ProPublica

by Duaa Eldeib

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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

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.

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

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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

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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.

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

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 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

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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

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

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.”

by Richard A. Webster, Verite News

This article was produced for Verite News by Richard A. Webster, who covered Jefferson Parish as part of ProPublica’s Local Reporting Network in 2021-22. Sign up for Dispatches to get stories like this one as soon as they are published.

In September, the Louisiana Supreme Court issued a ruling that appeared to be a major blow to criminal justice reformers seeking to shrink the state’s bloated prison population.

The 4-3 ruling struck down a law that empowered prosecutors to revisit and reduce excessive sentences through post-conviction plea agreements with defense attorneys. The law, which passed the state Legislature unanimously in 2021 and had the backing of the Louisiana District Attorneys Association, was meant to create a formal process to release prisoners serving decadeslong sentences, in many cases for relatively minor crimes, handed down under the state’s habitual offender, or “three strikes,” law.

Verite News and ProPublica recently featured the story of Markus Lanieux, who might have been helped by that law. Lanieux was convicted in 2009 of aggravated flight from an officer, a crime that typically carried a two-year sentence. But two previous drug felonies allowed the Jefferson Parish district attorney to try Lanieux as a habitual offender, which resulted in a sentence of life without parole. If Lanieux had been originally convicted under current habitual offender sentencing laws, the most he could have gotten was four years.

The Supreme Court’s ruling came as the result of a legal challenge filed last year by Louisiana’s conservative attorney general, Jeff Landry, who claimed the law encroached on and usurped the exclusive power of the governor to grant clemency or pardons. Landry intervened in the case of William Lee, whose life sentence had been reduced using the now-overturned law.

His legal challenge was seen as part of a growing backlash across the country against prosecutors who have pushed to end mass incarceration, and it caused many district attorneys in Louisiana to temporarily drop negotiations to reduce excessive sentences while the case was pending.

Immediately after the court announced its decision, Landry, who is running for governor on a tough-on-crime platform, hailed it as a victory for public safety.

“This unconstitutional legislation resulted in some rapists and murderers receiving ‘get out of jail free’ cards,” Landry said. “That recklessness ends now.”

Louisiana Attorney General Jeff Landry (Valerie Plesch/Bloomberg via Getty Images)

In a dissenting opinion, state Supreme Court Chief Justice John Weimer criticized Landry’s challenge and warned that the majority’s decision could “have the disastrous effect of undermining, and further limiting, the post-conviction relief procedure that has operated to correct the evils of the past.”

“The post-conviction legislation at issue here was unanimously enacted by the legislature, the people’s representatives, and signed into law by the governor,” Weimer wrote. “Its obvious purpose is to insure justice is done and to act as a counter balance or check on the renegade practices and prejudices of the past.”

News of the ruling quickly spread throughout the state’s prisons, said attorney Nick Trenticosta, who argued on behalf of the law before the Supreme Court and visited several inmates at the Elayn Hunt Correctional Center in St. Gabriel the following week.

“It’s on every prisoner’s mind,” he said. “My clients are now in distress.”

“It’s Not Fine, but It Will Be OK”

Trenticosta, however, was in the prison to tell them not to worry, that far from dealing a death blow to post-conviction resentencing efforts, the attorney general might have inadvertently given them new life.

In their decision, the justices said the new law was unconstitutional because it didn’t require prosecutors or judges to identify a specific legal problem with a prisoner’s sentence before granting relief. The ability to adjust a sentence without a specific legal basis, they said, amounted to an “act of grace,” like a pardon, which is considered the domain of the governor.

If the decision had stopped there, it could have been extremely damaging, Trenticosta said. But the justices went on to uphold the “absolute discretion” of prosecutors to provide such post-conviction relief, emphasizing it was the duty of prosecutors to “see that no innocent man suffers.”

According to Trenticosta, the decision affirmed, for the first time explicitly, the right of prosecutors and defense attorneys to cooperatively reach post-conviction deals. Three other defense attorneys with extensive experience in post-conviction deals generally agreed with Trenticosta’s analysis of the ruling’s language, though one of them was concerned about its real-world consequences.

Before the passage of the 2021 reform law, it was common practice for defense attorneys and prosecutors to meet informally to discuss the reduction of someone’s sentence. If both sides came to an agreement, they would take the plea deal to a judge to authorize, which avoided costly and timely litigation. There wasn’t, however, a court- or Legislature-approved structure to this process, which caused concern among some judges, Colin Reingold with a New Orleans-based criminal justice reform group called the Promise of Justice Initiative and three other defense attorneys told Verite News.

While one court where these deals happened frequently might have been comfortable authorizing them, others in places where such deals were rare might have balked. This resulted in an unequal administration of justice across the state, said the defense attorneys.

In its ruling, the court spelled out the eight grounds on which district attorneys could reduce someone’s sentence through post-conviction plea agreements. Some of those are fairly narrow, including whether the sentence amounted to double jeopardy or the requirement that DNA testing provides “clear and convincing evidence” of innocence. Others are more general and create a wider lane through which an attorney could argue for someone’s freedom, such as proof that “the conviction was obtained in violation of the constitution of the United States or the state of Louisiana.”

Importantly, the justices added, when defense attorneys assert one of those grounds in seeking a sentence reduction, prosecutors have no obligation to demand evidence.

“If a defendant seeks post-conviction relief pursuant to one of these grounds, a district attorney is not required by this decision to oppose the application.”

Jee Park, executive director of the Innocence Project New Orleans, said she worries that the ruling could create obstacles to negotiating lesser terms, possibly driving judges to demand more evidence than previously required to prove a reduction in sentence is legally necessary.

But she agreed that it wasn’t the end of post-conviction relief. “It’s not fine, but it will be OK,” Park said. “There are definitely still claims available to attack unjust and excessive sentences.”

For people like Lanieux, this comes as welcome news. Lanieux’s attorney, Amy Myers, was in negotiations with the Jefferson Parish district attorney to reduce his sentence under the now-overturned law when Landry filed his challenge. The district attorney, like many prosecutors across the state, temporarily halted those negotiations pending a decision.

Amy Myers (Kathleen Flynn, special to ProPublic and Verite News)

Myers said the ruling reaffirmed arguments she had previously been making: that Lanieux’s sentence is unconstitutional because he had an ineffective lawyer, and that his sentence is cruel and unusual. Both are included in the eight grounds listed by the court.

“Markus has always had good legal issues,” Myers said. “If we have a district attorney who is willing to consider the merits of those legal issues, we can resolve Markus’ case.”

In an emailed statement, the Jefferson Parish District Attorney’s Office, which prosecuted Lanieux, said it was “not inclined to further comment as to Mr. Lanieux’s case at this time.”

During his 14 years of incarceration, the Iberville Parish native lost his mother in 2020 to COVID-19 and his sister last year to unknown causes. And on Sept. 7, the day before the news organizations published a story on his life sentence, Lanieux’s son was found dead in his cell at the Raymond Laborde Correctional Center in Cottonport. Evidence relating to his death was inadvertently given to a funeral home, Verite News reported.

Markus Lanieux mourns with family members at the viewing of Markus Lanieux Jr., who died in prison. (Kathleen Flynn, special to ProPublic and Verite News)

Lee, the prisoner whose case was the subject of Landry’s challenge, also maintains hope following the court’s decision, said his attorney, Trenticosta. When the Supreme Court ruled in the attorney general’s favor, St. Tammany Parish prosecutors reinstated Lee’s life sentence. Warren Montgomery, the district attorney for St. Tammany and Washington parishes, was not available to comment because of medical reasons, according to his office.

Despite the setback, Trenticosta expects to restart negotiations with the district attorney under the parameters established by the court. He said Lee’s case could fit under a number of them, including ineffective counsel, the unconstitutional withholding of evidence or a claim of innocence based on new evidence.

“Warren Montgomery believed that the new evidence shook the integrity of the conviction, and I don’t think anything has changed,” he said. “I fully predict that Mr. Lee will come home in the near future.”

by Anna Maria Barry-Jester

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Ever since he was a medical student, Dr. Neil Martinson has confronted the horrors of tuberculosis, the world’s oldest and deadliest pandemic. For more than 30 years, patients have streamed into the South African clinics where he has worked — migrant workers, malnourished children and pregnant women with HIV — coughing up blood. Some were so emaciated, he could see their ribs. They’d breathed in the contagious bacteria from a cough on a crowded bus or in the homes of loved ones who didn’t know they had TB. Once infected, their best option was to spend months swallowing pills that often carried terrible side effects. Many died.

So, when Martinson joined a call in April 2018, he was anxious for the verdict about a tuberculosis vaccine he’d helped test on hundreds of people.

The results blew him away: The shot prevented over half of those infected from getting sick; it was the biggest TB vaccine breakthrough in a century. He hung up, excited, and waited for the next step, a trial that would determine whether the shot was safe and effective enough to sell.

Weeks passed. Then months.

More than five years after the call, he’s still waiting, because the company that owns the vaccine decided to prioritize far more lucrative business.

Pharmaceutical giant GSK pulled back on its global public health work and leaned into serving the world’s most-profitable market, the United States, which CEO Emma Walmsley recently called its “top priority.” As the London-based company turned away from its vaccine for TB, a disease that kills 1.6 million mostly poor people each year, it went all in on a vaccine against shingles, a viral infection that comes with a painful rash. It afflicts mostly older people who, in the U.S., are largely covered by government insurance.

Importantly, the shingles vaccine shared a key ingredient with the TB shot, a component that enhanced the effectiveness of both but was in limited supply.

From a business standpoint, GSK’s decision made sense. Shingrix would become what the company calls a “crown jewel,” raking in more than $14 billion since 2018.

But the ability of a corporation to allow a potentially lifesaving vaccine to languish lays bare the distressing reality of public health vaccine creation. With limited resources, governments have long seen no other option but to team with Big Pharma to develop vaccines for global scourges. But after the governments pump taxpayer money and resources into the efforts, the companies get control of the products, locking up ownership and prioritizing their own gain.

That’s what GSK did with the TB vaccine. Decades ago, the U.S. Army brought in GSK to work on a malaria vaccine and helped develop the ingredient that would prove game-changing for the company. It was an adjuvant, a substance that primed the body’s immune system to successfully respond to a vaccine for malaria — and, the company would come to learn, a variety of other ailments.

GSK patented the adjuvant and took control of the supply of the ingredients in it. It accepted government and nonprofit funding to develop a TB vaccine using the adjuvant. But even though it isn’t carrying the vaccine to the finish line, it isn’t letting go of it entirely either, keeping a tight grip on that valuable ingredient.

As TB continued to rage around the globe, it took nearly two years for GSK to finalize an agreement with the nonprofit Bill & Melinda Gates Medical Research Institute, or Gates MRI, to continue to develop the vaccine. While the Gates organization agreed to pay to keep up the research, GSK reserved the right to sell the shot in wealthy countries.

The trial that will determine whether the vaccine is approved won’t begin until 2024, and isn’t expected to end until at least 2028. “We just can’t operate like that for a disease that is this urgent,” said Thomas Scriba, a South African scientist and TB expert who also worked on the study.

GSK pushes back against the premise that the company delayed the development of the TB vaccine and says it remains dedicated to researching diseases that plague underserved communities. “Any suggestion that our commitment to continued investment in global health has reduced, is fundamentally untrue,” Dr. Thomas Breuer, the company’s chief global health officer, wrote in a statement.

The company told ProPublica that it cannot do everything, and it now sees its role in global health as doing early development of products and then handing off the final clinical trials and manufacturing to others. It also said that a vaccine for TB is radically different from the company’s other vaccines because it can’t be sold at scale in wealthy countries.

We don’t ask for a fair deal from our pharma partners. We let them set the terms, but we don’t ask them to pick up the check. And I just find it frankly a little humiliating.”

—Mike Frick, a director of the tuberculosis program at Treatment Action Group

Though a good TB vaccine would be used by tens of millions of people, it has, in the parlance of industry, “no market,” because those who buy it are mostly nonprofits and countries that can’t afford to spend much. It’s not that a TB vaccine couldn’t be profitable. It’s that it would never be as profitable as a product like the shingles vaccine that can be sold in the U.S. or Western Europe.

Experts say the story of GSK’s TB vaccine, and its roller coaster of hope and disappointment, highlights a broken system, which has for too long prioritized the needs of corporations over those of the sick and poor.

“We don’t ask for a fair deal from our pharma partners,” said Mike Frick, a director of the tuberculosis program at Treatment Action Group and a global expert on the TB vaccine pipeline. “We let them set the terms, but we don’t ask them to pick up the check. And I just find it frankly a little humiliating.”

Steven Reed, a co-inventor of the TB vaccine, brought his idea to GSK decades ago, believing that working with a pharmaceutical giant was essential to getting the shots to people who desperately needed them. He’s disillusioned that this hasn’t happened and now says that Big Pharma is not the path to saving lives with vaccines in much of the world. “You get a big company to take it forward? Bullshit,” he said. “That model is gone. It’s failed. It’s dead. We have to create a new one.”

Gaining Control

In the early 1980s, the U.S. Army was desperate for a way to keep troops safe from the parasite that causes malaria. Military scientists had some promising ideas but wanted to find a company that could help them develop and manufacture the antigen, the piece of a vaccine that triggers an immune response. They called on SmithKline Beckman, now part of GSK, which had a plant outside of Philadelphia committed to the exact type of antigen technology they were researching.

For the company’s part, working with the Army gave it access to new science and, importantly, the ability to conduct specialized research. The Army had laboratories for animal testing and ran clinical trial sites around the world. It’s also generally easier to get experimental products through regulatory approval when working with the government, and Army scientists were willing to be infected with malaria and run the first tests of the vaccine on themselves.

Col. Carl Alving, then an investigator at the Walter Reed Army Institute of Research, said he was the first person known to be injected with an ingredient called MPL, an adjuvant added to the vaccine. Today, we know that adjuvants are key to many modern vaccines. But at the time, only one adjuvant, alum, had ever been approved for use. Alving published promising results, showing that MPL boosted the shot’s success in the body.

Company scientists took note and began adding MPL to other ingredients. If one adjuvant was good, maybe two adjuvants together, stimulating different parts of the immune system, might be even better.

It was an exciting development, bringing the multiple adjuvants together, Alving said in an interview. But then he learned that the company scientists had filed a patent for the combinations in Europe, which put limits on what he and his colleagues could do with MPL. “The Army felt perhaps a little frustrated by that because we had introduced Glaxo to the field.”

Still, the Army wanted the malaria vaccine. Military personnel started comparing the adjuvant combinations on rhesus monkeys at an Army facility in Thailand and ran clinical trials that tested the most promising pairs in humans and devised dosing strategies.

The Army found that one of the combinations came out on top: MPL and an extract from the bark of a tree that grows in Chile. The bark extract was already used in veterinary vaccines, but a scientist at one of the world’s first biotech companies had recently discovered you could purify it into a material that makes it safe enough for use in humans.

Alving said that at the time, he didn’t patent the work he and his colleagues were doing or demand an exclusive license for MPL. “It’s a question of the Army being the Army, which is not a company,” Alving said. (This was actually the second time the government failed to secure its rights over MPL. Decades earlier, the ingredient was discovered and formulated by scientists working for the Department of Veterans Affairs and a National Institutes of Health lab in Montana. One of the scientists, frustrated that his bosses in Bethesda, Maryland, wouldn’t let him test the product in humans, quit and formed a company, taking the research with him. Though his company initially said it thought MPL was in the public domain and couldn’t be patented, he did manage to patent it.)

Of those of you who think this is just philanthropy, it is not.”

—Luc Debruyne, former president of vaccines at GSK

Experts say drug development in the U.S. is littered with such missed opportunities, which allow private companies to seize control of and profit off work done by publicly funded researchers. Governments, they say, need to be more aggressive about keeping such work in the public domain. Alving has since done just that, recently receiving his 30th patent owned by the military.

It’s an open secret in the pharmaceutical world that companies participate in global health research because it’s where they get to try out new technologies that can be applied to other, more lucrative diseases.

At an investor presentation in 2016, a GSK executive used the malaria vaccine example to explain the benefit of such work. “Of those of you who think this is just philanthropy, it is not,” Luc Debruyne, then president of vaccines at GSK, told the group. He explained that it was through the malaria work that the company invented the adjuvant that is now in its blockbuster shingles vaccine. And, he explained, vaccines are high-volume products that make a steady stream of money over time. “So doing good business, innovating and doing well for the world absolutely can get married.”

As the Army’s research on the combination of MPL and the bark extract evolved — and its market potential became clear — GSK moved to vacuum up the companies that owned the building blocks to the adjuvant.

In 2005, it bought the company that owned the rights to MPL for $300 million. In 2012, it struck a deal for the rights to a lion’s share of the supply of the Chilean tree bark extract.

The company was now in full control of the adjuvant.

Picking a Winner

GSK eagerly began to test its new adjuvant on a number of diseases — hepatitis, Lyme, HIV, influenza.

Steven Reed, a microbiologist and immunologist, had come to the company in 1994 with an idea for a tuberculosis vaccine. An estimated 2 billion people are infected with TB globally, but it’s mainly those with weakened immune systems who fall ill. A century-old vaccine called BCG protects young children, but immunity wanes over time, and that vaccine does little to shield people from the most common type of infection in the lungs.

Reed had just the background and resources to attempt a breakthrough: An adjunct professor at Cornell University’s medical school, he also ran a nonprofit research organization that worked on infectious diseases and had co-founded a biotech company to create and market products.

He and his colleagues were building a library of the proteins that make up the mycobacterium that causes TB. He also had access to a blood bank in Brazil, where TB was more prevalent, that he could screen the proteins against to determine which generated an immune response that prevented people from getting sick.

At the time Reed pitched the vaccine, the company’s decision over whether to take him up was made by researchers, said Michel De Wilde, a former vice president of research and development at the company that partnered with Reed and later became part of GSK. Today, across the industry, finance units play a much stronger role in deciding what a company works on, he said.

GSK signed on, asking Reed to add the company’s promising new adjuvant to his idea for a TB vaccine.

Reed and his colleagues used more than $2 million in federal money to conduct trials from 1995 to 2005. GSK also invested, but NIH money and resources were the key, Reed said. As the vaccine progressed into testing, the Bill & Melinda Gates Foundation pitched in, as did the governments of the United Kingdom, the Netherlands and Australia, among others.

Amid all that, in 2003, GSK started testing the adjuvant in its shingles vaccine, according to annual reports, but at a much faster speed. With TB, it performed a small proof-of-concept study to justify moving to a larger one. There’s no evidence it did so with shingles. By 2010, GSK’s shingles vaccine was in final trials; in 2017, the FDA approved it for use.

To employees and industry insiders, GSK was making its priorities clear. The company built a vaccine research facility in Rockville, Maryland, to be closer to the NIH and the Food and Drug Administration; at the same time, it was retreating from TB and other global public health projects, according to former employees of the vaccine division.

All the while, the adjuvant was limited. GSK struggled to ramp up production of MPL, according to former employees there; it relies on a cumbersome manufacturing process. And it wasn’t clear whether there was sufficient supply of the Chilean tree that is essential to both vaccines.

After researchers learned of the TB vaccine’s successful proof-of-concept results in 2018, GSK said nothing about what was next.

“You would have thought people would have said: ‘Oh shit, this is doable. Let’s double down, let’s quadruple down,’” said Dr. Tom Evans, former president and CEO of Aeras, a nonprofit that led and paid for half of the proof-of-concept study. “But that didn’t happen.”

Scriba, who was involved in the study in South Africa, said he never imagined that GSK wouldn’t continue the research. “To be honest it never occurred to us that they wouldn’t. The people we worked with at GSK were the TB team. They were passionate about TB,” Scriba said. “It’s extremely frustrating.”

But Reed said that when the shingles vaccine was approved, he had a gut feeling that GSK would abandon the tuberculosis work.

“The company that dropped it used similar technology to make billions of dollars on shingles, which doesn’t kill anyone,” Reed said.

Those in the field grew so concerned about the fate of the TB vaccine that the World Health Organization convened a series of meetings in 2019.

Breuer, then chief medical officer for GSK’s vaccine division, explained that the pharmaceutical giant was willing to hand off the vaccine to an organization or company that would cover the cost of future development, licensing, manufacturing and liability. If the next trial went well, they could sell the vaccine in the “developing world,” with GSK retaining the sales rights in wealthier countries.

GSK would, however, retain control of the adjuvant, Breuer said. And the company only had enough for its other vaccines, so whoever took over the TB vaccine’s development would need to pay GSK to ramp up production, which Breuer estimated would cost around $200 million.

To be honest it never occurred to us that they wouldn’t [continue the research]. The people we worked with at GSK were the TB team. They were passionate about TB.”

—Thomas Scriba, a South African scientist and TB expert

Dr. Julio Croda was director of communicable diseases for Brazil at the time and attended the meeting. He said he was authorized to spend significant government funds on a tuberculosis vaccine trial but needed assurances that GSK would transfer technology and intellectual property if governments paid for its development. “But in the end of the meeting, we didn’t have an agreement,” he said.

Dr. Glenda Gray, a leading HIV vaccine expert who attended the meeting on behalf of South Africa, said she wasn’t able to get a straight answer about the availability of the adjuvant.

The year after the WHO meeting, after what a Gates representative described as “a lot of negotiation,” GSK licensed the vaccine to Gates MRI, a nonprofit created by the Gates Foundation to develop drugs and vaccines for global health issues that for-profit companies won’t tackle.

GSK told ProPublica that it did not receive upfront fees or royalties as part of the arrangement, but that Gates MRI paid it a small incentive to invest in the company’s global health endeavors. GSK and Gates MRI declined to comment on the amount.

Gates MRI tax documents show a payment designated as “royalties, license fees, and similar amounts that allow the organization to use intellectual property such as patents and copyrights” the year the agreement was finalized. Among available tax documents, that is the only year the organization has made a payment in that category.

The amount: $10 million.

An Uncertain Future

In June of this year, the Gates Foundation and the Wellcome Trust announced they were pledging $550 million to fund the phase 3 trial that will finally show whether the vaccine works. They’ve selected trial locations and are currently testing it on a smaller subset of patients, those with HIV.

Jeremy Farrar, chief scientist at the WHO, said he’s more optimistic than he’s ever been in his career that we’ll have a new TB vaccine this decade.

Gates MRI and GSK declined to say who had the rights to sell the vaccine in which countries, but Gates MRI said it will “work with partners to ensure the vaccine is accessible for people living in high TB-burden lower- and middle-income countries,” and GSK acknowledged that its rights extend to South America and Eastern Europe, two regions with significant pockets of TB.

As expected, Gates MRI will be reliant on GSK to supply the adjuvant, which concerns vaccine hopefuls because of the lack of transparency surrounding its availability. One of the key ingredients, the bark extract, comes from a tree whose harvest and export has been controlled by the Chilean government since the 1970s because of overexploitation. A megadrought and forest fires continue to threaten native forests today. The main exporter of the bark says it has resolved previous bottlenecks, and GSK said it is working on a synthetic version as part of its long-term plan.

In response to questions about why it retained control of the adjuvant, GSK said it was complicated to make, would not be economical to produce in more than one place, and was a very important component in many of the company’s vaccines, so it wasn’t willing to share the know-how.

The adjuvant is only growing in value to the company, as it adds yet another lucrative vaccine to its portfolio that requires it. In May, the FDA approved a GSK vaccine for the respiratory virus known as RSV. Analysts project that the shot will bring in $4 billion annually at its peak. GSK continues to study the adjuvant in additional vaccines.

GSK strongly insists that it has enough of the adjuvant to fulfill its forecasted needs for the RSV, shingles, malaria and TB vaccines through 2035.

The company and Gates MRI said their agreement includes enough adjuvant for research and the initial supply of the TB vaccine, if it is approved. The organizations declined, however, to specify how many people could be vaccinated. GSK also said it was willing to supply more adjuvant after that, but further negotiations would be necessary and Gates MRI would likely need to pay to increase adjuvant manufacturing capacity. For its part, Gates MRI said it is evaluating several strategies to ensure longer term supply.

Several experts said that Gates MRI should test other adjuvants with the vaccine’s antigen. That includes Farrar, who said it would be “very wise” to start looking for a new adjuvant. He is one of the few people who has seen the agreement between Gates MRI and GSK as a result of his previous role as director of the Wellcome Trust. Farrar is now helping to lead a new TB Vaccine Accelerator Council at the WHO and said he believes one of the group’s roles would be to find solutions to any future problems with the adjuvant.

Gates MRI declined to answer when asked if it was considering testing other adjuvants with the vaccine’s antigen. GSK, along with several other scientists and regulators that ProPublica spoke with, expressed that using a new adjuvant would require redoing all of the long and expensive clinical trials.

U.S. government officials, meanwhile, are working to identify adjuvants that aren’t already tied up by major pharmaceutical companies.

For a corporation, the primary concern is “what is this adjuvant doing for my bottom line,” said Wolfgang Leitner, who began his career working at Walter Reed Army Institute of Research on the malaria vaccine as a consultant for GSK. Now the chief of the innate immunity section at the National Institute of Allergy and Infectious Diseases, his job is to encourage the development of new adjuvants and to make sure that researchers have access to ones that aren’t tightly controlled by individual companies.

The WHO has also been helping to build a global network of vaccine manufacturers who can develop and supply vaccines to less wealthy countries outside of the shadow of Big Pharma; it is using a technology debuted during the COVID-19 pandemic called mRNA, which deploys snippets of genetic code to trigger an immune response. Reed, an inventor of GSK’s TB vaccine, co-founded the company at the center of that effort, Afrigen, after growing concerned about the fate of the vaccine he made for GSK.

Reed helped create a second TB vaccine, which Afrigen has the rights to manufacture for sale in Africa. But that vaccine has yet to start a proof-of-concept trial.

Over the past five years, an average of just $120 million a year has been spent on all TB vaccine research globally, including money from governments, pharmaceutical companies and philanthropic organizations, according to annual surveys conducted by the Treatment Action Group. For perspective, the U.S. alone spent more than $2 billion developing COVID-19 vaccines from 2020 to 2022. At a special UN meeting on tuberculosis in 2018, the nations of the world pledged to ensure $3 billion was spent on TB vaccine research and development over the next five years. Just 20% of that was handed out.

While that mRNA hub holds promise, it will be years before an mRNA TB vaccine enters a proof-of-concept trial, according to people involved. The pharmaceutical companies that made successful COVID-19 vaccines have refused to share the technology and manufacturing techniques that make mRNA vaccines work. One company, Moderna, has said it won’t enforce its patents on mRNA vaccines Afrigen creates for COVID-19, but it’s not clear what it’ll do if Afrigen applies those techniques to a disease like TB. (Paul Sagan, board chairman of ProPublica, is a member of Moderna’s board.)

To date, the GSK tuberculosis vaccine — which does not use mRNA technology — is the only one that meets a set of characteristics the WHO believes are necessary for a viable TB vaccine.

The phase 3 trial is set to begin early next year. In the time between the two trials, approximately 9 million people will have died from TB.

Mollie Simon contributed research.

by Audrey Dutton

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.

When the U.S. Supreme Court last year overturned Roe v. Wade, it greenlighted the kind of near-universal abortion restrictions that Idaho lawmakers had spent the previous two years crafting. Gov. Brad Little said the state should turn to helping women who might otherwise have terminated pregnancies.

“We absolutely must come together like never before to support women and teens facing unexpected or unwanted pregnancies,” said Little, a Republican who supports the abortion ban. About 1,700 to 2,000 people a year in Idaho had abortions before the court ruling. “Families, churches, charities, and local and state government must stand ready to lift them up and help them and their families with access to adoption services, health care, financial and food assistance, counseling and treatment, and family planning.”

But since the June 2022 decision, Idaho has failed to deliver — even as other conservative states with abortion bans took steps to enhance their safety nets for families during pregnancy and after birth.

Idaho legislators disbanded a state committee that investigated the root causes of maternal deaths, making it the only state in the nation with no such mortality review.

They allowed two bills to die that would have put Idaho on the same track as nearly every other state with abortion restrictions — including Florida, Kentucky and Texas — by extending postpartum Medicaid coverage to 12 months. Idaho’s Medicaid coverage ends two months after birth, the minimum under federal law.

They turned down $36 million in federal grants to support child care this summer, while other states with new abortion restrictions — Alabama, Louisiana and Missouri among them — made investments in early childhood education and day care. Idaho lawmakers at the time attributed the decision to a pending audit of a different batch of grants.

Democrats generally support these kinds of measures, but Idaho Republicans dominate the state capitol and therefore control which bills move forward.

Rep. Brent Crane, a longtime Republican leader who chairs the House State Affairs Committee, said GOP lawmakers last year had hoped to put forward bills to improve health care and support for kids and families after the Supreme Court struck down federal protections for abortion rights. They instead got bogged down in debate over exceptions to the abortion ban.

“Idaho has some work to do,” Crane said. “Be patient with us.”

The need is urgent, according to Emily Allen, policy associate for the nonprofit Idaho Voices for Children. The state, she said, needs health care funding and other support in place to adjust to life after the abortion ban.

“Things have changed,” Allen said. “We can either bury our head in the sand, or we can respond with good policy that is very family-centric.”

But Blaine Conzatti, president of the Idaho Family Policy Center and a leading anti-abortion lobbyist, is not bothered by the lack of government support. Pregnancies, births and child care are not the purview of the government, he said, but of families, communities, charities and, most of all, churches.

“The Bible is clear, and the history of Christendom broadly is clear, that it’s the church’s responsibility to meet the needs of the poor and to ensure that people have the services that they need to live flourishing lives,” Conzatti said.

No action set Idaho apart from other abortion-ban states more than when the Idaho Legislature allowed its Maternal Mortality Review Committee to die this year. The committee had been granted unique powers to review private health care and other records of women who died during or within a year after pregnancy and draw conclusions about the root causes of those deaths.

Its budget of $10,000 a year came only from federal funds, so keeping the committee going seemed pro forma. Every single state, New York and Texas alike, had put one in place. But in Idaho, a lobbyist for an ultraconservative political nonprofit stood up and spoke against it at a hearing.

Fred Birnbaum, legislative affairs director of Idaho Freedom Foundation, said studying the causes of Idaho’s roughly 10 to 15 preventable maternal deaths each year risked inviting a push for more government support to help keep people from dying. And government support was anathema to his group.

“You know the old saying, ‘All roads lead to Rome,’” said Birnbaum, who testified against the committee’s creation on similar grounds in 2019. “Well, all government-created committees lead to the call for more government spending.”

Birnbaum’s assessment was partly correct. Idaho’s maternal mortality committee had made recommendations that could increase public spending, such as extending Medicaid coverage postpartum, expanding access to naloxone to prevent death from opioid overdose and providing better housing and child care support. But of the 52 recommendations in the committee’s final report, most called for no new government spending.

The role of such committees has not been so controversial in other Republican-led states.

The Texas Maternal Mortality and Morbidity Review Committee, for example, has been around for about a decade and is now “part of the entire effort” to reduce tragic outcomes from pregnancy and birth, said Chris Van Deusen, director of media relations for the Texas Department of State Health Services.

The Texas committee’s findings in 2018 that patients had bled to death in childbirth helped push the state to adopt recommendations and protocols for hospitals to train their employees to measure blood loss and to educate people on what is abnormal bleeding. Birth-related hemorrhage deaths started to fall the following year, Van Deusen said.

He said the committee has generally had the support of Texas lawmakers, who voted last year to adopt one of its recommendations and extend postpartum Medicaid coverage to 12 months.

Advocates for the creation of Idaho’s committee in 2019 pointed out how other states had helped reduce maternal death rates: seat belt laws in Nevada; substance use disorder treatment in Michigan; urgent messages to doctors and hospitals in Florida.

Lucky Bourn, the longtime Republican coroner of Minidoka County and a member of the maternal mortality committee, said its demise means Idaho will have no window into maternal deaths in the wake of its abortion ban, because the committee’s final report used data from 2021.

“I was very disappointed in the Legislature when they did not continue the funding of it,” Bourn said. “The thought that comes to my mind is, ‘With the change in the abortion laws in the state of Idaho, do you think that might have a correlation in the rise of the mortality rate of the women who don’t want to be pregnant?’”

The number of maternal deaths since the abortion ban took effect has not yet been reported. The committee believed it would have had 10 maternal deaths to evaluate from 2022 if it had continued.

ProPublica identified at least two deaths during pregnancy and childbirth that the maternal mortality committee could have evaluated. One death was from complications during childbirth in 2022, according to the woman’s obituary. The other was a murder-suicide this year that claimed the life of the pregnant mother and her toddler, according to the sheriff in the rural North Idaho county where she lived.

Little’s staff told ProPublica that he will bring forward a proposal in 2024 “to continue the work of this important committee.”

Lawmakers are also poised to consider other proposals that have previously gone nowhere. Idaho House Majority Leader Megan Blanksma, a Republican from Elmore County, said she is working on bills that would improve prenatal and postpartum health care, resume the study of maternal deaths and “support young families.”

Blanksma also said she will revive legislation to extend Medicaid coverage for postpartum care to a full year, a concept she said she dropped last session because of the ballooning cost of Medicaid.

Idaho state Rep. Megan Blanksma asks Rep. Dori Healey about the rationale for continuing the state’s Maternal Mortality Review Committee, which studied the root causes of preventable deaths during and within a year of pregnancy. Both lawmakers are Republicans. (Video screen capture from Idaho In Session)

“We are working on a full package to introduce come January,” Blanksma told ProPublica.

Conzatti, the anti-abortion lobbyist, advocates a more hands-off approach from the state.

Idaho has at least 16 “pregnancy resource centers” spread across every region of the state. Many in Idaho are Christian-oriented organizations that offer counseling, referrals and some material support like diapers. According to the American College of Obstetricians and Gynecologists, the centers’ goal back when Roe v. Wade was in effect was to persuade women to carry their pregnancies to term rather than have abortions.

Few Idaho centers offer medical care beyond pregnancy tests and “heartbeat” ultrasounds.

But those centers are where Conzatti said people who have unplanned pregnancies should now look to for help. They embody his vision of a world before legalized abortion and before Medicaid got involved in the lives of poor families.

Crane, the Republican House leader, wouldn’t rule out state-funded support for pregnancy centers if there’s political will for it among lawmakers.

“Every option is on the table,” he said.

by Brandi Kellam, Virginia Center for Investigative Journalism at WHRO, and Gabriel Sandoval, ProPublica

This article was produced for ProPublica’s Local Reporting Network in partnership with the Virginia Center for Investigative Journalism. Sign up for Dispatches to get stories like this one as soon as they are published. This story was co-published with Virginia Center for Investigative Journalism at WHRO and The Chronicle of Higher Education.

This past May, we were working on a story about how the establishment and expansion of Virginia’s Christopher Newport University dismantled a vibrant Black neighborhood. When we asked university officials for archival material, we encountered something we hadn’t heard about before. We learned that in Virginia, the papers of state university presidents are largely exempt from public records laws.

We asked for several boxes containing some of the papers of Paul Trible, the university’s president from 1996 to 2022, which pertained to real estate acquisitions, board meetings and development projects. Since the city of Newport News seized the core of the Black community for a new campus in the early 1960s, Christopher Newport has bought almost all of the remaining homes there.

We hoped the records would show how Trible’s administration obtained properties in the Shoe Lane area abutting the campus and reveal any internal debates about its actions. We wanted to know whether the university encouraged or pressured homeowners to sell and whether it used or threatened to use eminent domain, the government’s right to forcibly purchase private property for public use.

As a public institution, Christopher Newport is subject to the state public records law. But the university would not let us see the vast majority of Trible’s documents. It cited a 49-year-old amendment, section 2.2-3705.7 of the Virginia code, exempting the “working papers and correspondence” of “the president or other chief executive officer of any public institution of higher education in the Commonwealth” from disclosure. Since Trible, now a Christopher Newport distinguished professor, was unavailable for an interview, the lack of access to his communications left unanswered questions, such as why the university’s governing board approved taking properties by eminent domain in 2005 after he publicly said there was no need to do so.

Virginia may have the broadest and most explicit exemption for college presidents’ papers in the country, based on a guide from the Reporters Committee for Freedom of the Press. While university presidents have said that public scrutiny would hamper frank dialogue and “reflective” decision making, the exemption renders their perspectives — and the schools’ inner workings — less visible to the media and Virginia taxpayers. Legislative proposals to repeal or narrow it have failed in the face of opposition from the higher education lobby.

Virginia universities aren’t required to invoke the exemption — they can provide the information if they choose. But we were far from the first journalists to be thwarted by this provision. It came into play in 2006 when Old Dominion University rejected a request from a Virginia newspaper for an evaluation prepared for its president of a mandatory course that students had criticized. William & Mary cited the exemption in 2007 in denying requests from news outlets and alumni related to a donor’s decision to revoke $12 million in pledges, though it later reversed itself and released a sought-after email. Also, in 2022, William & Mary withheld 17 pages from a public radio reporter seeking information about “lab school design concepts.” And the University of Virginia wielded the exemption during a firestorm in 2014 over a Rolling Stone article, which was subsequently retracted, about an alleged rape on campus.

Moreover, as Christopher Newport’s denial of our request for some of Trible’s papers highlights, the amendment doesn’t say how far back the exemption goes or whether it applies to former presidents. Open records advocates said that, based on their reading of the statute, the exemption should only apply to ongoing deliberations. Nearly 30 states protect such deliberations by university officials from disclosure.

“The intention of this exemption was to provide decision-makers with some breathing room to make decisions,” said Megan Rhyne, executive director of the Virginia Coalition for Open Government, a nonprofit that presses for access to public records. “It was never intended to be a black box in which all their papers and correspondence get put into and locked away forever.”

But the Virginia Freedom of Information Advisory Council, a state agency that helps resolve public records disputes, has taken the position that the statute’s silence makes it impossible to set a time limit. “FOIA doesn’t address everything,” senior attorney Joseph Underwood said. “There are dark corners.”

In a 2004 opinion, the council’s executive director wrote that any cutoff date “would require clear language of intent from the General Assembly that the exemption no longer applies after a certain number of years after the creation of a record.”

Asked about Christopher Newport’s use of the exemption, university spokesperson Jim Hanchett said in a statement that the university “is committed to meeting its open government obligations and at all times acting in accordance with the Commonwealth of Virginia’s open record laws.”

In a Sept. 18 message to faculty and staff, Christopher Newport president Bill Kelly acknowledged that the university’s progress “has come at a human cost, and we must continue to learn about and understand our complicated history.” The city chose a site for Christopher Newport, which was then a branch of the Colleges of William and Mary system, on land “that was home to a valuable and well-established neighborhood,” Kelly wrote. “The residents of that neighborhood, most of them African Americans, lost their homes, many due to the use of eminent domain.” This “important chapter … is appropriately receiving renewed attention,” he added in an apparent reference to our Sept. 5 article.

Like Christopher Newport, Old Dominion and UVA have grown by displacing Black residents. An Old Dominion spokesperson said that it has focused on improving relations with the surrounding neighborhood and that students of color now make up the majority of its enrollment. UVA has established presidential commissions to examine its role in slavery and segregation, and has set a goal of developing 1,500 affordable units in university properties. Those schools also said that they abide by state public records law, giving similar explanations to Christopher Newport’s. William & Mary said it follows guidance from the Virginia Freedom of Information Advisory Council and gives “careful consideration” to “the documents requested and the context in which they were created and have been used.”

To be sure, several states including Pennsylvania and Delaware go even further in shielding universities, though they don’t single out presidential papers. In Pennsylvania law, four universities — Penn State, the University of Pittsburgh, Temple University and Lincoln University — are categorized as “state-related” rather than “state-affiliated,” a distinction that exempts them from disclosing most information. The University of Delaware and Delaware State University are not considered “public bodies” under Delaware law, though they receive taxpayer funding.

Enacted in 1968, Virginia public records law exempts officials such as the governor, the lieutenant governor, the attorney general, state legislators and mayors. It added university presidents to the list in 1974, even as the Watergate scandal was prompting calls for increased transparency. James T. Edmunds, a Democratic state senator and a graduate of the University of Richmond’s law school, introduced the change. It was a turnaround from a stance Edmunds had taken the previous year, when he had supported a bill to make public the actions taken by university governing boards, saying that news reporters deserved more access.

After leaving the state Senate, Edmunds served on the board of the Virginia community college system and practiced law. His career came to an abrupt halt in 1987 when he admitted to stealing more than $170,000 from clients. He served 10 months in prison and surrendered his law license, which was reinstated in 1995. Edmunds died in 2008.

It’s unclear why Edmunds proposed the presidential exemption. His widow, Harriett Edmunds, who worked as a legislative aide before they were married, said she didn’t recall. “I do know that he was interested in the community college system,” she said. “That was one of his major, major interests.”

A November 2014 Rolling Stone article indirectly fueled a debate over Virginia’s presidential exemption. The article, which concerned an alleged rape at a University of Virginia fraternity, was discredited and retracted. But news outlets, hoping to sift fact from fiction and learn how the university handled sexual misconduct cases, barraged UVA with requests for its president’s correspondence. UVA deflected them, citing the exemption. A spokesperson said the university no longer has copies of those requests.

Amid the fallout, two legislators filed proposals in 2015 to eliminate the presidential exemption. Then-delegate David Ramadan, a former member of George Mason University’s governing board, who sponsored one of the bills, told us that he “thought there were a lot of good things” university presidents “were doing that should be out in the public and shouldn’t be hidden.”

The bills died in committee, but the Virginia Freedom of Information Advisory Council took up the issue. College presidents fought back, arguing that secrecy was needed to foster candid discussions. “The removal of this exemption would hinder our ability to embrace reflective decision-making,” the Council of Presidents wrote in July 2015. “As the law currently allows, neither university presidents nor those that advise us are inhibited in communication due to fear of our preliminary discussions becoming public and thus inaccurately reported, taken out of context, viewed as final when far from it, and quite possibly politicized.” The letter did not address the exemption’s use to shield the papers of former presidents.

Among the signatories to the letter was Trible, Christopher Newport’s then-president. A former Republican politician and U.S. senator, he was Christopher Newport’s longest-serving president; its library is named for him and his wife. Ultimately, the advisory council called for tightening the exemption by limiting it to “working papers” and making available the correspondence of presidents and other officials, but the legislature didn’t adopt the recommendation.

Despite Christopher Newport’s denial of our request for Trible’s papers, our reporting continued to raise questions about his role in uprooting Black families. For example, we learned that, although university officials had vowed not to pressure residents to sell, Trible wrote to at least one homeowner, encouraging sales talks.

In July, we sent another request to Christopher Newport. We were interested in a house on Prince Drew Road, long owned by a Black family, that the university’s board had approved taking by eminent domain for a parking lot during Trible’s administration. A university spokesperson told us that its real estate foundation bought the building without resorting to eminent domain, but we wanted to learn more.

In response, the university said it had two pages of presidential correspondence about the property. It refused to give us those pages, citing the exemption. Trible again could not be reached for comment, and a university spokesperson did not respond to our request to contact him.

Louis Hansen of the Virginia Center for Investigative Journalism at WHRO contributed reporting.