When the city of Toledo temporarily lost access to clean drinking water several years ago after a bloom of toxic algae, the Environmental Protection Agency sent scientists from its Office of Research and Development to study health effects and formulate solutions.
The same office was on the front lines of the Flint water crisis and was a critical presence in handling medical waste from the U.S. Ebola cases in 2014.
Thomas Burke, who directed ORD during the last two years of the Obama administration and was the agency’s science adviser, calls the office the nation’s “scientific backstop in emergencies.”
President Trump’s 2018 budget would slash ORD’s funding in half as part of an overall goal to cut the EPA’s budget by 31 percent.
A statement from EPA Administrator Scott Pruitt did not directly address the cuts to ORD, but offered broad defense of the proposed agency budget, saying it “respects the American taxpayer” and “supports EPA’s highest priorities with federal funding for priority work in infrastructure, air and water quality, and ensuring the safety of chemicals in the marketplace.”
ORD has no regulatory authority, but it conducts the bulk of the research that underlies EPA policies. ORD scientists are involved in “virtually every major environmental challenge the nation has,” Burke said. Diminishing the role and input of the office, he said, risked leaving the country “uninformed about risks and public health.”
“In time, you’re flying blind,” he said. “Everything becomes a mystery.”
Trump’s budget, released Tuesday, reflects the president’s wish list. The numbers likely will change by the time it goes through the congressional appropriations process, but the proposed cuts are consistent with the administration’s push against environmental regulation and scientific funding. Many of the cuts fall on agencies involved with climate change research, including the EPA, the National Oceanic and Atmospheric Administration, the National Science Foundation and the Department of Energy.
Mick Mulvaney, director of the White House Office of Management and Budget, told reporters in a Tuesday briefing that the budget reduces climate science funding without eliminating it.
“Do we target it? Sure,” Mulvaney said in response to a reporter’s question. “Do a lot of the EPA reductions aim at reducing the focus on climate science? Yes. Does it mean that we are anti-science? Absolutely not. We’re simply trying to get things back in order to where we can look at the folks who pay the taxes, and say, look, yeah, we want to do some climate science, but we’re not going to do some of the crazy stuff the previous administration did.”
Much of the EPA’s climate research takes place in the Office of Air and Radiation, which is separate from ORD. But ORD studies the strategic, long-term effects of climate change, including the effects on agriculture and the oceans, Burke said.
Christine Todd Whitman, a former EPA administrator who worked for George W. Bush from 2001 to June 2003, said the proposed ORD cuts are more drastic than anything she can remember.
Whitman said she expects Congress will restore much of the funding, but she worries about the message behind the budget.
“A budget to me was always a policy document,” she said. Regardless of what Congress does, this administration’s policy “indicates to me [that] they’ll be looking for other ways to … stifle the research and slow it down,” she said.
OMB and the EPA did not return requests for comment about the ORD cuts.
ORD is one of several EPA programs listed under a section of the budget called “2018 major savings and reforms.” The others include EPA enforcement (24 percent cut); Superfund, which cleans up toxic waste sites (30 percent); categorical state grants (45 percent); and funding for watershed protection, energy efficiency and voluntary climate programs, which would be eliminated.
The budget states the ORD reductions would allow the EPA to “focus on core Agency responsibilities … At lower funding levels for the Office of Research and Development, the Agency would prioritize intramural research activities that are either related to statutory requirements or that support basic and early stage research and development activities in the environmental and human health sciences.”
Whitman and Burke said ORD already does that — and halving the budget would make it virtually impossible to meet EPA’s regulatory mandate.
ORD is “the backbone of the scientific research that goes on,” Whitman said. “Every regulation promulgated by EPA is based in science.”
Andrew Rosenberg, director of the Center for Science and Democracy at the Union of Concerned Scientists, said he worries Congress will use the budget to justify serious but less drastic cuts to the agency. This administration’s philosophy seems to be “if you don’t measure it, you don’t have to be held accountable for it.”
ORD also helps regional EPA offices. Michael Mikulka, president of AFGE Local 704, a union representing scientists, engineers and attorneys at EPA’s Region 5 office (in the Great Lakes area), said he relies on ORD’s Cincinnati lab for advice on toxic waste cleanup. “If their staff is cut significantly, there would be less people to advise us.”
Burke said ORD was always going to be a target. The office came under fire from environmentalists in 2015 when it released a draft study that said hydraulic fracturing had no “widespread, systemic impacts” on drinking water. After considering comments from the EPA’s independent Science Advisory Board, the report authors reversed their findings, concluding there was insufficient evidence to support their previous statement. This time, the report was widely criticized by the oil and gas industry.
ORD is also home to the IRIS (Integrated Risk Information System) program that sets exposure guidelines for chemicals. The program has been criticized for dragging its feet and bowing to the interests of the chemical industry.
Will the National Institute of Environmental Health Sciences’ work on the effects of pesticides, chemicals and cancer-causing compounds be undamaged by the new administration? Read the story.
“I’m very concerned the IRIS program will be zeroed out,” Burke said. “There’s an endless challenge by polluters to delay the science.”
But aside from a few high-profile issues, much of ORD’s work takes place under the radar. The office has laboratories all over the country, working on air pollution, ocean acidification and vehicle emissions.
One of ORD’s lesser-known responsibilities is dealing with homeland security. “God forbid, if we have to clean up a water supply after a terrorist activity, it [would be] in this office,” Burke said.
Whitman said the EPA was tasked with cleaning up the Hart Senate Office Building in 2001 after then-Sen. Tom Daschle received an envelope containing anthrax powder. Whitman remembers asking the Centers for Disease Control and Prevention for a safe standard of anthrax exposure. The CDC didn’t know, she said, so ORD did the research and set it at zero.
“These are the kinds of things you lose” when you de-fund the “national nerve center of the science challenges facing not just the EPA, but all the states and all the communities,” Burke said.
Help us investigate: If you have experience with or information about the EPA or other environmental agencies, email lisa.song@propublica.org. Here’s how to send tips and documents to ProPublica securely.
The knifing happened the night of May 2, just inside the “smoking room” at Oceanview Manor, home to dozens of mentally ill adults in Coney Island, Brooklyn. A dispute between two residents had ended with one slashed on the neck and hand. Police officers, regulars at the address off Surf Avenue, soon arrived. The victim was taken to a hospital; the assailant was questioned, and he gave up the knife. No one was arrested.
Emergency responders were back at Oceanview Manor at least five times over the following week. On May 11, the city’s coroners were required when a man was discovered dead in Room 406. The arrival of the medical personnel set off a mix of curiosity and bickering among the home’s residents, some of whom did not like having the weekly movie interrupted. It took several hours before the resident was taken out in a body bag, but information about the death was scarce.
Three days later, shortly after dawn on Mother’s Day, Diane Jenkins, 57, was dead, as well. She had been at the home for just two weeks. Residents barely knew her. None knew how she’d died.
Homes such as Oceanview have been the subject of scandal and promised reform for years. Newspaper exposes and a federal lawsuit nearly two decades ago revealed that the homes, once envisioned as humane alternatives to New York’s troubled psychiatric hospitals, had effectively devolved into places of neglect and misery.
Conditions in some of the largest homes were unsanitary and dangerous. Residents were often exploited by the owners of the for-profit homes as well as by a variety of unscrupulous medical providers eager to bilk government health care programs. People incapable of giving their consent were forced into needless surgery. Podiatrists billed hundreds of thousands of dollars for doing little more than trimming toenails.
At last, in 2014, a federal judge in Brooklyn signed off on a plan that required New York state to improve the fortunes of adult home residents by moving thousands of them into supportive housing better integrated into the city’s neighborhoods. As well, limits were set on how many mentally ill people could stay in the remaining homes, an attempt to prevent the owners from simply repopulating the facilities with fresh residents consigned to the same conditions.
Today, Oceanview has taken on a distinctive role in the latest act of the legal saga surrounding the adult homes. Lawyers for the adult home industry have sued the state on behalf of a single former resident at Oceanview, a man who had taken advantage of the judge’s plan and moved into alternative housing, but who the lawyers say now wants to return. The man missed his friends and the conveniences of the Coney Island neighborhood, the lawyers argue. The lawyers succeeded in persuading a state judge to temporarily suspend the regulations the state had adopted as part of the federal case, including those governing how many mentally ill adults can reside in the homes at any time.
The federal judge, Nicholas Garaufis, did not react well to the industry’s lawsuit. At a hearing earlier this year, Garaufis portrayed the action as a ruse meant to more broadly challenge the regulations governing the operations of the homes that had been adopted by the state as part of his court-ordered settlement.
Lawyers for the homes have insisted they are interested only in gaining the single resident, identified only as John Doe, a return to the home he has come to miss.
The lawyers, who represent both the industry and the single former resident, filed an affidavit signed by John Doe as part of the lawsuit. He was 63 and suffered from a serious mental illness, the man said in the affidavit. He missed the hot meals at Oceanview and the ability to play basketball at a park nearby. He longed for the sense of security and community he enjoyed at Oceanview, he said.
“I desperately want to move back to Oceanview,” he said in the affidavit.
Online, Oceanview Manor is advertised something of an urban paradise. (Hilary Swift for ProPublica)
A ProPublica reporter spent parts of the last several weeks in and around Oceanview — meeting residents, talking with workers, interviewing police officers who respond to emergencies there. The facility, a five-story structure capable of housing 176 residents, sits in a largely desolate corner of Coney Island. To the right of the facility is a defunct employment agency. To its left is a fenced-off lot, crammed bumper-to-bumper with school buses. On the street out front, three large dumpsters double as bathrooms for residents who shuffle in and out of the home day and night, smoking cigarettes and drinking malt liquor.
Many residents appeared both ill and unkempt. The police ungently likened them to zombies. They beg for change. They eat from garbage cans. The staff, for their part, often appeared overmatched, treating residents with pity or hostility. One worker said she regularly got high to get through her shift.
Fire Department records obtained by ProPublica show roughly 130 calls from the home to firefighters or Emergency Medical Services in the last year. One such call required an “all-hands” response from the nearby stationhouse. The fire was listed as a suspected arson. Police officers told ProPublica they are called as often as two or three times a day, usually to escort residents to nearby psychiatric wards during a crisis.
Yet Oceanview, far from downsizing in the face of the state’s regulations, is actually expanding. Construction is underway, with a new section of the home being installed. The home, it turns out, is now taking in increasing numbers of residents who are not seriously mentally ill, but rather old and infirm, who get extra help through a state assisted living program. Several of the residents there under the assisted living program told ProPublica they had no idea they were entering a home that housed large numbers of the mentally ill. The state and federal government split the $1234-a-month rent for both sets of residents. Additional services are typically billed to Medicaid at a profit to the homes, according to critics.
Weeks ago, ProPublica filed a freedom of information request with the New York State Department of Health for recent inspection reports on Oceanview and other homes. The state has so far not produced the records. We also submitted questions concerning John Doe’s request to return and the residents at the home as part of the state’s assisted living program. We also asked if Oceanview had reported the recent deaths at the home as regulations require.
On Tuesday, a spokesman for the department sent a statement, but did not answer our questions. He cited “pending litigation” as one reason for the limited response.
“New York State has comprehensive regulations which prioritize the welfare of adult home residents,” the state said. “The Department of Health enforces these regulations, requires operators to implement plans of correction when noncompliance is identified, and assesses monetary penalties when necessary. As we have previously stated, the Department remains fully committed to both adult home residents and the terms of the settlement agreement.”
Oceanview, a for-profit operation, is owned and overseen by Lisa Vider. Documents and interviews indicate she inherited it from a relative named Joseph Rosenfeld, who died in 2009. The adult homes are typically owned by families or individuals, not by major chains, and they subsist on state and federal dollars.
Vider would not be interviewed when we called for comment. “Talk to my lawyer,” she said before hanging up.
Jeffrey Sherrin, a lawyer who has long represented the state’s adult homes, including Oceanview, said in an email that the residents who had died in recent weeks had died from natural causes.
“Oceanview has an elderly, sick population of people with complex medical and mental health conditions who generally have moved into the Home because they could not survive or cope in other living settings,” he said.
Sherrin would not answer more detailed questions about Oceanview’s operations or the case of John Doe, but he said comparing the current state of the homes with the scandalous conditions of years ago was false and unfair. He denied anyone had been stabbed at the home in recent weeks, despite police interviews and records that confirm the incident.
David Vargas, 56, is one of the forceful presences at Oceanview. He said he came to the home three years ago through a desperate combination of workplace injury, subsequent unemployment and naivete. When he could no longer afford his rent, he lost his apartment and landed in a nursing home, where he said he was then recruited by a contractor hired by Oceanview management to bring in new tenants.
His fellow residents refer to Vargas as their mayor or president, some with genuine respect, some with grumbling scorn. He sells them cigarettes and cigars. One recent morning he said he was owed $600. He keeps a ledger in a tattered notebook to track debts he is owed. He also keeps a pair of handcuffs dangling from his walker.
“It’s for intimidation,” he said.
Throughout the years of scandal and litigation, many of the owners of the largest adult homes insisted they had been unfairly demonized. They claimed they had done the best they could to provide what the law required: room, board, housekeeping, supervision and personal care for their residents. Any shortcomings, they argued, were largely attributable to inadequate financial support from the government agencies overseeing them.
Judge Garaufis was never persuaded, and he ultimately held both the industry and its state overseers at the New York Department of Health responsible for the troubled state of the homes. In 2014, he established a formula for aggressively moving roughly 4,000 residents into more suitable living arrangements. The Department of Health had to make sure residents were assessed, and that those who wanted to move got relocated.
Oceanview is expanding to house more residents, some of them under a state assisted living program. (Hilary Swift for ProPublica)
As part of the settlement, the state also adopted new regulations governing the homes. Those regulations contained two crucial requirements: One, that homes with 80 or more residents — at least a quarter of whom have some form of mental illness — not accept more residents with mental illness; two, that psychiatric hospitals not discharge patients to homes where at least 25 percent of residents are mentally ill. The regulations, to be sure, represented a threat to the financial model for the homes, many of which had come to house the mentally ill all but exclusively.
John Doe’s stated desire to return to Oceanview Manor gave the industry an opportunity to challenge those regulations. He said he had been relocated, but did not like the various new apartments he was sent to live in. The conditions were not great. He didn’t know anyone. He felt at risk.
And so in November 2016, Jeffrey Sherrin, a lawyer who has represented the adult home industry for decades, filed a lawsuit in state court in Albany, the state capital and home to the Department of Health. The lawsuit paints a fairly rosy portrait of Oceanview and homes like it, noting that they are tightly regulated by the Department of Health; that they provide meals that “meet strict nutritional guidelines,” and that they provide a variety of services to residents, including medication and recreational activities.
“I miss the support and services I received at Oceanview,” Doe said in a sworn affidavit filed as part of the lawsuit. “I cannot cook for myself and I have difficulty with cleaning my apartment and doing my laundry. I did not live like this when I used to live at Oceanview because they provided me with hot, good meals.”
The lawsuit faulted the regulations limiting the number of mentally ill residents at the adult homes for preventing John Doe from returning to Oceanview.
“Due to these new regulations, adult homes are being forced to deny people like petitioner with a mental illness access to the housing and services of adult homes,” it said.
The lawsuit sought to void the regulations. In a move that would enrage Garaufis, the state consented — failing to mention the federal settlement or to inform him.
At a hearing in his courtroom in March, Garafus lit into the industry and the state. He accused them of scheming to subvert his order to move residents out of the homes, noting that the state is woefully behind on its deadlines. He called a hearing on March 22, requiring the presence of the commissioner of health, the commissioner of mental health and the counsel to Gov. Andrew Cuomo. He castigated the lot of them: “I will not allow the kind of political, legal activity that is going on in this case behind my back and behind the backs of the plaintiffs to continue,” he said.
State lawyers scrambled to explain themselves. They said they never meant the Albany judge’s order staying the regulations to go beyond the case of the single man wishing to return to Oceanview.
In the weeks since, the state has promised to ask the Albany judge to lift her suspension of the regulations, and John Doe appears to be reconsidering his request to return to Oceanview.
But Sherrin, the lawyer for the industry, has pledged to continue to challenge the regulations in court. Last week, at a hearing before Garaufis, Sherrin filed a motion seeking to have the judge recuse himself, citing the judge’s wife’s work for a mental health advocacy organization. Garaufis said he’d long ago disclosed his wife’s work.
“I’m not my wife,” Garaufis said. “I do what I think is right. I follow the Constitution as I am sworn to do.”
Garaufis then suggested Sherrin may have his own ethical issues. He pointed out that Sherrin had somehow come to represent both adult home operators and adult home residents, parties whose interests may conflict. He asked Sherrin to comment on that in forthcoming papers.
Sherrin would not answer questions as he walked out of the courtroom.
A woman sits in front of Oceanview Manor, where dumpsters often serve as toilets. (Hilary Swift for ProPublica)
Online, Oceanview advertises itself as something of an urban paradise.
“Only steps away from the Coney Island famous boardwalk and beaches,” boasted one such ad on the nursing home website Caring.com. “Oceanview has beautiful ocean views that provide a calm and relaxing environment to all those who reside there.”
The first and only review of Oceanview on that same website offered a different perspective: “It was filthy, the people living there were unkept, dirty,” the review said. “The staff just sits around doing nothing. The nurses and receptionist were very rude. I would never put my love (sic) one there.”
Google reviews were worse: “They might have killed nana,” said one from eight months ago.
Another, from 11 months ago, looked to be from a resident: “Everything is terrible. Here.”
“I live here,” said another, a year old. “Staff sucks food sucks everything sucks.”
On a Tuesday afternoon in early May, ProPublica spoke with a group of residents outside the plywood-roofed vestibule that serves as an entrance of the home. Some of the residents were clearly impaired, capable of only grunts and mumblings. Others were quite coherent, and they rattled off an array of dark observations and complaints.
“Lots of people die here,” said one man.
“All they feed us is chicken,” said another. “Chicken, chicken, chicken. Never beef.”
They spoke of fights and of thievery. Of hostility from the aides and indifference from state inspectors.
The resident who seemed to have the best command of conditions at the home was Vargas, the unofficial mayor who said he had been recruited to Oceanview after he’d ended up in a nursing home. For his first six months at the home, he said, he never left his room.
“I hated everyone here,” he said. “I told the guy that brought me here, ‘If I see you in the street, I’m going to kick your ass.’”
David Vargas, 56, said about his arrival to Oceanview Manor, “The first day I got here I was freaked out. I was like, what is this, ‘The Walking Dead’?” (Hilary Swift for ProPublica)
But in time his hatred gave way to a kind of begrudging compassion. He felt sympathy toward his fellow residents. He said in time he began pushing both the management and the government to improve conditions at the home. He had been at Oceanview about a year when he became president of the home’s residential council — an internal group formed with the help of the nonprofit Coalition of Institutionalized Aged and Disabled.
Vargas said he had been to the statehouse in Albany with the organization and had repeatedly called the Department of Health to make complaints about the home concerning everything from the food to the way the home matches roommates with one another. He’d caught one of his roommates chopping up pills to snort off his bureau.
In November 2015, a toilet above him flooded and began leaking into his room. When he tried to get help, he said the home’s staff ignored him. Frustrated, he tried to find the administrator. When he went to her office, no one answered. So he kicked the door down. She wasn’t there, but it was captured on a surveillance tape and she sought to evict him.
Today, Vider, the administrator, has an order of protection against Vargas. Vargas and his lawyer said the administrator is retaliating against him for his advocacy.
As Vargas relayed his story, he was constantly interrupted by people nudging him to buy cigarettes.
“It’s how I can afford to eat out,” he said.
As he started to say how he sees people from the home regularly eating out of garbage cans, an elderly resident with dirty latex gloves tied to his belt loops rummaged through a nearby trash can. He pulled out a dented can of malt liquor, turned it upside down, and swallowed what was left of it.
Vargas said he gets a good deal on cartons of cigarettes at a nearby store, marks them up and sells them at a small profit to fellow residents. With his earnings, he said he can afford to order tacos and sandwiches from takeout restaurants nearby.
“I charge them nine dollars a pack if they pay upfront. Thirteen if they pay in a week.”
He pulled out a ledger he keeps in a tattered notebook, entering transactions so he can keep track of who owes him what with an inky black pen.
Vargas’ bestsellers are Cheyenne Cigars. They are a bargain at $3 a pack. A lit, brown Cheyenne seemed to dangle from the mouth of just about every resident that afternoon. Some of those without foraged for them, their heads bowed, scouring the pavement for salvageable butts.
He said his biggest paydays come on the first and third of each month.
Those are the days the residents get their monthly allowance of $195, left over from the monthly state and federal funding that goes to their rent. He said those with last names that fall in the first half of the alphabet get their money on the first, the second half on the third. Those that can’t handle that much money at once get $6 a day.
The first and third, consequently, can turn into big party nights at Oceanview.
“They go out and buy beer and come back and get wasted,” Vargas said. “It gets like a zoo in here.”
That night, a man in a bright orange shirt who spoke in grunts was stabbed by an old man with a walker. Vargas said the old man had been drinking and became infuriated when the much larger, younger man spat in his face after he refused to light his cigarette.
“It wasn’t the first time he has had to defend himself,” Vargas said.
While Vargas said he does not carry a weapon, he said he does carry handcuffs, which he decided to buy not long after he moved in. He lets them dangle from his walker or belt buckle.
“They see them, they think twice,” he said.
When the police came they took the victim to the hospital, obtained the knife and left.
“They’re sick of us,” Vargas said.
A resident stares out from a window at Oceanview on Coney Island. (Hilary Swift for ProPublica)
Nine days later, at about 8 p.m. on May 11, two lines formed in opposite directions between the smoking room and several rows of chairs facing a television inside the facility. One line was for juice and cookies; the other was for medication.
As the residents consumed one or the other or both, a man loaded vending machines with potato chips, popcorn and cheese doodles. A woman with open sores from her feet to her knees slouched in a wheelchair, behind the grease-stained door of the vending machine the man held open. Her head was shaved. Her mouth was agape. She was drooling. The man loading the machine ignored her.
That night, Vargas was sitting on his walker in the ground-floor entertainment room. He said he doesn’t actually need the walker, but he prefers to sit on it because he is certain all the seats in the room have been soiled by incontinent residents. He insists that any guest of his sit on a plastic bag.
A woman with white hair played dominoes and occasionally joined the conversation.
“Well, I’m a nasty bad ass bitch, that’s what I am,” she said, laughing. “Here, you learn to be different than you were on the outside.”
Thirty minutes later, a line of police officers, emergency medical responders and firemen filed into the home.
The woman with the white hair cried out and pointed at them. “This is a frequent occurrence!”
The woman with the open sores moaned loudly. No one checked on her.
“Shut the fuck up!” someone screamed.
The emergency responders were there to attend to a man who had died. When a reporter followed them up to the fourth floor, he was told by police to leave. But one officer walked down the hallway and hurriedly whispered the addresses of two other adult homes in the area.
“I’m glad you’re interested in this,” the officer said.
Talk to neighborhood beat officers about Oceanview Manor and they respond with the same knowing nod. One officer, standing in front of Big Sam’s bodega on a nearby corner, said, “Their families throw them in there. You know, they don’t have much money. Then they walk around here like zombies, begging for change. I think the people in the neighborhood are pretty used to it. No one complains much.”
The police, who did not want their names used because they were not authorized to speak publicly on the matter, readily acknowledged there wasn’t a whole lot they could do for troubled residents. Instead, they find themselves on a kind of carousel: Residents go off their medication. They have a psychotic episode. Police are called in. Police bring them to a nearby psychiatric ward, usually at Coney Island Hospital. Then the residents go back. Sometimes in hours, sometimes days. But they always seem to go back.
“It is what it is,” another officer said, shrugging his shoulders as he sat in his patrol car in front of Oceanview on a recent Sunday morning. “Beats driving around aimlessly.”
John Doe, in seeking to return to Oceanview, listed the appeal of the neighborhood, its conveniences and safety.
On Friday, May 12, however, one night after the death at Oceanview, two patrol officers responded to a confrontation blocks from Oceanview. A man was eventually put on the ground and searched, and a small handgun was recovered.
One of the officers, holding the gun up, and maybe thinking a reporter was a tourist, said, “This is what you get when you come to Coney Island.”
The Fire Department’s records reflect an enormous volume of runs to Oceanview. In January, the department responded to medical calls four days in a row.
In June of last year, the Fire Department was called in to address something referred to in the records as a “Brush Fire.” A week later, on July 1, the Fire Department was called in on the rare all-hands alarm. Fire alarms went off at least three more times in the next month.
Sherrin, the lawyer for Oceanview, said the issue of what he termed false alarms at the home were common “in every setting with a mental health population.”
He acknowledged the problem of police shuttling residents to and from local psychiatric facilities was real, but he said blame rested with a “system that doesn't allow the hospitals to keep people longer for observation or treatment.”
Sherrin said the homes are required by law to send residents to the hospital when there is a concern over their physical or mental health. He said that when the homes object to taking possibly dangerous residents back prematurely, advocates for the disabled sue the homes for denying their clients re-entry.
On Mother’s Day, Dionne Ward lost one of her few friends when resident Diane Jenkins died. (Hilary Swift for ProPublica)
On Mother’s Day, a slight, 82-year-old woman in a pink sweater named Dionne Ward emerged from the front door of Oceanview. She was worried.
“Every time I see an empty seat, I start worrying,” she said.
She was referring to her only friend at the home, 57-year-old Diane Jenkins, who had not taken her seat in the dining room at breakfast. The two of them usually faced each other in the cafeteria, their elbows resting on the floral-patterned plastic table cloths as they talked.
Oceanview is supposed to provide an assortment of services for the residents. The residents said a psychiatrist visits once a week, a psychologist three times; aides are responsible for as many as eight residents at any given time; a calendar lists dates for dominoes and movies.
In the days ProPublica spent at Oceanview, however, there was little evidence of supervision or organized activities. Some residents spoke of trips to the boardwalk or the amusement park, but described not much else in the way of care or companionship.
And so when Ward and Jenkins talked, they complained of the food, of boredom, of other residents. Jenkins was sure her roommates were stealing from her; Ward was sure the home had gotten her medication wrong. That she had been “drugged.”
In 2002, the New York Times examined a decade’s worth of deaths at adult homes. At 26 of the largest and most troubled homes in the city, the Times documented 946 deaths from 1995 through 2001. Of those, 326 were of people under 60, including 126 in their 20s, 30s and 40s. As the Times noted, some of the hundreds of deaths obviously resulted from natural causes and were unavoidable. Studies have found the mentally ill typically have shorter life expectancies than the general population, because they have difficulty caring for themselves and are more prone to health problems. Still, the Times analysis showed that some residents died roasting in their rooms during heat waves while others threw themselves from rooftops. Sometimes, residents, lacking the most basic care, perished from treatable ailments.
With Jenkins missing from breakfast on Mother’s Day, concern felt natural. It had only been about 72 hours since the man in Room 406 had died. His memory was now preserved by a photograph, his gap-toothed smile framed by a graying mustache, tacked to a wall behind the front desk.
Ward saw a police squad car was parked out front of the home. Vargas soon came out and said that police were on the third floor investigating a death. They were in Jenkins’ room.
Ward sighed.
“Oh. Oh no,” she said. “Now who will I talk to?”
Sherrin, the lawyer for Oceanview, said all deaths at the home are properly reported to the authorities, and that if there was any cause for concern, they would as a result be investigated. Sherrin did not respond to ProPublica’s request to see the home’s records of death reports to the authorities.
Ward, still pained by Jenkins’s passing, remembered their last conversation. A day or two prior, Jenkins had told her, sort of out of nowhere, “I don’t belong here.”
Ward remembered nodding in agreement.
“I know the feeling,” she said.
The body of Diane Jenkins, 57, is wheeled out of Oceanview Manor on Coney Island on Mother’s Day. (Hilary Swift for ProPublica)
In 2013, New York state announced an initiative to establish 4,500 assisted living beds within its already troubled adult homes. Oceanview was one of 18 New York City adult homes approved to participate. It started off with 116 in 2014, and Department of Health records now indicate it has 160 beds available to residents as part of the assisted living program.
Homes with an assisted living component are supposed to provide services ranging from the very basic, like room and board and common space, to the more advanced, like individualized plans of assistance, case management, and home health services.
“The philosophy of assisted living emphasizes personal dignity, autonomy, independence, privacy, and freedom of choice,” according to Department of Health documents. It was designed as an alternative to nursing homes that offer occupants less independence.
But advocates charge that the assisted living program is not much more than a financial boon for the adult home industry with few tangible benefits for residents.
“It presents an opportunity for the homes to make even greater profits,” said Jota Borgmann, a senior attorney for MFY Legal Services, which represents residents in a variety of litigation involving adult homes. She said the program affords maximum discretion to home administrators in determining a resident’s level of need. Under current rules, administrators can charge Medicaid as much as $128.69 extra per resident, per day.
A report done several years ago by the nonprofit Long Term Care Community Coalition laid out the risks:
“Because ALP providers were never required to meet standards beyond those of the traditional licensed adult homes (many of which provide scandalously poor conditions for their residents), consumers are at the mercy of individual providers as to whether or not their facility will provide (or not provide) the home-like environment, quality of life and choices that we consider to be the hallmarks of assisted living.”
Some advocates fear that adult homes are getting around the regulations governing their populations by simply categorizing mentally ill residents as assisted living residents, shifts the residents may not have the capacity to understand or approve.
In interviews, four residents who said they did not suffer from mental illness said they were brought to the home through some version of the assisted living program.
Vargas complained that he and others have aides pushed on them. Other residents told ProPublica that if they didn’t accept the help of an aide, they’d be thrown out of the home. All four said they were not informed prior to their arrival that they were entering homes that served the mentally ill.
“Nobody told me this place was mental,” Vargas said. “The first day I got here I was freaked out. I was like, what is this, ‘The Walking Dead’?”
Help us investigate: If you have experience with or information about adult homes in New York, email Joaquin.Sapien@propublica.org.
Related stories: For more coverage, read ProPublica’s previous reporting on the subject.
Earlier this month, a day after the House of Representatives passed a bill to repeal and replace major parts of the Affordable Care Act, Ashleigh Morley visited her congressman’s Facebook page to voice her dismay.
“Your vote yesterday was unthinkably irresponsible and does not begin to account for the thousands of constituents in your district who rely upon many of the services and provisions provided for them by the ACA,” Morley wrote on the page affiliated with the campaign of Rep. Peter King, R-N.Y. “You never had my vote and this confirms why.”
The next day, Morley said, her comment was deleted and she was blocked from commenting on or reacting to King’s posts. The same thing has happened to others critical of King’s positions on health care and other matters. King has deleted negative feedback and blocked critics from his Facebook page, several of his constituents say, sharing screenshots of comments that are no longer there.
“Having my voice and opinions shut down by the person who represents me — especially when my voice and opinion wasn’t vulgar and obscene — is frustrating, it’s disheartening, and I think it points to perhaps a larger problem with our representatives and maybe their priorities,” Morley said in an interview.
King’s office did not respond to requests for comment.
As Republican members of Congress seek to roll back the Affordable Care Act, commonly called Obamacare, and replace it with the American Health Care Act, they have adopted various strategies to influence and cope with public opinion, which polls show mostly opposes their plan. ProPublica, with our partners at Kaiser Health News, Stat and Vox, has been fact-checking members of Congress in this debate and we’ve found misstatements on both sides, though more by Republicans than Democrats. The Washington Post’s Fact Checker has similarly found misstatements by both sides.
Today, we’re back with more examples of how legislators are interacting with constituents about repealing Obamacare, whether online or in traditional correspondence. Their more controversial tactics seem to fall into three main categories: providing incorrect information, using euphemisms for the impact of their actions, and deleting comments critical of them. (Share your correspondence with members of Congress with us.)
Incorrect Information
Rep. Vicky Hartzler, R-Mo., sent a note to constituents this month explaining her vote in favor of the Republican bill. First, she outlined why she believes the ACA is not sustainable — namely, higher premiums and few choices. Then she said it was important to have a smooth transition from one system to another.
“This is why I supported the AHCA to follow through on our promise to have an immediate replacement ready to go should the ACA be repealed,” she wrote. “The AHCA keeps the ACA for the next three years then phases in a new approach to give people, states, and insurance markets plenty of time to make adjustments.”
Except that’s not true.
“There are quite a number of changes in the AHCA that take effect within the next three years,” wrote ACA expert Timothy Jost, an emeritus professor at Washington and Lee University School of Law, in an email to ProPublica.
The current law’s penalties on individuals who do not purchase insurance and on employers who do not offer it would be repealed retroactively to 2016, which could remove the incentive for some employers to offer coverage to their workers. Moreover, beginning in 2018, older people could be charged premiums up to five times more than younger people — up from three times under current law. The way in which premium tax credits would be calculated would change as well, benefiting younger people at the expense of older ones, Jost said.
“It is certainly not correct to say that everything stays the same for the next three years,” he wrote.
In an email, Hartzler spokesman Casey Harper replied, “I can see how this sentence in the letter could be misconstrued. It’s very important to the Congresswoman that we give clear, accurate information to her constituents. Thanks for pointing that out.”
Other lawmakers have similarly shared incorrect information after voting to repeal the ACA. Rep. Diane Black, R-Tenn., wrote in a May 19 email to a constituent that “in 16 of our counties, there are no plans available at all. This system is crumbling before our eyes and we cannot wait another year to act.”
Black was referring to the possibility that, in 16 Tennessee counties around Knoxville, there might not have been any insurance options in the ACA marketplace next year. However, 10 days earlier, before she sent her email, BlueCross BlueShield of Tennessee announced that it was willing to provide coverage in those counties and would work with the state Department of Commerce and Insurance “to set the right conditions that would allow our return.”
“We stand by our statement of the facts, and Congressman Black is working hard to repeal and replace Obamacare with a system that actually works for Tennessee families and individuals,” her deputy chief of staff Dean Thompson said in an email.
On the Democratic side, the Washington Post Fact Checker has called out representatives for saying the AHCA would consider rape or sexual assault as pre-existing conditions. The bill would not do that, although critics counter that any resulting mental health issues or sexually transmitted diseases could be considered existing illnesses.
Euphemisms
A number of lawmakers have posted information taken from talking points put out by the House Republican Conference that try to frame the changes in the Republican bill as kinder and gentler than most experts expect them to be.
An answer to one frequently asked question pushes back against criticism that the Republican bill would gut Medicaid, the federal-state health insurance program for the poor, and appears on the websites of Rep. Garret Graves, R-La., and others.
“Our plan responsibly unwinds Obamacare’s Medicaid expansion,” the answer says. “We freeze enrollment and allow natural turnover in the Medicaid program as beneficiaries see their life circumstances change. This strategy is both fiscally responsible and fair, ensuring we don’t pull the rug out on anyone while also ending the Obamacare expansion that unfairly prioritizes able-bodied working adults over the most vulnerable.”
That is highly misleading, experts say.
The Affordable Care Act allowed states to expand Medicaid eligibility to anyone who earned less than 138 percent of the federal poverty level, with the federal government picking up almost the entire tab. Thirty-one states and the District of Columbia opted to do so. As a result, the program now covers more than 74 million beneficiaries, nearly 17 million more than it did at the end of 2013.
The GOP health care bill would pare that back. Beginning in 2020, it would reduce the share the federal government pays for new enrollees in the Medicaid expansion to the rate it pays for other enrollees in the state, which is considerably less. Also in 2020, the legislation would cap the spending growth rate per Medicaid beneficiary. As a result, a Congressional Budget Office review released Wednesday estimates that millions of Americans would become uninsured.
Sara Rosenbaum, a professor of health law and policy at the Milken Institute School of Public Health at George Washington University, said the GOP’s characterization of its Medicaid plan is wrong on many levels. People naturally cycle on and off Medicaid, she said, often because of temporary events, not changing life circumstances — seasonal workers, for instance, may see their wages rise in summer months before falling back.
“A terrible blow to millions of poor people is recast as an easing off of benefits that really aren’t all that important, in a humane way,” she said.
Moreover, the GOP bill actually would speed up the “natural turnover” in the Medicaid program, said Diane Rowland, executive vice president of the Kaiser Family Foundation, a health care think tank. Under the ACA, states were only permitted to recheck enrollees’ eligibility for Medicaid once a year because cumbersome paperwork requirements have been shown to cause people to lose their coverage. The American Health Care Act would require these checks every six months — and even give states more money to conduct them.
Rowland also took issue with the GOP talking point that the expansion “unfairly prioritizes able-bodied working adults over the most vulnerable.” At a House Energy and Commerce Committee hearing earlier this year, GOP representatives maintained that the Medicaid expansion may be creating longer waits for home- and community-based programs for sick and disabled Medicaid patients needing long-term care, “putting care for some of the most vulnerable Americans at risk.”
“This is a complete misrepresentation of the facts,” Rosenbaum said.
Graves’ office said the information on his site came from the House Republican Conference. Emails to the conference’s press office were not returned.
The GOP talking points also play up a new Patient and State Stability Fund included in the AHCA, which is intended to defray the costs of covering people with expensive health conditions. “All told, $130 billion dollars would be made available to states to finance innovative programs to address their unique patient populations,” the information says. “This new stability fund ensures these programs have the necessary funding to protect patients while also giving states the ability to design insurance markets that will lower costs and increase choice.”
The fund was modeled after a program in Maine, called an invisible high-risk pool, which advocates say has kept premiums in check in the state. But Sen. Susan Collins, R-Maine, says the House bill’s stability fund wasn’t allocated enough money to keep premiums stable.
“In order to do the Maine model — which I've heard many House people say that is what they’re aiming for — it would take $15 billion in the first year and that is not in the House bill,” Collins told Politico. “There is actually $3 billion specifically designated for high-risk pools in the first year.”
Deleting Comments
Morley, 28, a branded content editor who lives in Seaford, New York, said she moved into Rep. King’s Long Island district shortly before the 2016 election. She said she did not vote for him and, like many others across the country, said the election results galvanized her into becoming more politically active.
Have you sent a letter in support, in opposition or asking questions about the ACA to your congressperson? Did you get a response? Share them with us.
Earlier this year, Morley found an online conversation among King’s constituents who said their critical comments were being deleted from his Facebook page. Because she doesn’t agree with King’s stances, she said she wanted to reserve her comment for an issue she felt strongly about.
A day after the House voted to repeal the ACA, Morley posted her thoughts. “I kind of felt that that was when I wanted to use my one comment, my one strike as it would be,” she said.
By noon the next day, it had been deleted and she had been blocked.
“I even wrote in my comment that you can block me but I’m still going to call your office,” Morley said in an interview.
Some negative comments about King remain on his Facebook page. But King’s critics say his deletions fit a broader pattern. He has declined to hold an in-person town hall meeting this year, saying, “to me all they do is just turn into a screaming session," according to CNN. He held a telephonic town hall meeting but only answered a small fraction of the questions submitted. And he met with Liuba Grechen Shirley, the founder of a local Democratic group in his district, but only after her group held a protest in front of his office that drew around 400 people.
“He’s not losing his health care,” Grechen Shirley said. “It doesn’t affect him. It’s a death sentence for many and he doesn’t even care enough to meet with his constituents.”
King’s deleted comments even caught the eye of Andy Slavitt, who until January was the acting administrator of the Centers for Medicare and Medicaid Services. Slavitt has been traveling the country pushing back against attempts to gut the ACA.
.@RepPeteKing, are you silencing your constituents who send you questions?
Assume ppl in district will respond if this is happening.
Since the election, other activists across the country who oppose the president’s agenda have posted online that they have been blocked from following their elected officials on Twitter or commenting on their Facebook pages because of critical statements they’ve made about the AHCA and other issues.
Have you corresponded with a member of Congress or senator about the Affordable Care Act? Or has your comment on an elected official’s Facebook page been deleted? We’d love to hear about it. Please fill out our short form or email charles.ornstein@propublica.org.
Immediately after indicting Genene Jones today for murder, the grand jury set a bond of $1 million. It is a sufficiently large amount that it likely guarantees Jones will remain in prison until the case comes to trial, even if that is not until after her scheduled release date of March 1, 2018.
SAN ANTONIO — Three decades ago, a young nurse named Genene Jones made international headlines as the suspected serial killer of more than a dozen infants in the pediatric intensive care unit at San Antonio’s charity hospital.
The story brought to life every parent’s worst nightmare: losing a child at the hands of a caregiver who took some sort of perverse thrill from the baby’s final moments.
Jones was ultimately convicted of a single charge of murder at a clinic in Kerrville, a nearby town. None of the parents who lost their children in San Antonio under suspicious circumstances had the solace of hearing a jury foreman intone “Guilty of murder in the first degree” in a trial involving their loved one. But they took comfort in knowing that Jones was serving a 99-year sentence and would remain behind bars for the rest of her life.
No more. A few years ago, it became clear that the state of Texas would be forced to release Jones in March 2018 because of an effort to reduce prison overcrowding that gave convicts outsized credit for good behavior. Hoping to keep Jones locked up, prosecutors launched a secret investigation to see if they could bring a new murder charge in one of the coldest cases imaginable.
On Thursday, that effort took a big step forward: A San Antonio grand jury indicted Jones, now 66, for murdering 11-month-old Joshua Sawyer on Dec. 12, 1981. Her alleged weapon: a massive overdose of the sedative drug Dilantin.
“It’s the right thing to do,” District Attorney Nicolas “Nico” LaHood told me. “This woman is evil. Her behavior shocks the conscience of anyone with a moral compass. Genene Jones is in a class by herself. This is doing what’s right. But it’s a 30-year-old case. It’s not going to be easy.”
Getting to this point wasn’t easy either: It involved a grizzled criminal investigator who wouldn’t give up; a young prosecutor who was shocked to hear about Jones for the first time; and a mom who clung to her dead child’s medical chart for three decades.
The prosecution is certain to face an array of legal challenges. In an interview before Thursday’s grand jury action, San Antonio attorney John Convery, president of the Texas Criminal Defense Lawyers Association, says the very idea of bringing a new murder charge in the decades-old case raises fundamental legal and fairness questions. (He spoke about the matter without knowing the DA planned to seek such an indictment.) “I’m not being critical of victims,” Convery says. “I’m completely understanding of their incredible loss. But that isn’t justice; it’s revenge.” Any such move, he says, would be “bringing a murder case to solve a parole problem.”
While the legal prospects for the case are uncertain, it’s clear that the prosecution will rekindle painful memories for the families who have spent decades mourning their lost children. “I’m scared,’’ said one sobbing mother as she prepared Thursday to deliver her testimony before the San Antonio grand jury.
Jones has always insisted she was innocent of any crimes. She never testified at the trial that ended with the 99-year prison term or during a second case, for injury to a child, that produced a 60-year sentence to be served concurrently. A prison spokesman says she has instructed officials to decline requests for interviews.
Early in my journalism career, I wrote extensively about Jones, first in a lengthy 1983 Texas Monthly article, then in my 1989 true crime book, titled “The Death Shift.” Decades later, after prosecutors told me of their plan to try Jones again for murder, they agreed to speak with me for a story about how and why they were bringing their new case. There was just one condition: I would keep the news secret until the grand jury handed down its murder indictment.
This is that story. It is based on detailed interviews with the DA, two deputies responsible for today’s indictment, two mothers invited to testify before the grand jury and my own decades-old files on the troubling case of Genene Jones and the Texas baby deaths.
During a 15-month period between April 1981 and June 1982, the eight-bed pediatric ICU at Bexar County Hospital experienced a strange epidemic: 42 children — an extraordinarily high number — died there. Even more peculiar: 34 of the patients died during the 3-11 p.m. shift, and Jones, a licensed vocational nurse, had cared for 20 of them.
Several nurses had complained directly to supervisors about this disturbing pattern, later documented by a Centers for Disease Control investigation. But the supervisors had dismissed the notion that Jones — who spoke passionately about her patients — could be deliberately harming children. Certain something was terribly wrong, members of the medical staff began calling Jones’ hours on duty “the Death Shift.”
Jones, then 31, was a deeply divisive figure in the ICU, overbearing and foul-mouthed yet exceedingly confident of her medical knowledge and nursing skills. She seemed to thrive on the excitement of being in the middle of a “code” — a life-threatening medical emergency. But was she drawn to crises or causing them? The CDC study would later conclude that during a shift Jones worked in this period, a child was 25.5 times as likely to suffer a medical emergency — and 10.7 times as likely to die. Kids who were recovering on other shifts took a sudden turn for the worse under Jones, in a pattern repeated on multiple days; there were dozens of unexpected crises. When a patient didn’t make it, Jones broke down, sobbing as she picked up the baby’s body and rocked it.
Joshua Sawyer arrived at the pediatric ICU on Dec. 8, 1981 — at the height of the ICU’s mysterious “epidemic.” Eleven months old, he was suffering from severe smoke inhalation after being rescued from an explosion and fire at his family’s small rental home. Like many of the ICU’s patients, the little boy had been transferred to the county hospital because his family lacked insurance. Recalls Connie Weeks, Joshua’s mother, who was then 20, “We were very, very poor.” Weeks describes her son as “pretty laid-back … just a happy-go-lucky kid.”
Joshua came to the ICU in a coma and covered with soot; he’d already experienced seizures and one arrest. Doctors ordered sedative drugs — Dilantin and phenobarbital — to prevent more seizures. Though Joshua’s condition was critical, a scan of his skull revealed brain activity, an encouraging sign. “Given the patient’s age and early signs of brain’s general recovery,” a pediatric neurologist noted in his records, “prognosis for further neurologic recovery, though guarded, probably warrants aggressive treatment.”
By Joshua’s fourth day in the ICU, his seizures had stopped, and he was breathing without a respirator. His mom let a friend talk her into taking a break — for a shower, a change of clothes and a movie at the nearby Galaxy Theater. “I knew he was doing better,” says Weeks.
An usher came into the darkened movie theater to summon her back to the ICU.
Jones had taken over Joshua’s care at 3 p.m. that day. At 7 p.m. his heart began beating too rapidly, a condition known as tachycardia. Doctors pulled him out of that emergency. Another ICU nurse, Pat Alberti, later recounted hearing Jones tell Connie and her husband afterward that their son would have permanent brain damage if he survived. Their baby would have to be institutionalized, Jones declared. He would be better off dead. (Weeks says she doesn’t have any recollection of Jones.)
The next day — again under Jones’ care — Joshua Sawyer died at 9:22 p.m. The baby’s downward spiral had surprised his doctors. Joshua had suffered two arrests during the 3-11 p.m. shift. His heart had begun contracting erratically at 7:55 p.m.; electrical shock and drugs had brought it back to a normal rhythm by 8:20 p.m. Thirty minutes later, his blood pressure started to drop, and then his heart failed a final time.
During the brief period between the two arrests, doctors had sent a blood sample down to the lab to check the level of Dilantin in his body; Joshua’s last scheduled dose of the drug had been 11 hours earlier. The test result was not completed before the baby’s demise, and in the chaotic aftermath — coming too late to make a difference, with parents to inform and paperwork to finish — the lab study was ignored. But it told a troubling story.
Genene Jones after a pre-trial hearing on Oct. 1, 1984 (Bettmann/Contributor)
Joshua’s sample had gone to the hospital’s third-floor pathology lab, where a technician took the test tube of blood and fed it into a large, complex machine called an Automated Chemical Analyzer. The normal range for Dilantin was between 10 and 20. But the number that registered was more than double that — 55.5, bumping the equipment’s upper limit the way boiling water would overheat a body thermometer. To get a precise reading, the technician carefully diluted the sample’s concentration by half, recalibrated for the dilution and ran it through again. This time, the Automated Chemical Analyzer showed 59.6 — a toxic level of Dilantin, more than enough to throw a baby’s heart into cardiac arrest. The technician entered the result into the hospital’s computer, which printed it out for Joshua’s bulky medical chart, where the evidence would go unnoticed for more than a year.
In the weeks after Joshua’s death, officials at the county hospital and its affiliated University of Texas medical school had begun taking suspicions of “purposeful nursing misadventure” (as the pediatrics department chairman put it) seriously. They convened high-level meetings, prepared internal memos, conferred with their outside lawyer and brought in an expert review committee to quietly investigate. They’d explicitly identified Jones as the central problem.
But in the midst of an image makeover for the old charity hospital — it was being renamed Medical Center Hospital — they were unwilling to alert the authorities, fearing bad publicity and lawsuits. So instead of simply firing Jones outright, they replaced all seven LVNs in the ICU in March 1982, under the cover of upgrading the unit to an all-RN staff. While they privately celebrated Jones’ departure, hospital officials presented her with a warm letter of recommendation, calling her “loyal, dependable, and trustworthy” and “an asset to the Bexar County Hospital District.” The letter added: “This move in no way reflects on her performance in the unit.”
With Jones finally gone, the pattern of unexpected emergencies and deaths in the San Antonio hospital immediately stopped. But it wasn’t the end of the problem.
Five months later, Jones began work in Kerrville, a small town 60 miles to the northwest, at the new pediatric clinic of Dr. Kathleen Holland. Holland had trained at the Bexar County hospital but was dismissive of the rumblings about Jones — and reassured by her letter of recommendation.
Over a period of 31 days starting in late August, six different children arriving at Holland’s clinic with routine problems suddenly stopped breathing and were rushed to Sid Peterson Hospital in Kerrville. One of them — a blue-eyed 15-month-old girl named Chelsea Ann McClellan — died on Sept. 17. Chelsea had gone into respiratory arrest after Jones gave her what were supposed to be routine baby shots. Tests later confirmed she’d been injected with succinylcholine, a powerful muscle relaxant.
This bizarre outbreak prompted local doctors to confront Holland and report their suspicions to the Texas Rangers, triggering parallel criminal investigations in Kerrville and San Antonio. Sam Millsap, the newly elected Bexar County DA, soon leaked the story to a local TV reporter, leading to a front-page headline in The New York Times: TEXAS INQUIRY ON 47 BABY DEATHS.
Under public suspicion, Jones remained defiant. “I’m sick and tired of being crucified alive and having people think I’m a baby killer,” she told me in May 1983, three weeks before her indictment. “I haven’t killed a damn soul.” In February 1984, after being tried and convicted for Chelsea McClellan’s murder, Jones received a 99-year sentence.
Months later, Millsap won the only case brought against Jones in San Antonio, for injury to a child, a one-month-old baby named Rolando Santos. Santos had nearly died after receiving repeated overdoses of the blood-thinner heparin under Jones’ care — even when he wasn’t supposed to be getting any heparin. A doctor had halted his final massive bleeding episode with an emergency injection of protamine sulfate, a drug that reverses the effects of heparin. Jones was sentenced to 60 years, to run concurrently with her murder sentence.
As the end of the 20-month probe neared, Millsap’s criminal investigators, led by a relentless Army vet named Art Brogley, pushed hard for more indictments. They’d recommended charging seven top hospital and medical school administrators for failing to stop Jones — if they’d alerted criminal authorities promptly, the investigators noted, Jones never would have harmed so many children. Instead, the San Antonio officials had volunteered nothing — even after learning about the nurse’s rampage in Kerrville — following instructions to maintain a “judicious silence.” (Medical school and hospital officials later acknowledged they were fearful of civil lawsuits and reluctant to call authorities without proof of wrongdoing.)
Brogley had also pressed for murder indictments against Jones, whose San Antonio victims, mostly Hispanic, were poor and powerless. If it had been the mayor’s kids, he angrily told his bosses, they’d pursue it to the bitter end.
Among the potential murder cases the investigators scrutinized, Brogley viewed the death of Joshua Sawyer as his best prospect. He prepared a separate 23-page report on the case, backed by 46 exhibits and 30 witness statements. The toxicologist for the Bexar County medical examiner’s office told him Joshua’s death resulted from a massive Dilantin overdose.
But this particular crime scene presented major obstacles to a murder conviction. No one had actually seen Jones give Joshua the drug. Many people were in and out of his room. And as Dr. Arthur McFee, a surgeon who chaired the ICU’s oversight committee, reasoned, explaining the hospital’s dismissiveness about possible criminal acts: “If they’re sick enough to be in the pediatric ICU, they’re fucking sick enough to die.”
After securing the resignations of key medical administrators, Millsap was ready to call it quits. “There will be no additional indictments of Genene Jones,” he announced in October 1984. “No useful purpose will be served. I think she will spend the rest of her life in jail.”
It was nearly three decades later that relatives of Genene Jones’ victims began to realize she might someday walk free. Under a 1977 Texas law that was changed in 1996 (but not applied retroactively), Jones has received credit for about two days of “good time” for every day she’s been behind bars. That set her mandatory parole date at March 1, 2018, after imprisonment in Gatesville, Texas, for 34 years and eight months.
(During my most recent contact with Jones — a 1987 prison interview for my book — she appeared less angry, citing newfound religious beliefs, but was no less adamant about her innocence. She doesn’t appear to have granted a media interview since.)
In 2013, family members formed a Facebook support group called “Victims of Genene Anne Jones,” and began pressing the Bexar County DA’s office to bring a new murder charge against her. (There is no statute of limitations on murder.) Andy Kahan, the crime-victims advocate for the city of Houston, coordinated an informal media campaign. A grown-up Rolando Santos made a TV appearance to oppose Jones’ release, displaying a needle scar from the ICU bleeding episodes that had nearly claimed his life back in 1982.
The group’s most passionate advocate was Chelsea McClellan’s mom. A secretary at the time of her daughter’s death, Petti McClellan had become a nurse two years later. She spoke of her fear that Jones would get out and kill again. “This is my mission now,” she said in 2013. “Losing a child does not consume you; it drives you.”
Winning a new murder conviction was a formidable challenge. The evidence in the hospital deaths, involving seriously ill children, had always been circumstantial; with the passage of time, witnesses had died, memories had faded and records had disappeared. The county hospital even had a new name: It was now called University Hospital.
After four-term DA Susan Reed invited tips from the public, generating hundreds of calls, the Jones case became the personal project of investigator Larry DeHaven, a dogged former San Antonio cop. “I’ve been wanting to get her for a long time,” says DeHaven, now 70 and a year from retirement. “To me, I don’t really believe in coincidences. For her to be in one spot, and all those babies die, and when she leaves, the deaths drastically reduce? That’s too much. You’ve got one common denominator, and that’s Genene Jones.”
DeHaven retrieved files from the widow of Art Brogley, who had died in 2012 but stashed materials from his 1980s investigation — including a seven-foot color-coded chart of suspected victims — in his garage. He perused what could be found in storage. But most of the medical records from the 1980s were missing — from the DA’s files and the county hospital. A difficult prosecution now looked hopeless.
After LaHood, a former criminal defense attorney, ousted Reed in November 2014, DeHaven was assigned to a new court, overseen by an aggressive assistant DA named Jason Goss. Over lunch in the summer of 2015, DeHaven bent his ear about the Jones case.
Goss, now 36, had never even heard of Genene Jones; he was six months old when Joshua Sawyer died. But the story DeHaven told — and the prospect of Jones’ release — shocked him. In December 2016, Goss decided to take on the mission of trying to keep her from getting out, and won LaHood’s blessing. But he had to do all the work after hours; Goss was the lead prosecutor in a busy criminal court. (His most recent trial pits a gunman named “Fat Boy” against a wheelchair-bound man under investigation for ordering torture and capital murder.)
An earnest native of Bryan, Texas, Goss dips snuff and wears Caiman boots. After having 20 boxes of Jones files — and Brogley’s giant chart — moved into an unmarked windowless office, Goss began spending his evenings at work, poring through decades-old records and searching for a winnable case. “I did Genene at night,” he says. DeHaven was no longer operating solo.
A breakthrough came from Connie Weeks, now 56 and employed at a bank, who revealed that she’d saved her son’s three-inch-thick medical record for 30 years. “It’s all I had left of Joshua,” she says. “Everything else was destroyed in the fire.” The Sawyer case moved to the top of the list. Goss and DeHaven began tracking down witnesses, including the lab technician who ran the test revealing the baby’s massive Dilantin overdose; he’s now a suburban San Antonio dentist.
In late April, Goss took his case for bringing a new murder charge to LaHood, making his argument with a two-hour PowerPoint presentation. LaHood signed off, and says he hopes to seek more murder indictments against Jones in future months. “I don’t want her stepping out onto free soil,” says the DA. “My goal is not to leave one baby behind. In a perfect world, we believe she’d be held accountable for every baby we believe she stole from their families.”
Today’s action is proof that prosecutors can quickly win a grand jury indictment in even the most complex matter. Goss says he presented all his evidence in a single day, starting with the PowerPoint presentation that persuaded his boss. He brought in just a handful of witnesses, including Connie Weeks, Joshua Sawyer’s mother, and Petti McClellan, who watched Jones inject Chelsea with a muscle-paralyzing drug.
Goss says he expects the Sawyer case will take up to two years to get to trial, but expects today’s indictment to produce a bond high enough to keep Jones behind bars until then.
Winning a conviction in a case judged too tough to bring back in 1984 won’t be easy. But Goss believes he’ll benefit from changes in the Texas rules of evidence, providing freer rein to introduce related acts — including previous offenses — to prove the identity, motive, methods and intent of the perpetrator. “It’s not necessarily that we need a needle in her hand. It’s that we can show this is how she is, how she does her crimes, this is her M.O.”
“It’s difficult,” says Goss. “The documents are old. There’s no smoking gun. There’s no confession. If it’s not a Hail Mary, it’s fourth and 15, so you’ve got to really draw up the right play. If you do it right, this case will be won. We feel like we can go all the way. Everybody wanted to make this baby killer accountable.”
Jones’ defense will surely dispute that notion. Convery, the president of the Texas Criminal Defense Lawyers Association, says he believes prosecuting a 35-year-old murder would violate Jones’ rights to due process and a speedy trial; availability of witnesses and chain-of-custody issues involving documents may pose “serious evidentiary problems.” (A defense lawyer could raise this issue about Joshua Sawyer’s medical records.) Any such prosecution would be “an extraordinary event,” Convery noted. “To think you can just dust the case off and throw it up there is wishful thinking. Cases don’t get better over time; they get worse.”
But prosecutors and parents fear Jones’ release would pose a threat to a new generation of children. “I feel like she’s been waiting 30 years to get that Code-Blue feeling again,” says Goss. “I don’t think it’s ever gone away. That’s dangerous. The only control we have is to do this.”
For her part, Connie Weeks says she is “scared and nervous,” as prosecutors finally seek to convict Jones of killing her son. But she has no doubt about her goal: “I want her to stay in prison. I want her to die in there.”
Vegas Judge Had Long History of Prosecutorial Misconduct
The behavior of Bill Kephart, who led the murder prosecution of Fred Steese, was repeatedly lambasted by the Supreme Court of Nevada. But that didn’t stop him from becoming a judge. This month he was charged with misconduct in that position too.
by Megan Rose, ProPublica
In the legal world, prosecutors are rarely called out by name. Their misconduct is usually attributed to unidentified prosecutors or the “State” in rulings by appellate judges. But as a Las Vegas prosecutor, Bill Kephart — now a judge — achieved a dubious distinction: He was chastised publicly.
The Supreme Court of Nevada took the rare step in 2001 of ordering him to prove why he shouldn’t be sanctioned for his behavior in one of his cases with a fine or a referral to the state bar for “violation of the Rules of Professional Conduct.” The ruling was disseminated statewide and, in Kephart’s own words, “professionally embarrassed” him. In his response, he wrote that the ruling had “already had a great impact” on him and promised that there wouldn’t be “a bona fide allegation of prosecutorial misconduct against me in the future.” The justices nevertheless fined him $250.
The Supreme Court’s rebuke was particularly notable in Nevada, where the judges are elected and part of the state’s insular legal community. They typically rule unanimously and seldom come down too hard on prosecutors. As one retired chief justice put it: “Picking fights with district attorneys might not be the best thing for [a judge’s] career continuation.” But Kephart’s behavior challenged that status quo, compelling one or more of the justices to issue dissents in several cases, saying his behavior called for convictions to be overturned.
Overall, the Nevada high court has noted prosecutorial misconduct in at least five of his cases over a dozen years, not including his actions during the trial of Fred Steese — who was tried by Kephart for a 1992 murder and ruled innocent 20 years later after exculpatory evidence was found in the prosecution’s files. In the cases in which Kephart is not named, he is the prosecutor whose misconduct is cited:
In 1996, the court noted “several instances of prosecutorial misconduct” in a sexual assault case. The conviction was upheld, but one justice dissented, saying that Kephart had “infected” an already “muddled case” and it warranted reversal. (In 2001, a judge granted the defendant an evidentiary hearing and he was released.)
In 1997, the court reversed the murder convictions of two men based entirely on the “deliberate” and “improper comments” made by the prosecution during cross examination and closing argument. The DA’s office had sought the death penalty, which in Nevada increases costs by about a half million dollars on average, making this and other reversals based on Kephart’s behavior expensive screw-ups for taxpayers. (Both men were retried and convicted again in 1998, one sentenced to life in prison and the other to death.)
In 2001, in the case he was fined $250, the court said Kephart gave the jury a misleading explanation of the standard for reasonable doubt when he instructed them: “you have a gut feeling he’s guilty, he’s guilty.” A justice said at a hearing that the remark seemed “like deliberate misrepresentation.” The court upheld the conviction, but noted that Kephart’s “improper remark was particularly reprehensible because this is a capital case and the remark was gratuitous and patently inadequate to convey to the jury its duty…”
In 2002, the court took issue with Kephart for assaulting a witness. During the trial of a sexual assault case, Kephart said he wanted to demonstrate how the victim said she was choked, pressing his forearm into the defendant’s neck while he was on the stand. The court upheld the verdict, but noted there was “absolutely no reason” for Kephart’s behavior, which went “well beyond the accepted bounds of permissible advocacy.” One justice dissented, saying “the instances of prosecutorial misconduct were pervasive and substantial…an accused who takes the stand runs many risks. One of them should not be that the prosecutor would physically assault him or her.”
In 2008, the court tossed out a murder conviction in another death penalty case, saying, among other issues, the prosecution’s misconduct was “significant” and “occurred throughout the trial,” including Kephart’s remarks during jury selection and in closing. One judge dissented, saying the prosecutorial misconduct and other issues didn’t require reversal. (The defendant eventually pled guilty in 2014.)
In 2002, Kephart prosecuted another highly contested murder case against Kirstin Lobato, then 19, which has garnered national outcry for the meager and sometimes contradictory evidence against her. Lobato was recently granted an evidentiary hearing and is represented by the Innocence Project. This month, the prosecuting officer for the Nevada Commission on Judicial Discipline filed misconduct charges against Kephart for a media interview he gave about the case last year, in which he said it “was completely justice done.” Kephart’s “statements could affect the outcome or impair the fairness of Miss Lobato’s case,” according to the formal statement of charges. The statement said Kephart violated several rules of the judicial code of conduct. He has not yet filed a reply.
Kephart, who joined the DA’s office in the early 1990s as a brash young attorney, once got in a shoving match with a defense attorney. Another time a judge had to admonish him for repeatedly shaking his head, making faces and rolling his eyes. His behavior eventually led to minor reprimands from the Clark County District Attorney’s Office, according to several people who worked with him during that time. In 2002, after Kephart’s reasonable-doubt flub, the entire DA’s office had to complete a two-hour ethics course and continuing legal education classes, which the deputy district attorneys tagged the “Kephart CLE.” That same year, Kephart was briefly banned from trials. Regardless, he later became a chief deputy.
Kephart also was called before the state bar for his behavior in Steese’s murder trial, but, according to lawyers at the hearing, his boss made an appeal on behalf of him and the other prosecutor on the case, and neither was sanctioned.
Kephart declined several requests for comment.
Despite these repeated critiques of his conduct, Kephart was voted onto the bench in 2010 as a justice of the peace and in 2014 moved to the Eighth Judicial District Court of Nevada, where he today he presides over civil, construction and criminal cases.
Fred Steese served more than 20 years in prison for the murder of a Vegas showman even though evidence in the prosecution’s files proved he didn’t do it. But when the truth came to light, he was offered a confounding deal known as an Alford plea. If he took it he could go free, but he’d remain a convicted killer.
Fred Steese, Inmate No. 45595, often gazed at the 18-wheelers rumbling by the state prison on a desolate stretch of highway outside Las Vegas, yearning to be behind the wheel. Lying in his bunk in Cell Block A, Unit 7, he’d picture himself double-clutching down hills, filling out the logbook, expertly backing up as he made deliveries. Semis had been an obsession since he’d begun hitching rides with truckers between stints with foster families and in group homes. By 16 he’d stolen his first big rig. Now middle-aged, Steese treasured a commercial driver’s license manual, so well-used it was held together by tape.
As a lifer, however, he knew that even this modest ambition was out of reach. In 1992, a once famous trapeze artist who’d moved on to performing with a costumed poodle act on the Strip had been found murdered, stabbed dozens of times in his trailer on the outskirts of Las Vegas. Police found a prime suspect in Steese, a drifter with a record, who for a short time had been the victim’s lover and assistant, and who, after protesting that he was innocent, offered a confession.
But there was evidence Steese had been 670 miles away at the time — and prosecutors in Las Vegas didn’t share it. The prosecutors went on to win seats as state district court judges, where they still sit. Steese went to prison for life with no possibility of parole. That would have remained his fate except that, somehow, in a life with few breaks, Steese finally caught one. Prodded by his original attorney, the federal public defender sent a team burrowing into the prosecution’s files and ultimately dismantled its case.
In October 2012, a judge declared that Steese, after 20 years in prison, was innocent. It was an extraordinary ruling — in fact, unprecedented in that court. But the Clark County district attorney was not willing to free Steese. Prosecutors vowed to put him through lengthy appeals. Even to re-try him. The process would take years. Or, if Steese just wanted to be released, the prosecutors had a tantalizing proposition: he could agree to an Alford plea. In a feat of logical gymnastics, this obscure plea allows defendants to maintain their innocence while at the same time pleading guilty and accepting the status of a convicted felon. And, perhaps most damaging to prisoners like Steese, after decades behind bars, the plea meant giving up the right to sue. It would also allow prosecutors to keep a “win” on the books, admit no wrongdoing, and avoid civil and criminal sanctions for their behavior. In exchange for all this, the prosecution in Las Vegas would let Steese go.
In legal circles, prosecutorial misconduct is viewed by many as a pervasive problem — an “epidemic,” as one prominent federal judge called it in 2013. Jurisdictions large and small are riddled with corrupt practices. Misconduct lies behind more than half of all cases nationwide in which convicted defendants are ultimately exonerated, according to the National Registry of Exonerations. Driven by a win-at-all-costs culture, such misbehavior is especially hard to root out because, many experts say, there’s little incentive to play by the rules. Appellate courts often sweep misconduct aside as harmless. Top prosecutors, burnishing their own careers, rarely punish underlings for it — and indeed they often flourish, going on to become judges reluctant to police their former peers. And the law gives prosecutors broad immunity from civil lawsuits, even when their bad behavior lands the wrong people in prison.
Fred Steese’s case exposed the rot in the system that robbed him of two decades of his life. Yet even then prosecutors worked to keep it hidden, forcing him into an almost incomprehensible choice: Risk freedom to fight for an uncertain exoneration that might take years, or cop to a crime he didn’t commit and walk away.
II. Death of a Poodle Master
Dan Winters for Vanity Fair
Lucky the Clown, a 123-foot-tall blast of frenzied neon, has greeted visitors to the Strip since 1976. With its massive grin and pinwheel lollipop, the marquee beckons gamblers inside the striped big top at the Circus Circus hotel and casino. In 1992, low rollers fed cups of change into slot machines while acrobats swung overhead. A rotating lineup of circus performers did free shows on a small dark stage on the second floor until midnight. Passersby would stop to watch before moving along to the $2.99 dinner buffet. Among the performers was a faded but still handsome dog trainer with the bearing of a dancer, often dressed elaborately in sequined tails and matching bow tie. Gerard Soules, known as Jerry, was circus royalty of sorts, a trapeze artist who had traveled the world, performing for the queen of England and dazzling the crowd in the Ringling Bros. center ring. A preening showman, he had worn a cape that he would fling open before beginning the 40-foot climb to the pedestal. From there he’d launch his daring signature move, a somersault forward off the trapeze, catching himself by his heels at the last second on the bar of the same trapeze.
Soules had grown up devoutly Catholic in 1940s blue-collar Michigan. When he came out as gay to his mother as a teenager, his family defied expectations by supporting him. Soules left home at 16 to join the circus. After a trapeze accident in his late 20s, he reinvented himself as the ringmaster of a pack of well-dressed poodles. In 1992, Soules took his act to Circus Circus, where, six days a week, his 14 poodles hopped on their hind legs across the stage: One in a poncho and sombrero to a Mexican march, another to a can-can with her dress attached to her front paws, Moulin Rouge-style, still others wearing three-foot-tall hats or giant hoopskirts — all of the outfits handstitched by Soules himself.
Despite the act’s popularity, Soules had lost his spirit. The casino wouldn’t let him stay at its own RV park with his poodles, so he was banished to the Silver Nugget Camperland, in much less desirable North Las Vegas. And he’d been living in a heartbroken fog since his partner of decades had died, several years earlier. Eager for companionship, the 55-year-old had recently taken to helping young men in need.
One May day, Soules had spied Fred Steese, disheveled and dirty, his hair bleached sandy blond by the sun. He was holding a WILL WORK FOR FOOD sign. Soules leaned out the window of his truck and offered to take Steese for a meal. Even in faded jeans too big for his lean frame, Steese had blue-eyed good looks, with an easy smile and a loud laugh that rose along the scales and made him seem younger than he really was. Over dinner, Soules revealed that he was gay. Steese shrugged his shoulders and told him that he himself was bisexual. Steese was familiar with the scene — he’d hustled gay men for food, money or companionship most of his life. The previous month, another middle-aged man had picked him up along a Pennsylvania highway. That man, Rick Rock, enjoyed Steese enough that he paid for a bus ticket and told him to call collect whenever he wanted. And Steese did, often. He liked having someone who cared.
Steese had more or less been on his own since his mother had abandoned him, when he was 10, and he bounced through 37 foster placements. As a teen, he wandered into a hobo camp outside Phoenix, where an old-timer introduced him to riding the rails. Alone on the road, he held tight to the memory of the Busses, the one foster family who’d shown him any love, twice sheltering him at their dairy farm outside Austin — even including him in a formal family portrait. He’d been chasing that connection ever since, smoothing over his past with grandiose lies to gain acceptance and prop up his self-image.
He struck up an affair with Soules and became his assistant. The dog trainer had just fired his latest one, Alexander Kolupaev, a Russian defector with receding red hair who was always short on cash and had rebuffed Soules’s overtures. Just as Steese was settling in, the event manager told him he needed a work permit for his job at the casino. Steese knew that was the end. He was wanted for violating parole in Florida, and he’d been using the alias Fred Burke.
“Listen, I’m going to go ahead and move on because there ain’t no sense in me being here, because I can’t make no money,” Steese told Soules, according to testimony. Steese panhandled enough cash for liquor and a speedball and then hopped a train heading north.
Six days later, when Soules didn’t show up for work, his boss went to the RV park to investigate and heard the usually quiet dogs barking excitedly. He banged on the door, calling Soules’ name, before fetching a security guard. Inside detectives found Soules’s belongings scattered around the trailer. The plaid window valance had been yanked down. The TV-and-VCR cabinet was empty. Blood soaked the mattress and trailed across the length of the trailer to the bathroom, where Soules lay naked, his face covered by an orange towel. More blood splattered the bathroom mirror, the counter, the toilet, the tub. Soules’ throat had been slashed, and he’d been stabbed so many times that the coroner stopped counting at 35.
Gerard “Jerry” Soules became a star in the 1950s and earned a place in the Circus Hall of Fame for his forward somersault off the trapeze. He then had a popular second act, traveling the world with his “Poodles de Paree” dog show. Soules was killed in Las Vegas in June 1992. (Courtesy Soules family)
III. The Confession
Two North Las Vegas Police detectives shut Steese in a small interrogation room and placed a questionnaire about the murder in front of him on the metal table. Forty-five minutes later, he’d written just a handful of paragraphs, riddled with grammar and spelling mistakes, in one place fumbling even his own name as “Fredrick,” without the second “e.”
“I thing I was in New Plymouth, ID.”
Throughout his childhood, Steese had scored between 70 and 80 on IQ tests, putting him at the very bottom of normal range. He had only the GED he’d earned recently while imprisoned for a hapless bank robbery. Steese wrote that he didn’t have any reason to hurt Soules.
“I have never been to know a friend that has gotten killed.”
The detectives had been tipped to Steese after a letter from Rick Rock arrived at Soules’ trailer. When contacted, detectives said, Rock told them that Steese had revealed knowledge of a morbid, if not quite accurate, detail of the murder: that Soules had been stabbed more than 100 times. When detectives finally reached Steese by phone, he agreed to return to Las Vegas. Then he’d drunkenly hopped a train going in the wrong direction, ending up in Wisconsin, where he stole a semi truck and drove nearly 30 hours straight through to Nevada. There he was pulled over and arrested.
In the interrogation room, Steese repeatedly told the skeptical and increasingly angry detectives that he hadn’t murdered Soules. When one yelled that he was lying, Steese jumped up and backed away from the table. “Do you want to hear a story? OK. I don’t know nothing about the murder, but I’ll tell you a story,” Steese testified he had told them. He went on to say that Soules had tied him up and tried to sexually assault him with a plunger. But after detectives prodded him with details from the murder scene that showed that his story couldn’t have happened, Steese stumbled through several more scenarios.
Around 10 p.m., after nearly five hours of interrogation, Steese signed a confession, looping the final “e” in Steese back through the letters. It was his sixth version of events. At this point he hadn’t slept since before he left Wisconsin.
Steese’s 1992 mugshot after he was arrested for the murder of Gerard Soules. He would be imprisoned for nearly 21 years.
IV. But He Wasn’t There
Las Vegas in the early 90s was at the start of a boom. Gated subdivisions were eating up the desert and ever more luxe resorts were springing up on the Strip. But Vegas hadn’t lost its frontier spirit; in some ways it was still the Wild West.
Clark County’s district attorney, Rex Bell Jr., embodied that spirit, with his slow drawl, cowboy boots and plug of tobacco in his cheek. The son of Rex Bell Sr., an actor in Westerns, and silent-film legend Clara Bow, he saw himself as the protector of Las Vegas. He sometimes even wore a white hat. Bell, though, was more politician than practicing lawyer, and he left the running of the criminal division to his number two, Bill Koot, a gruff former Marine and Vietnam veteran. Deputy DAs who didn’t pursue harsh enough sentences or lost too often at trial were exiled to the age-old prosecutor doghouse: juvenile court.
The office had a frat-house looseness — it wasn’t unusual, former prosecutors recalled, for a pack to leave at one p.m. on a Friday to go drinking or to a strip club — but the atmosphere belied a cutthroat culture. On a whiteboard by the receptionist’s desk was a grid listing the trials in progress. A “not guilty” was an embarrassment that stayed on display for a week. Young attorneys started out in an assigned courtroom with scant training and worked whatever cases came through. The most ambitious chased homicides, prosecuted by the Major Violators Unit.
Among the young deputies gunning for the top, and a Koot favorite, was William Kephart, a rough local boy from a blue-collar part of town. Kephart had the gregariousness of a beefy high school jock giving high-fives in the halls.
He was known to prosecute with a sometimes unrestrained passion. Kephart was widely viewed, even by his friends, as guided more by ambition than by talent or smarts — “not a man for subtlety or nuance,” according to one of his former colleagues. His reputation for recklessness in and out of the courtroom earned him the nickname “Wild Bill.” He had his sights set on the MVU.
The case of the slain “Poodle King,” as the press had nicknamed Gerard Soules, hit the overworked DA’s office at the perfect time for Kephart. An experienced prosecutor had dropped out, handing the eager deputy a death penalty case, wrapped in the bow of a confession. But more than two years later, when Kephart was finally gearing up for trial, the case looked very different. Steese’s defense team had assembled an extensive alibi with 14 witnesses and 10 items of documentary evidence that they were sure proved Steese was nowhere near Soules’ trailer at the time of the murder.
Kephart and an investigator headed to Idaho in October 1994 to do their best to unravel Steese’s alibi. There they devised a new explanation. One witness noted that Steese had mentioned that he sometimes used the name “Robert.” Another said Steese had told him a couple of times that he had to call his brother. Then Kephart found a Salvation Army assistance form from June 8 that listed a “Fred Burke” and a “Robert” as receiving $10.
Back at the office, they confirmed their suspicions: Steese had a look-alike brother named Robert, who lived in Texas. Kephart and his team came up with a theory: It wasn’t Steese in Idaho; it was Robert — all part of a grand scheme to give Steese an alibi. The witnesses who thought they had met “Fred Burke” in Wyoming and Idaho had really met Robert. Then the real Fred had high-tailed it to Idaho after the murder, and that’s when they’d turned up together at the Salvation Army. The beauty of this theory was that nobody involved knew anything about Robert Steese. He could be anyone prosecutors wanted him to be.
A week or so before trial, Douglas Herndon, 30 years old and three years into his tenure at the DA’s office, joined the case as Kephart’s second. A private-law-school grad, and one of the few in the office not from Las Vegas, Herndon was seen as an astute prosecutor. His first thought in reviewing the case was “Wow, I’ve never seen that many alibi witnesses before. How is that going to affect things?” They had no evidence to prove that Robert Steese had been in Idaho, and they had serious conflicts with the timeline. The “Robert” theory was at odds with Steese’s confession that his drunken decision to rob Soules was last-minute and that he killed him only because Soules had woken up. Documents placed “Fred Burke” in Wyoming on May 31, so Steese would have had to set the alibi plan in motion three days in advance of a spur-of-the moment burglary.
But because the prosecutors were already convinced that Steese had committed the murder, to them the alibi must simply be wrong — the documents fishy, the witnesses lying or mistaken. And quite possibly there was a conspiracy. Kephart and Herndon would tell the jury that Steese’s alibi was a fantasy.
V. “Trial by Ambush”
Steese’s trial began in January 1995 and quickly devolved into a brawl, peppered with accusations of prosecutorial misbehavior. James Erbeck, a well-known private lawyer and former assistant U.S. attorney, had been appointed to represent Steese, along with California transplant Nancy Masters, new to both Vegas and to lawyering. Erbeck walked in on the first day with confidence — even though a 70-year-old defense witness had already sworn in an affidavit that Kephart had tried to dissuade her from testifying. Steese had such a strong defense that Erbeck actually cautioned Masters not to think it was typically so easy. That mood dissipated when Erbeck found himself filing motion after motion to dismiss, including for “outrageous prosecutorial misconduct,” only to have each motion batted away by District Court Judge Don Chairez, a rookie in his first year on the bench. Chairez had been working for the DA when Steese’s prosecution began, three years earlier.
Erbeck’s sense of impotence grew as the trial progressed. He discovered only during testimony that two prosecution witnesses had identified Steese, from photo lineups that included Robert, as the man they’d seen in Idaho. This fact undermined the “Robert” theory and Kephart and Herndon had sought to conceal it. Kephart had also shown his own last-minute star witness, a neighbor of Soules’ named Michael Moore, a potentially misleading photo array. Moore subsequently identified Steese in court as having been at Soules’ trailer the night of the murder — even though he had told police at the time that the man he’d seen had been short, had red hair and was balding. That description fit Kolupaev, who had been convicted of a jewelry heist shortly after the murder and would eventually be deported. Kolupaev was never investigated further.
At Moore’s testimony, Erbeck had leapt to his feet, railing that it was “trial by ambush,” and telling the court that the lineup Kephart had shown Moore was the most suggestive he’d seen in his career. Each photo had a booking date, but only Steese’s was from the year of the murder. “They have totally tainted the jury,” Erbeck told Chairez. “Look at this lineup. One man in ’92, everyone else in ’93, ’94. The other five couldn’t commit the crime.”
Steese and his lawyer Nancy Masters (now Lemcke) in the Las Vegas courtroom where he was tried for first-degree murder in 1995. (Steve Marcus/Las Vegas Sun)
By the time it was Erbeck’s turn, Kephart and Herndon had painted Steese as a conniving killer who had, according to a jailhouse snitch, repeated his confession while incarcerated. But one key prosecution witness was conspicuously absent from the stand. Steese’s friend Rick Rock had been flown in to testify regarding Steese’s alleged comment about the number of stab wounds, but as an older single man living in rural Pennsylvania, Rock was protective of his private life and wasn’t eager to cooperate. He also dodged Erbeck and Masters, who were desperate to talk to him about whether Steese had called him from Idaho at the time of the murder. Then the prosecution abruptly sent him home, telling the defense nothing. Masters asked Kephart for Rock’s unlisted number, but she says Kephart told her she’d have to get a court order. Kephart said he sent her to the witness-support office and told that office to get Rock’s permission first.
To Erbeck, Steese’s defense was simple: He wasn’t in the state at the time of the murder and couldn’t have killed Soules. He’d falsely confessed because he was tired, coming down off drugs, frightened and of low intelligence. The documentary evidence backed up Steese’s and the witnesses’ claims. He’d left a long trail from May 31 to June 8, using the alias “Fred Burke.”
Steese testified that after he had left Las Vegas he stopped in Salt Lake City, then bumped into a man named Ron Bouttier in the train yard in Cheyenne, Wyoming. Steese took him to the local Salvation Army, and they scrawled their names on the “Monday, May 31” sign-in sheet. On the Burke signature, he’d looped the “e” back through the name with a line, in his typical fashion. Steese testified that Bouttier had invited him to his grandparents’ in Idaho, until he could get back on his feet. “That was the best offer I had in a long time,” Steese testified. “I didn’t have nowhere to go, so I says ‘all right.’ We got along real good at the time, and so we jumped on a train.”
Bouttier’s family and others Steese met there identified him in court, though two were shaky at first and needed a second chance on the stand. Steese had gained nearly 70 pounds by the time the trial started. In Idaho, he had gone to two employment help centers, and on one job application, on June 4, he used as a reference the name of his beloved foster parent: “Albert Busse.” A few days later, he and Bouttier got into a fight, and Steese took off, showing up on June 8 at the Salvation Army, where he put down two names on the welfare assistance form because, as an employee testified, she would give him double that way, even if he was alone.
Kephart, speaking in a folksy style that juries liked, used his rebuttal to spin out the “Robert” theory, even though Robert himself was never produced. He called to the stand his investigator, who contradicted many of Steese’s alibi witnesses and accused several of lying. Kephart insinuated that any defense documents that were copies could be forgeries. He even made his own, blown-up version of the Salvation Army sign-in sheet, but instead of Steese’s signature, it was his own, “as an example to the jury to show how documents can be manipulated and why you need originals.” Accusing the defense of presenting doctored evidence was a shocking tactic, but it was consistent with Kephart’s perceived willingness to go to nearly any length to get a conviction. Two of his murder convictions from the prior year would soon be thrown out by the Supreme Court of Nevada for “improper” and “deliberate” comments.
Whatever Steese was saying now, Kephart and Herndon argued, the original confession should be trusted. The jury deliberated for almost two full days before rendering a guilty verdict. After the trial, the prosecutors dropped the death penalty, but Steese was sentenced to two life sentences without parole.
Left: A promotional photo of Soules for the Ice Capades in 1988. Right: Soules, bottom center, with other Circus Circus performers in 1992, only weeks before his death. (Courtesy Soules family)
VI. The Unraveling Begins
Nancy Masters — now married and known as Nancy Lemcke — was distraught. She felt as if she had failed. She called every PO box center in Rick Rock’s town to track down his new address and wrote one last letter begging him to contact her. When he finally called, Lemcke told him his phone records could prove that Steese had called him from Idaho. Rock, baffled, said the prosecutors already had a copy of the records. Lemcke couldn’t believe it. Had Kephart and Herndon concealed key evidence in a death penalty case? Hadn’t they seen the calls to Rock from Wyoming on May 31 and from Idaho on June 3 (the likely day of the murder) and June 5 that would exonerate Steese?
The U.S. Supreme Court, in the landmark case Brady vs. Maryland, long ago established that prosecutors must turn over any evidence favorable to the defense; withholding it violates a defendant’s right to a fair trial. Erbeck fired off a motion, asking the judge for a new trial and also asking the court to sanction Kephart and Herndon so that this will “not happen again in Clark County.”
In responding affidavits, both prosecutors claimed the records were irrelevant because they said Rock told them those calls were from business associates. Lemcke thought it should have been obvious that wasn’t true, especially since Rock had made a Western Union money transfer to one of Steese’s alibi witnesses on the same day he had received four of the collect calls. After Steese was arrested, on June 18, the only collect calls Rock received were from the county jail, up to eight a day. Herndon conceded that the records showed Rock “wasn’t telling us everything he knew.” But they had flown him home and never mentioned the phone records to the defense.
Erbeck referred the prosecutors to the Nevada State Bar, which investigated and found enough troubling behavior to merit an official hearing — a rarity. But the newly elected district attorney, Stewart Bell, a prominent lawyer who was not related to his predecessor, showed up to argue on their behalf. The matter went away. (Bell didn’t respond to several requests for comment.) Herndon and Kephart moved up to the DA’s elite teams: Herndon joined the relatively new Special Victims Unit, and Kephart made it to the Major Violators Unit.
In 1998, the Supreme Court of Nevada, which rarely split, denied Steese’s appeal in a 3-2 decision. The majority ruled that the state’s “case against Steese was strong” and that no Brady violation had occurred because the defense could have found the phone records on its own. The dissenting judges believed that the prosecutors had skirted the rules and that Steese’s conviction should be reversed. The decision slammed shut most legal doors, leaving Steese to languish in a maximum security prison.
Nancy Lemcke, a Clark County public defender, not far from where Soules was stabbed to death in his trailer in North Las Vegas. (Dan Winters for Vanity Fair)
Kephart, meanwhile, continued to build a successful career despite misconduct that drew repeated criticism from the state’s highest court throughout his tenure. His colleagues dismissed any dark intent, likening him to an excitable Labrador who stole turkey off the table because he didn’t know any better. But in 2001 the Nevada Supreme Court justices called Kephart out by name in a misconduct ruling — an uncommon rebuke. Appellate judges typically blame misdeeds on “the State” or “the prosecutor.”
“Now either he doesn’t want to learn, or he’s a very slow learner,” a justice said in a hearing, expressing dismay that “the district attorney’s office just continues to let him try major cases and give us these problems.” The court forced Kephart to show why he shouldn’t be sanctioned, and Bell again came to his rescue. Apart from being briefly benched from trials, former colleagues said, Kephart faced no consequences. He went on to have yet another case overturned in 2008, partly as a result of his misconduct. Then, in 2010, campaigning to become justice of the peace as a law-and-order stalwart, Kephart made it to the judicial ranks alongside Herndon, who had previously been appointed to the bench. As Kephart took office, Steese had been in prison for more than 18 years.
VII. An Arduous Path
The San Antonio parking lot shimmered in the May heat, and Abigail Goldman chafed against the fabric seats of her rental car, hours into a sweltering stakeout of a strip mall. Goldman, 29, an investigator for the federal public defender’s office in Las Vegas, was on the hunt for Steese’s long-lost brother.
When Goldman joined the office, in 2010, Steese had been pointed out among the 30 cases in her stack as something special — an innocent man. Steese had recently had a new breakthrough, and a judge would soon re-examine his alibi, in particular the alleged involvement of Robert Steese. Now, in 2011, Goldman just had to find him. She had nothing more than a three-year-old address, but the trailer park manager there had given her a small clue: Steese’s wife worked at a nearby Office Depot. Goldman had been watching the store for almost a full day. Earlier she had crisscrossed Nampa, Idaho, to link two phone numbers from Rock’s records to the pay phones Steese said he had used. But the prosecutors could still argue that Robert Steese had made those calls. As she sat sweating and second-guessing herself, a dark-haired woman in the telltale red polo of an Office Depot employee hurried out. Maybe that’s my girl, Goldman thought, instinctively ducking her head as if that made her inconspicuous as she drove three mph behind the woman. The slow-motion chase ended at the scene of a car accident down the street, where one of the drivers looked a lot like Fred Steese. Goldman leapt out, launching into a fast-paced pitch about needing his help.
“The last time I saw my brother, I was nine years old. I’m 41 now,” Robert Steese said. He didn’t want anything to do with the case, and his wife adamantly told Goldman to go away. An annoyed cop shooed her off. Goldman realized a few days later that the stakeout was more productive than she had thought: The accident report listed Robert Steese’s current address. Fred Steese’s lawyers now had a way to subpoena him.
A freshly minted federal public defender, Ryan Norwood toiled in one of law’s toughest jobs for some of its poorest clients: habeas corpus. His task was to help destitute prisoners essentially sue the government for wrongful imprisonment. Norwood, 33, whose neat beard and natty three-piece suits stood out among his rumpled peers, had landed Steese’s case after Nancy Lemcke repeatedly pushed for help. The situation was a legal minefield. For one thing, the Antiterrorism and Effective Death Penalty Act of 1996, which has become so loathed that even some conservative judges have called for its repeal, gave prisoners one year to file a habeas suit. States such as Nevada had the same practice. So, in both state and federal court, Steese was long since out of time. Norwood had petitioned both — and had lost in both, until 2010, when the Supreme Court of Nevada stepped in and ordered a local judge to hear Steese out.
There was only one arduous path around the time limit: actually proving Steese innocent. Norwood had to show that there was new, compelling evidence that cast doubt on Steese’s conviction. So while Goldman scoured everything publicly available, Norwood fought to get his hands on the prosecution’s file. And in the end he succeeded: District Court Judge Elissa Cadish, who was presiding over the case, ordered the DA to hand it over.
In her office, Goldman scrolled through the 2,440 pages of documents on a CD. Forty pages of voir dire. Police reports. Steese’s criminal history in Utah. Stop. At the top of page 923: “Union Pacific Railroad Police.” Goldman leaned in for a closer look at the old-fashioned dot-matrix document on the screen. There were several “field interrogation reports” that the railroad police filed when they caught people illegally on the trains or in the rail yard. There was one for “Frederick Lee Burke” in Salt Lake City on May 29, and there were two for “Fred Lee Burke, Jr.” on May 31 in Cheyenne, Wyoming.
Here was evidence that put Steese out of state five days before the murder — evidence that matched Steese’s testimony at trial.
“I got thrown off the train,” he had testified. “They got bulls.”
“Bulls?”
“ … We call them the bulls. That’s what the hobo term is. What they are is, they’re railroad security … and if they catch you riding the train they’ll ask you your name and write it down and then kick you off the train.”
Down the hall, Norwood also dug into Steese’s file and uncovered several letters the DA’s office had written on behalf of the jailhouse informant which seemed to contradict Kephart and Herndon’s claim at trial that he’d received no benefit for his testimony. Kephart had also repeatedly elicited testimony from the informant during trial that allowed him to hide his criminal past.
Before long, yet another disturbing discovery came to light when the DA’s office gave Norwood a copy of a National Crime Information Center report on Robert Steese. The report showed that on May 25, June 1, and June 4, 1992, Texas authorities had run Robert’s name through the system — which typically occurs when an individual is stopped by police. That would mean Robert Steese was in Texas at the time the prosecution had argued he was impersonating his brother in Idaho. And it looked to Norwood as if Kephart and Herndon had known this at the time of the trial. Their investigator had testified that he “went through NCIC.” as part of an “extensive investigation” into the whereabouts of Robert Steese but claimed that the search turned up next to nothing. The DA’s office contended it hadn’t known about the stops at the time of the trial, arguing that its investigator hadn’t done as broad a search or that the stops had been inexplicably added to the system later.
Norwood says he had not seen misconduct on this scale before and believed that any one of the discoveries proved Steese innocent. But Pamela Weckerly, a 16-year veteran prosecutor who was now handling Steese’s case at the DA’s office in Las Vegas, refused to budge.
VIII. “I Killed Gerard Soules”
Ryan Norwood, a federal public defender, in the parking garage of his Las Vegas office. Norwood worked for four years to prove Steese’s innocence and free him from prison. (Dan Winters for Vanity Fair)
Fred Steese’s only chance now lay in four daylong hearings — dragged out over more than 16 months — to prove that his brother had nothing to do with his alibi. At the first hearing, in June 2011, Robert Steese’s former boss, co-workers and acquaintances from the early 90s all testified that he was in Texas at the time of the murder and laughed at the notion of him hitchhiking or jumping trains, saying he was too lazy and unambitious for that. Five months later, Robert Steese himself testified, telling the court he hadn’t seen Fred since he was a child, had never been to Idaho or Wyoming and didn’t so much as know Fred’s birthday.
“I didn’t even know he was still living,” Steese testified.
At the next hearing, in January 2012, the hallway outside Cadish’s courtroom crawled with defense attorneys. Word had spread that Herndon and Kephart might be testifying — and cross-examined. Herndon was up first, and Norwood seized the opportunity to ask him about the document with the Union Pacific reports.
“I believe I’ve seen it before, yeah.”
Herndon said he didn’t think he had the reports at trial; nevertheless, he was still ethically bound to turn them over later, and the records could have made the difference in Steese’s 1998 appeal. Herndon then rejected even the most basic realities of Steese’s case.
“There was somebody up in Idaho during that week calling himself ‘Fred Burke,’” Norwood prodded. “Can we agree on that?”
“I’m not prepared to even agree on that.”
Norwood was dumbfounded. Seventeen years earlier, Herndon had argued to a jury that Robert Steese had been in Idaho creating a false alibi, even saying in his closing he had “no doubt” about it. Now he was contending that Steese’s alibi witnesses might have helped orchestrate an 11-day, multi-state conspiracy and forged 10 different official documents. “What I’m saying, very bluntly,” Herndon testified, “is that I didn’t believe a whole hell of a lot of what the people from Idaho had to say.” Weckerly never called Kephart to testify.
In October 2012, Norwood and Weckerly each made their final arguments. Steese sat in his blue prison garb in a near empty courtroom, cheerful as always, but with few expectations. Norwood had warned him that the wait was far from over. Cadish would likely take a few months to make a decision.
Norwood’s hour-and-a-half speech had the passionate feel of a trial lawyer beseeching a jury.
“Robert is a red herring here. The Robert Steese theory, however good it might have looked to the jury, can’t be the explanation for what happened, because Robert wasn’t in Idaho,” Norwood said. Later, with an uncharacteristic dramatic flair, Norwood announced, “At this point, I want to make a confession of my own. I killed Gerard Soules.” He was in high school in Pennsylvania at the time, but “at this point there is precisely as much reliable evidence that I committed this murder as there is that Fred Steese committed the murder,” he said. “In fact, I have to say that in some ways that my confession is a little more reliable. I just made this confession in open court. I didn’t make it after spending four hours in a room with two police detectives where who knows what happened. Unlike Fred, I can’t prove that I was someplace else on June the 3rd and June 4th in 1992.”
What Steese has provided, Norwood concluded, is “probably the most extensive alibi that’s ever been proven by somebody in this state.”
In stark contrast to Norwood, Weckerly was brief, arguing that a jury had heard “98 percent” of the evidence Norwood presented and still found Steese guilty. By law, she said, “it’s not our burden at this point to explain anything.” She refused Norwood’s challenge to answer the most basic question: If Robert Steese wasn’t involved, then what now is the state’s theory of the crime?
It was clear, Norwood told Cadish, that Weckerly wouldn’t concede Steese didn’t kill Soules, because that “would be admitting that an innocent man has been behind bars for 20 years … that justice wasn’t done in this case … that … the killer [wasn’t] found.”
Norwood fully expected Cadish to conclude the hearing by announcing that she would take the arguments under advisement. Instead, without any fanfare, she said she believed the testimony from Robert Steese and from those who knew him with “no dog in the fight.” Norwood and Fred Steese sat up a little straighter in their chairs. The more Cadish spoke about new, reliable evidence, the more Norwood realized not only that she was about to issue a ruling but that it would be what he’d hoped for over the last four years. He put his hand on Fred’s shoulder.
“Given everything additional that we now know,” Cadish said, “I am finding that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt with that evidence.” For the first time in the 8th Judicial District, a judge would issue an “Order Regarding Actual Innocence,” declaring publicly that Steese had not killed anyone.
IX. Innocent — but Still Guilty
Astonishing as Cadish’s decision was, Norwood knew that an innocence ruling was not the get-of-jail-free card it seemed to be. It was only the first step. Steese had to show that his wrongful conviction was somebody’s fault. Normally when a defendant appeals, the issue at hand is not innocence or guilt but whether he received a fair trial. Because Steese had run out of time to appeal and was suing for denial of his civil rights, Cadish’s ruling only cleared the way for her to consider the constitutional merits of his case. It was, in essence, a reset button. For Steese’s murder conviction to be thrown out, a judge would now have to rule that the prosecutors acted improperly or otherwise failed in their duties.
Norwood was confident that Steese would win such a case. He relished the idea of a rigorous examination in court of Kephart and Herndon’s behavior. But while he was optimistic, Norwood also knew that, should Cadish agree with him, Steese’s ordeal still wouldn’t be over. The state could appeal immediately — which meant Steese would have to wait for a ruling by the Supreme Court of Nevada. That could take many years. If the court came down in Steese’s favor, the prosecution could still re-try him. Only after a not-guilty ruling would Steese be fully exonerated. And he might not get bail during this process.
Weckerly, the deputy DA, could have simply supported Steese’s petition for habeas corpus, but she responded by tweaking the state’s argument. After hammering on the Robert theory for nearly two decades, her office suddenly asserted that Robert didn’t matter. Steese, Weckerly maintained, was still guilty. But she was facing the daunting prospect of starting over on a 20-year-old murder case. Two weeks after Cadish’s ruling, Norwood says, she proposed a deal. What if she gave Steese parole? Norwood countered: How about dropping all charges and having Steese plead to stealing the truck he used to get to Nevada, with a time-served sentence? Weckerly refused — she wanted a murder charge on the books. That was when she offered an Alford plea.
Though unfamiliar even to some lawyers, the Alford plea has been around since a 1970 U.S. Supreme Court case. Henry Alford, a 35-year-old black man, had said he was innocent of murder but pleaded guilty to avoid an automatic death sentence. He later appealed, claiming that his plea was made under duress, violating due process. The Supreme Court disagreed. The justices ruled that it wasn’t unconstitutional to accept a guilty plea despite protests of innocence, so as long as a defendant had intelligently made the decision and was counseled by a lawyer.
Unlike the better-known no-contest plea, in which a defendant accepts a conviction without admitting guilt, the Alford plea lets a defendant actually assert his innocence for the record. The defendant acknowledges that the state might be able to get a conviction despite his or her innocence. All but three states allow the plea, but the federal government says it should be used only in “the most unusual of circumstances.” The Alford plea is most often used in bargaining before a conviction, like a typical plea deal, and could very well be taken by guilty defendants who simply won’t own up to their crimes. How often it is offered and accepted, and by what sort of defendants, isn’t tracked. Many prominent legal scholars, such as Cornell law professor John Blume, contend that prosecutors are using the plea to quickly and quietly resolve newly challenged convictions. It’s undeniably coercive for a prosecutor to tell someone who has been in prison 5, 10, 20 years that “you don’t have to admit guilt, just sign this plea and we’ll let you go,” Blume said.
Norwood questioned whether justice was served by an Alford plea, especially when it was being used to prevent the exoneration of an innocent man — and to keep what he saw as prosecutorial misconduct under wraps. But he knew it was a valid way to resolve Steese’s case quickly. Norwood gave Steese the news: There was a way for him to get out of prison almost immediately. Steese didn’t have to think about it. “Now sounds good,” he said. “I’ll take now.”
As word of the deal circulated, some who had grown close to Steese were angry. Lemcke thought he was too near the finish line to give up a sure victory. And Steese’s half-sister, Lynn Myers, who reconnected with him after he’d been incarcerated and had been writing him letters for years, begged him to turn the plea down and clear his name. But Steese believed they were wound up about nothing. Judge Cadish had said he was innocent! He’d been locked up for 7,545 days. He just wanted to get on with life.
Shortly before 9 a.m. on a February day in 2013, Steese faced Cadish one final time in a hearing that lasted all of eight minutes. Under the terms of the Alford plea, Cadish accepted his guilty plea for a crime that just three months earlier she’d ruled he didn’t commit. She sentenced him to time served.
“Good luck to you,” she said.
Fred Steese, after his wrongful incarceration. (Dan Winters for Vanity Fair)
X. “All Rise”
About a year out of prison, Steese went to Southern California for training with a major trucking company. He was a 50-year-old man finally getting a shot at his childhood dream — what he’d called at his trial “the best job in the world.” He whizzed through the written test, and when he was called into the back office one morning, he thought it was to meet about how well he’d been doing.
We’re sorry, Steese was told, but you can’t work with a felony conviction.
No, wait, that’s just a misunderstanding, Steese replied. The judge said I was innocent. You can see the news stories all about me. He jumped into the first boxcar to Utah, where the company was headquartered. Folded in his back pocket was a copy of his order of innocence. If he could just show the owners, surely they would realize he was no murderer. He couldn’t get past the lobby.
In advocacy circles, Steese is counted among the exonerees. But the exoneration is only honorary. Signing the Alford plea meant he was still a convicted murderer, except that his original 1995 murder conviction had been vacated and replaced with the new deal. To a person doing a standard background check, it could appear as if Steese had killed someone in 2013. He felt as if the state had set him up to fail. It took Steese three years to find a trucking company willing to hire someone who, technically, in the eyes of the law, was an ex-felon. When CRST International invited him on board, he packed up the very next day. His truck gives him a place to stay and offers a shot at stability. Steese knows he doesn’t have much time left to work. “I’m 20 years behind,” he says.
Almost forgotten now is Gerard Soules. His sister, Kathy Nasrey, had written an angry letter to Cadish after the plea, telling her that if Steese hurt anyone else it was on her head. The district attorney hadn’t informed her that Steese had been found innocent, just that his release was the judge’s doing. Nasrey wept when she learned the truth, for Steese and for her brother, whose killer had never been caught. An entire room of her Detroit home remains a shrine to Jerry and his circus career. Nasrey still has Soules’s silver ring, stained with blood, in the envelope the coroner had returned it in. She wonders if the killer’s DNA is on it, and if anyone cares.
Both the Clark County DA and the North Las Vegas Police consider the Soules murder a closed case. The current DA, Steve Wolfson, who authorized Steese’s Alford plea, declined to discuss the matter. Herndon to this day stands by his prosecution of Steese, though he says he would produce Rock’s phone records if he had it to do over again. But he was skeptical about the use of the Alford plea. “If a judge has found somebody actually innocent, then there’s a part of me that says walk away from the case. You shouldn’t be asking somebody to plead guilty to something,” he said last year during a lunch break in his chambers. He added that if he had put someone in prison for a crime that person didn’t commit, “then it’s the worst thing I’ve ever done in my life.”
Kephart spends his days on the third floor of the Regional Justice Center in downtown Las Vegas. Steese’s Alford plea in 2013 had conveniently shut down what could have been a damaging examination of Kephart’s conduct, clearing the way for the justice of the peace to make a successful leap to the more powerful district court in 2014. He will not talk about the pursuit and wrongful conviction of Fred Steese. When court is in session, he puts on his black robe. Ruddy-faced, as if he’d worked out but hadn’t quite cooled down, he strides to the bench.
“All rise. The Honorable William Kephart presiding.”
Maha Ahmed is a soon-to-be graduate of the University of Chicago, where she studied sociology and public policy. She was a managing editor of the community newspaper South Side Weekly, and worked at the Invisible Institute, In These Times magazine and other nonprofit media organizations in Chicago. Her reporting interests include policing, criminal justice, public education, and how they intersect with race, gender, and economic disparity. After graduation, she will work as an editorial fellow at Mother Jones.
Alex Darus
Alex Darus is a third-year journalism student at Ohio University. She is currently the blogs editor for The Post, a student-run newspaper on campus. She is also the social media director for the Scripps Hispanic Network and freelances TV recaps for Us Weekly. This summer she’ll be interning at cleveland.com.
Janaya Greene
Janaya Greene is a rising senior studying Public Affairs Journalism at The Ohio State University. Janaya was a Vice Media and Center for Communication fellow in 2016 and has worked as a Writing Intern for the Black Girl Nerds website. A native of Chicago’s South Side, her career goal is to report on communities in the African diaspora worldwide. Janaya is currently a Video and Audio Production intern at Dynasty Podcasts.
Sarah Beth Guevara
Sarah Beth Guevara is a sophomore at The University of Oklahoma, where she studies Broadcast Journalism and Vocal Music. She is involved with OU Nightly, a student-produced daily newscast. Sarah is a National Hispanic Merit Scholar. Her goal is to bring more awareness to the foster care system and to demonstrate how journalism can be a positive tool for change.
Jazzlyn Johnson
Jazzlyn “Jazzie” Johnson is a freshman journalism and resource conservation student at the University of Montana. She has written for her high school’s newspaper and for an online editorial publication. She enjoys reading and writing about environmental and racial issues. Johnson’s aspirations include becoming an investigative reporter covering racial inequality and people of color’s relationship to the outdoors and the environment.
Akira Kyles
Akira Kyles is a junior multimedia journalism major at Morgan State University. She is Managing Editor of the MSU Spokesman, Morgan State’s school newspaper. Originally from Oxon Hill, Maryland, she’s interned at the Baltimore City Paper, and freelanced for the Afro-American. She hopes to become an investigative reporter focusing on urban communities. For the past year she’s been focused on reporting on African-American health.
Jorge Martínez
Jorge Martínez is a rising senior at Brown University, studying Science and Society with a focus on Indigenous Knowledge. He has spent the past year working with tribal members of the California Indian community. His heritage is Jñatrjo (Mazahua) and Ñuu Sau (Mixtec). This summer he will be working with the Los Angeles Public Library to set up an exhibit celebrating the Zapotec community. Martínez strives to highlight Indigenous voices within the mainstream media.
Berenice Osorio
Berenice “Bere” Osorio is a senior studying Radio/Television/Video and Sociology at University of the Ozarks. She is a native of Mexico City. She came to the U.S. through the Walton International Scholarship program to pursue her dream of telling stories that impact people’s lives. During the 2017-18 school year, Bere will serve as a peer mentor and a teaching assistant for a Media Production class, and will serve as the news director of Ozarks Weekly.
Aneri Pattani
Aneri Pattani recently graduated with a degree in journalism from Northeastern University in Boston. This summer, she will be a James Reston Reporting Fellow at The New York Times, working with the health and science teams. She will also be traveling to Liberia with New York Times columnist Nicholas Kristof. She has worked at CNBC, The Texas Tribune, The Boston Globe and The Hartford Courant.
Michelle Salinas
Michelle Salinas recently received her MA in Latin American Studies from UCLA. While an undergraduate, she served as managing editor of La Gente Newsmagazine. This past March she formed part of the NPR’s Next Generation Radio program at USC and produced a story on a young immigrant’s first days in the U.S. Salinas works on journalistic multimedia projects that connect history, art and culture. She plans on starting her own podcast on news from Latin America through an art and culture lens.
Maggie McCarty Sanders
Maggie McCarty Sanders is a direct descendent of the last whale hunter of the Makah nation. She received her Master’s Degree in Public Administration with a concentration in Tribal Administration. For the past five years, her work has been with the Nisqually Indian Tribe’s Natural Resources Department, where she works with tribal colleges and universities on climate change, its impact on treaty trust resources and engaging tribal communities to become resilient in the face of climate change.
Ellis Simani
Ellis Simani is an aspiring journalist and developer from Seattle’s Rainier Valley. A recent graduate of Claremont McKenna College, Ellis spent his time outside the classroom reporting for the South Seattle Emerald and also served as a Digital Scholarship Fellow for the Claremont University Consortium’s Digital Humanities initiative. This summer he’ll be joining The Seattle Times as the paper’s Digital and Interactives intern. Ellis is excited to build community with other journalists of color, especially among black journalists who code, or are interested in incorporating data and design in their reporting.
by David Epstein for ProPublica, and Mark Daly, BBC
This story was co-published with the BBC.
Two years ago, two men played key roles in an investigation by ProPublica and the BBC into possible anti-doping violations and the unorthodox use of prescription drugs by the elite Nike Oregon Project and head coach Alberto Salazar.
Now Dr. Jeffrey Brown, a Houston endocrinologist who treated many NOP athletes, and whistleblower Steve Magness, a former NOP assistant coach, are playing similar roles in a follow-up investigation by the U.S. Anti-Doping Agency, which has documented pervasive misuse of prescription drugs and what it referred to as “highly likely” anti-doping violations involving a half-dozen current and former NOP athletes.
A recently leaked draft report details how USADA, with written permission, obtained copies of athletes’ medical records from Brown. But the report notes that some records, particularly those of 2008 Olympic marathoner Dathan Ritzenhein, appear to have been altered. In an interview with the BBC and ProPublica this week, Magness said that at least one of the records Brown gave to USADA regarding Magness’ own treatments also appears to have been altered and doesn’t match the copy he has from the visit.
“My only speculation is that the changes were made to make it look like patient care had been given,” Magness said. During the visit, he said, he actually served as a guinea pig to test a potentially performance-enhancing procedure.
The leaked interim USADA report was compiled in 2016 in response to a subpoena from the Texas Medical Board requesting a copy of USADA’s investigative files. The board launched its own investigation of Brown, and did not respond to a request for comment.
Among the documents in the report are notes from Brown’s office on a 2011 “follow up visit” with Magness, who was then assistant coach for the NOP.
The notes document an experiment on Magness in which he was given a large infusion of the supplement L-carnitine to see if it would enhance his running performance. L-carnitine is a legal substance that helps the body convert fat to energy. According to the USADA report, the experiment violated World Anti-Doping Code infusion limits that apply both to athletes and support personnel. Magness said when he saw the copy of the notes in the report, he noticed significant differences from his own copy. The infusion notes are still there, but so are checkmarks indicating that Magness received a medical examination beyond the L-carnitine experiment.
Spaces are checked off under the “Exam” category for: “General,” “Lungs,” “Thyroid,” “Neuro” and “Abdomen,” among others. Magness, now a coach at the University of Houston, provided a copy that is otherwise identical to the BBC and ProPublica.
“I do not recall these things being done,” said Magness, who has shared the record with USADA. “I wasn’t even in a patient room, but instead in his office during this visit. I do not recall his normal checks of my thyroid, or anything else.”
Left: a copy of Brown’s exam notes obtained from Magness. Right: a copy of the same document obtained by USADA from Brown. The highlighted area indicates discrepancies between the two versions.
Magness, who had been a patient of Brown’s since he was a top high school distance runner, said that the apparent alterations may have been added to make it look like the infusion was conducted alongside a thorough exam. “Without proper checks, it might look like he was prioritizing a company — Nike, Salazar — that was paying him over the health of his patient,” he said.
A New York Times story about the USADA report last week highlighted the discrepancies between the records Brown provided for Ritzenhein and those the distance runner gave to USADA directly. Ritzenhein was also given L-carnitine infusions, and the records turned over by Brown’s office indicate he received a 40 mL infusion, just under the 50 mL limit that would constitute an anti-doping violation. Copies of the same records provided by Ritzenhein are identical, but do not contain the same reference to 40 mL. Additionally, according to the USADA report, “an entire page of handwritten notes … was completely removed.” Based on other medical information, the report concludes that Ritzenhein’s infusion actually did exceed the allowable limit. The USADA report said that the same is likely true for five other NOP athletes.
In a written response to questions from the BBC and ProPublica, an attorney for Brown, Joan Lucci Bain, said that all medical records provided to USADA were accurate and given with patient consent. Brown could not comment on patients or their records, she said, without signed consent to do so.
But she blasted the accusations in the report, and said that USADA is “a private corporation which stands to gain financially through publicity, essentially using the press to spread its own ‘fake news.’” She added that the agency’s legal proceeding in a Texas district court, intended to compel Brown to give a deposition, had been dismissed. Bain said that questions from the BBC and ProPublica are “the latest attempt by USADA to bait Dr. Brown into breaking the law by ‘leaking’ false information to journalists in the hope that Dr. Brown will cross the line while trying to defend himself.”
USADA investigators claim the interim report was released by Russian hacking group Fancy Bear, and it is currently posted online in its entirety.
The report, which has no official standing, nevertheless reveals the breadth of the investigators’ findings thus far and the key role played by Brown. It concludes: “USADA has found that these potential anti-doping rule violations appear to have wholly or largely occurred in the context of a larger conspiracy between Nike Oregon Project Coach Alberto Salazar and Houston endocrinologist Dr. Jeffrey Brown to collude in order to employ risky and untested alternative and unconventional (and sometimes potentially unlawful) uses of medical procedures and prescription medications (including both substances and methods prohibited under the rules of sport…) to attempt to increase the testosterone, energy and blood levels of Nike Oregon Project athletes in order to boost athletic performance.”
Magness, other former NOP athletes and support personnel, and former Nike employees first spoke to the BBC and ProPublica in 2015 alleging that Salazar was engaged in a range of potential doping violations, from experimenting with well-known doping aids, such as testosterone, to giving athletes prescription medications they either didn’t need or weren’t prescribed in hopes of gaining a competitive advantage from their side effects.
Some top runners and others who’ve worked with Salazar allege that he experimented with testosterone and pressured athletes to use prescription medications they didn’t need to gain a performance benefit. Read the story.
Salazar denied the allegations at the time and wrote a lengthy rebuttal. The USADA report notes that Salazar admitted in an interview with USADA to “using testosterone near the end of his competitive career in the mid-1990s,” and also that he had multiple testosterone prescriptions in recent years from doctors in different states. The BBC and ProPublica previously reported that Salazar had coordinated tests on his son in a lab at the Nike campus to determine how much testosterone gel it took to trigger a positive test. Salazar said that the testing was for the purposes of counter-sabotage, should a rival try to rub testosterone gel on an NOP athlete.
Though Magness has contributed to the USADA investigation as a whistleblower, he may also face a ban for his part in the L-carnitine experiment. Salazar had been excited by research on L-carnitine suggesting the supplement provided notable performance benefits and had been eager to try it on his athletes, the report said. In a 2011 email to Lance Armstrong, Salazar wrote: “Lance, call me asap! We have tested it and it’s amazing.” Magness says he was the reluctant guinea pig.
Mo Farah, the four-time Olympic champion distance runner who was recently knighted, has also trained under Salazar and in 2014 received an injection of L-carnitine ahead of a major race that U.K. Athletics doctor Robin Chakraverty failed to record properly.
Before the Culture, Media and Sport Select Committee in April, Chakraverty said the injection was within the legal limit, though UKA chairman Ed Warner called his failure to record the treatment properly “inexcusable.”
On May 14, The Daily Caller, a popular conservative website, published a news story about recent protests in Charlottesville, Virginia. Led by prominent white supremacists and anti-Semites, the protesters, some carrying the battle flag of the Confederacy, expressed their anger over the city’s plans to remove a large monument to Robert E. Lee.
The article noted that some 200 people had carried torches in a march to the monument, a procession it called “visually striking.” It also quoted a young black man speaking favorably about one of the protest’s organizers.
The story, it turned out, also carried some critical omissions: It didn’t disclose that its author, Jason Kessler, is supportive of white supremacist groups, and on the day of the march had himself made a speech to the protesters in which he praised fascist and racist organizations, thanked a prominent Holocaust denier, and declared the beginnings of a cultural “civil war.”
ProPublica contacted Kessler after the article’s publication. In the course of an extended interview, Kessler said he saw efforts to remove symbols of the Confederacy as part of a broader attack on white people who, in his view, face an “existential crisis.”
“White people are rapidly becoming a minority in the U.S. and Europe,” he said, adding that he resented the country having to take in immigrants and refugees. “If we’re not able to advocate for ourselves we may go extinct.”
ProPublica also contacted The Daily Caller. Widely read in right-wing circles — the site gets nearly 10 million unique visitors per month, according to Quantcast — The Daily Caller was co-founded in 2010 by Tucker Carlson, who served as editor-in-chief until late last year when he took a prime-time job at Fox News. Carlson, who hosts a nightly show in the time slot that once belonged to Bill O’Reilly, remains co-owner of the site. Like Breitbart News, The Daily Caller has found an audience by posting a constant stream of punchy news stories, some of them imbued with racial overtones.
Within hours of being contacted by a ProPublica reporter, The Daily Caller appended an editor’s note to the article and severed its ties with Kessler. The editor’s note states, “The author notified The Daily Caller after publication that he spoke at a luncheon May 14 on behalf of an effort to preserve the monument.”
“The story is factually accurate and plainly states what happened at the event,” said Paul Conner, executive editor of The Daily Caller. “But in light of his activism on the issue, we have mutually agreed to suspend our freelance relationship with him.”
Asked about the substance of Kessler’s speech in Charlottesville, Conner offered no comment on Kessler’s statements. In an email, he said only, “We pay writers for journalism, not their opinions.”
The debate around Civil War monuments has become one of the many flashpoints at a racially volatile moment in the country’s history. In recent years, public officials throughout the South have sought to vanquish symbols of the Confederacy: In 2015, South Carolina took down the confederate flag that had long flown over the state capitol; more recently, New Orleans removed three statues of rebel war leaders that had dotted the city’s landscape, as well as a tall stone obelisk commemorating a Reconstruction-era uprising led by the White League, a racist militia.
In a speech that gained national attention, New Orleans Mayor Mitch Landrieu argued that the statues had originally been erected in an effort to “rebrand” the Confederate cause. “These monuments purposefully celebrate a fictional, sanitized Confederacy; ignoring the death, ignoring the enslavement, and the terror that it actually stood for,” Landrieu said.
The Daily Caller has followed these developments closely, and its readers seem to appreciate the coverage. Kessler’s story generated 146 comments, many expressing support for the Confederate monuments, some openly hostile towards African Americans. A May 20 piece on an Alabama Senate bill that would preserve the monuments in that state spurred nearly 130,000 shares on Facebook, as well as a lengthy chain of comments, a large number of them lauding Alabama lawmakers for their stance.
The event in Charlottesville included an appearance by Richard Spencer, president of the National Policy Institute, a white nationalist organization. Kessler quoted Spencer in the article, which chiefly portrayed the protest as a pushback against “left-wing ideologues who want to tear down statues, change the names of buildings and rewrite history books to place white people in an unsympathetic and even hostile light.”
“We are here to say no; no more attacks on our heritage, on our identity; no more attacks on us as a people,” Kessler quoted Spencer as saying.
Kessler’s story made no mention of his own talk before the protesters. Speaking during an outdoor luncheon, Kessler praised groups such as the American Vanguard, an organization that espouses the eradication of the country’s democratic structure of governance. He hailed Matthew Heimbach, who views himself as a warrior against Jews and people of color, and Sam Dickson, a denier of the Nazi Holocaust who has been involved in racist activities since the 1970s.
In the interview, Kessler, accused ProPublica of trying to sabotage his journalism career. Kessler, 33, lives in Charlottesville, where he pleaded guilty to a misdemeanor assault charge in April; in mid-May he was arrested again, this time for disorderly conduct stemming from a scuffle at an anti-racist rally in his hometown. Kessler is fighting the charges and is slated to go to trial later this year. Kessler has written stories for his own website, Jasonkessler.net — his tagline is “Real News” — VDare, and GotNews, the website run by Internet provocateur Charles C. Johnson. In addition to written journalism, he posts video logs to YouTube, composes fiction and poetry, and maintains a constant presence on Twitter. He heads a small activist group called Unity and Security for America that aims to drastically limit immigration to the U.S. from non-European countries so as to stave off the impending “white genocide” in America.
Kessler describes himself as an “activist-journalist” on the issue of saving monuments honoring the Confederacy. He said he views the white supremacists and fascists as allies but doesn’t subscribe to all of their views. He insists he’s not a racist or an anti-Semite.
Cloudflare, a prominent San Francisco outfit, provides services to neo-Nazi sites like The Daily Stormer, including giving them personal information on people who complain about their content. Read the story.
“I just wanted to thank people for coming out and supporting the monuments. That doesn’t mean I support all their politics,” he said of his talk to the protesters. “I’m not going to sit and pass judgment on these people for the views they express. I don’t condemn or endorse what other people say.”
“The most extreme people are the bravest people,” Kessler told ProPublica. “There’s a paucity of people who are willing to take a stand for white civil rights.”
Kessler said whites may need to create their own homeland, an ethnic state for people of European descent. Still, he added in the interview, “As far as being hateful towards other people, I’m not on board.”
In a YouTube clip posted the same day as his interview with ProPublica, Kessler floated the theory that Jews are relying on “collusion and nepotism” to seize power and influence for themselves.
In Kessler’s view, his friends within the neo-Nazi and white supremacist milieu aren’t hurting anybody. In any case, he said, he’s more concerned about the “little white girls being blown up by” Islamist terrorists.
The Anti-Defamation League, which studies trends on the extreme right, has a different take, noting that white racists and anti-government militants have left a long trail of violence in their wake, killing some 255 people and injuring more than 600 in terror attacks over the past quarter century, according to a recent ADL report.
In a March attack, a white supremacist and former U.S. Army soldier impaled an African-American man with a 26-inch sword near New York’s Times Square, killing the victim. In Portland, Oregon, another white supremacist, Jeremy Christian, allegedly stabbed two men to death on a commuter train on May 26 while shouting anti-Muslim statements. And earlier this month, law enforcement investigators found bomb materials at the Florida home of a 21-year-old member of the Atomwaffen Division, a neo-Nazi group, leading to federal charges.
“Kessler is representative of what hate looks like today, operating at the center of several movements that have arisen over the last few years,” said Oren Segal, Director of the ADL’s Center on Extremism. “He clearly sympathizes with white supremacists, but like many on the alt-right seeks to deflect such notions by presenting his words and activity as a mere response to multiculturalism and an assault from the left.”
A company that manages prescription drug plans for tens of millions of Americans has sued a tiny drug maker that makes an emergency treatment for heroin and painkiller overdoses, increasing the tension between the companies that make drugs and those that decide whether they should be covered.
Express Scripts, the nation’s largest pharmacy benefits manager, is suing Kaléo, the manufacturer of Evzio, the injectable overdose treatment whose price quintupled last year, drawing widespread outrage and inquiries from members of Congress. Express Scripts claims it is owed more than $14.5 million in fees and rebates related to Evzio, and it has dropped the drug from its preferred list.
In recent months, anger over rising drug costs set off a civil warwithin the pharmaceutical industry, pitting drug makers against other players in the health care system, including the little-known pharmacy benefit managers who negotiate with drug makers on behalf of insurers, large employers and government health programs. Drug makers and some members of Congress have accused Express Scripts and other benefit managers of operating in the shadows, pocketing an undisclosed share of the payments they exact from drug makers even as consumers are asked to pay inflated prices for the medicines they need.
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The lawsuit was heavily redacted because Express Scripts said it contained “sensitive business information,” but nevertheless it provides some tantalizing details about the company’s dealings. Consultants and brokers — who advise employers on their prescription drug plans — said it showed that Express Scripts is collecting fees that keep rising as drug prices go up.
For example, according to the lawsuit, which was filed in federal court in St. Louis, Express Scripts charged Kaléo “administrative fees” that climbed sharply at the same time that Evzio was rising in price. In January 2016, when Evzio carried a list price of $937.50 for two injectors, Express Scripts billed Kaléo monthly administrative fees of about $25,000 for its commercial clients. But three months later, Evzio’s price had climbed to $4,687.50, and these fees totaled nearly $130,000. That’s on top of charges that included “formulary rebates,” or drug discounts, and “price protection rebates,” which are triggered when a drug jumps in price. Those price-protection rebates totaled $14 million — most of the money that Express Scripts is trying to recoup.
Benefit managers like Express Scripts typically pass the rebates they collect from manufacturers along to their clients — insurers and large employers — after taking a portion of the rebates for themselves. But critics, like Linda Cahn, the chief executive of Pharmacy Benefit Consultants in Morristown, New Jersey, say that the benefit managers are not transparent about what share of fees they keep, and what share they pass along to clients.
Administrative fees are particularly murky, she and others said. Some of the fees are passed to clients, but benefit managers also collect other fees that are not returned to clients.
“The lawsuit reveals that Express Scripts is collecting immense sums of money. No one knows what they’re passing through and what they’re retaining,” said Cahn, who flagged the lawsuit in a note to clients Monday. “Every client and the federal government and taxpayers should insist that they do.”
But Brian Henry, a spokesman for Express Scripts, disagreed with her assessment and described Kaléo as a “deadbeat dad.” “They owe rebates and administrative fees that we share with our clients and we are working to get that money back,” he said in a statement.
Henry also said, “The vast majority of the administrative fees are passed back to our clients.” In cases in which they are not, he said, it is with the consent of the client. While Henry initially said that all administrative fees are passed along to Medicare plans, he later said he misspoke and that he should have said the “vast majority” of such fees were passed along to Medicare plans.
Spencer Williamson, the chief executive of Kaléo, said in a statement that the lawsuit was “baseless” and that the company was committed to providing affordable access to its drug “without burdensome paperwork or high out-of-pocket costs.”
The lawsuit is the latest piece of bad news for Kaléo, a private Virginia company with just two products on the market. When Evzio arrived on the market in 2014, it was sold as an easy-to-use device, similar to an EpiPen, that could be stowed in a pocket or medicine cabinet and quickly used by friends or relatives to reverse the effects of a drug overdose.
But while the device was initially hailed by addiction experts who said it would make it easier to stop fatal overdoses, the company came under heavy criticism in 2016, when it quintupled the price of Evzio. The price increase — which came in the midst of a national opioid abuse epidemic — prompted letters from members of Congress, demanding to know what had prompted the change.
Kaléo has said it sharply raised the price of Evzio to cover the cost of a new patient-assistance program that lowers the out-of-pocket costs for people who cannot afford the product. Kaléo covers all of the out-of-pocket costs for patients with private insurance, and offers Evzio free of charge to uninsured people who make less than $100,000 a year.
But critics have said that such patient-assistance programs serve to drive up the cost of drugs to the health care system because while they ease the burden on patients, they leave insurers with the bulk of the bill, especially when a less expensive alternative is available. Other forms of naloxone, the active ingredient in Evzio, are available at a much lower price.
This is not the first time Express Scripts has sued a drug maker with expensive products. In 2015, Express Scripts filed suit against Horizon Pharma, also over unpaid fees. Horizon agreed to pay Express Scripts $65 million in September 2016 to settle the case. After initially dropping coverage of Horizon’s drugs, Express Scripts added them back to its preferred drug list.
Express Scripts is also being sued. Last year, the insurance giant Anthem sued Express Scripts in federal court in New York for $15 billion and claimed the company had been overcharging it for drugs. Express Scripts, which denied the claims, said recently that it would most likely lose Anthem, its largest customer, beginning in 2020, leading to speculation about how the company will replace the business it is losing.
Correction, May 31, 2017: An earlier version of this article quoted Brian Henry, a spokesman for Express Scripts, as saying that all administrative fees are passed back to plans in the Medicare program. After the article was published, Henry indicated that he misspoke and should have said that the “vast majority” of such fees were passed along to Medicare plans.
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It’s no secret that drug prices have been rising rapidly and have placed a heavy burden on American families, particularly those with health plans that force them to pay thousands of dollars before their insurance kicks in. Certainly, drug companies are partly responsible for the price hikes. But what far fewer Americans realize is that drugs travel a multi-stop route from manufacturer to user, with each player along the way taking its bite and sometimes imposing hurdles on patients’ ability to access the drugs their doctors order.
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In the spring before the 2016 presidential election, the Obama administration’s 12-nation trade agreement known as the Trans-Pacific Partnership, or TPP, was still alive. Negotiators worked on details as Congress considered whether to ratify the pact.
The Australian government was getting in the way of one change demanded by U.S. pharmaceutical companies. Makers of cutting-edge biological drugs wanted to have data from their clinical trials protected from competitors for 12 years, as they are under U.S. law — not the roughly five years permitted under the TPP. Australian officials insisted that an extension would deprive consumers of cheaper alternatives for too long.
On April 5, 2016, a bipartisan group of U.S. lawmakers arrived in Canberra, Australia’s capital, for meetings with government officials on a broad range of subjects. Among those on the routine congressional trip was Rep. Tom Price, a Georgia Republican who would go on to become President Trump’s secretary of health and human services. Three weeks before the trip, Price had purchased up to $90,000 worth of pharmaceutical stocks — trades that would come under scrutiny after his nomination to Trump’s cabinet.
In Canberra, Price and another Republican, Rep. John Kline of Minnesota, pressured senior Australian trade officials to modify their position on the 12-year extension, according to a congressional aide who was on the trip. The Australians explained that they had no intention of changing their laws or rules in ways that could increase drug prices. Price and Kline continued pushing, according to the aide, asking for a side letter or other written guidance that the period would be extended in Australia even if it weren’t spelled out in the TPP itself.
Price’s lobbying abroad, which has not previously been reported, is another example of how his work in Congress could have benefitted his investment portfolio. He traded hundreds of thousands of dollars’ worth of shares in health-related companies while taking action on legislation and regulations affecting the industry. ProPublica previously reported that Price’s stock trades are said to be under investigation by federal prosecutors.
Price, who did not respond to an interview request for this story, has said he did nothing wrong, that his broker generally chose stocks without his knowledge and that all of his trades were publicly disclosed.
Price’s financial disclosures submitted to the House Office of the Clerk show that on March 17, 2016, he purchased shares worth between $1,000 and $15,000 each in Eli Lilly, Amgen, Bristol-Meyers Squibb, McKesson, Pfizer and Biogen. All six companies had an interest in biological drugs, which are grown from live cells and are known for short as biologics. Eli Lilly, for example, is behind Portrazza, the first biologic approved to treat a common type of lung cancer. Amgen makes a top-seller for rheumatoid arthritis and psoriasis. Biogen developed a biologic for people suffering multiple sclerosis relapses.
Kline, who has since retired from Congress, said he could not recall if he or anyone else raised the biologics issue. His financial disclosures do not show direct holdings in pharmaceutical companies.
Australia has played another role in Price’s financial activities. In 2015 the congressman bought about $10,000 worth of shares in Innate Immunotherapeutics, a small biologics firm with an office in Sydney. After the congressional trip, which also made a stop in Sydney, Price purchased a larger stake in the company, about $84,000 worth, in two private placements, the first of which was announced in June. Price was invited to purchase the shares at a discounted rate.
Then-Rep. Tom Price, R-Ga., third from left, with other members of a congressional delegation to Australia and Pru Gordon, senior adviser to the Australian Minister of Trade (House Committee on Education and the Workforce)
It’s not known if Price had any contact with the firm while in Sydney. Price didn’t respond to questions about when and where he discussed the discounted offering with company officials. The company’s officials also did not respond.
Traveling congressional delegations typically meet with a variety of local officials, and at the time of the visit to Australia it wasn’t unusual for Republican lawmakers to side with the pharmaceutical industry on the trade deal’s protections for biologics. Price’s advocacy stands out because he pushed the cause directly with foreign officials, while at the same time owning stakes in companies that could have benefited.
An itinerary for the trip reviewed by ProPublica mentions TPP in relation to one of the meetings, but does not list the biologics provision. A former Australian trade official, who asked not to be named and attended one of the meetings, confirmed that the 12-year lockup was addressed, but said he could not recall which Congress members were pushing it.
Others on the trip, organized by the House’s Education and the Workforce Committee, were Robert Scott, D-Va., Ruben Hinojosa, D-Texas, Erik Paulsen, R-Minn. and Dan Benishek, R-Mich. Those members who responded to requests for comment said they could not recall whether the provision was discussed.
The data collected during clinical trials of drugs can save competitors time in developing the cheaper alternatives to biologics known as biosimilars. Keeping the data proprietary longer extends the original drugmaker’s monopoly. While some big brand-name pharmaceutical companies also make biosimilars, they and their trade association — the Pharmaceutical Research and Manufacturers of America — advocated strongly for longer exclusivity.
In the end, the debate over the provision became moot. Trump scrapped the TPP days after taking office. Price divested his drug stocks upon taking the cabinet post. His investment in Innate Immunotherapeutics yielded a profit of at least $150,000.
Special correspondent Anne Davies in Sydney contributed to this story.
Do you have access to information about Tom Price that should be public? Email robert.faturechi@propublica.org or send him encrypted messages on Signal at 213-271-7217. Here’s how to send tips and documents to ProPublica securely.
Two Nevada laws designed to counter bad behavior by state prosecutors, or at least give some defendants the ability to undo troubling plea agreements, passed last week, although one was substantially gutted under pressure from prosecutors and police.
The legislative debate over both laws mentioned the case of Fred Steese, a drifter wrongfully convicted of murder, then declared innocent more than 20 years later by a judge after exculpatory evidence was found in the prosecution’s files. The prosecution then pressured Steese to agree to a controversial deal called an Alford plea that allowed him to say he was innocent and go free as long as he pleaded guilty.
Steese’s case — and the pattern of misbehavior by lead prosecutor Bill Kephart — were the subject of stories by ProPublica and Vanity Fair last week.
The bill that passed after being substantially watered down was AB376. If passed as originally drafted, it could have exacted penalties for the sort of misconduct that led to Steese’s conviction. It would have required prosecutors to share evidence with the defense 30 days prior to trial or risk exclusion, broadened the scope of favorable evidence they are required to share and mandated that courts dismiss charges when prosecutors showed bad faith in failing to turn evidence over.
Much of the draft law simply reinforced major U.S. Supreme Court constitutional rulings — such as Brady vs. Maryland — which apply nationwide and hold that turning over evidence favorable to the defense is a matter of civil rights and failing to do so violates a person’s right to due process. The Nevada law would have made penalties more uniform and a matter of course.
Supporters of the legislation, including the Clark County Public Defender’s office, said preventing wrongful convictions like Steese’s was one of the goals of the proposed law.
But Christopher Lalli, a top assistant with the Clark County District Attorney’s office, argued at an April hearing that the bill was “unreasonable” and a “radical change” that would “unduly burden prosecutors.” When an assemblywoman asked him what ramifications the prosecutors faced in Steese’s case, Lalli responded, “Ramifications for what?”
Lalli, who is on the disciplinary board for the State Bar of Nevada, said he was “very involved” in the Steese case and claimed “there was no exculpatory evidence withheld.”
Without mentioning that a judge had granted Steese a rare order of “actual innocence”’ or that the prosecutors’ office responded by pressuring Steese to take an Alford plea or face a retrial, Lalli noted that Steese had pled guilty to second-degree murder charges — “hardly something that would be done by somebody who was actually innocent.”
Fred Steese served more than 20 years in prison for the murder of a Vegas showman even though evidence in the prosecution’s files proved he didn’t do it. But when the truth came to light, he was offered a confounding deal known as an Alford plea. If he took it he could go free, but he’d remain a convicted killer. Read the story.
Following the hearing, only a small portion of the bill survived — a requirement that prosecutors press charges within 72 hours against defendants in custody.
Lisa Rasmussen, a director for Nevada Attorneys for Criminal Justice, said prosecutors’ failures to share evidence with the defense have been an ongoing problem in the state and it was “really depressing we could not get more reform this [legislative] session.”
But a second bill, inspired by Steese’s case and others like it, received a more favorable reception.
Rasmussen said she realized the raw deal Steese had gotten in 2013 and tried to help him withdraw his Alford plea so that he could sue for wrongful conviction. But Nevada law didn’t allow him to take back his plea. Last week, Nevada’s governor, with the support of prosecutors in the state, signed a new law that allowed certain defendants to undo plea agreements. The law, however, comes too late to help Steese, Rasmussen said.
“What happened to Fred makes me so mad,” she said. “We’re filing an application for a pardon.”
A self-made Vermonter, Glenn Bowman has sent both his children to out-of-state prep schools. His son plays lacrosse and football at Phillips Exeter Academy in New Hampshire, and his daughter studied advanced dance at Deerfield Academy in Massachusetts.
As the owner of a successful soapstone company that's been featured on Martha Stewart and mentioned in The New York Times, Bowman could pay the $50,000-plus annual tuitions at each school out of his own pocket, he said.
But he doesn’t have to.
Because Londonderry, the small town where the Bowmans live, has no high school, they qualify for Vermont’s voucher program, the nation’s oldest. It contributes about $15,000 a year toward each tuition, ultimately saving Bowman more than $100,000 overall on his children’s high school educations.
Bowman chose not to enroll his children in a public school in a nearby town, which the voucher could also have paid for. “Unfortunately, public schools are left dealing with the lowest common denominator and that leaves high-performing kids like mine in a tough place,” he told ProPublica. “You do the best you can for your kids. I can do this and so I do.”
Vermont’s voucher program is a microcosm of what could happen across the country if school-choice advocates such as Education Secretary Betsy DeVos achieve their vision. By subsidizing part of the cost of private schools in or out of state, it broadens options for some Vermonters while diverting students from public education and disproportionately benefiting wealthier families like the Bowmans.
Vermont vouchers have been used to send students to ski academies, out-of-state art schools and even foreign boarding schools, such as the Sigtunaskolan School in Sweden, whose alumni include Sweden’s current king and former prime minister. Vermont paid more than $40 million in vouchers to more than 60 private schools last year, including more than $1.3 million to out-of-state schools, according to data received from the state’s education agency through a public-records request.
Of the almost 2,800 Vermonters who use publicly funded vouchers to go to private schools in state, 22.5 percent qualify for free or reduced price lunch, according to state education data. (The data excludes out-of-state private schools.) By contrast, 38.3 percent of public school students in Vermont have family incomes low enough to qualify them for the lunch discount.
“Families with higher socioeconomic status are opting into the private schools,” Nicole Mace, executive director of the Vermont School Boards Association, said in an interview. “If those dollars are going to subsidize a family who could otherwise afford a private school, that is not the best use of taxpayer dollars.”
Since a voucher covers less than half of the typical prep school tuition, low-income Vermonters still can’t afford the likes of Exeter or Deerfield, unless they receive financial aid from the school. The Putney School in Putney, Vermont, which has had an average of 14 voucher students per year over the past five years, charges over $35,000 in tuition and fees, more than double the voucher amount.
Of these students’ tuitions, 36 percent has been funded by vouchers, 37 percent by financial aid from The Putney School and 27 percent by the family’s contribution, said Michael Bodel, the school’s director of communications. Most of the students come from Vermont, with the rest from Maine, where towns without public schools also offer vouchers for public or private schooling.
“The school choice program has been meaningful for us and critical for many of our students and their families,” Bodel said. “Vouchers often serve as a valuable financial resource in tandem with financial aid awards.”
Northfield Mount Hermon School in Massachusetts, which had six voucher students in 2016, costs $44,015 in tuition and fees. Stephen Porter, the school’s director of communications, said that the students who use the vouchers come from a mix of scholarship and full-paying families. Ultimately, said Porter, the vouchers save the school “dollars to give to other students with financial aid needs.” Exeter and Deerfield did not comment.
Vermont’s voucher program is spurring controversy there, including proposals to tighten regulation of private schools that accept vouchers, or to ban using vouchers for out-of-state schools. Overlooked outside the small, rural state, the debate in Vermont has implications for the rest of the country as the Trump administration aggressively pushes for school choice nationwide. The administration’s recently proposed budget includes $250 million to study and expand vouchers for students to attend religious and private schools, a longtime priority of Secretary of Education Betsy DeVos.
“If educational choice is unleashed, I am confident that the American entrepreneurial ‘can-do’ spirit will ultimately prevail, even in the industry of education,” said DeVos at the 2014 summit of the American Federation for Children, a school-choice advocacy organization that she helped found. “This is why I challenge you to fully embrace educational choice and to fight for this freedom in your home state.”
Over her career, DeVos has primarily championed vouchers for students who are poor or attend failing schools. Most current programs, which are spread out across 15 states and Washington, D.C., limit vouchers to low-income students or kids with special needs. The federal budget proposal would only provide vouchers to low-income families.
Still, some critics say that school-choice proponents attach income ceilings to voucher proposals out of political expediency. “To say it’s for poor black and Hispanic kids, that pulls at the heartstrings of Democrats who wouldn’t support charters or vouchers,” said Diane Ravitch, the New York University education historian and public schools advocate, who served as assistant under secretary of education under President George H.W. Bush. DeVos and the school choice movement “know in their bones that’s not what it’s about. It’s about the end game, and the end game is a free market place.”
The Education Department did not respond to a request for comment.
DeVos has credited the late Nobel Prize-winning economist Milton Friedman, who favored vouchers for all students regardless of socioeconomic background, with the “vision … that lit the spark of the education revolution underway today.”
With his wife Rose, Friedman founded EdChoice, an advocacy group that supports vouchers for all. Its president and chief executive officer, Robert Enlow, said in an interview that the administration’s budget brings that goal closer.
“If it helps low-income families access vouchers, that’s great, but it should be for everyone,” he said. “The conversation started at the state level, and the federal moves are increasing the dialogue around universal vouchers.”
A case in point is Indiana’s voucher program, one of the nation’s largest with more than 32,000 students. Initially, it was restricted to low-income students, but the state has loosened the requirements. Today, Indiana families earning up to $90,000 qualify for vouchers. Additionally, more than half of Indiana’s recipients had never attended a public school, indicating that many families had previously been able to cover tuition at private or religious schools on their own. What started as choice for the poor has widened into choice for the middle class.
This past April, Arizona expanded eligibility for a voucher-like program to any student regardless of income. Its program had previously offered the variant of vouchers, known as empowerment scholarship accounts, only to students from failing schools and those with special needs. Public school advocates have lambasted the new law for benefiting wealthy families who could already afford private schools.
Vermont’s program also has no income limit. To qualify, families must live in a town that lacks a public elementary or high school, also known as a “choice” town. Without a brick-and-mortar school option in town, they instead can get an annual voucher equivalent to the state’s average per-pupil expenditure, which was about $15,000 last year. The voucher can be used at any state-approved school, whether it’s the public school in a neighboring town or a private boarding school in a neighboring state. A 1999 Vermont Supreme Court ruling prohibited religious schools from receiving publicly funded vouchers under the state program. In essence, the taxpayer dollars follow the children. About half of students from “choice” towns — or about 3.5 percent of all Vermont students — use vouchers to attend private schools.
Private school advocates and many parents defend this approach, which pits public and private schools against each other in competition for a fixed number of students from “choice” towns. “If the public schools are not attracting them, whose fault is that?” said Mill Moore, executive director of the Vermont Independent Schools Association.
“The families are making judgments based on their needs and the needs of their children.”
Describing the voucher program as “completely equitable and equal,” Moore disputed that it divides Vermont’s students along socioeconomic lines. “Whether you are wealthy or living below the poverty line, everyone gets the same entitlement,” he said.
The discrepancy in free and reduced lunch could be explained if choice towns had wealthier residents than non-choice towns, but a ProPublica analysis of recent census data suggests this is not the case. Median incomes of families in choice and non-choice towns are similar.
The program began in 1869, when Vermont’s educational landscape was split between newly formed public high schools, which focused more on trade skills like farming and mechanics, and private academies that emphasized a more classical education.
Some Vermont towns were too small or rural to justify building their own public schools. Instead, the state gave families the choice to use taxpayer dollars to shuttle kids off to private academies or public schools in nearby districts. Reflecting this heritage, four of Vermont’s oldest private schools maintain their tuition and fees only slightly above the standard voucher amount. Some of the surrounding towns raise their voucher allocations slightly to make up the difference. Most of the students at these academies pay with vouchers.
The flow of students and taxpayer dollars to private schools has intensified concerns about under-funding public schools already beset by dwindling enrollment. As the population ages, the number of students attending Vermont’s schools has declined 15 percent over the past decade and a half, compared with a national enrollment increase of 6.5 percent. Reduced enrollment translates into reduced school budgets, making it harder to pay fixed costs such as building upkeep and teacher salaries.
Helen Head, a Democratic state representative from South Burlington, introduced legislation earlier this year to prohibit public funding to out-of-state and some in-state private schools. “I want to be cautious that we don’t go the way of other states in shortchanging the ability of public schools to meet the needs of our students,” she said in an interview. Her proposals are pending in the House education committee.
Facing a student shortfall, the state education board has pressured smaller school districts to merge, intensifying the discord over school choice. School-less towns risk losing their vouchers if they consolidate with another town that has a public school, causing tensions in some communities.
The board of education has also proposed stricter regulations for private schools that accept public funds. Unlike public schools, which must take all students, private schools can have selective admissions, and have been accused by some critics of excluding applicants with special needs. The board wants private schools participating in the voucher program to adopt an open enrollment policy, especially for students with disabilities, and be more transparent about their finances.
Defenders of choice contend that the board is sabotaging the state’s historic private school tradition. “The public school system is trying to close all the ‘independent’ schools so that they can harvest the students from them,” said Rob Roper, the executive director of the free-market think tank, the Ethan Allen Institute.
Casey Deane, who has taught in Vermont public schools for about 25 years, says the exodus of voucher students to private schools “really affects the classroom.” (Caleb Kenna for ProPublica)
As a public high school teacher, Casey Deane sees the effects of school choice on public schools every day. Deane lives in a “choice” town, Marlboro, but works as a social studies teacher at Union High School in neighboring Brattleboro. Over the years, Deane has observed relatively well-off and educated families using vouchers to exit the public system, leaving behind low-income and disabled students. About one-third of Brattleboro’s high school students qualify for free or reduced price lunch.
“Students whose families are engaged are able to shift to ‘better’ schools and that only spirals the public school system into deeper dysfunction,” said Deane, who has been teaching in Vermont public schools for about 25 years. “The economic discrepancy that we have now has been broadened and it really affects the classroom.”
About 45 percent of the students in choice towns around Brattleboro attend private schools in and outside of the state, accounting for about $1 million in voucher spending, according to a ProPublica analysis of state data. For cash-strapped schools like Deane’s, the taxpayer dollars could make a significant difference. “For $75,000, you could get two brand new teachers or one veteran teacher,” he said.
Partly for financial reasons, Marlboro native Aliza Racine used her voucher to go to Union High, where Deane teaches, rather than private school. Both of her parents work in the logging industry, and her mother also runs a home cleaning business. “Do I really want to have my parents go into debt just to pay for high school?” she said in an interview.
Now a junior at the University of Vermont, where she majors in political science, Racine enjoyed Union High. She was challenged academically, took four years of dance classes and even traveled on a school program to Costa Rica. But, she said, many students go to private school with the help of vouchers because of a stigma against public education.
“The public school has a negative connotation that it’s not as good or up to the same standards of private schools,” said Racine. “If you do take advantage of what the public system has to offer, it can be just as good.”
While the voucher program funnels public money out of state, it also lures families to Vermont. Bill Cobb, a lawyer, and his family left Brooklyn, New York, more than a decade ago because “we weren’t sure that the public schools would be good for our kids,” he said. After a brief stay in Connecticut, they moved to a “choice” town in Vermont.
His wife had grown up in Vermont’s Northeast Kingdom, a rural area speckled with school-less towns, and she understood the educational landscape. The Cobbs have used vouchers to send their two sons to Milton Academy, a boarding school south of Boston.
“Consumers appreciate having the choice that we have,” he said. “Once you got [the voucher], you don’t want to give it away.”
Cobb paid the Milton tuitions with a combination of his own money, vouchers and school financial aid, he said. According to Milton’s website, Cobb and his wife have donated to the private academy for at least three consecutive years.
Vermont should expand the voucher program to all residents, regardless of whether their towns have public schools, Cobb said. “If this was the system everywhere, people would be happier,” he said. “Consumers would be excited to know that they could send their kid wherever they want, and let supply and demand create new schools and competition.”
The national debate over vouchers is starting to resonate in Vermont. Kevin Chavous gave the keynote address at a National School Choice Week event in Montpelier, the state capital, in January. He’s a founding board member and executive counsel for DeVos’ former school-choice advocacy group, the American Federation for Children.
Before an audience of private school students and choice supporters, Chavous commended the state for having “the oldest school choice program in the country.”
“I wish there was the same program in every other state,” he said. “Right now, there are those who are talking about backing away from this. Don’t do that. Don’t go backward.”
Early last Monday morning, Oscar Millan’s longtime partner called him from a Boston hospital, weepy with relief.
Their son, Oscar Matias, had been born two weeks earlier with a serious condition that prevented food from traveling from his stomach to his small intestine. But that morning, he’d undergone a successful surgery to repair it, and a second was scheduled for early June. Millan told his partner, Evanice Escudero, that he’d be by to pick them up in a couple of hours, after checking in on a landscaping job he had to do that day.
But Millan, a 37-year-old undocumented Mexican immigrant, never made it to the hospital.
As he drove to the job site, he was picked up by U.S. Immigration and Customs Enforcement agents, who were looking for him near his home in Framingham, Massachusetts, about 20 miles outside of Boston. In 2008, an immigration judge had ordered Millan deported after a failed asylum claim, but Millan had stayed in the country with his family until he recently pleaded guilty to driving under the influence. An ICE spokesman said Millan’s arrest was prompted by both the deportation order and the conviction.
At the hospital, Escudero began to panic. “I was calling him over and over again but he wasn’t picking up and I didn’t know why,” Escudero said in an interview in Spanish. “I didn’t know what was going on until Oscar’s mother came to pick me up at around 11 or noon.”
After the arrest, ICE agents had gone to Millan and Escudero’s house and explained to his mother what had happened.
The move to detain Millan is a sign that the Trump administration is delivering on its promise to strictly follow longstanding immigration laws to maximize its ability to deport people living unlawfully in the United States.
After years of aggressive enforcement, the Obama administration had instructed immigration officials in 2014 to exercise more discretion in who they targeted. ICE agents were told to consider the length of time immigrants had lived in the country, their family or community ties and whether they had a young child or a seriously ill relative before seeking their deportation. The Trump administration explicitly rescinded those guidelines in February. Instead, it told immigration officers to enforce the law “to the greatest extent practicable.”
“He has to be with his family right now,” said Matthew Cameron, a Boston lawyer who’s representing Millan. “But you need to understand that there is no legal path, there never has been a legal path for that. It’s a fairly typical story now in Trump’s deportation system.”
An ICE spokesman said Millan would “remain in ICE custody pending his removal from the United States.”
It’s hard to say whether Millan’s case is a direct result of Trump’s aggressive immigration policies. Even without the DUI, a February memo from the Department of Homeland Security said immigration agents should prioritize the deportation of those who had outstanding orders to be removed.
During the first 100 days of the administration, ICE officers arrested 38 percent more immigrants than during the same period in 2016, about 410 individuals a day. The administration touted the numbers as a victory, but the narrow comparison obscures the evolution of the Obama administration on immigration enforcement. In fact, during the majority of his administration, Obama deported far more people each day than Trump has so far.
In the press release announcing the increase in arrests, ICE’s acting director Thomas Homan said the agency would no longer sit on deportation orders — like the one Millan had for years — before enforcing them.
“We are a nation of laws, and ignoring orders issued by federal judges undermines our constitutional government,” Homan said.
Millan was arrested in January 2016 by a Framingham police officer for driving under the influence. At the time, a breathalyzer test said he had a blood-alcohol concentration almost twice the Massachusetts legal limit. The police report made no mention of his immigration status, other than mentioning that Millan had no valid driver’s license, and had instead showed a Mexican one.
“After his conviction, he would have gone up the pecking order even under Obama,” said Dan Kesselbrenner, executive director of the National Immigration Project, an advocacy organization based in Boston. “And there is no real pecking order under the Trump administration. Everyone is a priority.”
Steven Carl, who led the Framingham Police Department until 2013, said that during his time there the presence of ICE agents was rare, perhaps one or two days every six months. The town is 13 percent Hispanic, according to the 2010 census, and has a particularly large Brazilian population.
“It seems odd just because he has a DUI that they would pick him up,” Carl said. “I’d think ICE would have higher priorities than that.”
The Framingham Police Department, which has a policy of not actively cooperating with ICE, did not respond to requests for comment.
After his arrest on May 22, Millan was held in a Boston detention center but was recently sent to a larger facility in Louisiana. Cameron, his lawyer, has filed an emergency request to stay his deportation — a last recourse — asking ICE to “allow him to remain with his family during this critical time in his newborn son’s life.” He said he has yet to receive a response, but the requirements of the administrative appeal are notoriously hard to decipher.
Millan’s case echoes that of Andres Magana Ortiz, 43, a Mexican immigrant who lived in the U.S. for 28 years and was recently denied an emergency stay by ICE. The U.S. Court of Appeals for the 9th Circuit said on Tuesday that it had no authority to prevent his deportation.
Only a tiny percentage of detained immigrants have attorneys, leaving even those with solid cases to stay in the United States to fend for themselves. Read the story.
ICE had granted Magana Ortiz multiple emergency stays over the years but denied his latest two petitions, filed in March and April of this year. During the time he was allowed to stay in the country, Magana Ortiz had begun the process to become a U.S. citizen after marrying an American in 2015. He is also the father of three American children and while he had two old DUI convictions, they had not prevented him from receiving the emergency stays in the past.
Two 9th Circuit judges said on Tuesday that they had no authority to grant Magana Ortiz an emergency stay. But one, Judge Stephen Reinhardt, a liberal appointee, used his concurring opinion to chastise the Trump administration.
“The government forces us to participate in ripping apart a family,” Reinhardt wrote. “The government’s decision to remove Magana Ortiz shows that even the ‘good hombres’ are not safe.”
Since arriving in Louisiana this week, Escudero said she had spoken with Millan once.
“He’s desperate,” Escudero said. “Since he arrived, they’ve already sent one group to Honduras. They are sending people back so quickly.”
In much of the debate surrounding President Donald Trump’s decision to withdraw from the Paris Agreement on climate change, some critical points have been lost.
One reality is that the agreement was always going to reflect, more than determine, whether the world develops a sustainable relationship with the climate system. The language was intentionally “soft” on what countries pledged to do domestically. There was no other way to get nearly 200 sovereign states to the table. And there was little reason to aspire to more.
The forces both driving and constraining worldwide emissions of greenhouse gases are largely outside the top-down influence of some accord. Rising global energy needs and the enduring abundance of fossil fuels are driving fuel demand and emissions growth. Dropping costs of renewable energy, the increasing substitution of natural gas for coal, and a growing focus on energy efficiency in developing economies are slowing emissions.
But obviously the agreement wasn’t soft enough for Trump, who made no mention of the clear risks from climate change laid out by his secretary of defense, James Mattis, after his confirmation hearing earlier this year, but warned of “massive legal liability” if the United States remained a signatory.
There were going to be setbacks no matter which option Trump chose, and it will take years for the consequences of his decision to play out. He included enough nuance — including the notion of working with Democrats to “negotiate our way back into Paris” or crafting something to replace it — to keep everyone guessing.
And separate from Thursday’s announcement, he had already decided on steps that could undermine international action. For example, his earlier decision to cut funding to United Nations programs related to the climate agreement (not to mention funding for population programs) is going to have substantial adverse impacts on its own. And if his budget cuts for climate science and programs aimed at fostering environmental resilience are not altered by Congress, there’ll be lots more real consequences not directly related to Paris.
Perhaps the most sobering, largely shrouded, reality is that the nations some have pointed to as the new climate leaders lose some of their luster on closer examination.
China and the European Union have used the Trump moves on climate and energy to assume, at least rhetorically, a leadership role in the public discourse over limiting global warming.
Both have garnered headlines for their aggressive and heavily subsidized pushes to expand wind and solar power generation. But while Chinese and German clean-energy policies and investments have driven the deep drop in the cost of solar panels, the economies of both countries remain heavily dependent on coal and oil.
China, while curbing domestic construction of coal-powered plants, has become a leading lender financing the construction of new coal-burning power plants in developing countries, according to a 2016 study by researchers at Boston University and the Institute for World Economics and Politics at the Chinese Academy of Social Science.
China is clearly past the peak of the domestic coal-burning binge of the early 2000s that fueled its dizzying recent rate of urbanization and industrialization. But it will be burning billions of tons of coal or turning it into cleaner natural gas for at least several more decades. Synthesizing gas from coal is great for curbing urban air pollution, particularly if the gas substitutes for burning coal as a domestic heating and cooking fuel, as is still common in China. But there’s a climate cost, as Princeton researchers have found, because the energy required to synthesize the gas is supplied by, yes, coal, producing more greenhouse gases.
And Europe, while generally basking in the glow of the Paris Agreement, has been quietly lobbying the Trump administration since February to fast-track approvals of multi-billion-dollar terminals for exporting America’s abundant shale-drilled natural gas as liquefied natural gas, or LNG, across the Atlantic. Who’s the fossil fuel villain there?
A New York Times column on the climate set off yet another dangerous tempest of exaggeration and simplification. Read the story.
In an interview in early April at a conference on sustainable energy in New York City, Maros Sefcovic, vice president of the European Commission for energy policy, said LNG exports were a central focus of meetings earlier in the year in Washington with Trump administration officials. The hope is to cut European dependence on piped Russian gas — and to provide the flexible power generation needed to balance variable output from solar and wind installations.
Later that month, Secretary of Energy Rick Perry used an appearance at the Bloomberg New Energy Finance meeting in Manhattan to announce the approval of a giant Texas LNG export terminal, owned by Qatar, ExxonMobil and others.
In an onstage discussion with Ethan Zindler of Bloomberg, Perry used a question on Paris to point out the difference between Europe’s climate-focused public statements and its work to gain gas supplies. “We’re out in the public and they’re giving all these speeches about the Paris accord and all the things we’re going to do, and we get into private meetings, it’s like, ‘How do we get that LNG?’,” he said, adding: “Don’t get up on the front end and make all these speeches about how good you’re doing, when the fact of the matter is you’re not.”
It’s important to note that expanded gas exports to Europe were also a goal of the Obama administration, both for economic and strategic reasons. President Obama had also urged fracking-averse Europe to do its own energy development, as well. Hillary Clinton, too, took heat from environmentalists during her campaign for her longstanding support of natural gas drilling, and natural gas exports.
In an email, Myles R. Allen, a climate scientist and policy analyst at Oxford University, said Trump’s decision hinted at a bigger issue, simmering well beyond the United States, that would continue to hinder progress — the enduring abundance of, and demand for, fossil fuels:
The proposal to renegotiate the U.S. terms is interesting — is it just a distraction tactic? Perhaps, but if we really want to put the future of the planet first, we do need to think about how to make the agreement both more effective and more acceptable to nations with substantial fossil reserves — or the U.S. won’t be the last one to jump ship.
It is worth noting that the site of next year’s round of annual climate change negotiations, announced Thursday by the United Nations, will be Katowice, Poland — a city in the heart of the Polish coal belt. Poland signed the Paris Agreement along with the rest of the European Union last October, but only after gaining concessions allowing its coal use to continue.
The Consumer Financial Protection Bureau is conducting an investigation into alleged improprieties in Wells Fargo’s mortgage fee practices.
The CFPB is looking into allegations, first reported by ProPublica in January, that the bank inappropriately charged customers fees to extend their promised interest rates when their paperwork was delayed. The CFPB probe is in its early stages, according to a person familiar with it, and there is no certainty that the agency will take action. The CFPB has the power to levy fines and seek restitution if it finds a financial firm has violated the law. A CFPB spokesperson declined to comment.
Wells Fargo is also conducting its own internal review, overseen by the law firm Winston & Strawn. The inquiry was initially limited to the Los Angeles area, but has since widened. In a sign of its escalating scope and seriousness, Wells Fargo let three top mortgages executives go last week, including Greg Gwizdz, a 25-year veteran of the bank who most recently was the head of its retail sales division. Gwizdz oversaw the bank’s more than 7,900 loan officers.
The bank also dismissed Drew Collins, the manager of the Pacific division, and Sandy Streator, the regional sales manager for Nevada and Oregon. Previously the bank parted ways with Tom Swanson, the Los Angeles County regional sales manager. Gwizdz, Collins and Streator did not respond to requests for comment.
The decision to let the executives go was a result of “some of the things we found as part of” the internal review, said bank spokesman Tom Goyda, though he added that “no single issue or situation” led to the departures. Goyda declined to comment on the CFPB probe.
ProPublica reported Wells Fargo mortgages routinely bogged down in paperwork delays. When that occurred, supervisors instructed loan officers to blame and charge the customers, even when the problems were the fault of the bank, according to current and former Wells Fargo employees. Customers were charged fees of $1,000 to $1,500 or more, depending on the size of the loan, to extend, or lock in, their interest rates. The practice of shunting the fees onto the customers was particularly common in the Los Angeles County and Oregon regions.
In Oregon, part of Streator’s territory as regional sales manager, two former loan officers and one former branch officer told ProPublica in February they were instructed to charge customers for mortgage lock extensions even when the bank was responsible. The former branch officer estimated that in 2015 and 2016 he oversaw 350 mortgages that needed lock extensions. He said the bank only paid the fee twice.
Wells has been reshuffling management elsewhere within the organization as part of the fallout into an earlier and separate scandal. Last September, the bank was fined $185 million for illegally opening as many as 2 million deposit and credit card accounts without customers’ knowledge. In February, it fired four senior managers connected to that wrongdoing.
In April, the board of directors issued a report excoriating the bank’s top-level management for its high-pressure sales culture.
The CFPB probe comes at a time when the 6-year-old agency’s own future is uncertain under the Trump administration. Banks, financial firms and the Republican Party have opposed the agency and its sweeping powers to oversee consumer finance. Consumer advocates and the CFPB’s adversaries await a decision from the U.S. Court of Appeals for the District of Columbia about the constitutionality of the agency. Adding to the uncertainty, Richard Cordray, the director of the agency, is expected to be leaving his post sometime this summer, though his term does not expire until July 2018.
As President Donald Trump faces criticism for blocking users on his Twitter account, people across the country say they, too, have been cut off by elected officials at all levels of government after voicing dissent on social media.
In Arizona, a disabled Army veteran grew so angry when her congressman blocked her and others from posting dissenting views on his Facebook page that she began delivering actual blocks to his office.
A central Texas congressman has barred so many constituents on Twitter that a local activist group has begun selling T-shirts complaining about it.
And in Kentucky, the Democratic Party is using a hashtag, #BevinBlocked, to track those who’ve been blocked on social media by Republican Gov. Matt Bevin. (Most of the officials blocking constituents appear to be Republican.)
The growing combat over social media is igniting a new-age legal debate over whether losing this form of access to public officials violates constituents’ First Amendment rights to free speech and to petition the government for a redress of grievances. Those who’ve been blocked say it’s akin to being thrown out of a town hall meeting for holding up a protest sign.
On Tuesday, the Knight First Amendment Institute at Columbia University called upon Trump to unblock people who’ve disagreed with him or directed criticism at him or his family via the @realdonaldtrump account, which he used prior to becoming president and continues to use as his principal Twitter outlet.
“Though the architects of the Constitution surely didn’t contemplate presidential Twitter accounts, they understood that the president must not be allowed to banish views from public discourse simply because he finds them objectionable,” Jameel Jaffer, the Knight Institute’s executive director, said in a statement.
The White House did not respond to a request for comment, but press secretary Sean Spicer said earlier Tuesday that statements the president makes on Twitter should be regarded as official statements.
Similar flare-ups have been playing out in state after state.
Earlier this year, the American Civil Liberties Union of Maryland called on Gov. Larry Hogan, a Republican, to stop deleting critical comments and barring people from commenting on his Facebook page. (The Washington Post reported that the governor had blocked 450 people as of February.)
Deborah Jeon, the ACLU’s legal director, said Hogan and other elected officials are increasingly foregoing town hall meetings and instead relying on social media as their primary means of communication with constituents. “That’s why it’s so problematic,” she said. “If people are silenced in that medium,” they can’t effectively interact with their elected representative.
The governor’s office did not respond to a request for comment this week. After the letter, however, it reinstated six of the seven people specifically identified by the ACLU (it said it couldn’t find the seventh). “While the ACLU should be focusing on much more important activities than monitoring the governor’s Facebook page, we appreciated them identifying a handful of individuals — out of the over 1 million weekly viewers of the page — that may have been inadvertently denied access,” a spokeswoman for the governor told the Post.
Practically speaking, being blocked cuts off constituents from many forms of interacting with public officials. On Facebook, it means no posts, no likes and no questions or comments during live events on the page of the blocker. Even older posts that may not be offensive are taken down. On Twitter, being blocked prevents a user from seeing the other person’s tweets on his or her timeline.
Moreover, while Twitter and Facebook themselves usually suspend account holders only temporarily for breaking rules, many elected officials don’t have established policies for constituents who want to be reinstated. Sometimes a call is enough to reverse it, other times it’s not.
Eugene Volokh, a constitutional law professor at the UCLA School of Law, said that for municipalities and public agencies, such as police departments, social media accounts would generally be considered “limited public forums” and therefore, should be open to all.
“Once they open it up to public comments, they can’t then impose viewpoint-based restrictions on it,” he said, for instance allowing only supportive comments while deleting critical ones.
But legislators are different because they are people. Elected officials can have personal accounts, campaign accounts and officeholder accounts that may appear quite similar. On their personal and campaign accounts, there’s little disagreement that officials can engage with — or block — whoever they want. Last month, for instance, ProPublica reported how Rep. Peter King, R-N.Y., blocked users on his campaign account after they criticized his positions on health reform and other issues.
But what about their officeholder social media accounts?
The ACLU’s Jeon says that they should be public if they use government resources, including staff time and office equipment to maintain the page. “Where that’s the situation and taxpayer resources are going to it, then the full power of the First Amendment applies,” she said. “It doesn’t matter if they’re members of Congress or the governor or a local councilperson.”
Volokh of UCLA disagreed. He said that members of Congress are entitled to their own private speech, even on official pages. That’s because each is one voice among many, as opposed to a governor or mayor. “It’s clear that whatever my senator is, she’s not the government. She is one person who is part of a legislative body,” he said. “She was elected because she has her own views and it makes sense that if she has a Twitter feed or a Facebook page, that may well be seen as not government speech but the voice of somebody who may be a government official.”
Volokh said he’s inclined to see Trump’s @realdonaldtrump account as a personal one, though other legal experts disagree.
“You could imagine actually some other president running this kind of account in a way that’s very public minded — ‘I’m just going to express the views of the executive branch,’” he said. “The @realdonaldtrump account is very much, ‘I’m Donald Trump. I’m going to be expressing my views, and if you don’t like it, too bad for you.’ That sounds like private speech, even done by a government official on government property.”
It’s possible the fight over the president’s Twitter account will end up in court, as such disputes have across the country. Generally, in these situations, the people contesting the government’s social media policies have reached settlements ending the questionable practices.
After being sued by the ACLU, three cities in Indiana agreed last year to change their policies by no longer blocking users or deleting comments.
In 2014, a federal judge ordered the City and County of Honolulu to pay $31,000 in attorney’s fees to people who sued, contending that the Honolulu Police Department violated their constitutional rights by deleting their critical Facebook posts.
And San Diego County agreed to pay the attorney’s fees of a gun parts dealer who sued after its Sheriff’s Department deleted two Facebook posts that were critical of the sheriff and banned the dealer from commenting. The department took down its Facebook page after being sued and paid the dealer $20 as part of the settlement.
Angela Greben, a California paralegal, has spent the past two years gathering information about agencies and politicians that have blocked people on social media — Democrats and Republican alike — filing ethics complaints and even a lawsuit against the city of San Mateo, California, its mayor and police department. (They settled with her, giving her some of what she wanted.)
Greben has filed numerous public-records requests to agencies as varied as the Transportation Security Administration, the Seattle Police Department and the Connecticut Lottery seeking lists of people they block. She’s posted the results online.
“It shouldn’t be up to the elected official to decide who can tweet them and who can’t,” she said. “Everybody deserves to be treated equally and fairly under the law.”
Even though she lives in California, Greben recently filed an ethics complaint against Atlanta Mayor Kasim Reed, a Democrat, who has been criticized for blocking not only constituents but also journalists who cover him. Reed has blocked Greben since 2015 when she tweeted about him … well, blocking people on Twitter. “He’s notorious for blocking and muting people,” she said, meaning he can’t see their tweets but they can still see his.
In a statement, a city spokeswoman defended the mayor, saying he’s now among the top five most-followed mayors in the country. “Mayor Reed uses social media as a personal platform to engage directly with constituents and some journalists. … Like all Twitter users, Mayor Reed has the right to stop engaging in conversations when he determines they are unproductive, intentionally inflammatory, dishonest and/or misleading.”
Asked how many people he has blocked, she replied that the office doesn’t keep such a list.
J’aime Morgaine, the Arizona veteran who delivered blocks to the office of Rep. Paul Gosar, a Republican, said being blocked on Facebook matters because her representative no longer hosts in-person town hall meetings and has started to answer questions on Facebook Live. Now she can’t ask questions or leave comments.
“I have lost and other people who have been blocked have lost our right to participate in the democratic process,” said Morgaine, leader of Indivisible Kingman, a group that opposes the president’s agenda. “I am outraged that my congressman is blocking my voice and trampling upon my constitutional rights.”
@RepGosar ..You weren't home when I delivered this message to your office, but no worries...there WILL be more!
— Indivisible Kingman (@IndivisibleCD4) May 13, 2017
Morgaine said the rules are not being applied equally. “They’re not blocking everybody who’s angry,” she said. “They’re blocking the voices of dissent, and there’s no process for getting unblocked. There’s no appeals process. There’s no accountability.”
A spokeswoman for Gosar defended his decision to block constituents but did not answer a question about how many have been blocked.
“Congressman Gosar’s policy has been consistent since taking office in January 2010,” spokeswoman Kelly Roberson said in an email. “In short: ‘Users whose comments or posts consist of profanity, hate speech, personal attacks, homophobia or Islamophobia may be banned.’”
On his Facebook page, Gosar posts the policy that guides his actions. It says in part, “Users are banned to promote healthy, civil dialogue on this page but are welcome to contact Congressman Gosar using other methods,” including phone calls, emails and letters.
Sometimes, users are blocked repeatedly.
Community volunteer Gayle Lacy was named 2015 Wacoan of the Year for her effort to have the site of mammoth fossils in Waco, Texas, designated a national monument. Lacy’s latest fight has been with her congressman, Bill Flores, who was with her in the Oval Office when Obama designated the site a national monument in 2015. She has been blocked three times by Flores’ congressional Twitter account and once by his campaign account. One of those blocks happened after she tweeted at him: “My father died in service for this country, but you are not representative of that country and neither is your dear leader.”
Lacy said she was able to get unblocked each time from Flores’ congressional account by calling his office but remains blocked on the campaign one. “I don’t know where to call,” she said. “I asked in his D.C. office who I needed to call and I was told that they don’t have that information.”
Have you sent a letter in support, in opposition or asking questions about the ACA to your congressperson? Did you get a response? Share them with us.
Lacy and others said Flores blocks those who question him. Austin lawyer Matt Miller said he was blocked for asking when Flores would hold a town hall meeting. “It’s totally inappropriate to block somebody, especially for asking a legitimate question of my elected representative,” Miller said.
In a statement, Flores spokesman Andre Castro said Flores makes his policies clear on Twitter and on Facebook. “We reserve the right to block users whose comments include profanity, name-calling, threats, personal attacks, constant harping, inappropriate or false accusations, or other inappropriate comments or material. As the Congressman likes to say — ‘If you would not say it to your grandmother, we will not allow it here.’”
Ricardo Guerrero, an Austin marketer who is one of the leaders of a local group opposed to Trump’s agenda, said he has gotten unblocked by Flores twice but then was blocked again and “just kind of gave up.”
“He’s creating an echo chamber of only the people that agree with him,” Guerrero said of Flores. “He’s purposefully removing any semblance of debate or alternative ideas or ideas that challenge his own — and that seems completely undemocratic. That’s the bigger issue in my mind.”
ProPublica also has been tracking legislators sending misinformation to constituents about the Affordable Care Act and its repeal. Have you corresponded with a member of Congress or senator about health care? We’d love to see the response you received. Please fill out our short form.
