ProPublica

by Mark Olalde, ProPublica, and Anna V. Smith, High Country News

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

In the 1950s, after quarreling for decades over the Colorado River, Arizona and California turned to the U.S. Supreme Court for a final resolution on the water that both states sought to sustain their postwar booms.

The case, Arizona v. California, also offered Native American tribes a rare opportunity to claim their share of the river. But they were forced to rely on the U.S. Department of Justice for legal representation.

A lawyer named T.F. Neighbors, who was special assistant to the U.S. attorney general, foresaw the likely outcome if the federal government failed to assert tribes’ claims to the river: States would consume the water and block tribes from ever acquiring their full share.

In 1953, as Neighbors helped prepare the department’s legal strategy, he wrote in a memo to the assistant attorney general, “When an economy has grown up premised upon the use of Indian waters, the Indians are confronted with the virtual impossibility of having awarded to them the waters of which they had been illegally deprived.”

As the case dragged on, it became clear the largest tribe in the region, the Navajo Nation, would get no water from the proceedings. A lawyer for the tribe, Norman Littell, wrote then-Attorney General Robert F. Kennedy in 1961, warning of the dire future he saw if that were the outcome. “This grave loss to the tribe will preclude future development of the reservation and otherwise prevent the beneficial development of the reservation intended by the Congress,” Littell wrote.

Both warnings, only recently rediscovered, proved prescient. States successfully opposed most tribes’ attempts to have their water rights recognized through the landmark case, and tribes have spent the decades that followed fighting to get what’s owed to them under a 1908 Supreme Court ruling and long-standing treaties.

The possibility of this outcome was clear to attorneys and officials even at the time, according to thousands of pages of court files, correspondence, agency memos and other contemporary records unearthed and cataloged by University of Virginia history professor Christian McMillen, who shared them with ProPublica and High Country News. While Arizona and California’s fight was covered in the press at the time, the documents, drawn from the National Archives, reveal telling details from the case, including startling similarities in the way states have rebuffed tribes’ attempts to access their water in the ensuing 70 years.

Many of the 30 federally recognized tribes in the Colorado River Basin still have been unable to access water to which they’re entitled. And Arizona for years has taken a uniquely aggressive stance against tribes’ attempts to use their water, a recent ProPublica and High Country News investigation found.

“It’s very much a repeat of the same problems we have today,” Andrew Curley, an assistant professor of geography at the University of Arizona and member of the Navajo Nation, said of the records. Tribes’ ambitions to access water are approached as “this fantastical apocalyptic scenario” that would hurt states’ economies, he said.

Arizona sued California in 1952, asking the Supreme Court to determine how much Colorado River water each state deserved. The records show that, even as the states fought each other in court, Arizona led a coalition of states in jointly lobbying the U.S. attorney general to cease arguing for tribes’ water claims. The attorney general, bowing to the pressure, removed the strongest language in the petition, even as Department of Justice attorneys warned of the consequences. “Politics smothered the rights of the Indians,” one of the attorneys later wrote.

The Supreme Court’s 1964 decree in the case quantified the water rights of the Lower Basin states — California, Arizona and Nevada — and five tribes whose lands are adjacent to the river. While the ruling defended tribes’ right to water, it did little to help them access it. By excluding all other basin tribes from the case, the court missed an opportunity to settle their rights once and for all.

The Navajo Nation — with a reservation spanning Arizona, New Mexico and Utah — was among those left out of the case. “Clearly, Native people up and down the Colorado River were overlooked. We need to get that fixed, and that is exactly what the Navajo Nation is trying to do,” said George Hardeen, a spokesperson for the Navajo Nation.

Today, millions more people rely on a river diminished by a hotter climate. Between 1950 and 2020, Arizona’s population alone grew from about 750,000 to more than 7 million, bringing booming cities and thirsty industries.

Meanwhile, the Navajo Nation is no closer to compelling the federal government to secure its water rights in Arizona. In June, the Supreme Court again ruled against the tribe, in a separate case, Arizona v. Navajo Nation. Justice Neil Gorsuch cited the earlier case in his dissent, arguing the conservative court majority ignored history when it declined to quantify the tribe’s water rights.

McMillen agreed. The federal government “rejected that opportunity” in the 1950s and ’60s to more forcefully assert tribes’ water claims, he said. As a result, “Native people have been trying for the better part of a century now to get answers to these questions and have been thwarted in one way or another that entire time.”

Three Missing Words

As Arizona prepared to take California to court in the early 1950s, the federal government faced a delicate choice. It represented a host of interests along the river that would be affected by the outcome: tribes, dams and reservoirs and national parks. How should it balance their needs?

The Supreme Court had ruled in 1908 that tribes with reservations had an inherent right to water, but neither Congress nor the courts had defined it. The 1922 Colorado River Compact, which first allocated the river’s water, also didn’t settle tribal claims.

In the decades that followed the signing of the compact, the federal government constructed massive projects — including the Hoover, Parker and Imperial dams — to harness the river. Federal policy at the time was generally hostile to tribes, as Congress passed laws eroding the United States’ treaty-based obligations. Over a 15-year period, the country dissolved its relationships with more than 100 tribes, stripping them of land and diminishing their political power. “It was a very threatening time for tribes,” Curley said of what would be known as the Termination Era.

So it was a shock to states when, in November 1953, Attorney General Herbert Brownell Jr. and the Department of Justice moved to intervene in the states’ water fight and aggressively staked a claim on behalf of tribes. Tribal water rights were “prior and superior” to all other water users in the basin, even states, the federal government argued.

Western states were apoplectic.

Arizona Gov. John Howard Pyle quickly called a meeting with Brownell to complain, and Western politicians hurried to Washington, D.C. Under political pressure, the Department of Justice removed the document four days after filing it. When Pyle wrote to thank the attorney general, he requested that federal solicitors work with the state on an amended version. “To have left it as it was would have been calamitous,” Pyle said.

The federal government refiled its petition a month later. It no longer asserted that tribes’ water rights were “prior and superior.”

When details of the states’ meeting with the attorney general emerged in court three years later, Littell, the Navajo Nation’s attorney, berated the Department of Justice for its “equivocating, pussy-footing” defense of tribes’ water rights. “It is rather a shocking situation, and the Attorney General of the United States is responsible for it,” he said during court hearings.

Arizona’s legal representative balked at discussing the meeting in open court, calling it “improper.”

Experts told ProPublica and High Country News that it’s impossible to quantify the impact of the federal government’s failure to fully defend tribes’ water rights. Reservations might have flourished if they’d secured water access that remains elusive today. Or, perhaps basin tribes would have been worse off if they had been given only small amounts of water. Amid the overt racism of that era, the government didn’t consider tribes capable of extensive development.

Jay Weiner, an attorney who represents several tribes’ water claims in Arizona, said the important truth the documents reveal is the federal government’s willingness to bow to states instead of defending tribes. Pulling back from its argument that tribes’ rights are “prior and superior” was but one example.

“It’s not so much the three words,” Weiner said. “It’s really the vigor with which they would have chosen to litigate.”

Because states succeeded in spiking “prior and superior,” they also won an argument over how to account for tribes’ water use. Instead of counting it directly against the flow of the river, before dealing with other users’ needs, it now comes out of states’ allocations. As a result, tribes and states compete for the scarce resource in this adversarial system, most vehemently in Arizona, which must navigate the water claims of 22 federally recognized tribes.

In 1956, W.H. Flanery, the associate solicitor of Indian Affairs, wrote to an Interior Department official that Arizona and California “are the Indians’ enemies and they will be united in their efforts to defeat any superior or prior right which we may seek to establish on behalf of the Indians. They have spared and will continue to spare no expense in their efforts to defeat the claims of the Indians.”

Western States Battle Tribal Water Claims

As arguments in the case continued through the 1950s, an Arizona water agency moved to block a major farming project on the Colorado River Indian Tribes’ reservation until the case was resolved, the newly uncovered documents show. Decades later, the state similarly used unresolved water rights as a bargaining chip, asking tribes to agree not to pursue the main method of expanding their reservations in exchange for settling their water claims.

Highlighting the state’s prevailing sentiment toward tribes back then, a lawyer named J.A. Riggins Jr. addressed the river’s policymakers in 1956 at the Colorado River Water Users Association’s annual conference. He represented the Salt River Project — a nontribal public utility that manages water and electricity for much of Phoenix and nearby farming communities — and issued a warning in a speech titled, “The Indian threat to our water rights.”

“I urge that each of you evaluate your ‘Indian Problem’ (you all have at least one), and start NOW to protect your areas,” Riggins said, according to the text of his remarks that he mailed to the Bureau of Indian Affairs.

Riggins, who on multiple occasions warned of “‘Indian raids’ on western non-Indian water rights,” later lobbied Congress on Arizona’s behalf to authorize a canal to transport Colorado River water to Phoenix and Tucson. He also litigated Salt River Project cases as co-counsel with Jon Kyl, who later served as a U.S. senator. (Kyl, who was an architect of Arizona’s tribal water rights strategy, told ProPublica and High Country News that he wasn’t aware of Riggins’ speech and that his work on tribal water rights was “based on my responsibility to represent all of the people of Arizona to the best of my ability, which, of course, frequently required balancing competing interests.”)

While Arizona led the opposition to tribes’ water claims, other states supported its stance.

“We thought the allegation of prior and superior rights for Indians was erroneous,” said Northcutt Ely, California’s lead lawyer in the proceedings, according to court transcripts. If the attorney general tried to argue that in court, “we were going to meet him head on,” Ely said.

When Arizona drafted a legal agreement to exclude tribes from the case, while promising to protect their undefined rights, other states and the Department of the Interior signed on. It was only rejected in response to pressure from tribes’ attorneys and the Department of Justice.

McMillen, the historian who compiled the documents reviewed by ProPublica and High Country News, said they show Department of Justice staff went the furthest to protect tribal water rights. The agency built novel legal theories, pushed for more funding to hire respected experts and did extensive research. Still, McMillen said, the department found itself “flying the plane and building it at the same time.”

Tribal leaders feared this would result in the federal government arguing a weak case on their behalf. The formation of the Indian Claims Commission — which heard complaints brought by tribes against the government, typically on land dispossession — also meant the federal government had a potential conflict of interest in representing tribes. Basin tribes coordinated a response and asked the court to appoint a special counsel to represent them, but the request was denied.

So too was the Navajo Nation’s later request that it be allowed to represent itself in the case.

Arizona v. Navajo Nation

More than 60 years after Littell made his plea to Kennedy, the Navajo Nation’s water rights in Arizona still haven’t been determined, as he predicted.

The decision to exclude the Navajo Nation from Arizona v. California influenced this summer’s Supreme Court ruling in Arizona v. Navajo Nation, in which the tribe asked the federal government to identify its water rights in Arizona. Despite the U.S. insisting it could adequately represent the Navajo Nation’s water claims in the earlier case, federal attorneys this year argued the U.S. has no enforceable responsibility to protect the tribe’s claims. It was a “complete 180 on the U.S.’ part,” said Michelle Brown-Yazzie, assistant attorney general for the Navajo Nation Department of Justice’s Water Rights Unit and an enrolled member of the tribe.

In both cases, the federal government chose to “abdicate or to otherwise downplay their trust responsibility,” said Joe M. Tenorio, a senior staff attorney at the Native American Rights Fund and a member of the Santo Domingo Pueblo. “The United States took steps to deny tribal intervention in Arizona v. California and doubled down their effort in Arizona vs. Navajo Nation.”

In June, a majority of Supreme Court justices accepted the federal government’s argument that Congress, not the courts, should resolve the Navajo Nation’s lingering water rights. In his dissenting opinion, Gorsuch wrote, “The government’s constant refrain is that the Navajo can have all they ask for; they just need to go somewhere else and do something else first.” At this point, he added, “the Navajo have tried it all.”

As a result, a third of homes on the Navajo Nation still don’t have access to clean water, which has led to costly water hauling and, according to the Navajo Nation, has increased tribal members’ risk of infection during the COVID-19 pandemic.

Eight tribal nations have yet to reach any agreement over how much water they’re owed in Arizona. The state’s new Democratic governor has pledged to address unresolved tribal water rights, and the Navajo Nation and state are restarting negotiations this month. But tribes and their representatives wonder if the state will bring a new approach.

“It’s not clear to me Arizona’s changed a whole lot since the 1950s,” Weiner, the lawyer, said.

by Eli Hager

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. This story was co-published with The New Yorker.

This story is exempt from our Creative Commons license until Dec. 22, 2023.

Alicia Johansen spent her childhood moving with her drug-addicted mom from one place to the next, trying to brace herself for the moment when the water and the electricity would get cut off. So at 22, when she had a chance to run Dolittle’s pool hall in the ranching town of Akron, Colorado, she was intent on making some money. She kept the bar open deep into the night, after the older guys who bet on horse races departed, and the truckers and the younger crowd, with the meth, drifted in. Meth, she soon discovered, helped her work longer hours.

An occasional customer was Fred Thornton, a former high school baseball star in his early 30s. Fred was sometimes a roofer and at other times unemployed and homeless. They began dating casually and using together, and he told her of his own complicated childhood: placed in foster care as a toddler, after allegations of neglect, and later adopted.

Alicia’s period was irregular because of the meth, which also dimmed her self-awareness. She was six months along before she realized that she was pregnant; a month after that, she woke up in pain. She had preeclampsia, which caused dangerously high blood pressure, and needed an immediate C-section. She was airlifted to a hospital in Denver, a hundred miles away. Her and Fred’s son, Carter James Thornton, was born on Aug. 6, 2019 — two and a half months premature, 2.5 pounds in weight, and, according to his lab work, exposed to meth and to THC.

That first week at the hospital, Alicia hovered over Carter, who was curled beneath a web of tubes and wires, before going home to get baby things. The third week, she and Fred visited their son and held him skin-to-skin. The fourth week, back in Akron, they faltered: They had no gas money for a return to the big city; they were bickering; they were high. On the fifth week, when Carter was stable enough to leave the neonatal intensive care unit, Alicia returned, but foster parents from Akron were the ones who took him home.

Carter’s drug exposure and his parents’ weekslong absence had triggered a call to child protective services and then a neglect case against Alicia and Fred in the juvenile court of Washington County, where they lived. To get their son back, the judge informed them, they’d need to take a series of steps laid out by the county’s human services department: pass random urinalysis drug tests, with missed ones considered positives; secure stable housing and employment; and make it to regular supervised visits with Carter. During the next three months, as the department steadily recorded Alicia and Fred’s positive drug tests and missed visits, none of their excuses were entertained, a hard line for which they would later be grateful. In December, they decided that if they wanted to raise their child together — and they did — they would have to get sober for good.

By the summer of 2020, Alicia and Fred had met every one of the judge’s requirements, and then some. They’d tested negative on more than 30 consecutive drug screens between them, including hair follicle tests that indicated how long they’d been clean. They had continued to visit Carter weekly through the first months of the pandemic, when a “visit” meant trying to entertain an infant over Zoom. Fred took a job as a maintenance man for the county, installing plumbing in low-income housing and mowing the fairgrounds. Alicia left bar work and began delivering mail for the U.S. Postal Service and working the deli counter at a grocery store on her days off. They spent much of what they earned replacing carpets, repainting walls and fogging air ducts to remove any lingering trace of meth from their one-story house, which, before Carter’s arrival, at times lacked water and electricity. They had completed parenting lessons and were in therapy, getting support for their sobriety and learning how to be better partners to each other. In other words, the foster care system, whose goal under federal law is to be temporary, in service of a family reuniting, seemed to be working.

Alicia and Fred (Rachel Woolf for ProPublica)

As the couple hit six months sober, the county’s Department of Human Services added, and the judge approved, one more element to their treatment plan: an expert evaluation of how well they interacted with Carter. If they cleared this last hurdle, Alicia and Fred understood, the system would let them reclaim their son. Alicia worried in advance about whether she could be silly with her baby while under scrutiny and with everything to lose. She would have been more anxious had she known the truth: that she and Fred weren’t just demonstrating their fitness to care for Carter — they were competing for him. His foster parents, hoping to adopt him, had just weeks earlier embraced an increasingly popular legal strategy, known as foster parent intervening, that significantly improved their odds of winning the child.

It has become harder and harder to adopt a child, especially an infant, in the United States. Adoptions from abroad plummeted from 23,000 in 2004 to 1,500 last year, largely owing to stricter policies in Asia and elsewhere, and to a 2008 Hague Convention treaty designed to encourage adoptions within the country of origin and to reduce child trafficking. Domestically, as the stigma of single motherhood continues to wane, fewer young moms are voluntarily giving up their babies, and private adoption has, as a result, turned into an expensive waiting game. Fostering to adopt is now Plan C, but it, too, can be a long process, because the law requires that nearly all birth parents be given a chance before their rights are terminated. Intervening has emerged as a way for aspiring adopters to move things along and have more of a say in whether the birth family should be reunified.

Intervenors can file motions, enter evidence and call and cross-examine witnesses to argue that a child would be better off staying with them permanently, even if the birth parents — or other family members, such as grandparents — have fulfilled all their legal obligations to provide the child with a safe home. When Carter’s foster parents intervened in the hope of keeping him, they turned to the firm of Tim Eirich, a Denver adoption attorney who charges as much as $400 an hour and has almost single-handedly systematized intervention in Colorado.

A video of the two-hour parenting evaluation that would help determine who would raise Carter shows Alicia and Fred sitting on the floor of a utilitarian playroom in a government building, smiling, and their son, now almost 1, grabbing Fred’s baseball cap and chewing on it. Alicia feeds him a bit of red bell pepper, explaining to the evaluator, who sits in a chair just off camera, that an occupational therapist suggested that they introduce Carter to new food textures. Both parents cheer as Carter scootches around, and, intermittently, they answer questions that the evaluator poses in a warm Texas accent. What do they think a successful transition from foster care would look like? How would they characterize Carter’s personality? (“Curious,” “Easy to soothe.”) At one point, Fred confides that the playroom has sparked a memory of his birth mother in a similar space, her black hair down to her waist, shortly before she was erased from his life.

After the visit, the evaluator, a social worker named Diane Baird, made a report to the county. Alicia and Fred were kind to Carter, she noted, and she praised them for remaining sober and being “earnest in their regret” about the mistakes they had made. But she criticized them for repeatedly encouraging Carter to crawl, which he wasn’t quite ready to do, and for giving him the bell pepper — actions, Baird said, that betrayed a lack of understanding that he had developmental delays. “Neither parent has the kind of relationship with Carter that will help him feel safe in a new situation,” she wrote.

When Alicia read the report, she was bewildered. Did Baird not understand how hard it is to bond with a baby you’ve been allowed to see for only a few hours a week, while masked, or in 15-minute stints on Zoom? And why was Carter’s eye contact with her, which Baird had specifically praised during the visit, now described as lacking “affective involvement”? But she and Fred decided to focus on the practical advice that Baird had given them, including not to fall silent around Carter and to face his developmental delays instead of avoiding them.

After a follow-up evaluation a month later, Baird reported that Alicia’s knowledge of child development was deepening and that she and Fred had engaged in imaginative play, as when Fred aced a feeding game by using a toy dinosaur. Nonetheless, Baird opposed Carter’s being returned to Alicia and Fred on the grounds that the foster parent intervenors had reported that he pitched fits and struggled to eat and sleep after seeing them.

Although hired as a consultant by Washington County in this case, Baird had a long-standing independent agenda: helping foster parents across Colorado succeed in intervening and permanently claiming the children they care for. Often working hand in hand with Tim Eirich, she has been called as an expert in, by her count, hundreds of child welfare cases, and she sometimes evaluates visits between birth families and children without having met them. Baird would not say how many foster parent intervenor cases she has participated in, but she can recall only a single instance in which she concluded that the intervenors should not keep the child. Thinking that particular couple would be weak adoptive parents, she told me, she simply filed no report.

Diane Baird in her office in Wheat Ridge, Colorado (Trent Davis Bailey for ProPublica)

In front of the judge in Carter’s case, Baird elaborated on the danger of returning Carter to Alicia and Fred, saying that their visits with him were threatening his primary attachment and causing “a biologic hyperarousal that not only burns calories but self-perpetuates” — a state that becomes worrisome when a child spends “25% to 57% of their time, or whatever,” in it. Rupturing a primary attachment could ultimately cause “sociopathy” in a child, she said.

In February 2021, relying heavily on this expert view, the county moved to permanently terminate Alicia and Fred’s parental rights. All that remained was a hearing in which the judge would make a decision, and, as it approached, the couple felt outmatched. Akron being a small town, they knew something about the people who’d been fostering Carter. Lain Bernhardt, who came from a prominent local ranching family, had once run for mayor. He and his wife, J’Lyn, were teachers, he in the public school system, she at a Head Start program run by a Methodist church.

They lived on a farm, and Alicia could concede that Carter, now a year and a half old, might have a pretty decent life there. But she also knew that, even at the lowest points of her own childhood, she hadn’t wanted to lose her mom forever, as Fred had done. Fred, a Mexican American who had been adopted by a white family, worried that Carter would grow up as tormented about his cultural identity as Fred had been, and as uncertain about whether his birth family fought to keep him. Although he and Alicia sensed that some fix might be in, they promised each other not to give up. Even if they lost, they reasoned, Carter might one day know that he’d been wanted.

In the 1950s, the British psychoanalyst John Bowlby posited that being separated from a maternal figure in the first years of life warps a child’s future ability to form close relationships. He and other psychologists later added nuance to what became known as “attachment theory,” taking into account new research, such as a longitudinal study of children who’d spent their early years in residential facilities, which indicated that some children had more resiliency than Bowlby had initially grasped. In the ensuing decades, the idea that breaking off a primary attachment would do lifelong damage became influential in child-development spheres and eventually infiltrated popular culture. Early in this century, several adoption attorneys “hit on this thing of attachment” and saw its utility, Dale Dove, who co-chairs the Academy of Adoption & Assisted Reproduction Attorneys’ foster care committee, told me. With the supply of adoptable babies dropping, foster children were becoming a “hot commodity,” he said, and he and his colleagues (among them Tim Eirich’s law partner Seth Grob) realized that attachment experts could be called into court to argue that foster children needed to remain with their foster parents in order to avoid a severed bond.

In actuality, young children may endure a range of caregiver transitions, including being removed from birth parents and sent to foster care in the first place, or going through a private adoption or a divorce. When the American Academy of Pediatrics reviewed recent research, it concluded that kids who grow up with their birth family or kin are less likely than those who are adopted or are raised in non-kinship foster care to experience long-term separation trauma, behavioral and mental health problems, and questions of identity. The Trump and Biden administrations have both pressed states to keep a larger percentage of kids with birth parents or kin. Intervention, a state-level counter-trend, is supported by foster parents’ rights groups and advocates at national conservative organizations.

Naomi Schaefer Riley, an American Enterprise Institute senior fellow, has criticized the fact that some states extend the year and a half that federal guidelines give birth parents to rehabilitate themselves. Intervention, she says, helps stop that foster care drift, reduces cavalier reunifications in which children taken away after abuse and neglect are returned to the same circumstances, and clears the path to adoption.

Since 2018, South Carolina’s courts and lawmakers have affirmed the right of any state resident to file to adopt any foster child, as well as the right of foster parents to intervene. In 2020, Kentucky amended its law to let foster parents intervene as legal parties in involuntary terminations of birth parents’ rights. And this year Florida passed a law saying that if birth parents move to have their child adopted, including by a biological family member, long-term foster parents can intervene to contest that outcome. Kathryn Fort, the director of the Indian Law Clinic at Michigan State University, told me that her practice has faced three sets of intervenors this year, all of them non-Native couples seeking to adopt a Native child.

Colorado has been a pioneering state for intervention thanks mostly to Eirich, the lawyer whose firm represented Carter’s foster parents. In 2013, he argued and won a state Supreme Court case that ended almost all limitations on the practice, and in the following five years there was a threefold increase in intervenor cases statewide, according to data from the Colorado Office of Administrative Courts. By 2022, at least 2,500 cases had been filed. A tenth of the state’s child welfare cases now have an intervenor. And with an intervenor, court data indicates, the chance that the birth parents’ rights will be terminated surges from 17% to 43%. Bruce Boyer, Eirich’s former professor at the Loyola University Chicago School of Law, told me that he has become concerned about intervenors “bullying their way” into proceedings in which the termination of parental rights, a grave state power, is on the line.

Tim Eirich listens to testimony during a legislative hearing concerning foster care interventions at the Colorado Capitol in Denver in March. (Rachel Woolf for ProPublica)

Eirich’s firm represents nine private adoption agencies across Colorado, and he leads intervenor training sessions for judges and foster parents. He told me that the idea that he helps adopters-to-be thwart the goal of birth-family reunifications is “absolute bullshit.” Most of his clients intervene, he said, primarily in order to help the judge make an informed placement decision: one that considers the child as an individual, instead of prioritizing generalized arguments about biological ties or race. “Colorado empowers people who care about maltreated children to be part of the process,” he says.

He routinely relies on Diane Baird, whom his clients sometimes hire directly, or on an attachment expert whom she has trained. Baird told me that she decided to work so closely with Eirich because “he knew how to use me most effectively.” They both often argue that birth family visits are causing a child damaging emotional swings due to attachment issues. “A healthy attachment trumps biology in the first three years of life, period,” Baird told me. Later, she emailed me something that one of her colleagues likes to say about biological families: “Blood is thicker than water but it’s also a better carrier of disease,” to which Baird added, “LOL.”

It’s not acceptable in most family courts to explicitly argue that, if you have more material advantages to provide a child, you should get to adopt him or her. Outside the courtroom, though, intervenors are sometimes less discreet. During a 2021 case meeting, according to a specialist who took notes, a foster parent and Eirich client said, of the prospect of reuniting a baby boy with his biological family, “He’s used to being raised by a maternal figure who stays home. We have 1.5 acres for him to run around, and they have an apartment.” Another foster parent and Eirich client told me that reuniting a baby girl with her birth mother would mean transitioning her from a “personalized nanny” to a “day care center with, you know, 50 kids running around, and sleeping on a little cot.”

When Carter was ready to leave the hospital in September 2019, J’Lyn and Lain Bernhardt walked into his room in the NICU and found Alicia sitting there, seemingly disengaged from her stunningly small child. Alicia jumped up and thanked them for taking in Carter. As they all watched child safety videos, the Bernhardts did their best to be polite, but they later told me how effortful that had been. “You choose drugs over your child,” Lain said, “and my opinion about you is not going to be positive.”

The Bernhardts care deeply about children. J’Lyn has focused her career on early-childhood education, and Lain, in his mayoral campaign, advocated for after-school programs for older kids. But since they got married as 23-year-olds in 2015, they haven’t had biological children of their own. Realizing that, as they put it, there were plenty of children in this country who needed help, they registered with the county as what is called a foster-to-adopt family, stating their willingness to adopt but agreeing that birth parents must first be given a chance to follow their court-ordered treatment plan. Before Carter, the Bernhardts fostered eight kids, one or two at a time, a draining public service for which they received a monthly payment of around a thousand dollars. In 2018, they adopted one of the children, an 11-year-old boy. But Carter was their first newborn.

He was so underweight that he needed a special high-calorie formula, which he struggled to consume. “It takes over every part of your body that this is an innocent child, and he is here by himself,” J’Lyn told me. Lain said, “People tell you, ‘It’s foster care … it’s temporary.’” But nothing about the situation felt temporary, he said.

J’Lyn and Lain Bernhardt in Carter’s room in their home in Otis, Colorado, in March. (Rachel Woolf for ProPublica)

Within days of learning that Carter, at the hospital, needed foster parents, J’Lyn came to work full of emotion, saying that she needed time off because she was getting a baby who’d be fast-tracked for adoption, according to her supervisor at Head Start. (J’Lyn disputes this account.) Before long, she and Lain bonded with Carter; the first time he sat up and the first time he broke into giggles, they cried.

The job of foster parents is inherently difficult on an emotional level. They are told that they’re needed because a child’s parents have severe and potentially dangerous problems, but also that they should support the ultimate goal of returning the child to those same parents. They’re expected to simultaneously love the child and accept that their bond with the child may be broken. And although they may spend all day, every day, with the child, a caseworker usually has more influence than they do in determining what’s in the child’s best interests. Intervening makes some foster parents — whether they went into the process looking to adopt or arrived at that desire over time — feel less helpless.

When the Bernhardts started Googling intervention, they quickly found Eirich’s website and many effusive reviews from foster families who had won contested adoptions with his help. “He’s the one who fought for us to have this right,” Lain told me. But Eirich was too busy to represent them, so they hired his associate Kerry Simpson, with whom Eirich discussed the case as it went along. The Bernhardts, in their motion to intervene, argued that Carter might develop an attachment disorder if separated from them and said that they were concerned about whether his developmental needs would be handled appropriately if there were a change in caregivers. “Cognitive disability and/or autism is likely,” the filing said.

As intervenors, J’Lyn and Lain now had a courtroom standing equal to that of Alicia and Fred, and were allowed to sit in the jury box at hearings.They also began getting visits from Baird, who gave them advice about how to calm Carter when he was stressed. (She would eventually suggest a warm bubble bath, along with setting glow sticks afloat in the tub.) They didn’t need to pay for Baird’s assistance, because, in this instance, she was working for the county. That was lucky; by 2021, payments to Eirich’s firm were consuming their savings.

The problem was that Alicia and Fred would not give up. With the motion to terminate their parental rights hanging over their heads, they hadn’t had a single relapse and were arriving at visits “relentlessly on time,” as one case evaluation put it. Carter was excited by the interesting homemade toys and sensory materials that Alicia brought for him to play with, another report, by a parenting coach, said. (Shaving cream was a particular delight.) The report noted that Carter turned to Fred for reassurance when he struggled, and that Fred could reliably make his son laugh.

Another judge, recognizing Fred’s transformation, had recently granted him full custody of his other son, Robert, who was 12 years old. But by now, Fred and Alicia understood why Carter’s case was different. A social worker had explained that Eirich and Baird “went around the state together” arguing for the termination of birth parents’ rights, Alicia told me. And she guessed that the county backed the Bernhardts too because they’d come forward to foster so many children.

In October 2021, Alicia and Fred felt a little less pessimistic after the county dropped its motion to terminate their rights, admitting in a court filing that it lacked convincing evidence against them. However, Carter remained in foster care, with no transition home planned. This gave his foster parents more time to make their central argument for keeping him: that after visits with Alicia and Fred Carter would still unravel — slapping and kicking, crying and banging his head against the wall, alternating between sleeplessness and nightmares about monsters.

Arguments involving what’s called “post-visit dysregulation” are extremely common in intervenor cases, Allison Green, the legal director of the National Association of Counsel for Children, told me. Although the fits are often interpreted with great authority, she said, “in reality, children may be dysregulated for any number of reasons — perhaps they miss their parent, feel confused, or are simply behaving as toddlers do.” Green used to employ the dysregulation claim in her own cases, she said. She now regrets it.

Hearing of Carter’s distress, Alicia felt “the most unspeakable feeling of defeat,” she told me. “You can’t help your baby, but you’re also being blamed somehow from afar.”

In many intervenor cases, foster parents win after their lawyers undermine the claims of other biological relatives, beyond the parents, who want to keep the child in the family. In 2020, Cynthia Cooley, a home health aide on Long Island, received confirmation after a paternity test that she had a 6-month-old grandson in foster care in Weld County, Colorado. At first, she was unsure if she could be the baby’s caregiver or if another relative should do it. And she was hesitant to elbow in on the rights of her son, the baby’s father, who had recently been released from jail. But before her grandchild turned 1, Cooley, who is Black, decided to uproot her life to take custody of him. She moved to suburban Atlanta to be near extended family and installed a baby gate at the top of the stairs. She completed foster parenting and first-aid classes and took a job operating machinery at a warehouse. Because she knew the long history of Black-family separation in America, from the forced removal of enslaved kin to the ongoing problem of race bias in child welfare, she was jarred when a new word appeared in case documents. “I said, ‘I know what “intervening” means. … The word “intervene” means to interfere,’” she told me.

Cynthia Cooley uprooted her life to pursue custody of her grandson. (Alyssa Pointer for ProPublica)

Eirich was representing the foster parent intervenors who had custody of Cooley’s grandson. Late last year, in a closing argument, he said that Cooley had taken too long to raise her hand. He also cited a report filed by Baird, who’d never met Cooley, which said that her visits with her grandson, for which she was flying in from Atlanta, were disrupting the boy’s attachment. The intervenors should keep him permanently, Baird concluded.

The Weld County Department of Human Services strongly objected. In a filing, its counsel wrote, “The obligation of the Department is to try and place with family when it is safe, appropriate and available,” and, “Grandmother Cynthia Cooley is absolutely that person.” But, as Eirich underlined to me, though parents have a constitutional right to their child until such right is terminated, grandparents and other relatives have only a preference under state laws. The judge ruled in favor of Eirich’s clients, a social worker and a real estate agent. “Court found [Baird’s] testimony credible. She has significant experience,” the judge said, adding approvingly that Baird’s analysis had “focused on primacy of attachment over cultural considerations.”

Eirich’s clients, who are white, emphasized to me that they’ve fostered multiple children and hadn’t been looking to adopt; they were willing to do so in this case to give the boy a sense of permanency. Because they value biological bonds, they said, they’ve tried to keep Cooley involved. (“The best of both worlds,” Eirich likes to say in court.) They offered Cooley a post-adoption agreement that would legally require them to stay in touch with her. Cooley told me she doesn’t want a contract. She wants her grandson.

Kathy Hammond, a nurse practitioner in rural Farmington, Missouri, was also told that she had waited too long to step up for her grandson. Yet Hammond had repeatedly called the Colorado Department of Human Services to ask about the boy when he was 2 months old in 2017. When he was 3 and 4 months old, she pressed his caseworker in emails, asking for custody. “What is the process at this point?” she wrote. “Will I hear from you or should I expect to hear from someone else? Is there anything else I can/should be doing to be prepared for baby and court? Should I plan a visit to Colorado to meet [the child] or to meet persons involved?” Then she waited on paperwork for a safety inspection of her home, which didn’t happen until well into 2018. The delay was somehow tied to the baby’s Social Security card.

After more confusion, Hammond started driving 14 hours each way for court hearings for her grandchild, who was now a year old. She changed for court in the car, then drove all the way back for work. But, she said, she soon learned something that made her heartsick: “The foster family has the best attorney in Denver” — Eirich.

Eirich argued that the boy’s developmental and medical issues — including tremors and other abnormal movements — prevented a transition of caregivers, even to a veteran nurse practitioner. Yet his client, a foster mother named Jody Britton, had already had the tremors checked out by multiple doctors. After an EEG, a neurologist at the University of Colorado Anschutz Medical Campus reported, “Foster mom still feels that there is something wrong with him but his exam is normal today.”

Britton, an evangelical Christian who lives in the Denver suburbs with her husband, a pastor, and has adopted children from Africa, ultimately won permanent custody. She is now a leading advocate for the rights of intervenors like her in Colorado, through a group called Foster Source. As she points out, under a state statute, she was designated as a kinship foster placement because she was close with the birth mother’s sister. She says that the blame lies with the county for failing to inform her for a year that Hammond was seeking custody. By then, she said, she understood the boy’s medical needs better than another caretaker would. “We intervene so we can sleep at night,” she told me. “We need to know we are doing everything we can.”

Jody Britton at the headquarters of Foster Source in Westminster, Colorado (Trent Davis Bailey for ProPublica)

Children with developmental disorders are, unsurprisingly, overrepresented in foster care. Some were exposed to drugs or alcohol in utero, some were neglected after coming into the world. Separation from a birth parent can itself be traumatic, and so can being placed with one foster family after another, as many children are. Sincere concern often drives foster parents to have kids in their care tested for social, emotional and learning delays and to enroll them in speech, physical and other therapies.

But Paul Spragg, a Colorado forensic psychologist with 30 years’ experience with child welfare cases, told me that even if there is no formal diagnosis, “intervenors with a view toward adopting a kid have an interest in reporting issues that ultimately make adoption by them more likely.” In court, a barrage of tests and therapies often serves the twinned arguments that it’s too sensitive a moment to transition the child back to the birth family and that the birth family may be ill prepared to care for the child.

The Bernhardts reported that Carter ate things that he wasn’t supposed to, like fuzz from his diaper. In response to this and other developmental concerns raised by the Bernhardts, Carter’s caseworker and experts who had been hired to examine him, the county had him tested in 2021 for autism spectrum disorder, which the Bernhardts had suggested he had when they first intervened. A clinical psychologist found that he had normal social functioning for his age but that the fuzz-eating could be attributed to pica, a condition marked by eating nonfood items, and that other signs of distress might be caused by “upbringing away from parents.” Officials also had Carter’s brain “mapped” by a local therapist using the “neurosequential model of therapeutics” originally developed by the psychiatrist Bruce Perry; the results proved too murky to be used by either side. Janina Fariñas, another clinical psychologist who evaluated him for the county, told me, “There was almost a need for Carter to not be OK.”

In July 2022, I watched a hearing in Carter’s case held by videoconference. Alicia and Fred, sitting cross-legged on their living room floor, were frustrated that they couldn’t hear, let alone counter, much of what the county’s lawyer was saying about them. The judge, for his part, lamented all the medical tests. “We’re going to turn this kid into a lab rat,” he said. He then told the Bernhardts’ lawyer, the Eirich associate, “Sometimes I think your clients are being a little bit coy. They need to flat out say what they want. Are they foster parents who just want what’s best for this child, or do they want to adopt?”

Despite his palpable skepticism, the judge did little but say that he would await responses to a motion and schedule another hearing. Days later, the county again filed for the termination of Alicia and Fred’s parental rights. Although the couple had complied with their treatment plans, the filing concluded, their son had been in foster care for three years and needed “the permanence that only adoption can afford him.” Intervening is usually “buttoned up relatively quickly,” Lain told me, especially in cases involving very young children. So he and J’Lyn were pleased by the new termination filing, and to learn that the county had again brought in an expert — Diane Baird — to assess Alicia and Fred’s parenting of Carter. Before long, following sessions that Alicia and Fred thought had gone well, Baird was reporting that Carter’s eyes were “dark and bottomless” and that he had a “tic-like blink.”

Whenever Carter ran up to Fred to start a game of tag, saying, “Try and get me,” Fred froze, worried that if he gave chase a reference to Carter fleeing him in fear might end up in a report. “If Carter laughed, it was the wrong type of laugh,” he told me. “If Carter was running, he’d be ‘hyperaroused.’” Fred had by now come to think of Baird as some wicked Jedi, converting his positive interactions with Carter into dark ones. Alicia shushed him when he talked like that in public. “If you do everything right and you tell the truth,” she told him, “at some point, you’re gonna come out on top.” He thought she was being naive.

Baird has long called her technique for evaluating parent-child interactions the “Kempe protocol for interactional evaluation,” after the prestigious Kempe Center, the child welfare branch of the University of Colorado medical school where she worked, on and off, from the mid-’80s until 2017. Early on, she helped a colleague develop the method, which extrapolated sweeping conclusions about how parents and children relate from subtle observations of eye contact and body language. Last year, the Kempe Center’s director asked Baird in an email to stop using the Kempe name to describe her protocol and to make clear on her CV that she no longer works there.

Patrice Harris, a child and adolescent psychiatrist and a past president of the American Medical Association, says that although children placed in a series of foster homes may have lifelong trust issues, a child who has had one good experience with a foster family often benefits from it. “That secure placement can enhance their ability to attach again,” she told me. The child’s brain has been wired that adults can be trusted.

Carter started preschool in the autumn of 2022, with the trial to decide his fate set for just before Christmas. As the date approached, Alicia and Fred, frantic, latched onto an idea that someone they’d met through parenting class had suggested: What if they could get taxpayers to care about all the money the government had spent to keep them from their child?

They filed a Colorado Open Records Act request and soon received dozens of invoices. In all, tiny, unaffluent Washington County had spent more than $310,000 on Carter’s case: on his brain mapping and medical exams, on the many expert evaluations, on Baird’s travel to and from Denver, on payments to the Bernhardts, and so on. In December, the director of the Department of Human Services, Grant Smith, resigned. Two days later, a letter from an attorney representing Washington County revealed that an internal investigation had found improprieties in the handling of Carter’s case. (The investigative report is under a gag order, and neither Smith nor the new director would elaborate on the resignation.) The trial was canceled, and in February, the judge asked for an explanation of what, exactly, was still unfit about Alicia and Fred as parents. The following day, the county finally dropped its case.

“It’s over,” Alicia’s lawyer told her when she answered the phone. Alicia gestured wildly at Fred to turn down the TV. The lawyer went on, “After his next visit … you don’t have to give him back.”

A calendar marking Carter’s arrival date at Alicia and Fred’s home (Rachel Woolf for ProPublica)

In March, Alicia’s fellow mail carriers threw a party at the Akron senior center with cake and presents. It was a baby shower for a 3.5-year-old boy. The following month, Alicia joined other birth families in testifying in favor of new state legislation that would give biological relatives more priority in foster care cases and prevent foster parents from intervening until they had cared for a child for a year. In August, that law went into effect.

As Colorado grapples with how prevalent foster parent intervention has become, other states are taking the intervenor concept further. At least 15 states, from New York to Tennessee to Arizona, now allow foster parents to directly file to terminate a biological parent’s rights, as if they were prosecutors.

In Indiana, the adoption attorney Grant Kirsh handles, by his count, around 500 adoptions of foster children every year, and he educates foster parents about the process on his YouTube channel. Kirsh tells them that, should the state’s child services agency move to return a child in their care to the child’s birth family, they can simply serve a notice of adoption, which the birth family will have only 15 days to contest. If there is no response in that time frame, the birth family loses the right to challenge the adoption.

“It’s nuts,” Andrea Marsh, a family court lawyer in Indianapolis, said, calling the process “similar to intervention, but the nuclear option.” One of her recent clients, a birth mother in Indianapolis, was trying to follow her court-ordered treatment plan when the suburban foster parents who were caring for her child filed for adoption in their home county. (Court-shopping is a strategy that Indiana adoption attorneys use to circumvent a court that is still trying to reunify the birth family.) The mother failed to reply by the deadline and, when the adoption of her child was finalized, neither she nor the local child services office could do anything about it.

First image: Fred unloads Carter’s backpack after school. Second image: Alicia and Carter run outside near their home. (Rachel Woolf for ProPublica) First image: Alicia and Carter stretch after his nap. Second image: Carter looks out the window of their home. (Rachel Woolf for ProPublica)

In his first weeks living with Alicia and Fred, Carter would ask where J’Lyn was and for certain toys he used to have, like “the ones with the buttons.” When he grew quiet and seemed sad, Alicia found that what often helped was a visit to a playground, the one with the red slides. By late spring, he had stopped getting quiet. “Can we tell Dad I slept so good?” he asked his mom with excitement one morning, and Alicia wondered if he knew or sensed that his sleep problems had been debated for years.

According to an assessment administered at Carter’s preschool, he is on target developmentally and even “potentially gifted.” When I mentioned to Baird that there is little sign of the attachment trauma she predicted, she said this just demonstrates that Carter knows he has to “hero on.”

Carter and Fred play while Alicia looks on. (Rachel Woolf for ProPublica)

Alicia and Fred kept Carter enrolled at the Head Start program where both Bernhardts now worked and where Carter could run up and give them hugs. After school one day, Alicia said to herself, “Screw it, I’ll go talk to her.” She walked into J’Lyn’s classroom and said that she hoped J’Lyn would remain in Carter’s life so that, as Alicia put it to me, “these two halves of his life are no longer halves.” Both women later told me that they had bonded over the fact that neither much liked the other’s man.

Shortly afterward, however, the Bernhardts moved to Texas — in part to avoid seeing Carter every day. One afternoon, looking out at the large backyard of their new home just outside Abilene, the couple told me that they’d paid around $32,000 to Eirich’s firm. “We didn’t do any of this for any reason other than to make sure that Carter has the best life,” J’Lyn told me later. “He deserves that.”

Just before visiting the Bernhardts, I’d been with Alicia and Fred in a home, once a meth den, that was brimming with kids’ books, drawings and water guns. Child-size cowboy boots sat by the front door, and Carter was out playing with cousins he once didn’t know he had. At the kitchen table, Alicia told me that the Bernhardts “can be victims, too.” Once the system “put this idea in their heads that adoption could be an achievable goal for them, it damaged our family, and my son, and the foster parents’ family.” She paused, thinking over all that J’Lyn and Lain had gone through. “God, how heartbreaking would that be.”

Mollie Simon and Mariam Elba contributed research.

by Daniel Golden

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A sign that reads “Somewhere Worth Seeing” welcomes travelers to Ware, a faded mill town surrounded by the hills and steeples of western Massachusetts. But these days, hardly any news outlets find Ware worth a visit, even as its leaders wrangle over issues vital to its future.

Inside the brick, fortress-like Town Hall on a humid summer evening, Town Manager Stuart Beckley informed the five members of the Selectboard, Ware’s council, of an important proposal. A company was offering to buy Ware’s water and sewer services, which need tens of millions of dollars in upgrades. That’s a consequential choice for a town of 10,000 with an annual budget of $36 million. A sale would provide an infusion of $9.7 million. But private utilities often increase rates, raising the prospect that Ware’s many poor and elderly residents might face onerous bills down the road.

The Selectboard didn’t reach a consensus that night. Instead, one of the members berated Beckley for moving ahead with privatizing even though the position of town planner had been vacant since March. “We’ve been through four of them ... in less than six years,” Keith Kruckas said. “So we’re not going to blame it on COVID. We’re not going to blame it on other towns paying more money. We’re going to blame it on poor management.”

From there, the discussion descended into bickering between Kruckas and Beckley. “You’ve been harping all night, point after point after point,” Beckley said. “So is there anything that I do that you like?”

I thought Ware residents should know about the challenges their town faces and its decision-makers’ squabbling. But I was the only journalist among the six onlookers in the room, and I wasn’t there to cover the board. There was nobody from a daily newspaper in the area or from a television or radio station.

Decades ago, at least three outlets sent reporters to every session of Ware’s governing board: a weekly community paper, a local radio station and my old employer, the Daily News in Springfield, the third biggest city in Massachusetts. Daily News reporters covered towns throughout western Massachusetts and into northern Connecticut. The paper had a correspondent who focused on Ware and a few nearby towns, and he attended meetings of town officials from the Board of Assessors to the Cemetery Commission.

Today, Ware is close to becoming a news desert. Townspeople complain that the media have forgotten them, Beckley told me. What remains, he said, is “a lot of Facebook speculation, where people are guessing at the news. It’s quite rampant here.”

One reporter from the weekly paper, the Ware River News (circulation: 4,200), did watch the Selectboard meeting. Paula Ouimette caught it on Zoom because she was too busy to show up in person. Ouimette is also the paper’s editor, copy editor, proofreader, photographer and office manager, and she writes the police log. She fills similar roles for another weekly: the Quaboag Current. The papers cover a total of nine towns, and Ouimette said she can barely keep up. “If I tell people the hours I work,” she told me, “no one would enter this field.”

Ouimette wrote a summary of the meeting but said she hasn’t had the time or resources to take a comprehensive look at the pros and cons of privatizing, and what the experience of other towns has been. “It would make for an excellent story,” she said.

It’s no secret that local news is in an advanced state of decline. Since 1990, the number of newspaper employees in the U.S. has plunged from 455,000 to fewer than 90,000, even as the population has increased by a third. Repeated humiliations — most recently, a police raid on a Kansas weekly and the home of its publisher — underscore the reduced clout of newspapers.

Springfield, Massachusetts, exemplifies this trend. When I worked there from 1978 to 1981, it had two newspapers, the Daily News and the Morning Union, with a combined circulation of 150,000. They have since merged into one paper, now called The Republican, which has an average daily print circulation of 14,560. The Daily News alone employed 85 reporters, editors and photographers, about four times as many journalists as The Republican has today.

“The industry has changed so much that 1980 might as well have been 1880,” Jack Flynn, a reporter for the Daily News and its successors for 42 years, told me.

The Springfield Daily News’ city room staff in front of the newspaper building, circa 1979. The author is visible, just to the right of the central pillar in the back of the group, in a white shirt and black-frame glasses. (Courtesy of Daniel Golden)

Many observers have lamented the damage wrought to communities by the diminishing of newspapers, from reduced civic engagement to the failure to hold corrupt or incompetent officials accountable. Amid a constant assault of dubious information on social media, people often know less, and consequently care less, about their local government than they once did.

As they vanish, local newspapers are taking on a halo of everything that used to be good about America. They’ve come to symbolize not just halcyon days of neighborly virtues — imagine “It’s a Wonderful Life” if Jimmy Stewart played the editor of the Bedford Falls paper — but the very “bedrock of American democracy.”

If my own experience was any indication, the reality was considerably more complicated. The Springfield Daily News didn’t always fulfill its watchdog role. Like a doting parent, it lavished attention on its community, but sometimes with a paternalism that chose to conceal problems in the service of what it thought was a broader good. The same focus that inundated readers with information about every committee meeting, crime and high school football game fostered a certain coziness with the area’s power players. Boosterism and conflicts of interest occasionally interfered with telling the full story. It’s possible we would have done a searching examination of a plan to privatize Ware’s water system — unless we risked offending a powerful local figure or business interest.

Mark Marchand had his reality check in the summer of 1981. Marchand, who covered the middle-class suburb of Agawam for the Daily News, learned that some airplane hobbyists were upset that tiny Bowles Airport, where they flew their two- and four-seat propeller planes, was about to close to make room for an industrial park. Marchand talked to them and filed a story reflecting their concern that they wouldn’t be able to find hangar space nearby.

That afternoon, Marchand recalled, he was surprised to learn that Richard Garvey, the Daily News’ top editor, was looking at his draft. It wasn’t the kind of big scoop that Garvey normally reviewed before publication. But, without talking to Marchand, he rewrote it. “Developer Ready to Invest in Bowles Airport” ran the next day, under Marchand’s byline, touting the industrial park plan. It didn’t quote a single airplane owner.

Marchand inferred the reason for the revised framing of the story from Garvey’s final paragraph. (Garvey, like many people in this article, is deceased.) It noted that the site of the potentially lucrative development was owned by the company that published the Springfield newspapers. “I was inconsolable,” Marchand told me. “Very embarrassed. None of the plane owners called me after that.”

I belong to the Watergate generation. I was 15 when the White House Plumbers broke into the Democratic National Committee headquarters, 17 when President Richard Nixon resigned and about to turn 19 when the film “All the President’s Men” dramatized the exploits of Washington Post investigative reporters Bob Woodward and Carl Bernstein.

I yearned to emulate them and was the recipient of what today might be considered an unneeded leg up. Ben Bradlee, the Post’s illustrious executive editor of Watergate fame, was on a list of Harvard alumni offering career advice to aspiring journalists from his alma mater. After I graduated, in 1978, I went to see him in the Post newsroom, which looked a lot like it did in the movie. Bradlee glanced at my resume, which listed my experience as a reporter for two summers at my hometown semiweekly, and growled, “What the hell is the Amherst Record?” He briefly raised my hopes by saying he might “hide” me on some inconspicuous beat at the Post, but an assistant shook her head.

Bradlee urged me to find a reporting job in the grittiest, seamiest city I could find, so I could learn firsthand about power and corruption in America. He said his own son, Ben Bradlee Jr., had started his career in Riverside, California.

The newspaper where my former Amherst Record editor was working, and had offered me an internship, fit Bradlee’s specifications. “How about Springfield, Massachusetts?” I asked.

“Perfect,” Bradlee said.

In those days and for decades after, jobs at local newspapers were seen as an invaluable training ground, an irreplaceable mix of apprenticeship and hazing. They taught the kind of tradecraft that wasn’t part of any journalism school curriculum. Reporters fresh out of college learned to high-tail it to a fire or shooting; to buttonhole officials before and after public meetings; to take notes in pencil outdoors in winter, because ink congeals in the cold; and to meet deadlines and word limits. They learned, along with their readers, about the people and institutions they covered.

And so it would be for me — that is, if I could pass the typing test. The sole prerequisite to be hired as a reporter by the Springfield Daily News was the ability to type at least 50 words a minute on an electric typewriter. The test crushed the hopes of many promising candidates, including Larry Parnass, who interviewed for a job in 1977. He barely missed the cutoff, managing 47 words a minute. Parnass deferred his journalism dreams to work as a Midwest salesman for Oxford University Press. He later became a reporter and editor and finally got a job in Springfield this year, as The Republican’s executive editor. Nobody checked his typing this time around.

Fortunately, my fingers were up to the challenge and I passed the test. In August 1978, I joined the Daily News. An afternoon paper, it pumped out six editions a day for readers from Enfield, Connecticut, to Massachusetts suburbs like Westfield and Agawam. “Late City,” with a noon deadline for copy, was for Springfield itself. Each edition carried a “Hometown” section with news and advertising aimed at places like Ware and its surrounding communities.

Springfield, best known as the birthplace of basketball and of Theodor Geisel, aka Dr. Seuss, was a city of 150,000 on the Connecticut River. Once a thriving manufacturing center, which produced the Springfield rifles used in the Civil War and both world wars as well as the Indian motorcycle, it had never recovered from the Great Depression. I rented an apartment on a street that was halfheartedly trying to gentrify and rolled out of bed at 6:30 every morning to get to the office by the 7 a.m. starting time.

The bustling newsroom, which Daily News and Union staff shared, was as big as a supermarket. The air was filled with cigarette smoke and the racket of clattering typewriters, editors yelling reminders of how many minutes to deadline, phones ringing, static from police scanners and the occasional thunk of a chair thrown in anger.

My 33 months there, first as an intern and then as a general assignment reporter, provided an intensive course in local coverage. I interviewed victims of welfare cuts, evictions and police brutality. I covered anti-nuclear protests, visiting celebrities (novelist Norman Mailer, activist Abbie Hoffman, baseball slugger Hank Aaron), a tornado and a plane crash where I saw a dead body for the first time. I profiled outstanding high school seniors, a centenarian, a whittler and a slippery real estate developer who I described as walking “a tightrope of debts and dreams.”

The first and most important principle: News events — even distant ones with no connection to the region we covered — had to be given a “Springfield angle.” So when the Mount St. Helens volcano erupted 3,000 miles away in Washington state, killing 57 people, I was assigned to write a feature about the prospects for a similar disaster in Massachusetts. A phone call to a geologist ascertained that since the state has no volcanoes, we had nothing to worry about. I thought I was off the hook, but editors wanted the story anyway. It ran with a huge photo of volcanic ash billowing from Mount St. Helens, under the headline, “It can’t happen here.”

Editors’ desire to “localize” the story of the eruption of Mount St. Helens, 3,000 miles away in Washington state, led to this examination of the geology of western Massachusetts. (Springfield Daily News)

The Daily News had a proud history. It was founded as The Penny News in 1880 by two brothers, Charles and Edward Bellamy. Edward would go on to write one of the biggest-selling American novels of the 19th century, “Looking Backward,” which envisioned a socialist utopia. From the 1920s, the same local company owned the News and the Union. But they competed for scoops and endorsed opposing candidates, enabling Springfield residents to buy a paper that agreed with their politics — or complain about one that didn’t.

Newhouse Newspapers acquired the Springfield papers in 1966. Back then, big chains competed to buy local papers because they were so profitable. In 1973, the Daily News broke one of its biggest stories: that the Pentagon planned to close Westover Air Force Base in Chicopee, where bombers were stationed during the Cold War and returning prisoners of war from Vietnam were reunited with their families.

“Newspapers had the resources for intensively local coverage,” recalled Steve Newhouse, who worked as a reporter and copy editor for the Union from 1979 to 1982. The grandson of S.I. Newhouse, founder of the newspaper group, he now chairs its digital arm. “You needed to do editions to serve local advertisers. It really worked out nicely.”

Despite its local focus, the Daily News staff didn’t reflect Springfield’s increasing diversity. The city was 26% Black and Hispanic in 1980, but the newspaper was overwhelmingly white. Dorothy Clark, who came in 1979, was the only Black reporter “for a few years at least,” she recalled recently. Journalism jobs were hard to come by for people of color, so, after graduating from the University of Massachusetts, Clark had resigned herself to a job as a hotel desk clerk. Then one of her journalism teachers, who was also a Daily News reporter, recommended her for a reporting position. Besides covering elder affairs, “I did dig into a lot of stories related to African American history,” she said. “That was a personal interest.”

About half of the news reporters were women, but the editors were almost all men. Generationally, the newsroom was divided between ambitious young reporters, who saw the Daily News as a stepping stone and were eager to make a splash, and lifers who at times seemed threatened or annoyed by the upstarts. “There was reverse prejudice toward me that I’d gone to Smith,” a prestigious women’s college near Springfield, recalled Kim Hessberg, who later became director of public relations at the Boston Symphony Orchestra.

Sam Hoffman, movie critic and Chicopee bureau chief, was more welcoming to the younger crowd. But another side of Hoffman emerged when I filled in for him once in Chicopee, just north of Springfield. It was a slow day until someone showed up with a wedding or engagement announcement, and gave me the details along with a $5 bill.

Surprised, I waved off the money. “It’s free,” I said.

“That’s funny,” he said. “Sam charges five bucks.”

Much of the staff enjoyed another perk. The Eastern States Exposition, a 17-day annual fair in West Springfield, provided a hefty roll of free tickets to the Daily News, which covered the “Big E” as assiduously as London newspapers cover a coronation. The publicity included a daily listing of events, front-page articles touting record-breaking attendance and frequent features.

When fewer free tickets filtered down to the newsroom one year, city editor Jim Powers was livid. He assigned our premier investigative reporter, Ed Fogarty, to dig into the fair. “We were going to crack open the story,” Fogarty recalled recently. “Whatever it was.” But he couldn’t find any impropriety — unless you count the free tickets.

My former Amherst Record boss, John Bart, headed the Daily News copy desk. As he showed me around on my first day, he nodded toward Fogarty and said approvingly, “He’ll ask anybody anything.”

I hoped to be praised similarly someday. But my early assignments were light features: a horse-drawn covered wagon that passed through town, a couple who were married in a balloon. I snuck into fraternity parties to compare real-life drunken hijinks with those in a hit film, “Animal House.”

A white-haired copy editor named Austin Kenefick noticed my efforts and wrote a gracious note. Much as minor-league teammates revered catcher Crash Davis in “Bull Durham” because he had spent 21 days in the big leagues, Austin was respected by colleagues because he had worked as a reporter for The Washington Post — until, he recalled recently, he forgot to make a standard check for police news one night. The Post missed the capture of a notorious criminal. Kenefick was fired, and he ended up in Springfield.

“This is a very frustrating game,” Kenefick wrote. “You won’t be given enough time to go over a favorite piece ‘one more time.’ You will have to write with incomplete information. The printers, or layout man, or copy-cutter, or someone, will lose that critical, qualifying, third paragraph. Withal, there is nothing else quite like newspapering … and the strong ones, the resilient ones, the persevering ones, benefit and grow and prosper.”

The author’s early work at the Daily News tended toward light features and the occasional first-person humor column. (Springfield Daily News)

I worried that the editors on the city desk didn’t trust me to cover news. I tried to impress them, and allay any resentment of my Ivy League degree, by working extra hard. My shift ended at 3 p.m., but I often hung around the newsroom afterward, looking for an opportunity. One came on election night in 1978. The editors had neglected to assign anyone to the local campaign of an underdog candidate for the U.S. Senate, Paul Tsongas. When early returns showed him winning, I rushed to his victory party, interviewed his campaign manager and others, hurried back to the newsroom and wrote my first lead front-page story.

That same fall, a seemingly trivial assignment would turn into another break — one that would help propel me from intern to staff reporter. The kindly assistant city editor, Ab Hachadourian, asked me one day to find out what home heating oil would cost that winter.

This was not a subject I was familiar with. But the Yellow Pages contained a sizable roster of home heating oil dealers, and I began calling them. They told me that they expected the price per gallon, then 50 cents, to skyrocket. I wrote a story reflecting their prediction. Hachadourian promptly stashed it in his desk. I didn’t ask why, but Daily News editors tended to err on the side of timidity. Hachadourian probably felt that if such important news was happening, a 21-year-old intern wouldn’t be among the first to find out.

I was disappointed. But the dealers were right; in fact, the price would climb to 84 cents the following fall. Soon major newspapers vindicated me by proffering similarly dire assessments. I freshened up my draft with a new angle — that the oil price hike would popularize wood-burning stoves — and Hachadourian ran it.

Suddenly I was the Daily News’ energy expert. Calling the U.S. Department of Energy, I was shuttled to an official who suggested chatting off the record. I was thrilled. Woodward and Bernstein had their Deep Throat, who had guided the Post’s Watergate investigation from the shadows of a parking garage (and decades later was revealed to be a top FBI official). Now I had my own!

Fed up with government policy, my source anticipated widespread gasoline shortages. I channeled his alarm in such articles as “‘Gas’ Demand Could Result in Major Shortage: Station Closings, Shorter Hours Loom.”

Some nerve-wracking moments ensued. A press official from the Department of Energy guessed my source’s identity and warned me not to trust him. But Deep Oil proved prescient. By the next spring, some states were rationing gasoline, service stations were reducing hours or closing, and cars were lining up around the block to refuel. I reported the story day after day, on an almost gas-station-by-gas-station basis. At the peak of the crisis, I called stations in northern Connecticut as soon as I got to work, asked how long the lines were, and filed a story for the Connecticut edition’s 8 a.m. deadline. Then I phoned stations in Palmer and Ware, and folded the new material into the existing story. I did the same for the other four editions, pushing Connecticut further down until it dwindled to a couple of paragraphs at the bottom of the Late City version. It was the ultimate realization of local coverage: the same news, rejiggered for each circulation zone.

I usually wrote fast, oblivious to distractions. But once I froze on deadline. As the minutes ticked by, assistant managing editor Wayne Phaneuf, a restless dynamo with a Mark Twain mustache, hovered, waiting for my copy. Finally he said to no one in particular, loud enough so I would overhear, “Wouldn’t you think a Harvard graduate would know how to tell time?”

Every morning, stringers — reporters who weren’t on staff — would call the city room from nearby towns, looking to dictate their stories to someone. And when the caller was Brad Smith from Ware, 25 miles northeast of Springfield, I often volunteered. Tapping out his prose on an IBM Selectric typewriter, and getting to know Ware’s personalities and problems through his eyes, it felt almost as if I were covering the town myself.

Brad Smith, who covered Ware for the Daily News, working the phone. His was one of the paper’s most prolific bylines. (Cathy Mara)

Bradley F. Smith was one of the Daily News’ most prolific bylines. He wrote mainly for the Metro edition, which covered Ware, Palmer and the nearby hill towns, though if the stories were important enough, they ran in every edition. He was well sourced in Ware, and he delivered plenty of scoops. After a fire destroyed two businesses in a former mill complex, putting 125 people out of work, he broke news on the arson investigation and insurance negotiations. Another child of Watergate, Smith enjoyed chiding town officials. If the town of Ware had considered selling its utilities on his watch, he told me recently, “I would have looked a lot deeper.”

But municipal meetings were his mainstay. Since he was paid by the number of meetings he covered and column inches he generated, he subjected readers to all of them: Selectboard, School Committee, Finance Committee, Board of Assessors, Conservation Commission, Cemetery Commission, Parks and Recreation, and more.

“I can remember driving to three towns in one night on a regular basis to get to three or four meetings,” recalled Smith, who’s now a drummer in Florida. “Then I’d write the stories until midnight.” By covering so many meetings, Smith became the first Daily News stringer to earn more than $1,000 a month, equivalent to about $3,500 today. Then, as now, local news was not known for lavish salaries.

We called it the “Springfield Journalism Revue.” Most Friday afternoons, Phaneuf and a group of reporters would unwind at the Hotel Charles on Main Street. The Charles, which burned down in 1988, was a rundown relic of Springfield’s glory years, with a grandiose lobby, mildewed burgundy carpeting, cheap food and flat beer.

We had a regular table and the waitress would ignore our sometimes unruly carousing. Everybody had to buy a round. I was a slow drinker, so four or five beers would soon be lined up next to the one I was nursing. Somebody always drank them.

Most Journalism Revue participants were young reporters, eager to soak up lore from Phaneuf and his pals. One veteran political reporter, Don Ebbeling, often regaled us with the latest sexual and financial shenanigans at City Hall or the Statehouse. But he rarely included such juicy fare in his column, “People and Politics,” As dry as a train schedule, it listed fundraisers, retirement parties and the like. A typical item: “State Sen. John P. Burke, D-Holyoke, chairman of the Senate Public Safety Committee, will be holding office hours in Holyoke and Westfield on April 11.”

At first I wondered if Ebbeling was too old school to divulge secrets, or couldn’t nail them down, or feared losing access. Then a simpler explanation occurred to me: perhaps that the paper’s bigwigs liked his column the way it was. They tolerated Smith’s assaults on officials in an outlying small town, but they didn’t want such scathing scrutiny of Springfield’s politicians and businesses.

David Starr, a Newhouse executive and publisher of the Springfield papers, didn’t subscribe to the post-Watergate ethos of adversarial journalism. He believed the papers’ primary purpose was to guide and collaborate with city leaders. The bow-tied Starr was president of a downtown redevelopment organization and a political kingmaker. “He felt that if the papers were going to be a success, Springfield had to be a success,” Phaneuf told me.

Starr once wrote that urban revitalization depended on a “true working partnership” between elected officials, businesspeople and media. But less advantaged groups often felt left out of the partnership. “We still deal with the impression that this newspaper is in bed with the power structure in Springfield,” Parnass, The Republican’s executive editor, told me. “I don’t want to be chums with anybody.”

After two Hispanic residents complained within a week in March 1980 that police had bashed their heads in, a colleague and I began exploring police brutality in Springfield. During our reporting, I learned that Springfield received 102 brutality complaints in 1979, far more than comparable cities, and hadn’t disciplined a single officer. Those findings became the core of a four-part series, sealed by a powerful quotation supplied by Hampden County’s crusty district attorney, Matthew Ryan Jr.: “It irks me when a man of average size or smaller with his head bandaged like a swami is brought in by a six-foot, 200 pound policeman with a gun who doesn’t have a mark on him and says he was assaulted.” The editors let the series run largely as written, albeit with a weak title: “Police Brutality: Fact or Fiction?”

Ryan had his own dark side, though you wouldn’t read much about it in the Daily News. Soon after I left the paper to work at The Boston Globe, a political foe accused Ryan of protecting a mobbed-up friend, John Francis McCarthy, who allegedly shot at two police officers. I decided to poke around. I drove to Springfield and examined documents in the county courthouse — Ryan’s domain — before heading to McCarthy’s bar, The Keg Room. When I introduced myself, McCarthy said, “I heard you were looking up my file.” He then walked away, communicating that the conversation was over. I ignored the hint and followed him to the basement of the bar. McCarthy turned to face me. He was known as “Ox,” and from his massive dimensions and menacing air, the nickname appeared apt. As I gamely tried to question him, he hoisted a large bag of ice and began pouring a cascade of cubes closer and closer to my feet. Belatedly realizing that our dialogue was unlikely to be productive, I retreated up the stairs and returned to Boston.

In 1990, the Globe reported that Ryan had “intervened repeatedly” in cases “in ways that benefited Mafia figures and their associates.” Editors at the Union-News — the Daily News and the Union had merged in 1987 — conceded that they had been aware of Ryan’s Mafia associations but didn’t run the damaging material because it couldn’t be substantiated. Ebbeling told the Globe that the Daily News had killed negative stories he had written about Ryan dating back to the late 1960s.

I hadn’t known about the history between the Daily News and Ryan, and wondered if I had benefited from it. If the paper hadn’t been so kind to Ryan, perhaps the DA would’ve been less inclined to help a young reporter — me — by denouncing police abuse.

The newspaper still occupies the same building, on Main Street in Springfield, that it did when I worked there. But part of the first floor, where the business offices used to be, is now a marijuana dispensary.

The odor of cannabis wafted up the back stairs toward the cavernous, second-floor newsroom. There I saw the ghosts of editors past: Garvey humming happily as he strode past my desk; Carroll Robbins, the dour managing editor, scolding me for misusing a semicolon; Powers, long-faced and grumpy, handing me an obituary that a reporter had written for herself before she died of cancer, and ordering me to pare it down.

Parnass showed me his “time capsule”: ancient newspapers retrieved from unoccupied desks that he cleaned out when he arrived in February. The Springfield newspapers used to be “the primary generator of news for the four western Massachusetts counties,” he told me. “It is not that organization any longer. … At some point in the future, this newspaper can’t defy what’s happening everywhere: the diminution of print.”

The picture is not entirely grim. Several sources supplement The Republican’s revenue and readership. Its presses print 141 other publications from Maine to Pennsylvania. The company owns a chain of 12 free community weeklies that mostly sell ads to “tiny guys that never would advertise in The Republican,” publisher and CEO George Arwady told me. MassLive, an online outlet of Newhouse’s Advance Local, is growing statewide, he said. Articles by The Republican’s staff appear first on MassLive. Both the weeklies and MassLive also have their own reporters. “We’re doing just fine,” Arwady said. “More people read our journalism today than ever, even when you were here.”

The Republican still produces significant work, especially about my old preoccupation, police brutality. Its reporting helped spur a 2020 U.S. Department of Justice investigation that found that the Springfield Police Narcotics Bureau engaged “in a practice or pattern of using excessive force.” Two years later, under a consent decree with the Justice Department, the city agreed to improve training and supervision.

Stephanie Barry, an investigative reporter who leads the police brutality coverage, said she appreciates Arwady’s exertions to keep The Republican afloat. “I would hate to see the paper fold,” she said. “It would break my heart. But if I’m still doing journalism, whether digital or in print, it’s all about the work for me.” For now, at least, she can still do that at a daily paper.

Lynn Dombek contributed research.

by Paul Kiel

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

In a long-awaited development, the largest audit in the history of the IRS has finally taken its next step. On Wednesday, Microsoft announced that the agency had notified the company that it owes $28.9 billion in back taxes, plus penalties and interest.

The case is epic not only in dollars but in scope. As ProPublica reported in an in-depth narrative in 2020, the IRS saw the case as a chance to prove the agency’s effectiveness. Often cowed by the prospect of facing off against corporations with endless resources, the IRS set out to be bolder and more aggressive. It took the unusual step of hiring a corporate law firm to represent the agency, a step that incensed Microsoft. The company, along with others in its industry, responded by rallying allies in Congress to rein in the IRS.

The audit is already well over a decade old and figures to grow older, since Microsoft is allowed to appeal the IRS’ conclusions and says it plans to. The audit focused on a deal the agency would later describe as “illusory in nature, serving no material economic purpose except to shift income.” In 2005, ProPublica wrote, Microsoft “sold its most valuable possession — its intellectual property — to an 85-person factory it owned in a small Puerto Rican city.” Having struck a favorable tax deal with Puerto Rico, Microsoft then channeled its profits to the facility, which burned Windows and Office software onto CDs.

At the time, some Microsoft executives celebrated this “pure tax play,” and they had reason for optimism. Initially, the IRS did not take an aggressive tack. An early audit resulted in a much more modest change in 2011.

But earlier that same year, the IRS had set up a new unit to audit intra-company deals that sent U.S. profits to tax havens — deals that were especially common among tech companies like Google, Facebook and Apple. The leader of the new unit decided that Microsoft’s deal in Puerto Rico was worth a much closer look. The IRS withdrew its initial finding and dug in to build a deep, comprehensive case.

By the time ProPublica published its story on the audit in 2020, the two sides had sued each other, and one case had long been stuck in court. Almost three years after the last motions in the case, a federal judge still had not ruled on whether the IRS should receive documents it was seeking. Shortly after ProPublica asked the court for an update, the ruling finally came down.

The judge sided with the IRS, writing “the Court finds itself unable to escape the conclusion that a significant purpose, if not the sole purpose, of Microsoft’s transactions was to avoid or evade federal income tax.” He agreed with the IRS’ characterization of the deal as a tax shelter.

For the next three years, the case disappeared from public view until Microsoft’s announcement.

“We believe we have always followed the IRS’ rules and paid the taxes we owe in the U.S. and around the world,” wrote Daniel Goff, a senior Microsoft executive, in a blog post on the company’s site that revealed the IRS’ determination.

The $29 billion that the IRS was seeking, he wrote, covered 2004 to 2013. He asserted, however, that the total, were the IRS to ultimately prevail, would be reduced by about $10 billion in taxes that Microsoft has already paid on its overseas profits. A major feature of President Donald Trump’s 2017 tax bill was a requirement that companies repatriate those profits, though they paid a special, low tax rate when they did. Microsoft had stored up $142 billion in offshore profits by 2017.

The conclusion of the audit sends the fight to a new phase. The IRS has an internal appeals division, and Microsoft said it would pursue its arguments there. It’s a significant development since the IRS had once signaled that it would bar Microsoft’s access to an appeal, a stance that led to blowback in Congress from the company’s allies. IRS appeals officers, who are independent of the auditors, often settle cases for steep discounts out of fear that the agency will lose a court battle. The appeals process is secret.

If Microsoft does not get the result it wants there, it can take its case to the U.S. Tax Court. Each step is likely to take years, meaning the case could easily stretch into the late 2020s.

The IRS attorneys who worked on the case believed it to be, by far, the largest U.S. audit ever, and the amount the IRS is seeking from Microsoft is several times larger than in any other publicly disclosed audit in the agency’s history. The case, in a way, is the last, great vestige of the IRS before it was gutted by budget cuts over the course of the 2010s and corporate audits plummeted. While the recent infusion of billions from the Inflation Reduction Act will allow the agency to rebuild itself in the coming years, the Microsoft case shows the fruit of those efforts could take a long, long time to reap.

by Duaa Eldeib

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

Congress is one step closer to prioritizing stillbirth prevention at the federal level.

The U.S. Senate unanimously passed the Maternal and Child Health Stillbirth Prevention Act, which ensures that federal maternal and child health dollars can be used for stillbirth prevention efforts. Every year in the U.S., more than 20,000 pregnancies end in the death of an expected child at 20 weeks of pregnancy or more. Research shows as many as 1 in 4 stillbirths may be preventable.

The passage in the Senate marks a milestone for the bill, which was first introduced last year but never came up for a vote in either the House or Senate. This time, the bill was introduced in July and passed by the Senate on Sept. 30.

ProPublica’s ongoing reporting on stillbirths over the last two years has revealed systemic failures that have contributed to the country’s stillbirth crisis, from federal agencies not prioritizing research, awareness and data collection to the racial disparities that have led to higher stillbirth risks in Black communities. In March, the National Institutes of Health released a report calling the country’s stillbirth rate “unacceptably high” and issued a list of recommendations to reduce it, many of which were aimed at the NIH and the Centers for Disease Control and Prevention.

Sen. Jeff Merkley, D-Ore., reintroduced the bill with Sen. Bill Cassidy, R-La. The next day, U.S. Reps. Ashley Hinson, R-Iowa, and Alma Adams, D-N.C., introduced the measure in the House.

“ProPublica’s investigative reporting has helped call public attention to this major public health concern, and with the tremendous advances we’ve made in modern medicine, we have the capability to do much more,” Merkley said in a statement.

He urged the House to quickly pass the bill, citing the devastating impact stillbirth has on parents and families. He emphasized that some stillbirths can be prevented.

Sen. Chuck Grassley, R-Iowa, an original co-sponsor, said he was grateful the Senate came together to unanimously pass the legislation and echoed the hope that it continues to move swiftly through Congress.

“Effective problem solving starts with having a thorough understanding of root causes, contributors and vulnerabilities,” he said in a statement. “Our bill would get rid of limits on federal resources so that the medical community can further pursue evidence-based efforts to support expectant moms and save babies’ lives.”

The bill united lawmakers from both sides of the aisle and has the power to “help save lives and ensure more mothers have the chance to raise their babies,” said Sen. Tammy Duckworth, D-Ill., who added she is eager for Congress to send it to President Biden’s desk for his signature.

“In one of the richest countries in the world, our rising maternal mortality rate and high number of stillbirths is absolutely unconscionable,” said Duckworth, who has worked on other maternal and child health legislation.

The nonprofit Healthy Birth Day, which is based in Iowa, championed the bill and celebrated its passage in the Senate. CEO Emily Price traveled to Washington, D.C., last month with families that have suffered stillbirths to raise awareness about the crisis.

“This is a huge win for families who have endured the tragedy of stillbirth and a huge win to keep future families from facing life without their baby,” Price said. ProPublica’s reporting, she said “helped show Congress, staffers and Americans the reality of living through stillbirth and the major impacts it can have on families and communities.”

Less than a third of state health departments are using money allocated under Title V Maternal and Child Health block grants for stillbirth reduction, Price said. The bill, which doesn’t provide additional funding, amends the Social Security Act to explicitly permit public health officials to use those federal dollars for stillbirth prevention initiatives.

Healthy Birth Day, which created a Count the Kicks app to encourage expectant parents to be aware of and track movements in the womb, has worked with health departments to focus on the importance of monitoring fetal movement.

Price said it is also critical that lawmakers pass another key stillbirth prevention bill currently in Congress, the Stillbirth Health Improvement and Education (SHINE) for Autumn Act. That sweeping legislation addresses significant gaps in stillbirth research, data, awareness and fetal autopsy training.

Adams, co-chair of the Black Maternal Health Caucus, said she was proud to see the Maternal and Child Health Stillbirth Prevention Act pass in the Senate and hopes her colleagues in the House will soon follow suit. Congress, she said, is finally treating stillbirth “with the urgency it deserves.”

“For too long, stillbirth has been a silent crisis,” Adams said, “but the mothers and families experiencing this crisis deserve a voice.”

by Andrea Bernstein, Andy Kroll and Ilya Marritz

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

This podcast was produced with On the Media.

This is “We Don’t Talk About Leonard,” a podcast series with WNYC’s “On The Media” that explores the web of money, influence and power behind the conservative takeover of America’s courts — and the man at the center of it all: Leonard Leo.

Historians and legal experts say there is no comparable figure in American jurisprudence. To the extent Leo is known, it’s for his role helping to install the conservative supermajority on the U.S. Supreme Court. But his reach extends far beyond that. Decades ago, he realized it was not enough to have justices on his side. Those jurists needed to decide the right cases, brought by the right lawyers and heard by the right lower court judges. He built a machine to do just that.

Find “We Don't Talk About Leonard” wherever you get your podcasts.

Episode 1

In the first episode, we travel from Leo’s modest roots in middle-class New Jersey to a mansion in Maine where last year he hosted a lavish party with federal judges that fell on the night before the Supreme Court decision that overturned Roe v. Wade.

Episode 2

In the second episode, we find a Montana solicitor general with an odd bobblehead doll; see Leo mobilizing his machine and connecting donors to Supreme Court justices; and see Leo make a fateful decision.

Episode 3

In the third episode, Leo is in Maine, a man in his castle, at the height of his powers. He has helped remake the American judicial system, and now he has a plan to do the same for society and politics — to make a Federalist Society for everything. But his vision for American society … collides with American society.

Do you know something newsworthy about Leonard Leo? Email Andrea Bernstein or Andy Kroll, or contact Kroll on Signal at 202-215-6203.

This series is reported by Andrea Bernstein, Andy Kroll and Ilya Marritz and edited by “On The Media” executive producer Katya Rogers and ProPublica’s Jesse Eisinger. Molly Rosen is the lead producer, with help from Shaan Merchant. Jennifer Munson is our technical director. Jared Paul wrote and recorded all the original music. Our fact checkers are Andrea Marks and Hannah Murphy Winter.

by Jessica Miller, The Salt Lake Tribune

This article was produced for ProPublica’s Local Reporting Network in partnership with The Salt Lake Tribune. Sign up for Dispatches to get stories like this one as soon as they are published.

This story discusses sexual assault.

Three additional men have come forward to say a therapist recommended and paid for by The Church of Jesus Christ of Latter-day Saints touched them inappropriately during counseling sessions related to struggles with their sexuality. The men's statements follow allegations by three others, previously reported by The Salt Lake Tribune and ProPublica, that clinical mental health counselor Scott Owen touched them sexually during therapy.

The three who most recently came forward said their counseling sessions were paid for with money donated by church members to help those in need. The church said it has no process in place to vet the therapists its church leaders recommend.

The disclosures follow an investigation by the news organizations this summer detailing allegations against Owen, who gave up his license as a mental health worker in 2018.

Austin Millet, one of the men who have spoken out in recent weeks, said he saw Owen in 2010 while attending Brigham Young University, in Provo, Utah. At that time, he was questioning if he was gay and struggling with how that fit in with the theology of his Latter-day Saint faith.

His bishop suggested he try therapy, Millet recalled, and said he wouldn’t need to worry about the cost — the church would pay the bill. He said the lay leader referred him to a local practice, Canyon Counseling. One of its co-owners, his bishop told him, was a specialist in helping gay LDS men be in romantic relationships with women. Owen was also a bishop during that time, according to the three men The Tribune/ProPublica spoke with for this story.

Millet said that when an employee at Canyon Counseling later called Millet, then 23, to set up an appointment, he was told payment was taken care of.

“It was kind of like, ‘Oh, don’t worry, we're taking care of it behind the scenes,’” Millet remembered. “‘And your job is to just show up.’”

But Millet said his therapy sessions in Owen’s Provo office quickly turned physical and then sexual — with the therapist cuddling with him, kissing him and groping him.

Owen has not responded to allegations that he touched a number of clients inappropriately and did not answer detailed questions sent to him last week.

Owen (Obtained by The Salt Lake Tribune)

The Tribune/ProPublica report in August showed that Utah’s Division of Professional Licensing and LDS church officials had known about allegations of inappropriate touching involving Owen and were slow to act. Utah licensing officials say that, given the evidence they had, they believe they responded appropriately. The church said in response that it takes all matters of sexual misconduct seriously and “this case was no exception.” The church said it annotated Owen’s membership record in 2019 with a confidential marking intended to alert bishops that he was someone whose conduct has threatened the well-being of other people or the church.

In response to the more recent allegations, the church has said that it allows its church leaders to pay for therapy for its members, but added it could not say how much money, if any, bishops have paid to Owen specifically.

Sam Penrod, a spokesperson for the church, said it does not screen therapists that its leaders are paying. He said that Family Services, a nonprofit arm of the church, maintains a list of licensed professionals that bishops can refer to when recommending therapy. It does not individually vet those mental health workers, he added. That, he said, falls to individual church members.

“It is up to Church members who are referred to a therapist by a bishop or other referral to make their own decisions when it comes to using a licensed therapist,” Penrod wrote in an email.

Millet, now 36, said going to therapy with Owen was his bishop’s “firm counsel.” It was that same bishop who had given him the required ecclesiastical recommendation to attend BYU, and he feared that not following what his bishop said could impact his academic career. Losing his bishop’s endorsement meant he would not have been able to attend the church-owned university.

“Since he referred me to Scott, who was another bishop at the time, it seemed that this was required of me academically and religiously,” Millet said. “Trying to say no to either of them would have been overwhelming at that time in my life.”

Sexual touching in a therapy session is considered unethical by all major mental health professional organizations, and Utah licensers consider it “unprofessional conduct” that can lead to discipline. It’s also illegal in Utah.

State licensers stopped Owen from practicing in 2018 after investigating at least three complaints of inappropriate touching in a two-year period. Penrod has said that the LDS legal department also learned of alleged inappropriate conduct that same year. The August article from the Tribune/ProPublica revealed that one former patient had reported the alleged abuse to both his bishop and state licensers in 2016.

Since that article was published, other entities have responded: Police in Provo are investigating. Brigham Young University has reevaluated its relationship with Owen’s business. And Canyon Counseling cut ties with him before announcing in September that it was closing altogether.

But the church has not publicly reevaluated its own role in referring these men to a therapist they now say abused them.

Canyon Counseling in Provo, Utah (Leah Hogsten/The Salt Lake Tribune) “Bishop Pay”

According to the church handbook, bishops can pay for clothes, food or medical services for members who are in need. The money for this comes from member donations after monthly Fast Sundays, a prayer-filled day when members are encouraged to donate what money they would have spent on food and drink to help the poor and needy.

Church guidance tells bishops that this money, called “fast offerings,” should be used to pay for only essential items, like food, clothes or housing. It may also “be used to pay for personal services such as counseling, medical care, or vocational training.”

The handbook gives little guidance as to how a bishop should recommend a therapist or other medical professional or how to ensure a church member is receiving quality care. It says that when a church member is seeking counseling about “intimacy,” a bishop should refer them to “professionals who specialize in such counseling and whose beliefs and practices are consistent with Church doctrine.”

The term “bishop pay” is listed as an option for form of payment on several websites of Utah-based therapists, usually on the same page as insurance forms and other pay rate information. Several Utah-based therapy businesses require that anyone using this payment method also sign a confidentiality waiver allowing therapists to share patient information with the patient’s bishop.

When asked what privacy expectations a church member can expect when a bishop pays for their therapy, Penrod said church leaders may follow up with a therapist to ensure the member is keeping their appointments and “pursuing goals set by the therapist.”

“Otherwise,” he said, “it is Family Services policy that HIPAA principles are closely followed and the content of sessions including diagnostics, progress notes and observations are not shared with anyone, including bishops, without a release signed by the client.”

HIPAA is a federal law to protect people’s medical records from being shared by health care providers without a patient’s knowledge.

Owen is one of several Utah therapists who have received church funds for sessions who in recent weeks have been accused of abusive behavior.

One therapist was charged last month with aggravated child abuse after the children of her business partner in an online self-improvement program were found malnourished at the therapist’s home. Her niece said during a Mormon Stories podcast interview that she handled the billing for the practice and that many clients' bills were paid by their local church leaders.

Another therapist is facing felony charges for allegedly physically abusing a client during counseling sessions. His life coaching and therapy website offers an option for billing to be sent to bishops. It also includes a form that requires patients whose treatment is paid for by the church to agree to waive their privacy rights and allow a therapist to share any health information with their bishop “without limitation.”

Neither of these mental health professionals have entered a plea to the charges against them.

Mark, who is being identified by his middle name to protect his privacy because not all of the experiences detailed here are known to people in his life, is another of the three former patients who came forward after publication of the earlier article. He told The Tribune and ProPublica about therapy sessions the church paid for where, he said, Owen held him.

Mark began to see Owen in 2008, he said, after his church leader suggested therapy. Mark had been in the middle of a disciplinary process with the church at that time after being unfaithful to his wife with a man.

At that time, many Latter-day Saint authorities taught that being gay was a choice, and the church opposed measures to allow same-sex couples to marry. The church has since said that sexuality is not a choice, but still does not allow its members to be married to someone of their same sex.

Mark, who is being identified by his middle name to protect his privacy, was referred to Owen at a time when he was being disciplined by the church. He said he didn’t feel like he had any other choice but to go. (Trent Nelson/The Salt Lake Tribune)

Mark, who is bisexual, had been disfellowshipped — now called “membership restricted” — which means that while he was encouraged to attend church, he was not allowed to take the sacrament, or Communion, enter a Latter-day Saint temple or give sermons. It is considered a step below the most severe action the church can take against its members, which is excommunication, now termed “membership withdrawal.”

Though he’s no longer a believing member, Mark said it was important to him at the time to follow the guidance of his faith leader and attend counseling with Owen in order to get back into good standing with the church.

“There’s definitely a bit of pressure there,” he said. “Like what if I say no? Is that going to make my bishop think that I’m not repentant?”

Mark remembers paying a portion of the therapy cost for the handful of sessions he had with Owen. His bishop, he said, picked up the rest of the bill.

Like other former patients who spoke to The Tribune, Mark recalled how Owen had told him that he had a “fear of intimacy” and suggested that they embrace as they sat on a couch in Owen’s office. Mark did not see Owen for long, relocating shortly after their therapy sessions started.

Millet, the then-BYU student, saw Owen a year later. He said his therapy sessions began similarly, and that Owen also said he was teaching Millet to be “intimate” without being sexual. He trusted Owen because he was a therapist and a church leader, and he remembers that at first the embraces felt powerful — and positive.

“I’m this vulnerable gay kid from BYU,” Millet recalled. “I was just craving this physical touch. And it was wonderful.”

But the touching, Millet said, gradually became more sexual, and he found the sessions confusing. Owen directed Millet to take his clothes off during many sessions, Millet remembers, while the therapist remained clothed. They would often kiss, he said, with Owen touching Millet’s thighs or his bottom.

Millet kept seeing Owen for a year and a half, he said, until the therapist ended their sessions when Millet became engaged to a woman.

“We Opened an Investigation”

Even after Owen surrendered his license in 2018 in response to several patient complaints to licensers of inappropriate touching, there was no criminal investigation, and he appears to have continued to play an active role in his business. A woman who worked at Canyon Counseling for about six months last year — and who asked that her name not be used because she works as a therapist and doesn’t want to be associated with the business — said that Owen led monthly training sessions with the young therapists who worked there and recalled that he taught them about “how to incorporate theology and religion into therapy.”

The woman, whose past employment with Canyon Counseling was verified by The Tribune, said Owen had told her that he no longer saw patients because Canyon Counseling’s “business was booming” and one of the owners needed to focus their work on handling that growth. Owen did not respond to questions asking about his role in the business after he surrendered his license.

Melanie Hall, a spokesperson for Utah’s licensing division, said a therapist who teaches isn’t required to be licensed if they are not also treating patients.

It was only after the publication of the Salt Lake Tribune/ProPublica investigation, however, that Owen’s role in the business changed dramatically. First, on Aug. 15, less than two weeks after the article appeared, Owen was removed from state business records as Canyon’s Counseling registered agent. Soon after, the practice noted on its website that Owen has “no ownership nor any other affiliation in any manner” with the business.

The business itself also faced repercussions. This summer, BYU’s Student Center — where four Canyon Counseling therapists worked — began reevaluating its relationship with the business “as it learned of concerns about one of the owners,” according to university spokesperson Carri Jenkins. She said that because Owen had never practiced there, the Student Health Center was previously unaware that he had surrendered his license.

Then, in late September, Canyon Counseling announced it was closing altogether. A therapist who worked there at that time, Shawn Edgington, has since reopened the business as Palisades Counseling.

Edgington said his business has “no ties” to Owen, adding that “any alleged abuse by Mr. Owen is completely unacceptable and not condoned in any manner by Palisades Counseling.”

“Palisades Counseling and its therapists, do NOT tolerate abuse of any kind,” he wrote in an email. “Any kind of abuse of women, children, or anyone is completely unacceptable and will not be tolerated in any form by Palisades Counseling and its therapists.”

Neither the church nor Utah licensers would comment on whether they reported Owen to police. But Provo police officials said the first time they learned that a former therapist in their city had been accused of sexual abuse was after the news organizations published their investigation in August.

“We opened an investigation after we saw your initial report,” Provo’s Capt. Brian Taylor told a Tribune reporter, “and we have offered interviews to anyone who has something to say about their experience at Canyon Counseling, with Dr. Scott Owen. And we continue to do that.”

Taylor said the investigation is still open, and the Provo police are seeking to speak with other people with allegations of abuse involving Owen. He said they have been in contact with “more than one” alleged victim so far.

It’s the first time local police have looked into whether Owen’s purported therapy practices are illegal.

In Utah, with few exceptions, the state licensing division is not legally required to forward information to law enforcement. At least one state — Ohio — mandates that medical boards report felonies to the police. The Federation of State Medical Boards encouraged boards in a 2020 report to err on the side of reporting physicians to the police in cases of allegations of sexual misconduct.

“Best practices dictate that boards have a duty to report to law enforcement anytime they become aware of sexual misconduct or instances of criminal behavior,” the report recommended.

Hall, the spokesperson for Utah’s licensing division, said licensers do collaborate and report crimes to police agencies “often,” though she would not not explain under what circumstances they would do so.

Mollie Simon contributed research.

by Bianca Fortis

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

Columbia University has been rocked by revelations about the university’s handling of the case of Robert Hadden, a former obstetrician-gynecologist who sexually abused patients for decades while working at the school.

A ProPublica investigation, published last month in collaboration with New York Magazine, detailed how Columbia failed to stop Hadden and then sought to deflect blame and distance the university from the scandal once his misconduct became public. Columbia has also refused to notify Hadden’s thousands of former patients that he’s been convicted of sexual misconduct.

Last week, more than 100 medical students wearing white coats were joined by some of the survivors in a protest at the inauguration of Columbia’s new president, Minouche Shafik. Throughout the event, they chanted, “Notify the patients.” The students have also called on Columbia to commission an independent investigation and to share the systemic changes the university has made as a result of the scandal. The students said administrators have not announced any actions in response to the students’ demands.

Also last week, an additional 301 former Hadden patients filed civil suits against the university, bringing the total to 538. Columbia has already settled with more than two hundred patients for $236.5 million.

Columbia did not respond to ProPublica’s request for comment about the students’ demands or the new suits.

Hadden was arrested in 2012 after a patient called the police to report that Hadden had sexually assaulted her. Administrators at Columbia and NewYork-Presbyterian Hospital then allowed Hadden to return to work, where he continued to abuse patients for five weeks before being suspended.

In 2016, Hadden agreed to a plea deal with the Manhattan district attorney’s office in which he received no jail time. The Department of Justice later charged Hadden, and he was convicted in federal court this January of abusing patients and is currently serving a 20-year sentence.

Following publication of our investigation, Columbia issued an apology for the first time. The statement was signed by Shafik and by Katrina Armstrong, the CEO of the Columbia University Irving Medical Center, where Hadden delivered babies. The letter says that the university “continues to grapple with the magnitude of harm done” to Hadden’s patients. “We are heartbroken for those who have suffered and continue to suffer from these terrible actions. Hadden will spend the rest of his life in prison thanks to these courageous women. We commend them for coming forward. We offer our deepest apologies to all his victims and their loved ones.” The letter did not lay out any specific shortcomings on Columbia’s part. Through a university spokesperson, Shafik declined to give further comment.

Two survivors, Marissa Hoechstetter and Evelyn Yang, along with their attorney, Anthony DiPietro, condemned the statement, calling it “self-serving propaganda.” They also said that the university continues to “keep thousands of patients in the dark.”

One reason that survivors are calling on the university to notify patients is so that if Hadden had other victims, they can seek justice through the courts. The Adult Survivors Act, a law passed in New York state last year, opened up a temporary one-year window in which survivors of sexual abuse can file cases against their abusers — or the institutions that protected them — even if the statute of limitations has expired.

On Sept. 28, during the annual State of the School address given at Columbia’s medical school, Armstrong gave a brief statement about Hadden, saying that she shared attendees’ distress and concern for the victims and their loved ones. “I also want you to know that we will be working as a community with everyone over the next weeks and days to make sure that we provide all the information about where we’ve come and all that’s been done to make sure that this will never happen again, to offer opportunities for support and engagement to everybody in our community for what you all need and deserve.”

Armstrong did not respond to a request for further comment.

by Jonathan D. Salant, Pittsburgh Post-Gazette

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Sen. Richard Blumenthal, D-Conn., has expanded his call to take action against medical device powerhouse Philips Respironics, sending a letter to federal regulators demanding aggressive enforcement against the company for withholding thousands of warnings about a dangerous defect in its breathing machines.

In the letter on Tuesday to Food and Drug Administration Commissioner Robert M. Califf and Attorney General Merrick Garland, Blumenthal cited a ProPublica and Pittsburgh Post-Gazette investigation last month that revealed the company sold millions of sleep apnea machines and ventilators even after finding that an industrial foam placed inside them was breaking down and emitting chemicals at dangerous levels.

Calling the investigation “explosive,” Blumenthal told the officials that their agencies “must urgently use all of their authorities to protect current and future patients by investigating these allegations thoroughly, taking the strongest enforcement action possible, including criminal charges, if the allegations are substantiated.”

Last week, Blumenthal, a member of the Senate Judiciary Committee and chairman of a subcommittee that probes potential violations of laws and regulations impacting national health and safety, also called on the Justice Department to take swift action.

In the letter, he urged the two agencies to “deter future wrongdoing and hold the company accountable for past violations.”

FDA spokesperson Carly Kempler said the agency received the letter and will respond to the senator. The Justice Department did not immediately respond to a request for comment.

A yearlong investigation by the news organizations found that Philips kept secret more than 3,700 complaints about the faulty devices over the course of 11 years before launching a massive recall.

When the recall was announced in 2021, Philips said the foam could release chemicals or break into particles capable of causing life-threatening injuries.

Since then, the company has changed course, saying recent testing on the DreamStation continuous positive airway pressure, or CPAP, machine and similar devices shows that chemical emissions fall within safety thresholds.

The FDA challenged the company on its test results, saying in a statement last week that the studies were not adequate and that Philips had agreed to conduct additional tests.

The foam was placed inside more than 15 million machines since 2009, prompting a recall that affected patients in the United States and around the world.

“We may not know the full impact of Philips’ negligence for years to come,” Blumenthal said in his letter.

Philips has said it evaluated complaints about the foam on a case-by-case basis and launched the recall shortly after the company became aware of the potential significance of the problem. Philips also said it regrets any “distress and concern” caused by the recall and is cooperating with prosecutors and regulators.

Help ProPublica and the Pittsburgh Post-Gazette Investigate the Recall of Philips Respironics Breathing Machines

Update, Oct. 11, 2023: This story was updated with comment from the FDA.

Debbie Cenziper of ProPublica and Michael D. Sallah of the Pittsburgh Post-Gazette contributed reporting.

by Jeremy Schwartz

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This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans. Sign up for The Brief Weekly to get up to speed on their essential coverage of Texas issues.

As a new Texas law further restricting what books students can check out of school libraries takes effect, local bans are gaining steam in districts across the state — in some cases going in startling directions.

In Katy, a growing Houston suburb, school officials recently bought $93,000 worth of new library books and promptly put them in storage so an internal committee could review them. The district then banned 14 titles (bringing its total since 2021 to 30), including popular books by Dr. Seuss and Judy Blume, as well as “No, David!” an award-winning children’s book featuring a mischievous cartoon character who at one point jumps out of a bathtub, exposing a cartoon backside. (This wasn’t the district’s first foray into regulating cartoon nudity; over the summer, a book about a crayon that lost its wrapper, becoming “naked” in the process, was flagged for review but ultimately retained.)

Following the latest removals, the Katy school board decided that cartoon butts would be exempted from a district policy that called for removing books showing nudity. “Explicit frontal nudity,” on the other hand, would not be allowed.

“The board’s intent was never to remove well-known cartoon-like children’s books just because they showed a little drawing of a little boy’s rear-end,” its president, Victor Perez, said, according to the Houston Chronicle.

One hundred miles to the east, a school district near Beaumont made headlines last month after removing a substitute middle school teacher who had read students portions of an illustrated adaptation of Anne Frank’s diary, which detailed her hiding from the Nazis and was published after her death in the Holocaust.

The graphic novel version includes descriptions of Frank’s attraction to other girls as well as her clinical descriptions of her private parts.

The book, which had not been approved as part of the district’s curriculum, had been included on a reading list sent to parents at the start of the school year, according to television station KFDM.

The district is investigating whether administrators knew the book was being used in the class, according to news reports.

And just south of Houston, the private Friendswood Christian School announced it was canceling its Scholastic Book Fair, barring the nation’s largest children’s book publisher, which has put on book fairs at schools around the country for decades.

In a letter to parents, obtained by ABC13 in Houston, the school made clear the decision was aimed at books featuring LGBTQ+ themes and characters.

“The book fair is one of our biggest fundraisers, but unfortunately, we have seen more and more books that promote and support LBGTQ+ views,” the school wrote. “We’re at a crossroads where we share different values and beliefs, especially when it comes to exposing young children to adult topics. Friendswood Christian School is a private institution devoted to creating a complete learning environment for children by incorporating Christian principles into the academic framework. We want to provide an environment where children can hang on to their innocence as long as possible.”

Kasey Meehan, the Freedom to Read program director for the New York-based free speech organization PEN America, said that as Texas enters what is essentially its third consecutive school year of book banning activity, efforts have taken some troubling directions.

“Even after that first removal of books, what we see is a continued chilling effect that happens across schools,” she said in an interview. “There are these ripples that are going to extend beyond simply removing a book to just read, erring on the side of caution and bringing a bit more scrutiny to any availability of books and any opportunities that students can have to access books.”

The local censorship efforts come as courts wrestle with a new Texas law that requires booksellers to rate public school library books based on their depictions of or references to sex. Books in which such references are deemed “patently offensive” by the vendors will be issued a “sexually explicit” rating and can’t be sold to schools and must be removed from shelves of school libraries. Books that reference or depict sex generally will be rated “sexually relevant” and require parental permission to read.

Texas schools would be barred from buying books from vendors who don’t use the ratings.

On Sept. 18, a U.S. district judge in Austin issued a written order blocking the law, which was passed this spring, from taking effect. Judge Alan D. Albright, a Trump appointee, ruled the law would impose “unconstitutionally vague requirements” on booksellers and “misses the mark on obscenity.”

“And the state,” he wrote, “in abdicating its responsibility to protect children, forces private individuals and corporations into compliance with an unconstitutional law that violates the First Amendment.”

A week later, the 5th U.S. Circuit Court of Appeals blocked the judge’s ruling, temporarily allowing the law to go into effect while the court considers the case, which it is expected to take up this month.

Book bannings have increased precipitously in the state since ProPublica and The Texas Tribune started reporting on the issue in rural Hood County two years ago, where a fight over library books foreshadowed the intense partisanship that has come to mark many Texas school board races. The U.S. Department of Education launched an investigation into the Granbury Independent School District after the superintendent was secretly recorded ordering librarians to remove library books with LGBTQ+ themes.

The federal probe, which followed a ProPublica-Tribune investigation with NBC News, remains open, according to the Department of Education’s Office of Civil Rights. Last year, in response to the outlets’ investigation, the district said it was committed to supporting students of all backgrounds.

The issue continues to roil Granbury, as some community members and trustees don’t believe the district has gone far enough to remove books. Last month, the school board censured a trustee who wants additional titles removed after she was accused of sneaking into a school library to examine books with a cellphone flashlight.

According to a report from the American Library Association, Texas was home to the most attempts to ban or restrict books in 2022.

Of the 1,269 documented attempts to remove books from school or public libraries across the nation in 2022, 93 took place in Texas, affecting over 2,300 titles, the association’s Office of Intellectual Freedom found. The ALA said book challenges nearly doubled nationally in 2022 and are “evidence of a growing, well-organized, conservative political movement, the goals of which include removing books about race, history, gender identity, sexuality, and reproductive health from America’s public and school libraries that do not meet their approval.”

The American Library Association itself has come under fire among conservative circles in Texas. In August, Midland County commissioners voted to withdraw from the association. Days later, the Texas State Library and Archives Commission pulled out.

A similar report by PEN America found 3,362 instances of book banning at K-12 schools during the 2022-23 school year, up 33% from the previous year. According to the organization, Florida schools accounted for the most removals, 1,406, followed by Texas with 625.

What’s been your experience with school library book bans in Texas? Email Austin-based reporter Jeremy Schwartz at jeremy.schwartz@propublica.org to let him know.

by Jeremy Kohler

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After the 2014 fatal police shooting of Michael Brown in Ferguson, Missouri, and the months of protests that followed, the city of St. Louis was forced to reckon with its Black residents’ longstanding distrust of its police and courts.

Kim Gardner emerged as a voice for change. A lifelong resident of St. Louis, she had diverse professional experiences, having worked as a funeral director, a nurse, a lawyer and a state legislator. When campaigning for circuit attorney, the city’s top prosecutor, she focused on the disproportionate frequency of arrests and police officers using force against St. Louis’ Black community.

“We need to change decades of old practices that left many in our community distrustful of the criminal justice system as a whole,” she told The St. Louis American, the city’s Black newspaper, just days before her decisive primary victory in August 2016 that all but sealed her general election win.

In the last decade, prosecutors in other major American cities also campaigned on promises of systemic reform: Kim Foxx in Chicago, Larry Krasner in Philadelphia, Chesa Boudin in San Francisco.

Yet, much like Gardner, these prosecutors have faced resistance from the police and the unions that represent rank-and-file officers. They’ve been accused of being soft on crime and have even been met with political maneuvers aimed at derailing their initiatives. Several have been targeted by efforts to remove them from office or pare away their powers.

Boudin lost a recall vote and was removed in June 2022. And Krasner, criticized for his reduced emphasis on prosecuting minor crimes, was impeached by the state legislature in November, although a state court threw out the result.

In Florida, Gov. Ron DeSantis has removed elected prosecutors in Tampa and Orlando. He suspended Hillsborough County State Attorney Andrew Warren over Warren’s refusal to prosecute offenses related to abortion and gender-related health care. He suspended the state attorney for Orange and Osceola counties, Monique Worrell, because he said she wasn’t tough enough on some serious offenses.

Georgia recently became the first state to establish a commission with the authority to discipline and even remove local elected prosecutors. Republican Gov. Brian Kemp framed the law as a way to check “far-left prosecutors.”

Gardner, who was reelected in 2020, stepped down in May of 2023 while facing both a lawsuit from the state attorney general that sought her removal and a separate attempt by the Republican-led legislature to curtail her authority. Gardner’s mismanagement of her office played a significant role in her downfall. Reform-minded lawyers who she personally hired had departed. And while judges fumed about prosecutors failing to show up for court, Gardner was moonlighting as a nursing student.

Kim Gardner in 2022, when she was the St. Louis circuit attorney (AP Photo/T.L. Witt, Pool via Missouri Lawyers Media, File)

Though other prosecutors faced various challenges, there are no widely known instances like that of retired detective Roger Murphey in St. Louis, who has refused to testify in at least nine murder cases and hasn’t received any departmental discipline.

“For every progressive prosecutor who’s managed to stick it out, there’s one who’s either been recalled or driven out,” said Lara Bazelon, a University of San Francisco law school professor who volunteered on Boudin’s campaign and serves as chair of the commission he created to review inmates’ claims of innocence. “So it’s a real mix of success and cautionary tales.”

She added: “If the police are against you, or literally out to get you, you’re probably not going to be able to last in that job.”

Foxx, elected in 2016 and reelected in 2020, announced in April that she will not seek a third term next year, though she said it was not because of resistance from the police. In an interview, Foxx said that even before she took office, the Chicago police union felt threatened by her assertion that Black lives matter and that the criminal justice system could be more fair, particularly to communities of color.

It was a signal, she said, “that I was not one of them.”

“The reality is we were offering something very different to what was traditionally viewed as the law-and-order approach to prosecution,” Foxx said. “I think it was surprising to folks that prosecutors could be elected addressing these issues.”

Cook County State’s Attorney Kim Foxx announces that she will not seek reelection. (Ashlee Rezin/Chicago Sun-Times via AP)

R. Michael Cassidy, a law professor at Boston College and an expert in prosecutorial ethics, said the Ferguson unrest emphasized the need for change in how police and prosecutors work. He said some prosecutors have failed to manage their relationships with police; prosecutors depend on the officers to bring them cases and to testify in court, but they must conduct oversight of the police as well.

Foxx pushed back against any assertion that she didn’t manage her relationship with police. She pointed to a popular Chicago police blog that often refers to her as “Crimesha” — “a play on the word ‘crime’ and what I believe to be a racist insinuation about me being Black with the name ‘-esha.’” The blog has also sexualized her last name by adding a third X and has insinuated that members of her family are connected to gangs.

“From the moment we came into office, we reached out to our partners in law enforcement, and what we saw was there was a segment of them who were never going to be satisfied with me in this role because I said ‘Black lives matter,’ because I said ‘We need police accountability,’ because I said that we had a criminal justice system that overly relied on incarceration that targeted Black and brown communities,” she said.

She said that she, Gardner and other prosecutors “have been faced with an unprecedented level of hate and vitriol” from the police.

“That,” she said, “is the story.”

The local police union organized a protest calling for the removal of Cook County State’s Attorney Kim Foxx in Chicago in 2019. (Scott Olson/Getty Images)

Chicago Fraternal Order of Police President John Catanzara and other union officials did not respond to requests for comment. But Catanzara told the Chicago Sun-Times in 2020 that the union’s complaints about Foxx were based on her job performance. He said she was a “social activist in an elected law enforcement position” who was unwilling to “faithfully do her job.”

Boudin was elected in 2019 on a reform platform. Soon after taking office, he eliminated cash bail for most misdemeanors and nonviolent felonies. He also brought criminal charges against nine city officers for misconduct and announced a plan to compensate victims of police violence.

But as property crime rates climbed in San Francisco, Boudin came under increased scrutiny.

Cassidy said Boudin and other like-minded prosecutors have been scapegoated for isolated incidents or temporary spikes in crime statistics, as if they alone are responsible. In some cities, that has swung public opinion against them.

Boudin said the claims were unfair and largely the product of police resistance to his reforms.

“We’ve seen, on body-worn camera footage, police officers telling victims there’s nothing they can do and, ‘Don’t forget to vote in the upcoming recall election,’” Boudin said in an interview.

Boudin said he and other local prosecutors have found “there is absolutely zero accountability for these officers who engage in explicitly political acts of sabotage or dereliction of duty.”

A spokesperson for the San Francisco police union declined to comment.

Chesa Boudin, during his time as San Francisco’s district attorney (David Paul Morris/Bloomberg via Getty Images)

Some prosecutors have held onto their positions despite challenges to their power. In November, veteran public defender Mary Moriarty was elected county attorney for the jurisdiction that includes Minneapolis in the first election since the death there of George Floyd. The same night, Dallas District Attorney John Creuzot was reelected by a nearly 20-point margin in spite of calls by a police union for his ouster over his plan not to prosecute certain low-level offenses.

In August 2022, Sarah George, the incumbent state’s attorney in Vermont’s Chittenden County, which includes Burlington, secured her seat with a 20-point victory in the Democratic primary over Ted Kenney, a challenger backed by the police.

George had introduced a variety of reforms, including eliminating cash bail and declining to prosecute cases where evidence was obtained during noncriminal traffic stops, like those for broken taillights. The Burlington police union called her actions “disastrous” and Kenney argued that the approach made streets less safe.

George, too, has seen police body camera video of officers blaming her for crime. In one video, which she provided to ProPublica, the Riverfront Times and NPR, an officer from a suburban police department tells a couple that officers can’t do anything about a crack house in their neighborhood. He then implores them to vote for Kenney because of George’s “super-progressive, soft-on-crime approach where we arrest the same people daily and they get out the same day.”

George said that, with some crime investigations, the police are “not really doing the work that we need to do on the case, and then blaming us for the case not being filed.”

The Burlington police union declined to comment. The chiefs of police in Burlington and Winooski, the suburb where the video was taken, did not respond to messages seeking comment.

Gardner, too, often faced criticism from police for her reluctance to prosecute cases based on arrests alone. In one notable instance in 2019, she dropped child-endangerment charges against two day care workers who were captured on video as they appeared to encourage toddlers to box using toy Incredible Hulk fists.

The police union called for her ouster, writing on Facebook: “The first rule of toddler fight club is … that you prosecute the sadistic promoters of toddler fight club.”

In comments made before her resignation, Gardner noted that she had been careful not to file criminal charges in cases where she did not feel there was enough evidence. “What they want me to do is make it look like this job is easy,” she said. “We can’t make things fit and people don’t like that. That’s not what justice is about.”

Richard Rosenfeld, a professor emeritus of criminology at the University of Missouri, St. Louis, was one of several researchers who pooled data from 65 major cities and found “no evidence to support the claim that progressive prosecutors were responsible for the increase in homicide during the pandemic or before it.”

Indeed, Chicago’s murder rate fell during Foxx’s first years in office, rose during the first years of the pandemic and has been falling this year, city crime statistics show. Philadelphia’s murder rate was in steep decline this year after a precipitous rise that started in 2020. And most categories of crime were in retreat in St. Louis at the time Gardner resigned, while violent crime was up in San Francisco a year after Boudin’s exit, according to statistics.

Acknowledging that the St. Louis police commonly blamed Gardner for crime trends, Rosenfeld, a veteran observer of policing in St. Louis, said, “Case not proved, is what I would argue there.”

Correction

Oct. 11, 2023: An earlier version of this story incorrectly stated that former San Francisco District Attorney Chesa Boudin dismissed charges in a rape case in 2021 and that it was a factor in his recall.

by Andy Kroll, Andrea Bernstein and Ilya Marritz, illustrations by Nate Sweitzer for ProPublica

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The party guests who arrived on the evening of June 23, 2022, at the Tudor-style mansion on the coast of Maine were a special group in a special place enjoying a special time. The attendees included some two dozen federal and state judges — a gathering that required U.S. marshals with earpieces to stand watch while a Coast Guard boat idled in a nearby cove.

Caterers served guests Pol Roger reserve, Winston Churchill’s favorite Champagne, a fitting choice for a group of conservative legal luminaries who had much to celebrate. The Supreme Court’s most recent term had delivered a series of huge victories with the possibility of a crowning one still to come. The decadeslong campaign to overturn Roe v. Wade, which a leaked draft opinion had said was “egregiously wrong from the start,” could come to fruition within days, if not hours.

Over dinner courses paired with wines chosen by the former food and beverage director of the Trump International Hotel in Washington, D.C., the 70 or so attendees jockeyed for a word with the man who had done as much as anyone to make this moment possible: their host, Leonard Leo.

Short and thick-bodied, dressed in a bespoke suit and round, owlish glasses, Leo looked like a character from an Agatha Christie mystery. Unlike the judges in attendance, Leo had never served a day on the bench. Unlike the other lawyers, he had never argued a case in court. He had never held elected office or run a law school. On paper, he was less important than almost all of his guests.

If Americans had heard of Leo at all, it was for his role in building the conservative supermajority on the Supreme Court. He drew up the lists of potential justices that Donald Trump released during the 2016 campaign. He advised Trump on the nominations of Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Before that, he’d helped pick or confirm the court’s three other conservative justices — Clarence Thomas, John Roberts and Samuel Alito. But the guests who gathered that night under a tent in Leo’s backyard included key players in a less-understood effort, one aimed at transforming the entire judiciary.

Leonard Leo at the Federalist Society’s Antonin Scalia Memorial Dinner (T.J. Kirkpatrick/The New York Times/Redux)

Many could thank Leo for their advancement. Thomas Hardiman of the 3rd U.S. Circuit Court of Appeals had ruled to loosen gun laws and overturn Obamacare’s birth-control mandate. Leo had put Hardiman on Trump’s Supreme Court shortlist and helped confirm him to two earlier judgeships. Kyle Duncan and Cory Wilson, both on the 5th U.S. Circuit Court of Appeals, both fiercely anti-abortion, were members of the Federalist Society for Law and Public Policy Studies, the network of conservative and libertarian lawyers that Leo had built into a political juggernaut. As was Florida federal Judge Wendy Berger, who would uphold that state’s “Don’t Say Gay” law. Within a year of the party, another attendee, Republican North Carolina Supreme Court Justice Phil Berger Jr. (no relation), would write the opinion reinstating a controversial state law requiring voter identification. (Duncan, Wilson, Berger and Berger Jr. did not comment. Hardiman did not comment beyond confirming he attended the party.)

The judges were in Maine for a weeklong, all-expenses-paid conference hosted by George Mason University’s Antonin Scalia Law School, a hub for steeping young lawyers, judges and state attorneys general in a free-market, anti-regulation agenda. The leaders of the law school were at the party, and they also were indebted to Leo. He had secured the Scalia family’s blessing and brokered $30 million in donations to rename the school. It is home to the C. Boyden Gray Center for the Study of the Administrative State, named after the George H.W. Bush White House counsel who died this May. Gray was at Leo’s party, too. (A spokesperson for GMU confirmed the details of the week’s events.)

The judges and the security detail, the law school leadership and the legal theorists — all of this was a vivid display not only of Leo’s power but of his vision. Decades ago, he’d realized it was not enough to have a majority of Supreme Court justices. To undo landmark rulings like Roe, his movement would need to make sure the court heard the right cases brought by the right people and heard by the right lower court judges.

Leo began building a machine to do just that. He didn’t just cultivate friendships with conservative Supreme Court justices, arranging private jet trips, joining them on vacation, brokering speaking engagements. He also drew on his network of contacts to place Federalist Society protégés in clerkships, judgeships and jobs in the White House and across the federal government. He personally called state attorneys general to recommend hires for positions he presciently understood were key, like solicitors general, the unsung litigators who represent states before the U.S. Supreme Court. In states that elect jurists, groups close to him spent millions of dollars to place his allies on the bench. In states that appoint top judges, he maneuvered to play a role in their selection.

It was not enough to have a majority of Supreme Court justices. They needed to see the right cases brought by the right people and heard by the right lower court judges.

And he was capable of playing bare-knuckled politics. He once privately lobbied a Republican governor’s office to reject a potential judicial pick and, if the governor defied him, threatened “fury from the conservative base, the likes of which you and the Governor have never seen.”

To pay for all this, Leo became one of the most prolific fundraisers in American politics. Between 2014 and 2020, tax records show, groups in his orbit raised more than $600 million. His donors include hedge fund billionaire Paul Singer, Texas real estate magnate Harlan Crow and the Koch family.

Leo grasped the stakes of these seemingly obscure races and appointments long before liberals and Democrats did. “The left, even though we are somewhat court worshippers, never understood the potency of the courts as a political machine. On the right, they did,” said Caroline Fredrickson, a visiting professor at Georgetown Law and a former president of the American Constitution Society, the left’s answer to the Federalist Society. “As much as I hate to say it, you’ve got to really admire what they achieved.” Belatedly, Leo’s opposition has galvanized, joining conservatives in an arms race that shows no sign of slowing down.

Historians and legal experts who have watched Leo’s ascent struggle to name a comparable figure in American jurisprudence. “I can’t think of anybody who played a role the way he has,” said Richard Friedman, a law professor and historian at the University of Michigan.

To trace the arc of Leo’s ascent, from his formative years through the execution of his long-range strategy to his plans for the future, ProPublica drew on interviews with more than 100 people who know Leo, worked with him, got funding from him or studied his rise. Many insisted on anonymity for fear of alienating allies or losing access to funders close to Leo. This article also draws on thousands of pages of court documents, tax filings, emails and other records.

“I can’t think of anybody who played a role the way he has.”

—Richard Friedman, a law professor and historian at the University of Michigan

After months of discussions, Leo agreed to be interviewed on the condition that ProPublica not ask questions about his financial activities or relationships with Supreme Court justices. We declined and instead sent a detailed list of questions as well as facts we planned to report. Leo’s responses are included in this story.

Having reshaped the courts, Leo now has grander ambitions. Today, he sees a nation plagued with ills: “wokism” in education, “one-sided” journalism, and ideas like environmental, social and governance, or ESG, policies sweeping corporate America. A member of the Roman Catholic Church, he intends to wage a broader cultural war against a “progressive Ku Klux Klan” and “vile and immoral current-day barbarians, secularists and bigots” who demonize people of faith and move society further from its “natural order.”

Leo has the money to match his vision. In 2021, an obscure Chicago businessman put Leo in charge of a newly formed $1.6 billion trust — the single-largest known political advocacy donation in U.S. history at the time. With those funds, Leo wants to expand the Federalist Society model beyond the law to culture and politics.

The guests at Leo’s party in June 2022 celebrated into the night. One esteemed attendee imbibed so much he needed help to get up a set of stairs. Eventually, the guests boarded buses back to their hotel. The next morning, the Dobbs v. Jackson Women’s Health Organization news broke: The Supreme Court had overturned the constitutional right to an abortion. When Leo next stepped out for his regular walk, it was into a world he had remade.

“Most Likely to Succeed”

When Leo was in kindergarten, he got in a fight over Matchbox cars. “There was a classmate who had a nasty habit of punching me in the nose on the playground,” Leo wrote in response to a question about his earliest memories of growing up Catholic. “I gave him one of my Matchbox cars, hoping a little kindness would help. He accepted the gift and punched me again anyway. I saw then that doing what our faith requires isn’t always going to make life easier or more comfortable, but you have to do it anyway.”

Leo was born on Long Island in 1965. When he was a toddler, his father, a pastry chef, died. His mother remarried and the family eventually settled in Monroe Township, a central New Jersey exurb where you’re not sure if you root for the Yankees or the Phillies.

In the 1983 yearbook for Monroe Township High School, Leo, who often dressed in a shirt and tie, was named “Most Likely to Succeed.” He shared the distinction with a classmate named Sally Schroeder, his future wife. In the yearbook photo, they sit next to each other holding bills in their hands, with dollar signs decorating their glasses. Leo told ProPublica that he was so effective at raising money for his senior prom and class trip that his classmates nicknamed him “Moneybags Kid.”

Monroe Township High School’s 1983 yearbook (Erica Lee, special to ProPublica)

When Leo arrived at Cornell University as an undergraduate in the fall of 1983, a counterrevolution in the legal world was gaining momentum. Iconoclastic scholars led by Yale University’s Robert Bork and the University of Chicago’s Antonin Scalia were building the case for a novel legal doctrine known as originalism. When interpreting the Constitution, they argued, judges and scholars should rely solely on the “original intent” of the framers or the “original public meaning” of the document’s words when they were written. Originalism was a rebuke to the idea of a “living Constitution” and the more expansive approach taken by the liberal Supreme Court majority under Chief Justice Earl Warren.

Law students were also fueling this new movement: In the spring of 1982, three of them founded the Federalist Society, a debating and networking group for conservatives and libertarians who felt ostracized on their campuses. Scalia and Bork spoke at the group’s first conference, at Yale Law School. There weren’t enough people to fill the school’s auditorium, so they held it in a classroom.

Leo encountered the Federalist Society while working as an intern for the Senate Judiciary Committee in Washington in the fall of 1985. At a luncheon hosted by the group, Leo heard a speech that he later said “had an enormous impact on my thinking.” It was delivered by Ed Meese, Reagan’s new attorney general. Meese made an impassioned declaration that originalism would be the guiding philosophy for the Reagan administration. “There is danger,” Meese said, “in seeing the Constitution as an empty vessel into which each generation may pour its passion and prejudice.”

Leo continued to Cornell Law School. The Federalist Society had no presence on campus, so Leo founded a chapter in the fall of 1986. He brought Meese and other conservative scholars to give talks. This went largely unnoticed by Leo’s classmates. To be a conservative legal thinker in those days was to be dismissed as a fringe type. Originalism “wasn’t something that I personally took very seriously,” said Mike Black, a classmate of Leo’s at Cornell Law. “I was clearly wrong.”

Listen to the “We Don’t Talk About Leonard” podcast, in partnership with WNYC’s “On The Media.”

If his early brushes with the Federalist Society shaped Leo’s legal philosophy, then the battle over Robert Bork’s Supreme Court nomination in the fall of 1987 showed him how rancorous judicial fights could be. The attacks on Bork’s views were “character assassination,” Leo would later say, fueling a sense of grievance that liberals and the mainstream media demeaned conservatives. But it was also a failure on the part of the Reagan White House, which hadn’t anticipated the fierce opposition to Bork and was unprepared to defend him.

Leo and his new wife, Sally, moved to Washington after Leo finished law school so he could clerk for two federal judges. Then he had a choice: Take a job with a firm, or work full time for the fledgling Federalist Society.

Leo worked as a researcher supporting Clarence Thomas’ Senate confirmation hearings. (Lee Corkran/Getty Images)

Leo chose the Federalist Society. But first, he took a short leave to work on what would turn into one of the most contentious Supreme Court nominations in modern history. The nominee was an appeals court judge named Clarence Thomas who Leo had befriended during a clerkship. Leo was only 25 years old. Allegations of sexual harassment by law professor and former Thomas adviser Anita Hill had surprised Thomas and his supporters, and the George H.W. Bush White House scrambled to discredit her. Leo was tasked with research. He spent long hours in a windowless room gathering evidence to bolster Thomas. The Senate confirmed him 52 to 48, the narrowest tally in a century.

The searing experience of the Thomas nomination was soon followed by another shock.

The Pipeline

In a 5-4 decision in 1992, the U.S. Supreme Court ruled in Planned Parenthood of Southeastern Pennsylvania v. Casey to uphold the constitutional right to an abortion. The three justices who wrote the majority’s opinion — Anthony Kennedy, Sandra Day O’Connor and David Souter — were all Republican appointees. Here was the greatest challenge to the movement: Even an ostensibly conservative nominee could disappoint. So Leo and his allies set out to solve this recurring problem. They needed to cultivate nominees who would not only start out loyal to the cause but remain stalwart through all countervailing mainstream pressures. Leo and his allies concluded that they needed to identify candidates while they were young and nurture them throughout their careers. What they needed was a pipeline.

That meant finding young, talented minds when they were still in law school, advancing their careers, supporting them after setbacks and insulating them from ideological drift. “You wanted Leonard on your side because he did have influence if you wanted to become a Supreme Court clerk or an appellate clerk,” said one conservative thinker who has worked with Leo. “He was very good at making it in people’s interests to be cooperating with him. I don’t know if he did arm-twisting exactly. It was implicit, I would say.”

The strategy was a hit with donors. As Leo took on more responsibilities as the group’s de facto chief fundraiser, the Federalist Society’s budget quadrupled during the ’90s, with industry executives and major foundations making large donations. The Federalist Society did not respond to a detailed list of questions.

When George W. Bush became president, Leo seized the opportunity to have even greater influence. He recommended lawyers to hire for key administration jobs and was tapped as one of four outside advisers on judicial nominees — a group nicknamed the “four horsemen.” Leo and Brett Kavanaugh, then a young White House lawyer and an active Federalist Society member, teamed up to break a logjam in the Senate blocking Bush’s lower-court nominees. In one email, a White House aide called Leo the point person for “all outside coalition activity regarding judicial nominations.”

In another email chain, previously unreported, a group of Bush Justice Department lawyers discussed how best to publicize a white paper promoting a controversial nominee to an appeals court. One lawyer said he was looking for an organization to “launder and distribute” the paper, presumably so it wouldn’t come from the Bush administration itself. “Use fed soc,” Viet Dinh, a Federalist Society member who was then a high-ranking official at the DOJ, replied. “Tell len leo I need this distributed asap.” (Leo declined to comment on this.)

In 2005, Leo’s bonds with the White House tightened further, when Bush was presented with two U.S. Supreme Court vacancies in rapid succession. On a flight on Air Force Two, Vice President Dick Cheney gave Steve Schmidt, then a White House deputy assistant, two duffel bags full of binders on potential nominees. Schmidt gathered a team to push through the nomination of John Roberts, Bush’s choice to fill the seat of Chief Justice William Rehnquist. The group met in the Eisenhower Executive Office Building, a warren of offices next to the White House. At first, Leo was one among the crowd. But he pushed his way up, Schmidt said. “If you take it down to a school committee, like the PTA committee, who’s going to be the chairperson of the committee? It’s going to be the person who cares the most and shows up to all the meetings,” Schmidt said in an interview. “This is what Leonard Leo did.”

Leo was one of the four people tapped to help George W. Bush with judicial nominees. (AFP Photo/Jim Watson/Getty Images)

Leo worked outside the administration, too. In a sign of his growing sophistication, he formed what would be a key weapon in furthering the conservative takeover of the courts. He and several other lawyers launched the Judicial Confirmation Network, a tax-exempt nonprofit that could spend unlimited sums without publicly revealing its donors. The group did something unusual for that time: It treated a confirmation battle like a political campaign. JCN ran positive ads about Roberts while its spokespeople fed reporters glowing quotes. On paper, the network was independent of the Federalist Society and the White House, but the boundaries were porous. Leo didn’t formally run it, but White House staffers understood that JCN was a Leo group. “Leonard was the guy,” Schmidt said. “A hundred percent.” In his response to questions, Leo confirmed he helped launch the group. (JCN did not respond to repeated requests for comment.)

Roberts’ confirmation was swiftly followed with yet another Supreme Court opening. Bush at first nominated his counsel, Harriet Miers. Conservatives — Leo’s allies — protested: Her resume was thin, her views on abortion suspect. Bush soon withdrew her nomination and offered a hard-right conservative: Samuel Alito. JCN ran yet more ads.

At a 2006 Federalist Society gala, Leo introduced now-Justice Alito to rapturous applause. He also made light of the group’s growing influence over judicial selection, which had drawn suspicions from Democrats. “It is a pleasure to stand before 1,500 of the most little known and elusive of that secret society or conspiracy we call the Federalist Society,” he said. “You may pick up your subpoenas on the way out.”

“Den Mother”

One of the first things a visitor sees upon entering the Catholic Information Center in downtown Washington is a painting of a smiling young girl. Jesus Christ stands above her, eyes closed and a hand on her head. The girl is identified as “Margaret of McLean.” Margaret was Leo’s oldest child, who died in 2007 from complications related to spina bifida when she was 14 years old. Leo has said that his faith was deepened by Margaret’s life and death.

The Catholic Information Center is a bookstore, event space and place of worship. Its location in the nation’s capital is no accident: On its website, the center boasts that it is the closest tabernacle to the White House. Leo is a major supporter of the CIC, and its unabashed projection of political power aligns with the central role of religion in Leo’s political project. Standing at the nexus of the conservative legal movement and the religious right, Leo forged a connection with several of the Supreme Court’s conservative justices, who shared a deep Catholic faith and a legal ideology with Leo. Antonin Scalia, Leo has said, became “like an uncle.” Thomas is a godfather to one of Leo’s daughters and keeps a drawing by Margaret in his chambers. Leo has dined and traveled with Alito, displaying in his office a framed photo of himself, Alito and Alito’s wife, Martha-Ann, standing outside the Palace of Versailles.

George Conway saw this courtship firsthand. Before he became one of the most prominent “Never Trumpers,” Conway had been a veteran of the conservative movement. He served on the Federalist Society Board of Visitors, donated to the group and was briefly considered for a top position in the Trump Justice Department. His then-wife, Kellyanne Conway, was a prominent pollster who later managed Trump’s 2016 presidential campaign.

From his rarefied position, Conway watched Leo become what he called a “den mother” to the justices. In liberal Washington, conservatives — even the most powerful ones — believed themselves to be misunderstood and unfairly maligned. Leo saw it as his responsibility, Conway said, to help take care of the judges even after they had made it to the highest court in the country. “There was always a concern that Scalia or Thomas would say, ‘Fuck it,’ and quit the job and go make way more money at Jones Day or somewhere else,” Conway said, referring to the powerful conservative law firm. “Part of what Leonard does is he tries to keep them happy so they stay on the job.”

“There was always a concern that Scalia or Thomas would say, ‘Fuck it,’ and quit the job and go make way more money at Jones Day or somewhere else.”

—George Conway, a veteran of the conservative movement

On the sidelines of the Federalist Society’s annual conference, Leo made a habit of hosting a dinner at a fancy restaurant where he invited one or two justices or prominent political or legal figures (Scott Pruitt, the Oklahoma attorney general who would later serve in Trump’s cabinet, was one guest) and major donors. “With Leonard, it went both ways,” Conway said. “It made the justices happy to meet people who revered them. It made the donors happy to meet the justices and no doubt more inclined to give to Leonard’s causes.”

In 2008, as ProPublica first reported, he helped organize a weekend of salmon fishing in Alaska that included Alito and Paul Singer, the hedge fund billionaire and Leo donor. Leo invited Singer on the trip, according to ProPublica’s reporting, and Leo also asked Singer if he and Alito could fly on Singer’s plane. The Alaskan fishing lodge where the three men stayed was owned by Robin Arkley II, a California businessman and also a Leo donor. (Alito has written that the trip did not require disclosure.)

Leo has helped arrange for Scalia and Thomas to attend private donor retreats hosted by the Koch brothers dating as far back as 2007; once, Leo even interviewed Thomas at a Koch summit. The Federalist Society flew Scalia to picturesque locales like Montana and Napa Valley to speak to members. After his Napa appearance, Scalia flew to Alaska for a fishing trip on a plane owned by Arkley. Both Singer and Arkley were generous and early donors to JCN. (Arkley said in a statement: “Nothing has been more consequential in transforming the courts and building a more impactful conservative movement than the network of talented individuals and groups fostered by Leonard Leo.” Singer did not comment.)

Leo came to the aid of Thomas’ wife, Ginni, when she launched her own consulting firm, and he directed Kellyanne Conway in 2012 to pay her at least $25,000 as a subcontractor, according to The Washington Post. “No mention of Ginni, of course,” Leo instructed Conway. Leo denied that the payments had any connection to the Supreme Court’s work, and he said he obscured Ginni Thomas’ role to “protect the privacy of Justice Thomas and Ginni.”

Leo, center, on a 2008 fishing trip with a guide and other guests. Leo attended and helped organize the Alaska fishing vacation that was also attended by Justice Samuel Alito and hedge fund manager Paul Singer. (Photo obtained by ProPublica)

Leo was not the only person who used faith and ideology as a bridge to the justices. Reverend Rob Schenck is a longtime evangelical Protestant minister who spent decades as a leader in the religious right. Schenck didn’t work directly with Leo, but he said he too befriended several justices, praying with them in their chambers and socializing with them outside of the court. He came to recognize the justices’ “feet of clay,” their human appetites and frailties.

“I know how much it benefited me to say to donors, ‘I was with Justice Scalia last night or last week’” or that I “‘had a lovely visit with Justice Thomas in chambers,’” Schenck said in an interview. “Anybody can try to get change at the Supreme Court by filing an amicus brief — almost anybody, let’s put it that way. But how many people can get into chambers, or better yet into a justice’s home?”

“Fury … the Likes of Which You and the Governor Have Never Seen”

In 2007, Leo gave the young Republican governor of Missouri, Matt Blunt, a career-defining test. A vacancy had opened up on the state Supreme Court. Missouri has had a nonpartisan process for picking new justices, in which a panel of lawyers and political appointees select candidates for the governor to choose. Known as the Missouri Plan, it had been adopted in some way by dozens of states. Blunt, the scion of a Missouri dynasty, was likely to uphold that tradition as his state’s governors had for the last 60 years. But Leo pressed him to jettison it. Leo did not do this politely.

That year, with the Alito and Roberts confirmations in hand, the Federalist Society was turning its attention to the state courts, devoting nearly a fifth of its budget to the initiative. Leo traveled the country, delivering a stump speech of sorts. His early target, in ways that have not been previously reported or understood, was Missouri.

He and his allies did not like the state’s system. To conservatives, the plan’s nonpartisan structure was a cover for allowing the left-leaning bar to pack the bench with centrist or left-wing justices. Leo’s allies preferred, according to interviews, that the power to select judges be put in the hands of the executive or given to voters at the ballot box. “If you could beat the Missouri Plan in Missouri, you could tell the rest of the states, ‘There is no more Missouri Plan,’” the former chief justice of Missouri’s supreme court, Michael Wolff, said in an interview. “It was a big deal.”

To achieve that, Leo worked a back channel directly to Blunt. The outlines of Leo’s campaign are contained in the paper records of an old whistleblower lawsuit and in emails obtained by The Associated Press as part of a 2008 legal settlement with the Missouri governor’s office. These records show Leo lobbying Blunt’s chief of staff, Ed Martin, and sometimes Blunt himself.

With the Alito and Roberts confirmations in hand, the Federalist Society was turning its attention to the state courts, devoting nearly a fifth of its budget to the initiative.

In the summer of 2007, the judicial panel offered Blunt three finalists. Two were Democrats. The third was Patricia Breckenridge, a centrist Republican. When her name appeared, Leo and his team mobilized, collecting negative research on Breckenridge and lobbying the governor. “I was shocked to see the slate tendered by the Commission the other day,” Leo wrote in an email to Blunt. “It would be very appropriate for you to scrutinize the candidates, and if they fail to pass those tests, to return the names.”

“Return the names” sounded anodyne; it was not. Leo and other Federalist Society leaders had a strategy: They wanted to tarnish Breckenridge’s reputation, spike her candidacy and then use the ensuing disarray to pry Missouri away from its long-standing way of picking justices. Blunt found the character attacks distasteful and worried that if he rejected Breckenridge, the panel would pick one of the Democrats, according to a person familiar with his thinking. Leo wasn’t having it. “He will have zero juice on the national scene if he ends up picking a judge who is a disgrace,” Leo wrote to Martin, the chief of staff. “If this happens, there will be fury from the conservative base, the likes of which you and the Governor have never seen.”

Blunt appointed Breckenridge anyway. Leo piled on. “Your boss is a coward and conservatives have neither the time nor the patience for the likes of him,” he wrote to Martin.

The person familiar with Blunt’s thinking said the governor did not feel threatened. But a few months later, Blunt, surprising nearly everyone, said he wasn’t running for reelection. He had, he said, accomplished all he wanted. At 37 years old, his political career was over.

For four more years, Leo’s team continued to target the Missouri Plan in Missouri. The Judicial Confirmation Network, now rebranded as the Judicial Crisis Network, gave hundreds of thousands of dollars to the effort. It failed again. But Leo, JCN and the Federalist Society took the lessons they learned in Missouri and applied them elsewhere, with profound implications for democracy.

“Tell Them Leonard Told You to Call”

As Leo continued to work his influence with state judicial appointments, he also homed in on what proved to be a softer target: states that elected their top judges. Judicial elections were low-information races, where money could make a difference. After a decade and a half, he achieved what he had not in Missouri: more partisan courts, with hard-line conservatives having a shot and many taking their places on the bench.

Leo became interested in Wisconsin in 2008. An incumbent state Supreme Court justice, Louis Butler, had angered the state’s largest business group with his ruling in a lead paint case. The ensuing ad campaign was contentious and expensive, featuring commercials showing Butler, who is Black, next to the picture of a sex offender who was also Black. To have those two pictures “right next to each other, one sex offender, one a justice on the Wisconsin Supreme Court, took our breath away,” Janine Geske, a former justice on the court, said in an interview. (She was initially appointed by a Republican governor to fill a vacancy.) “Most of us were looking at that, thinking, what have we descended to in terms of ads?”

Behind the scenes, Leo himself raised money for Butler’s challenger, Michael Gableman, according to a person familiar with the campaign. Leo passed along a list of wealthy donors with the instructions to “tell them Leonard told you to call,” this person said. Each donor gave the maximum. Gableman won the race, the first time a challenger had unseated an incumbent in Wisconsin in 40 years. Leo declined to comment on his role.

The push for loyal conservatives intensified after the 2010 election cycle. Republicans took over many state houses and legislatures. But they realized they could sweep to power, yet judges could overrule their initiatives. Republicans counted on Leo for $200,000 to elect a judge who would back Republican Gov. Scott Walker, who was then embroiled in a recall campaign, according to emails. That judge won. Walker stayed in power.

Do you know something newsworthy about Leonard Leo? Email Andrea Bernstein, Andy Kroll or Ilya Marritz, or contact Kroll on Signal at 202-215-6203.

In 2016, Walker had a vacancy to fill, and it was a plum one: The new justice would fill out three and a half years before having to run for the seat. Walker had three people on his shortlist: two court of appeals judges and Dan Kelly. Kelly had been an attorney for an anti-abortion group and was the Milwaukee lawyers chapter head of the Federalist Society, but he had never been a judge.

“Leo stepped in and said it’s going to be Dan Kelly,” a person familiar with the selection said. “There is zero question in my mind, the Federalist Society put the hammer down.” When asked about this, Leo wrote, “I don’t remember,” adding, “I have known Dan Kelly for a number of years.” Walker said he had not discussed the race with Leo. Kelly did not respond to requests for comment.

Over the next several years, Leo, through the Judicial Crisis Network, continued to back conservative candidates in Wisconsin, where judicial elections are, putatively, nonpartisan. In one 2019 race, JCN funneled over a million dollars into the contest in its final week; the Republican narrowly won. But money can’t always deliver in politics. In the complicated political year of 2020, Kelly, even with the backing of Leo and Trump, lost the race to hold on to his seat.

He ran again in 2023. By this time, the Democrats had caught on and the arms race was joined. Democrats, activated by the Dobbs decision and a gerrymander that had left Republicans with a dominant position in the state Legislature, ponied up with big money.

At least $51 million was spent, including millions from groups associated with Leo. He personally donated $20,000, the maximum allowable, to the Kelly campaign. This was after Kelly aligned himself with those rejecting the outcome of the 2020 presidential election.

The most expensive state Supreme Court race in U.S. history ended the night of April 4, 2023. The candidate the Democratic Party supported, Janet Protasiewicz, won handily, giving the liberals control of the state court for the first time in years. Kelly conceded on a bitter note. “It brings me no joy to say this,” he told the affirming crowd. “I wish in a circumstance like this I would be able to concede to a worthy opponent. But I do not have a worthy opponent to which to concede.”

Kelly’s loss was Leo’s loss. But it was also, paradoxically, a win. Conservatives were acting as if judgeships were a prize for a political party, rather than an independent branch of government — what Geske calls “super-legislators.” And thanks to Leo, those super-legislators could be especially hard-line.

Conservatives were acting as if judgeships were a prize for a political party, rather than an independent branch of government: "super-legislators."

In North Carolina, Leo and his allies found another lab for their strategy.

In 2012, JCN began spending in North Carolina, part of an infusion of funds that toppled Judge Sam Ervin IV, the grandson of the Watergate prosecutor. “All of a sudden we started seeing what I would consider misleading and distortive” political ads, Robert Orr, a former Republican state Supreme Court justice in North Carolina, said in an interview. “We’d never seen those in judicial races.” Democrats were able to resist the onslaught for several years, maintaining control of the high court. But conservative outside groups consistently outspent their Democratic-leaning counterparts, according to the Brennan Center for Justice, a nonpartisan legal institute. The Republican State Leadership Committee, or RSLC, a group focused on state elections, outspent all the other groups. JCN has been a top donor to the group.

By 2021, tax returns show, virtually all of JCN’s budget came from the Marble Freedom Trust, for which Leo is trustee and chairman. JCN and RSLC did not respond to requests for comment.

In 2022, a year generally unfavorable to Republicans, the RSLC claimed credit for flipping North Carolina’s top court to a 5-2 Republican majority. Almost as soon as it was seated, the freshly Republican-dominated court did something extraordinary. In March 2023, the court reheard two voting rights cases its predecessor had just decided. The first was over gerrymandered districts that heavily favored Republicans. The second was over a voter identification law the previous court had found discriminated against Black people.

Nine months earlier, Justice Phil Berger Jr., son of the state Senate president, had attended the party at Leo’s home, in Northeast Harbor, Maine, as conservatives basked in the triumph of their movement.

North Carolina Supreme Court Justice Phil Berger Jr. disclosed that he attended a conference hosted by George Mason University’s Antonin Scalia Law School in Maine where Leo held his party. (Berger 2022 disclosure form)

Now, the newly elected conservative majority delivered victories for Republicans in the two cases. The voter ID decision was authored by Berger.

The Bobblehead

In 2013, Mike Black, Leo’s former classmate at Cornell Law, was leading the civil division of the Montana attorney general’s office as a career employee. A new attorney general had just been elected, bringing with him a number of new staffers to the office. Black had a matter to discuss with one of them: a tall, rangy Harvard Law School graduate named Lawrence VanDyke. VanDyke had been hired as solicitor general, the top appellate litigator in the attorney general’s office, responsible for defending state laws.

Standing in VanDyke’s office, Black noticed several bobblehead dolls on a shelf. “There was like Scalia for sure. And I think probably Alito, there were like four or five. And then there was this one younger-looking guy, and I said, ‘Well, who the heck is this?’” Black recalled. “And he goes, ‘Well, that’s Leonard Leo.’”

Black was astonished.

What Black did not know was by that time that Leo had helped to cultivate an entire generation of conservative lawyers on the rise. The system was like a positive feedback loop: Young attorneys could accelerate their own careers by affiliating with the Federalist Society and then prove their worth by advancing bold, conservative doctrines in the courts. Leo himself would suggest candidates to state attorneys general. According to one former Republican attorney general: “He won’t say, ‘Hire this person,’ in a bossy way. He’ll say: ‘This is a good guy. You should check him out.’”

Lawrence VanDyke had a collection of bobbleheads depicting conservative legal stars. Pictured here is a similar display from the Texas solicitor general’s office. (Marjorie Kamys Cotera for The Texas Tribune)

In 2014, the Republican Attorneys General Association, a campaign group, became a standalone organization. The first 17 contributions were each for $350 apiece. Then came a donation of a quarter of a million dollars. It came from JCN. Rebranded as The Concord Fund, the group remains RAGA’s biggest and most reliable funder today. (In response to questions for this story, RAGA’s executive director said “Leonard Leo has done more to advance conservative causes than any single person in the history of the country.”)

Attorneys general are more likely than private plaintiffs to have the ability, or standing, to bring the types of high-impact cases prioritized by Leo and his network. After the federal government itself, state attorneys general collectively are the second-largest plaintiff in the Supreme Court.

“Leonard Leo has done more to advance conservative causes than any single person in the history of the country.”

—Executive director of the Republican Attorneys General Association

VanDyke had been a Federalist Society member since his time at Harvard Law. He was an editor of the conservative Harvard Journal of Law and Public Policy. He worked at a major firm in Washington under Gene Scalia, the Supreme Court justice’s son, before becoming assistant solicitor general in Texas.

Despite his skill and credentials, VanDyke quickly alienated colleagues in the Montana attorney general’s office. Black said VanDyke had little appetite for the bread-and-butter state court cases that came with the job. Instead, emails show, VanDyke was excited by hot-button issues, often happening out of state. For example, he recommended Montana join a challenge to New York’s restrictive gun laws, passed after the Sandy Hook school massacre, adding as an aside in an email, “plus semi-auto firearms are fun to hunt elk with, as the attached picture attests :)” VanDyke persuaded Montana to join an amicus in the Hobby Lobby case, which led to the Supreme Court recognizing for the first time a private company as having religious rights.

For many years, solicitor general was considered a slow-metabolism job. VanDyke, who declined to comment, represented a new generation who had a distinctly aggressive, national approach to the law. Just recently, state solicitors obtained an injunction blocking federal agencies from working with social media companies to fight disinformation, persuaded the U.S. Supreme Court to undo the Biden administration’s student debt relief plan and limited the federal Environmental Protection Agency’s ability to regulate greenhouse gasses. Dobbs, the ruling that ended women’s right to an abortion, was argued by Mississippi’s solicitor general.

For VanDyke, state solicitor general was a stepping stone on the judiciary path, especially with Leo’s hand at his back. In 2014, he quit the Montana attorney general’s office to run for state Supreme Court, in what turned out to be a bitter contest inflamed by record independent expenditures. The Republican State Leadership Committee, which received funding from JCN, spent more than $400,000 to support VanDyke. He lost. After that, Leo made at least one call on VanDyke’s behalf to an official who might be in a position to give him a job, a person with knowledge of the situation said. This was not an uncommon move.

Leo said he did not recall making calls on VanDyke’s behalf. He acknowledged nurturing the careers of a whole generation of young conservative attorneys, among them VanDyke; Andrew Ferguson, the Virginia solicitor general; Kathryn Mizelle, the federal judge who struck down the federal mask mandate for air travel; and Aileen Cannon, the federal judge overseeing the Trump Mar-a-Lago documents case.

After Montana, VanDyke landed in Nevada as solicitor general under Adam Laxalt, an ally of Leo’s. In the Trump administration, VanDyke worked briefly for the Justice Department before the president nominated him to be a judge on the 9th U.S. Circuit Court of Appeals. Less than a year later, Trump released a fourth list of potential Supreme Court nominees. More than a third of the names were alumni of state attorney general offices.

The final name on the list: Lawrence VanDyke.

“Entirely Nutty”

In August 2012, the attorney general of Texas, Greg Abbott, had a conference call scheduled with Leo. It was Leo’s third calendar meeting with Abbott that year, records show. (Abbott is now the governor.) This meeting included not only Abbott and Leo, but also Paul Singer, the hedge fund manager who had been on the Alaska fishing trip. Two attorneys representing a small Texas bank, which had sued the Obama administration over its rewrite of banking laws, were invited. The meeting, which hasn’t previously been reported, highlights another key lever in Leo’s machine: The ability to bring donors’ policy priorities to public servants who can do something about those priorities.

Greg Abbott’s August 2012 schedule displays a meeting with Leo and Singer, among others. (Via Accountable.US)

After the 2008 financial crisis, Congress passed the Dodd-Frank regulatory overhaul, aimed at preventing another meltdown. Singer became one of the law’s biggest critics. In op-eds and in speeches, he argued that the new banking rules were unworkable and that efforts to prevent banks from becoming too big to fail could in fact make the system more fragile. Singer was especially critical of a provision known as “orderly liquidation authority,” which allows regulators to quickly wind down troubled institutions, calling it “entirely nutty.”

Leo took up the cause. According to interviews and meeting details obtained by the liberal watchdog group Accountable.US, Leo spoke with attorneys general in at least three states about a legal challenge to Dodd-Frank. He scheduled conference calls with the Oklahoma and Texas attorneys general at the time, Scott Pruitt and Abbott, respectively, to talk about what they could do about Dodd-Frank.

Oklahoma and Texas joined the bank’s case as co-plaintiffs. Montana joined, too. A person who worked in the Montana attorney general’s office said Leo called its newly elected leader, Republican Tim Fox, about the case. Montana would not have joined the suit, this person said, if Leo had not called Fox. VanDyke, then Montana’s solicitor general, became an attorney of record on the case.

Singer, Fox, Abbott and VanDyke did not comment for this story. Leo told ProPublica he didn’t recall a meeting with Abbott and Singer, and didn’t remember placing a call to Fox. He said he supported a legal challenge to the Dodd-Frank law on the grounds that its creation of the Consumer Financial Protection Bureau is unconstitutional.

In total, 11 states signed on. When they joined, the suit was amended to specifically challenge orderly liquidation authority as unconstitutional — the provision that Singer had singled out for criticism. For two years, the suit advanced through the courts, landing in the U.S. Court of Appeals for the District of Columbia Circuit in 2015. After an adverse ruling there, the attorneys general dropped out.

There had been doubters. A high-ranking attorney in the Texas attorney general’s office thought the suit was likely to fail. One former Republican attorney general from a different state said he didn’t believe the suit was critical to his state’s interests.

Leo’s network made an example of one. After Greg Zoeller, Indiana’s Republican attorney general, did not sign on, The Washington Times ran an opinion piece by JCN’s policy counsel — himself a former assistant attorney general in Missouri — speculating that Indiana’s attorney general may have been motivated by “strong alliances with Wall Street banks.” After two terms, Zoeller chose not to run for reelection in 2016, saying before he left office, “I don’t know if I fit today’s political arena.”

“Icarus Moment”

On a chilly day in March 2017, about six weeks into Trump’s presidency, Leo arranged for a select group to have a private audience with Justice Clarence Thomas at the U.S. Supreme Court. The attendees were a group of high-net-worth donors who had been organized by Singer to marshal huge resources toward electing Republicans and pushing conservative causes. That afternoon, the donors spoke with Thomas. The previously unreported meeting was described by a person familiar with it and corroborated by planning documents.

The donors left the meeting on a high and walked a short distance to the soaring Jefferson building of the Library of Congress. Singer’s group, the American Opportunity Alliance, was holding a gala dinner for 75 people, where they would hear from “scholars, university leaders and academics bringing unique insights on the issue of free speech,” according to planning documents obtained by ProPublica. Leo told ProPublica that while not all of the alliance’s donors give money to his causes: “They are thought leaders who should know more about the Constitution and the rule of law. I was happy to arrange for them to hear about these topics from one of the best teachers on that I know, Clarence Thomas.” Singer declined to comment. The Supreme Court didn’t respond to a request for comment.

Leo attends an event where President Donald Trump selected Brett Kavanaugh as his Supreme Court nominee. (T.J. Kirkpatrick/The New York Times)

A year and a half later, when Brett Kavanaugh’s nomination to the U.S. Supreme Court was teetering, Leo turned to Alliance donors to raise emergency funds for advertisements that would counter the relentless stream of negative press. He told donors that he needed to raise $10 million as fast as possible, according to a person familiar with the call. Swiftly, JCN was on the airwaves defending Kavanaugh. Leo called Mike Davis, the top aide on nominations for Senate Republicans, and urged him to press ahead, emails show. (Leo declined to comment on this.)

“We’re going to have great judges, conservative, all picked by the Federalist Society.”

—Donald Trump, on his list of potential nominees to the U.S. Supreme Court

Leo had been in a state of high mobilization since Scalia’s death in February 2016 while Barack Obama was still president. “Staring at that vacancy,” Leo later said, “fear permeated every day.” In late March, with Trump’s nomination all but wrapped up, Leo, Trump and his campaign lawyer Don McGahn met at the offices of the law firm Jones Day. Trump emerged with a list of potential nominees to the U.S. Supreme Court and then advertised it: “We’re going to have great judges, conservative, all picked by the Federalist Society,” he said.

With Scalia’s vacancy and two more justices approaching the end of their careers, Leo embraced a more public position. “He makes a calculation to kind of come out from the shadows and put himself front and center, because he knows that that will give Republican voters confidence to vote for Donald Trump in the 2016 election,” Amanda Hollis-Brusky, a Pomona College professor and author of “Ideas With Consequences: The Federalist Society and the Conservative Counterrevolution,” said in an interview. “But that’s sort of an Icarus moment too, where they’re getting really close to the sun.”

Once Trump took office, he gave control over judicial picks to Leo, McGahn and other conservative lawyers with strong connections to the Federalist Society. With Leo’s help, Trump appointed 231 judges to the bench in his four years. Of the judges Trump appointed to the circuit courts and the Supreme Court, 86% were former or current Federalist Society members.

The Federalist Society’s alliance with Trump appalled some of its prominent members. Andrew Redleaf, a longtime donor and adviser to the group who has known its co-founders since college, viewed Leo’s work for Trump as “an existential threat to the organization,” he said in an interview. Redleaf and his wife, Lynne, offered to donate $100,000 to pay for a crisis communications firm that could distance the group from Leo and his work for Trump. Federalist Society President Gene Meyer was “genuinely sympathetic” to his position, Redleaf said, but declined the money and advice. Meyer did not respond to requests for comment.

Leo said in a statement: “The Federalist Society today is larger, more well-funded, and more relied upon by the media and thought leaders than ever before. So much for Mr. Redleaf’s ‘existential threat.’”

“The Progressive Ku Klux Klan”

In early 2020, Leo told the news site Axios he planned to leave his day-to-day role at the Federalist Society after nearly 30 years, though he would remain on the board. Soon, Leo received all the money he would ever need to fuel his next efforts. For more than a decade, he had cultivated a relationship with a businessman named Barre Seid, who ran and owned the Chicago electronics manufacturer Tripp Lite.

Seid, who is Jewish, had long donated to conservative and libertarian causes, from George Mason University to the climate-skeptic group the Heartland Institute. Seid decided to put Leo in charge of his fortune — $1.6 billion, what was then the largest known political donation in the country’s history. Through a series of complicated transactions, Seid transferred ownership of his company to a newly created entity called Marble Freedom Trust, of which Leo was the sole trustee. (Seid did not respond to requests seeking comment.)

In late 2021, Leo took over as chairman of a “private and confidential” group called the Teneo Network. In a promotional video for the group, Leo sits on a couch in a charcoal jacket, no tie. Over upbeat music, Leo says: “I spent close to 30 years, if not more, helping to build the conservative legal movement. At some point or another, I just said to myself, ‘Well, if this can work for law, why can’t it work for lots of other areas of American culture and American life where things are really messed up right now?’” Leo went on to say his goal was to “roll back” or “crush liberal dominance.” The group had long quietly gathered conservative capitalists and media figures with politicians like Missouri Sen. Josh Hawley. Under Leo’s watch its budget soared, and new members have joined from all the corners of Leo’s network: federal and state judges, state solicitors general, a state attorney general and the leaders of RAGA and RSLC.

Other of Leo’s ventures show a willingness to embrace increasingly extreme ideas that could have sweeping consequences for American democracy. The Honest Elections Project, a direct offshoot of a group in Leo’s network, focused on election law and voting issues, was a major proponent of a legal concept known as independent state legislature theory. That theory claimed that, under the Constitution, state legislatures had the sole authority to decide the rules and outcomes of federal elections, taking the role of courts out of the equation entirely. If the theory prevailed, experts said, it could have given partisan state legislators the power to not only draw gerrymandered maps but potentially subvert the result of the next presidential election.

Kavanaugh and Leo at the Antonin Scalia Memorial Dinner (T.J. Kirkpatrick/The New York Times/Redux)

The Honest Elections Project filed an amicus brief when a case about the theory reached the Supreme Court. (The Supreme Court ultimately ruled against an expansive reading of the theory but did not entirely rule it out in the future.) Leo defended the Honest Elections Project, saying that “in all of its programming” it “seeks to make it easy to vote and hard to cheat. That’s a laudable goal.”

Leo’s own rhetoric has grown more extreme. Late last year, he accepted an award from the Catholic Information Center previously given out to Scalia and Princeton scholar Robert George. Rather than strike a celebratory tone, he reminded his audience of Catholicism’s darkest days in history starting with the Siege of Vienna by the Ottomans in the 17th century. Today, he continued, Catholicism remained under threat from what he called “vile and immoral current-day barbarians, secularists and bigots” who he calls “the progressive Ku Klux Klan.” These opponents, he said, “are not just uninformed or unchurched. They are often deeply wounded people whom the devil can easily take advantage of.” And after Dobbs, these barbarians were “conducting a coordinated and large-scale campaign to drive us from the communities they want to dominate.”

“Google Leonard Leo”

It wasn’t long before the backlash to Dobbs, and to Leo’s role in that decision, arrived on his doorstep. In 2020, Leo and his family moved to Northeast Harbor, a wealthy enclave on the Maine coast. The Leo family had spent time each summer there for almost two decades. In 2019 they bought a $3 million mansion, Edge Cove, from an heir of W.R. Grace, founder of the chemicals corporation.

Leo told The Washington Post that Edge Cove — which underwent more than a million dollars’ worth of renovations — would serve as “a retreat for our large family and for extending hospitality to our community of personal and professional friends and co-workers.” The Leo family eventually started living there most of the year.

Leo’s house in Maine (Alex Bandoni/ProPublica) A flag outside of Leo’s house (Alex Bandoni/ProPublica)

But Northeast Harbor has not proven to be the quiet retreat that Leo hoped it would be. In 2019, Leo hosted a fundraiser at the Maine house for Republican Sen. Susan Collins. Collins had cast the deciding vote in favor of Kavanaugh’s nomination, and the news of the fundraiser sparked protests by local residents and liberal activists in the area. After the Dobbs decision, locals say, Leo’s presence became an ongoing flashpoint and a source of drama in a town unaccustomed to such things.

On the evening of the Dobbs decision, protesters held a vigil outside Leo’s house, which was followed by frequent protests. One resident planted a sign in her yard that urged passersby to “Google Leonard Leo.” Another wrote messages like “LEONARD LEO = CORRUPT COURT” in chalk in the street outside Leo’s house.

Bettina Richards runs a record company in Chicago and spends the summers in Northeast Harbor. She lives just down the road from Leo. She didn’t know much about Leo until the Dobbs decision, but afterward, she said protestors got permission from a neighbor of Leo’s to hang a pink fist flag across from his house. Leo displayed several different flags with Catholic iconography outside his house.

One day Richards got a call that Leo’s security guard had walked onto private property to tear the fist flag down. Richards biked over to repair it. Leo approached with his guard, and Richards told them not to touch it. “I will allow it,” Leo replied, according to Richards. (Leo said in his written statement: “The owner of that property came to us some weeks later stating that whoever put the flag up did not have permission and that the property owner would be taking it down.” Richards said another household member had OK’d the flag.)

As Leo enters his fifth decade of activism, he has become too big to ignore. Liberal opposition research groups with their own anonymous donors have launched campaigns to expose his influence and his funders; one group even projected an image of Leo’s face onto the building that houses the Federalist Society’s headquarters in Washington. In August, Politico reported that the District of Columbia’s attorney general was investigating Leo for possibly enriching himself through his network of tax-exempt nonprofit groups. A lawyer for Leo has denied any wrongdoing and said Leo will not cooperate with the probe. In response to ProPublica’s reporting about Leo’s role in connecting donors with Supreme Court justices, Senate Judiciary Committee Chairman Dick Durbin, D-Ill., and Sen. Sheldon Whitehouse, D-R.I., demanded information from Leo, Paul Singer and Rob Arkley about gifts and travel provided to justices. A lawyer for Leo responded that he would not cooperate, writing that “this targeted inquiry is motivated primarily, if not entirely, by a dislike for Mr. Leo’s expressive activities.”

A liberal watchdog group projected an image of Leo’s face onto the building that houses the Federalist Society’s office. (Paul Morigi/Getty Images)

Through it all, Leo has remained defiant. His vision goes beyond a judiciary stocked with Federalist Society conservatives. It is of a country guided by higher principles. “That’s not theocracy,” he recently told a conservative Christian website. “That’s just natural law. That’s just the natural order of things. It’s how we and the world are wired.”

by Marilyn W. Thompson

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

Democratic Rep. James Clyburn’s role in South Carolina’s 2022 redistricting has emerged as a central point of contention between Democrats and Republicans in a racial gerrymandering case to be argued before the Supreme Court on Wednesday.

The case revolves around whether Republicans, who control the Legislature, illegally disenfranchised Black voters when they created new election maps or whether the process was simply partisan politics. A key question is whether the role that the powerful Black Democrat played in the process was enough to inoculate the entire effort.

At the beginning of the process in November 2021, a top Clyburn aide secretly delivered a one-page map to the Republicans. That was the starting point for a formal redistricting plan that went through numerous revisions before the Legislature approved it in 2022. The NAACP sued state Republicans, arguing that the plan discriminated against Black voters. A three-judge federal panel sided with the NAACP early this year and ruled that one congressional district in the plan, the 1st District, is an illegal racial gerrymander and must be redrawn before the next election. ProPublica detailed Clyburn’s involvement and was first to publish his map in a May 5 investigation.

In their legal filings, Republican leaders contend they did not take race into account when they redrew the districts. They say they complied with acceptable redistricting principles. And they contend that Clyburn’s recommendations played a key role in starting the process. If the lower court’s ruling is allowed to stand, they argue, it “would invite federal courts to micromanage political disputes in countless such districts across the country.”

In a recent filing in response, the congressman’s lawyers argue that Republicans are trying to blame Clyburn, a state civil rights leader, for an “unconstitutional racial gerrymander intentionally designed to dilute minority voting power.” He supports the NAACP case and asked the high court to affirm the federal judicial panel.

Clyburn’s redistricting involvement was “routine and circumscribed.” The draft map his aide gave to Senate Republican staffers was only a rough idea for how to draw his district, not a formal redistricting plan for the entire state, his lawyers argue.

The decision will help define a murky point of redistricting law: when a partisan gerrymander crosses the line to become an illegal racial gerrymander. The Supreme Court in 2019 held that it would not interfere in partisan map-drawing. But federal courts have overturned redistricting plans in which racial considerations played a predominant role.

The case is being closely watched by other Southern states facing redistricting challenges. Parties in a federal racial gerrymandering case in Tennessee, for example, have decided they will await the court’s South Carolina decision before beginning their own pretrial document discovery.

In June, the court surprised observers by rejecting Alabama’s redistricting as discriminatory, a ruling that may affect maps in several other states and give Democrats a shot at winning as many as six seats in the South in the 2024 elections.

In South Carolina, race and politics are inextricably linked, and the state has a long history of racial discrimination and violations of the 1965 Voting Rights Act. The Republican Party is predominantly white and controls the Legislature, major state offices and six of the seven congressional districts.

Between the 2010 and 2020 censuses, South Carolina experienced an influx of people who were disproportionately white. The 1st District, a swing district, had too many people and the 6th District, which Clyburn has held since 1993, had too few.

The case revolves around the question of whether the 1st District was an illegal racial gerrymander. Republicans made it much safer for their party. As recently as 2018, a Democrat held the 1st District. It is now held by Nancy Mace, who ran as a moderate but recently has risen to prominence as one of eight Republicans who voted to depose Kevin McCarthy as U.S. House speaker. In 2022, she won by 14 percentage points.

Republicans made Mace’s district safer by taking Black neighborhoods out and putting some into the 6th District. The result was that Clyburn solidified his hold on the district as its population rapidly changed.

In doing so, they say they followed the outlines of Clyburn’s early map. It had suggested moving neighborhoods that are disproportionately Black into his district and out of the 1st District. It also recommended moving some heavily white neighborhoods into Mace’s district, strengthening the GOP’s hold. Republicans say that Clyburn suggested moving even more Black residents into his district than they eventually approved.

The 1st District ended up with a Black population of 17% in a state where the overall Black population is 26%.

In his brief to the court, Clyburn’s attorney, John Graubert, accused Republicans of trying to “blur the distinction” between the congressman’s rough recommendations and the final plan.

Graubert insisted that Clyburn’s involvement is legally irrelevant to a case that will decide whether the GOP-led Legislature “engaged in intentional racial discrimination.”

The Legislature’s case is being presented by William Wilkins, a former chief judge on the 4th U.S. Circuit Court of Appeals, and John M. Gore of Jones Day, who served in the Trump administration as acting assistant attorney general for the Department of Justice’s Civil Rights Division.

The court is expected to decide by early next year if it will uphold the three-judge panel’s ruling in the case, known as Alexander v. South Carolina State Conference of the NAACP.

Rick Hasen, a legal scholar at the University of California, Los Angeles, said deciding the line between partisan and racial gerrymandering is a “recurring issue” for the court as both political parties bring cases alleging violations of the Equal Protection Clause.

“When the state says it’s about politics, and the plaintiffs argue that it’s about race, how are you supposed to disentangle those two things?” he said.

by Kiah Collier and Dan Keemahill

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans. Sign up for The Brief Weekly to get up to speed on their essential coverage of Texas issues.

In June, Texas Commissioner of Education Mike Morath embarked on the largest school takeover in recent history, firing the governing board and the superintendent of the Houston Independent School District after one of its more than 270 schools failed to meet state educational standards for seven consecutive years.

Though the state gave Houston’s Wheatley High School a passing score the last time it assigned ratings, Morath charged ahead, saying he had an obligation under the law to either close the campus or replace the board. He chose the latter.

Drastic intervention was required at Houston ISD not just because of chronic low performance, he said, but because of the state’s continued appointment of a conservator, a person who acts as a manager for troubled districts, to ensure academic improvements.

When it comes to charter school networks that don’t meet academic standards, however, Morath has been more generous.

Since taking office more than seven years ago, Morath has repeatedly given charters permission to expand, allowing them to serve thousands more students, even when they haven’t met academic performance requirements. On at least 17 occasions, Morath has waived expansion requirements for charter networks that had too many failing campuses to qualify, according to a ProPublica and Texas Tribune analysis of state records. The state’s top education official also has approved five other waivers in cases where the charter had a combination of failing schools and campuses that were not rated because they either only served high-risk populations or had students too young to be tested.

Only three such performance waivers had been granted prior to Morath, who declined numerous requests for comment. They had all come from his immediate predecessor, according to the Texas Education Agency.

One campus that opened because of a waiver from Morath is Eastex-Jensen Neighborhood School, which is just 6 miles north of Wheatley High School. Opened in 2019, Eastex didn’t receive grades for its first two years because the state paused all school ratings due to the adverse impacts of the pandemic. In 2022, the last time the state scored schools, Eastex received a 48 out of 100, which is considered failing under the state’s accountability system. The state, however, spared campuses that received low grades from being penalized for poor performance that year.

“The hypocrisy here seems overwhelming,” said Kevin Welner, an education policy professor at the University of Colorado Boulder. “This is the same education commissioner who justified taking over the entire Houston school district based largely on one school’s old academic ratings.”

Authorized by the Texas Legislature in 1995, publicly funded charter schools received a reprieve from some state regulations that govern traditional public schools in exchange for innovations that would lead to high academic performance.

Along with that flexibility have come strict accountability measures. A state law requires charters to close if they fail three years in a row. In order for a charter network to grow, 90% of its campuses must have passing grades in the most recent academic year, according to state rules. A previous rule that was scrapped in 2017 had also stipulated that charter networks were ineligible for expansion if even one of their campuses received the state’s lowest possible rating.

The commissioner, however, can waive such rules, and Morath has repeatedly done so in the case of Texas College Preparatory Academies, the charter network to which Eastex belongs.

In response to questions about Morath’s approval of waivers for charters that did not meet the state’s academic performance standards, Texas Education Agency spokesperson Jake Kobersky sent a statement that said a vast majority of charter school expansions do not require one. For those that do, the statement said, the agency conducts a thorough review that includes assessing the “entire portfolio of campuses, along with the requestor’s plan to address any and all issues at campuses resulting in the need for a waiver.”

A waiver is just a first step in the expansion process, according to the statement. After receiving a waiver from Morath, a charter operator must ask him for explicit permission to expand. Of the 17 waivers Morath granted to charters with too many failing campuses, 12 led to expansion approvals.

Only the highest performing charter networks with proven track records should be allowed to grow, said Todd Ziebarth, senior vice president of state advocacy and support for the National Alliance of Public Charter Schools, a nonprofit association that advocates for charter growth throughout the country.

“It really is about, at the end of the day, ‘Are you delivering improved, increased student results for your community?’ And if the answer is no, then you’re not holding up your end of the charter bargain and you shouldn’t have the ability to then go and serve more students,” Ziebarth said. He said he had never heard of a state waiving its own expansion requirements.

The granting of waivers to charter networks that have too many failing schools raises red flags as lawmakers returned to Austin on Monday for a special session of the Legislature to consider helping Texas parents cover private school tuition with state dollars, said David DeMatthews, a professor and education policy researcher at the University of Texas at Austin.

The creation of a school voucher-like program has become a top priority for Gov. Greg Abbott, who appointed Morath. The governor discussed the importance of parental choice during a campaign event last year at a charter campus run by Texas College Preparatory Academies, which is managed by Responsive Education Solutions. The Texas-based charter management organization has made headlines for teaching creationism and for its involvement in a failed effort to create a statewide private school voucher program in partnership with a small public school district in Central Texas.

Neither Abbott nor Responsive Education, which said it handles media inquiries for Texas College Preparatory Academies, responded to written questions. Officials at Eastex also did not respond to a request for comment.

As lawmakers debate allowing taxpayer dollars to go to private schools, they should consider the state’s inability to provide sufficient academic and financial oversight over charter schools, DeMatthews said.

“I think if you look at charters as a potential predictor of how vouchers would be implemented in the state of Texas, it’s very concerning,” DeMatthews said. “Vouchers create even less transparency.”

“Incredibly Hypocritical”

While proposing the approval of a new round of charter schools in June 2021, Morath spoke in stark terms about what was at stake for those that underperformed. Because charters are given freedom from many state regulations, they must meet strict academic standards that force them to close even earlier than traditional schools or keep them from expanding, he said: “They perform or they seek a career in banking.”

Under state rules, charter organizations seeking to grow must face a four-part test that requires them to demonstrate adequate academic, financial and operational performance before they can serve more students, Morath said. “If you don’t pass this four-part test, then you don’t get an expansion,” he told the State Board of Education.

Morath’s choice to repeatedly waive those rules raises concerns for some members of the board, which has no control over whether charters are allowed to expand, even as the expansion of existing networks has become the primary driver of charter growth in the state. More than 7% of the state’s 5.5 million schoolchildren were enrolled in state-authorized charter schools during the last academic year.

Pat Hardy, a Republican who has served on the board for more than 20 years, said granting waivers to charter networks with even one failing school goes against the intent of the law that established them.

“It’s ridiculous,” Hardy said in an interview with ProPublica and the Tribune. “What in the world is the value of repeating a system that isn’t working?”

Brian Whitley, a spokesperson for the Texas Public Charter Schools Association, defended Morath. He argued that the commissioner should have the ability to waive the rules that govern how many campuses must pass in order for a charter to expand, because they are set by his agency and are more strict than the law requires.

But such rules are in place for a reason and the state should either follow them or change them, said Katrina Bulkley, an education professor at Montclair State University in New Jersey, who has studied charter schools since 1995.

Out of 11 schools that opened as a result of Morath’s waivers, three received an “unacceptable” rating within their first two years. All have since improved. In the latest year for which the state has released accountability data, two campuses, including Eastex, got scores that would normally rank them as low performing. But the state did not rate such schools that year because of the pandemic.

Texas College Preparatory Academies, to which Eastex belongs, has opened the most schools as a result of the waivers. The network received two waivers from Morath despite having too many failing campuses. It also was granted waivers when the combined number of underperforming and not rated schools placed it below the passing threshold.

Morath’s most recent waiver for the 42-campus charter network brought it a step closer to opening three new schools and expanding about 20 existing ones over the next two years.

Separately, charters affiliated with KIPP Public Schools have also received various waivers, including one that state education agency officials recommended against.

In a March 2017 memorandum, the head of TEA’s charter school division recommended that Morath deny a waiver request from KIPP Dallas-Fort Worth because only one of its three campuses had met academic standards. Less than two weeks after the recommendation, TEA notified KIPP D-FW that it had been approved for the waiver, making the charter eligible to increase its student enrollment.

In 2018, KIPP consolidated its four separate Texas charter networks. The following year, KIPP had a combination of failing and not rated campuses that again required it to seek a waiver in order to expand. Once again, Morath granted the waiver.

In a written statement, KIPP Texas spokesperson Cat Thorne said that the network “has always followed the TEA’s guidance when considering school expansions.” She said the network does not have access to records from before its merger and so was unaware that agency staff had previously recommended against granting a waiver.

“However, the expansions we requested and were granted always complied with TEA rules,” the statement said. “Our intent for growth is with the best interest of our students and the communities we serve in mind.”

Last year, Shay Green’s son attended pre-K at KIPP Legacy Preparatory in Houston, a campus whose latest grade of 69 out 100 is considered low-performing under state standards.

Green said she initially placed him in the school at the recommendation of her mother, who had researched campuses in the area and thought it would be a good fit. Then, Green said, she learned that her cousin’s children, who were in public school, were already writing their letters and names. She decided to withdraw her son after only a year, believing that the educational quality was inferior.

“My son could spell his name. (We taught him),” Green said in a text message to the news organizations. “But I was expecting him to know as much as the public school kids his same age did and by comparison they were just not being taught nearly as much.”

The school didn’t respond to a request for comment and KIPP Texas did not answer questions specific to the campus.

Green’s son now attends a magnet charter school that she says is providing a stronger education.

Little Oversight

The authority over whether to allow charters to expand used to belong to the 15-member elected State Board of Education. But the Legislature transferred that power to the state’s education commissioner in 2001. More recently, it repealed a provision in state law that appeared to conflict with that earlier change.

The board has in recent years unsuccessfully asked the Legislature to restore its authority over charter growth.

“I think a lot of my colleagues would be more open to approving charters initially, or not vetoing them, if they knew they were going to have additional input down the road on expansions. Because right now, once we approve them, we just go away in the process,” Keven Ellis, the Republican chair of the state education board, said in an interview. “If we had more authority later on, I think it would give us a little more comfort.”

Instead of increasing the board’s authority, the Legislature has over the years given more power to the education commissioner.

Republican state Sen. Paul Bettencourt of Houston, who filed unsuccessful legislation that would have removed the board’s veto power over new charters in the state, doesn’t believe the elected body should have authority over expansions because members aren’t paid and have large districts to represent and other responsibilities like approving textbooks.

A member of the Senate Education Committee, Bettencourt said he was vaguely aware that Morath was waiving academic performance requirements for expansions but would not say if he supports the practice. He said he would first want to know how the charters that received the waivers perform in the future.

“The real question is: If we don’t have improvement over time, why not?” he said.

For now, Bettencourt and his colleagues are focused on the next school choice frontier: giving taxpayer dollars to parents to pay for private school.

Despite support from Abbott, several bills to create such a program, including one co-authored by Bettencourt and eight other senators, died earlier this year during the regular session because of opposition in the Texas House. One of the points of contention has been how the state will ensure that the taxpayer-funded program is leading to better student outcomes.

During a tele-town hall with religious leaders last month, Abbott promised political consequences for lawmakers who oppose the creation of a voucher-like program, suggesting that their votes would be used against them during the next Republican primary election.

“There’s an easy way to get it done and a hard way to get it done,” Abbott said. “The easy way will be for these legislators to come into this next special session and vote in favor of school choice, but if they make it the hard way, we’re happy to take the hard way also.”

by Jeremy Kohler, ProPublica, and Ryan Krull, Riverfront Times

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The voicemail left on St. Louis police detective Roger Murphey’s cellphone carried a clear sense of urgency.

A prosecutor in the St. Louis circuit attorney’s office was pleading with Murphey to testify in a murder trial, the sort of thing the lead detective on a case would routinely do to see an arrest through to conviction. The prosecutor told Murphey that, without his testimony, the suspect could walk free.

“I wanted to reach out to you one more time,” Assistant Circuit Attorney Srikant Chigurupati said in a message one afternoon in June 2021. “I do think we need you on this case.”

Murphey didn’t respond.

Prosecutor Reaches Out

This is a portion of the first voicemail that prosecutor Srikant Chigurupati left for Roger Murphey asking the police detective to testify in a murder trial.

(Obtained by ProPublica)

That evening, Chigurupati left Murphey another voicemail. “If it makes any difference, this guy’s a really bad guy,” Chigurupati said, according to the message, which Murphey provided for this story. “What he did was pretty ridiculous. So, I mean, can you put your differences aside and focus on getting this guy?”

Again, Murphey didn’t respond.

Weeks later, a jury found Brian Vincent not guilty, and he went free. Murphey said he believes his refusal to testify helped scuttle the case — a claim corroborated by at least one juror from the trial.

A number of American cities have elected prosecutors who promised progressive law enforcement, focusing as much on police accountability as being tough on crime. In St. Louis, that prosecutor was Circuit Attorney Kim Gardner, who was elected in 2016 following the fatal police shooting of Michael Brown in the suburb of Ferguson. Gardner came into office pledging to reduce mass incarceration and promote rehabilitation over punishment.

But from San Francisco to Philadelphia, prosecutors like Gardner have faced pushback from the police and, in several cities, from their own courtroom assistants. Politicians and voters have tried to remove some of these prosecutors from office — and, in a number of cities, they have been successful.

Murphey’s resistance to Gardner — Chigurupati’s boss when Vincent’s case went to trial — was unusual and, perhaps, extreme. By his own account, he was willing to help murder suspects walk free to make a point, even if he arrested them and believed that they should be behind bars.

In 2019, Gardner added Murphey to a list of police officers who would not be allowed to apply for criminal charges because of questions about their credibility, and she said her office would evaluate whether those officers could testify in court. Although the identities of those officers were not made public, one of Murphey’s supervisors notified him that his name was on Gardner’s list.

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Weeks later, a prosecutor in Gardner’s office notified Murphey that the office not only would actually let him testify in the cases he had led that were heading to trial — it expected him to.

Murphey, who retired in September 2021, said he felt stuck in a Catch-22. If Gardner was going to impugn his character and question his credibility, he decided, he wouldn’t cooperate with her prosecutors. He believed that if he went to court, defense lawyers would use his inclusion on Gardner’s list to attack him on cross-examination, making the trials more about him than the defendants.

Since that time, he has refused to testify in at least nine murder cases in which he served as lead detective. He said he told prosecutors that, if they subpoenaed him to testify, “I’m going to sit on the stand and I’m not going to answer any questions.”

His refusal, according to prosecutors, contributed to their decisions to offer defendants in at least four of the murder cases plea deals with reduced charges and lighter sentences. Prosecutors were still able to get murder convictions in three cases.

In one case, prosecutors dropped the charges altogether, saying the office “did not have witness participation.” Though it wasn’t clear if Murphey’s refusal contributed to the decision, he said the prosecution would have been hamstrung without him because he had collected evidence and conducted interviews in the case.

Vincent’s case was the only acquittal at trial.

Former Circuit Attorney Kim Gardner (Christian Gooden/St. Louis Post-Dispatch/Tribune News Service via Getty Images)

Murphey never faced discipline from the police department for refusing to testify, a fact that criminal justice experts find astonishing. They said his refusal undermined not just the integrity of the cases but also the police department’s commitment to justice.

Gardner battled the police and their union over her platform throughout her nearly six and a half years in office. But she also struggled with a host of internal issues, from the departure of dissatisfied prosecutors to a growing backlog of cases that the office could not manage. Those issues contributed to stinging criticism of her leadership — initially from law enforcement but then from even her own prosecutors.

It wasn’t until this May that staff departures became so numerous and pressure on her to resign so fierce that she stepped down. In exchange for her resignation, Republican lawmakers agreed to drop a bill that would have allowed the state to take over the circuit attorney’s office. The Republican attorney general also dropped a lawsuit seeking to force her out.

Robert Tracy, the St. Louis police chief, did not respond to an interview request. Gardner did not respond to requests for comment, and she has retreated from public life. The office is now run by Gabriel Gore, a former federal prosecutor appointed by Gov. Mike Parson, a Republican, to serve until an election next year. Gore has issued updates about his supervision of the office, including hiring dozens of prosecutors and reducing a backlog of pending cases.

Murphey, who sees himself as a righteous renegade in St. Louis’ beleaguered law enforcement system, wishes other officers had taken similar stands against prosecutors like Gardner. But he said he understands why they haven’t. “They have wives, they have kids, they have tuition, medical bills,” he said. “But me — it’s just me and my wife, and my wife is like, ‘Go for it.’”

At least 10 other officers refused to cooperate with Gardner’s team, according to interviews and court records. But Murphey stood apart because of his crucial role in some of the city’s most significant, and most violent, cases.

While expressing some sympathy for the family of the victim whose fatal beating Vincent was tried for, Murphey stood by his decision not to cooperate.

“Brian Vincent should be sitting in a penitentiary right now for the rest of his life,” he said. “But he’s not.”

The report of a suspicious death came across Murphey’s desk just after sunset on a cold November evening in 2018. A man named Larry Keck had been found in his bed, partly covered by a sheet, his face and body severely battered.

Murphey pulled up to a four-family flat in Shaw, a neighborhood of red brick homes on the city’s south side. As he stepped into Keck’s apartment, a painting in the living room caught his eye. It depicted an Italianate-style mansion in Lafayette Square, and it stirred a memory from his childhood. The mansion had once been owned by Keck, whom Murphey had known when he was young. Keck had spent his working life restoring some of St. Louis’ grandest homes, fixing windows and other architectural elements. Murphey had once helped him move furniture.

Murphey and other officers quickly zeroed in on Vincent, 40, as a suspect. Police reports and interviews show that Vincent and Keck, who was 68, had been in a romantic relationship, and that Vincent had been staying at Keck’s apartment on and off after getting out of prison earlier that year. A friend of Keck’s told police she had seen them together at his house late the night before.

Vincent had at least 31 felony convictions at the time and had served five stints in prison over the previous two decades; the longest was six years. His most recent conviction was for a 2014 home burglary, where he stole hundreds of dollars’ worth of electronics and jewelry, according to police and court records.

Six months before Keck’s death, neighbors called the police one night as Vincent loudly banged on Keck’s door for 45 minutes. An officer provided Keck with a form to request a restraining order against Vincent, but there’s no record of Keck filing it. Keck’s friends told police they had noticed bruises on him in the past, leading them to suspect that Vincent was abusing him. Keck had also told the friends that Vincent was stealing from him.

Murphey brought Vincent to police headquarters for questioning and placed him in a small, windowless room. According to a video of the interrogation, which Murphey provided, Vincent told Murphey and another detective that he and Keck had been out with friends the night before Keck was found dead and that some of them had gone back to Keck’s apartment at about 10 p.m. to smoke crack cocaine. Vincent said that afterward he slept in the alley behind the house and woke around 2 a.m. He said he then walked downtown — a distance of 4 miles — to see his probation officer.

Murphey questioned Vincent’s account, pointing out that his clothes, which Vincent said he was still wearing from the night before, were remarkably clean for someone who had slept in an alley. He noted, too, that the overnight temperature was 19 degrees, making it difficult to believe that Vincent had slept outside. Vincent seemed indignant, telling Murphey that he should be looking at Keck’s drug dealers as possible suspects.

“Some of them are probably dangerous,” he said in the video of the interrogation.

In an interview room at St. Louis police headquarters, Detective Roger Murphey questions Brian Vincent, a suspect in the 2018 killing of Larry Keck. (Obtained by ProPublica)

Murphey told Vincent that he believed Vincent had killed Keck. When Vincent asked for a lawyer, according to the video, Murphey ended the interrogation, arresting Vincent on a first-degree murder charge.

Murphey later tracked down two maintenance workers who had been at the building. One of them picked Vincent out of a photo lineup, according to police reports, and said he saw Vincent go in and out of Keck’s apartment a short time before Keck’s body was discovered.

Murphey said in a sworn deposition, taken by Vincent’s lawyer as part of pretrial proceedings, that the lack of a plausible alibi was “what sealed it for me,” according to the deposition.

Vincent, in a brief interview, said he was innocent and described Keck as a close friend: “We worked together and had our differences but he was a good man.” He called Murphey a “crooked cop” who tried to frame him.

He said Murphey “didn’t have the balls to show up” at his trial.

Murphey started his working life in 1982 at age 17 as an Army cook, and three years later he enlisted in the Air Force as a security specialist. During Operation Desert Storm, he spent close to two years at bases in Europe, but he returned to the U.S. and Whiteman Air Force Base in western Missouri when his wife became ill.

During his time at Whiteman, he got a part-time job as a police officer in La Monte, a small town near the base. It was light work, he said, watching over a general store and a handful of shops.

Murphey returned to St. Louis and entered the police academy, graduating in May 1995. Two years later, he was named officer of the year in the city’s 9th police district. The head of a neighborhood association had written a letter to Murphey’s captain commending Murphey for helping to oust drug dealers from a problem property.

Paris Bouchard, who wrote that letter, said he remembered Murphey as being uncommonly accessible and helping to “bring amazing change to our block.”

“He was so good at what he was doing,” Bouchard said.

Murphey became a detective in 2007 — work that he said satisfied his curiosity. “I like finding out what happened. I’m nosy,” he said. Four years later, he won a coveted transfer to the homicide unit.

“I'm not saying that I was the greatest,” Murphey said. “But you know, to get there, you’ve got to be able to prove yourself. You did your time on the street.”

In audio recordings of his interviews with witnesses and suspects, which Murphey provided, he seemed to balance sternness with empathy, establishing an initial rapport before launching into his questioning. His questions started out broad, then zeroed in on details.

In one recording, he began to question a suspect’s wife by asking, “What kind of dogs you got? I’ve got pit bulls myself.” Then he moved to the matter at hand. “You weren’t with him today when he shot at this lady?”

Scott Ecker, who supervised Murphey in the homicide unit, called him a great detective. “You’re just not going to find a more passionate individual that actually cares about not only the victim but the victim’s family,” he said.

Yet Murphey was prone to office disputes. He accused colleagues of tampering with his phone and desk. When residents protested against police brutality, he criticized Black leaders who put a spotlight on racial bias within the department, sometimes accusing them of twisting facts to ascribe racial motives to situations where he believed race was not a factor.

His comments didn’t go unnoticed. Sgt. Heather Taylor, then a supervisor in the homicide unit and the leader of an organization for Black officers, challenged Murphey’s comments as racially insensitive. Murphey, in turn, said that he complained to the command staff about what he viewed as Taylor’s false claims of racism in the department.

In a recent interview with the St. Louis Post-Dispatch, Murphey named three Black, female leaders — Gardner, Taylor and St. Louis Mayor Tishaura Jones — as the reason many officers had left the department. He called the women “catalysts that broke the system.”

Taylor, who is now the city’s deputy public safety director, said that during their time in the homicide unit, she had dealt with complaints about Murphey being insubordinate and combative with colleagues. “If fighting racism is me breaking the police department,” she said, “I hope more people do exactly what I did.”

Gardner and the police force were at odds even before she was elected. Speaking to supporters days before her resignation, she recounted a meeting with officials from the St. Louis Police Officers Association before the election, where, she said, union officials told her, “We will let you be in this office if you make sure you never hold any police officer accountable.”

Representatives for the union did not respond to requests for comment.

During her first year in office, Gardner accused the police department of withholding evidence in about two dozen cases in which a police officer shot someone, and she asked the city to launch an independent team to lead all investigations into such incidents. A city bill to create the team did not advance to a vote.

The police union, meantime, routinely criticized Gardner, saying she refused to issue criminal charges in cases where officers had made arrests; they argued that she rejected far more cases than her predecessor, Jennifer Joyce. In response, Gardner said the cases often lacked sufficient evidence.

Gardner’s first high-profile prosecution was one she inherited from Joyce: a murder case against Jason Stockley, a white St. Louis police officer who was accused of shooting and killing a Black man during a chase and then planting a gun on him. Stockley was acquitted, which sparked street protests. Gardner said the acquittal showed the need for independent investigations of police shootings, which she said her office should lead.

In August 2018, Gardner created what became known as her “exclusion list,” which she said included 28 officers whose conduct had undermined their credibility. She said prosecutors would refuse to issue charges in any case involving an officer on the list that depended on their testimony.

Some officers, however, would still be allowed to testify on cases that had been launched before the list was created. Murphey wasn’t yet on the list.

Prosecutors are required to disclose to the defense any evidence that may favor the accused or undermine the credibility of a witness. A national police chiefs association recommends that police departments inform prosecutors when any issues arise that could affect officers’ credibility, such as making false reports or expressing racial bias. But St. Louis police have not had a procedure for this. Joyce said the extent to which the police department shared such information depended on who was the chief at the time. “Some were more forthcoming than others,” she said.

Nationally, the approach to these lists varies. While some prosecutors offices don’t maintain such lists, others do but choose to keep them private. Some offices, including that of State’s Attorney Kim Foxx in Chicago, have made them public. Joyce said her office did create internal records on officers to be excluded from prosecutions but mainly operated with a “mental list.”

Gardner’s replacement, Gore, said he had no exclusion list and had no plans to try to keep tabs on officers with credibility problems. He said that was up to the police department to do.

“I don’t have the attorney manpower to send people over and have them scouring through police personnel files, looking for things that might potentially be relevant to a witness’s credibility and necessary to be produced at a trial,” Gore said.

The first batch of names on Gardner’s list included officers who had refused to cooperate with her office in cases where they had shot someone. The police union said after Stockley’s trial that other officers who had used force to arrest suspects feared becoming targets of prosecutors. Gardner said their refusal to testify prevented her from bringing cases to trial. Tensions continued to rise after the police union said it wanted the state legislature to change the law so Gardner could be impeached or recalled.

In this 2019 Facebook post, the St. Louis Police Officers Association encourages a commenter to advocate for the removal of St. Louis Circuit Attorney Kim Gardner. (Via Facebook. Redactions by ProPublica.)

One afternoon in March 2019, St. Louis police officers entered Gardner's office with a search warrant and seized a computer server. The raid had been ordered by a special prosecutor investigating a perjury claim tied to an investigator in Gardner’s office. But an appeals court intervened and the police returned the equipment.

Gardner saw the raid as a direct affront to her authority. She sharply criticized the police, accusing them of deploying tactics “to intimidate, harass and embarrass this office.”

In June 2019, the Plain View Project, a national research project that identifies officers across the country making racist, violent or anti-Muslim social media posts, released a database that included posts from St. Louis officers. Using the information, Gardner added 22 more names to the exclusion list, telling the city’s public safety director and police chief in a letter that the posts were “shocking and beneath the dignity of someone who holds such a powerful position.”

Murphey was one of those officers whose social media posts were exposed and was added to the list. After the Stockley acquittal, he posted that the protestors were supporting “a violent thug,” and he referred to Gardner as “kimmy g.”

In this 2017 Facebook post, Murphey refers to a man fatally shot by a St. Louis police officer as a “thug” and to Gardner as “kimmy g.” (Via Facebook)

Over several interviews with reporters, Murphey said he was not a racist. He said he had a right to express his views, particularly about the Stockley case. He had been involved in the initial investigation of Stockley, he said, and said that Stockley “did not commit a crime.”

Miriam Krinsky, a former federal prosecutor and currently the executive director of Fair and Just Prosecution, a think tank focused on prosecution reform, said if an officer’s posts indicate troubling attitudes or biases, prosecutors are right to question “whether they still have integrity and still can be trusted to pursue their job in a fair and unbiased and professional way.”

Foxx, the state’s attorney in Cook County, said in an interview that “credibility matters.” A defense attorney, she added, would be able to use those posts “to demonstrate how this person described the victim of a crime, and his credibility before a jury or before a judge would be called into question.”

But R. Michael Cassidy, a law professor at Boston College and an expert in prosecutorial ethics, said that Gardner’s use of the list seemed fraught. He questioned why a prosecutor would expect any officer on an exclusion list to cooperate with them.

“You might take the position that ‘I’ve justifiably alienated the police officer and there’s a public interest in not having racist police officers,’” he said. “Now you have to deal with the consequences of that.”

Those consequences can be significant, including allowing some defendants to go free even though they may have committed serious crimes because a prosecutor can no longer call an officer to the witness stand. As a result, prosecutors who keep these lists need to be selective about who they include, said Alissa Marque Heydari, a former Manhattan assistant district attorney who is now a research professor at Vanderbilt University.

A more flexible approach, Heydari said, would be for prosecutors to keep another list of officers who have committed misconduct that would not be disqualifying — an officer who was arrested for drunken driving, for instance — but that must still be disclosed to the defense as part of a robust effort to fulfill legal requirements. It’s the difference between using a scalpel and a chainsaw.

“Once you put them on that list, there’s not much flexibility,” said Heydari. “You can’t then go back and say, ‘Well, I need this officer because it’s a homicide.’”

After Murphey was placed on the exclusion list, supervisors struggled to find a role for him since any case he became involved in would be compromised. At times, he did nothing more than stream movies at his desk.

Left Sitting Idle

Murphey describes how he spent his time at the police department after he was placed on a list that questioned his credibility and, as a result, was excluded from case work. This has been condensed for clarity.

(Sacha Pfeiffer/NPR)

At the same time, some former colleagues said, he openly criticized the police department's management and talked more and more about Gardner. Some detectives who shared his criticism of the circuit attorney came to understand that it could harm their cases if he played a role in them.

In August 2019, two months after Murphey was placed on the exclusion list, he was transferred to the patrol division. He would no longer wear a suit to work. The department issued him a standard blue uniform and assigned him to respond to radio calls. He was a beat cop again.

Then, in January 2020, Gardner filed a federal civil rights lawsuit accusing the city, the local police union and others of a coordinated and racist conspiracy to force her out of office. Murphey’s Facebook posts were among the evidence she cited.

Gardner’s clash with the police only seemed to bolster her reputation among city voters. After a resounding victory in the August 2020 Democratic primary, her reelection was all but assured.

Weeks later, a federal judge dismissed her lawsuit, deeming it “nothing more than a compilation of personal slights.”

Although Murphey was downgraded to patrol, his murder cases continued moving forward in court. Lining up and preparing the testimony of the lead detective is a basic step for prosecutors as they get ready for trial. The lead detective often weaves together the details of a crime and the investigation that followed, providing a narrative for the jury.

But if the lead detective is absent, the prosecution can be undermined. Key information about the crime scene and witness interviews, which the detective usually provides from the witness stand, may be lost. Jurors may suspect something is amiss.

The cases against Terrence Robinson and Naesean Thompson, two men charged with first-degree murder in the 2017 shooting of Raymond Neal, were the first of Murphey’s investigations to head to trial after Gardner put him on the exclusion list.

Murphey’s investigation had found that the incident started when Neal got into an argument with Thompson, who was allegedly selling drugs outside a convenience store. Neal grabbed Thompson’s jacket and the men began to fight. Thompson pulled out a gun. Robinson — who was there with Thompson — then pulled out his own gun and shot Neal, according to police.

Murphey obtained surveillance video from the store, which showed the shooting. He interviewed witnesses, helped identify Thompson and Robinson as suspects, and wrote the police reports that concluded that the two men were responsible for Neal’s death.

The prosecutor handling the case, H. Morley Swingle, recognized how important Murphey was going to be and sought clarification about Murphey’s status from a top Gardner official. The official assured Swingle that Murphey could testify, according to an email from Swingle to Murphey’s attorney, which Murphey provided.

Although Gardner had indefinitely banned certain officers, Murphey wasn’t one of them. He fell into “some lesser category,” Swingle wrote in the email. Still, Murphey refused to testify for Swingle.

In October 2019, Swingle made a deal with Robinson: He dropped the murder case, and Robinson pleaded guilty to involuntary manslaughter and armed criminal action. Robinson was sentenced to seven years in prison with eligibility for parole early in the third year of his incarceration, far less than he would have received if convicted of first-degree murder.

Robinson was released on parole last year. He could not be reached for comment and his attorney did not respond to a request for comment.

In February 2020, Thompson pleaded guilty to involuntary manslaughter and was sentenced to time served in the city jail. He did not respond to a request for comment through his lawyer, Neil Barron. Barron said that while proving the murder charge against his client to a jury would have been challenging, “Murphey refusing to testify absolutely makes this a harder case to prosecute.”

Marcia Miller, Neal’s mother, said that prosecutors told her that a plea bargain was their only option in the case “because of the evidence,” even though she reminded them that they had a videotape of Robinson killing her son. She said that the prosecutors never mentioned that Murphey had refused to testify.

Swingle said Murphey’s refusal to cooperate was not the only factor influencing his decision to accept a plea deal in the Robinson case. He said it would have been difficult to secure a murder conviction for a killing over a drug deal, even though it had been captured on video.

Murphey refused to testify even as prosecutors negotiated what he viewed as lenient deals with defendants he was convinced were guilty of particularly brutal crimes and deserved life sentences.

“Do What I Can Do”

Murphey describes his reasoning behind refusing to testify.

(Jacob Wiegand, special to ProPublica)

One of those defendants, he said, was Collin Aubuchon, who was charged with killing Richard Kladky in March 2019. The men had been staying in the same sober living facility, but after clashing over Aubuchon’s flirtatious text exchange with Kladky’s wife, Kladky moved to another facility.

On Kladky’s first day at his new home, Aubuchon used GPS to locate Kladky and shot him five times, killing him. He then surrendered to a security guard and claimed he had just shot someone who had threatened him.

During the interrogation, Aubuchon confessed, saying Kladky had been sending him threatening texts warning him to keep away from his wife, according to a video of the interrogation, which Murphey provided to the news organizations. While examining Aubuchon’s phone and tablet, Murphey found that Kladky had threatened to hurt Aubuchon if he didn’t stop flirting with his wife, the video showed. Aubuchon, in turn, taunted Kladky by saying he was going to have sex with her.

“I was just being an asshole,” Aubuchon told Murphey.

With the confession in hand, Murphey said that he viewed the case as a “slam dunk” that would have resulted in a life sentence — if he had cooperated. “I don’t know of anything that would mitigate what he did,” Murphey said.

In May 2021, Assistant Circuit Attorney Chris Desilets agreed to a plea deal with Aubuchon that called for a 13-year prison term for voluntary manslaughter; Aubuchon is scheduled for release in early 2026.

In a brief telephone interview from prison, Aubuchon said he didn’t know Murphey had refused to testify against him and acknowledged that he might have benefited from that refusal. He said he took a plea deal rather than risk life in prison.

Desilets said that pushing the Aubuchon case, as well as others, to trial without Murphey’s cooperation would have been like “playing chicken.” He said he did the best he could to get justice for the victims.

“Roger caused a lot of problems,” he said.

Eric Lee Boehmer, Aubuchon’s lawyer, said that while he wasn’t sure how important Murphey’s testimony would have been to the prosecution, his refusal to testify wasn’t the sole factor influencing the plea bargain. He said there was strong evidence his client acted in self defense.

Kladky’s relatives said they were never told about Murphey’s refusal to cooperate in the case.

Mary Kladky, his sister, said it was “heartbreaking” that a police officer would abandon a case. As for Aubuchon, she said, “Just as we’re beginning to heal, he’s going to walk free.”

Murphey’s refusal did not always sink a case. At times, prosecutors still went to trial without him. Three cases proceeded to trial without Murphey’s cooperation — each resulting in first-degree murder convictions. In one of the cases handled by Desilets, he said the prosecution would have been “smoother” with Murphey’s testimony.

In some cases, prosecutors could not even salvage a plea deal. Chigurupati, the prosecutor in the Larry Keck murder, went to trial against Brian Vincent without his lead detective.

It’s hard to pinpoint the impact of Murphey’s absence on the outcome of the case. Missouri law considers records from criminal proceedings confidential after an acquittal, so reporters were unable to get a copy of the trial transcript, which could have illuminated the prosecution’s shortcomings.

In an interview, one juror said gaps in the evidence hurt the case, but that the absence of the lead detective was particularly noticeable. He said he wondered, “Why the heck weren’t there a couple of key players there?” said the juror, who spoke on condition of anonymity to protect his privacy. “Why wasn’t the lead detective there?”

A second juror noted that, although Murphey’s absence wasn’t a pivotal factor, the prosecution seemed to her “scattered.” Vincent’s lawyer adeptly cast doubt on his guilt, leaving her believing in his innocence.

Murphey said his absence likely prevented Chigurupati from presenting a coherent narrative of the crime and investigation. “I’m pretty much sure that me not being there didn’t help the case at all. If I’m sitting on a jury and the main detective’s not there, I’d be wondering why,” he said.

During his holdout, Murphey agreed to testify in one case: the trial of Eric Lawson, who was accused of murdering his 10-month-old son, his ex-girlfriend and her mother in 2012. Murphey agreed to cooperate because Gardner's office recused itself due to a conflict of interest, leaving the prosecution with then-Attorney General Eric Schmitt, a vocal critic of Gardner.

Murphey also said he felt a special duty to one of the victims, the sister of a police officer. “The bias,” he explained, “is it’s a policeman’s family. And, you know, we’re all supportive for each other.”

In pretrial motions, defense attorneys argued that Murphey’s credibility was a central issue in the case, and said that, during the trial, they should be allowed to ask him about his Facebook posts and his removal from the homicide unit. Since Lawson was Black, they contended that Murphey’s use of the word “thug” and his disrespectful nickname for Gardner “could be perceived by jurors as evidence of racial animus.”

The judge in the trial refused to allow the defense to cross-examine Murphey about his social media activity, saying it “may be unprofessional, but it’s not racist.” Murphey ultimately testified at trial and, in May 2021, a jury convicted Lawson and sentenced him to life in prison without parole.

Murphey never faced disciplinary action for his refusal to cooperate with prosecutors. In fact, the police department continued to send him to investigate cases after he was placed on the exclusion list. He continued to draw the same salary.

Murphey said that, in mid-2020, during staffing shortages in the worst months of the pandemic, his supervisors asked him to work again as a detective, though not in the homicide unit. Murphey said he warned supervisors that putting him back on investigations was ill-advised. “I said, ‘I’m not going to be good to you, because I’m just going to be sitting there,’” he recalled. He even cautioned supervisors about pairing him with a partner as a way to work around his restrictions.

Peter Joy, a law professor at Washington University in St. Louis who specializes in legal ethics, said Murphey’s stance was “absurd” and a “dereliction of duty.”

“If you’re hired to do something, you do it,” he said. “You don’t have to love your boss. If you hate your boss, you should leave. But don’t sabotage the work you’re doing.”

But he said the police department was wrong as well to let Murphey continue investigating cases while he was on Gardner’s exclusion list because the department knew his involvement could compromise those cases.

Joyce, Gardner’s predecessor, said it was hard to believe the department allowed Murphey to refuse to testify for so long. “The mindset that ‘I’m not going to testify in murder cases as a protest’ is, I believe, unprofessional,” she said.

Cassidy, the Boston College law professor, said “the police chief needs to order that person to testify, and on threat of discipline.” He said the prosecutor “needs to either convince the police chief to order him to testify or needs to go to court to get a subpoena, and when he refuses to come in, ask the court to issue an arrest warrant for his appearance.”

None of that was done. Desilets said forcing Murphey to court would have done no good. Murphey would have still refused to testify and become a hostile witness. And hostile witnesses, he said, are “mostly ineffective with jurors.”

Just before her resignation, Gardner had scored a major victory, one that epitomized what many say is the ideal role of progressive prosecutors. On Feb. 14 of this year, a local judge exonerated Lamar Johnson, who had spent almost three decades in prison for a crime he did not commit. Gardner had spearheaded the effort to free Johnson after her conviction integrity unit uncovered prosecutorial misconduct and shoddy police work in his case. The state attorney general’s office under Eric Schmitt, before his election to the U.S. Senate in November 2022, had opposed the effort.

But a series of events quickly sapped her political support. Four days after Johnson’s release, a 17-year-old visiting downtown St. Louis for a volleyball tournament was struck by a reckless driver and had to have both legs amputated. The driver had been free on bond even though he had violated the conditions of his release dozens of times.

The responsibility for the lapse was unclear, falling somewhere between Gardner’s office and the judge, but public outrage rained hard on Gardner. Republican lawmakers began to push for legislation that would allow the governor to appoint a special prosecutor to handle violent crime in St. Louis, effectively undermining Gardner’s authority.

Mayor Tishaura Jones, a former Gardner ally, added her voice to the criticism. She said Gardner had lost the “trust of the people.” Attorney General Andrew Bailey, who succeeded Schmitt, sued to remove Gardner from office.

Then Gardner’s office, which had been losing key lawyers, failed to appear on the first day of a high-profile murder trial of a man accused of killing someone on the grounds of the Gateway Arch. Gardner’s office blamed the snafu on a staff attorney not properly requesting time off; a text message from that lawyer, which became public, showed him writing of Gardner: “I half expect her to be in jail before my vacation ends.”

The following week, Gardner’s office failed to show up at a hearing in the case of a man accused of shooting an 11-year-old. The prosecutor’s office had already missed the first day of the scheduled trial, and this second no-show prompted the judge to appoint a special prosecutor to consider contempt charges against Gardner and the prosecutor assigned to the case.

The judge, during a court hearing, called Gardner’s office “a rudderless ship of chaos.”

Gardner dug in. But the following weeks saw her office embroiled in additional controversies, including the resignation of a prosecutor who criticized her leadership. As her office continued to lose staff, it was revealed that Gardner was enrolled in an advanced nursing program, a possible violation of a state law requiring the circuit attorney to give their “entire time and energy” to their official duties.

A few days before her resignation, Gardner spoke from the pulpit of a church to a few dozen supporters and said she “never had a fair shake.” All along, she said, she was surrounded by people “who have colluded and conspired inside this office and out to make sure we’re not successful.”

One unresolved murder case that involves Murphey — though he did not act as lead detective — is the 2015 death of Kristopher Schmeiderer, who died from a knife attack that had occurred in 2014.

Before Schmeiderer’s death, Andrew Lynn Barnett had been convicted of first-degree assault and armed criminal action for attacking Schmeiderer. But the Missouri Supreme Court overturned the conviction in 2019, ruling that the judge in the case had erred by not giving the jury an instruction that self-defense could have justified the attack, even though Barnett had claimed in his defense that he didn’t attack Schmeiderer at all.

In 2021, the circuit attorney’s office charged Barnett with second-degree murder. A trial is expected this fall.

Though Murphey didn’t testify at the assault trial, he did contribute to the evidence collection. He helped find clothes that Barnett allegedly discarded in a sewer after the attack and seized them as evidence.

Now, his testimony has become more valuable. One of the detectives who testified at Barnett’s first trial has since died, and the circuit attorney’s office is trying to line up its witnesses — including Murphey.

Kathy Schmeiderer, the victim’s mother, said she hopes Murphey will testify.

“We want justice for our son, to close the wound,” she said.

But Murphey said he won’t take the stand.

Sacha Pfeiffer of NPR contributed reporting.

by Jennifer Berry Hawes

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

The woman turned her car onto the campus of Harvard University, a place she had never been, and parked near a museum renowned for its invaluable cultural artifacts. But on that day in 2010, Tamara Lanier did not come to see ancient Mayan murals or African masks. She arrived to view historic photographs of enslaved people she had recently come to believe were her own ancestors.

Though excited, she steeled herself. She had seen the images online. She had felt gripped by the steely gaze of a man named Renty. And she had grieved for his daughter, a young woman named Delia, seated with the top of her dress unbuttoned, pulled down and bunched in her lap. Tears blurred her eyes.

Photography was a fairly new technology back in 1850 when a group of white men 1,000 miles away from Cambridge, Massachusetts, conspired with a famous Harvard professor to use it. Louis Agassiz, a pioneer of natural science, had traveled to South Carolina hoping to prove that different races did not share a common origin, a theory called polygenesis.

To aid his effort, the men had selected seven Black people, most from nearby plantations, and hauled them to a posh photo studio in downtown Columbia. Someone forced the seven to partly or fully undress before a camera. A photographer then captured them from the front, side and back like the specimens Agassiz considered them to be.

Now, 173 years later, Harvard’s Peabody Museum of Archaeology and Ethnology holds within its vast collection the resulting 15 images, a kind of early photograph called daguerreotypes. They are among the oldest known photographs of enslaved people in America.

When Lanier entered the Peabody that day, after driving for two hours from her home in Connecticut, she clutched a document she’d prepared for Harvard in hopes its experts might review it with her. It detailed the genealogy research she thought could demonstrate her ancestral ties to Renty and Delia. A white woman who would oversee her visit greeted her, in what Lanier recalled as a professional but distant tone. Lanier signed a standard legal form that stated if she was allowed to examine anything in the museum’s archives, she would need permission to publish any part of it.

Then she relinquished her purse and cellphone and anything in her pockets. She had come expecting to feel welcome as a potential descendant. A longtime probation officer, she instead felt like she was entering a prison.

The experience left her shaken. Over the next nine years leading up to her 2019 lawsuit against Harvard to gain control of the photographs, Lanier grew increasingly offended by its dominion over them. As she attempted to get Harvard to engage with her, she grappled with nausea and insomnia. She found it outrageous that the institution whose celebrated employee prompted the taking of the pictures controls the stories of the people he subjected to such degradation.

Tamara Lanier at her home in Connecticut (Arielle Gray for ProPublica)

“Harvard has ruled over them with an iron fist,” Lanier said. “But this ugly history will always be in the way of anything they try to do with these images.”

Yet she has little recourse.

Last year, the Massachusetts Supreme Judicial Court agreed with a lower court that had dismissed Lanier’s claim to ownership of the photos. The justices ruled in part that no legal avenue allows descendants to obtain possession of artifacts that resulted from their ancestors’ enslavement. (The court did allow her to pursue an emotional distress action in which she accuses Harvard of “publicly and cavalierly dismissing her claim of an ancestral connection to Renty and Delia.” Harvard denies this claim — and that she has proven she is a lineal descendant. That case is pending.)

As Justice Elspeth Cypher noted during oral arguments, “There are systems in place for repatriating remains for Native Americans and their objects. We unfortunately don’t have something in place through Congress to do that for African Americans and descendants.”

Cypher was referring to the 1990 Native American Graves Protection and Repatriation Act, or NAGPRA. ProPublica has been investigating the failure of federally funded museums, including the Peabody, to repatriate their holdings of Native American remains and artifacts under the law.

Among other things, NAGPRA allows lineal descendants of Native people who owned certain objects to pursue their return. But enslaved ancestors couldn’t own property — they were the property.

And because they were treated as property, exhuming enough records to clearly connect generations of enslaved ancestors also borders on the impossible, as Lanier has discovered during her 13-year odyssey.

But more is at stake than who gets to claim “ownership,” a fraught concept in a battle over coerced pictures taken of captive people. Lanier’s ultimate goal is not to possess the images for herself but to reclaim a story. She sees revealing the brutality of the imagery, and the humanity of the subjects, as being as important to the broader understanding of the nation’s legacy of slavery as the images themselves.

“She is involved in a conversation that goes to many broader issues of African American empowerment — and disempowerment — in the telling of their own story,” said Michael Blakey, a bioarchaeologist and professor at the College of William & Mary and co-chair of The Commission for the Ethical Treatment of Human Remains of the American Anthropological Association.

Lanier’s quest is about finding a rightful steward to make decisions over the handling of the photographs and how they are presented. She has a new potential home in mind, one that she feels would finally set the people captured in them free.

“Write This Down”

Before she’d ever heard of the daguerreotypes, Lanier had learned from her mother about the Rentys of her family. Mattye Thompson Lanier was born in the 1920s to sharecropper parents in rural Mount Meigs, Alabama, where she heard stories handed down by her grandfather, a cotton farmer born into slavery in South Carolina.

His name was Renty Thompson, and he hailed from a line of enslaved men named Renty.

They began with an African-born man called Papa Renty, who held a place of special reverence to the family in part because he had taught himself to read English, and then taught others, at great personal risk. Teaching enslaved people to write was illegal.

Mattye absorbed her grandfather’s oral history with determination that the legacy of Papa Renty and the generations that followed him not be forgotten. Throughout the Montgomery bus boycott, her brother Renty, who went by “Willie,” walked to his plumber job every day. For long after, he kept the worn and broken shoes with pride, calling them his “civil rights shoes.”

Mattye Thompson Lanier in 2009 (Courtesy of Tamara Lanier)

Mattye treasured those stories. As she lay dying in 2010, she grew insistent with her daughter: “I want you to write this down.”

Lanier agreed. With the younger of her two daughters in college, and retirement from her job as a chief probation officer on the horizon, she figured that she’d soon have more time to preserve this oral history. In reality, she had no idea of all that her promise would entail.

Shortly after her mother’s death, Lanier stopped by a sandwich shop she frequented and mentioned to its owner the promise she had made and the man called Papa Renty.

When Lanier returned another day, the shop owner beamed: “I found your Papa Renty on the internet!” He emailed her a link, which she opened at home that night. Staring back in the daguerreotypes was Renty, who appeared to be about 70 at the time. She felt her eyes lock on his.

“I knew in my heart that this was the man I’d heard about for so many years,” said Lanier, who’s now 60.

The shop owner had sent her two links. The second one pulled up a story that mentioned Louis Agassiz. Among the most acclaimed scientists of his time, Agassiz founded Harvard’s Museum of Comparative Zoology and was the first scientist to hypothesize a global ice age. But Lanier also read that after encountering Black hotel workers one day, the Swiss-born professor had written to his mother that he “experienced pity at the sight of this degraded and degenerate race” and found it “impossible for me to reprocess the feeling that they are not of the same blood as us.”

In early 1850, Agassiz traveled south to address a scientific conference in Charleston, where he voiced support for polygenesis. Then he headed inland past vast cotton plantations toward South Carolina’s capital city of Columbia. His cohorts there included Robert Gibbes, a paleontologist and physician to the wealthy plantation operators who facilitated Agassiz’s field research.

An engraved portrait of Louis Agassiz circa 1850 (Getty Images)

The seven enslaved people soon faced a camera. All five men were African-born. Along with Renty and Delia were Jack and his daughter, Drana. The other men were Alfred, Fassena and Jem.

It is unclear whether Agassiz directed the photography in person. But a few months later, he wrote in the Christian Examiner that he had recently "examined closely many native Africans belonging to different tribes.”

As she read, Lanier grew convinced these were pictures of her own family members.

Her family called Papa Renty the Black African because he was African-born. And although Lanier’s mother grew up in Alabama, Renty Thompson, Lanier’s great-grandfather, was born in South Carolina. Mattye Thompson Lanier called one branch of their family the “Carolina Geechees.”

How many men named Renty, African-born, were held in bondage at the time in South Carolina? Likely not many. Renty wasn’t an especially common name in slave inventories. And a dwindling number of African-born captives remained alive at the time given four decades had passed since Congress banned the importation of enslaved people.

This has to be the same man, Lanier thought.

She set out to prove it.

In Search of Renty

In 1855, Frederick Douglass lamented how little he knew of his parents or the time of his birth: “Genealogical trees do not flourish among slaves,” he wrote. No enslaved person he’d ever met could relay a birthdate. Life and law routinely tore fathers from children. Mothers marked births by seasons and harvests too soon forgotten.

“They keep no family records, with marriages, births, and deaths,” Douglass wrote.

African Americans researching ancestors today often hit an archival black hole before the end of the Civil War in 1865. The 1870 federal census is the first one that even records all formerly enslaved people with their names.

Despite having no experience searching archives, Lanier began to scour census, death and probate records. For 13 years now, she has worked to craft a narrative about her lineage. It fills three-ring binders, Google and Word documents, timelines and spreadsheets.

“When I talk about a jigsaw puzzle from hell,” she said, “that’s what it has been like.”

Lanier was luckier than most. Her mother had passed on a fairly detailed oral history. And despite the disturbing nature of the daguerreotypes, they yielded important clues. Gibbes had jotted onto scraps of paper a few words about each person photographed.

Inside one velvet-lined leather case about the size of a cell phone, a frame holds a photograph of Renty in profile. The note affixed to the lining facing it reads: “Renty. Congo.” Below that, Gibbes added, “B.F. Taylor Esq. Columbia S.C.”

In fact, it appeared that four of the seven people photographed — Renty, Delia, Jack and Drana — were associated with B.F. Taylor. Knowing who enslaved them would be hugely helpful because morsels of detail about human property linger among the preserved letters, receipts and estate records kept by white elites.

Lanier easily identified B.F. Taylor. He was Benjamin Franklin Taylor, part of a family of Columbia-area plantation owners who bore titles like colonel and governor. Indeed, the names Renty and Delia showed up on several of the Taylors’ slave inventories, which were filed with their probate records. Although these handwritten lists yielded only captive people’s first names and dollar values, they provided Lanier glimpses into their locations and the names of family and friends around them.

One such inventory, filed after the 1833 death of Benjamin Taylor’s father, Col. Thomas Taylor, became a backbone of Lanier’s research because it listed two men named Renty and grouped people by family units. One Renty headed a group of seven who included Delia. The other man, called Big Renty, was listed above two people.

Nothing in the inventory obviously links the two family units. They don’t appear near each other on the page, but another Taylor document named a person from each group as siblings, bolstering Lanier’s view that they were in fact one family.

She posits that Big Renty is her Papa Renty, evidenced by the Black family tradition of referring to a father whose son shares his name as Big Jim or Big George. She contends the two Rentys in the inventory are father and son — her Papa Renty and his son Renty Taylor, the name of Renty Thompson’s father. (Lanier still doesn’t know how Renty Thompson got his last name. He might have been sold to a Thompson or, as a freed man, chosen the surname.)

Someone else on the Taylor inventory, listed with a separate family unit, also caught her eye: a person named Tena.

Renty Thompson’s mother was named Tena Taylor.

Was it mere coincidence?

Lanier found little to connect Renty Taylor, her great-great-grandfather, to Alabama. But Tena Taylor, her great-great-grandmother, clearly was born in South Carolina and moved, at some point, to Mount Meigs, Alabama, a rural area where she lived and died — as did Renty Thompson.

What also became clear: Benjamin Taylor and his immediate family enslaved several women with variations of the name Tena. And when a slew of Taylor’s brothers and nephews left Columbia to extend their plantation riches, where did they move? Mount Meigs, Alabama. One of them bought Chantilly Plantation in the Pike Road area, near where Lanier’s family later lived.

The Taylors surely brought with them the people they kept in bondage. And that could explain why, as Lanier’s mother had said, Tena Taylor traveled back and forth between South Carolina and Alabama to visit loved ones after she was freed.

But making a definitive case about the connections between all of these people is difficult without more documentation. Adequate records might not even exist. Gregg Hecimovich, an author and English professor, has spent more than a decade researching the seven people in the daguerreotypes and contributed a chapter to a 2020 book of scholars’ essays about them. He described “stalking the vapory trail” left by all seven.

“The people behind the images embody, to my mind, mini-histories of the American experience, only this time a history that white Americans willfully tried to erase, and still try to bury,” said Hecimovich, who teaches at Furman University, northwest of Columbia, and is finishing work on a book about the seven during a year-long fellowship at Harvard.

The research continues, although for Lanier it is not only an academic pursuit.

“So many people like me are out there trying to piece their families back together,” she said. “There is always this yearning. You’re driven to keep digging and keep searching.”

After 1865, a paper trail begins to illuminate the lives of newly freed people.

The 1870 census shows an 86-year-old man named Renty living in Columbia with people whose names also appeared on Benjamin Taylor’s slave inventory. This Renty was African-born, a distinct rarity by then. It likely means that the man whose visage has come to define the daguerreotypes lived to experience freedom again.

Who Tells the Story?

Lanier’s odyssey is a case study for scholars and lawmakers who have called on Congress to adopt protections akin to NAGPRA that would provide African Americans a path to seek repatriation — an AAGPRA, if you will.

“Where is the same consideration for the descendents of American chattel slavery?” Lanier asked. If she’d had a framework to pursue control of the daguerreotypes, perhaps she and Harvard might have avoided ongoing litigation and years of public conflict.

“Giving museums and communities no legal tools, no set of processes to navigate these problems leaves everyone shortchanged,” said Chip Colwell, an anthropologist who wrote the book “Plundered Skulls and Stolen Spirits: Inside the Fight to Reclaim Native America’s Culture.” In 2021, he co-authored a call for an AAGPRA in Nature magazine.

But because enslaved people faced a particular degree and type of harm, an AAGRPA would need substantial differences from its namesake.

For instance, tribal governments often make repatriation claims under NAGPRA by citing their ties to the lands that ancestral remains and items were taken from. That wouldn’t work for African Americans whose enslaved ancestors were typically stripped of such basic rights as owning land.

“The abject denial of humanhood and all of the rights that come with that during this period does make it incredibly different,” said Tonya Matthews, president and CEO of the International African American Museum in Charleston, which has a genealogy center. “The challenge is you’re dealing with the history of a people who were deliberately mishmashed together but also constantly separated.”

Despite the difficulty that has created for descendants researching their family histories, Harvard has countered Lanier’s efforts largely by asserting that she hasn’t proven a direct link to Renty or Delia. Harvard spokesperson Nicole Rura told ProPublica that experts within the university, and one outside, have examined Lanier’s claims of lineage “and we have not been able to find a connection between Ms. Lanier and the individuals in the daguerreotypes.”

Museums, she added, cannot just accept at face value a person’s claim of lineage to items in a collection — especially when, as in Lanier’s case, the person has sued to gain control of the items as a direct descendant.

“Harvard of course recognizes that there are practical limitations that encumber exhaustive genealogical research related to African American lived experiences,” Rura said in an email. “But at the same time, educational institutions and museums obviously cannot automatically accept claims of ancestry.”

Lanier wondered how the university examined her evidence of lineage, which she insisted is strong, given nobody from Harvard had sat down with her to review her ongoing research. (Rura said Harvard invited Lanier to share her additional findings multiple times.)

To Lanier, Harvard officials’ treatment of her is indicative of the problem she is pointing out: Rather than actively engage with her as even a potential descendant, she contends, they have preferred their own narrative told by people of their choosing.

“Beyond the academic arrogance, it is just a denial of Renty and Delia’s basic humanity — their history, their legacy,” she said. “It is a perfect example of cultural appropriation.”

Even if Lanier cannot definitively prove she is their direct descendant, she would have a stronger case if the threshold was only that she had to prove she is related to the community of people who were enslaved by the Taylors.

Instead of emphasizing direct descendants seeking repatriation, an AAGPRA would need to rely more on such “descendant communities,” Blakey said. He pointed to a national rubric on best practices that defines these communities as the families of people enslaved at a certain site or a surrounding region, or people who feel connected regardless of a proven genealogical tie.

“That community piece — who it is, what sort of authority the lineal descendants have compared to people who claim to be historical, social, spiritual descendants — that’s something we are going to have to work out” as a society, said Rachel Watkins, a biocultural anthropologist and department chair at American University.

Many museums don’t even know what human remains and objects they possess related to African Americans because they kept such poor records regarding people they viewed as research objects. No central repository tracks them either. An AAGPRA could require that museums review their collections and then publicly report what they have, allowing for more accountability.

NAGPRA requires federal agencies and museums to do just that for human remains and items that were taken from Native American graves. As institutions have completed these inventories, sometimes while also embarking on racial reckonings, they have reported finding remains and items connected to African Americans as well.

In 2021, Harvard’s then-president, Lawrence S. Bacow, issued a stunning announcement: Harvard had cataloged the remains of more than 22,000 human beings in its collections. They included the remains of 15 people of African descent who might have been enslaved. (This number has since grown to 19.)

“These individuals represent a chapter in our history that we must confront,” Bacow wrote. He apologized for “Harvard’s role in collection practices that placed the academic enterprise above respect for the dead and human decency.”

(Photo illustration by Lisa Larson-Walker/ProPublica. Photo via Wikimedia Commons.) With Hope of a Homecoming

In March, Lanier stood gazing at the waters where a wharf once reached into Charleston Harbor to greet a glut of slave ships. Beneath her feet lay an artist’s carvings of the outlines of bodies resembling captives stuffed into those vessels’ hulls. It is possible that some or all of the five African-born men subjected to the photography arrived into enslavement here.

Lanier turned away to head inside a new 150,000-square-foot homage to the Black experience. The International African American Museum opened in June, but Lanier was getting a sneak peek with faculty from the College of Charleston’s Center for the Study of Slavery. In a few hours, she would give a talk at the college about her journey.

She never imagined the promise she made to her mother would lead to people across the country seeking out her story — and those of Renty and Delia. A movement dubbed Free Renty had sprung up around her quest. Students at Harvard had backed her. So had 43 of Louis Agassiz’s descendants, who signed a letter supporting her efforts. In 2019, two had even marched with her to the president’s office to hand-deliver a copy.

Lanier, center, speaks during a press conference announcing a lawsuit against Harvard University outside the Harvard Club of New York City in March 2019. (Kevin Hagen/Getty Images)

Now she walked up the wide front steps to this grand new museum in the state where Renty and Delia had lived and probably died. Wandering among its galleries, she examined shackles that once held people in bondage, tools that Black midwives used to birth new life and baskets woven by enslaved women who brought the skill from their homes in West Africa. She paused in one room to read walls filled with people’s first names like so many she had seen on slave inventories during her research.

“Maybe Harvard should fund the caring for the daguerreotypes here,” she mused. Bringing the images to South Carolina, to a “first voice” institution like this one — an African American-led museum telling African American stories — would mark what Lanier described as “a homecoming.”

Three months later, on July 1, Harvard welcomed its first Black president. Claudine Gay, professor of African and African American Studies, is the daughter of Haitian immigrants. Following her selection, ProPublica asked leaders at Harvard and the IAAM what they thought of Lanier’s idea of transferring the images to Charleston.

Rura, Harvard’s spokesperson, didn’t address the IAAM specifically but also didn’t dismiss the idea.

She wrote to ProPublica that “it is Harvard that has long suggested placing the daguerreotypes — all 15 of them — in another institution that would allow them to be more accessible to a broader segment of the public, to be understood in an appropriate historical context, and to tell the stories of the enslaved individuals they depict.”

She added, “It is difficult to arrange for such a transfer while the litigation is pending.”

Matthews, the IAAM’s president, said the museum is equipped to store the images, which are housed at Harvard in custom-made cases in a facility with controlled temperature and humidity. Matthews added that she would welcome a conversation about moving them to her museum, particularly if approached by the holding institution and a descendant.

“It definitely fits within our collection philosophy,” she said. “South Carolina is ground zero for a lot of this.”

The notion of a “homecoming,” she added, resonated with her.

After leaving Charleston, Lanier continued to mull that word, too. It gave her a sense of welcome and comfort. She envisioned a celebration for the daguerreotypes akin to the Black funeral tradition of a homegoing, when loved ones cherish and exalt those who have passed and set their spirits free.

Mollie Simon contributed research.

by Duaa Eldeib

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

Inside the medical examiner’s office, two pathologists removed a baby’s lungs from his chest, clamped them together and placed them in a container of water. Then they watched.

They were examining the suspicious death of the baby whose body was found in a Maryland home; his mother said he was stillborn.

If the lungs floated, the theory behind the test holds, the baby likely was born alive. If they sank, the baby likely was stillborn.

“A very simple premise,” the assistant medical examiner later testified.

The lungs floated — and the mother was charged with murder.

In investigations across the country, the lung float test has emerged as a barometer of sorts to help determine if a mother suffered the devastating loss of a stillbirth or if she murdered her baby who was born alive. The test has been used in at least 11 cases where women were charged criminally since 2013 and has helped put nine of them behind bars, a ProPublica review of court records and news reports found. Some of those women remain in prison. Some had their charges dropped and were released.

But the test is so deeply flawed that many medical examiners say it cannot be trusted. They put it in the same company as the discredited analysis of bite marks and bloodstain patterns, 911 calls and hair comparisons, all of which lack solid scientific foundations and have contributed to wrongful convictions.

It is pseudoscience masquerading as sound forensics, they say. Some even liken the test to witch trials, where courts decided if a woman was a witch based on whether she floated or sank.

“Basing something so enormous on a test that should not be used, that has been completely discredited, is absolutely wrong,” said Dr. Ranit Mishori, the senior medical adviser for the nonprofit Physicians for Human Rights, which has been studying the test, and a professor of family medicine at Georgetown University School of Medicine. “You can send a person who is innocent to prison for many years.”

Medical examiners who rely on the lung float test typically do so in cases where someone gives birth outside of a hospital, often at home and far from the watchful eyes of medical professionals. Absent those witnesses, doubt can overshadow the insistence that the baby was stillborn.

Since the Supreme Court struck down the constitutional right to abortion, legal experts and reproductive justice advocates have voiced fears that an increased reliance on the lung float test will lead to more prosecutions in a landscape where any pregnancy that doesn’t end with a living, breathing baby can be viewed with suspicion. In several cases, the fact that a woman had considered abortion was used against her. Black, brown and poor women, research shows, already disproportionately face pregnancy-related prosecutions. Black women also are more than two times as likely to have a stillbirth as white women.

Even medical examiners who perform the test as part of an autopsy acknowledge its shortcomings. They concede that there are several ways to perform it, undermining the standardization that many forensic disciplines demand. Yet judges have allowed prosecutors to use it as evidence in court.

“Basing something so enormous on a test that should not be used, that has been completely discredited, is absolutely wrong.”

—Dr. Ranit Mishori, senior medical adviser for Physicians for Human Rights

ProPublica contacted the nation’s largest medical examiners’ offices to ask if they use the lung float test and discovered a patchwork of practices. Many offices said they just don’t trust it. The County of Los Angeles Department of Medical Examiner called its results “inaccurate.” The Harris County Institute of Forensic Sciences in Houston said it found the test to be “very unreliable” and “not supported by empirical evidence.”

In Cook County, home to Chicago, pathologists use it, but give more weight to “more reliable methods” including X-rays, microscopic examinations and autopsy findings to determine whether a birth was live or still. Others, like the Virginia Office of the Chief Medical Examiner, said the test may be useful only if a baby was not born into a toilet, CPR was not performed and decomposition was not present. None of the 12 largest offices by jurisdiction expressed full-throated support for the test.

And while the national organization that represents medical examiners said that it doesn’t have an official stance on the lung float test, it said it “strongly advocates using scientifically validated and evidence-based practices in forensic pathology.” The National Association of Medical Examiners called the lung float test “a single, dated test” that has not been subjected to the organization’s rigorous evaluation process.

Dr. Gregory Davis, a forensic pathologist at the University of Kentucky College of Medicine and a consultant to the office of the medical examiner in Kentucky, called the test “an outrageous breach of science.” He said he has personally observed the lungs of stillborn babies float and those of live-born babies sink.

The fundamental problem with the test, he said, is that there are many ways that air can enter the lungs of a stillborn child.

“There’s no way,” Davis said, “you can determine live birth versus stillbirth with this test.”

Moira Akers, the Maryland woman whose baby died, didn’t intend to get pregnant. She and her husband, Ian, already had two young children and the couple worried they wouldn’t be able to handle another child.

They struggled financially — she was a stay-at-home mom and he worked only a few days a week as a first mate on a dinner cruise. Her previous pregnancies — both ending in cesarean sections — were difficult, and challenges with her youngest child demanded much of her attention.

Due to Akers’ age, 37, and weight, her pregnancy was considered high risk. The couple decided to terminate, but they didn’t tell her family, who are Catholic and who she worried may not have approved. When Akers was a little girl, her mother said, she dreamed of being a mother, and as an adult she doted on her children.

After her appointment with a gynecologist around 15 weeks into her pregnancy, court records show that Akers thought that it was too late for her to have an abortion in Maryland. She decided she would carry the baby to term without letting anyone know she was still pregnant and give it up at a firehouse.

“I wanted the baby to have a good life,” Akers later told police. “I just knew we weren’t going to be able to provide that.”

Moira Akers (Courtesy of Debra Saltz)

She didn’t gain much weight and she told her husband early on that the pregnancy had been terminated. She also didn’t divulge the fact that she was pregnant to other family members, who were going through their own hardships, court records and interviews show. Her sister was being treated for cancer and feared she’d never be able to have children of her own. Her brother was recovering from an accident that had left him temporarily using a wheelchair. And the family had recently buried her grandmother and aunt.

Akers declined comment through her attorney. But the description of the case is based on police and court records, including a trial transcript, as well as interviews with her family and her lawyer.

On Nov. 1, 2018, in the family’s three-bedroom duplex in suburban Baltimore, Akers had been having contractions when she felt a strong urge to use the bathroom. She delivered her son into the toilet. She said he was not breathing. She grabbed her older son’s Star Wars towel to wrap the baby in, then carried him into the bedroom to get scissors and cut the umbilical cord.

“I didn’t hear anything,” Akers later told a detective. The baby, she said, didn’t move.

She didn’t know what to do next. Akers scanned the room and spotted a large Ziploc bag meant to store her daughter’s clothes. She placed her baby in the blue bag, and she put the bag in the closet.

Akers was bleeding heavily from the delivery. Blood soaked the carpet and smeared the bathroom floor. It stained the bathtub, closet door and hallway.

Her husband came upstairs. Alarmed by all the blood, he called the paramedics. When they arrived, they asked Akers questions as she sat on the couch with her husband and two children. She denied being pregnant.

It wasn’t until later, after Akers arrived at the hospital, that she told a nurse that she had “delivered a stillborn child” at home, police records show.

The doctors, who came in next, saw a protruding umbilical cord still attached and asked if the baby was alive. Akers said she had delivered a stillborn baby and told them about the bag and the closet.

Police launched an investigation. Akers described being in denial about the pregnancy and sad about the baby’s death.

The two Maryland doctors conducted an autopsy. The baby, they wrote in their report, appeared to be “well-developed” and “well-nourished” and had been delivered after about 41-42 weeks of pregnancy. He had blue eyes and straight brown hair.

Neither the external exam of the baby nor his bloodwork nor an X-ray revealed signs of foul play. But the narrative from police described a woman who hid her pregnancy from her family and paramedics, considered an abortion and placed the baby’s body in a closet. A microscopic view of the lungs, which were soft and pink in some areas, also appeared to show that some parts had air in them and others did not.

They also had the results of the lung float test.

“A flotation test and microscopic examination of the lungs was consistent with a live birth,” the autopsy read. The baby, the medical examiners concluded, died of asphyxia and exposure from being left in the closet.

Prosecutors charged Akers with child abuse and murder.

The lung float test’s simplicity — essentially unchanged over centuries — is both a feature and a flaw.

Some medical examiners take out one lung at a time. Some cut the lungs up and test pieces, and may even go so far as to squeeze them. Others clamp them together or put the heart and lungs in a jar. Some drop in the liver as a control. Others submerge the lungs in liquid formaldehyde instead of water.

As the assistant medical examiner in Akers’ case testified, “there’s a million ways” to conduct the test.

In theory, the test is meant to determine whether air has reached the microscopic air sacs inside the lungs. If it has, the sacs open and spread out. If it hasn’t, the sacs remain collapsed.

“It is not always possible to reach a definitive conclusion, but that may be preferable to [a case] that is based on a problematic test.”

—Capt. Kyle Kennedy, Oregon State Police

But the problem with using aeration as a proxy for proof of life, many medical experts argue, is that babies don’t have to take a breath for air to enter their lungs. Air can be introduced when the baby’s chest is compressed as it squeezes through the birth canal. If there is an attempt to resuscitate a stillborn baby, that pressure can inflate the lungs. And if a body has started to decompose, gases from that process can cause the lungs to float in water. Even the ordinary handling of a stillborn baby can allow air to enter the lungs.

Doctors have long struggled with the best way to determine whether a baby was born alive in unattended births. Many experts agree that it’s nearly impossible without incontrovertible evidence such as milk in the baby’s stomach or signs of the umbilical cord stump beginning to heal where it was cut.

The uncertainty can be difficult for juries to accept, especially when prosecutors present what appears to be a scientific test that proves a baby was born alive and, as a result, was murdered.

“It is not always possible to reach a definitive conclusion, but that may be preferable to one that is based on a problematic test,” said Capt. Kyle Kennedy of the Oregon State Police department, of which the Oregon State Medical Examiner is a part.

The Oregon State Medical Examiner, he said, does not use the lung float test.

The test can produce correct results, said Dr. Christopher Milroy, a forensic pathologist with the Eastern Ontario Regional Forensic Pathology Unit and a professor at the University of Ottawa in Canada. But given that it also produces inaccurate results, he said it should not be used in criminal cases.

“It’s not like some of the things we do,” he said, “where we are going, ‘Well, did they die of diabetes or did they die of something else natural?’”

Milroy has studied the test and its history and has found references to its use in the 17th century, when witch trials were still occurring. But by the late 1700s, its reliability was questioned by doctors and lawyers. More than 200 years later, in 2016, the authors of a forensic medicine textbook wrote that there were too many recorded instances of stillborn lungs floating and live-born lungs sinking for the test to be used in a criminal trial.

No agency currently tracks how often the lung float test is used in criminal cases. But the 11 cases ProPublica identified are likely an undercount because some cases weren’t covered in news reports, and plea deals and acquittals often create less of a public record.

Still, the test has been cited in medical textbooks and is often included in forensic pathology training. Its defenders say that there aren’t any better alternatives, and they may be criticized for not doing their job if they don’t use it. Some also say they don’t rely solely on the test; they acknowledge its weaknesses but say it complements other exams. In addition, some people do, in fact, kill their babies.

Prosecutors have often turned to a 2013 academic study from Germany to support admitting the lung float test as evidence. “The study proves that for contemporary medicine, the lung floating test is still a reliable indicator of a newborn’s breathing,” the authors wrote.

But some experts have questioned that study, saying its results have not been reproduced, its 98% accuracy rate is misleading and it didn’t actually answer whether a baby was born alive because the births in the study had been attended by medical professionals, so there was never any real question about what happened.

The hospital affiliated with the study’s authors declined to comment.

The dearth of research around the test raises critical questions about whether it should be allowed as evidence, said Marvin Schechter, a New York criminal defense lawyer who served on the committee that wrote a groundbreaking National Academy of Sciences report in 2009 on strengthening forensic science in the United States. Schechter said the lung float test wasn’t included because the commission reviewed only the most frequently cited forensic tests.

His concerns with the test mirror many of the ones flagged in the report. For example, he said, the lack of standardization is evident in the fact that some medical examiners squeeze the lungs as part of the test.

“What is that? Your squeeze is different than my squeeze,” he said. “That’s not science.”

Schechter called for a national conference to evaluate the test and its admissibility in court.

“If you apply the rules and regulations that follow science to the lung float test, how does it pass muster?” Schechter said. “The research doesn’t exist, and if the research doesn’t exist, then you shouldn’t be doing it.”

Every so often, after the lung float test has been used to help put a woman behind bars, the questions around it set her free.

In 2006, Bridget Lee had hid her pregnancy after having an affair. She didn’t want anyone in the small Alabama community where she played piano at her church to know.

Bridget Lee at her home in Carrollton, Alabama, in 2009 (Jay Reeves/AP)

When she went into labor at home, she said her son was stillborn. She placed his body in a plastic container and put it in her SUV, where it sat for days.

The medical examiner used the lung float test and concluded that Lee’s son had been born alive. Lee was charged with murder, which in Alabama carried the possibility of the death penalty.

Lee’s lawyer called on Davis to review the autopsy report, which was the first time he saw the lung float test being used to support criminal charges against a mother. He concluded that the autopsy was filled with errors. It missed an infection in the umbilical cord and erroneously described decomposition as signs of injury.

Davis’ review led to the Alabama Department of Forensic Sciences to examine the case, and the agency ruled that not only had the medical examiner botched the autopsy, but the baby was stillborn. Neither the medical examiner nor the prosecutors responded to requests for comment.

Lee spent nine months in jail before prosecutors dropped the charges against her.

She later told reporters that she knows it’s hard for people to understand how she could put her baby’s body in a container and leave it in her car. But, she said, the best way to describe it was like having “an out-of-body experience.”

While individual reactions are hard to comprehend, mental health specialists say the shock and pain of delivering a stillborn baby at home can be so traumatic that people may detach or disassociate from reality, said Dr. Miriam Schultz, an associate clinical professor of psychiatry who specializes in reproductive psychiatry at Stanford Medicine Children’s Health.

“Sometimes a survival instinct will kick in to try to normalize what’s an absolutely incomprehensibly shocking and devastating reality,” Schultz said. “One could imagine possibly trying to make evidence of what just happened less visible and wanting to completely compartmentalize this traumatic event that just has occurred.”

Late one April night in 2017, Latice Fisher said she felt the urge to defecate. About three hours later, she delivered her son into the toilet at her home.

The medical examiner in Fisher’s case performed the lung float test, which revealed that parts of the lungs floated and parts didn’t. He ruled that the baby was born alive and died from asphyxiation. Police also found that Fisher had searched for abortion pills on her phone.

Yveka Pierre, senior litigation counsel with the reproductive justice nonprofit If/When/How, said the people who are prosecuted for their pregnancy outcomes are typically from marginalized communities. They’re Black, like Fisher; or they’re brown, like Purvi Patel, an Indiana woman who was sent to prison for feticide after self-inducing an abortion, a charge that was later vacated; or they face financial hurdles, like Akers.

“Some losses are tragedies, depending on your identity, and some losses are crimes, depending on your identity.” Pierre said. “That is not how we say the law should work.”

Pierre, who also worked on Akers’ case, said Fisher and her husband did what prosecutors say to do by calling 911, but Fisher was still arrested. Once the medical examiner’s investigation starts, she said, the office typically works in tandem with the police.

A grand jury indicted Fisher on second-degree murder charges in January 2018. But a few months later, a local group raised money to get her released on bond. The group also contacted a national nonprofit, now known as Pregnancy Justice, which helped connect Fisher with longtime criminal defense attorney Dan Arshack. He began researching the lung float test and came to an unmistakable conclusion.

“It should be permitted to the same extent that dunking a woman in water is permitted to determine if she’s a witch,” he said in an interview.

“Some losses are tragedies, depending on your identity, and some losses are crimes, depending on your identity. That is not how we say the law should work.”

—Yveka Pierre, senior litigation counsel with If/When/How

Arshack asked Davis to review the autopsy, which he found troubling. Arshack also asked Aziza Ahmed, then a professor at Northeastern University School of Law, to focus specifically on the forensics of the lung float test.

By not requiring rigorous testing or proof of its accuracy, Ahmed wrote, the “courts themselves have played a key role in sustaining the inaccurate belief” that the test could reliably determine whether a child was born alive.

Arshack wrote letters to District Attorney Scott Colom explaining Davis and Ahmed’s findings, saying there was no “reasonable legal or scientific basis” to conclude that a crime occurred. He also explained that it wasn’t “good public policy to prosecute women for bad pregnancy outcomes, especially Black women in Mississippi,” who suffer higher rates of maternal mortality and stillbirth.

In May 2019, Colom announced that he had learned of concerns surrounding the reliability of the lung float test. Once the question of whether the child was born alive was scientifically in dispute, he said, he dismissed the charges against Fisher and sent the case to another grand jury armed with the details about the test.

“When you’re talking about a murder charge for a mother,” Colom said in an interview, “I felt that was crucial information because I certainly didn’t want to be prosecuting somebody for a stillborn death that could not be her fault.”

This time, the grand jury chose not to indict Fisher.

As Akers’ case made its way through court, Davis was asked to review the autopsy. He noted that Akers had classic risk factors for stillbirth: hypertension during pregnancy, obesity, advanced maternal age and previous pregnancies. She also was past her due date and reported not feeling the baby kick in the days leading up to the birth.

Dr. Gregory Davis at University of Kentucky College of Medicine (Natosha Via for ProPublica)

Davis agreed with the medical examiner, Dr. Nikki Mourtzinos, and the associate pathologist who conducted parts of the autopsy, that there were infections in the pancreas, placenta — the vital organ that provides the fetus with nutrients and oxygen — and the umbilical cord, which serves as the baby’s lifeline in the womb.

But what he found “perplexing,” he wrote, is that they did “not seem to take these critical findings into account regarding such findings being associated with stillbirth.” When it was his time to take the witness stand at trial, he said the infections in the placenta, umbilical cord and membranes were “a smoking gun association” with stillbirth.

An OB-GYN also testified that he believed Akers suffered from a placental abruption — a complication where the placenta separates from the wall of the uterus — which also can lead to a stillbirth and cause heavy bleeding.

Prosecutors said the case hinged on whether the baby was born alive. Among the evidence they pointed to were the results of the lung float test, the pinkish appearance of the lungs and lack of decomposition, malformation of the baby’s head or slippage of the skin.

“These lungs floated,” the prosecutor said during closing. “They floated because this child had breathed and was alive after he was delivered at home that day.”

The prosecution homed in on the fact that Akers had wanted an abortion, which was underscored by her cellphone search history. They said she never intended to have her baby live and breathe. When she didn’t get an abortion, they said, she chose to give birth at home and kill her son. They pointed out that she hadn’t received prenatal care and that she didn’t attempt to resuscitate the baby.

Akers told police she thought it was too late.

During closing arguments, prosecutors displayed an oversized photo of the baby on the screen and repeated that Akers put his body in a bag, using the word “bag” 26 times.

In April 2022, the jury found Akers guilty of second-degree murder and first-degree child abuse.

In response to questions from ProPublica, the state’s attorney declined to comment. Mourtzinos, the assistant medical examiner who testified in Akers’ case, did not respond to requests for comment. She’s no longer with the Maryland medical examiner’s office. The agency’s interim chief medical examiner said the office is accredited by the National Association of Medical Examiners and follows the organization’s autopsy performance standards. Any and all ancillary tests, she said, “are done on a case by case basis, at the discretion of the attending medical examiner” and interpreted in the context of the entire case.

When the verdict was read, Akers collapsed in her chair, dropped her head to the table and sobbed. Her family, who was seated behind her, filled the courtroom with their own cries.

Last summer, as much of the country awaited the aftermath of the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision, which eliminated a constitutional right to abortion, the New York-based nonprofit Pregnancy Justice released a guide for medical, legal and child welfare professionals on confronting pregnancy criminalization.

The organization advised defense attorneys and medical examiners to challenge the lung float test. In many cases, the authors wrote, criminal charges are based on “the erroneous assumption that a woman engaged in acts or omissions that harmed the fetus.”

The backdrop to the lung float test is the deeper issue of criminalizing pregnancy loss. That was already on the rise before the Dobbs decision, with data from Pregnancy Justice showing that nearly 1,400 pregnant women were arrested, prosecuted or sentenced between 2006 and the 2022 Dobbs decision, more than three times the total for the previous 33 years. Many of the charges were connected to drug use while pregnant.

Society often wants to hold someone responsible, said Dana Sussman, deputy executive director of Pregnancy Justice. Mothers are usually the easiest to blame.

One of the first things Pregnancy Justice lawyers now ask in a pregnancy loss case is whether the prosecutor is attempting to use the lung float test.

“It’s almost like an intake question,” Sussman said. “We will fight every attempt that we learn of to use that test because that is a life sentence based on unreliable information and unreliable science.”

The lack of understanding, research and education around stillbirth also contributes to the urge to assign blame. Every year in the U.S., more than 20,000 pregnancies end in stillbirth, defined as the death of an expected child at 20 weeks or more. But the public is often shocked to hear that number or learn that only a fraction of stillbirths are attributed to congenital abnormalities. Some babies died just minutes before they were born and were placed in their parents’ arms while they were warm to the touch and their cheeks were still rosy.

Davis, an affable man with a snow-white beard, has started to spread the word about the lung float test. At a post-Dobbs legal seminar in Tennessee over the summer, he told a room of lawyers about the test, one that many of them had not heard of but may soon encounter.

A lawyer sitting in the back told the crowd that the lung float test seemed to have the same validity as bite mark analysis, which for decades was accepted as evidence and now is considered junk science.

“What do you do when they say this test has been accepted in the past?” she asked.

Davis pointed her to a letter where he gathered signatures from more than two dozen forensic pathologists and medical examiners from around the world who declared that the lung float test is not a scientifically reliable test or indicator of live birth and “is not generally accepted within the forensic pathology community.”

He had submitted the letter in Akers’ case.

In July of last year, three months after the Akers verdict, prosecutors asked the judge to sentence her to 40 years. They said it was the “the most heinous of crimes that can be committed” and it was carried out by a woman who hid her pregnancy and took her baby’s life in a “detached and calculated manner.”

Akers’ family came to her defense. Her husband said that in their nearly 20 years together, Akers’ “devotion to her family defies description.” One of his greatest joys in life, he said, was seeing the way their kids light up anytime she enters a room.

Her lawyer, Debra Saltz, said Akers made “lapses in judgment” by not telling anyone she was pregnant, having the baby alone and then putting his body in the closet. But, she said, “There is in this life no way anybody will get me to believe that Moira Akers killed her baby. I believe Moira, and I believe the science, that this baby was stillborn.”

Before the judge imposed his sentence, Akers addressed him.

“My children are my entire world,” she said, “and I fell in love with my son as soon as I saw him.”

The judge, who acknowledged what an “extraordinarily difficult case” it was, said the charges against Akers were “particularly egregious because they were perpetrated against an innocent, helpless, newborn child.”

He sentenced her to 30 years in prison.

Akers’ appeal, now pending, focuses on the shortcomings of the lung float test.

As she waits for a ruling, she stays connected to her family from prison. Her mom, Mary Linehan, said most of their conversations revolve around the ordinary details of her children’s lives, their first day of school and their favorite new toys.

Akers’ mom, who retired from her job as an accountant at a Catholic church and school, helps watch her grandchildren. When they ask about their mom, she said, their dad tells them that she “got blamed for something she didn’t do, and we’re fighting to get her out.”

Mariam Elba contributed research.

by Jonathan D. Salant and Michael D. Sallah, Pittsburgh Post-Gazette; Haajrah Gilani, Medill Investigative Lab; and Debbie Cenziper, ProPublica

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Update, Oct. 6, 2023: This story was updated to note a fall in Royal Philips’ stock prices.

A powerful U.S. senator is calling on federal prosecutors to take immediate action against Philips Respironics after revelations the global company withheld thousands of warnings about popular breathing machines capable of spewing hazardous particles and fumes into the masks of patients.

“Philips brazenly turned a blind eye to its dangerous defective machines all in the name of profit,” Sen. Richard Blumenthal, D-Conn., said in a statement about the device maker, which has long dominated the market for ventilators and sleep apnea machines.

The call for enforcement from the Department of Justice comes just days after an investigation by ProPublica and the Pittsburgh Post-Gazette revealed the company kept secret more than 3,700 complaints about the faulty devices over the course of 11 years before launching a massive recall in 2021.

At the time, Philips acknowledged that an industrial foam placed inside the devices to reduce noise could break down in heat and humidity and release material into the air paths of the machines. By then, the company’s two factories in Pittsburgh had turned out millions of the tainted devices, which were delivered to infants, the elderly, COVID-19 patients and at least 700,000 veterans.

As the complaints mounted, stock prices for the device maker’s parent company, Royal Philips, soared to the highest levels in at least 40 years. In a statement, Philips said it regrets any “distress and concern” caused by the recall and it is cooperating with prosecutors and regulators.

“Philips’ priority is patient safety and quality,” the company said.

Safety tests on the foam by Philips in the wake of the recall were called into question by the FDA on Thursday, which said in a statement that the tests were not adequate and did not “fully evaluate the risks posed to users.” Philips agreed to conduct additional tests, the agency said.

Stock prices for Royal Philips, which fell in the wake of the ProPublica and Post-Gazette investigation, dropped by more than 9% on Friday morning after the FDA announcement.

The Justice Department, which has been examining the company’s testing practices and safety claims, can impose a range of penalties against medical device companies in violation of federal safety laws, including civil sanctions and criminal charges.

“Philips knew about the serious risks of its breathing machines for years, but inexcusably, withheld critical information,” said Blumenthal, a member of the Senate Judiciary Committee and chair of an investigations subcommittee that probes violations of laws and regulations impacting national health and safety. “The DOJ must take immediate, aggressive action against Philips for its years-long wrongdoing.”

Senate Majority Whip Dick Durbin, D-Ill., also lambasted Philips for “allowing consumers to breathe in harmful particles from their CPAP machines.”

“It’s deeply disturbing that Phillips would sit on this information as Americans became sicker and sicker,” Durbin said in response to the news organizations’ investigation.

To keep the public safe, federal law requires device makers to submit reports of device malfunctions, patient injuries and deaths within 30 days. In the years before the recall, ProPublica and the Post-Gazette found, Philips withheld the vast majority of complaints about the foam from the Food and Drug Administration, which oversees the medical device industry.

News of the recall stunned patients and their doctors, who scrambled to find information about the potential health risks. The FDA has since classified the recall as the most serious, for device defects that can cause severe injury or death.

“All I could do is tell them the truth, what their options were and be sympathetic,” said Dr. Byron Cooper, a Philips CPAP user and newly retired pulmonologist who treated sleep apnea patients in Washington, D.C. “It would have helped to have more transparency.”

Durbin and Rep. Jan Schakowsky, D-Ill., recently proposed legislation to streamline the recall process so that patients quickly learn about potential health risks.

“When these recalls, like the one Phillips finally issued after more than a decade, come to light, consumers have a right to be informed,” Durbin said.

Philips has said that complaints about the foam were limited before the recall and evaluated on a case-by-case basis, and that when it became aware of the potential significance of the problem in early 2021, the company launched the recall shortly after that.

Philips acknowledged the foam could release chemicals or break into particles capable of causing life-threatening injuries.

Since the recall, the company has changed course, saying recent testing on the DreamStation continuous positive airway pressure, or CPAP, machine and similar devices shows that chemical emissions fall within safety thresholds.

ProPublica and the Post-Gazette obtained copies of the results of four tests carried out in 2021 that were solicited by Philips. Three experts who reviewed the results for the news organizations disputed the company’s claim that emissions fall within safety thresholds. The experts also pointed out that the foam tested positive for genotoxicity, the ability of a chemical to cause cells to mutate, which can lead to cancer.

As doctors struggle to assess the long-term health risks, Connecticut Attorney General William Tong said third-party experts should conduct safety tests on the devices.

“There are still people with defective devices who are rightfully scared and frustrated and they deserve better from both Philips and FDA,” said Tong, who last year joined Blumenthal in a letter to federal regulators urging them to take action against the company.

Kushal Kadakia, a public health researcher at Harvard Medical School who has written about the recall, said the FDA should launch an advisory panel to determine whether the devices are safe and should also require Philips to carry out a study tracking the long-term health consequences.

The FDA, which said it does not comment on compliance matters, said that it is “unsatisfied” with the status of the recall and that the agency would continue to ensure that patients receive accurate information.

Last month, Philips reached a settlement in one of several lawsuits against the company, agreeing to pay at least $479 million to reimburse customers and others for the costs of the defective machines.

After ProPublica and the Post-Gazette published their investigation, which drew on previously undisclosed company records, interviews with Philips insiders and leaked test reports, Philips released a statement saying the stories “do not present new facts and we do not agree with the characterizations made in these articles.”

Help ProPublica and the Pittsburgh Post-Gazette Investigate the Recall of Philips Respironics Breathing Machines

Evan Robinson-Johnson and Michael Korsh of the Pittsburgh Post-Gazette contributed reporting.

by Justin Elliott, Joshua Kaplan and Alex Mierjeski

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For months, Supreme Court Justice Clarence Thomas and his allies have defended Thomas’ practice of not disclosing free luxury travel by saying the trips fell under a carve-out to the federal disclosure law for government officials.

But by not publicly reporting his trips to the Bohemian Grove and to a 2018 Koch network event, Thomas appears to have violated the disclosure law, even by his own permissive interpretation of it, ethics law experts said. The details of the trips, which ProPublica first reported last month, could prove important evidence in any formal investigation of Thomas’ conduct.

Thomas’ defense has centered on what’s known as the personal hospitality exemption, part of a federal law passed after Watergate that requires Supreme Court justices and many other officials to publicly report most gifts.

Under the exemption, gifts of “food, lodging, or entertainment received as personal hospitality” don’t have to be disclosed. The law provides a technical definition of “personal hospitality.” It only applies to gifts received from someone at that person’s home or “on property or facilities” that they or their family own. A judge would generally not need to disclose a weekend at a friend’s house; they would need to report if someone paid for them to stay at the Ritz-Carlton.

Numerous ethics law experts have said that gifts of transportation, such as private jet flights, must be disclosed under the law because they are not “food, lodging, or entertainment.”

Thomas has laid out a different view of the disclosure requirements. In his financial disclosure released in late August, Thomas asserted that the personal hospitality exemption extended to transportation. Justice Samuel Alito has made the same argument in an op-ed where he elaborated on his reasoning: private jets would count as “facilities” under the law’s definition of personal hospitality. In this view of the disclosure requirements, a key question would be whether the person providing a private jet flight actually owned the jet. So, for example, Thomas would not need to report flights on his friend Harlan Crow’s private plane because Crow owns it.

Thomas and Alito’s position is incorrect, many experts said, because it simply ignores the statute’s language: that the personal hospitality exemption only applies to food, lodging, or entertainment.

But there’s an additional reason the newly revealed trips should have been disclosed.

ProPublica recently reported that in 2018, Thomas traveled on a Gulfstream G200 private jet to Palm Springs, California, to attend a dinner at the Koch political network’s donor summit. He didn’t hitch a ride on a jet owned by a friend. Instead, he flew there on a chartered plane: a jet available through an Uber-like service that lets wealthy individuals rent other people’s planes. The owner of the jet at the time, Connecticut real estate developer John Fareri, confirmed to ProPublica that he didn’t provide the plane to Thomas and that the Palm Springs flight was a charter flight. That means someone else — not the owner — paid.

A Koch network spokesperson said the network didn’t pay for the flights. Because Thomas didn’t disclose the trip, it’s still not clear who chartered the plane. Jet charter companies told ProPublica the flights could have cost more than $75,000.

Experts told ProPublica they couldn’t think of an argument that would justify not disclosing the Palm Springs trip. “Even using Thomas’ flawed logic about the personal hospitality exception, there’s no way this chartered flight fits into that exception,” said Kedric Payne, a former deputy chief counsel at Congress’ ethics office.

Thomas and his attorney did not respond to questions about why he didn’t disclose the flight or if he paid for it himself. After the Palm Springs donor event, the plane flew to an airport outside Denver, where Thomas appeared at a ceremony honoring his former clerk, then back to northern Virginia, where Thomas lives.

Thomas’ undisclosed trips to the Bohemian Grove present a similar issue. As ProPublica reported last month, Thomas has for 25 years been a regular at the Grove, an all-men’s retreat held on a 2,700-acre property in California. Thomas has been hosted by Crow, who is a member of the secretive club, and stayed at a lodge there called Midway. Members typically must pay thousands of dollars to bring a guest, according to a Grove guest application form obtained by ProPublica and interviews with members.

Crow does not own the Grove nor does he own the lodge where Thomas has stayed. Experts said in these instances again, even by Thomas’ own characterization of the rules, he appears to have violated the law by not disclosing the trips.

“It makes a mockery of the statute,” said Richard Painter, who served as the chief ethics lawyer for the George W. Bush White House. Painter said that if charter flights and trips to Grove don’t need to be disclosed, “you could call everything personal hospitality. Broadway show tickets. A first-class ticket on Delta Air Lines. A trip on the Queen Mary.”

Following ProPublica’s reporting on Thomas’ failure to disclose gifts earlier this year, members of Congress sent a complaint to the Judicial Conference, the arm of the judiciary responsible for implementing the disclosure law. In April, the Judicial Conference said it had referred the matter to a committee of judges responsible for reviewing such allegations.

The law says that if there is “reasonable cause” to believe a judge “willfully” failed to disclose information they were required to, the conference should refer the matter to the U.S. attorney general, who can pursue penalties. But that would be unprecedented. As of May, the Judicial Conference said it had never made such a referral. The committee’s process appears to be ongoing.

In his filing in August, Thomas said that his view of the disclosure rules was based in part on conversations he had with staff at the Judicial Conference. Thomas did not respond to questions about the advice he received. A judiciary spokesperson declined to comment on whether it was ever the Judicial Conference’s position that gifts of private jet flights didn’t need to be reported.

This March, the judiciary revised its regulations to make explicit that private jet travel must be disclosed because transportation is not covered by the personal hospitality exemption. Experts said the update merely clarified what was always the case. (ProPublica reviewed other federal judges’ financial disclosure filings and found at least six recent examples of judges disclosing gifts of private jet travel before the regulations were updated.)

More than a decade ago, Thomas’ disclosure practices came under scrutiny following research by a watchdog group and a story in The New York Times about his relationship with Crow. Democratic lawmakers wrote to the Judicial Conference in 2011, saying that Thomas had failed to report the sources of his wife’s income and that he “may” have also received free private jet trips without reporting them.

What happened after that remains opaque.

In a four-sentence letter the following year, the secretary to the Judicial Conference said that the complaint had been reviewed. “Nothing has been presented,” he wrote, “to support a determination” that Thomas improperly failed to report gifts of travel. The letter did not detail what steps the conference took, the reasoning behind its decision or what information it had been presented with.

At the time, nothing in the public record had established that Thomas had ever accepted undisclosed private jet flights. But Thomas’ attorney Elliot Berke has cited the 2012 letter as vindication of Thomas’ practices. “The Judicial Conference issued a letter confirming that Justice Thomas had not improperly failed to disclose information concerning his travel,” Berke wrote.

ProPublica asked the Judicial Conference for details on the 2012 episode, including whether the committee conducted an investigation and an explanation of its ultimate conclusion: Did it determine that private jet flights need not be reported? Or did it determine that it wasn’t clear if Thomas had actually accepted such a gift?

A Judicial Conference spokesperson declined to comment.

by Cezary Podkul

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Mr. Big had a problem. He needed to move what he called “fraud funds” back to China, but a crackdown was making that difficult. So in August, Mr. Big, who, needless to say, did not list his real name, posted an ad on a Telegram channel. He sought a “group of smuggling teams” to, as he put it, “complete the final conversion” of the stolen money by smuggling gold and precious stones from Myanmar into southern China, in exchange for a 10% cut.

It’s unclear whether Mr. Big ultimately succeeded; his ad has since been deleted, and ProPublica was unable to reach him. But the online forum where he posted his ad says a lot about why Americans and people around the world have found themselves targeted by an unprecedented wave of fraud originating out of Southeast Asia, whose vast scale is now becoming apparent. In a single recent criminal investigation, Singapore police seized more than $2 billion in money laundered from a syndicate with alleged ties to organized crime, including “scams and online gambling.”

The Telegram channel that featured Mr. Big’s plea for assistance was a Chinese-language forum offering access to “white capital” — money that has been laundered — “guaranteed” by a casino operator in Myanmar, Fully Light Group, that purports to ensure that deals struck on the forum go through. Fully Light also operates its own Telegram channels that advertise similar services. One such channel, with 117,000 participants, featured offers to swap cryptocurrency for “pure white” Chinese renminbi or “white capital” Singaporean dollars. (Telegram took down that channel after ProPublica inquired about it. Fully Light did not respond to requests for comment.)

The presence of a casino in facilitating such deals is no coincidence. A growing number of gambling operations across Southeast Asia have become key pillars in a vast underground banking system serving organized criminal groups, according to new research by the United Nations Office on Drugs and Crime. The research has not been published, but the agency shared its findings with ProPublica.

There are now over 340 physical casinos across Southeast Asia (as well as countless online ones), and many of them show accelerating levels of infiltration by organized crime, according to the UNODC. The casinos function as “a shadow banking system that allows people to move money quickly, seamlessly, jurisdiction-to-jurisdiction, with almost no restriction,” Jeremy Douglas, UNODC’s top official in Southeast Asia, told ProPublica in September. That has made money laundering “easier than ever before,” he said, and it’s been “fundamental to the expansion of the transnational criminal economy” in the region — especially cybercrime.

As ProPublica reported in detail last year, Southeast Asia has become a major hub for cryptocurrency investment scams that often start as innocent-sounding “wrong number”-type text messages. The messages frequently originate from seedy casino towns in Cambodia, Laos and Myanmar, where criminal syndicates lure workers with the promise of lucrative jobs, only to force them to work as online scammers. UNODC’s map of known or suspected scam compounds shows a clear overlap with gambling hubs in Laos, Myanmar and Cambodia, where allegations of forced online scam labor have become so widespread that they recently prompted Interpol to issue a global warning about the problem, which the international police agency said was occurring on “an industrial scale.”

Gambling has long attracted organized crime, but never more than in Myanmar, Cambodia, Laos and the Philippines, where loose regulations and endemic corruption allow casinos to operate with little oversight or responsibility to report suspicious transactions. Before the COVID-19 pandemic began, officials in those countries wooed Chinese casino operators in an effort to attract foreign direct investment. Criminal bosses, facing a crackdown in China and sanctions imposed by the U.S., began investing in casinos and cutting deals to run their own special economic zones in Myanmar and elsewhere where they could operate unfettered.

When the pandemic struck in 2020, travel restrictions emptied newly built casinos, hotels and offices of workers and visitors across the region. Criminal syndicates repurposed the facilities to house online fraud operations and turned to human smugglers to staff them up. (For example, when Philippine authorities raided several online gambling operators between May and August, they discovered more than 4,400 laborers, most of them human trafficking victims forced to perpetrate online fraud.)

Online casinos can be easily used for money laundering: They often accept cryptocurrency deposits that can be converted to virtual chips and placed in bets or cashed out in currency, making them seem like proceeds of legitimate gambling. That method of money laundering is becoming increasingly common in Southeast Asia.

Physical casinos have their own attractions for money laundering. They have become a draw for a parallel industry of junket operators, who organize gambling trips for high-rollers. Those junkets also attract organized criminal groups that need to move money across borders and do so using junkets’ gambling accounts, according to recent prosecutions by Chinese authorities. Last year, 36 individuals connected to Suncity Group, once one of the biggest junket operators in the world, were convicted in China of facilitating about $160 million in illegal cross-border payments and transactions. The company’s ex-CEO, Alvin Chau, is in jail for running a criminal syndicate and other charges.

In northeast Myanmar, Fully Light Group has emerged as a “multi-billion-dollar business conglomerate and a key player” in casinos and illegal online gambling, according to research by Jason Tower, Myanmar country director for the United States Institute of Peace. “These are not normal casinos in any way,” Tower said, because they’re located in what he calls “criminal enclaves” that are more under the control of organized crime than any government authority. For instance, Tower found hundreds of criminal convictions by Chinese courts related to illegal casinos, fraud, kidnapping, drugs and weapons charges in the Kokang Special Administrative Zone, near Myanmar’s border with China, where Fully Light is based. In its review, UNODC found Kokang casinos — both those owned by Fully Light and by others — also played a major role in money laundering. They operate Telegram channels that openly advertise money laundering services, including some that link back to official Fully Light channels and offer the company’s guarantee to cross-border exchanges of cryptocurrencies. Some Fully Light-affiliated Telegram channels include solicitations to participate in what are known as money mule “motorcades” that move funds through multiple cryptocurrency wallets or bank accounts.

Billions of dollars more are likely flowing into the region, thanks to online scams that show no signs of abating. Nick Smart of the cryptocurrency analytics firm Crystal Blockchain has been tracing the flows of crypto funds deposited into online platforms that are set up to look like investing sites in order to fleece victims. Following the money trail from just one such website, which he suspects to be linked to criminal organizations in Myanmar, led him to a wallet that also pooled funds from 14 other known crypto scams. The wallet received about $44 million in various cryptocurrencies between December and July, when it ceased activity. With thousands of such websites popping up every day, victims’ losses are easily “in the billions,” said Smart, the director of blockchain intelligence at Crystal.

The global cybercrime spree has prompted countries across the region to take a bolder tack. In June, Thailand cut off electricity to two cyberfraud hot spots across its border with Myanmar (with disappointing results). More recently, Thai officials shut down six illegal cellular towers suspected of providing internet service to scam compounds in Myanmar. Chinese authorities have also arrested thousands of their own citizens in dramatic operations that included a humiliating perp walk of hundreds of suspected cybercriminals across a border crossing from Myanmar to China’s southern Yunnan Province on Sept. 6.

On Sept. 26, UNODC unveiled an agreement with China and the 10-member Association of Southeast Asian Nations to jointly combat organized crime and human trafficking linked with casinos and scams. An action plan accompanying the agreement calls on the countries to “make anti-money laundering and wider anti-corruption efforts a higher priority.”

But the challenge is steep. Even as multiple countries crack down, Laos, one of the poorest nations in the region, is getting ready to allow online gambling operators to set up shop within its borders and target foreigners.

And governments need to broaden their focus. Anti-money-laundering regulations often zero in on bank cash transfers of $10,000 or more. The UNODC’s Douglas said governments will need to turn their attention to casinos and other nontraditional financial players. “Everyone’s been focusing on transactions of $10,000 going through banks and flagging suspicious transactions,” Douglas said, “and these guys are moving millions around the corner through the casino, laughing at the system.”