemeanor domestic assault. She admitted at the time that she “let her anger get out of control” in disciplining the child, according a police report. But the children remained with the two women, who removed them from public school after the incident.

Later, after the family had relocated to Oregon, friends of Jennifer and Sarah noticed they were extremely restrictive with the children’s food; one reported the couple to authorities there. Portland child welfare workers opened an investigation and found the children were so small that five of them weren’t even on growth charts for their age groups, according to public records obtained by the Oregonian. In Washington, neighbors grew concerned when Devonte showed up begging for food “a dozen times.”

Each time a concerned person reached out or investigated, Jennifer and her wife had an explanation: It was the kids’ traumatic childhoods before they were adopted that led to their strange behavior and eating habits, the Harts insisted. A Minnesota child welfare worker explained the phenomenon in documents released by the Oregon Department of Human Services: “The problem is, ‘these women look normal’ and the[y] give professionals the information about all the children being adopted because they are high needs, and have mental health issues related to food, then people tend to assign the problems to the children,” she said. After each investigation, the Harts were allowed to keep the kids.

But abuse allegations followed the Harts to their two-acre property in Woodland, Washington, where Child Protective Services (CPS) did a welfare check in late March this year, and arrived to an empty house. Their SUV would be discovered on March 26, along with Jennifer and Sarah Hart and three of their children, all dead. Ciara (who was renamed Sierra by the Harts) would later be found in the ocean and identified. Devonte and Hannah remain missing.

Members of Devonte, Jeremiah, and Ciara’s family say none of this should have happened, and not just because of the abuse the children apparently suffered at the hands of their adoptive parents. They describe an earlier tragedy inflicted by a juvenile court in Harris County, Texas.  

A forgotten family

The picture of Devonte, Jeremiah, and Ciara’s early childhood that the Harts painted so clearly—Devonte smoking and being shot at, for instance—doesn’t square with their family’s memories of the children. “Please. I heard all about that, just lying. That stuff they just made up,” Davis said.

She has her own memories. “Devonte was real smart—always quiet, observing, watching,” Davis recalled. While the oldest, Dontay, would rough-house with Jeremiah, Devonte (or Baby D as his mother called him) would sit quietly and watch “Dora the Explorer,” his favorite show.

But Davis battled with drug use. Court documents call her “a long-time crack-cocaine abuser,” and she lost two families over the course of her life. Her first three children were removed from her care in the 1980s and her parental rights were terminated. Court documents note that one of her older children had multiple bone fractures when he was removed from her care.  

She then lost custody of her youngest children upon Jeremiah’s birth in 2004, when she was found to have cocaine in her system. Devonte, Jeremiah, and their older brother Dontay went to live with Nathaniel Davis, their mother’s longtime boyfriend, although he’s not biologically related to any of the children. When Ciara (whose name is spelled Ciera in court documents) was born in 2005, she briefly joined them in his care.

Devonte and Jeremiah in an undated family photograph.

Nathaniel Davis keeps a framed portrait in his apartment of himself holding Ciara in his lap. He brings out a bag of photos; in one, Devonte and Jeremiah play with toy trucks, Devonte’s big eyes focused on the camera. “They called me Dad,” he said, his eyes brimming with tears. They lived with him in his apartment, and he set up bunk beds in their room. He doesn’t remember them ever using the bunks, though—they preferred to sleep with him, all four piled in his bed. He was devastated when he lost the kids in 2006, after he says CPS caseworkers had reason to believe the kids were being left alone with Sherry, something Nathaniel denies.

They were sent to live with their paternal aunt, Priscilla Celestine (her brother—Jeremiah and Ciara’s father—was in and out of jail and never obtained custody). The kids all loved to play hide-and-seek with her, she remembers, and they scarfed down chicken nuggets and fish fry.

Priscilla has never forgiven herself for losing the children in December 2006. Employed as a receptionist in a hospital, Priscilla said she moved with her grown daughter and her granddaughter into a five-bedroom apartment so Davis’s children would have more room.

Sherry Davis and Clarence Celestine had agreed to terminate their parental rights. Both say they were told by Clarence’s lawyer at the time, Shonda Jones, that if they terminated their rights, Priscilla would have a better chance at adopting the kids. But that meant they weren’t allowed to contact the children.

She told them, ‘Kiss your mama.’ That was the last time I saw them.Sherry Davis, mother

Davis couldn’t follow that rule. She said she was fixing their dinner at Priscilla’s when a CPS caseworker came by unannounced; Priscilla was not home. The caseworker told Davis to dress the children, who were crying, Davis recalled, and then took them with her on the spot. “She told them, ‘Kiss your mama,’” Davis said. “That was the last time I saw them.”

After the children were removed that day, the family would pool together about $3,000 to appeal the decision and for Priscilla to petition to adopt the four kids; both efforts failed. But by the time Priscilla’s case was finally decided by an appeals court in July 2010, the children had already been adopted by the Harts for more than a year.

Sherry Davis says she had gone through the drug program that was required by authorities after she’d lost custody of the children and remained clean until she heard the news that the kids would be adopted by a couple in Minnesota. “I gave up,” she said, adding that she continued to use cocaine for a year before getting clean eight years ago.

“There are times when kids need to be taken away from their parents, and in this instance, with Sherry, they needed to be,” Jones said. “But I really feel Priscilla was a safe place for them.” While the public will never know every detail in the case files, Jones and other attorneys say what happened in this case fits a broader pattern among child welfare cases in Houston of rushed adoptions, often to the detriment of family members.

“You have people here, loved ones, to take them in, and you take them away,” Priscilla said. “Snatching people’s children for nothing—for their rules. I was looking for a little more mercy from them.”

In 2014, Nathaniel Davis got custody of Dontay, the three children’s older sibling, who was living in a boys home and was not adopted by the Harts. Dontay was arrested for a robbery in October 2015; he’s serving three years in the Lewis Unit, a prison in Woodville, Texas. When he was sent there, Nathaniel said he told Dontay, “‘When you get out, we are going to get on the internet and find your brothers and sister.’ I said, ‘Before I die, I’m going to get all of us together’—intending to do that.”

“Some kids, when they [are] grown, come back and say, ‘Why didn’t you fight for us?’” he added. “And I swear I did. We all did.”

A ‘pay-to-play system’

Each time a CPS case is heard in the Harris County juvenile courts, the bench is crowded with attorneys, most of whom are appointed by the courts. An ad litem attorney is appointed to argue for the child’s wishes. Another attorney represents CPS, and another (or several, depending on the case) represents the parents. Since many parents can’t afford private attorneys, their attorneys are often appointed as well.

For a child to be adopted in Texas, parental rights must be terminated and all legal parties “must agree on moving forward with an adoptive family to make sure the family is the best fit for the child,” Texas CPS spokesperson Tejal Patel said in an email. “A judge must sign off on the adoption as well.”

Because Texas seals its CPS and adoption records, it’s unclear which Harris County judge signed the order for Devonte, Jeremiah, and Ciara’s adoptions by the Harts, but the 313th Judicial District Court oversaw at least two cases involving the children. The presiding judge for that court was Patrick Shelton. As the head of the 313th, Shelton appointed and oversaw an associate judge, Robert Molder, and set the tone and the pace of the court.

Shelton signed the order to terminate the children’s biological parents’ rights in 2006. And Molder ruled on the aunt’s petition for adoption in 2008; a panel of judges ruled on her appeal.

Priscilla Celestine and Ciara in an undated family photograph.

The 313th Judicial District Court is one of three juvenile courts that handle the majority of CPS cases in Harris County; the 314th and 315th Judicial District Courts also serve this purpose. And the 313th and 314th have engaged in practices that have been criticized as questionable at best. The 313th first came under public scrutiny in the late 1990s, when the Houston Press reported that Shelton had a habit of appointing attorneys who had donated to his political campaigns to represent children in CPS and juvenile delinquency cases. Under a 2001 law called the Texas Fair Defense Act, attorneys who are appointed are supposed to be chosen at random from a list of qualified people, but until 2011, that law allowed for judges to develop their own appointment plans.

In 1998, the Houston Press ran a short column about Shelton butting heads with Texas Protective and Regulatory Services, now known as the Texas Department of Family and Protective Services, for appointing attorneys to monitor CPS workers in an effort to speed up adoptions. The child welfare agency accused him of trying to line the pockets of his favored attorneys. Shelton argued at the time that he simply wanted to speed up adoptions so children wouldn’t languish in foster care.

The next year, the same paper reported that Shelton had criticized the English skills of a mother of Mexican descent and was “running a budget legal service” out of his courtroom by asking families, some of whom qualified for free legal representation, to come to court with $150 to get matched with one of the judge’s favored attorneys.

“Anybody who speaks to you at any length about Shelton will tell you the man is obsessed with efficiency, with speed,” Elmer Bailey, who was Harris County’s juvenile probation director, told the Houston Press at the time. “Instead of resetting the case, as other judges do, he says, ‘Well, we’re going to hear the case. I’ll get you an attorney, we’re gonna get you in the court, off the docket, no more missed time, no more fooling around, we’re going to do disposition, and we’ll just work this attorney money out in this variety of ways.’”

Judge Shelton disputed the accusations. “I don’t choose who shows up in court. Any attorney who has a license can practice in the court,” he said in the 1999 article. “If somebody shows up in court and tells me they want to do a court appointment, we consider everybody. It is not a closed show.”

If the court wanted to adopt a kid out but you objected to it, you’re slowing it down, you’re the obstructionist.JoAnne Musick, Assistant District Attorney

Yet the allegations against him persisted. A 2008 report in the Houston Chronicle noted that more than 90 percent of Shelton’s campaign contributions between 2005 and 2008, as well as those to Judge John Phillips in the 314th Judicial District Court, came from attorneys they appointed. “There was very much a pay-to-play system,” Assistant District Attorney JoAnne Musick, who was assigned to Shelton’s court as a prosecutor in the late ’90s and early 2000s, told The Appeal. “If you didn’t work your cases out fast enough or get the solution the court wanted—if the court wanted to adopt a kid out but you objected to it, you’re slowing it down, you’re the obstructionist. Rather than look at it like the attorney may be doing their job and the placement might not be appropriate.”

Two Houston Chronicle columns that focused on cases Shelton heard right before he left the bench in 2010 described situations that were strikingly similar to Priscilla’s failed adoption attempt. In one, the aunt and uncle of a 14-year-old girl who had twins were trying to adopt their niece and her babies. Shelton was in the process of fast-tracking an adoption of the twins to foster parents amid protests from their family members before a Texas state senator stepped in. The second case involved a mentally disabled girl and her baby; her aunt and uncle also wanted to adopt both their niece and her child, but weren’t even given a home study before Shelton approved the adoption of the baby by foster parents.

“They think they are doing a service,” said Shonda Jones, Priscilla’s lawyer. “People become desensitized, it becomes like an assembly line, but you get this feeling that they think, ‘You shouldn’t have had any of these kids.’

Nathaniel Davis holds a picture of himself with Ciara.
Credit: Roxanna Asgarian

Robert Molder, who is now retired, declined to comment on the case. When reached by phone, Patrick Shelton, also retired, called the allegations regarding his appointments “totally inaccurate.” He said he didn’t remember Davis’s children specifically. “We had hundreds of adoptions done in every court that deals with these cases,” he told The Appeal. But he was aware of some details of the Harts’ alleged abuse and their deaths, and spoke about some of the decisions made in the case.

Shelton said that CPS no doubt tried to place the children locally, and then in-state, before pursuing out-of-state adoption. “There are a number of children that are posted on a nationwide network, particularly if there are groups of children, that’s sometimes what it takes,” Shelton said. “Minnesota has been very helpful overall in providing folks who have an interest in adoptions.”

As for how the Harts were allowed to adopt Devonte, Jeremiah, and Ciara after an allegation of abuse had already been made against them, Shelton said that the lack of criminal charges in that case would most likely have made it pass under the radar of officials in Texas. “I guess that’s the equivalent of cases that are unsubstantiated. Unless there’s a criminal charge, what can you do?” Shelton said. “Believe it or not, kids get bruises that do not get beat.”

Shelton denies reports that he, or his associate judge, favored nonrelative adoptions over placements with family members. “You’re trying to say, wait a second, you’ve got to have perfect crystal-ball knowledge of how somebody’s gonna fare in Minnesota and second-guess yourself on everything you did,” Shelton said, his voice agitated. “We have been disappointed by so many relatives before, that act like kids are the property of the parents, and they’ll say what they need to say just to get the kids back to the parent … and it’s not just the parent, it’s whoever else in their life, typically a crummy boyfriend, especially when drugs are on the scene.”

New rules, ‘same incestuous house’

In 2015, the Texas legislature passed a law aimed at reforming the free-rein system of ad litem appointments throughout Texas. SB 1876 requires judges to appoint attorneys using a randomized wheel system. State Senator Judith Zaffirini, of Laredo, said she introduced the bill in response to actions by former Webb County Court at Law Judge Jesus Garza, who was later indicted for soliciting a $3,000 loan from an attorney in exchange for appointing her to represent a wealthy client in an estate dispute. The charge was dropped with the condition of Garza’s resignation from the Texas bar. But while Garza’s situation was especially disturbing, there was troubling behavior statewide, Zaffirini said. “The more we looked at it, the bigger the problem seemed to be.”

Although the laws have changed, some aspects of the Harris County District Courts have stayed the same. Shelton is gone, but he’s been replaced by another player in the parental rights termination case that led to Devonte, Jeremiah, and Ciara’s adoption by the Hart couple. Glenn Devlin, an attorney at the time, was appointed to search for two of the children’s fathers, and is now the presiding judge of the 313th District court. Devlin was also the former law partner and campaign treasurer of the sitting judge in the next court, John Phillips of the 314th, and reportedly an old favorite of Shelton’s for appointments.

In 1999, the Houston Press reported that Devlin gave $9,990 in contributions to Shelton’s campaign in less than a year between 1997 and 1998, and received $42,008 for 456 case appointments in Shelton’s court over that same period. “It’s still the same incestuous house,” says Musick, the assistant district attorney, noting that many of the same attorneys and judges are still trying and hearing CPS cases. “The practices have somewhat changed because they’ve been exposed. But it’s still involving the same people.”

Julie Ketterman, an attorney who has represented parents in Harris County CPS cases for nearly two decades, says although the wheel system was meant to reform the courts, some problems persist. Ketterman said, in her experience, court-appointed lawyers often don’t fight for their clients. “They’ll have 15-minute trials where parents’ rights are getting terminated and you see a young mom who walks out and doesn’t even know what happened,” she said.

Multiple calls and emails to the court manager of the Harris County Juvenile Courts, whose duties include maintaining the current system for appointing attorneys, were unanswered. But even if these practices ultimately improve, the reforms will come too late for Devonte, Jeremiah, and Ciara, and for countless other children who were shuffled through the courts. “These are lives, these are families,” Ketterman said. “They do what they want to do; kids are separated from moms and dads and grandparents forever.”

More in Podcasts