ProPublica

by Mary Hudetz and Ash Ngu

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Donna Augustine was in tears as she read the letter from Harvard University that winter morning in 2013. Looking around the room inside an elementary school on Indian Island, Maine, she saw other elders and leaders from the four Wabanaki tribes were also devastated as they read that the university was denying their request to repatriate ancestral remains to their tribes.

The Wabanaki tribal nations — an alliance of the Penobscot, Passamaquoddy, Maliseet and Mi’kmaq — wanted to rebury the ancestral remains. But Harvard’s Peabody Museum of Archaeology and Ethnology said, as it had in past years, that the tribes didn’t have enough evidence to show that they could be tied, through culture or lineage, to the ancestors whose remains the museum held.

The Repatriation Project is a series investigating the return of Native American ancestral remains.

The denial felt like a rejection of Wabanaki identity for Augustine, a Mi’kmaq grandmother, who had spent years urging Harvard to release Native American remains.

“Every one of us in that room was crying,” she recalled. “We jumped through every hoop.”

The group representing the only four tribal nations in present-day Maine had furnished a deeply researched report documenting their histories in the region, even sharing closely held stories passed down within their tribes from one generation to the next that told of their ancient ties to Maine’s lakes, islands and forests.

Now they could see it hadn’t been enough for Harvard, which especially prized the remains of 43 ancestors buried for thousands of years near Maine’s Blue Hill Bay.

Complicating matters for the tribes, another museum, the similarly named but smaller Robert S. Peabody Institute of Archaeology, housed on the campus of the Phillips Academy, a Massachusetts preparatory school, held items from the same ancient burial site.

Instead of sending a letter as Harvard did, the Phillips Academy museum director, Ryan Wheeler, had asked to meet with the tribes. Seated at the table that morning, he was initially uncertain what he would do. He would later say that it became evident during the meeting that the tribes exhibited a strong connection to the ancestors they sought to claim, both from the report they had provided and their reaction to Harvard’s decision.

He recalled leaving the meeting certain he would repatriate. “There was really no question about it,” he later said.

What the Wabanaki committee and Wheeler didn’t know, however, was just how hard Harvard would push back. In the two years that followed, the director of the Harvard museum went to surprising lengths to pressure Wheeler to reverse his decision.

A ProPublica investigation this year into repatriation has shown how some of the nation’s elite museums have used their power and vast resources to delay returning ancestral remains and sacred objects under the Native American Graves Protection and Repatriation Act. By exploiting loopholes in the 1990 law, anthropologists overruled tribes’ evidence showing their ties to the oldest ancestral remains in museums’ collections. We’ve also shown that museums and universities have delayed repatriations while allowing destructive analyses — like DNA extractions — on ancestral remains over the objections of tribes.

Harvard, where the remains of an estimated 5,500 Native Americans are stored at the Peabody Museum, used these loopholes over the span of three decades to prolong the Wabanaki tribes’ repatriation process while remaining in technical compliance with the 1990 law, our review found.

For Augustine and her colleagues, few things were more frustrating than knowing that NAGPRA had empowered museums to decide whether Indigenous people had a valid connection to their ancestors. These were the same institutions that had collected the human remains and objects from ancestral burial sites. Despite NAGPRA’s intent to give Indigenous people say over ancestral remains, institutions still made the final decisions on whether to repatriate.

“The wolves are in charge of how to deal with the sheep,” said Darrell Newell, a former vice chief of the Passamaquoddy Tribe who helped create the Wabanaki Intertribal Repatriation Committee to accelerate negotiations with the institutions. “It’s just not a good way.”

Harvard in recent years has apologized and promised to speed repatriation, saying it aims to repatriate all Native American remains and the items once buried with them within the next three years and recently doubled staffing in the Peabody Museum’s repatriation office. However, the school has yet to return more than half of the human remains it reported holding under NAGPRA, according to federal data from November. Only two institutions, of the hundreds that must comply with NAGPRA, hold more human remains than Harvard.

The university did not provide a detailed explanation to ProPublica regarding its staff’s decisions in the Wabanaki tribes’ case, but it noted in a statement that “each institution, as directed by the NAGPRA legislation, makes its own decisions on repatriation. This can result in institutions making different decisions.”

“To state it plainly, at Harvard, the issue of whether Native American ancestors should be in our collections is clear — they should not,” Harvard President Claudine Gay said last year.

As the Wabanaki people’s struggle with Harvard dragged on, some elders who had been ceremonial leaders died without seeing repatriations come to pass, the committee told ProPublica. In recent years, younger generations helped continue their work, finding that tribes have few options once a museum declines a repatriation request. Among them is Ryan Lolar, a 27-year-old Penobscot Nation descendant and attorney who began helping the Wabanaki committee in 2021.

“Once the museum says no, that’s the end of the road for you,” Lolar said. “As a tribe, all you can do is keep applying, keep reaching out.”

The Peabody Museum in Cambridge, Massachusetts, left, and the Peabody Institute in Andover, Massachusetts (Sophie Park for ProPublica) Excavations in Maine

The two Peabody museums have parallel histories. Both are housed in red-brick buildings that hearken to a time when anthropology was a fledgling academic discipline. Each was founded with money from the same Peabody family who, like other wealthy Americans during that era, financed anthropological expeditions and study.

In 1866, George Peabody, who built a fortune in the dry-goods trade and merchant banking, gave $150,000 to Harvard to establish its museum, according to the first annual report. More than 30 years later, his nephew, Robert S. Peabody, a lawyer and alum of the Phillips Academy, founded the prep school’s Robert S. Peabody Institute of Archaeology. A private collector, the younger Peabody seeded his namesake museum’s collection with 38,000 Native American artifacts he had acquired, according to the school.

Both museums sponsored excavations across the United States, which led their archaeologists to Maine. These early archaeologists found no human remains at the burial sites but were in awe of the sophistication of the weapons and tools, fashioned more than 4,000 years ago from stone and the bones of fauna.

Warren K. Moorehead, a director of the prep school’s Peabody Institute, concluded that the people who made the objects, many of them finely etched with geometric patterns, represented a mysterious, vanished culture with no connection to present-day tribes. This theory, while questioned, has persisted into the present, including with an influential archaeologist whose research Harvard has embraced.

Moorehead had garnered a reputation for rogue and disorganized excavations of tribal ancestral sites in Ohio and New Mexico. He descended on Maine in 1912, emptying 440 burial sites in less than a decade, according to research from Wheeler and Bonnie Newsom, an anthropology professor at the University of Maine and Penobscot Nation citizen.

But Moorehead encountered resistance when he sought to excavate on Indian Island. Penobscot leaders twice blocked him, showing that the Wabanaki people viewed themselves as connected to the ancient people and as protectors of the burials, Newsom said. The Wabanaki nations believed they have been in the region as long as humans have inhabited it.

Warren K. Moorehead at a site in Maine that he and his crew excavated in 1913 (Robert S. Peabody Institute of Archaeology, Phillips Academy, Andover, Massachusetts. All rights reserved.)

In the late 1930s, Moorehead’s successor embarked on a dig near Blue Hill Bay. There he unearthed at least 43 ancestral remains and hundreds of items beneath a shell midden, a large, layered stack of clam and oyster shells. Calcium from the shells had counteracted Maine’s acidic soils to preserve the ancestors’ bones. The prep school sent the skeletal remains to Harvard, where curators were interested in studying them. The prep school kept the objects, further intertwining the two institutions — though their decisions about the collection would eventually divide them.

“I’m Going to Come Back and Get You”

The passage of NAGPRA in 1990 offered Wabanaki people an opportunity to assert their connection to the region’s ancient people.

Augustine, a mother of seven, was nearly 40 at the time and had already spent more than a decade working on repatriation. The work did not offer pay, but she had willingly committed to it as a spiritual calling, she said. She believed that repatriation restored dignity to generations past and present. She often relied on relatives to watch her children, she recalled, and some summers she didn’t pay her light bill so she could afford the travel.

“How can we tell our children, our youth that they are worth something when at the same time, right over here, there’s a museum and they’re studying our ancestors?” she told ProPublica. “It’s like telling us we’re less-than.”

After the law passed, the tribes formed the intertribal repatriation committee with representatives from each of the Wabanaki tribes. If the four tribes worked through any disagreements before making claims, they could show they were unified when approaching museums.

In the early 1990s, the tribes’ repatriation committee began meeting with the two Peabody museums, as well as with Maine museums that held human remains.

Augustine suspected the institutions wanted to keep the oldest human remains in order to do scientific research. She raised that concern with the institutions repeatedly, including during a visit to Harvard’s Peabody Museum in May 1995, according to a museum document that recounts the visit. At the time, scientific methods like radiocarbon dating helped museums estimate the age of the objects and remains they had found during their expeditions. Yet these methods, like the ancient DNA extractions that would become prevalent years later, required scientists to crush small samples of bone, causing destruction to the ancestral remains.

“We told them, ‘No more science, no more scientific research on those ancestors,’” said Augustine, who, like other tribal members, viewed the research as a violation of tribal beliefs.

Augustine, whose name is also Thunderbird Turtle Woman, says she felt called to work on repatriation. (Tristan Spinski for ProPublica)

Harvard’s museum staff assured her that any researchers who wanted to access the human remains from Maine would likely be told to contact the Wabanaki tribes and that museum policy did not allow destructive analysis without tribes’ permission. Patricia Capone, who has been the museum’s NAGPRA director since the 1990s, was one of several staffers present during the meeting, museum records show.

“It was so hard to leave,” Augustine recalled of the 1995 visit. “I remember telling those ancestors, ‘I’m going to come back and get you.’”

A university spokesperson told ProPublica that the museum’s policies at the time allowed researchers to conduct destructive analysis on the remains. The spokesperson did not address why the Wabanaki tribes had been told otherwise. Capone did not respond to interview requests or questions from ProPublica.

Oral Histories

In 2007, Newsom, the Penobscot archaeologist and University of Maine professor, went back to school to pursue a doctorate in anthropology, intent on identifying evidence the Wabanaki tribes could use to support their repatriation claims, she later wrote.

Newsom interviewed people from the four Wabanaki nations and gathered audio recordings of traditional narratives that told of how their cultures first came to be. In the stories, which had been passed from one generation to the next, she identified evidence that the Wabanaki tribes’ time in Maine and Canada’s Maritime Provinces went back thousands of years, and she researched how the narratives could be seen as describing major environmental events.

In one, a Passamaquoddy elder talked about their relationship with a lake near the Canadian border, where the archaeological record shows humans have been present for 8,600 years. Another story linked the Penobscot origins to Cold Stream Pond, north of Indian Island. The stories featured the loon, whale, moose and other animals of the region.

The Penobscot River, with the Penobscot Nation Indian Island Reservation on the right and Old Town, Maine, on the left (Tristan Spinski for ProPublica)

The Wabanaki committee compiled the stories Newsom gathered in a document and gave it to both Peabody museums in 2011.

More than a year later, Harvard rejected the claim. “They just kept coming back, saying that our evidence wasn’t good enough,” Newsom said of Harvard. “It was exhausting.”

But Harvard’s rejection coincided with the tribes’ breakthrough meeting with Wheeler, director of the Phillips Academy’s Robert S. Peabody Institute of Archaeology. His commitment to repatriating the objects at the prep school’s museum came with an understanding, Wheeler said: He would also appeal to the Harvard museum to repatriate the human remains from the same coastal burial site.

After the Indian Island meeting, Wheeler continued to review records and gather input from archaeologists who had studied prehistoric Maine — a topic he was unfamiliar with, having spent his career in Florida. He encountered a range of opinions: Some expressed certainty that the tribes could not have ties to the ancient ancestors and items buried near the bay; or they said they believed the collection was too scientifically valuable to be reburied, which Wheeler noted in his records was not a basis under the law for denying a repatriation. Others said the tribes’ oral histories and other evidence demonstrated a consistent presence in the region well before the time the ancestors were buried near Blue Hill Bay.

“There is more,” Wheeler wrote about his decision to a donor of the preparatory school. “But at a certain point it was clear that the Wabanaki had met the federal standard for their case.”

“Entirely Possible”

In September 2014, Wheeler drove to Harvard to inform the director of the university’s Peabody Museum, Jeffrey Quilter, that he planned to repatriate the items to the Wabanaki tribes. Quilter wrote in an email that he was shocked following their brief meeting. “Given the close association and intertwined histories of our two museums — particularly in the case of this site — the courtesy of advanced discussion was in order,” Quilter said.

Emails obtained by ProPublica show that Quilter pressured Wheeler to change his mind, saying he believed the decision would result in unwelcome repercussions for the Harvard museum. As part of this campaign, he told archaeologists in Maine that he believed Wheeler’s decision would close the door to future research into the ancient burial site. “The stakes are very high,” Quilter, now a curator in the Harvard museum’s anthropology department and no longer its director, wrote to a colleague.

Ryan Wheeler, the Phillips Academy museum director (Sophie Park for ProPublica)

One of the archaeologists Quilter contacted was Bruce Bourque, the Maine State Museum’s now-retired chief archaeologist. Quilter considered Bourque to be an expert on Maine archaeology. But Bourque, brash and outspoken, also had a reputation for opposing the Wabanaki tribes’ repatriation and water rights claims, saying in an email to Quilter and Capone that the Penobscot people “live in a BIA-funded lala land.” The comment was a derogatory reference to the Bureau of Indian Affairs’ federal trust responsibility to fund basic services in tribal communities.

Bourque told the state attorney general’s office he had received a “panic call” from Harvard about Wheeler’s decision, he said in an email. He emailed another colleague about the news, saying, “NAGPRA has just reared its ugly head.”

“Patricia says Harvard will stand firm,” Bourque wrote of Capone, the university museum’s NAGPRA director. “We should be prepared for a onslaught from the tribes and their fellow travelers, a group of anti-science thugs.”

In an interview and statement to ProPublica, Bourque stood by his comments in the 2014 emails, saying he had been subject to “onslaughts” for his scientific opinions. He added that he had embraced NAGPRA when it was first passed but held the government’s administration of the law in low regard. Quilter, who did not grant an interview, said in an email that he was guided by science in deciding that the human remains from the ancient burial site were not culturally affiliated to Wabanaki people. He also said he believed he was adhering to the law in making his decision.

When Quilter’s efforts to convince the Phillips Academy to reverse its plans went nowhere, he offered another argument why Wheeler should delay repatriating. He said he just learned that the lab of David Reich, a prominent Harvard geneticist, had extracted genetic material from the ancient remains that could shed new light on them.

The disclosure stunned Wheeler.

Reich and his student had provided a document to the Harvard museum describing their research as the first analysis of ancient people from the Northeast that used the whole genome. That brief report — dated October 2013 and marked confidential — offered a broad determination: The ancestors were genetically linked to Indigenous people in North and South America.

Reich viewed his study as inconclusive on the question of the human remains’ connection to present-day Wabanaki tribes, adding that there were no available genetic samples representing modern Wabanaki people that he could use to cross-compare with the ancient DNA, he told ProPublica in an email.

Yet when Wheeler met with Quilter again that fall, Harvard’s staff cited Reich’s paper to argue against returning the items to the tribes, Wheeler said.

Quilter had invited his staff and Bourque to the meeting but dismissed Wheeler’s request to have the director of Harvard’s Native American Program facilitate it, saying he wanted to limit the conversation to archaeological and museum professionals. “If we think we need to include Native Americans then I should discuss how that will happen,” Quilter said. “I just think that adding Native Americans adds another layer of complexity in an already complex situation and do not oppose their participation in principle.”

Ultimately, Wheeler didn’t waver and the prep school’s Peabody Institute proceeded with its repatriation.

(A Harvard spokesperson told ProPublica that the meeting was meant to foster information-sharing among institutions and that the document describing the DNA analysis did not represent official or authoritative results. Quilter said he wasn’t aware at the time that the Wabanaki tribes had asked the museum not to allow research on the remains.)

Reich told ProPublica that he did not know Harvard’s museum used his report to argue against a repatriation to the Wabanaki nations. He also said that he could not rule out that the tribes might be able to trace some of their ancestry to the people buried at the 4,500-year-old site. “It remains entirely possible,” he said.

A sign for the Penobscot Nation sits on the banks of the Penobscot River in Old Town. (Tristan Spinski for ProPublica) A Rumor Leads to Confirmation

Newsom was among the first to hear that the ancestral remains had been analyzed, though she didn’t receive the information from the university.

At a March 2015 federal hearing on NAGPRA, more than a year after the Reich Lab reported its DNA results to the Peabody Museum, a woman from a tribe in Massachusetts asked Capone to address a rumor: “I was told that DNA testing was being done on remains at the Peabody Harvard Museum,” said Ramona Peters, of the Mashpee Wampanoag Tribe. “I believe it involved the Wabanaki.”

Newsom, who was in the audience, admits she is surprised, according to a transcript of the hearing. “If there is an institution that is taking it upon themselves to continue to do study, I think that’s ethically wrong until we have an opportunity to present more information or clear up the reasons why we were denied those remains,” she said.

An Interior Department lawyer said the federal committee couldn’t demand that Harvard answer the allegation. And Capone declined to publicly respond to the question, though she offered to have a conversation about NAGPRA and “the museum’s activities.”

Several years later, Newsom said a colleague in Maine confirmed that the DNA analysis had, in fact, happened. She also learned that even though the findings were never published, the Reich Lab had presented a paper on the research at a genetics conference. She searched for a copy, asking colleagues; the librarian at the University of Maine, where she teaches; and the student whose name was on the paper. She hit dead ends.

Augustine, who had asked Harvard not to conduct DNA analysis on the ancestors, felt betrayed by the Harvard museum.

“When they tell us they will not and they do it anyway, well, they’ve lost their credibility,” she told ProPublica.

Blue Hill Bay, Maine (Tristan Spinski for ProPublica)

After fighting for their ancestors for more than 25 years, the Wabanaki made their final formal NAGPRA claim in February 2019 for the human remains held by Harvard. This time, they asked that it happen under a 2010 NAGPRA regulation that allows museums and universities to return remains without saying the tribes have cultural ties to them.

Years earlier, the tribes had passed on a suggestion from Harvard’s Peabody Museum to go this route. It requires only that institutions acknowledge in federal records that the geography of tribes’ homelands encompasses the areas where remains were excavated.

The tribes had always wanted institutions to recognize their cultural connection to the ancestors, but they also wanted to rebury the remains, and four years had passed since the Phillips Academy’s museum had repatriated the burial items to them. “The bottom line was getting our ancestors back no matter what,” said Roger Paul, who is Passamaquoddy and a member of the repatriation committee.

Capone, at Harvard, responded to the tribes’ claim several months later with additional questions but did not say whether she would grant the request. In a recent academic paper, Newsom and Wheeler said the action represented “another tactical strategy” to ensure Harvard would keep the remains.

No Apology

In the end, it would take an institutional reckoning at Harvard before the Wabanaki tribes could finally collect and rebury the remains of their ancestors.

The same year Harvard stalled in granting the tribes’ final repatriation request, Harvard started to face renewed questions about its ties to slavery and the dark history of many of the Peabody Museum’s holdings. The following year, amid protests over the murder of George Floyd and historical racial injustices, the museum embarked on a review of its collections, which led to an apology from Lawrence Bacow, then the president of Harvard.

“I apologize for Harvard’s role in collection practices that placed the academic enterprise above respect for the dead and human decency,” Bacow wrote in a January 2021 statement. “Our museum collections undoubtedly help to expand the frontiers of knowledge, but we cannot — and should not — continue to pursue truth in ignorance of our history.”

In a separate apology, Jane Pickering, the new director of the Peabody Museum, pledged to prioritize repatriation. The museum now has a policy that requires tribes’ authorization for research on Native American remains and burial items.

The Wabanaki committee used the moment to press the school one last time to relinquish the tribes’ ancestors, drafting a new letter with its lawyers. It was sent to Harvard in April 2021.

“We said, ‘If those are really your values, then return the ancestors that you were holding all this time,’” said Lolar, the Penobscot Nation descendant and attorney.

Pickering responded several weeks later, saying in a letter that the school would release the ancestral remains to the tribes. The school also offered to discuss the DNA analysis, though this has not yet happened

Ryan Lolar, a Penobscot Nation descendant and staff attorney with the Indigenous Peoples Unit of Pine Tree Legal Assistance Inc. (Tristan Spinski for ProPublica)

The Wabanaki repatriation committee hoped the Peabody Museum would finally acknowledge its connection with the ancestors, beyond geography. But Pickering’s letter included no such acknowledgment.

And despite the university president’s public apologies for the racial injustices it had perpetuated, no one from Harvard apologized to the Wabanaki.

“Nothing changed about those ancestors in that 30 years,” said Lolar. “It’s just that they never cared about what the tribes were saying all along.”

In September 2021, Augustine and Lolar were among a half-dozen tribal representatives who traveled to the museum for the repatriation. As they carried boxes containing the ancestors’ remains to their vehicles, they passed an exhibit about Penobscot history and culture that a Harvard spokesperson said was created in partnership with tribal representatives. Nearby was a photo display and text stating how the Peabody champions repatriation.

Lolar found it ironic that the museum had so prominently honored his culture with an exhibit while withholding the ancestors for so long. Still, those feelings didn’t obscure the overwhelming relief of the day, Augustine said.

Days later, the group buried the ancestors and items in an undisclosed location.

They couldn’t place them at the original burial site. A road now runs alongside it. After praying about how to proceed, they decided to ceremoniously create a connection between the two burials, old and new. They took soil from the original site and buried it with the ancestors in their new resting place, Augustine said. Then, they took soil from the new site and sprinkled it over the old one.

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1 America’s Biggest Museums Fail to Return Native American Human Remains 2 Does Your Local Museum or University Still Have Native American Remains? 3 The Museum Built on Native American Burial Mounds 4 A Top UC Berkeley Professor Taught With Remains That May Include Dozens of Native Americans 5 The Metropolitan Museum of Art Adds A Renowned Native American Collection Despite Questions About Some Objects’ Origin 6 Behind ProPublica's Reporting on Repatriation

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by Zach Despart, The Texas Tribune

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A state district judge in Travis County has ordered the Texas Department of Public Safety to release law enforcement records related to the May 2022 Uvalde school shooting, more than a year after a consortium of news organizations sued for access.

The ruling by 261st Civil District Court Judge Daniella DeSeta Lyttle calls on DPS to fulfill 28 records requests filed by the news organizations, which include ProPublica and The Texas Tribune, subject to redactions such as personal information of police officers and blurring the faces of minor victims in crime scene photographs.

The files would shed light on the failed police response, in which officers waited more than an hour to confront the shooter who had an AR-15-style rifle. Nineteen children and two teachers died that day.

Lyttle issued a preliminary order in June. The one issued Tuesday is the final judgment. It requires DPS to provide the records sought within 20 days, unless the state police agency appeals the ruling.

“DPS promised to disclose the results of this investigation once it was completed,” said Laura Prather, a media law attorney with Haynes Boone who represents the news organizations. “It was completed in February, and they still haven’t provided any answers to these families.”

DPS did not return a request for comment on Thursday.

Prather said an appeal would likely limit the ability of victims’ families to file federal lawsuits alleging that police had committed civil rights violations. The statute of limitations on those complaints is two years.

“It prevents (families) from having the evidence they need,” Prather said.

The state police agency previously argued that releasing records could interfere with ongoing investigations into the shooting, though DPS said it had completed its initial report on the shooting and provided it to the Uvalde County district attorney.

Between the shooting in May 2022 and the filing of the news organizations’ lawsuit three months later, DPS selectively released information about the shooting during press conferences and public hearings held by the Legislature.

The Tribune and ProPublica separately gained access to materials from the investigation, publishing a series of stories that detailed multiple failures. On Tuesday, the news organizations will publish an article and a documentary, in collaboration with FRONTLINE, that reveal new details about the response.

Uvalde District Attorney Christina Mitchell also opposed disclosure of records to the news organizations. She argued their release could harm her investigation into any potential criminal charges she could pursue based on the DPS investigation.

Mitchell also claimed that “all of the families of the deceased children” had told her they supported blocking the records from release. Attorneys representing the majority of the 21 families whose relatives were killed in the massacre refuted the claim, saying that the information should be made public. Mitchell was later stricken from the case.

by Ken Ward Jr., Mountain State Spotlight

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

West Virginia’s fund to clean up abandoned coal mines is in such dire shape that it threatens to stick taxpayers with hundreds of millions — perhaps even billions — of dollars in cleanup costs. And yet, little is being done to turn things around.

The bankruptcy of just one significant mining company could wipe out the fund, according to the state’s top regulatory official. And auditors for the Republican-controlled Legislature said at least five major companies were “at risk” of dumping cleanup costs on the state.

At $15 million, the state’s fund for restoring land is at its lowest level in more than 20 years. The program’s latest published actuarial report in 2022 warned that a related water cleanup trust fund will lose half its balance over the next 10 years.

These are costs the coal industry was supposed to cover. Unreclaimed mine sites can not only damage the environment but also endanger coalfield residents who live nearby. Coal waste dams sometimes leak or break, flooding downstream communities. Cliffs of rock and debris left behind after mining can collapse. Runoff that isn’t contained or treated often poisons fish or water supplies.

This crisis is emerging in other coal states like Kentucky, Ohio, Pennsylvania and Virginia, which have also had problems with their mine reclamation programs. But West Virginia offers perhaps the clearest and most troubling portrait of what could happen as the coal industry’s decline continues.

The state fund’s problems have been depicted as a recent phenomenon tied to a wave of coal company bankruptcies over the past decade. But a detailed review by Mountain State Spotlight and ProPublica reveals that they are far from that.

Coal stockpiles at a transfer station in Wharton, West Virginia. Coal production has declined dramatically over the past decade in the face of cheaper natural gas and renewable energy sources. (Dane Rhys, special to ProPublica)

State and federal officials have been warned repeatedly over the past 40 years that this reckoning was coming but have failed to prepare for it. Again and again, the review found, auditors questioned whether West Virginia’s reclamation program would have adequate funding.

But neither state lawmakers nor regulators required coal companies to have enough reclamation bonds as insurance should they go belly up. Nor did legislators raise the tax on coal production enough to make up the difference. Federal officials in both Republican and Democratic administrations who were supposed to oversee the state program cautioned there were problems but didn’t step in.

Just two years ago, West Virginia’s legislative leaders ignored recommendations from their own auditors to bolster the fund. Instead, they called for an $8 billion bailout from the federal government. And last month, Gov. Jim Justice’s administration removed a key critic from an advisory panel that monitors the fund, just as the group was about to review a new study on the fund’s future health. The governor’s office did not respond to a request for comment.

Environmental groups have pleaded with the Biden administration to focus on the reclamation crisis in the coalfields. But nearly three years into his term, President Joseph Biden still hasn’t nominated a director to lead the agency charged with enforcing the mining reclamation law.

As a result, a close examination of the fund’s finances and the state of the coal industry shows, the problem is no longer something out in the future.

“The system never fully worked,” said Peter Morgan, a Sierra Club lawyer who has advocated reforming the system for years. “It limped along for a while, but it is completely broken today.”

In response to questions, Interior Department spokesperson Giovanni Rocco said the agency’s Office of Surface Mining Reclamation and Enforcement regularly reviews state reclamation programs and in 2021 told West Virginia officials to better track cleanup liabilities. Rocco referred OSMRE nomination questions to the White House, which did not respond.

West Virginia Department of Environmental Protection spokesperson Terry Fletcher said in an email that the agency will continue to work “to improve the overall financial viability” of the program. The agency has about $1 billion that could fund reclamation projects, including available coal company bonds. But environmental groups predict the cost will be much more than that.

One of the firms that could tip the fund over the edge is Lexington Coal Company, which grew rapidly in recent years by cobbling together permits held by mining firms that went bankrupt.

In 2017, Alpha Natural Resources, once the nation’s third largest coal producer, paid Lexington, then a little-known company, hundreds of millions of dollars to take permits with massive reclamation problems off its balance sheet. Lexington promised the move would “accelerate reclamation” within five years.

Today, Lexington holds nearly 200 permits in West Virginia, making it one of the state’s largest coal companies on paper. But there’s little evidence that the company is producing much coal — and lots of evidence that it’s struggling to do the reclamation work it’s currently obligated to do.

Lexington officials did not respond to questions.

One of its operations, the Twilight Mountaintop Removal Mine, was once among the largest in the state. Over its quarter-century life, the main mine at the Twilight complex about an hour south of Charleston produced more than 60 million tons of coal to provide electricity and help make steel. Last year, it produced less than 200,000 tons.

Left behind is the rock and dirt that mine operators shoved into valleys, burying streams. Remnants of coal silos and preparation plants have been overtaken by brush. Most dramatically — and only fully grasped from an aerial view — are massive moonscapes of gray and brown rubble where the mountains were once lush and green.

Junior Walk of Coal River Mountain Watch takes a water sample at an acid mine drainage seep along the Coal River in Packsville, West Virginia. (Dane Rhys, special to ProPublica)

“It’s a post-apocalyptic nightmare,” said Vernon Haltom, a leader of Coal River Mountain Watch, a grassroots group fighting the coal industry. “It looks like a vast, sparse wasteland, like after a nuclear war.”

Ignored Warnings

From the earliest days of coal mining in the United States, mining operators took what they could from the hills and hollows and moved on to the next mine, often leaving a mess for residents to live with.

President Jimmy Carter’s signing of the Surface Mining Control and Reclamation Act of 1977 was intended to stop that. The law required coal companies to clean up the damage and restore the hills and creeks, a process known as reclamation.

And there was supposed to be a backup funding plan. States were required to make mine operators post bonds as a type of insurance to cover reclamation costs if the companies went bankrupt. Bonds were to be set at amounts sufficient to reclaim the mined land and treat polluted water.

But Congress also created an industry-friendly alternative. Coal companies could post smaller bonds if they paid a production tax into a state-run fund that regulators could use to reclaim abandoned mines. Under federal law, these pooled systems were required to be as effective at cleaning up mines as full-cost bonding programs. Lawmakers charged OSMRE with ensuring the state programs worked.

In West Virginia, this system proved to be inadequate from the start, according to a review by Mountain State Spotlight and ProPublica. OSMRE was initially supportive when the state proposed a bond pool in 1980 but also asked for more proof that it would provide sufficient funding to cover long-term cleanup costs.

Two years later, a preliminary study warned that reclamation costs were expected to exceed bond coverage. Though state officials were optimistic the coal production tax money would make up the difference, the actuarial study cautioned that “there is a great deal more to be done before this study should be considered conclusive.”

The questions raised were never answered. But the following year, the Reagan administration approved West Virginia’s pooled system anyway, deciding that it “appears to be basically sound.”

Despite the administration’s confidence, West Virginia’s financial problems became apparent by the mid-1980s. One congressional audit documented delays in cleaning up abandoned mines. Another warned that the reclamation fund was millions of dollars short. Another that the program didn’t account for the escalating costs of treating contaminated streams.

Both the Bush and Clinton administrations warned the state that its program needed more money. But West Virginia officials again did little.

When coal companies started to blast apart the hills to create the Twilight complex in the mid-1990s, industry officials and their political supporters scoffed that mountaintop removal mining would destroy the environment and promised to put the land and water back the way they found it. (Dane Rhys, special to ProPublica)

“Everyone knew it was a sham,” said Pat McGinley, a longtime West Virginia University environmental law professor. “State and federal regulators and politicians winked and nodded while the law was violated for more than four decades.”

Then, in 2001, environmental groups thought they might be looking at a breakthrough. They’d filed a lawsuit to reform West Virginia’s reclamation program, and it had landed before Chief U.S. District Judge Charles Haden II. Though considered a conservative judge, Haden had shown no patience for coal industry abuses or lax regulatory attitudes.

Things had also changed in the West Virginia governor’s office. In 2000, Democratic former U.S. Rep. Bob Wise defeated a Republican onetime coal company executive. Wise promised to strictly enforce environmental protection laws in the mining industry and appointed a former federal prosecutor known for taking on coal companies to run his enforcement agency.

The agency proposed increasing required bond amounts and the coal production tax rate. But lawmakers weren’t interested, and the legislative package died.

A few months later, Haden issued a blistering opinion in the federal lawsuit, decrying the decadeslong inaction as “a climate of lawlessness, which creates a pervasive impression that continued disregard for federal law and statutory requirements goes unpunished, or possibly unnoticed.”

The judge, however, deferred to OSMRE, saying agency experts were better suited to prescribe how the state’s reclamation woes should be addressed.

Partly in response, OSMRE in 2002 started drafting a new federal rule to ensure enough money was set aside for expensive long-term treatment of water pollution. But agency officials delayed publishing the proposed rule a half-dozen times. Then they dropped the idea without explanation. The agency’s spokesperson said that action occurred too long ago, and under a previous administration, for him to explain without more research.

West Virginia officials did slightly increase the special reclamation tax and created a task force of industry, government and environmental players to monitor the fund and recommend fixes.

But, as McGinley recounted in a law review article, those changes were a modest compromise.

“The final product of the closeted consultations with industry representatives,” he wrote, “was a DEP-backed bill intended to marginally satisfy OSM, while minimizing, as much as possible, financial burdens on coal companies.”

The Breaking Point

By the 2010s, as coal faced growing competition from natural gas and renewable energy, the long-predicted crisis began to arrive.

Since 2012, more than 60 coal companies, including some of the biggest in the country, have gone bankrupt. That left thousands of acres abandoned or shuffled to other companies. Many more companies are teetering on the financial brink.

An old coal processing plant owned by Lexington sits idle alongside the West Fork Pond Fork river in Bandytown, West Virginia. (Dane Rhys, special to ProPublica)

By 2021, even the auditors working for the Legislature were taking aim at the crisis. The reclamation bonds carried by coal companies would cover less than 10% of cleanup costs, their audit reported. And the state had enough money on hand for less than 40% of the sites that would need to be cleaned up over the next 20 years.

One at-risk coal company, ERP Environmental Fund, was in such bad shape, the auditors noted, that West Virginia regulators convinced a local judge to put the company into receivership, a move that avoided bankruptcy but left the future of its unreclaimed sites unclear. The head of the state environmental agency cautioned in court filings in 2020 that ERP’s bonds were nowhere near enough to cover its reclamation costs, warning the firm’s bankruptcy “would overwhelm” the state’s cleanup fund “both financially and administratively.”

An attorney for ERP didn’t respond to a call for this story. The firm didn’t object to the state’s receivership motion, and the receiver said in an email that he’s working to sell the firm’s assets so they can be reclaimed.

The legislative auditors suggested concrete steps to shore up the state’s fund: Lawmakers could increase the bond amounts, or regulators could force companies to begin cleanups more quickly after a mine stops producing coal.

But instead of following their recommendations, Senate President Craig Blair, a Republican from the Eastern Panhandle, called for a federal bailout, and state lawmakers passed a resolution asking for $8 billion for mine reclamation projects. Blair said the government owed it to West Virginia to pay for the cleanups, blaming coal’s decline on federal regulations.

So far, there hasn’t been much movement on a federal bailout. A proposal in Congress last year would have provided $385 million a year for a decade in general tax dollars to reclaim new mines that coal companies, bonds and reclamation funds were supposed to cover. But the legislation went nowhere.

A spokesperson for Blair said the senator has “demonstrated his commitment to solving this issue.” Blair’s office cited his legislation creating a new state-funded insurance company for the mining industry. That firm doesn’t address the reclamation fund’s financial problems, but it does give coal operators another option for buying cleanup bonds.

West Virginia lawmakers will have another chance to address the problem when their session opens in January. Delegate Evan Hansen, a Democrat from Morgantown, said he will introduce a bill to increase required bond amounts — a measure he unsuccessfully proposed two years ago and that environmental groups have been urging for decades.

It could be a tough sell, given the Republican supermajority at the statehouse. Both Blair and West Virginia House Speaker Roger Hanshaw said last month that it was too early to discuss any potential plans for the session.

Recent political events also suggest that’s the case. Two days before a key meeting in November, the Justice administration removed a longtime critic from the advisory council that monitors the state’s reclamation fund.

John Morgan, a mining engineer who for 20 years represented environmental groups on the council, had consistently used his spot to push for a fuller accounting of the risks posed by the monumental changes in the coal industry. Morgan was planning to raise concerns about two issues: the large number of permits with no production and the risks that relying on a smaller number of mines poses for the production tax that provides much of the program’s revenue.

On the agenda was reviewing a draft of an actuarial study, obtained by Mountain State Spotlight and ProPublica, that shows a surprisingly large improvement in the fund’s financial position.

The most recent actuarial report, published in 2022, projected the fund’s liabilities had grown to $565 million. But according to the new draft, the liabilities dropped by $115 million as of June, and the reclamation fund will remain solvent through 2043. Study author Daniel Lupton of the firm Taylor & Mulder attributed the change to improvements in how the state estimates liabilities related to building water pollution treatment operations.

“The projection’s actually great,” Rob Rice, a WVDEP deputy director, recently told Congress.

Morgan says such estimates are unrealistic. “I get very worked up about the fund because everyone is ignoring reality,” he said. “I don’t think anyone can say that it’s solvent.”

Environmental groups say even the 2022 liability figure was an underestimate. An Appalachian Voices analysis warned that West Virginia’s price tag could ultimately be close to $3.6 billion, with only about a third funded by bonds.

Lupton acknowledged that the concerns Morgan had been raising aren’t fully addressed in his firm’s study and said state officials haven’t provided adequate data to do so.

“No matter how good my model is, there are some elements to what’s going on in the industry that are related to politics and human decision making that will always be beyond the reach of my numerical modeling,” Lupton told Mountain State Spotlight and ProPublica in an email.

Without such data, environmental groups have pushed the Interior Department to at least conduct a financial “stress test” of major mining bond providers and state programs.

“Because reclamation burdens are so high, and available bonds so inadequate,” Appalachian Voices and other groups wrote last month, “regulators have every incentive to paper over the problem and avoid forcing the issue.”

A Mine on the Edge

Tony Rumberg, who was a coal miner at the time of the 2010 Upper Big Branch mine explosion, visits a memorial for the miners killed in the blast. After the disaster, the mine’s owner, Massey Energy, was bought by Alpha Natural Resources, and many of its mines were later acquired by Lexington when Alpha went bankrupt. “They really should reclaim these mountains better than they do,” Rumberg said. (Dane Rhys, special to ProPublica)

One critical piece of data that West Virginia doesn’t collect is a mine’s expected reclamation costs. Pressed by an environmental group lawsuit, federal regulators ordered the state to track such liabilities in 2021, noting that the state’s program “contains the same or similar deficiencies” as federal reviews found two decades earlier.

But so far, the state’s database includes only the number of acres needing restoration. Fletcher from WVDEP said the state can compare that to average costs from past reclamation projects “as needed” to calculate liabilities.

Because the state doesn’t have specific mine-by-mine estimates, though, critics say it has no way of assessing whether a company’s bonds will cover a cleanup or what the burden on the state’s fund might ultimately be. For instance, while the state audit report said that Lexington’s permits have $167 million in reclamation bonds, there is no information about the company’s liabilities.

A look at Lexington’s recent struggles reveals why that lack of information matters.

With nearly 200 permits, Lexington commands a vast amount of mining land in West Virginia. But with just 135 employees statewide, the company appears to be on the financial edge. If it’s true, as auditors’ estimate, that bonds typically cover only 10% of reclamation costs, the numbers show a Lexington default could easily drain the reclamation fund.

Lexington is managed by Jeremy Hoops, and court records show the firm is owned by a Hoops family trust. In emails disclosed in court, family patriarch Jeff Hoops said Lexington was formed in 2004 out of the bankruptcy of another firm to take that company’s “bad assets.” Jeff Hoops also founded Blackjewel, whose 2019 bankruptcy left behind dozens of unreclaimed mines in eastern Kentucky, as Mountain State Spotlight and ProPublica outlined this spring.

In an email, Jeff Hoops declined comment, saying he has “no involvement” with Lexington. Earlier this year, he said that creditors forced Blackjewel into bankruptcy and that the company responded promptly to environmental violations.

Now Lexington seems to be in trouble. State environmental records and federal court filings document that Lexington doesn’t appear to have the resources to complete its reclamation work. And efforts by regulators and courts to intervene have been largely ineffective.

In 2021, a WVDEP inspector cited Lexington for failing to remove a highwall, a cliff of rock and debris leftover after mining, at its Twilight complex. The WVDEP inspector considered the violation serious enough to require correction by the following day. That never happened. In the two years since, the agency has pushed back the deadline to correct the problem 25 times, accepting Lexington’s explanation that weather conditions hampered its work.

In July, federal inspectors visited the site after citizens complained about WVDEP’s handling of the situation and said that the agency shouldn’t have allowed that as an excuse for two years. Those OSMRE inspectors noted that Lexington had stopped reclamation work at the site for three months in late 2022 and since then had moved one piece of equipment doing cleanup at Twilight back and forth to another mine.

An old coal processing plant owned by Lexington Coal sits idle beside the West Fork Pond Fork river in Bandytown, West Virginia. (Dane Rhys, special to ProPublica)

In 2022, three sections of hillside at the Twilight mine collapsed, sending mud and debris into a small stream. Regulators ordered the creek cleaned and the hillsides stabilized. The mess still hadn’t been cleaned up six months later, prompting West Virginia officials to suspend the mine’s permit. But the state and the company quickly settled. The stream was cleaned, but other violations continued.

Lexington’s problems, and a lack of tough regulation, are also visible at other mines it owns. A federal judge has grown so tired of Lexington’s delays in addressing illegal levels of toxic selenium and other pollutants in the runoff from two mines in Mingo County that last year he held the firm in contempt of court.

In court filings, Lexington has said it is working diligently and making progress toward compliance. But on Nov. 17, a federal judge ruled that Lexington “is moving at a sluggish pace, with no sense of urgency or diligence.” He fined Lexington $50,000, the latest in a series of court orders related to payments or deadlines the company missed to clean up its mines.

“They are just hanging by a thread,” said Michael Becher, an attorney for the citizen groups.

Correction

Dec. 1, 2023: This story originally misstated the source of funding for a bill that was introduced in Congress last year. The funding would have come from general tax dollars, not the existing federal program to reclaim mines abandoned before 1977.

by Andy Kroll

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

The Senate Judiciary Committee voted on Thursday to authorize subpoenas of billionaire businessman Harlan Crow and conservative legal activist Leonard Leo as part of the committee’s ongoing effort to investigate ethics lapses by Supreme Court justices.

But the ultimate fate of the subpoenas is uncertain. If Crow and Leo defy the information requests — which ask for a detailed accounting of gifts, transportation and lodging the two men provided or helped organize for Supreme Court justices and the justices’ relatives — Democrats would need a 60-vote majority to enforce the subpoenas. Currently, Democrats hold a one-vote advantage in Congress’ upper chamber.

Republicans have mounted fierce opposition to the inquiry into Crow and Leo, who have for months refused to comply with the committee’s requests. The vote to issue the subpoenas fell along party lines, with all 11 of the Democrats voting in favor and most Republicans walking out of the hearing in protest as the vote was taken.

Sen. Dick Durbin, D-Ill., the Judiciary Committee chairman, said at Thursday’s hearing that the revelations reported by news organizations including ProPublica spurred the committee’s action to demand more information about people close to the justices.

As ProPublica reported, Crow, a major Republican donor and real estate magnate, paid for lavish travel and gifts for Justice Clarence Thomas over a span of decades — gifts that Thomas repeatedly failed to disclose. ProPublica also revealed that Leo, an architect of the high court’s conservative majority, helped organize a trip to Alaska for Justice Samuel Alito that included a private jet flight provided by Paul Singer, a hedge-fund billionaire who later had business before the nation’s highest court. Alito did not disclose the flight.

“Both Leonard Leo and Harlan Crow are central players in this crisis,” Durbin said. “Their attempts to thwart legitimate oversight efforts of Congress should concern all of us.”

In response to the subpoena vote, Leo said in a statement: “Senate Judiciary Committee Democrats have been destroying the Supreme Court; now they are destroying the Senate. I will not cooperate with this unlawful campaign of political retribution.”

A spokesperson for Crow said in a statement that the subpoena was “invalid” and demonstrated “the unlawful and partisan nature of this investigation.” But the spokesperson added that Crow had offered “extensive information” to the committee and “remains willing to engage with the Committee in good faith, just as he has consistently done throughout this process.”

Justices Thomas and Alito have said they weren't required to disclose the gifts and trips unearthed by ProPublica and other news outlets. In response to previous stories, Crow and Leo have said they did nothing wrong in their dealings with the justices.

On Nov. 13, the Supreme Court announced its own code of ethics for the first time in history, governing conflicts of interests, gifts and recusal standards. But ethics experts noted that the new code contains no enforcement mechanism, and Durbin said it “falls far short” of what the public should expect from the nation’s highest court.

Republicans on the Judiciary Committee used Thursday’s hearing to air a litany of grievances against their Democratic counterparts for seeking to subpoena Crow and Leo.

Sen. Lindsey Graham of South Carolina, the committee’s top Republican, called the subpoena effort “garbage,” “a jihad” and “political theater.” Even though the committee subpoenaed private citizens several years ago under Graham’s leadership during an investigation into the federal government’s handling of Russian interference in the 2016 election, Graham said Democrats had unfairly targeted private citizens for retribution in the case of Crow and Leo.

He also accused Democrats of acting at the behest of unnamed “outside” forces and questioned why they hadn’t moved to a full vote on an existing judicial ethics bill.

“I don’t buy one bit [that] this is about fixing a problem,” Graham said on Thursday. “This is about an ongoing effort to destroy this court, to destroy Clarence Thomas’ reputation, to pack the court, to get your way.”

In a statement after the vote, Sen. Sheldon Whitehouse, D-R.I., a committee member and vocal supporter of judicial ethics reform, questioned the strong opposition from his Republican counterparts.

“Republicans have said our investigation into billionaire influence at the Court will destroy the institution,” he said. “All of this obstruction raises the question: what are Republicans so concerned we will find has been happening at the Court that it will destroy the institution? Whatever it is, the American people should know about it, and today’s vote was a big step toward learning the truth.”

Until recently, there was bipartisan agreement on the need for oversight and ethics reforms focused on the judicial branch, including the Supreme Court.

Sen. Richard Durbin, D-Ill., the Judiciary Committee chairman, left, and Sen. Sheldon Whitehouse, D-R.I. (Bill Clark/CQ-Roll Call, Inc/Getty Images)

In February 2021, Graham teamed up with Whitehouse to ask Chief Justice John Roberts about when the high court planned to create a code of ethics or at least bring its rules about accepting and disclosing gifts in line with the other branches of government.

In June 2021, Whitehouse and Sen. John Kennedy, R-La., co-signed a letter that requested information from the U.S. Marshals Service about Supreme Court justices’ travel and the costs to taxpayers for providing security to the jurists.

And in 2022, Republican and Democratic lawmakers passed legislation that extended disclosure rules and regulations around stock trades by elected officials to include judges.

But ever since Democrats first began asking Leo, Crow and several other individuals about their interactions with the justices, Republicans have strongly pushed back. Republican senators offered 177 amendments to the Crow and Leo subpoenas that touched on everything from liberal dark money groups to border-security policy. The amendments were not taken up at Thursday’s hearing.

Democrats on the Judiciary Committee initially requested information from Crow back in May in response to ProPublica’s reporting about his relationship with Thomas. Then, in July, Whitehouse and Durbin asked Leo for similar information about his dealings with justices after ProPublica disclosed Leo’s role in arranging Alito’s 2008 Alaska trip.

Thomas and Alito have said they weren’t required to disclose the gifts and trips. In response to previous stories, Crow and Leo have said they did nothing wrong in their dealings with the justices.

Durbin said Crow had offered to provide five years’ worth of information to the committee, but Democrats said that failed to fully respond to their requests. Leo, for his part, has entirely refused to cooperate with the committee. A month ago, Democrats announced that they planned to issue subpoenas for Crow and Leo.

Still, Democrats have managed to gather new information as part of their inquiry.

Several weeks ago, Durbin announced that Robin Arkley II, a longtime donor to conservative legal groups who provided free lodging to Alito on the 2008 Alaska fishing trip, had cooperated by providing information to the committee. Democrats on the Senate Finance Committee, meanwhile, received and publicized financial information received from Anthony Welters, a businessman who provided a personal loan to Thomas to purchase an RV. According to the Welters’ information released by the committee, Thomas did not repay “a substantial portion” of the $267,230 loan he received from Welters.

If Crow and Leo defy the subpoenas issued on Thursday, what comes next isn’t immediately clear. In an earlier interview, Whitehouse told ProPublica that he believed there were several options available to enforce the subpoenas, including using “an old Senate rule” under which enforcement would be handled directly by the U.S. attorney general if the Justice Department agreed to do so.

by Paul Kiel

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

Last month, Microsoft disclosed that the IRS had sent the company a bill for $28.9 billion in back taxes as part of an audit. The examination, which began more than a decade ago, is the largest in the agency’s history, and it’s far from over, as Microsoft has vowed to appeal the findings.

The centerpiece of the audit, as ProPublica detailed in an investigation nearly four years ago, is a 2005 transaction that moved tens of billions of Microsoft’s U.S. profits to Puerto Rico to help the software giant save billions in taxes. In a letter sent Wednesday, three senators, citing ProPublica’s reporting, focused attention on the company that helped Microsoft cook up that scheme: the mega-consultancy KPMG.

“KPMG’s role in Microsoft’s tax evasion is deeply disturbing, indicating that KPMG helped Microsoft reward shareholders and executives, while depriving the federal government of billions in tax revenue needed to pay for health care, environmental protection, infrastructure, and more,” says the letter, which was signed by Democratic Sens. Elizabeth Warren, Bernie Sanders and Sheldon Whitehouse and sent to KPMG’s CEO. “You owe Congress an explanation for your firm’s actions.”

In 2004, Microsoft was considering closing a small factory in Puerto Rico where some 85 workers burned Windows and Office software onto CDs. The tax break that had led Microsoft to open the factory was expiring. But KPMG pitched Microsoft on an idea for a break that would be far more valuable.

Boasting about the firm’s experience in setting up similar deals for other huge companies, KPMG said it could help Microsoft save billions in taxes by transferring profits to the island. The little factory would buy the exclusive rights to Microsoft’s technology. Meanwhile, KPMG assured Microsoft that its San Juan partner had a long track record of negotiating “significant tax holidays for U.S. companies with the Puerto Rican government.”

At the time, as ProPublica’s reporting showed, KPMG took great pains to make Microsoft’s moves — which effectively increased the valuation of the Puerto Rican subsidiary from $0 to $30.4 billion over the space of 24 hours, according to the IRS — seem bona fide. “What can we do to make this thing real?” read the notes from one KPMG meeting.

After Microsoft agreed to the arrangement, KPMG helped the company complete the deal. Its economists generated complex models that justified the price the factory paid for Microsoft’s intellectual property rights.

Over a decade later, when the IRS fought to obtain KPMG documents as part of its audit, Microsoft objected that the material was protected by a privilege for tax advice. The IRS eventually won access to the documents when a federal judge agreed that KPMG had been promoting a tax shelter. “The Court finds itself unable to escape the conclusion that a significant purpose, if not the sole purpose, of Microsoft’s transactions was to avoid or evade federal income tax,” U.S. District Judge Ricardo Martinez wrote in his opinion. Martinez added that documents in the case showed KPMG had “promoted” the transactions.

Just as Microsoft was far from the only tech company to shift profits to tax havens, other Big Four consultancies also worked to enable those deals. But the Microsoft case provides a unique window into one of the largest deals, and the senators, in their questions, seek more detail about KPMG’s role in it, as well as the firm’s history assisting other profit-shifting transactions. Based on the evidence in the Microsoft case, they wrote, “KPMG clearly played a central role in the systematic offshoring of corporate profits, which has eroded the U.S. tax base.”

KPMG did not immediately respond to ProPublica’s inquiry about the letter. The firm declined to comment for our earlier story on the audit. (In a brief in the IRS case, KPMG wrote that it had “provided routine tax advice to its longstanding client, Microsoft, in response to Microsoft’s request for advice relating to a plan that Microsoft itself conceptualized — actions that do not, under any standard, qualify as the ‘promotion’ of a tax shelter.”)

In response to questions for ProPublica’s original article, Microsoft said it “follows the law and has always fully paid the taxes it owes.”

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.

Prosecutors routinely find ways to get key detectives to testify in criminal trials, even when they are retired, sick or otherwise reluctant. Some fly retirees in from Florida or other retirement locales when necessary. Others have said they use subpoenas to force detectives to take the witness stand.

But prosecutors in the St. Louis circuit attorney’s office have been unable to get retired homicide detective Thomas W. Mayer Sr. into a courtroom, even though some of the cases Mayer investigated involved the murders of children — the sort of high-profile cases cops say they especially want to win.

Over the past two years, Mayer has told prosecutors he is unable to testify against two men he arrested after the fatal shooting of an unarmed teenager; those cases crumbled. Prosecutors said he told them he’s not available to testify in the case against a teen accused of driving a car from which at least one passenger allegedly shot another teen who was in his own vehicle. And court records say Mayer has been unavailable to testify against a teen charged with the murder of a 9-year-old boy shot while riding in his family’s SUV while they were delivering food to his grandmother.

Mayer, who served as the Missouri president of the Fraternal Order of Police from 1998 to 2006, contends retired police officers should not be expected to testify, because “retirement is meant to be retirement.” And he said his doctor told him he’s too sick to testify, though it’s not the first time Mayer has claimed illness has prevented him from carrying out his duties — and not the first time those claims have been questioned.

“If I were to be dragged back to court, with the stress level and heartbeat level — blump,” Mayer, 66, told a reporter during an interview at his home in rural southeastern Missouri, mimicking a collapse. “I don’t want that.”

Mayer’s position is in some ways similar to that of another retired St. Louis homicide detective, Roger Murphey. ProPublica and Riverfront Times reported last month how Murphey has refused to testify in at least nine murder cases because he was angry over policies of former Circuit Attorney Kim Gardner. Unlike Murphey, Mayer said he was not holding out for political reasons. Still, prosecutors are facing the same challenges to keep his cases viable as they did with Murphey’s.

In a city struggling to solve murders in the first place, the refusal of police to take part in routine court proceedings compounds St. Louis’ criminal justice challenges, and leaves victims shortchanged.

Mayer and Murphey also expose a vulnerability in how St. Louis police approach homicide investigations: They frequently rely on a single detective. But former prosecutors and homicide investigators in other jurisdictions said most police departments use multiple officers at every critical juncture of a case to reduce such vulnerabilities.

“When a homicide case is properly investigated, ideally there should be redundancies built into the investigation so you shouldn’t be reliant on a single police officer for any fact,” said Matt Murphy, who was a prosecutor in Orange County, California, for more than two decades and now works as a defense lawyer and legal commentator.

Mayer said departments should be prepared for retired detectives to be unavailable. “I regret that cases fell by the wayside, but there should be some kind of safety net,” he said in one of a pair of lengthy interviews. He said he believed prosecutors understood his health issues and said they have assured him that “they’re going to go on with other witnesses.”

How Mayer and Murphey have responded to their old murder cases raises questions about why city prosecutors have not dealt with the problem head on, using their subpoena power to force them to court.

Doing so might result in messy trials, with Mayer or Murphey potentially becoming hostile witnesses. But forcing their hands would send a message to the police department that “there are police policy issues that have to get fixed,” said Brendan Roediger, a professor at Saint Louis University School of Law and director of its civil advocacy clinic.

The St. Louis police department did not respond to questions about Mayer and his cases. Marvin Teer, Circuit Attorney Gabriel Gore’s chief trial assistant and the prosecutor who has handled three of those cases, said he had to take Mayer at his word and didn’t have the authority to force him to reveal his medical records. He said Mayer’s health information was protected by privacy laws.

“Our biggest fear,” Teer said, “is he’s already indicated he doesn’t remember the cases because his medicine interferes with his ability to recall accurately. Why do I want to put a guy like that on?”

Teer acknowledged that “in hindsight, I might have done things differently.”

St. Louis Metropolitan Police Department headquarters (Paul Sableman/Wikipedia Commons)

St. Louis has one of the highest homicide rates in the country, with about 1,000 murders since the beginning of 2019. And some families of those who were killed say the refusal of two detectives to testify has compounded their pain.

After Jonathan Cruz, 19, was shot to death in 2021 by passengers in two separate cars, police arrested the alleged driver of one of those cars, Neptali Mejia. Court records show that Mejia provided a videotaped confession to Mayer and that prosecutors charged him with first-degree murder. Mejia has pleaded not guilty and is currently under house arrest.

Cruz’s brother Ivan said he hoped Mejia’s arrest would lead the police to others involved in the crime. Mayer, he said in an interview, “gave me hope there was going to be justice and everyone responsible was going to be behind bars.”

Now the case is in trouble. Because prosecutors have said Mayer won’t testify, Mejia’s lawyer said he plans to ask the judge in the case to block the video recording of Mejia’s statements to Mayer from being admitted at trial.

Ivan Cruz, who said he has moved to another state out of fear of the people who shot his brother, said he was aware that prosecutors were having trouble reaching Mayer. Mayer, he said, “can bring a lot of peace and closure to the families that are suffering from all of this violence.”

The notion that officers would not follow their cases to trial is anathema to many homicide detectives and prosecutors. They said retired police officers, despite generally not being paid for testifying in their old cases, hold a legal and ethical duty to participate at trial, the same as anyone with knowledge pertinent to a court case.

Retired Seattle homicide detective Cloyd Steiger said he belongs to a Facebook group of retired police officers. “I get messages from them sometimes saying, ‘Hey, I got a subpoena for this murder trial. Do I have to go?’” he said. “And my answer is, ‘Yes, it’s unambiguous. Sorry, yeah, you gotta put your big boy pants on and go down there and do it.’”

John Skaggs, a retired Los Angeles homicide detective who trains homicide squads around the country, said the thought that a homicide detective would refuse to testify for any reason “is foreign to me.”

He said he has brought witnesses into court in wheelchairs and even hospital beds because their testimony was so important. He said he would do the same if he was ill and his testimony was needed. “I’d come in with a medical doctor and a paramedic team, and they can revive me if I go out,” he said. “If I’m needed, I’m coming.”

Brian Seaman, the district attorney in Niagara County, New York, said he had to track down seven retired police officers — including two who had moved out of state — to testify in a 2021 trial over the strangling murder of a 17-year-old girl nearly three decades earlier. He won a conviction.

Seaman said that bringing back the retirees was a “logistics puzzle” but that they “took great pride in their work and wanted to see the case through” to a trial. He said if a retired officer is the only witness who can provide testimony about evidence, “it’s just expected that they be available.”

Officers do sometimes have legitimate medical reasons for missing court, experts noted. Or, particularly in cold cases, they may even be dead by the time a case comes to trial. That’s why it’s important that departments have multiple police witnesses for each piece of evidence collected in the investigation.

But in St. Louis, perhaps because the two detectives are alive and their absences cannot easily be explained to jurors, local prosecutors have tried to salvage what they can from them.

Some legal experts took issue with the circuit attorney’s office’s decision not to compel Mayer to court. Murphy, the former Orange County prosecutor, said it would be a “cop-out” for a prosecutor to say they couldn’t proceed with a case because a witness said they were sick. He said prosecutors can subpoena a witness to determine whether they have a valid medical reason not to testify.

In the early morning hours of a Sunday in August 2019, Sentonio Cox became the 12th child that year in St. Louis to be killed by gunfire — and the third that weekend. The 15-year-old had been roaming around a south side neighborhood with a cousin, who was about the same age. The cousin told police later that someone had come out of a house and yelled at them to get off their property. He fled when he heard a gunshot.

The cousin guided the family to the last place he saw Sentonio. Just after sunrise, they found Sentonio’s body in a vacant lot across the street with a gunshot wound to his head.

Mayer led the investigation, which culminated with the arrest of Brian Potter, who lived in a house across from the vacant lot, and Joseph Renick, who had been staying with him. Police and prosecutors alleged the men had confronted the teens after using a surveillance camera to spot them trying to break into a vehicle parked in front of the house.

According to police and court records in the murder cases, Mayer alleged that Renick pointed a revolver at Sentonio as the teen was backing away with his hands up. Potter ordered Renick to “shoot this piece of shit,” and Renick fired one shot into Sentonio’s head. Renick and Potter pleaded not guilty.

Emails obtained through a public record request showed that prosecutors contacted Mayer several times to update him on the case as they prepared for the Renick and Potter trials. Mayer acknowledged in October 2021 that he had received a subpoena, according to the emails.

In January 2022, prosecutor Srikant Chigurupati emailed Mayer to say the trials were coming up and “we’ll obviously need you as a witness.”

Weeks later, prosecutors requested new trial dates, telling Judge Christopher McGraugh that Mayer was on leave from the department and they were unable to get him to testify. The judge denied the requests.

To buy more time to try to get Mayer to court, the circuit attorney’s office in March 2022 dropped the cases and refiled them. Potter’s attorney said the move violated his client’s right to a speedy trial; Renick’s said it was an abuse of the criminal justice system.

By then, Mayer was approaching retirement and using his accumulated sick time. Mayer said he called in sick for several months in 2022, a common practice among St. Louis officers to maximize their payout for unused sick days, and left the department in September of that year, when he reached the mandatory retirement age of 65.

The trial of Potter began in August 2022. Without Mayer, the case against Potter rested on a single eyewitness who had told Mayer she heard Potter give the order to shoot. Potter had told Mayer he didn’t know Renick had a gun, and that the shooting had surprised him, according to testimony at the trial.

Potter’s attorney, Travis Noble, sought to undermine the credibility of that witness, according to the transcript. Noble’s questions during cross-examination revealed that the eyewitness had lied under oath in a previous case and suggested a possible hidden agenda for her implication of Potter: that Mayer had showered her with compliments, called her a hero and promised to intercede with her parole officer. She was on parole for drug trafficking.

Noble also challenged parts of the investigation as unethical and incomplete. In his opening statement, he noted that Mayer, the detective who wrote all the reports, wasn’t there in court but that jurors would instead hear testimony from another detective, Benjamin Lacy, who hadn’t written the reports.

Marvin Teer, chief trial assistant for the St. Louis circuit attorney’s office (Robert Cohen/Pool Photo)

In an exchange with Teer in court, Noble said he would reveal the reason for Mayer’s absence to the jury, insinuating there was more to the story. Out of earshot of the jury, Noble told the judge that he’d heard rumors that Mayer simply “doesn’t want to come back” to testify and said he wanted to ask Lacy about it on the stand, according to the trial transcript.

“He said, ‘F the city of St. Louis,’” Noble told the judge. “He’s riding out, burning his sick time until he can retire.”

The judge said he was wary of derailing the trial by allowing the jury to hear questions about Mayer’s absence. He pointed out that another prosecutor had vouched for Mayer’s medical condition, and he had to accept it as fact. The judge told both sides to say Mayer was “not available.”

In cross-examination, Noble pressed Lacy for details that Mayer had not recorded in his report.

“I know this is not your investigation,” Noble said. “I’m not saying you were derelict the way you did it. This ain’t you. This is Mayer’s investigation, right?”

Lacy answered: “It is.”

The jury acquitted Potter after less than a day of deliberation.

“There was no evidence presented that seemed credible,” the jury foreman, Adam Houston, said in an interview. “Maybe the detective could have made the difference if he had been a credible witness, but it was just some really crappy pictures, a lot of hearsay and random people who are not trustworthy saying things you don’t feel were unmotivated by the things they might be getting out of testifying.”

A week before Renick’s murder trial was set to begin in June, Teer struck a deal for him to plead to involuntary manslaughter; under what’s known as an Alford plea, Renick maintained his innocence even as he conceded prosecutors had enough evidence to convict him. Renick was sentenced to 10 years in prison; under parole guidelines, he is scheduled to be released in August 2025.

While the judge said he didn’t typically discuss plea deals, he described Renick’s sentence as “extremely favorable.” If the case had gone to trial, he said, Renick could have faced life in prison.

Teer said he was “incensed” over how Mayer affected his cases.

Mayer lives far from where he once tried to solve some of the city’s most brutal crimes, in a home set in woods off a dirt road about 100 miles south of St. Louis. Reporters from ProPublica and the Riverfront Times interviewed him in front of his home in June and again in October, each time for about 90 minutes.

Mayer has told prosecutors that he suffers from a heart condition, according to Teer. During the interviews, he said his physical decline should be plainly visible, and he repeatedly apologized for seeming groggy or forgetting key details, which he blamed on the medications he takes. He declined to share his medical records.

This is not the first time Mayer has claimed to be sick for extended periods, but he said that allegations he has abused sick time are false. Before joining the St. Louis police force in 2005, Mayer worked for 24 years in the police department in St. Charles, a major St. Louis suburb. He also took on leadership roles with the FOP, and eventually became its statewide president, representing some 5,000 officers.

In 1995, the St. Charles chief, David King, wrote in an internal memo that Mayer had developed an attitude that “may be counterproductive to police efforts” after his work shift was changed, according to court records.

Mayer then called in sick for 4 1/2 months, producing doctor’s notes that said he had shortness of breath and vocal cord spasms, according to court records. In a memo in January 1996, King noted that Mayer had been seen at an FOP dinner dance and was attending union-related meetings.

In 2003, some St. Charles City Council members wanted to trim Mayer’s benefits, including the 200 hours a year of paid leave he received to do union work. He filed a workers compensation claim for stress-related illness from the “constant and pervasive harassment” of the city council members, then called in sick for five months. His doctor noted that while Mayer was too sick to work, he was able to carry out his FOP duties, which carried “minimal stress,” according to medical records in court papers.

In May 2004, Mayer sued the city, the city administrator and all 10 council members, alleging they were harassing him and causing him health problems. The city countersued with a host of charges against Mayer, including repeated sick time abuse. It pointed to his work for the FOP and claimed that he was physically active.

Mayer was fired in April 2005, according to court records, then months later hired by the St. Louis police department. Mayer and the city of St. Charles agreed to drop their lawsuits, with the city agreeing to pay Mayer $57,000 and describe his departure in personnel records as a retirement, according to news reports.

Fourteen months into his retirement, Mayer recalled how he used to relish testifying in court, a task he called the “crowning jewel” of police work. He said he particularly enjoyed the results of his testimony: helping to send a defendant to prison.

But Mayer said he doesn’t want to think about the horrors of his old job. “That city was just a toilet, and the violence put on other people is just horrendous,” he said. “I don’t really want any involvement anymore,” he added. “I’m retired, you know — aging — and I have my kids and my grandkids.”

That attitude comes with a cost. In the case against Neptali Mejia for the murder of Jonathan Cruz, Mayer’s reluctance to testify casts doubt on the prosecution’s ability to get a murder conviction.

Ivan Cruz said he fears the people involved in his brother’s death will become emboldened if Mejia is not convicted of murder. He said he believes that potential co-defendants have seen Mejia on house arrest and “laugh about it and say the system is not going to do anything.”

In February, Judge Katherine Fowler granted a motion by Mejia’s lawyer, Mark Byrne, to exclude Mayer from testifying because prosecutors had not made him available for a pretrial deposition. Byrne noted in the motion that the prosecutor had told him and the judge months before that Mayer “has not been cooperative with prosecutions of cases in the City of St. Louis.”

Mayer was the only detective present when Mejia allegedly made statements that prosecutors say implicated him, and prosecutors have not disclosed any witness who could provide evidence against his client, Byrne wrote. It’s not clear if a prosecutor would be able to use the recording of Mejia’s statements at trial without Mayer appearing in court to testify about it.

Byrne said if the case were to go to trial, he would ask the judge to bar the recording because he would not have a chance to cross-examine Mayer about it.

“Any evidence they would try to put on and not have the lead detective is problematic,” he said. “The lead detective has his hands on everything and directs people to do things as part of their investigation.”

Two weeks before publication of this story, Teer said he’d been “troubled for quite some time” about Mayer’s absence from the Mejia case. “You can expect that he’ll receive a subpoena from us,” Teer said.

“And if I have to arrest Tommy Mayer to bring him in,” he added, “then I will.”

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by Duaa Eldeib

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Legal experts from two universities will convene a group to study a dubious forensic test that has helped send some women to prison for murder though the women insisted they had stillbirths.

Last month, ProPublica reported on what’s known as the lung float test, which some medical examiners use to help determine whether a child was stillborn or was born alive and took a breath.

In response to the investigation, Aziza Ahmed, a professor at Boston University School of Law, and Daniel Medwed, professor of law and criminal justice at Northeastern University, announced they will lead the Floating Lung Test Research Study Group. The group, which will consist of lawyers and medical professionals, will be sponsored by the Boston University Program on Reproductive Justice and the Center for Public Interest Advocacy and Collaboration at Northeastern University School of Law.

“This is entirely due to the ProPublica report,” Ahmed said last week. “We realized it was time to take action.”

The aim of the group is to study the medical underpinnings of the lung float test, also referred to as the floating lung test, and determine whether it should be used in court. ProPublica’s reporting found that although several medical examiners said the test is unreliable, it had been used in at least 11 cases since 2013 in which women were charged criminally, and it has helped to put nine of those women behind bars. Some later had their charges dropped and were released.

The test, which has been around for centuries and remains essentially unchanged in spite of medical advances, is typically used in cases when births occurred outside of a hospital. Critics have likened the test to witch trials, when women were deemed to be witches based on whether they floated or sank.

When told about the study group, Dr. Joyce deJong, president of the National Association of Medical Examiners, said the organization “supports initiatives that aim to enhance forensic tests’ scientific rigor and reliability.” It doesn’t have an official stance on the test, but deJong said a primary role is to “promote best practices and standards in forensic pathology and death investigation.”

If the study group asks for board-certified forensic pathologists to participate, the organization could share the request with its members, deJong said.

The group leaders plan to spend the next several weeks assembling a team and hope to have their first meeting early next year.

“The process will be robust and comprehensive,” Medwed said. “We will explore and interrogate any argument, pro and con.”

Many medical experts say that air can enter the lungs of a stillborn child even without breathing. Air can enter when the baby’s chest compresses as it squeezes through the birth canal, through CPR or during the ordinary handling of the body. If the body is decomposed, gases may cause the lungs to float.

Following the U.S. Supreme Court’s decision to strike down the constitutional right to abortion, experts fear the test may play a larger role in cases when police and prosecutors raise questions about the circumstances of a birth.

“There’s a concern that more women would be vulnerable to prosecution, especially if they tried to self-induce later in pregnancy,” Ahmed said. “In this environment, the floating lung test is something that prosecutors would rely on.”

Medical and legal experts have pointed to wide variations in how the test is conducted, including the fact that some medical examiners use a whole lung while others use pieces. Experts have said the lack of standardization required by other forensic disciplines, such as DNA testing, has led to the lung float test producing inaccurate results.

Medwed, who also is a founding member of the board of directors of the Innocence Network, a coalition of organizations dedicated to fighting wrongful convictions, said that nearly 25% of wrongful conviction cases since 1989 involved some type of flawed science.

Because the lung float test is conducted by medical examiners, Medwed said, he worries the “mystique of the white coat” leads judges and jurors alike to overvalue the test. Similar concerns have been raised about shaken baby syndrome, which has faced increased scrutiny in recent years. There’s a natural deference to the expert, he said, and specifically the expert best at persuading a jury.

“The downstream consequence,” he said, “could be a wrongful conviction.”

Even supporters of the test acknowledge its drawbacks, conceding there are many ways to perform it and that they shouldn’t rely solely on the test when investigating a death. Despite those shortcomings, judges have allowed prosecutors to use it as evidence in court.

ProPublica wrote about the case of Moira Akers, a Maryland mother who insisted she had a stillbirth but last year was sentenced to 30 years in prison after a jury found her guilty of child abuse and murder. The medical examiner in the case relied on the lung float test. The state’s attorney’s office declined to comment while the case was on appeal.

The Appellate Court of Maryland is set to hear Akers’ appeal in early January.

by Eli Hager

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

The Biden administration this fall is quietly moving to overhaul welfare, aiming to end multiple abuses of the nation’s cash assistance program for the poor that a 2021 ProPublica investigation found states have been engaging in for years.

Through a package of proposed reforms to the Temporary Assistance for Needy Families program, or TANF, the administration plans to shore up the U.S. social safety net. The regulations are intended to ensure that more federal and state welfare dollars make it to low-income families, rather than being spent on other things or not spent at all.

The proposal, drawn up by the federal Administration for Children and Families, is open for public comment until Dec. 1. Once comments are reviewed, officials plan to issue final regulations that could take effect in the months after that, heading into the 2024 election.

The first change would prohibit states from counting charitable giving by private organizations, such as churches and food banks, as “state” spending on welfare, a practice that has allowed legislatures to budget less for programs for low-income families while still claiming to meet federal minimums. ProPublica documented how Utah avoided more than $75 million in spending on public assistance over the past decade by taking credit for aid to the hungry and homeless provided by the Church of Jesus Christ of Latter-day Saints. (Many of the vulnerable Utahns we interviewed felt that in order to access desperately needed aid, they had to participate in Mormon religious rites they didn’t believe in.)

By banning this practice, the Biden administration’s plan would force Utah to stop taking credit for what the church does and instead spend more state money assisting people in poverty.

The new rules would also restrict states from spending TANF funds on child protective services investigations, foster care or any other programs that don’t meet the fundamental purposes of welfare: strengthening poor families and keeping them together. ProPublica found that in Arizona and elsewhere, money meant to help parents struggling to raise their children is instead used to investigate them for alleged child maltreatment — which often stems from the very financial circumstances that they needed help with in the first place.

Under the Biden plan, Arizona would likely have to find other ways of funding its aggressive child protective services investigations of poor parents and use welfare dollars to help families stay together rather than removing their kids into foster care.

The reforms would also redefine the term “needy” to refer only to families with incomes at or below 200% of the federal poverty line. Currently, some states spend TANF money on programs like college scholarships — or volleyball stadiums — that benefit more affluent people.

Ashley Burnside, a senior policy analyst and expert on TANF at the Center for Law and Social Policy, an advocacy organization for low-income Americans, said that political support for such improvements to welfare has grown in recent years, especially amid the pandemic, when so many more families started to need help. Media coverage by both ProPublica and Mississippi Today helped make this happen, she said.

As ProPublica has reported, many of welfare’s failures originated with a 1996 law signed by then-President Bill Clinton. That legislation, which Biden supported at the time as a senator, gave states broad flexibility over how to spend their annual grant of federal dollars intended for the poor. In the decades since, legislatures, especially in the South and Southwest, have found ever more creative outlets for the funding, including diverting it to anti-abortion clinics or not spending it at all.

The Biden administration’s proposal would mandate that states provide concrete evidence, including social science research or real-world examples, showing that they are using their TANF spending in ways that truly help families in need.

One of the best ways to do that, according to the administration: direct cash assistance. “We remind states that there is a large body of research that shows that cash assistance is a critically important tool for reducing family and child poverty,” said the announcement of the proposed regulations. “Studies have found that when families receive TANF and are more financially secure, they are less likely to be involved in the child welfare system.”

The announcement also said that states will have time to create new TANF plans; the implementation period will be flexible. But, ultimately, if they fail to comply, they will be assessed a significant penalty for misuse of funds.

“This will not completely solve the problem of the leakage of TANF funds,” said Burnside. “But it will create guardrails so that more money actually gets to poor families.”

by Tony Cook, IndyStar, and Emily Hopkins, ProPublica

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.

Dena Sue Patel couldn’t hide her desire for a teenager at the youth treatment center in northern Indiana where she worked as a supervisor, according to court records.

Patel, 50, allegedly used her key fob to enter a 19-year-old resident’s living area at Pierceton Woods Academy on her days off and took him on private walks. Patel told the boy, “I’ve been wanting you,” and had sexual contact with him, prosecutors have alleged, and she admitted to being in a “romantic” relationship with the boy in a text message to a co-worker.

In August, Indiana prosecutors charged Patel with sexual misconduct and she pleaded not guilty. It was the third time since 2019 that police or child protective services formally accused a female staffer at Pierceton Woods of sexual abuse or misconduct involving residents.

In response, the state’s Department of Child Services temporarily stopped referring children to Pierceton Woods, which treats boys for substance use disorders and sexually harmful behaviors.

That lasted 11 days.

DCS lifted the hold after Pierceton Woods leaders committed to train staff and supervisors on appropriate boundaries and warning signs of abuse. Since then, DCS has accelerated referrals to the 48-bed facility, according to a spokesperson for Lasting Change Inc., a faith-based nonprofit that manages the facility.

This isn’t the first time the state has sent children to Pierceton Woods despite having evidence in its own files that they might not be safe there.

Since 2017, DCS has received at least 27 reports alleging sexual abuse or inappropriate behavior by staff at Pierceton Woods, an investigation by IndyStar and ProPublica found. In interviews and sworn depositions, former employees have identified more than a dozen female staffers they suspected of grooming or sexually abusing teenage residents.

Some of the allegations of abuse had previously come to light, but a deeper examination shows how widespread the accusations were and how a lack of oversight left residents vulnerable.

The news organizations found that Pierceton Woods managers and staffers ignored signs of abuse. In at least one case, state records show, an employee was able to abuse a resident even after supervisors were made aware of concerns about her conduct.

DCS has the authority to require the academy to submit plans of correction, temporarily stop sending children to the facility or even sever the relationship entirely. But the agency has done little to crack down on Pierceton Woods, which sits in a quiet wooded area about 30 miles northwest of Fort Wayne.

For example, after finding that Pierceton Woods failed to report abuse to DCS in 2020, agency officials required the facility to revise its guidance for employees. But the revisions that DCS approved contained no significant changes, and child-welfare experts said both versions of the policy may violate Indiana’s mandatory reporting law.

Even when Pierceton Woods did report suspected abuse, DCS didn’t investigate many of the reports. And in at least two cases, records indicate that the agency declined to look into allegations against staffers who were later found by police or a subsequent DCS investigation to have abused residents.

Over the last seven years, DCS has sent tens of millions of taxpayer dollars to companies managed by Lasting Change, which has deep political connections in Indiana. Among its supporters: Mike Pence, the former vice president and state governor.

DCS declined requests to interview agency officials, including Director Eric Miller, who was appointed by Gov. Eric Holcomb in May. Spokesperson Brian Heinemann did not answer reporters’ detailed questions about Pierceton Woods, saying confidentiality laws prevent the agency from addressing its involvement with children and families.

But in a statement, he said: “The safety and well-being of each child in DCS’ care is our top priority.” Heinemann added that people who suspect child abuse or neglect should immediately report it to the agency or call 911.

Lasting Change, which is based in Fort Wayne, provides a wide range of child services across the state through its Lifeline Youth & Family Services, one of DCS’ largest contractors. Officials for Lasting Change declined requests to interview CEO Tim Smith and did not answer questions about specific abuse allegations at Pierceton Woods, citing client confidentiality rules and employee privacy.

The company has denied failing to protect minors from sexual abuse and, as alleged in a former resident’s lawsuit, covering up allegations.

“We always report allegations, regardless of potential severity, and act upon them with speed, transparency, and in full cooperation with DCS,” company spokesperson Curtis Smith, who is not related to Tim Smith, said in an email.

Curtis Smith defended the facility’s track record and said reporters’ questions concerned “a very small number of clients and co-workers over a 55-year history.” The facility complies with DCS procedures and submits its policies to DCS for review annually, he added.

“We’re proud of our historical success serving these boys, but it is hard; their experienced trauma is great. The pressure on our staff while treating these boys is great,” he said. “We continue serving them today, but false accusations from any source are affecting our ability to continue serving these boys.”

Lasting Change also remains proud of its success as a business fueled by government money. At a ribbon-cutting ceremony this June, the chief executive offered thanks to DCS.

“There have been few times in 50 years when we’ve had more kids,” Tim Smith told a group of supporters celebrating the opening of a new greenhouse. “So from a business perspective, we’ve never done better.”

Tim Smith is CEO of Lasting Change, the company that manages Pierceton Woods. Lasting Change denied covering up any abuse. (Kelly Wilkinson/IndyStar) “Assembly-Line” of Abuse

The first known allegations against Darby Ellis, an independent living specialist at Pierceton Woods, came in 2017.

The report to DCS was screened out — deemed not worthy of investigation — because the resident had turned 18 prior to the report being made. This is a common practice among child welfare agencies but it can put children at risk if there is, in fact, a predator in the workplace, child welfare experts said. Some states allow investigations for youths age 18 or older under certain conditions.

Following the 2017 allegation, Ellis was asked to take a polygraph test, and she declined. Two years later, she was promoted to a position that allowed her to take residents on unsupervised trips off campus.

It wasn’t the last time DCS or Pierceton Woods missed an opportunity to protect children.

Suspicion arose again around Ellis in 2019. Security camera footage captured her in a “full frontal hug” with one boy, employees told DCS, and video showed Ellis and the same resident walking away from the facility, toward the soccer field, where there were no cameras. The resident had placed his hand on the small of Ellis’ back. Supervisors were aware of the footage, according to DCS records.

A manager even advised Ellis not to be alone with residents “due to some rumors that were going around,” but the facility did not report Ellis to DCS for another week.

In the meantime, Ellis was allowed to take two residents to dinner and a movie in Fort Wayne, where she “made out” with one of the teens, the two residents later told investigators.

Alexandra Chambers, then a youth treatment specialist, advocated for reporting the incident to DCS.

In an interview with ProPublica and IndyStar, she said that Pierceton Woods had problems both monitoring employee-resident interactions and quickly reporting suspicions of inappropriate behavior.

“All the employees knew of areas that didn’t have cameras,” Chambers said. “Everybody knew where the blind spots were.”

While working as a youth treatment specialist at Pierceton Woods, Alexandra Chambers pushed to make sure an abuse allegation was reported to DCS. (Shelby Tauber for ProPublica)

When she first became concerned about Ellis, Chambers said she hesitated to inform her managers because she feared they would dismiss her concerns as hearsay. “It was already known to me that they basically weren’t going to take the proper steps,” Chambers said.

One of the boys from the Fort Wayne trip then told Chambers that he had been abused by Ellis, and Chambers reported that conversation to a supervisor. The supervisor told the director of operations, who said in a deposition that he took it to the head of case management. Only then was a report made to DCS.

DCS investigators were told by one teen that Ellis gave him lollipops and performed oral sex on him. A 16-year-old said she took him to the facility’s soccer field, where she “made out” with him and they groped each other.

DCS determined that Ellis had what she called her “circle of trust” with three boys, allowing them to “do or say anything to her without consequences,” and it found that the abuse allegation involving the 16-year-old was substantiated. An allegation is considered substantiated if there is a “preponderance of evidence” that abuse took place.

Ellis was fired. And the 16-year-old’s family sued Pierceton Woods, alleging that the facility was responsible for allowing Ellis to abuse the boys then covering it up.

Kristine Chapleau, a psychologist hired by the boy’s family as part of the lawsuit, reviewed allegations against Ellis and found that Ellis “had groomed and abused these boys in an assembly-line fashion.” Chapleau also concluded that Pierceton Woods “maintained a culture of silence to suppress reports of sexual abuse.”

Smith, the spokesperson for Lasting Change, dismissed the psychologist’s assessment as one-sided because she was a paid expert for the plaintiff.

Lasting Change settled the lawsuit last year for $72,000. As part of the settlement, the teen was prohibited from discussing the case publicly and Pierceton Woods admitted no wrongdoing.

Ellis, then 25, denied the accusations to DCS and, in a deposition, disputed the characterization of a circle of trust. She did not respond to inquiries from reporters.

Police referred the allegations to the Kosciusko County prosecutor’s office. Ellis was not charged. The county prosecutor declined to comment.

DCS Failed to Crack Down

An examination of DCS’ investigations into Pierceton Woods shows the agency finding problems but not always fixing them — or sometimes standing by as the same problems reemerged.

During a DCS licensing audit in August 2020, the agency found that Pierceton Woods knew about suspected sexual abuse but failed to report it.

Pierceton Woods “has had multiple reports to the DCS hotline alleging staff and youth inappropriate and/or sexual relationships,” the audit said. “The majority of these reports were not reported” by the facility.

In several instances, the audit said, Pierceton Woods staff were aware of the allegations and conducted interviews with staff and youth “but did not make a report to the DCS hotline.”

To fix the problem, DCS required Pierceton Woods to revise its reporting policy to better align with Indiana’s mandatory reporting law, which requires abuse to be reported to DCS or law enforcement immediately and prohibits facilities from imposing policies that delay reporting. The audit said the revisions were supposed to ensure the agency reports “all suspected abuse and neglect to the DCS hotline prior to completing any internal interviews.”

But the revised policy DCS approved still required employees to report suspected abuse to supervisors before DCS or police. It also gave the facility 24 hours to report abuse — a much larger window than the four hours the state’s high court ruled was too long in another case.

In fact, the Indiana attorney general’s office argued in a case involving USA Gymnastics that its 24-hour policy “falls short of the requirements imposed by Indiana law … as well as what is necessary to protect athletes and children across the nation from abuse.”

DCS did not answer questions about why it approved the Pierceton Woods reporting policy.

Even when Pierceton Woods did report abuse to DCS, emails disclosed in the civil lawsuit show the agency often failed to investigate.

Indiana law requires DCS to investigate “every report of known or suspected child abuse or neglect the department receives.” But the agency screens out reports if they don’t meet the statutory definition of child abuse or neglect, or if there isn’t enough information to locate the child.

DCS does not provide numbers or records that would show how often it screens out reports for individual facilities. However, emails between staff at Pierceton Woods and the state licensing department offer a window into the practice.

DCS screened out at least 17 reports of suspected abuse by staff members at Pierceton Woods from 2017 to 2021, an examination of the emails shows.

The emails also show that, in addition to screening out the 2017 allegation against Ellis, DCS screened out a 2020 allegation against youth treatment specialist Kaitlyn McCullough. In June of that year, Pierceton Woods reported to DCS that one resident claimed another resident — who was under 18 — had an “inappropriate relationship” with McCullough, then 24.

The emails do not indicate the reasoning for screening out that allegation. DCS declined to comment.

Three weeks after the original allegation was set aside, Pierceton Woods submitted another report involving McCullough and the same resident. This time, the resident had shared Facebook messages between himself and McCullough in which they “professed having feelings” for each other, according to a July 8 email from Pierceton Woods to DCS’ residential licensing unit.

The boy also said he and McCullough had kissed.

Only then did DCS investigate, ultimately leading to criminal charges against McCullough. It is unclear from the emails and court records whether any abuse occurred during the 19 days between the first and second reports to DCS.

Court records show she admitted communicating with him over private Facebook messages and that they kissed and groped each other. She pleaded guilty to two misdemeanor counts of obscene performance as part of a plea deal.

McCullough’s lawyer said abuse allegations were “neither proven or agreed to” by his client, even though the charge to which she pleaded guilty, obscene performance, is considered “child abuse and/or neglect” under Indiana’s child welfare statutes.

Melinda Gushwa, a child welfare researcher and former child protective services investigator in California, said the state needs to examine the culture and climate that has produced so many reports of abuse. Given the history of Pierceton Woods, she would expect more involvement from the state.

“It’s concerning,” said Gushwa, who now leads the applied social sciences department at Technological University of the Shannon Midwest in Ireland. “We should have a higher level of scrutiny when we’re talking about vulnerable children.”

Pierceton Woods Academy (Kelly Wilkinson/IndyStar) “Designed to Impede Reporting”

Indiana’s mandatory reporting law is intended to protect alleged victims from any additional abuse and prompt a quick investigation before evidence is lost or contaminated, and courts have found that even waiting a few hours to report concerns to authorities can be a violation. For institutions such as Pierceton Woods, the law also prohibits policies that restrict or delay an employee’s duty to report.

But a 2021 copy of the facility’s reporting policy obtained by reporters prioritizes reporting suspected abuse to company supervisors over DCS or police.

“The direct care staff are obligated to make sure that the first person informed of any allegation is the Program Manager/Coordinator,” the policy says. The sentence is the only one underlined in the five-page reporting policy.

Three child-safety experts said reporting policies like the one at Pierceton Woods defy best practices and may violate the law.

An excerpt from Pierceton Woods’ 2021 reporting policy shows that staff were required to report suspected abuse to supervisors before going to DCS. (Pierceton Woods Academy reporting policy)

“It seems designed to impede reporting,” said Yvonne Smith, a professor at Syracuse University in New York who studies youth residential care and reviewed the policy at the request of the news organizations. “I mean, this document is horrible. I would throw this in the trash and start over.”

Pierceton Woods’ policy also included a flowchart that shows reports of suspected abuse passing through several layers of staff, including supervisors and officials who are described as directors. The director, according to the flowchart, “determines if the offense qualifies as abuse/neglect” before it is reported to DCS.

But it’s the role of DCS or law enforcement, not employees at the facility where the alleged abuse occurred, to investigate allegations, said Toby Stark, an expert on child abuse prevention who in 2017 was tapped to lead SafeSport at USA Gymnastics after revelations that the organization’s policies had failed to keep athletes safe from sexual abuse.

This flowchart from Pierceton Woods’ 2021 reporting policy requires allegations of abuse to pass through multiple employees and supervisors before being sent to DCS, even though the law requires DCS to be informed immediately. (Pierceton Woods Academy reporting policy)

In general, Stark said, supervisors are prone to dismissing reports because of potential reputational harm to the accused or the organization. Sometimes, she said, supervisors just have a hard time accepting that sexual abuse could be happening at their workplace.

“How many times will a supervisor unwittingly, unknowingly — not maliciously — talk a person out of reporting?” Stark said.

Curtis Smith, the Lasting Change spokesperson, would not confirm whether the policy remains in place.

Former employees said the policy deterred reporting. While the policy required staffers to go to their supervisors, they often found those supervisors skeptical of abuse allegations. At least three former employees said supervisors didn’t take allegations of abuse seriously unless a staff member witnessed it or a resident told a staffer directly that they were abused.

Experts said that’s not the way mandatory reporting is supposed to work. Indiana’s law doesn’t require firsthand information. It simply requires a “reason to believe” that abuse has occurred.

Kat Manteufel, a former Pierceton Woods youth treatment specialist, said in a sworn deposition that she had heard about a staff member groping a resident. But she said she didn’t feel confident the situation would be handled appropriately if she followed the facility’s reporting policy.

“According to the handbook that we had, we were told to follow a certain chain of command,” she said. “Well, when I started realizing that nothing was going or getting past the direct supervisors, I went over all of their heads and called the DCS hotline.”

About two weeks later, she was fired, she said.

“They told me that they felt like they couldn’t trust me, and that I violated policy,” she said in a deposition for the lawsuit brought on behalf of the 16-year-old who said Ellis abused him. “I assume that I was fired because I called DCS instead of following the appropriate chain of command policy.”

Lasting Change did not answer questions about Manteufel’s termination, but Smith, the company’s spokesperson, emphasized that some of the complaints about Pierceton Woods in depositions came from former employees “who were either subject to discipline or were terminated.”

“We’re Still in Business”

Beyond Pierceton Woods, Lifeline Youth & Family Services, another Lasting Change organization, provides DCS with a multitude of services: home-based welfare, family preservation, and adoption and guardianship support services.

Together, Lifeline and Pierceton Woods have received about $250 million from DCS since fiscal year 2017, according to state spending records.

Much of Lifeline’s growth took place when Pence was running the state. As governor, Pence spoke at a fundraiser for one of Lasting Change’s companies, Crosswinds Counseling. Pence also named Lasting Change’s former longtime CEO Mark Terrell to a committee that nominates judges for Allen County, home to Fort Wayne. A former Lifeline official served as chief of staff to Karen Pence during her husband’s term as governor.

In a statement, a spokesperson for Mike Pence said Pence was unaware of the sexual abuse allegations at Pierceton Woods.

“ProPublica provided no evidence that Mike Pence had any role in Lifeline’s growth as a state contractor,” the spokesperson said in an email, “yet are still dragging him into a story that encompasses a time period during which Mike Pence was not even governor.”

The growth has benefited Lasting Change’s leaders. Terrell’s compensation increased 73% from $251,883 in 2015 to $435,600 in 2021, according to Lasting Change’s tax filings.

Tim Smith, who succeeded Terrell as CEO last year, also has ties to the Republican Party. In 2019, he ran as the Republican candidate for mayor of Fort Wayne and lost. Now, he’s running for Congress. In a recent campaign video, he described himself as a businessman and touted his work as the leader of “the largest Christ-centered family services provider in Indiana, fighting to protect kids and lift up families.”

Earlier this year, the company turned to Indiana’s Republican-controlled legislature for help. As a result of the lawsuit by one of Ellis’ accusers, Pierceton Woods’ annual insurance premiums skyrocketed from $30,000 to $500,000, according to Smith, a former insurance executive.

He made that disclosure while lobbying state lawmakers for a proposal that would have given DCS contractors such as Pierceton Woods and Lifeline immunity from many kinds of lawsuits.

During hearings on the proposal, Smith and Lifeline’s lobbyist, Brian Burdick, repeatedly referred to the 16-year-old’s lawsuit as a “nuisance” case. (Travis McConnell, the attorney for Ellis’ accuser, has rejected that characterization.)

Neither Burdick, Lasting Change CEO Smith nor Terrell disclosed during their testimony to lawmakers that the abuse claim that was central to that lawsuit had been ruled to be substantiated by DCS.

“We’re still in business, so you can draw your own conclusions as to the merits of that suit,” Smith told legislators.

Lawmakers were poised to add a version of the immunity proposal to an unrelated bill during the final days of the legislative session in April.

Then an IndyStar story detailed sexual abuse allegations at Pierceton Woods. Quickly, lawmakers removed the language.

Update, Nov. 29, 2023: This story has been updated to include the name of the psychologist who reviewed allegations against Pierceton Woods Academy on behalf of a family suing the facility.

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.

Jefferson Parish, Louisiana, has agreed to pay settlements to two families who accused its sheriff’s deputies of using excessive force against teenagers.

The Jefferson Parish Sheriff’s Office agreed to contribute to a $1.25 million settlement with the family of Eric Parsa, a 16-year-old boy with severe autism who died nearly four years ago after deputies pinned him to the pavement and then sat on his back for more than nine minutes. The September settlement, the cost of which will be shared by the shopping center where the boy died, is one of the largest in the department’s history.

The Parsa settlement also requires that an outside expert develop a program to train JPSO deputies on how to deal with people with autism. Parsa’s parents, Donna Lou and Daren Parsa, told Verite News they hope it will prevent other families from enduring the same pain they have suffered.

JPSO also will pay an undisclosed sum to the family of Tre’mall McGee, who was shot in the shoulder by a deputy while he was facedown on the ground, about two months after Parsa’s death. The sheriff’s office was accused of concealing its role in the shooting of the 14-year-old from both the public and McGee’s mother for months. McGee’s attorney, Ron Haley, said neither he nor McGee’s mother, Tiffany, could discuss terms.

Both Parsa’s death and McGee’s shooting were covered as part of a yearlong investigation by ProPublica and WWNO/WRKF, which found that JPSO rarely upholds complaints against its deputies. Over a three-year period, from 2017 to mid-2020, JPSO’s internal affairs division upheld only one misconduct complaint against a deputy, according to the investigation by the news organizations. During that same time, the New Orleans Police Department upheld 247.

The sheriff’s office did not respond to requests for comment, but in a recent interview with WWL-TV, Sheriff Joe Lopinto said his deputies didn’t do anything wrong in the Parsa case and were not deserving of discipline. He has previously denied any wrongdoing in the McGee case as well.

“This is not a scenario where any of our deputies are trying to hurt a kid, trying to use force or even justified using deadly force,” he told WWL-TV about the Parsa case. “They’re encountering a situation that happens … and in the course, a death occurs.”

The two recent settlements have led the ACLU of Louisiana to renew its calls for federal prosecutors to investigate the sheriff’s office and put the agency under a consent decree. Relying on lawsuits filed by the victims of police brutality is not enough to force JPSO to reform its practices and stop violating the civil rights of people with disabilities and Black and Hispanic residents, said Nora Ahmed, legal director of the ACLU of Louisiana.

“It cannot be the case that people continue to be killed, maimed and violated, and the only recourse that they have is yet another lawsuit that will be fought to the bones, and, if they’re lucky, settled,” Ahmed said.

Handcuffed and Shackled

Parsa died in January 2020 in the parking lot of the Westgate Shopping Center in Metairie. Surveillance footage shows the boy repeatedly slapping his own head, then slapping and wrestling with his father for several minutes before law enforcement was called.

A nearby business manager contacted a JPSO deputy who was working a security detail for the shopping center and informed him that a child with special needs was having a violent episode. In total, at least six deputies arrived in four patrol cars and two unmarked vehicles. They handcuffed and shackled the teen as deputies took turns sitting on his back, with one putting him in a chokehold. After nearly 10 minutes, deputies noticed Parsa had gone “limp” and urinated, according to the lawsuit.

“When I saw Eric’s dead body in the emergency room, I broke out into tears saying: ‘Sorry. I’m sorry, I’m sorry,’” said Daren Parsa, who told the business manager to call the police when his son began suffering a disability-related “meltdown.” “And I’m still sorry. I wish I’d known that when you say ‘yes to law enforcement being involved, there’s a risk of mortality.”

The coroner ruled the teen’s death an accident as a result of excited delirium, with “prone positioning” as a contributing factor.

Up to half of all people killed during encounters with police are disabled, according to a 2016 study by the Ruderman Family Foundation, a Boston-based philanthropic organization.

The inability of those with autism to effectively communicate their feelings can often cause them to express themselves and their frustrations through more negative behaviors, such as aggression and self-injuring, Lou, Parsa’s mother, said. This can lead to deadly results when they encounter police officers who haven’t been trained on how to appropriately handle people with developmental disabilities. “They’re not trying to be malicious. They’re really asking for help,” Lou said. “They’re in distress, and they don’t know how to express it.”

The sheriff’s office stated in court documents that the show of force that day was necessary to deal with a violent and out-of-control teenager, but Daren Parsa said there was minimal risk of danger. His son would often have meltdowns when he felt overwhelmed, but they would fade if he was given space to calm down. Lou said she tried to explain to the officers that one of her son’s triggers while he was in an excited state was being crowded by a lot of unfamiliar people.

“They said, ‘Let us do our job.’ And we all know the outcome of that,” Lou said, “It just doesn’t make sense. We assumed they were trained, that they knew what to do.”

“What’s heartbreaking is that he was calming down,” Daren Parsa said, “and we almost got him inside of the car, and then they showed up.”

by Kavitha Surana

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

State Rep. Taylor Rehfeldt was speaking on the floor of the South Dakota Capitol, four months pregnant with her third child, begging her Republican colleagues to care about her life.

“With the current law in place, I will tell you, I wake up fearful of my pregnancy and what it would mean for my children, my husband and my parents if something happened to me and the doctor cannot perform lifesaving measures,” she told her fellow lawmakers last February, her voice faltering as tears threatened.

Rehfeldt was a stroke survivor and her pregnancy put her at high risk for blood clots and heart issues that could kill her. The state’s ban made abortion a felony unless it was “necessary to preserve the life of the pregnant female.” If Rehfeldt developed complications, doctors told her, the law didn’t make clear how close to death she needed to be before they could act.

“When can a doctor intervene? Do I need to have my brain so oxygen-deprived to the point that I am nonfunctional?” she asked the room.

Listen: South Dakota Legislature

In February, Republican South Dakota state Rep. Taylor Rehfeldt, then four months pregnant, spoke on the floor of the state Legislature about how the state’s strict abortion ban put her health at risk.

(Courtesy South Dakota House of Representatives)

Rehfeldt is an ambitious rising Republican: She has a strong anti-abortion voting record and is serving as the House assistant majority leader. She also was a nurse. But her background and credentials failed to rally her colleagues to support a narrow clarification to the ban that would allow a doctor to end a pregnancy if “the female is at serious risk of death or of a substantial and irreversible physical impairment of one or more major bodily functions.”

“I would never have possibly imagined that a bill protecting a woman’s life could be so contentious,” Rehfeldt said on the floor of the House, announcing she was withdrawing her bill before even bringing it to a vote.

The language she and two other Republicans had landed on was still so slim, most national medical organizations and abortion-access advocates wouldn’t support it.

But even that had no chance. South Dakota Right to Life — a local affiliate of the major anti-abortion organization National Right to Life, which can rally voters to sway Republican primary elections — had told her it opposed any changes. (South Dakota Right to Life declined to comment.)

When the Supreme Court struck down the constitutional right to abortion last year, strict abortion bans in more than a dozen states snapped into effect. Known as “trigger laws,” many of the bans were passed years earlier, with little public scrutiny of the potential consequences, because few expected Roe v. Wade to be overturned.

Most of the trigger laws included language allowing abortion when “necessary” to prevent a pregnant person’s death or “substantial and irreversible” impairment to a major bodily function. Three allowed it for fatal fetal anomalies and two permitted it for rape victims who filed a police report. But those exceptions have been nearly inaccessible in all but the most extreme cases.

Many of the laws specify that mental health reasons can’t qualify as a medical emergency, even if a doctor diagnoses that a patient might harm herself or die if she continues a pregnancy. The laws also carry steep felony penalties — in Texas, a doctor could face life in prison for performing an abortion.

The overturn of Roe has intensified the struggle between those who don’t want strict abortion bans to trump the life and health of the pregnant person and absolutists who see preservation of a fetus as the singular goal, even over the objections of the majority of voters. In the states where near-total abortion bans went into effect after Roe’s protections evaporated, the absolutists have largely been winning.

And the human toll has become clear.

On the floors of state legislatures over the past year, doctors detailed the risks their pregnant patients have faced when forced to wait to terminate until their health deteriorated. Women shared their trauma. Some Republican lawmakers even promised to support clarifications.

But so far, few efforts to add exceptions to the laws have succeeded.

A review by ProPublica of 12 of the nation’s strictest abortion bans passed before Roe was overturned found that over the course of the 2023 legislative session, only four states made changes. Those changes were limited and steered by religious organizations. None allowed doctors to provide abortions to patients who want to terminate their pregnancies because of health risks.

ProPublica spoke with more than 30 doctors across the country about their experiences trying to provide care for patients in abortion-ban states and also reviewed news articles, medical journal studies and lawsuits. In at least 70 public cases across 12 states, women with pregnancy complications faced severe health risks and were denied abortion care or had treatment delayed due to abortion bans. Some nearly died or lost their fertility as a result. The doctors say the true number is much higher.

Early signs indicated Republicans might compromise, as voters in red states showed strong popular support for protecting abortion access and polls revealed the majority of American voters do not support total abortion bans. That opposition has only hardened since then, as reproductive rights drove a wave of Democratic electoral victories in Kentucky, Virginia and Pennsylvania in November. In Ohio, voters approved an amendment to the state’s constitution guaranteeing the right to an abortion.

But in the most conservative states, Republicans ultimately fell in line with highly organized Christian groups. Those activists fought to keep the most restrictive abortion bans in place by threatening to pull funding and support primary challenges to lawmakers that didn’t stand strong.

Their fervor to protect the laws reflects a bedrock philosophy within the American anti-abortion movement: that all abortion exceptions — even those that protect the pregnant person’s life or health — should be considered the same as sanctioning murder.

Facing Political Threats, Lawmakers Cave

By the time the 2023 legislative sessions began, the consequences of total abortion bans written years earlier by legal strategists with no medical expertise had become clear.

Across the nation, women described the harm they experienced when care was delayed or denied for high-risk complications or fatal fetal anomalies.

Amanda Zurawksi, a Texas woman who almost died after she was made to wait for an abortion until she developed a serious infection, testified before the U.S. Senate Judiciary Committee: “The preventable harm inflicted on me has already, medically, made it harder than it already was for me to get pregnant again.”

Jaci Statton, an Oklahoma woman who had a dangerous pregnancy that is never viable and can become cancerous, sued after being told that doctors “couldn’t touch me until I was crashing and that we should wait in the parking lot until I was about to die,” she told the Tulsa World.

Nancy Davis, a Louisiana woman who traveled out of state for an abortion after she learned her fetus was developing without a skull, said doctors told her, “I had to carry my baby to bury my baby.”

Mylissa Farmer, a Missouri woman who described being denied abortion care at three separate emergency room visits after her water broke before viability, sparked a federal investigation of the hospitals. The experience was “dehumanizing,” she told The Associated Press. “It was horrible not to get the care to save your life.”

Polls show that the majority of Americans reject laws that don’t allow patients to make health care decisions about their own bodies. When voters have been asked directly, as they were in ballot measures in Kansas, Kentucky, Montana and Ohio, they have chosen to protect abortion access. And in the 2022 midterms, congressional Republican candidates in some swing districts lost over their abortion stances.

Sensing backlash, some Republicans signaled a willingness to revisit their states’ abortion bans.

“I think there’s enough support for a compromised solution that matches up with most voters,” Republican Kentucky state Sen. Whitney Westerfield told Louisville Public Media in November 2022.

“We need to make clear what the trigger law meant,” Tennessee state Sen. Becky Duncan Massey said to WBIR Channel 10 in August 2022. “Doctors should be concerned about saving the life of a mom.”

In 10 of the 12 states with laws that ProPublica reviewed, lawmakers made efforts to add new exceptions or clarify language in 2023. In eight of them, Republicans were part of the effort.

But over time, calls from some Republicans for compromise were overwhelmed by strong opposition from anti-abortion lobbyists. In Idaho, Louisiana, North Dakota, Oklahoma, South Dakota, Tennessee and Texas, Republican lawmakers voted down or killed exceptions that would give doctors broader discretion to address health risks.

In Arkansas, Idaho, Kentucky, North Dakota, Tennessee and Texas, they quashed bills that would let doctors offer abortion when it was clear the fetus would never survive. Bills proposing rape and incest exceptions failed in eight of the states. In Arkansas, lawmakers voted against rape and incest exceptions that were narrowed to apply only to children.

The rejections came after women and families came to statehouses to share their own heartbreaking experiences.

“We found out that my baby had a giant hole in her chest and her intestines were strangling her heart,” Chelsea Stovall said in testimony to the Arkansas State Legislature, crying as she shared her experience terminating a nonviable pregnancy earlier that year. “I had to travel out of state to a doctor who didn’t know me and didn’t know potential complications.”

Stovall told ProPublica she did have complications — she bled for more than a month after the abortion and had to have a second procedure.

State Rep. Delisha Boyd, a Democrat who put forward a rape and incest exception bill in Louisiana, shared that she was conceived when her mother was raped at 15 by an older man.

“I know that my mother never recovered from that and she was dead before she was 28 years old,” Boyd said. “If we are pro-life, we have to be concerned with more than just the baby in utero. No one looked out for my mother. No one looked out for me once I was born.” Boyd said she noticed Republican lawmakers leaving the room as she and other women shared their personal stories.

In Arkansas, when state Rep. Ashley Hudson, a Democrat, proposed a rape and incest exception that was limited to children under 16 — because “we are talking about a situation where a 10-year-old child is being forced to carry a pregnancy that may kill her” — her Republican colleagues swiftly voted against it.

Republican Rep. Cindy Crawford countered with her experience operating a shelter for girls, where she said she had supported many 12-year-olds who gave birth.

“Just because a young girl is pregnant and — at 12 or whatever — you think she should have an abortion, would you not agree that two wrongs don’t make a right? That her mental health would be worse after she experienced an abortion?” she asked Hudson.

“I disagree and I would disagree that it’s up to me at all,” Hudson replied.

All of those efforts failed.

Arkansas lawmakers discuss an bill that would allow abortions in cases of rape or incest involving a child under 16 years old. “We need to start having the discussion about why we’re forcing children to carry pregnancies to term,” state Rep. Ashley Hudson told the state House Judiciary Committee on March 30. The amendment failed. (Courtesy Arkansas House of Representatives)

Four states made minor changes to their total abortion bans, in close alignment with anti-abortion organizations.

In Idaho and Tennessee, doctors who first pushed for changes were cut out of the process after local anti-abortion organizations pressured lawmakers.

In North Dakota, the state repealed its abortion ban because of constitutional challenges. Then the representatives of local Catholic dioceses worked with the hospital association to pass a new bill that was nearly as strict as the original.

In Texas, a narrow bill quietly passed. It was put forward by Democrats, then changed by Republicans and specifically addresses court challenges.

In the four states, the new laws created exceptions for immediately life-threatening situations, such as ectopic pregnancies, where the fetus implants outside the uterine cavity, and molar pregnancies, where no embryo forms. The Texas law still allows doctors to be charged for providing abortion care for an ectopic pregnancy or if a patient’s water breaks before viability, but it codifies those conditions as a legitimate defense in court. The North Dakota law made some small concessions: A “serious health risk” is now defined as one that poses only “substantial physical impairment to a major bodily function,” not substantial and irreversible, for example.

Doctors said the new changes did little to help patients facing health risks or whose fetuses have severe anomalies. They said the exceptions are mainly limited to people who are already facing an emergency.

This was by design, according to some lawmakers, including Idaho state Sen. Todd Lakey, whose exceptions bill intentionally focused only on situations where a pregnant patient is facing death. “That was our decision, was to focus on the life versus more of a health-type exception,” he said. He said earlier that a woman’s health “weighs less, yes, than the life of the child.”

Democratic Idaho state Sen. Melissa Wintrow questions Republican state Sen. Todd Lakey about abortion exceptions that cover only life-threatening conditions, not health risks. “That was our decision, to focus on the life,” Lakey said in March. (Courtesy Idaho Senate)

Also in Idaho, Democratic state Sen. Melissa Wintrow asked David Ripley, the leader of Idaho Chooses Life, why the law’s new language couldn’t include a broader exception for the health of the mother.

“It sounds pretty easy to me to say, ‘Hey, protect the health of the mother.’ I’m at a loss as to why you can’t put that language in the bill,” she said during a hearing.

“In the real world, we’re talking about a spectrum,” Ripley responded. “We’re talking about death, and we’re talking about a headache.” Idaho Chooses Life did not respond to a request for comment.

During the session, a state senator tried to remove Idaho’s exception for rape or incest. He failed, but the exception was limited to the first 12 weeks of pregnancy.

The exception, as with most abortion bans that have a rape or incest clause, requires a woman to produce a police report. Current law doesn’t explicitly guarantee that rape or incest victims can get copies of their own reports when an investigation is open, said Wintrow.

When Tennessee Republicans introduced a bill to give doctors more protection to offer terminations when a pregnant patient faced a condition that could become life-threatening, Will Brewer, the lead lobbyist for Tennessee Right to Life, testified against it, arguing the patient’s condition needed to deteriorate before a doctor could intervene.

“There are issues with pregnancy that could be considered an emergency — or at least could possibly be considered an anomaly or medically futile — that work themselves out,” Brewer, who has no medical training, testified on the House floor. “I’m not talking about an eleventh hour, you know, a patient comes into the ER bleeding out, and what do we do? I’m talking about (a situation when) there is a condition here that some doctors would say constitutes an emergency worthy of a termination and other doctors would say, ‘Let’s pause and wait this out and see how it goes.’ I wouldn’t want the former to terminate when the latter says there’s room to see how it goes before this is urgent enough.”

Will Brewer, the lead lobbyist of Tennessee Right to Life, opposed a bill that would have given doctors more protection to offer terminations when a pregnant patient faced a potentially life-threatening condition. He testified before the state House on Feb. 14. (Courtesy Tennessee House of Representatives)

He also opposed language that would allow doctors to “prevent” medical emergencies instead of treating active emergencies.

“That ‘prevent’ language has me concerned because that would mean that the emergency hasn’t even occurred yet,” he said. Brewer did not respond to a request for comment.

Doctors say that real-life pregnancy complications are rarely so cut and dried. In many cases, patients can go from stable to requiring life support in a matter of minutes.

“It is not always so clear, and things don’t always just work themselves out,” said Dr. Kim Fortner, a Tennessee maternal-fetal medicine specialist with 20 years of experience, testifying at the same hearing.

And doctors point out that health risks that are not immediately life-threatening can still have severe consequences.

Conditions like hypertension or blood clots within the veins that are not life-threatening in the first trimester could cause death as the pregnancy progresses, said Dr. Carrie Cwiak, an OB-GYN in Georgia. In those cases, it should be the patient’s decision whether to continue their pregnancy — not their doctor’s or their legislator’s decision, she said.

Anti-Abortion Groups Turn Up the Pressure

Tennessee Right to Life is part of a network of Christian special-interest groups that represents a minority of voters but wields outsized influence in Republican-majority legislatures. They use score cards to rate lawmakers on their fealty to anti-abortion causes and fund primary campaigns against Republicans who do not toe the line.

In February in Tennessee, for example, seven Republicans at a House subcommittee hearing expressed strong support for a bill written with input from doctors that would create exceptions for abortion care to prevent medical emergencies and for severe fetal anomalies.

“No one wants to tell their spouse, child or loved one that their life is not important in a medical emergency as you watch them die when they could have been saved,” said Republican state Rep. Esther Helton-Haynes, a nurse and one of the bill’s sponsors.

But Brewer, the Right to Life lobbyist, threatened during his testimony before the legislature that the group’s political action committee would issue negative score cards to any lawmaker who voted for a health exception.

His comments drew a strong rebuke from the Republican speaker of the House that day. Afterward, Tennessee Right to Life sent out emails to their network of voters, urging them to contact lawmakers who supported the bill.

Tennessee state Sen. Richard Briggs, a physician, planned to introduce the same bill in the Senate because polling showed about 80% of Tennesseeans believe abortion should be either completely legal or legal under some conditions. But he told ProPublica the pressure was too much. He couldn’t get the bill heard in any Senate committees after Right to Life came out against it.

Weeks later, Tennessee Right to Life supported a separate “clarification” bill that did not address the majority of the doctors’ concerns. No doctors were given the opportunity to speak in the legislature and the bill was quickly passed.

“This is just pure power politics,” said Briggs. “We’re going to have to address that we’re not listening to the voting public. And you know, we could lose. I mean, our people will start losing elections.”

But in Louisiana, Mary DuBuisson, a Republican state representative who proposed a change to clarify that abortions are legal for people having miscarriages, lost her next election after the group ran attack ads against her.

In North Dakota, two Republican lawmakers considering an amendment to allow abortions after the six-week limit in cases of child rape said they would not vote for if it did not have the support of the North Dakota Catholic Conference, a group that acts on behalf of the state’s two Catholic dioceses. The amendment quickly failed.

In March, North Dakota state Rep. Gretchen Dobervich tried to extend the state abortion law’s rape and incest exception from covering six weeks of pregnancy to covering 12. Two of her Republican colleagues opposed the move because it had not been approved by the North Dakota Catholic Conference, a powerful lobby in the state. The amendment failed. (Courtesy North Dakota House of Representatives)

In Idaho, an effort by doctors and the Idaho Medical Association to lobby a small health exception was stopped in its tracks when the chair of the Idaho Republican Party, Dorothy Moon, issued a letter accusing the medical association of being a “progressive trade association” that represents “doctors educated in some of the farthest Left academic institutions in our country.” Soon after, Republicans introduced a separate bill that cut out the doctors and was written with the input of Idaho Chooses Life.

In the four states that did pass bills, the changes were limited and designed to respond to court challenges.

For example, in Idaho, a state district judge found that their no-exception abortion ban violated a federal law that requires emergency departments to treat pregnant patients facing an emergency. The clarification bill, supported by Idaho Chooses Life, made a small exception for life-threatening emergencies, ectopic pregnancies and molar pregnancies, targeted to deflect the judge’s argument.

Idaho and Tennessee “wanted to keep their law intact,” said Ingrid Duran, the legislative director for National Right to Life. Her organization didn’t want to see changes to the bans, but, she said, “I understand why they needed to do that, just to remove the wind from the sails of the opposition.”

The law has continued to make practicing maternal care in Idaho untenable for some doctors. They say the law is still unclear about the level of risk a patient must be facing for a doctor to offer abortion.

“Idaho still has no exceptions for mom unless we know 100% they’re dying,” said Dr. Lauren Miller, a maternal-fetal medicine specialist who has since left the state, part of an exodus of OB-GYNs who have moved due to the abortion ban.

Blaine Conzatti, the president of Idaho Family Policy Center, a group that helped pass the original version of the no-exception abortion law, said his organization did not want to see the law clarified.

“We would want a stricter standard than what this law allows,” he said. In his group’s view, abortion is almost never ethical.

“The only appropriate reason for abortion would be treating the mother and the unintended consequence is the death of the preborn child,” he said. “If the mother got cancer and you began treating her with chemo and radiation and the unintended consequence is that the baby dies, that’s ethically appropriate. But performing an abortion procedure to terminate the pregnancy is not ethically appropriate.”

A Core Philosophy

For the anti-abortion movement, the goal has always been total abortion bans with no exceptions and constitutional recognition that a fetus has the same rights as a person, said Mary Ziegler, a leading historian of the U.S. abortion debate.

This unyielding position was influenced by thinkers like Charles E. Rice, a law professor at the University of Notre Dame whose 1990 book “No Exception: A Pro-Life Imperative,” argues that the anti-abortion movement should not support any exceptions — even for the life of the pregnant person.

“If two people are on a one-man raft in the middle of the ocean, the law does not permit one to throw the other overboard even to save his own life,” he wrote.

The Catholic Church and the anti-abortion movement also have a history of celebrating the stories of women who were willing to sacrifice their lives to continue their pregnancies.

One of the most well-known stories is about Chiara Corbella Petrillo, a young Italian woman who refused chemotherapy in 2011 for cancer on her tongue because she was pregnant. As the cancer progressed, it became difficult for her to speak and see. A year after giving birth to a healthy baby boy, she died.

Live Action, a major anti-abortion advocacy group, included Petrillo on a list of “7 Brave Mothers Who Risked Their Lives to Save Their Preborn Babies.”

“In a culture where women are bombarded with the message that convenience and worldly achievement are tantamount — even overriding their children’s right to life — it is refreshing to see women who have defied the norm,” an editor for the organization wrote.

In anti-abortion circles, Petrillo has been described as a “heroine for the 21st century” and a “modern day saint.”

Her story was turned into a book, which appeared on a 2016 Mother’s Day gift list in the magazine Catholic Digest. The Catholic Church has opened an inquiry to consider whether Petrillo should be elevated to sainthood.

For decades, major anti-abortion groups did not see a no-exceptions approach as politically possible. Groups including National Right to Life and Susan B. Anthony Pro-Life America instead made gains by pressuring lawmakers to chip away at abortion protections via targeted restrictions that strangled access but wouldn’t curtail the basic right enshrined in Roe v. Wade. Between 2011 and 2017, 50 abortion clinics in the South closed due to the new laws.

But after Donald Trump was elected and began filling the Supreme Court with judges handpicked by the Federalist Society, a network of conservative and libertarian lawyers, some influential anti-abortion activists saw an opening for more radical action.

Paul Benjamin Linton was one of them. A longtime Catholic legal activist, he had argued against Rice’s commitment to a no-exceptions position that had no chance in the Supreme Court — not because he disagreed with it morally, but because he believed an incremental strategy would result in more babies being born. (Linton did not respond to emails and voicemails.)

After Trump’s election, he shifted to supporting banning abortion completely. Linton began drafting legislation that did not include explicit exceptions for the life or health of the pregnant person. Starting in 2019, he promoted some of the country’s strictest abortion bans in Tennessee, Idaho, and Texas. Those trigger laws, unenforceable at the time they were passed, became a stark reality for millions of people of childbearing age when Roe was overturned. Though slightly modified in 2023, they continue to sharply limit the ability of doctors to provide abortions to patients facing health risks.

Bleak Path Forward

To many doctors in the most restrictive abortion-ban states who participated in the 2023 legislative session, the path forward offers few signs of hope. Some see little appetite from lawmakers and lobbyists to continue pushing for new exceptions unless the political calculus changes significantly.

Nikki Zite, a doctor involved in the effort to add exceptions to Tennessee’s abortion law, said she and her colleagues across the state have been asking lobbyists what the strategy is for a renewed push in the next session. “I was hopeful that these issues would be revisited and we might have more success,” Zite said. “But I’m hearing the excuse, ‘It’s an election year and there’s a supermajority of Republicans’ and that it’s very unlikely to go anywhere.”

Briggs, the Tennessee state senator, said he is considering sponsoring another bill that would cover health complications and severe fetal anomalies in 2024. But he is mindful that it’s an election year and many of his moderate Republican colleagues will be facing Right to Life-backed challengers.

“I’m not optimistic about the bill passing, not at all,” he said. “And I don’t want to hurt any of our moderates enough to get a radical elected.”

Westerfield, the Kentucky state senator who last year spoke about a possible compromise on the abortion ban “that matches up with most voters,” told ProPublica he still believes most Kentuckians support allowing abortions in some cases. But he said he didn’t think it was something he could vote for — and he didn’t know whether his Republican colleagues might consider it either.

“I wouldn’t put a wager on any of it,” he said.

Some doctors in abortion-ban states that have made small changes to their laws told ProPublica they now feel cautiously comfortable treating obviously life-threatening conditions, like ectopic pregnancies, without calling legal counsel or an ethics committee. But they regularly turn away women requesting abortions in the vast gray zone related to health.

Some spoke of having to tell patients dealing with multiple medical complications, like diabetes and lupus, that pregnancy is likely to worsen their condition — but they can’t help with an abortion. They have cared for patients with serious heart complications who have continued dangerous pregnancies against their will. In some cases, doctors have had to rush patients facing extreme complications exacerbated by pregnancy, like kidney failure, to hospitals out of state.

Doctors like Sarah Osmundson, a maternal-fetal-medicine specialist in Tennessee, continue to ask themselves: How close to death does a patient have to be before I can intervene?

“We are keeping patients pregnant entirely for fetal benefit — not for maternal benefit, Osmundson said. “If a patient says, ‘I don’t want to take on that risk,’ we need to honor that.”

Research by Mollie Simon and Mariam Elba. Video editing by Lisa Riordan Seville.

by Ken Armstrong

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 Serial podcast series “The Kids of Rutherford County” begins with a hum. It’s a low hum, sort of ominous, that lasts for two or three seconds before the podcast’s host, Meribah Knight, comes in with, “It was a March afternoon in Rutherford County, Tennessee …”

The hum is a bass note, a low F, the lowest note J.R. Kaufman can play on his accordion in the Los Angeles home-slash-studio he shares with his half-brother and bandmate Justin Rubenstein. Once Knight begins speaking, Kaufman’s note slips beneath her voice, still there, but in the background.

The stories investigative reporters tell have drama. They have tension and tragedy, a natural fit for orchestration. (See, for example, “The Night Doctrine,” an animated film from ProPublica with music by Afghan composer Milad Yousufi.) Words and instruments work in tandem, as evidenced by the opening of “The Kids of Rutherford County.”

That March afternoon, Knight says, school was out for the day, “and a dozen or so little kids were playing a game of pickup basketball in someone’s backyard.” An upright bass comes in, doubled with Moog synthesizer, making four low thumps. “And then, as kids do, one said something about another kid’s mom,” Knight says. A Juno synthesizer runs through a bunch of guitar pedals, and then a high, oscillating melody arrives, from flutes and clarinets. The insult leads to shoving, Knight says, and shoving leads to a couple of feeble punches. Enter trumpet, harp and electric bass, all still in the background, kind of hidden, the music swirling, in step with the story.

Knight introduces the series, “This is ‘The Kids of Rutherford County,’” and as she finishes speaking, the music comes out of hiding; drums kick in, there’s guitar, a dash of pedal steel, and an explosion of trumpet, trombone and saxophone. It is here, for about 25 seconds, that the listener gets to appreciate the name of Rubenstein’s and Kaufman’s band — The Blasting Company — before the music slips back beneath the surface of the words.

This podcast series originated with a print story that Knight, a reporter at Nashville Public Radio, did in partnership with ProPublica. The story detailed how Rutherford County, southeast of Nashville, had illegally jailed hundreds, if not thousands, of children. After that story published in 2021, ProPublica and Nashville Public Radio partnered with Serial and The New York Times to produce a four-part podcast.

For ProPublica, partnering with Serial meant we got to watch colleagues do something we rarely do. We saw them set investigative reporting to music.

Between the two of them, Rubenstein and Kaufman play at least 22 different instruments on the podcast. Those instruments include the expected (violin, piano) and the less expected (pedal steel guitar). Rubenstein plays a lot of brass and strings, Kaufman a lot of woodwinds and keyboards. They also brought in five friends to play. Kaufman, asked to describe the podcast’s music, says, “I was calling it minimalist country classical synth music, and then Justin added, ‘with maximal tendencies.’”

In an Instagram post, Rubenstein and Kaufman joke that the music reflects their “super inclusive musical methodology: All instruments, everywhere, at all times.”

Rubenstein and Kaufman did not study music at a conservatory. Their education was more organic. Both played cello as kids, and it kind of rolled from there. “I basically learned the piano by not practicing cello,” Kaufman says. Rubenstein picked up the guitar because it was cool. As a young adult, Rubenstein, with a friend, bought a short school bus for $2,000, converted it to run on vegetable oil, and then moved into it with his brother. They lived on the bus while busking across the country, Kaufman on accordion, Rubenstein the trombone. The brothers formed The Blasting Company 15 years ago.

While Kaufman and Rubenstein are the composers, the conductor is Phoebe Wang, Serial’s senior sound designer and mixer. She finds the musicians and commissions the score, working with the musicians on the mood she’s looking for. Then she stitches and weaves the music throughout the story.

With “The Kids of Rutherford County,” Wang wanted the music to convey a sense of place. At the same time, “I didn’t want it to sound like a caricature of southern culture,” she says. She wanted music that isn’t too cleaned up or precious, that makes people feel something.

Wang found The Blasting Company courtesy of Spotify, when their hauntingly gorgeous song “Candy” popped up in her Discover Weekly mixtape. For Kaufman and Rubenstein, getting noticed in roundabout ways is kind of a thing. They got hired to score “Over the Garden Wall,” an animated miniseries on Cartoon Network, after one of the show’s writers heard them busking at the Hollywood Farmers Market. For this podcast, providing a sense of place would not be a reach. The two were born and raised in Nashville, next to Rutherford County.

Julie Snyder is Serial’s executive editor and its co-creator. She says that when scoring a podcast, she wants the music to help with comprehension most of all. These are long stories. There’s a lot of talking. Music can act like a cue for your brain. When music starts, you pay attention. When it stops, you pay attention. Music can be used in the same way that a section break is used in print.

With “The Kids of Rutherford County,” the score can be traced to a spirit of experimentation. On Zoom calls with Wang and Daniel Guillemette, a senior producer for Serial, the two musicians had woodwinds, horns, keyboards and whatnot scattered about, visible in their background. Rubenstein remembers the pair from Serial spying different instruments and saying, “Try that thing, try that.”

“We were game to try anything,” Rubenstein says.

In the end, Serial used close to 20 tracks that The Blasting Company created for the show.

Wang, asked to illustrate how she used particular tracks in the podcast, highlighted three:

Listen to “Mother’s Children”

“Mother’s Children” is the podcast’s theme song. It’s the track described at the top of this story and used in the beginning of the podcast’s first episode, as a childhood scrap blows up into something more. Wang calls it a “beautiful, ambient track” that is a slow burn. “It feels like it’s setting something up.” Since it moves slowly, she wanted it to deliver a real payoff — and that payoff is the blast that comes when Knight finishes her introduction. “It’s like the world is opening up to you,” Wang says of that moment.

For Kaufman and Rubenstein, that moment in the song is memorable because it’s the one time they were asked to go bigger. Most other times, with most other tracks, they were asked to be more restrained. But in this instance, as Wang kept requesting more, Rubenstein kept layering in trombones and trumpets while Kaufman added saxophones.

Listen to “Stone Door”

The “Stone Door” track — named for a hiking trail in Tennessee’s South Cumberland State Park, is threaded throughout the show. It was inspired by chamber music — a piece for a string quartet by Maurice Ravel, specifically — to which the composers added a clarinet section reminiscent of Tchaikovsky, then layered in electric guitar and rock drums. For Wang, this track provided “a feeling that something is off.” And that’s what The Blasting Company was going for. While scoring the podcast, Rubenstein says, “we’re thinking of the cognitive dissonance in the show, that things are always on the verge of falling apart.”

In Episode 1, the song starts within the first 10 minutes, as a child is writing down names for a police officer. (This will lead to all kinds of trouble.) In Episode 2, the track plays as a lawyer, flabbergasted at what’s before him, looks around a courtroom and thinks, “What the hell are you people doing?” In the third episode, the song comes in as Knight describes the tension between two realities: what the lawyers see (an illegal operation) and what the judge sees (a system with sound criteria). And in the final episode, the track appears one last time, as lawyers who have sued the county are driving around, searching, futilely, for potential plaintiffs who stand to be compensated, if only they can be found.

Listen to “Rites of Passage”

Kaufman remembers sitting on the floor, on a yoga mat as Rubenstein began playing a beautiful melody on the violin that would become “Rites of Passage.” It was “bendy” and “slidy,” Kaufman says. They added guitar, flute, other strings and drums, and sent it to Wang. Wang remembers listening to the song for the first time. “This is a special track,” she thought to herself. The strings were enveloping. Listening, she got a sense of place. She wound up using the track in a special spot at the end of Episode 1. The track plays as Knight describes how Rutherford County has been jailing a staggering number of children, so many that for the county’s kids, getting jailed was “almost a rite of passage.” The end of an episode is one of Wang’s favorite places for her favorite pieces of music, because the listener sits with the song. It’s a place for the music to shine.

by ProPublica

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. This podcast was created with Serial/The New York Times and WPLN/Nashville Public Radio.

When a video surfaced of an after-school scuffle, 11 Black children were arrested. Their crime: not stepping in to stop a fight. The arrests set off a firestorm of controversy — and an investigation into the juvenile justice practices in one Tennessee county.

Reporters Meribah Knight with Nashville Public Radio and Ken Armstrong with ProPublica obtained years’ worth of personnel files, state inspection reports, emails, depositions and other records, and reports from all 98 juvenile courts in the state.

What they discovered was that for more than a decade, Rutherford County had arrested and illegally jailed hundreds of children. And behind those decisions was a powerful judge, Donna Scott Davenport, who went unchecked by higher authorities in Tennessee.

That work, done through ProPublica’s Local Reporting Network, led to a series of stories; it also led to an outcry from community leaders and Tennessee lawmakers. The university where Davenport taught a criminal justice class cut ties with her; members of Congress asked the Department of Justice to open an investigation into the county’s juvenile justice system; and Davenport announced that she would step down in 2022 rather than run for reelection.

There was, however, more to tell. In collaboration with Serial Productions and The New York Times, Knight reported and hosted a podcast about the two down-on-their luck lawyers who recognized the broken system and tried to shut it down. “The Kids of Rutherford County” is a four-part narrative series that reveals a juvenile court shrouded by confidentiality rules, illuminating how something so secretive and illegal was allowed to grow. How did this happen? What does it take to stop it? And will the people in charge face any consequences?

Listen to the entire series in the audio player below, or follow the link to your favorite podcast app.

• Apple Podcasts
• Spotify
• Amazon Music
• Google Podcasts

Episode 1: The Egregious Video

A video of little kids fighting in Rutherford County, Tennessee, comes to the attention of a local police officer. Her investigation leads to the arrest of 11 kids for watching the fight. The arrests do not go smoothly.

The arrests lead to a public scandal. But there seems to be a difference in how people on the outside of this juvenile justice system see things and how people on the inside do. What the outside world will eventually learn is that this juvenile justice system has been locking kids up illegally.

Episode 2: What the Hell Are You People Doing?

A young lawyer named Wes Clark begins defending kids at the Rutherford County juvenile court. He quickly sees a troubling pattern: kids jailed for minor offenses, even when the law says they shouldn’t be. But he can’t always persuade the juvenile judge to let those kids out.

Wes is frustrated and demoralized, even more so because no one else at the court seems to think there’s a problem with how things are done there.

That is until Wes meets another lawyer who sees things the way he does. When one of Wes’ clients is held in solitary confinement, they both think they have a case that might finally allow them to strike back.

Episode 3: Would You Like to Sue the Government?

After winning their solitary case, Wes Clark and his law partner Mark Downton get a call from the ACLU: Would they like to represent some kids who were arrested for watching a fight? As Wes begins his research into the case, he comes across a line in a police report saying there was a “judicial requirement” to arrest kids. From this he learns some Rutherford County policies for arresting and jailing kids violate the law. He and Mark realize they have a massive class-action lawsuit on their hands.

Episode 4: Dedicated Public Servants

The lawyers settle their case on behalf of the kids wrongfully arrested or illegally jailed by Rutherford County. The county ends its illegal detention policy, and some kids who were wronged by the system get paid. But none of the people behind the illegal policies face serious consequences. So what’s changed in Rutherford County, and what hasn’t?

Listen to “The Kids of Rutherford County”

by Kyle Hopkins, Anchorage Daily News

This story details allegations of violence against Indigenous women and girls.

This article was produced for ProPublica’s Local Reporting Network in partnership with the Anchorage Daily News. Sign up for Dispatches to get stories like this one as soon as they are published.

KOTZEBUE, Alaska — The hum of a clothes dryer, zippers clinking, filled Saima Chase’s house one afternoon in September as she set down a steaming dish of moose stir-fry. “Egg roll in a bowl,” she said of the quick after-work recipe. The conversation turned to the reason for my visit: unsolved killings, unexplained deaths and suicides that might not really be suicides.

A 41-year-old Inupiaq woman raised in Kotzebue, Chase recently became the city’s mayor. Before that she worked for the Alaska State Medical Examiner Office, preparing autopsy tables, and at a local nonprofit that offers legal help to domestic violence survivors.

When Chase’s friend Sarah Stallsworth was found dead at her home in 2010, Kotzebue police labeled the case suicide. Chase has always suspected otherwise.

“I know she didn’t kill herself,” said Chase, who learned about the condition of the body from Stallsworth’s mother and sister. “She was beat up really bad. She had missing teeth.”

The death came years before Chase won city office, but she offered to help the family obtain police records in the case.

“I really want to bring Sarah peace,” she messaged Stallsworth’s family at the time, a text she shared with a reporter years later. “I know something bad happened to your family and nobody did anything about it and it needs to be brought back to the surface.”

Family members show an undated photo of Sarah Stallsworth. (Emily Mesner / ADN)

The family never did get the police records. Their questions remain unanswered. (In a Nov. 16 email, Kotzebue Police Chief Roger Rouse said that Stallsworth’s death is officially considered a suicide. He said he couldn’t comment on the department’s communications with the family prior to his becoming police chief in 2020.)

And so it goes in dining rooms and office lobbies across Kotzebue. Rouse said earlier this year that he knew of only one unsolved killing in this Arctic Circle city, that of Susanna “Sue Sue” Norton in 2020, whose case we wrote about this month.

Many people we spoke with, the new mayor included, aren’t so sure.

When Anchorage Daily News photographer Emily Mesner and I stopped by the local high school to research Norton’s yearbook photos, a front desk clerk said her own sister-in-law died in a case police stopped short of labeling homicide. (The police department said the cause of death in that case, involving a gunshot wound to the chest, is considered “undetermined.” Though the death was not labeled a homicide, it remains an “open cold case,” Rouse replied in an email.)

When Norton’s childhood friend posted a note to Facebook asking about unexplained deaths in the Northwest Arctic, her phone bubbled with names and cases.

I’d first started asking for information about Norton in 2020, and this June, after years of receiving little to no information, I decided it was finally time to visit and take a closer look. What I didn’t expect was to come home with a notebook full of additional names.

Susanna “Sue Sue” Norton was buried in this cemetery on a bluff overlooking Kotzebue and the Chukchi Sea. (Emily Mesner / ADN)

When I visited Norton’s burial site on a bluff overlooking the Chukchi Sea, her family pointed out two adjacent graves. One belonged to a woman who, Norton’s niece said, “was hit on the head by her boyfriend and died” in 2022. According to the police department, bruises found on the woman’s body did not contribute to her death, which resulted from a brain injury due to lack of oxygen after a heart attack related to ethanol withdrawal. Buried beside her was the woman we had heard about at the high school, who died by gunshot in 2016.

Alaska has the third-highest suicide rate in the nation, and the numbers are especially high in the northwest Arctic. Over the years, police have told me that families might have trouble accepting that a loved one committed suicide or died by accident and may be looking for alternate explanations.

But in such cases as the death of Jennifer Kirk, which we learned about while looking into Norton’s homicide, major questions remain unanswered. Police said she shot herself, but her body also showed signs of strangulation, according to the department’s death investigation report. Kirk’s body was found at a home on the property of former city mayor Clement Richards Sr., the same property where Norton was found strangled two years later. No charges have been filed in either case.

Though Kirk’s death has been labeled a suicide, her boyfriend, the mayor’s son, admitted to causing injuries found on her body the day she died. The boyfriend told police he did not kill Kirk, and he has not been charged in her death. He had previously been convicted of domestic violence assault involving Kirk, including two cases of nonfatal strangulation. (He did not respond to interview requests.)

The Kotzebue Police Department does not have a designated homicide detective or investigator, according to the current chief. The FBI and state troopers will assist in a murder investigation if they are asked or, Chase said, if the case is considered one that might make the news or draw political pressure.

Asked how the department decides when to request outside help in a homicide case, Rouse replied: “If a case has reached a point that additional resources beyond KPDs capabilities or manpower beyond what KPD is capable of handling are needed to bring the case to a conclusion.”

Otherwise, years pass and cases grow colder. Across Western Alaska and the Arctic, from St. Michael to Utqiagvik, I’ve met families who wonder about cases labeled as accidents or suicide. Some, like the 2016 gunshot death, are suspended in limbo with the cause of death classified as “undetermined.”

The failure of Kotzebue police to solve the strangling death of Norton in the center of a town of 2,900 only deepens those suspicions. It doesn’t help that every officer on the police force lives hundreds or thousands of miles away from Kotzebue, in other Alaska cities or other states. They commute to the city for two-week shifts, then fly home. Some have been featured on a TV show.

The Kotzebue Police Department (Emily Mesner / ADN)

In some instances, neighbors and even police believe they know what happened and who did it. One mother I spoke to about her daughter’s 2012 death in Utqiagvik has since died. Norton’s mother suffered a stroke a few months after we first interviewed her in 2020 and now has trouble speaking. Stallsworth’s mother, Patsy Mendenhall, is now 71.

How long must they wait?

At her dinner table, Chase texted Stallsworth’s family and arranged for us to talk. After a few wrong turns, Emily and I found the house. Stallsworth’s sister, Mary Ann Towksjhea, stood beckoning from the doorway of the qanitchaq, or arctic entry. (Many Alaska homes have this in-between room, where visitors peel off winter gear before stepping inside the warm house.)

Inside, driftwood and stones hung from the ceiling, by the dozens. Mendenhall likes to comb the beach for artifacts to add to the collection. On the wall, a finger of whale baleen hung above a wooden snowshoe and an image of Jesus.

First image: Patsy Mendenhall sits with her daughter Mary Ann Towksjhea at their home in Kotzebue. Second image: Decorations hang from the ceiling of their home. (Emily Mesner / ADN)

Mendenhall said she couldn’t understand why police didn’t put up crime scene tape or prevent people from coming and going from the house immediately after her daughter’s body was found. One visitor cleaned up blood in the bathroom, she said.

From deep in the house, Mendenhall unearthed an accordion folder filled with court records and correspondence. Among the documents: a yellowed copy of a letter the family addressed to the city 10 days after Stallsworth’s death.

“On July 16, 2010 my mother & I went to speak to Chief Ward to see if a police report was done as to what happened to Sarah S. Stallsworth who passed away on July 6, 2010 & Chief Ward told us they didn’t need one,” the letter said. “My mother & I Mary Ann Towksjhea said that it wasn’t right” and that authorities were supposed to do a thorough investigation “as to what happened to Sarah.”

Former Kotzebue Police Chief John Ward said in a phone interview that he doesn’t recall the Stallsworth case and doesn’t recall seeing the letter. He said he retired at the end of July 2010.

The family never received a written police report. Chase said she tried and failed to help obtain the documents. For more than a year, Stallsworth’s mother and sister kept returning to the police station, they said. Rouse, the current police chief, said in an email that “KPD does not have any record of the request in 2016 for Stalsworth information, or if any information was provided to the requestor.”

Mendenhall said police told her to stop watching so much “CSI.” “I didn’t even have TV at the time!” she said. (Ward, who was police chief at the time of Stallsworth’s death, said he doesn’t remember making any comment about the TV show. Rouse, the current chief, said: “KPD cannot comment on why the previous police chief at that time would make CSI comments.").

Stallsworth’s daughter, Rena Mendenhall, then 5 years old, was home when her mother died.

I asked if we could talk to Rena, who is now 18 and was living in Anchorage at the time of our visit. Moments later, Patsy Mendenhall reached her on a cellphone. Rena Mendenhall said she still remembers the night her mother died.

“It was real late. They were partying,” she said. “I woke up and heard lots of noise in the living room.”

She remembers going back to sleep. The next morning, Stallsworth was dead.

“I don’t think she would kill herself knowing I was there,” the daughter said.

In August, the Alaska Department of Public Safety released a Missing Indigenous Persons report to great fanfare. Sue Sue Norton’s name isn’t on it. Nor are such cases as Eliza Simmonds in Utqiagvik and Chynelle “Pretty” Lockwood in St. Michael. That’s because the report lists people who haven’t been found. It doesn’t include the names of those whose deaths remain unsolved.

Jennifer Kirk, left, and Susanna “Sue Sue” Norton died two years apart, both in homes owned by the former mayor of Kotzebue and often occupied by his adult sons. The father said he had no comment and did not respond to written questions. The sons also did not respond to questions. (Left photo: Facebook; right photo: courtesy of Lesley Sundberg)

It also includes only cases reported by Alaska State Troopers and the Anchorage Police Department, not the Kotzebue Police Department, North Slope Borough Police Department or dozens of others that serve smaller cities and towns.

Still, there are 345 names, as well as new information about certain cases that shows for the first time whether police believed these disappearances were related to criminal activity.

“This report was definitely a step in the right direction,” Charlene Aqpik Apok, executive director of Data for Indigenous Justice, said at the time.

Before leaving Kotzebue, we added Stallsworth’s name to the list of death investigations to request from the city police department. We’re awaiting the results of those public records requests.

As part of the fact-checking process for this story, I emailed Rouse to ask if he still believed Sue Sue Norton’s death was the only unsolved homicide. On Monday, he replied that the police department is now taking a fresh look at other cases.

“We are digging through our historic records to see if there are any additional investigations that may be open cold homicide cases that we are unaware of,” Rouse wrote. In fact, he wrote, Kotzebue police have now asked the state’s Murdered and Missing Indigenous Persons unit to review the 2016 gunshot death that we heard about at the high school. They are also looking at cases where the cause of death was ruled “undetermined” to see if they, too, should be reexamined.

Correction

Nov. 22, 2023: A headline with the story originally referred imprecisely to a death. While the cause of death is homicide, it has not yet been officially called a murder.

by James Bandler and Doris Burke

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Outside Healy Chapel on the campus of Saint Joseph’s College of Maine, the American flag swayed at half-staff. Inside, candles flickered, and the dying autumn light filtered softly through stained glass. A nursing student sobbed as a small group of mourners read aloud the names of the 18 people slaughtered with an assault-style rifle in late October at a bowling alley and a restaurant up the road in Lewiston. The college had shut down for two days as police sought the killer, whose body was found in the woods after he turned a gun on himself.

Saint Joseph’s is sponsored by the Sisters of Mercy, a 192-year-old society of nuns that has accused the firearms industry of “profiting from these killings.” Toward the end of the vigil, a graduate assistant asked the mourners to pray for political leaders.

“Give them insight, wisdom and courage,” she implored, “to address the epidemic of gun violence.”

Several months earlier on the same campus, as fog enveloped Sebago Lake and rain poured down in sheets, a larger crowd celebrated the life of a man who did as much as anyone to make assault-style rifles — like those used in Lewiston and other massacres — ubiquitous in America. After cocktails and crudites, they bid farewell to one of Maine’s own, Richard E. Dyke.

As a digital photo tribute flashed images from his life, family members, friends and former employees praised Dyke’s kindness and generosity. Beside a framed proclamation by Maine’s state Legislature declaring that Dyke would be “long remembered and sadly missed,” they recounted his rise from mill-town poverty to multimillionaire philanthropist and friend of powerful politicians.

“When he walked into a room, it became his room,” a former colleague told the packed hall. “It’s difficult to drive around Maine and not see something that Dick touched. … He touched thousands of people’s lives.”

What the heartfelt tributes to Dyke that day omitted were the human costs of the industry that allowed him to be so generous — costs that the fellow residents of his beloved home state would soon be the latest to bear.

When the public asks, “How did we get here?” after each mass shooting, the answer goes beyond National Rifle Association lobbyists and Second Amendment zealots. It lies in large measure with the strategies of firearms executives like Dyke. Long before his competitors, the mercurial showman saw the profits in a product that tapped into Americans’ primal fears, and he pulled the mundane levers of American business and politics to get what he wanted.

Dyke brought the AR-15 semi-automatic rifle, which had been considered taboo to market to civilians, into general circulation, and helped keep it there. A folksy turnaround artist who spun all manner of companies into gold, he bought a failing gun maker for $241,000 and built it over more than a quarter-century into a $76 million business producing 9,000 guns a month. Bushmaster, which operated out of a facility just 30 miles from the Lewiston massacre, was the nation’s leading seller of AR-15s for nearly a decade. It also made Dyke rich. He owned at least four homes, a $315,000 Rolls Royce and a helicopter, in which he enjoyed landing on the lawn of his alma mater, Husson University.

Although his boasts of military exploits and clandestine derring-do caused associates to roll their eyes, he was actually no gun enthusiast. As a teenager, he dreamed of becoming a professional dancer. Once, when his brother Bruce persuaded him to go deer hunting, Dyke sat in his Jeep reading The Wall Street Journal, rifle out of reach as a deer ambled safely past.

Along the way, Dyke and his team capitalized on the very incidents that horrified the nation. Sales typically went up when a mass killer used a Bushmaster. After a pair of snipers in the Washington, D.C., area murdered 10 people with a Bushmaster rifle in 2002, Dyke’s bankers noted that the shootings, while “obviously an unfortunate incident … dramatically increased awareness of the Bushmaster product and its accuracy.” A decade later, a 20-year-old wielding a Bushmaster murdered 20 children and six educators at Sandy Hook Elementary School in Newtown, Connecticut. Last year, a Bushmaster was used to kill 10 Black people at a market in Buffalo, New York. The murderer painted racist taunts on the rifle, including “Here’s Your Reparations!”

The arc of Dyke’s journey illustrates the often misunderstood story of “assault rifles” — a now-politicized description that Dyke, for a time, embraced. Mainstream American businesses, financiers and politicians abetted the rise of AR-15s. Banks loaned money to make them, Wall Street invested in them, video games and Hollywood movies glamorized them, and Congress shielded their manufacturers from liability for shootings.

As Dyke’s company seeded its guns into American society, paving the way for imitators, he relied on those same institutions to largely insulate him from scrutiny or retribution. He carefully cultivated political connections, including with the Bush family; William S. Cohen, a former Republican senator from Maine and U.S. secretary of defense; and Susan Collins, a Republican senator from Maine since 1997. “Dick Dyke’s influence at the senior most levels of the U.S. military and political establishment has created numerous revenue opportunities,” Bushmaster’s bankers wrote.

“Dick was a longtime friend of mine,” Collins told ProPublica in a statement. “He was a vocal advocate for small businesses in Maine and America.” Collins called Dyke to wish him well when he was diagnosed with cancer and sent her condolences to the family after he died, said her spokesperson, Annie Clark.

Today, more than 24 million AR-15s are in circulation. Because of their accuracy, light weight and low recoil, they are the most popular rifle in the U.S. But while they accounted for less than 3% of homicides in 2020, they’ve become a favored weapon of mass shooters. Both fetishized and demonized, they’ve also emerged as a potent symbol of defiance. Gun rights activists have flaunted semi-automatic rifles at counter-protests against Black Lives Matter, on social media and at rallies at state capitol buildings. In 2022, President Joe Biden called for banning AR-style weapons, saying too many schools and workplaces “have become killing fields, battlefields here in America.”

(Illustration by Clay Rodery for ProPublica)

Richard Earl Dyke was born in Wilton, Maine, in 1934, in the depths of the Great Depression and one of Maine’s coldest winters on record. His father, Earl, worked in a shoe factory and later became a police officer. His mother, Gladys, had a series of jobs, including as a burler in a woolen mill. Foreshadowing her son’s career of fixing damaged companies, she repaired imperfections in fabric.

One day, Dyke came home from school to find his mother weeping at the dinner table. Her per-piece pay had been cut while her employer raised the price of health insurance. The memory, he later told friends, shaped his generosity toward employees at Bushmaster, whom he would reward with lavish bonuses, 100% health care coverage and holiday dinners served on china.

The same year Dyke was born, the Roosevelt administration enacted the first federal gun control legislation, registering and taxing machine guns, sawed-off shotguns and silencers. The furious response, led by the NRA, to a tougher early version of the bill anticipated modern legislative battles over Second Amendment rights.

During Dyke’s boyhood, New England was the heart of the firearms industry. Its spine stretched from Winchester in New Haven, Connecticut, to Colt in Hartford to Smith & Wesson in Springfield, Massachusetts, and north to machine-gun maker Saco Lowell in Maine. Much of the industry has since moved south, but some firearms companies remain in New England, including Sturm, Ruger, which made the rifle used in the Lewiston shootings.

In Wilton, almost every young boy hunted and fished. Dyke killed his first deer when he was 11. A photo in his biography shows him proudly cradling his rifle as he stands beside a slain buck strapped to the hood of the car with its legs stretching to the sky.

But dancing and acting were Dyke’s teenage passions. In 1951, he starred in a church-sponsored production of a musical-comedy, “Crazy Daze,” according to a newspaper account at the time. “Who is it that makes everyone laugh with his jokes and crazy antics and who is always willing to do his share of the work? Why Dicky, of course!” read his yearbook blurb.

After a stint in the Army, Dyke earned a degree in accounting from Husson College (now Husson University) in Bangor. He worked for the IRS, started his own firm and began investing on the side. A self-described “bottom fisherman,” he demonstrated a knack for seeing future profit in present disasters. Tom Kent, a longtime friend and former Maine state trooper, recalled driving by a dilapidated marina with Dyke. Kent saw a bunch of rotting cabins, but Dyke smelled opportunity. He bought the marina and turned the cabins into condos, Kent said.

Over the decades, records show, Dyke bought or started scores of other businesses, sometimes owning as many as 10 at a time. There was an inn on the Caribbean island of Antigua, a candle company, a restaurant called Mr. D’s, a nursing home and an apartment building in Portland, Maine, that he named after his father, “The Earl.” He invested in a Windham, Maine, firm that made poker chips and sold them to Trump casinos.

“He was somewhat a Donald Trump. In that it was always ‘I, I, I’ with him and not ‘we, we we,’” Kent said. “If we were in a meeting and someone disagreed with him, you better not pick up that rope because you were gone.”

In the late 1970s, Dyke called Kent with a proposition. “I was just at the bankruptcy court,” Dyke told his friend. “There’s an interesting gun company there. I don’t know the first thing about guns, but you do.”

Dyke wanted to buy the company and offered Kent a stake for a $25,000 investment. That was almost every penny Kent and his wife, Joan, possessed. “Dick has always been good to us,” Joan told him. “So let’s take a chance.”

Dyke also confided his plans to his younger brother, Bruce.

“You don’t even hunt,” Bruce recalled telling him.

“Well, this guy in Bangor has this little outfit,” Dyke replied. “I think it could really do something. He doesn’t have any idea how to get (the guns) out and sell them.”

The “little outfit” made a futuristic weapon, the Bushmaster Arm Pistol, named after a Central American viper. It was designed for Air Force pilots whose planes had been downed. The automatic version could rattle off 550 rounds a minute, its founder Mack Gwinn boasted to a local reporter. An early reviewer for Guns & Ammo noted, “for civilian use, it will provide knock-down power far exceeding many heavy pistol calibers,” and it was “light enough for a woman to handle.” On the flip side, the writer warned, “Its production, I believe, will create considerable controversy and certain uneasiness by (federal) Agents! Its deadly appearance is against it in the eyes of the man on the street.”

Dyke bought the company out of bankruptcy. At his first gun show, an angry customer confronted him. “I got one of your goddamned guns and it’s no damned good,” the man barked, according to Kent. “It sure isn’t,” Dyke admitted. “But we will soon have a gun that is.”

Vincent Pestilli, a garrulous bull of a man who trained U.S. special forces members in the use of Russian-made automatic rifles, was Bushmaster’s head of sales. To improve the crudely made Bushmaster pistol, Pestilli got help from legendary firearms designer Uziel Gal, inventor of the Uzi submachine gun. He still keeps a sheet of Gal’s stationary on which Pestilli scrawled suggested improvements.

The early going was hard. Pestilli recalled getting a call from a man with a thick Spanish accent, seeking Bushmaster guns. Pestilli said he thought it was a crank call and hung up, but soon two Mexican Federales were touring the new Bushmaster factory. The problem: Bushmaster had not started production and had few workers. Pestilli frantically hired the workers’ relatives and friends to pretend to be making guns. Bushmaster didn’t get the contract.

In the 1980s, Connecticut-based Colt was the only major seller of AR-15s to civilians. Decades earlier, it had purchased patents to the design from Armalite, for which the AR was named. (The AR-15 was the 15th iteration of the rifle Armalite developed for the military.) In 1964, Colt introduced the semi-automatic civilian version, which fired a single shot with each trigger pull, marketing it as a sporting rifle.

But imported assault-style guns, like the Uzi and the AK-47 known as the Kalashnikov, were increasingly popular. With scant commercial interest in the arm pistol, Dyke focused on selling rifles and parts. Instead of investing in expensive stamping, machining and forging equipment to manufacture guns in house, he reduced costs by buying rifle uppers, lowers, barrels and stocks from other, mostly local, suppliers and having employees assemble them.

In marketing materials, the company boasted that its new solid wood stock, semi-automatic “Assault Rifles,” a hybrid of the AK-47 and Colt’s AR-15s, weighed just 6.25 pounds. Dyke even had the words “Bushmaster Assault Rifle” stamped on the guns. You could buy one in 1981 for $484.95. Eventually, Bushmaster made AR-15 clones. Years later, Dyke told a New York Times journalist he had been impressed by the AR-15’s accuracy. “At 25 meters, if you are a decent shot, you can put it into a bull’s-eye that is the size of a quarter.”

Bushmaster marketed “The Lady,” a tan AR-15, to women. (Courtesy of Vincent Pestilli)

Dyke periodically contributed to gun designs, coming up with “The Lady” Bushmaster in a tan color to match a purse style he’d seen, Pestilli said. For years, during the summer lull in firearms sales, Dyke offered dealers a free Maine lobster for every rifle they sold. “It pushed up his numbers considerably,” recalled Richard Thurston, then Bushmaster’s chief financial officer.

Two mass shootings in the 1980s put semi-automatic rifles in the spotlight. In a 77-minute spree, a California man with a 9 mm Uzi murdered 21 people and wounded more than a dozen at a McDonalds near the Mexican border. Another gunman used a Chinese-manufactured AK-style rifle to kill five schoolchildren and maim more than two dozen in Stockton, California.

In 1989, California banned 44 models of rifles and pistols it branded as assault weapons, including the Bushmaster Assault Rifle and the Bushmaster Pistol. Soon after, President George H. W. Bush stopped the importation of Uzi and AK-style weapons. Although its domestically made guns weren’t affected by the federal ban, Colt stopped selling AR-15s to civilians. It would jump in and out of the civilian market over the ensuing decades.

Dyke had no such qualms. Bushmaster sales climbed.

Five years later, President William J. Clinton was pushing for a national ban on manufacturing assault-style rifles for civilian use. Worried about Bushmaster’s future, Dyke and Kent turned to a political ally: U.S. Sen. William Cohen of Maine.

Kent and Cohen had known each other since high school, when they competed in baseball and basketball. Dyke had appeared in 1980 before a Senate subcommittee scrutinizing the IRS’ treatment of small businesses. Testifying before the committee, Dyke was hailed by the senator as one of “Maine’s leading citizens.”

With a flourish that recalled his student days as a touring thespian, Dyke made a perfect small-town foil against an impersonal and spirit-crushing tax collection agency. He played up his “meager” origins as “the son of shoemakers in a very small town in Maine.” He addressed Cohen as “Bill” and “Billy.” Dyke described a conflict he’d had with the IRS that could have spelled disaster for a company he had just extracted from bankruptcy. It was Bushmaster.

Now, Kent met with Cohen. “Billy, we’ve got over a million dollars’ worth of parts, and this assault weapons ban is going to put us out of business,” Kent recalled saying. From Kent’s office, Cohen started making phone calls, Kent said. The final bill, which six Republican senators including Cohen supported, grandfathered in manufacturers’ existing inventory. So Bushmaster ramped up production in advance of the ban, helping make 1994 the hottest-selling year yet of civilian AR-15s.

Cohen, who now chairs a consulting firm, did not respond to requests for comment.

Clinton signed the 10-year ban into law in September 1994. But Dyke and his team found workarounds. With just a few tweaks, a very effective AR-style weapon could still be legally sold. All the company had to do was remove a bayonet lug and stop selling folding rifle stocks and threaded muzzles. “The rest of the rifle is unchanged,” Bushmaster’s website assured customers. It noted that the removal of threaded muzzles made the rifles even more effective: “Target shooters will notice some accuracy gains.” And lest customers be deterred by a new federal ban on making magazines capable of holding more than 10 rounds of ammunition, Bushmaster noted that the restrictions did not apply retroactively: 20-round and even 40-round magazines were still “out there for sale.”

Bushmaster sent its rejiggered gun to the federal Bureau of Alcohol, Tobacco and Firearms.

“They called Dick and said, ‘You have a winner,’” Kent recalled. “‘It gets around the ban.’”

Criminal sprees continued. In 1997, in what became known as the North Hollywood shootout, two bank robbers wielding semi-automatic rifles including a Bushmaster were outgunning police, wounding 11 of them plus six civilians, until officers barged into a gun store. They pleaded for better guns that could penetrate bulletproof vests.The store lent them several rifles, including Bushmasters, and the robbers were killed.

The incident was free advertising for Bushmaster. Law enforcement and commercial sales spiked.

Two years later, Bushmaster executives noticed another uptick in AR-15 orders. They soon identified the cause: fears of the Y2K millennium bug. Media reports had warned that a software programming error could lead to bank shutdowns, power plant closures and even planes falling from the air when computer clocks shifted at midnight on Jan. 1, 2000. As Americans stocked up on survival gear, Bushmaster capitalized on the mania, selling its own Y2K rifle.

In 1999, Bushmaster sold 64,506 guns — more AR-15s than its 10 largest competitors combined. It also brought in a chief executive who, along with Dyke as chair, would assure its continued success. John DeSantis’ previous boss at Savage Arms, in Westfield, Massachusetts, tried to discourage him from going to work for a “black rifle” company. “He didn’t think that semi-automatic rifles had any place in the commercial business because they’re too lethal,” DeSantis recalled.

DeSantis said he had no such reservations. “I thought anything that sells is good,” he said. “You know, you go to a range, and you want (your rifle) to go ‘pop, pop, pop, pop, pop.’ That’s what I like.”

It was the year of the Columbine High School mass shooting, and Dyke decided to skip the NRA convention even though none of the guns used by the killers were Bushmasters. “We didn’t want to be picketed,” DeSantis recalled.

While recognizing Dyke’s decency to employees, DeSantis found his boss to be an incorrigible micromanager, firing off emails at all hours of the night. He was annoyed by Dyke’s penchant for exaggeration. “I don’t like people that are bullshit artists,” DeSantis said in an interview.

DeSantis said he was also irritated that Dyke used the company as a jobs program for family and friends. His son Jeff was a Bushmaster employee and board member, and he put four of his girlfriend’s children on the payroll. Jeff Dyke declined to comment.

During DeSantis’s first five years as CEO, Bushmaster’s distributor base doubled, leading to a 130% increase in sales. Gross margin — the percentage of company’s revenue left over after direct costs are subtracted — rose by 6 percentage points.

Dyke and DeSantis knew that wars, panics and presidential elections drove Bushmaster’s success. DeSantis kept a chart showing gun unit sales and gross profits, logging major events associated with spikes in sales. (The chart was first reported in the 2023 book “American Gun.”)

When 1999’s Y2K fears fizzled out, gun sales slacked. But after the terrorist attacks on Sept. 11, 2001, Americans panicked, once again buying up food and survival gear, including Bushmaster guns. To Dyke and DeSantis, the spree was illogical. The United States wasn’t about to be invaded. But as Dyke told a Maine Times reporter, guns made people feel safer, and so Bushmaster ramped up production again. Then the war in Afghanistan boosted interest in AR-15s. The company scored big contracts with foreign governments and with the private mercenary group Blackwater.

In October 2002, police captured a pair of men, known as the Beltway snipers, who gunned down 10 people in the Washington, D.C., area over several weeks using a Bushmaster XM-15 .223-caliber rifle that they fired through a hole in the trunk of their Chevy Caprice.

Dyke told a Maine journalist he was horrified that his gun could be used in such a “heinous crime.” But he noted that the gun was also used by law enforcement. “Do you think that you do more good than harm? Absolutely,” he said. He told Bushmaster employees they had nothing to be ashamed of, the Los Angeles Times reported. Sales of XM-15 rifles soared, and DeSantis noted the shooting and the uptick on his chart.

For Dyke, it was a difficult time. He was in a committed relationship with a much younger man in Las Vegas, whom he would hire to manage operations in a Bushmaster factory in Arizona. When word got out, he lost friends in the gun industry and even his own company, recalled Thurston, Bushmaster’s former CFO. Years later, Dyke confided to Thurston, “You’re one of the only originals that stuck with me.”

Dyke was also in a legal fight with two smaller investors, who alleged in a lawsuit that he was paying himself, his son Jeff and other family members lavish salaries. They also said he used company money to buy a fleet of Cadillacs, a Rolls Royce and a Bell helicopter that shuttled relatives to casinos and his lakeside house in Canada. Dyke denied the allegations and disposed of the case by buying the investors out.

(Illustration by Clay Rodery for ProPublica)

Bushmaster’s notoriety and profits made it an inviting target for tort lawyers. In 2003, families of the sniper victims sued. Dyke paid them $550,000 to settle the case. The company viewed bankruptcy as a “potential legal strategy” to be “employed to avoid the payment of substantial damages,” its bankers wrote.

The lawsuit was a warning, and Dyke and his fellow gunmakers needed help. They wanted Congress to give them protection from liability for shootings. Fortunately, Dyke had contacts in high places, including an up-and-coming Republican senator and the president of the United States.

Dyke was friendly with the Bush family, which summered in Kennebunkport, Maine. He raised money for Maine Medical Center, which ran the Barbara Bush Children’s Hospital. In 1999, a year after the hospital's naming, George W. Bush, Barbara’s son, announced he was running for president. Dyke became his Maine campaign chair. But his presence was perceived as toxic after an Associated Press reporter asked the campaign about its association with an assault weapons manufacturer. Dyke resigned, saying he didn’t want to be “any baggage” for “young Bush.”

Dyke also had a longtime friend in the U.S. Senate, Maine Republican Susan Collins. She once called him “the most entrepreneurial person I’ve ever met. … This man has had one common theme throughout his life: commitment to the people who work for him, and his passion for creating jobs in Maine.”

Dyke had met Collins in the 1980s when she served on Cohen’s staff. In 1994, she ran for governor, with Dyke’s support. Collins won the Republican nomination but lost the general election. She wouldn’t be unemployed long. She secured a job at Husson College as executive director of the Richard Dyke Center for Family Business, which he had helped start by donating $250,000. Collins was “very qualified” for the job, and Husson’s president, not Dyke, approached her about it, said the senator’s spokesperson, Clark.

When Cohen didn’t seek reelection, Collins decided to run. While not a key adviser, Dyke instructed her over dinner at a Bangor restaurant “as to what it would be like working with other senators and how to leverage her strengths,” Clark said. “He also talked about the challenges facing small businesses across the country.”

With Dyke and other Bushmaster executives among her donors, Collins won. In July 2005, she voted for the Protection of Lawful Commerce in Arms Act, which Dyke had pushed hard for. It prohibited lawsuits against firearms manufacturers, distributors and dealers for misuse of their products by others. That October, Bush signed it.

Collins “has always charted her own centrist position on gun issues,” her spokesperson said, pointing out that the senator supported a failed 2004 proposal to extend the assault weapons ban. Collins backed PLCAA because “she doesn’t think manufacturers of knives, guns, vehicles, etc. should be held liable for the crimes committed by people who misuse their products,” Clark said. After the Lewiston massacre, Collins has resisted calls for a new ban on assault weapons.

Bushmaster caught the attention of Cerberus Capital Management, a New York investment firm named after the three-headed dog that guarded Hades in Greek mythology. In 2006, Cerberus offered $76 million, twice Bushmaster’s own estimate of its value. “Holy shit,” Tom Tyler, then a Bushmaster executive, recalled Dyke telling him. “I never believed a good old boy from Wilton, Maine, would see that kind of money in his checkbook.”

The private-equity business model was a super-sized version of Dyke’s “bottom fishing.” Cerberus’ holding company, Freedom Group, gobbled up one gun manufacturer after another, notably Remington Arms. It also touted the bellicose aspects of its guns, using Bushmaster to cater to a new group of prospective buyers: not hunters and gun collectors, but “couch commandos” with fantasies of war and killing.

Freedom Group produced a series of print ads for its Remington-branded AR-style rifles, which were made at Bushmaster’s facility in Maine, with slogans like “Forces of Opposition, Bow Down. You are Single-Handedly Outnumbered,” and “Take Back the City.” It plugged Bushmaster guns with a novel “Man Card Campaign.” The gimmick was that owners had to be macho or their cards could be revoked. Cerberus declined to comment.

Dyke stayed on as a board member and consultant for the holding company for about a year. But he told New York Magazine he thought Cerberus was moving too fast, and he quit. But he wouldn’t be out of the AR-15 business for long.

In 2011, Freedom Group closed the Bushmaster facility in Windham, Maine, putting 73 people out of work. Dyke, who still owned the plant, was furious but saw a way to benefit, Kent said.

He summoned Kent to his home in Henderson, Nevada. Over cocktails, Dyke showed his old friend a business plan. “It makes sense to me,” Dyke told him. “We have the facilities. We have the workforce, and all the noncompetes are done.”

Dyke messaged his former Bushmaster employees. “Would you be crazy enough to go back into business with the old man?” he asked.

That August, the 77-year-old Dyke hosted a party to celebrate the launch of the family’s new company, Windham Weaponry. Among the attendees were several state legislators and Collins.

“We’ve got to get back in the game,” Dyke told them. “A lot can happen to it, but it cannot leave Maine because the Dyke family won’t let that happen.”

In its first month, Windham shipped 1,500 rifles. Soon the company had rehired most of its former employees and was producing nearly as many rifles as Bushmaster had at its peak.

In December 2012, Adam Lanza, a devoted player of a video game that featured an assault-style Bushmaster rifle, killed his mother and then went on a rampage with her Bushmaster XM-15 at a Connecticut elementary school. Like other mass shootings, Sandy Hook was good for sales. “Windham Weaponry is busier than a beehive this Spring! While we’re building rifles as fast as we can, be assured that we won’t sacrifice quality for speed!” Dyke’s company said in its newsletter.

Referring to “challenges resulting from recent events,” Windham encouraged its customers to contact their legislators and to attend the NRA annual meeting to oppose a new proposal to ban assault-style rifles after Sandy Hook. “Take action today, and make your voice heard!”

It didn’t mention that its own factory, under the previous owner, had made Lanza’s gun.

(Illustration by Clay Rodery for ProPublica)

On Jan. 16, Windham Weaponry employees flew into Las Vegas for the 2023 SHOT Show, the industry’s firearms palooza. Driving past the Trump International Hotel to the expo center, they posted photographs on the company Facebook page, saying, “We made it!”

They set up their booth, putting the rifles on racks with a sign proclaiming that they were “battle tested and warrior approved.”

Dyke wintered in Las Vegas. But he was too ill to visit the company’s booth. If he could have walked the floor, he would have heard the telltale sounds of his legacy: the unmistakable ratcheting of charging handles being pulled back and the metallic “thunk” of their release.

When Dyke first brought his rifles to the show, they were banished to backroom booths. Now hundreds of companies are emulating Dyke by selling either AR-style rifles or accessories and other tactical gear. Cerberus’ holding company lost investors and faced lawsuits after the Sandy Hook shooting. The unit eventually went bankrupt twice, and its gun businesses were auctioned off. A Nevada company now sells AR-style rifles under the Bushmaster name, along with a device that enables them to fire at double speed, not only with the pull but also the release of the trigger, according to its website. “Bushmaster is back,” the company crowed when it opened in 2021.

In late February, Dyke was stung by a scorpion and had to be hospitalized. On Feb. 28, he chatted with Pestilli, Bushmaster’s former head of sales, by phone, thanking him for his help over the years. The next day, Dyke watched a Los Angeles Lakers game on television. He was about to go to bed when he had a heart attack and died, at the age of 89.

After his death, Windham Weaponry shut down. Then some of Dyke’s former executives stepped in. They leased the facility and plan to resume assembling and selling AR-15s, even as Mainers mourn the Lewiston victims.

At Dyke’s memorial service, Thurston credited him with rescuing more than a firearms company. “Bushmaster after 9-11 did a lot of things for this country,” he said, his voice rising. “Richard made sure that every employee at the end of the month understood that if it looked like a gun, it was going in a box and then going in a truck” to customers.

He pointed at the mourners nodding in agreement. “Because you might need it.”

by Robert Faturechi and Ellis Simani with Mariam Elba, graphics by Lucas Waldron

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

In late 2015, Dodge & Cox, one of the nation’s largest mutual fund managers, began buying large quantities of shares of a cloud-computing company called VMware. Over three quarters, Dodge & Cox amassed almost $700 million in shares. That was good news for anyone who already owned shares of VMware, since big purchases tend to push a stock price upward.

One such shareholder was David Hoeft, a member of the Dodge & Cox committee that made the decision to buy the shares and an advocate for investing in technology companies. Hoeft, who has spent 30 years at Dodge & Cox, is now the company’s chief investment officer.

Hoeft bought millions of dollars’ worth of VMware shares in his personal account before his employer’s purchases started to be publicly disclosed.

He purchased $3.6 million in shares in November 2015.

During the same quarter, Dodge & Cox started buying millions of shares in VMware. (Neither the company nor Hoeft appears to have invested in VMware before then.)

Dodge & Cox then dramatically amped up its purchases of VMware stock over the next two quarters, bringing its holdings up to nearly $700 million.

VMware shares ballooned in value, reaping Hoeft $8 million in profit when he sold his shares in 2018 and 2019.

For decades, regulators have tried to clamp down on front-running, the term for when investment professionals make personal purchases or sales of securities when they know that their employers or clients are about to buy or sell the same securities. But a massive assemblage of confidential stock trading data obtained by ProPublica reveals that the practice may be continuing on a notable scale.

Hoeft is one of dozens of investment managers at hedge funds and mutual funds who personally traded the same securities that their organizations were buying and selling, ProPublica found. He stood out in this group for the volume and fortuitous timing of such trades. From 2011 to 2019, Hoeft traded stocks on at least 31 days in the same quarter or the quarter before Dodge & Cox traded the same securities. The transactions were worth nearly $50 million. (All told, Hoeft’s personal trades, most of them in stocks his employer was not trading, totalled more than $725 million during the period.)

Knowing that a fund is going to buy or sell stock can qualify as the sort of confidential information that’s unlawful to trade on. And Dodge & Cox’s ethics policy is unequivocal. It tells employees, “You may not front-run any trade of a Fund or Client Account.” An employee, it explains, “may not … purchase a Reportable Security if you intend, or know of the Dodge & Cox Group’s intention, to purchase that Reportable Security or a related Reportable Security on behalf of a Fund or client.” The same goes for a sale. Employees are warned to “avoid any actual or potential conflict of interest or any abuse of an employee’s position of trust and responsibility.”

Dodge & Cox’s chair at the time, Charles Pohl, excoriated front-running, explaining how it hurts customers in a 2022 comment to the Securities and Exchange Commission. “Trading by free riders,” Pohl wrote, “often drives the price of a security up (when we are trying to buy a block) or down (when we are trying to sell a block) and results in direct harm to our clients and Fund shareholders.”

Imagine essentially that just before a well-informed high roller puts down a large bet on a particular horse, which has the effect of making the odds for betting on that horse less favorable, someone who works for the high roller slips in and makes their own bet on the same horse.

The managers of investment funds have a distinct edge when trading in their personal accounts. Because they control billions of dollars’ worth of their clients’ funds and can deploy a staff of analysts to unearth reams of data and insights about companies, they can sometimes foresee how demand for a stock will change before the public does.

This kind of trading also creates a potential conflict of interest if, for example, employees are advocating internally for the fund to hold or buy more of the stock they personally own. And by trading the same securities as their fund, employees personally profit from research that is owned by their employer and that their clients essentially paid for.

In a statement, Dodge & Cox said that the firm had given advance approval for all of the trades identified by ProPublica, and a review of Hoeft’s trades after ProPublica asked about them found none violated the firm’s policies. “There is no evidence that he engaged in front-running or any other improper trading activity,” Dodge & Cox said. The firm declined to discuss the specifics of trades.

The statement also included comments from Hoeft, who said, “Throughout my career, my highest priorities have always been seeking the best investment opportunities for our clients and fully complying with my legal and ethical responsibilities. For all the trades ProPublica has questioned, I have adhered to the firm’s Code of Ethics and our strict policies on personal trading.”

David Hoeft in 2009 (Nati Harnik/AP Images)

A Dodge & Cox spokesperson acknowledged that Hoeft was part of the small committee that was making investment decisions for the firm but declined to specify how large a role he played in any stock decisions or to discuss the timing of those decisions. “It’s the committee that decides” by majority vote, the spokesperson said. “Not David.”

Hoeft (whose last name is pronounced “hayft”) seems an unlikely person to skirt even the most modest of rules. He has a longstanding reputation as ethical and self-effacing. And unlike the vast majority of those who showed up in ProPublica’s analysis, Hoeft does not work at a hedge fund, where the rules around personal trading are typically more lax. Hoeft’s employer is a mutual fund company that has cultivated a reputation for caution and business practices that are above reproach.

The name Dodge & Cox may be largely unknown outside the investing world, but the company manages $337 billion. That includes the retirement accounts of thousands of Americans. It raises the question: Is Dodge & Cox’s chief investment officer putting their interests — or his own — first?

In the 1970s, the SEC proposed what seemed like a modest rule: Employees at investment management companies would be barred from trading a stock in their personal accounts if they knew their employer was considering trading the same stock.

Industry players opposed the proposed regulation. Commenters warned that it was “dangerously ambiguous” and “impossible” to apply. At what point in the research phase, for example, would a firm cross the threshold into officially considering a transaction?

Wall Street fended off the SEC. In the decades that followed, scandals involving the personal trading of investment advisers have bubbled up periodically. The concerns reached new heights in the 1990s. As mutual funds became the primary way Americans saved for retirement, some fund managers were accused of enriching themselves at the expense of their clients. One technology fund manager was accused of trading dozens of stocks in his personal account within days of his employer doing the same.

The incidents got the attention of the public and Congress. Amid concerns that investors would lose faith in mutual funds, the SEC pledged a broad investigation. The commission reviewed a year’s worth of personal stock trades for hundreds of managers at 30 mutual fund companies.

Their review, which was publicly released in 1994, found “potentially abusive” trading and instances of fund managers purchasing or selling securities shortly ahead of their funds. But the SEC concluded that a government-imposed ban on trading by fund managers — or even a partial ban, prohibiting trades in securities the fund held — wasn’t necessary.

Their rationale was that abuse was rare. More than a third of the managers hadn’t traded at all, and the median number of trades for the year was just two. The SEC also considered the arguments made by industry: that funds wanted employees who lived and breathed the market, and that if they banned personal trading altogether, they would have to pay their employees more. And the agency reasoned that a ban would not stop bad actors from continuing to front-run.

The agency opted to leave it to each investment company to determine its own guardrails, but it pleaded with firms to act. The SEC chair at the time, Arthur Levitt Jr., implored mutual fund companies to curb personal trading, saying “this industry can hardly afford even the appearance of conflicts” of interest.

The SEC does require investment firms to maintain codes of ethics, and to collect and review their employees’ personal trades. But otherwise how firms self-regulate varies widely. Some ban personal trading in particular industries. Others require employees to refrain from trading stocks only when the investment fund is actively considering buying or selling them.

The SEC can get involved if regulators believe a trade violated the law. As with any potential insider-trading case, federal authorities have to prove two main elements. First, they must show that the trader had what’s known as “material nonpublic information”: a significant fact, not yet publicly known, that would affect the company’s share price. Second, they must show that the employee who traded on that information, or provided the tip to the person who did, had a duty not to disclose it or use it for personal benefit.

In the context of front-running, a big future transaction in a company’s stock can count as material. That’s particularly true, securities experts said, when that transaction is informed by proprietary research conducted by the fund, as any reputable firm’s moves usually are.

“You’re trading while in possession of information that is not yours,” said Donald Langevoort, a Georgetown law professor and former SEC attorney. “If you are aware the fund is going to trade, and it’s a block big enough to move the market, that’s insider trading.”

People who know Hoeft today describe him much the same way his childhood friends do: quiet and humble, but with a piercing intellect. Hoeft grew up in rural Wisconsin. His father was a manager at a plastics plant for the American Can Co.

Hoeft was an industrious teen, working at a Ponderosa steakhouse after school during the academic year and spending his summers doing everything from mowing grass at a local airport to checking the packaging of Keebler Sandies Pecan Shortbread at a production plant. He also read encyclopedias and dictionaries to expand his vocabulary. And in a sign of what was to come, Hoeft turned in a stellar performance in a stock-picking contest at school.

His academic prowess landed him at the University of Chicago, where friends say Hoeft stood out for keeping to himself even among a student body with a reputation for being introverted. But alongside Hoeft’s kind and tranquil demeanor was intensity and discipline. He spent long hours in the library and was relentless in long-distance races for the school’s track team. The same trait has persisted in adulthood. Hoeft, a cyclist in his free time, has persisted in pedaling to work even after he got hit by a car, according to one friend.

Immediately after graduating from Harvard Business School in 1993, Hoeft joined San Francisco-based Dodge & Cox. The firm, founded in 1930 with a focus on cautious value investing, suited his Midwestern sensibilities. Far from Wall Street, a genteel culture prevails. Raised voices are frowned upon, as are swaggering star traders. Instead, investment decisions are made by committee. Dodge & Cox styles itself as a methodical and conservative player, picking fewer stocks and maintaining fewer funds than its rivals.

“Everything about it felt like a place from the 1950s,” one former staffer said. “You weren’t wearing jeans there.”

Hoeft’s specialty became the technology sector. Trendy new software and flashy young companies were not the purview of Dodge & Cox in the 1990s and early 2000s. Persuading the stodgy organization to invest in tech companies was a challenge. As a value investor, the firm typically based valuations on free cash flow, but many tech companies were not profitable by traditional accounting metrics. Hoeft framed tech stocks in a way that resonated with value investors. “If you roll the tape forward far enough,” he said years later, “you can get to a point where the valuation could look attractive. You aren’t necessarily buying the company that you see today, if you’ve got a five-year-plus time horizon. You’re investing in what you think the company is going to look like in the future.”

As tech companies matured, what initially started as a disadvantage worked to his favor. Hoeft’s expertise became more prized internally. He was also popular in a workplace multiple former staffers described as polite but awkward. In comparison, one said, Hoeft “was the most normal.” He was quick to sit more junior employees down for talks about their futures, taking them under his wing.

Over three decades, Hoeft steadily rose to his current role as chief investment officer. And along the way, he became incredibly wealthy. His tax records show he went from making a few hundred thousand dollars a year in the 1990s to earning hundreds of millions at Dodge & Cox in the years since. In 2018 alone, he made $74 million at the firm.

Despite his fortune, Hoeft, now 56, has maintained his Midwestern aversion to flashiness. He and his family live modestly — his sons grew up wearing hand-me-down clothes and shoes from their cousins — and he applies his value-investing philosophy to his personal life. For example, Hoeft determined that a slightly used car has far more value than a new one, so he has tended to drive pre-owned vehicles. (He made an exception recently, for a hybrid Toyota RAV4.)

And Hoeft doesn’t own his home, opting instead to live in the Presidio of San Francisco, a former Army post now maintained by the federal government as a park at the foot of the Golden Gate Bridge. The onetime military lodging there is available to rent, and Hoeft lives in the house once used by a commanding general. (In a rare splurge, he recently paid to build an addition to the 1940s home, a futuristic-looking space with floor-to-ceiling glass walls that one of its designers dubbed The Presidio Glasshouse.)

Among friends, Hoeft keeps the focus on his wife, an academic. She “was the amazing neuroscientist,” said Nicole Kontrabecki, a former neighbor. “He took a backseat. The most distinctive thing about him is there was nothing distinctive about him.”

The scale of Hoeft’s personal trading certainly qualifies as distinctive. In recent years, the annual dollar value of his transactions has regularly exceeded $100 million.

Among the other stocks that Hoeft traded in proximity to trades by Dodge & Cox were tech companies HP, Xerox and DXC. The transactions followed trajectories that resembled Hoeft’s VMware trades, with Hoeft buying or selling during the same quarter or the quarter before a comparable transaction by Dodge & Cox. Hoeft’s sales, all of them seemingly profitable, generated proceeds that ranged from $2.8 million to $7.8 million.

Another striking example involved NetApp, a data storage company.

Hoeft bought at least $1.47 million in shares in February 2016.

That same quarter, Dodge & Cox added about $32 million in shares to its already sizable stake.

Hoeft sold over $2 million of his NetApp stake in March 2018.

That same quarter, Dodge & Cox made a major cut to its stake in NetApp (but the sale wasn’t made public until after Hoeft also cut his stake).

In September 2018, Hoeft sold more shares — giving him a total profit of $5.2 million. Dodge & Cox continued to shed the stock the following quarter.

Dodge & Cox declined to provide details about Hoeft’s role in making decisions about NetApp. But at the very least it was a company on his radar: He spoke publicly about NetApp in 2015, saying it was undervalued in a Barron’s article about his firm’s investment strategy.

Trades like Hoeft’s may push the bounds of what his firm’s ethics policy and the law allow, according to securities experts.

ProPublica compared his personal stock transactions to the holdings reports Dodge & Cox is required to publicly file at the end of each quarter. Because changes in a firm’s holdings are disclosed only at the end of each quarter and do not specify the dates of each trade, the precise sequence of events is often unclear. ProPublica identified at least 31 days, from 2011 to 2019, in which Hoeft traded a security the firm also traded during the same quarter or the quarter after. (The number of coinciding trades may be an undercount because ProPublica’s data does not include all stock purchases.)

Dodge & Cox consistently emphasizes the need to act ethically, according to former employees. Staffers are regularly reminded to be careful about their personal trades. They’re told to avoid making moves they’d be embarrassed to see on the front page of a newspaper. A compliance staff reviews their personal brokerage statements and preapproves their stock trades.

“The view at Dodge & Cox is we built our reputation for doing the right thing for our clients, and you can blow that in one day, and we don’t want that,” one former employee said. “You never felt like you could cut corners.”

Dodge & Cox is perhaps even more sensitive about the notion that its data or research would be used by others. It is so guarded about the value of its real-time trading data — and the harm its use could do to its investors — that it opposed a recent proposed regulation that would have required more disclosure on the grounds that it “strikes at the heart of our business.”

“We frequently trade large blocks of securities, and because we are price sensitive investors it can … sometimes take weeks or months to fully implement an investment decision,” Dodge & Cox’s Pohl wrote to the SEC in 2022. “Earlier reporting deadlines and more frequent reporting will provide greater opportunities for front-running and other predatory trading by market participants looking for a free ride.”

Still, Dodge & Cox goes only so far in policing its own employees. Employees are generally allowed to trade securities the company holds. Stocks are placed on a restricted list, which means personal trades are prohibited, when employees officially designate them as stocks they think the firm should consider making a move in.

That could leave weeks, if not months, during which a potential investment is being scrutinized, with multiple stages of vetting and discussion before a potential move is formalized and a vote by committee is set in motion. And during that period, there’s little to prevent an employee from buying or selling the same stock, beyond the ethics policy, which applies to “contemplated” transactions. At that stage of the process, the controls essentially amount to the honor system, a former high-ranking employee told ProPublica.

In its statement, Dodge & Cox objected to what it called the “unfair and false suggestion that our compliance policies are akin to an honor system. To the contrary, we have strict and robust compliance policies that are designed specifically to prevent front-running, profiting from short-term trading, and other types of improper trading behavior.”

At the time of his 2015 VMware trades, Hoeft was associate director of research, tasked with examining investment opportunities for the company and managing analysts who were doing the same. He was also a member of the committee that selected stocks for Dodge & Cox’s marquee fund.

It’s unclear how involved he was in the firm’s decision to buy VMware shares. But public statements he made around that time suggest it was a stock and sector he was watching. In a 2014 interview about Dodge & Cox, for example, he said that he was attracted to a separate data storage company, in part because it held a large stake of VMware stock. And a former colleague recalled that Hoeft looked at VMware for the firm in the early 2010s.

Dodge & Cox’s spokesperson declined to say whether Hoeft was advocating for the company to invest in VMware.

by Mark Olalde, ProPublica, and Janet Wilson, The Desert Sun

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

John Brooks Hamby was 9 years old the last time a group of Western states renegotiated how they share the dwindling Colorado River. When the high-stakes talks concluded two years later, in 2007, with a round of painful cuts, he hadn’t reached high school.

Yet this June an audience of water policy experts listened with rapt attention as Hamby, now 27, recited lessons from those deliberations.

Hamby, California’s boyish-looking representative on issues concerning the river, sat shoulder-to-shoulder with the other states’ powerful water managers, many of whom have decades of experience, an almost uncomfortable sight given their latest brawl over the beleaguered Colorado River. The group had gathered in a mock courtroom at the University of Colorado Law School to discuss water law and to field questions about their negotiations over shortages that have prompted some cities to restrict growth and farmers to fallow fields.

The moderator asked whether states would allow Native American tribes in the basin, who have often been denied the water they were guaranteed by treaties and court rulings, to have an equal say in these decisions, referencing a question posed earlier by the governor of the Gila River Indian Community, a tribe in Arizona. Hamby jumped to offer a noncommittal answer about involving tribes in “effective conversations” before pivoting to a discussion of how, during the 2007 negotiations, smaller working groups had allowed the states and other water users to effectively iron out potential impasses.

The only other state delegate to respond endorsed Hamby’s answer, a sign of how quickly he has risen to the top of the river’s ranks. Hamby — who goes by J.B. — is the youngest of the Colorado River’s “water buffaloes,” as the water managers who set policy are known.

While his counterparts from the other basin states — Arizona, Colorado, Nevada, New Mexico, Utah and Wyoming — worked their way through water agencies or weathered the shifting politics of various governors, Hamby’s ascent was swift. In a three-year span, he rose from a recent Stanford University graduate, with a resume that touted little beyond a history degree and internships with Uber and a senator, to vice president of the Imperial Irrigation District board and chair of the Colorado River Board of California. The former post gave him sway over the single largest user of Colorado River water, and the latter made him California’s interstate negotiator for issues affecting the river basin.

Combined, these roles position Hamby as arguably the most powerful person involved in talks on the future of the Colorado River, a waterway that is relied upon by an estimated 35 million people and supports about $1.4 trillion worth of commerce.

They also place him at the center of the river’s most consequential moment since midcentury, when Arizona and California went to the Supreme Court to fight over the amount of water they were allocated. Now the river’s users must agree to dramatic cuts, as the river has been diminished by climate change and drought. It’s a task that demands Hamby both protect California’s long-standing water rights and lead all seven basin states to collaborate on a resolution, even though they’ll all have to give ground.

The All-American Canal transports water from the Colorado River to the Imperial Valley in the Southern California desert. (Jay Calderon/The Desert Sun)

Hamby holds the trump card. The Law of the River — the compacts, laws and court rulings that govern how the river is allocated — reflects a time when water use was encouraged to bring settlers west. And court decisions have favored users with senior priority rights, meaning those who were first to plant stakes along the river, file claims in county recorders’ offices and prove their claims by taking water before federal and state water laws were codified. Those with such rights are legally entitled to receive their share of the river before the next person or agency in line receives any. The Imperial Irrigation District holds some of the basin’s oldest rights, dating back to 1901.

Hamby defends this system, which allows the Imperial Valley — home to only half of a percent of the river’s users, Hamby included — to control about a quarter of the river’s flow. That’s more than 10 times southern Nevada’s allocation and more than the entire state of Arizona receives. A recent ProPublica and Desert Sun analysis found that 20 valley farming families use about 387 billion gallons of cheap water annually, most of it to grow cattle feed, and one family uses more water than the entire Las Vegas metropolitan area.

Even so, Hamby can only go so far in dictating the terms of basinwide cuts. Strictly adhering to the century-old status quo would be catastrophic, as it would continue decades of overuse and could cut off the supply to millions of people in lower-priority cities and reservations. But if Hamby concedes too much to the other states, he risks costing California by upending the historical agreements that put the Golden State at the front of the line.

As an IID director, he must protect the priority system preferred by farmers who use most of the river and fear the cities eyeing their share. As California’s negotiator, he also represents cities like Los Angeles and San Diego as well as oft-overlooked tribes.

“Water is power. Water is control. So why would anyone want to give that up, to give it away to somebody else?” said Kyle Roerink, a Nevada environmentalist who runs the Great Basin Water Network and has joined unlikely coalitions with Hamby fighting the region’s seemingly endless urban growth.

If the basin states can’t find agreement, then the Law of the River reigns supreme, Hamby told ProPublica and The Desert Sun earlier this year. “That is the law, which everybody agreed to.” California is ready to compromise on cuts, he added, “but we need to see something come from the other states.”

An Origin Story

As a boy, Hamby helped his grandfather with beekeeping. (Courtesy of J.B. Hamby)

Hamby grew up among the hot Imperial Valley farms and picked up the region’s “us against the world” mentality that flourishes alongside alfalfa, livestock and leafy greens. In California, dreams only go as far as water allows, and the valley’s farmers live in constant fear that cities are lusting after the water that sustains the local economy.

In the Imperial Valley, locals’ bona fides rest on how many generations back their family arrived in this hardscrabble desert. Hamby’s great-grandfather “came here with $10 in his pocket on the back of a freight train from Big Spring, Texas,” as Hamby tells it, and worked as a ditch digger before starting a beekeeping business. His family has remained in the agriculture industry.

Hamby’s father has held various gigs, from helping develop a farm in China (to the dismay of some Imperial Valley growers) to his current business growing seeds. And his mother worked on water issues from a different angle, serving as a county environmental health specialist, including focusing on the pollution that flowed through the valley via the New River.

If his family had a successful farm to pass on, Hamby, who was active in 4-H as a teenager, said he would’ve embraced that career path. “There’s been repeated struggle, and dreams will be built up and dashed and broken,” Hamby said of his family history. Instead, he looked for other ways to shape the valley.

A teenaged Hamby, front right, presents a hen at a 4-H event. (Courtesy of J.B. Hamby)

Despite his agrarian upbringing, he had an origin story to launch him into conservative politics, if only he wanted that path.

In 2014, Hamby was to give a speech at his graduation as the salutatorian of his Brawley Union High School class. But he had chosen to write an address about his Christian faith, to which school administrators objected, he said, forcing the teenager to rewrite it multiple times.

At the ceremony, he stepped to the lectern, the hot desert wind jostling his tassel and waving a line of American flags at his back. “Congratulations, class of 2014,” Hamby concluded, his words echoing over the sound system. “Thank you, and may the God of the Bible bless you, each and every one of you, every day of the rest of your life.”

The crowd cheered. Right-wing outlets including Fox News featured stories of a student standing up to what they saw as censors, dubbing him a “red-blooded, Constitution-loving American.” He was interviewed on national television about his stand for Christian religious liberty.

But something kept pulling Hamby toward battles grounded less in identity politics and more in the day to day. Exactly how he came to combine water and politics wasn’t entirely clear to him as he sat in a Mexican restaurant in the Imperial Valley town of El Centro earlier this year.

Asked if the fight over his graduation speech was the beginning of his story in politics, he pushed back. “Lives are very complicated and long,” he offered.

Finding a Cause

Even if he saw himself becoming a farmer, political ambition has propelled Hamby his entire life.

His mother told a local reporter that he had wanted to be mayor at 5 years old. At 17, he earned a three-week posting as a page for Sen. Barbara Boxer, a California Democrat. In college, he interned for Sen. Ben Sasse, a Nebraska Republican. In 2019, he was appointed by the county board of supervisors to a local community advisory council.

Hamby, who said he’s registered to vote without a party preference, continuously sought out bigger causes.

While in college, Hamby was involved with political groups, including, among others, the Stanford College Republicans and an anti-abortion organization. As he waded into the university’s archives, it became clearer where he wanted to focus his ambitions.

Hamby voraciously read about the West’s battles over water, marveling at the papers of Northcutt Ely, a storied water attorney who argued the Supreme Court case Arizona v. California on the latter’s behalf, and Ray Lyman Wilbur, a former secretary of the interior who oversaw construction of the Hoover Dam.

Asked how he felt living in the archives while some of his college compatriots partied, Hamby quipped, “Well, you could only be in the archives in the daytime. There were other opportunities in the nighttime, which I did not exploit.”

Roerink, the environmentalist, compared Hamby to the historical figures he studied who fought to protect the system that has guaranteed California’s water. “Northcutt Ely and J.B. are saying a lot of the same things, that development elsewhere ultimately impacts the rights of California,” he said.

In a Facebook post celebrating his graduation from Stanford, Hamby included a picture of himself smiling, diploma in hand, alongside a quote from John Wesley Powell, the one-armed explorer who led the first U.S.-sponsored expedition down the Colorado River and tried to help shape early American policy along the waterway, arguing that there wasn’t enough water to support mass Western expansion.

“We are now ready to start on our way down the Great Unknown,” Hamby quoted from Powell’s musings on the river. “Our boats, tied to a common stake, are chafing each other, as they are tossed by the fretful river.”

Four months later, Hamby announced his candidacy for the Imperial Irrigation District’s board of directors.

Southern California’s Big Red Brexit Bus

In an ad for the 2020 race, Hamby stares into the camera and shakes his fist. “Imperial Valley’s water belongs to all of us, and it belongs here,” he says. Big cities are trying to take the valley’s water and other water managers will allow that via “backroom political deals,” Hamby says in the video. But he would protect the precious resource if elected.

Hamby’s message struck a chord.

He had studied recent successful political movements: populist Mexican President Andrés Manuel López Obrador’s election, the Labour Party’s landslide 1997 win in Great Britain and the conservative pro-Brexit campaign in 2016.

He was particularly inspired by the notorious big red bus that toured the United Kingdom, spreading the message that the country was spending huge sums to prop up the European Union — a persuasive argument that was a lie. He also took note of environmentalists using a giant mobile bucket to protest an attempt to move water from rural Nevada to Las Vegas. Hamby rented a flatbed, mounted a massive pipe on the back and had it driven around the Imperial Valley. The insinuation: This is how San Diego will buy and siphon off your water.

“People immediately got it, especially when you had a 30-, 40-foot pipe marauding around the area,” Hamby said.

He vowed to hold a public referendum before any more Colorado River water was moved out of the valley. Hamby later led the charge to secure $250 million in federal funds if the irrigation district temporarily cut its use of river water, despite an outcry from farmers and environmental groups who only had 24 hours to review the plan before the board voted on it. No referendum has been held.

Asked if he had broken his campaign promise, Hamby said that he is working to enshrine public input in district policy and that “we’re not moving water to any other places. We’re maintaining it in the system to be able to protect our sole source and supply.”

He also made stylistic changes as he entered the political arena. He started going by J.B. because it sounds more “iconic,” he told a podcaster, and because potential voters were getting confused by the name Brooks, he told ProPublica and The Desert Sun. And he refined his look. He’s clean-shaven and sports a high and tight haircut. His wardrobe could be described as “corporate outing meets Western wear,” often including a turquoise bolo tie and the IID crest, which features a crown adorning a shield, pinned to his lapel.

“Traditionally, it’s been, ‘You hold the role and then you die in it,’” said Hamby of the job he stepped into at 26. (Jay Calderon/The Desert Sun)

During his campaign, Hamby faced questions about his inexperience and choice to run in a district other than the one where he was raised. “JB is still a KID. JB needs a JOB. DON’T give him your VOTE. IID DIRECTOR should not be one’s first JOB out of college,” one constituent commented online, according to the Imperial Valley Press, a local newspaper that covered the race.

Still, Hamby was the top vote-getter in the primary, beating an incumbent who cast the deciding vote on a controversial 2003 agreement that transferred a portion of the valley’s water to cities to help get California back within its allotment. Many of the valley’s large, wealthy farming families supported Hamby’s campaign, which brought in more than $100,000, including loans from his father’s company.

Hamby garnered nearly two-thirds of the general election vote. He had a mandate to defend the valley’s water rights.

Hamby’s time on the board got off to a combative start. While waiting to be seated, he showed up at board meetings, publicly calling on members to avoid making important decisions until the new members were seated. He and another newly elected director skipped the district’s official swearing-in and held their own due to a disagreement over who could attend amid COVID-19 restrictions.

When the outgoing board signed a sweeping project labor agreement with Southern California unions days before Hamby took office, he engineered a strategy to rip it up by declaring that the motion to approve it was ambiguous and voting to nullify it. That move led to litigation, which was resolved when the district accepted a modified agreement.

Over time, as he confronted problems that would take collaboration to solve, Hamby’s tone changed. The board, which has a history of dysfunction, confronted issues ranging from mandatory water conservation that is shrinking the Salton Sea — a terminal lake fed by irrigation runoff that is now exposing communities to toxic dust as water levels fall and uncover the lakebed — to a powerful farmer who has been battling in court to break the irrigation district’s control over water.

Many of Hamby’s colleagues, including fellow Director Javier Gonzalez, praised the young director’s leadership. “He’s a hard worker,” Gonzalez said. “He gets things done.”

The rewards of the job are less financial and more the ability to pursue policy goals. The irrigation district’s directors make around $50,000 annually. Hamby drives an aging Toyota Prius and says he lives in a “bachelor apartment.” But even with his work ethic, there were limits to how much Hamby could deliver on his campaign promises to keep the district’s water in the Imperial Valley.

To do that, he needed to be at the table with the basin’s water buffaloes.

Hamby’s travels to board meetings and Colorado River conferences take him throughout the Colorado River Basin. (Jay Calderon/The Desert Sun) At the Head of the Table

Power in the Colorado River Basin lies largely with the seven states and their designated representatives now haggling over cuts to water allocations.

The Colorado River Board of California is the state’s representative. Gov. Gavin Newsom appointed Hamby to the board a few months after he was sworn in at the irrigation district.

Less than two years later, the chair, who acts as the state’s negotiator, unexpectedly announced he wouldn’t seek reelection.

The board is split between representatives of rural water districts that largely serve farmers and urban water districts serving Los Angeles, San Diego and other cities. A member of the San Diego County Water Authority board emerged as the cities’ candidate for chair, with Hamby as the preference of the rural irrigation districts. Neither candidate had enough votes to win, and some of Hamby’s earlier brash remarks left an older water manager feeling uneasy about voting for him.

Glen Peterson, who was then the board’s representative from the Metropolitan Water District of Southern California, which serves 19 million people, was considering supporting Hamby but “had concerns” about his public statements. After a frank conversation between the two and some maneuvering with other board members, the votes shifted.

“I think he’s a wonderful kid. And he’s really smart and, for his age, he is extremely mature,” Peterson said. “I mean, this guy probably sat at the big people’s table when he was a teenager.”

Hamby was elected the new chair, overseeing California’s negotiations with the rest of the basin states.

“Traditionally, it’s been, ‘You hold the role and then you die in it,’” Hamby explained. “IID’s had three people hold the position before. The previous three died in the role.” (The chair of the board now serves four-year terms, but there is no limit on the number of terms.)

When asked what happens next on the river, where he would’ve once brought rhetorical fire and brimstone, he now offers coded responses. “I need to develop truly consensus-based approaches to develop a new set of operating guidelines and standards that everybody can agree on, because there’s necessity,” he said.

Charting the River’s Future

With aggressive conservation efforts already underway in some parts of the Colorado River Basin, policymakers are realizing that ripping out lawns and installing low-flow toilets in metropolitan areas won’t be enough to save the river. Agriculture uses an estimated three-quarters or more of the river, meaning any solution must include cuts to farmers’ allocations and a rethinking of the long-protected priority system.

That puts IID and California, with their senior water rights, at odds with the rest of the basin.

In January 2023, facing a federal deadline to come up with a plan to cut water use, the other six basin states released a joint letter detailing their idea to conserve water. California, which potentially faced the heaviest cuts, was the only state not to sign onto the plan.

“Compromise really wasn’t in the air at the time,” Hamby said.

Falling water levels at Lake Mead, one of the Colorado River’s two main reservoirs, have exposed areas submerged for decades. (John Locher/AP)

A day later, the Colorado River Board of California, with Hamby at the helm, rushed to release its own plan. The board flexed California’s water rights, arguing in a statement that the other states’ proposal “conflicts with the existing Law of the River” and undermines the priority system.

In the ensuing weeks, Hamby made it known that the other states’ methodology for saving water, which put California at a disadvantage, was untenable.

“That moment looked like the example of him digging in his heels,” said Elizabeth Koebele, an associate professor of political science at the University of Nevada, Reno who studies the river’s governance. She added, “We did see the power of California and the role that their legal position plays on the river.”

But unless Hamby were willing to exercise the nuclear option and test the strength of California’s legal position in court, he’d have to give up something to protect water rights in the state.

He embraced diplomacy, writing thank-you notes to other states’ representatives and beginning to broker a new plan among the Lower Basin states: California, Arizona and Nevada. In it, they agreed to apportion short-term cuts — importantly, without changing the priority system or water accounting in the long run — until a new set of rules and agreements could be hammered out. That new plan is due by the end of 2026.

“There’s still certainly an argument that he’s making that’s based on protecting as much Colorado River agricultural water as possible, but there’s this shift that’s happening,” Koebele said, adding that Hamby and California seem to be embracing a “realization that simply arguing ‘Our water rights are senior’ is not going to save agriculture.”

The Imperial Irrigation District board of directors (Jay Calderon/The Desert Sun)

Other water leaders, both in California and around the basin, have acknowledged Hamby’s diplomatic approach. Even Arizona, which has traditionally been California’s staunchest rival on the river, took notice.

“J.B. has exhibited a real progressive, collaborative spirit in our discussions,” Tom Buschatzke, the director of the Arizona Department of Water Resources and the state’s representative, wrote in an email. “He is a very measured, calm person who is clearly very intelligent.”

Hamby acknowledged he’s evolved on the job from “a very eager young 23-year-old” to someone more focused on compromise as his position in river negotiations grew.

But a temporary harmony along the river isn’t a guarantee he’ll remain in good standing with voters in the Imperial Valley. Even as he’s working with colleagues across the basin, Hamby still must contend with local politics and strike a balance between finding agreement with the other basin states and protecting the favorable status quo.

Some of the valley’s farmers have privately voiced dissatisfaction with Hamby and the district, and one former local politician said he was asked to consider challenging Hamby in next year’s election.

Hamby also received a cryptic death threat in the mail earlier this year, in which the sender, allegedly frustrated with the handling of the Colorado River, suggested he be shot.

But he shrugged off that incident too as just someone sending him “a nice notecard.” All paths forward on the river go through Hamby, and there were more pressing water policy questions — and potential solutions to the river’s woes — that he wanted to discuss instead.

“I’ve been accused of being optimistic,” he said.

Mollie Simon contributed research.

by Ken Schwencke

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

For the past decade, ProPublica’s Nonprofit Explorer has published financial details of every tax-exempt organization in the United States that files annual reports with the Internal Revenue Service. And until this year, the site looked about its age.

While we regularly update our database with new documents, we’ve only occasionally added new features (like a full-text filing search and an employee search) or updated its looks or back-end code. This year, however, we dedicated a team to take our favorite news app and give it some much-needed love, as well as new bells and whistles. Most exciting of all, we now have email alerts to let you know when we publish new documents for an organization you’re interested in. You tell us which nonprofits you want notifications for, and we’ll do the rest.

There are under-the-hood improvements, of course: We updated and upgraded much of the underlying code, tuned our data loaders and upgraded our search systems. But the most exciting updates are the ones we hope will help you in your research. (Our reporters and editors will be doing a walkthrough of the new features on Monday, Nov. 27.)

First, the email alerts. On every organization page of Nonprofit Explorer, you’ll find a “subscribe” button. If you click it, we’ll ask for your email address, and we’ll verify that you want us to send you emails. Once you do, we’ll alert you every time we publish a new 990, 990-PF, 990-EZ or audit for that organization. You can add more nonprofits to your list at any time and manage them from a single page. These alerts should be rare — most likely no more than once or twice per year for any given organization — but it’s something we know users, including many journalists here at ProPublica, have wanted for a long time.

What’s more, we’ve changed how search works. Search is one of the primary uses of Nonprofit Explorer, and now you can find what you’re looking for faster and easier than ever. When you search, we’ll tell you not just how many organizations match that search, but how many times that term appears in the full text of e-filed documents and how many key employees or officers match the same term. You can also access search from any page on the site in the top right corner.

Once you’ve searched, you can narrow your results with a number of new filters. Drill down to organizations in a specific state, or with a specific revenue range. If you’re a journalist or researcher, you may appreciate the option to filter down just to organizations that said they provide first-class travel, or that have reported conflicts of interest. For the employee search, you can filter by state or compensation. For the filing text search, you can filter by which part of the 990 your search term was found on — meaning you can filter down, for example, to anyone who listed ProPublica as a grantee on Schedule I. We also give you context and highlight where the term appears on the form page, much like in a Google search result.

Instead of searching, you can filter all nonprofits, employees or forms — meaning you can filter down to all nonprofit hospitals in Florida that reported paying for first-class or charter travel for executives.

We also wanted to help people who are not tax experts understand these important documents. To that end, we made some information easier to understand. For instance, we now have indicators to show if a nonprofit operates a school, hospital or donor-advised fund, or provides certain benefits to executives. We also added charts of revenue, expenses, assets and liabilities, giving you a snapshot of a nonprofit’s activities and health over time.

Instead of expecting people to already know the difference between a 990, a 990-T, a 990-PF or an audit, we now have helpful text that describes what each document is used for, and we give people a clear way to access each document. When you’re reading a document, we’ve also added helpful navigation and a print button that also allows you to download a PDF of the filing.

Users also will have instant access to financial summaries of filings. Before, we had been relying on the IRS to release the information in its published annual extracts. Now, however, we extract that information ourselves, meaning that the summaries will appear as soon as we have the documents. This also allows us to correct summaries in instances when a nonprofit later files an amendment.

Last, but certainly not least, we’ve added state pages. State pages tell you what the highest-revenue nonprofits are in each state, as well as the highest-earning nonprofit employees in each state. If you’re a local reporter, you might want to keep a tab on, for example, the largest nonprofits and the highest-earning nonprofit employees in Pennsylvania.

Learn more in our webinar, How to Use Our News App to Investigate Nonprofits, at 1 p.m. Eastern time Nov. 27. Sign up now.

While these are the big updates, there are lots of small things we’ve done to make the experience of researching nonprofits even easier. This is a labor of love for us here at ProPublica — we really think this is one of our finest public services. Three developer-journalists — Andrea Suozzo, Alec Glassford and Brandon Roberts — spent six months working on this project full time. Designer Jeff Frankl and another news applications developer, Ash Ngu, made further contributions, and many other people helped us along the way. If you’ve ever found Nonprofit Explorer to be helpful in your life, please consider donating, and we’ll make sure we keep updating it with new features and documents for years to come.

by Danelle Morton and Topher Sanders, with additional reporting by Jessica Lussenhop

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

As he walked along the spongy, damp Louisiana marshland, scrutinizing tracks owned by one of the nation’s largest freight railroad companies, Robert Faaborg was not happy. The strips of wood that held the rails in place, called ties, were rotten. The screws that held them together were rusted. It was the sort of decay that could cause 18,000-ton trains to derail.

That evening in January 2014, the government inspector fired off an email to the two Union Pacific managers who had accompanied him on the ground. He wanted them to picture the death and destruction that could unfold if tanker cars filled with highly flammable Bakken crude oil teetered off the rickety tracks and careened toward nearby homes.

“I was a little surprised that a KEY route with such high volumes of hazardous materials had tie conditions like this,” Faaborg wrote. He asked them to think about the neighboring families they saw that day. “I was struck by a little girl’s voice calling out, ‘Daddy,’” the inspector wrote. “The family of that little girl is counting on us to keep her and them safe.”

Johnny Taylor was clear on what had to happen. As Union Pacific’s manager of track maintenance for a southern swath of the state including Baton Rouge, he knew he “owned” the 120-mile network of tracks and would get blamed for anything that went wrong. He also didn’t want anyone to get hurt on his watch.

Faaborg, who worked for the Federal Railroad Administration, which oversees rail safety, had only been able to inspect some of the tracks. He instructed Taylor to look at the rest and write up defects, setting a schedule to make the whole territory comply with federal code. Until these tracks were brought back to standards, trains couldn’t go 60 miles per hour on them, the inspector said; regulations required Taylor to slow them down. With more substantially damaged tracks, Taylor had 30 days to repair them; if he couldn’t, Taylor would have to shut them down.

As an Army veteran, Taylor respected orders and deadlines and the chain of command. But he sat under his own boss within a corporate structure that prized moving its cargo as quickly as possible. Bakken crude was big business, and that year, as oil production outstripped pipeline capacity, there had been significant increase in shipping crude by rail.

Taylor’s boss, who had been with him during the inspection, gave him a conflicting order, Taylor would later recall in a court deposition and in interviews with ProPublica; the words marked the start of the seven worst years of his life:

If you keep reporting these track defects, you will no longer have a job at Union Pacific.

ProPublica this week detailed a dilemma rail workers face across America. As the nation’s rail companies double down on increasing the speed and frequency of trains to grow their profits, managers at all levels must fulfill that vision and decide if keeping the trains moving requires them to neglect repairs, ignore safety issues and fire those who complain.

ProPublica uncovered 111 instances of workers who claimed in federal court that they had been disciplined or fired for reporting safety concerns like failing brakes and damaged tracks.

In at least three cases in recent years, including one filed by Taylor, juries awarded over $1 million to fired workers. The rail companies quietly settled most of the rest.

But rail workers have gotten the message loud and clear, dozens of them told ProPublica: Their bosses make examples of those who speak up — or, worse, work with regulators to force fixes. As a result, workers said they have struggled with whether to risk their jobs to raise safety issues.

The industry disputes this dynamic. The Association of American Railroads says the rails are safer than they’ve ever been, with accidents on a steady decline. The group attributes this to the care companies take to run safe trains. Union Pacific said safety is its No. 1 priority. “Nothing is more important,” the company said in a written response.

But that is belied by news ProPublica reported in September, when the FRA blasted Union Pacific for running unsafe trains out of its largest yard, in North Platte, Nebraska. According to the agency, company managers pressured inspectors to leave the yard because they were slowing down business.

“That’s basically what they were doing to me,” Taylor told ProPublica. “Now they’ve gotten so bold they are telling FRA inspectors, ‘Don’t come out here.’”

In at least three cases, including one filed by Taylor, juries awarded over $1 million to fired workers. (Emily Kask for ProPublica)

Union Pacific told ProPublica that it wants its employees to report safety issues and work with regulators. In its response to a letter the FRA sent, the company said that it is routine to ask inspectors to move to a different part of the yard if they are in an unsafe location or their work is interrupting train service. Union Pacific said it would address the recent concerns raised by the agency. As for Taylor, the company said his “renditions of the facts vary from those of management.”

Taylor’s former boss, director of track maintenance John Begley, declined to be interviewed about Taylor or comment more broadly. Begley was not deposed, nor did he testify at trial. He has since retired.

This story is based on interviews, sworn testimony and court documents including internal emails filed as evidence.

What happened to Taylor captures in rare detail the impossible position of rail workers who are caught between their bosses and their duty to keep the rails safe, as well as the toll this conflict takes on them and their families.

Signage at a Union Pacific office in California. The railroad said that it wants its employees to report safety issues and work with regulators. (David Paul Morris/Bloomberg via Getty Images)

At 43 years old, with a career that spanned the military, the Mississippi Department of Transportation and seven years at Union Pacific, no one had ever threatened to fire or demote Taylor.

His first instinct was to go to Faaborg; he thought that surely the government inspector would protect him. But Faaborg said there was nothing he could do about an employee’s dispute with a supervisor, according to Taylor. (Faaborg didn’t respond to ProPublica’s attempts to contact him, but the FRA confirmed that it can’t stop the type of intimidation Taylor said was happening.)

Taylor read the Federal Railroad Safety Act, the law that governs conduct on the rails. It protected him, at least on paper; managers couldn’t threaten him for trying to address safety problems. But there was no immediate legal remedy if his bosses retaliated unless he sued the railroad or filed a claim with the Occupational Safety and Health Administration. It could take years for the agency to decide a case.

Taylor realized he was alone.

“I made up my mind,” Taylor said. “I’m going to write these defects up. It was the right thing.”

He fixed the problems the inspector had noted and kept flagging more for repair. Sometimes, that required slowing down trains or taking tracks out of service. Even though Begley didn’t make good on his alleged threat to fire him, the blowback kept coming, Taylor said.

He felt it in November 2016, when vice president of engineering Greg Workman asked him whether he was “in bed with the FRA,” Taylor recalled in trial testimony. Workman, who is now retired, denied this during litigation and declined to comment when reached by ProPublica.

And he felt it in March 2017, when he took a troublesome stretch of track out of service after trains kept slipping off the rails. Daniel Jaquess, senior terminal manager, came to the yard to berate Taylor. “Why the fuck did you do that?” he asked Taylor, who turned and walked away. “Where the fuck are you going?”

Recognizing his precarious legal situation, Taylor started lodging complaints about the threats he was receiving with Union Pacific’s ethics hotline and the company’s Equal Employment Opportunity office. In response to the encounter with Jaquess, the company counseled the director on his use of strong language, according to court records. Jaquess declined to comment for this story. In a statement to ProPublica, Union Pacific denied it fosters a culture of intimidation. “We encourage employees to raise concerns and engage in respectful dialogue. We do not tolerate any form of retaliation against an employee making a good faith report of a safety concern.”

The impossibility of his job wore away at Taylor. He used to relax after work, playing the blues or soul on his guitar. But he couldn’t find the notes anymore. He tried to shield his wife from his stress, but Erica Taylor, who had loved him since they were teenagers, knew better.

She felt it as he tossed and turned in bed; she heard it as he talked in his sleep. She couldn’t make out what he was saying but knew it was about the railroad.

Taylor was already struggling when two major forces collided in 2017, ratcheting up the pressure from both sides.

As Bakken production increased, Congress lifted a four-decade ban on exporting crude oil, which started shipping out of Louisiana’s deepwater port in 2017. Competing with other railroads for this uptick in traffic, Union Pacific dispatched new local managers schooled in a business philosophy that was sweeping the industry.

Under precision scheduled railroading, profits soared as companies ran longer and faster trains with quicker turnarounds. The industry’s oil trains, including Union Pacific’s, lengthened, stretching to 100 cars carrying 2.5 million gallons of crude each.

At the same time, Union Pacific was under intense scrutiny about how it handled this cargo. The year before, one of its oil trains derailed outside Mosier, Oregon, spilling 47,000 gallons of crude into the Columbia River Gorge. The tracks there had come loose.

Fed up with Union Pacific’s “failure to maintain tracks to federal standards,” officials at the FRA announced a robust nationwide safety agreement to force it into compliance.

Suddenly regulators started showing up unannounced in Taylor’s region, including a staunch inspector named Nick Roppolo who dropped by weekly. One day, Taylor recalled, the inspector said that if defects weren’t fixed in 30 days, Taylor could face criminal charges under the stricter standards of the safety agreement. Roppolo declined to be interviewed by ProPublica.

As Taylor traversed his vast territory in his company pickup truck, steaming or stressed, he had taken to calling his wife, who would talk to him until he calmed down. But she’d recently had brain surgery to deal with a pituitary tumor and he didn’t want to burden her, so he drove in silence, his mind swimming. Jail? What was this job going to cost him?

Shaking, Taylor pulled over, sat with the engine running and cried.

Taylor noticed how the heavy Bakken crude trains affected the switches, movable rails that shift to guide trains as they transition from one track to another. That fall, two trains derailed in six days at a sequence of antiquated switches.

Taylor, who has degrees in math and engineering, came up with a solution he thought could stop the derailments for good. The switches were too small. The best fix was to replace them with larger ones that could create a softer curve for these longer, heavier trains to navigate.

His local managers didn’t like this plan, which was expensive and would take the tracks out of service for months. Already, Taylor said, one of his new bosses had threatened to take his welding gang after Taylor shut down a mainline track. If Taylor lost control of his crew, it would be harder to fix federal violations within 30 days, which could leave him at fault if the company were fined. Kenneth Stuart, director of track maintenance, denied this in his deposition and said he wanted to use the crew differently. He didn’t respond to ProPublica’s attempts to reach him.

In emails, Taylor and the local managers seemed to be talking past one another. Taylor said he invited them to come see the problem for themselves. Jacob Gilsdorf, general director of engineering for the Southern Division, later testified that he was never asked. Either way, the tracks remained idle. Frustrated by the inaction, Jaquess emailed them all in January 2018, pushing for a plan to get the tracks back: “We have four tracks out of service. … We can’t survive without these tracks. Business is too good.”

Four days later, Taylor restricted train speed on another track for safety reasons. Gilsdorf ordered Taylor to lift the speed restriction, but Taylor refused, thinking of the families who lived less than 500 feet from the defect. Gilsdorf denied this in court testimony and did not respond to ProPublica’s attempt to reach him.

Communications between Taylor, Stuart and Gilsdorf had become tense. One day, Taylor accused them of trying to get him to commit a crime by putting the tracks back in service before they were repaired, according to court records. Another day, he told them he was recording their phone calls and notified them he’d filed an Equal Employment Opportunity complaint, one of many he’d submitted since they came to his subdivision. Stuart claimed Taylor was abruptly hanging up on them, using the catchphrase, “Johnny Out.” Taylor denies this.

Through it all, Taylor was consumed with worry, certain his bosses were working on a way to fire him. He didn’t want his wife to have to go back to work. What would his family do for health insurance? How would he support them? For the first time in his life, Taylor thought about killing himself.

One afternoon that month, January 2018, Taylor and his wife saw railroad bosses in their doorbell camera. They had no idea why the two men were knocking at their front door. Taylor had called in sick that day. He had an appointment with his doctor about his blood pressure, which was spiking from conflicts at work.

When Erica Taylor greeted Stuart and Phillip Hawkins, a family acquaintance who was manager of track projects, she thought Hawkins might be dropping by to see how her husband was doing. But the managers stopped in the foyer.

Stuart announced that Union Pacific was placing Johnny Taylor on administrative leave. He would not be allowed back in the yard, and he needed to turn over company property.

“Bring us the keys. We need the keys to the truck,” Erica Taylor recalled hearing from Stuart. Johnny Taylor went to get the keys and Stuart hollered after him, telling him to bring the company laptop, cellphone and ID card, too.

Erica Taylor started to cry. She couldn’t believe they were doing this at their home, nor could she separate this kind of treatment from the fact that her husband is Black. Coming to their home to emasculate her husband in front of her felt like the kind of thing that would happen in the Jim Crow era. “Look at how they’re making him feel, like nothing,” she thought. “It broke me that they're trying to break this man in front of me.”

Stuart and Hawkins remember this encounter differently. At trial, Hawkins, who is also Black, recalls tensing up when Johnny Taylor walked up behind him, fearing “something was gonna occur.” Hawkins did not respond to ProPublica’s attempt to reach him. Stuart described Taylor’s behavior as “erratic and intimidating.”

As Taylor handed over the artifacts of his 11 years of employment at Union Pacific, at last he could express his frustration with the way it ran its railroad. “Get out of my house,” he told the men.

He knew this was the first step in firing him despite years of positive evaluations. In his most recent review, the division supervisor wrote: “Thank you is not enough. Your leadership and dedication are a huge part of this service unit’s success.”

His instincts were right. His bosses had started the paperwork, claiming to the personnel office: “Taylor has decided he doesn’t have to do anything his manager or director tells him to do. He claims he is being retaliated against every time someone assigns him a task.”

They soon presented Taylor with a three-month performance improvement plan that described him as “disrespectful and insubordinate” and “argumentative.”

When Taylor refused to sign it, he was fired.

Five days later, he received a $15,000 bonus check, the largest he’d ever earned, for his good performance at Union Pacific, commending his crew’s injury-free days, how he stayed under budget and how he managed traffic on damaged tracks, while noting he needed to have a more positive attitude.

Johnny and Erica Taylor in their home in Gonzales, Louisiana. Railroad bosses came to their house to tell Johnny Taylor he was being placed on administrative leave and to have him turn over company property. (Emily Kask for ProPublica)

Taylor’s bonus disappeared quickly as he tried for more than a year to find a job. The mailbox was full of notices from bill collectors; and they kept calling, threatening to repossess his boat, an easy-to-afford luxury when he was making more than $100,000 a year. But he wasn’t in the mood for recreation.

“I’ve seen my husband sad before, but I’ve never seen my husband depressed to the point where he’d just sit in the dark,” Erica Taylor recalled. “His demeanor was just like they took that military arch out of his back.”

For months, he wore the same stained sweatpants as he filled out a spreadsheet of more than 100 rejected applications to jobs that ranged from a Texas engineering company to the local Home Depot. His decade of experience maintaining the tracks wasn’t easily transferable. And he had to tell the truth about how he got fired, making companies suspect he was a troublemaker.

Taylor decided he wanted to teach middle school science; it took a year to qualify for a teaching certificate. When he did, his wife knew how to mark that moment. “That particular pair of jogging pants, I ended up throwing them away,” she said.

Johnny Taylor with a robot his students built. He decided he wanted to teach middle school science, and it took a year to qualify for a teaching certificate. (Emily Kask for ProPublica)

Taylor filed suit against Union Pacific in December 2018. Last year, a jury agreed with his version of the story. After a short deliberation, it delivered him more than $1 million for wrongful termination; Union Pacific was ordered to pay his attorney’s fees.

Taylor kept his composure until he left the courtroom. Then, he wept. All this time, he’d been made to feel he’d done something wrong. He felt vindicated. “The jury said yes, I was right. I did the right thing.”

The managers who had conflict with Taylor — Jaquess, Stuart and Gilsdorf — remained at Union Pacific.

Officials with the FRA told ProPublica they forwarded Taylor’s claims onto the Department of Transportation’s Office of Inspector General, something the agency says it does when it believes there is potentially something criminal in a case. When ProPublica asked the Office of Inspector General about the referral, it replied with “no comment,” a response it typically gives when a case is still pending. Union Pacific said it was unaware of this development and is reviewing.

Taylor now teaches engineering and robotics. He loves working with his sixth, seventh and eighth graders and takes far less blood pressure medicine.

But he still thinks about the families who live near the tracks and scans the news for derailments. He worries about how Union Pacific is managing his old territory. “I’m very concerned that they’re not doing a good job protecting those tracks,” he said.

Do You Have a Tip for ProPublica? Help Us Do Journalism.

Gabriel Sandoval and Dan Schwartz contributed research.

by Paige Pfleger, WPLN/Nashville Public Radio

This article was produced for ProPublica’s Local Reporting Network in partnership with WPLN/Nashville Public Radio. Sign up for Dispatches to get stories like this one as soon as they are published.

A group of Tennessee lawmakers is calling for an audit of the use of seclusion inside juvenile detention facilities, and the removal of a Knox County superintendent, following reporting from WPLN and ProPublica.

Sign up for Dispatches, a weekly ProPublica newsletter about wrongdoing in America.

Our investigation found kids have been locked alone in cells in the Richard L. Bean Juvenile Service Center in Knoxville more often than other facilities in the state, sometimes as punishment and sometimes for an indeterminate length of time. The Tennessee Department of Children’s Services is the licensing agency for the Bean Center and documented the improper use of seclusion for years. Yet it continued to approve the center’s license to operate without the facility changing its ways.

“The Department has a constitutional duty to the legislature to enforce state laws and a moral obligation to children to ensure that youth in state-licensed facilities are being treated humanely and in accordance with Department guidelines,” state Sen. Heidi Campbell wrote.

A letter from 14 Democratic lawmakers demands “immediate response and action” from the Department of Children’s Services. (Obtained by WPLN and ProPublica)

The letter, signed by 14 Democrats, calls the findings “alarming.” It characterizes comments by the superintendent, Richard L. Bean, as having created a “culture of lawlessness.” Those comments include Bean saying, “What we do is treat everybody like they’re in here for murder.”

The letter went on to say that “any juvenile detention facility administrator who openly defies state detention rules” should “soon find themselves out of a job.”

After receiving the letter, DCS wrote to WPLN and ProPublica: “Earlier this week, Commissioner Quin and DCS leaders began taking steps to immediately address the concerns outlined in the report about the Bean Center. The matter is being treated with urgency and is a priority to the Department.”

In inspection reports obtained by WPLN and ProPublica, one child told DCS inspectors that he was secluded after he forgot to bring his books to class. “Staff will put you in seclusion if they don’t like you,” he told the inspector. Another child said he was secluded but didn’t really understand why.

“I can’t let the kids run the place,” Bean said about putting children in seclusion. “Sometimes you get a kid, you put him in his room, and he cuss and call you everything in the books. It’s hard to let him out.”

Bean has been in charge of the detention center since 1972. When asked if he was worried about getting in trouble with DCS or the state, Bean said, “If I got in trouble for it, I believe I could talk to whoever got me in trouble and get out of it.”

Lawmakers are also requesting an audit of all of Tennessee’s juvenile detention facilities. They draw a connection to problems exposed by a previous WPLN and ProPublica investigation into Rutherford County’s facility, as well as scrutiny of the Wilder Youth Development Center.

They call for the department to immediately intervene to prevent young people from being locked alone in cells, and they say DCS should develop a “more aggressive” enforcement policy to prevent the misuse of seclusion in the future.

WPLN and ProPublica shared the letter to officials at the facility, including Bean, and requested comment; they did not immediately respond.