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by Ian MacDougall

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As a new Supreme Court term began this week, many Americans are still feeling the aftershocks of the last one. In its first full term with a conservative supermajority, the high court overruled Roe v. Wade, substantially expanded the scope of the Second Amendment and scaled back the barrier between church and state. Abortion access, following the court’s ruling in Dobbs v. Jackson Women’s Health Organization, has become a legal, political and medical issue to an extent not known in decades. Lawmakers and law enforcement officials in states with restrictive concealed-carry laws are still working out how to adjust their firearms regulations in light of New York State Rifle & Pistol Association v. Bruen.

So far, the justices have agreed to hear about half the number of cases they ordinarily decide in a term, with more to be added in the coming weeks. But already the court’s docket includes major cases concerning voting rights, election law, environmental protections and the constitutionality of affirmative action. As conservatives look for cases that can continue to shift the law in their direction, liberals look with trepidation to what the court’s right wing may do next.

To get a better sense of the term to come, I spoke with Will Baude and Dan Epps, law professors at the University of Chicago and Washington University, respectively. In addition to their scholarly and teaching duties, Baude and Epps host “Divided Argument,” a podcast about the Supreme Court, which is now in its third season. What makes “Divided Argument” stand out in the crowded field of popular legal commentary is its avoidance of a preaching-to-the-choir sensibility. Baude and Epps disagree on much, and often quite vigorously — Baude’s views tend to run conservative with a libertarian bent while Epps’ lean liberal — but they disagree in good faith and for intellectually honest reasons. These exchanges often illuminate the deeper set of beliefs and ideological tensions that shape how we see the law.

Our conversation has been edited for length and clarity.

This term marks the first time in nearly 30 years that the court will be without Justice Stephen Breyer, and it’s Justice Ketanji Brown Jackson’s first term. That doesn’t change the court’s ideological makeup, but are there subtler ways in which this change in personnel might affect the workings of the court?

Dan Epps: Justice Breyer is a justice from the last era, where the court was divided along some lines but reached consensus in other areas and wasn’t ideologically predictable. He was somebody who got along with the rest of the justices. Justice Jackson is joining the court at a very different time, where the court is much more ideologically riven. I don’t know what that’s going to feel like for her. But I could imagine, as you see the justices from the previous era drop off, that you’re going to see a court that’s more sharply divided and less “Oh, let’s all be buddy-buddy and get along” — and not just on the law but also how the justices relate to one another. I have no reason to think that she personally is going to contribute to this. It’s more about the timing and the circumstances.

Will Baude: Even when a justice who’s routinely in dissent leaves the court — so we don’t think of it as changing the balance of power — they still have decades and decades of both institutional memory and personal friendships that affect the way the court talks about the cases, thinks about things, goes about its business. So, I think that will change in lots of little ways how the justices relate to one another. Then you never know whether there’s going to be some set of issues where Justice Jackson has slightly heterodox views that might produce a new majority. You see Justice Gorsuch and Justice Sotomayor sometimes voting together in ways people might not have predicted.

This will be Justice Amy Coney Barrett’s second full term on the Court. How have you seen her jurisprudence or her role on the court evolve since she joined? What implications does that have for this coming term?

Epps: There’s been some weird stuff. Just a few days ago, there was the Alabama death penalty thing where she was actually in dissent with the liberal justices. That was interesting, though it’s an unsigned order without reasoning, so it’s hard to know exactly what to make of it.

Baude: At her confirmation hearing, there was this concern about a law review article she wrote about Catholic judges and the death penalty and whether it implied she was going to be to anti-death penalty. Maybe that’s actually true.

Among the cases the court has taken so far, do you see any themes emerging? How do those build on or depart from the court’s areas of focus in recent terms?

Epps: It’s too early to say. But if you frame it at a high level — the law in flux, the court turning more conservative — it seems like this term is likely to be a continuation of that. Still, every time there’s a change in personnel, it’s basically a new court. The configuration changes. The dynamics change. And we’re still figuring that out.

Baude: The center of the court has changed a little bit. That means there’s a lot of cases that suddenly a lot of people don’t want to take to the court, and there are other issues where other people suddenly do want to go to the court. So, you see action on voting rights and Indian law, and of course the affirmative action cases.

One area of public focus so far is voting and election matters before the court this coming term. In Merrill v. Milligan, critics fear the justices will make it harder for plaintiffs to show that a redistricting plan dilutes the votes of racial minorities, and in Moore v. Harper, they fear the court will limit how much state constitutions and courts can check state legislatures when they enact laws that govern federal elections. Do you have a sense for where the court is heading here?

Epps: With a lot of what the court is doing, there is a pretty wide range of possible outcomes. There are some justices who seem to be interested in doing fairly consequential things in the voting rights — or lack thereof — space. But that’s also not guaranteed, so it’s very unclear.

Baude: I see these cases as a microcosm of the pattern at the court more generally. As for Merrill, we have a well-established doctrine for interpreting the Voting Rights Act, but it’s not particularly consistent with some methodological principles of this court, which is more skeptical of legislative history, more skeptical of race-conscious laws and so on. So, it’s a little unsurprising they’re going to reconsider that, and maybe dramatically. As for Moore, there’s an incredibly long, well-established practice of state legislatures being subject to their state constitutions. But that’s in tension with the constitutional text, which refers specifically to a state’s “legislature” regulating congressional elections. It’s very possible the court is going to upset that practice — either a little bit or a lot. So, we’re seeing the same willingness here as in lots of other areas of law to reconsider long-established doctrines. But the additional problem is that these are going to put the court’s legitimacy and appearance of neutrality to the test, because there’s a good chance these cases will be seen — not necessarily fairly — as part of a right-wing plot to steal America. That’s obviously a tough spot for the court to be in.

Speaking of appearances, the last term was a controversial one to say the least. Decisions like Dobbs and Bruen generated a lot of criticism, and the public approval of the court is lower than it’s been in decades — though, of course, those same rulings were cheered by many conservatives. You both clerked on the court. In your experience, to what extent do public reaction and concerns about appearances affect the justices?

Epps: Some of them definitely don’t care at all. The question is, how many — five or fewer? I don’t hear a lot of stories about, and I didn’t experience, justices saying, “Oh, gosh, this is going to make us look so bad.” But you’ve got to think that they’re all aware of it to some degree. There’s certainly good reason to think that historically the broad parameters of public opinion have imposed some restraints on what the court felt comfortable doing.

Baude: The justices are human beings in the world, so I suspect they can’t help but be influenced by these things. But I tend to think they’re influenced by them gradually and at the macro level. In any event, my prediction is regression to the mean, because not every term can have an above-average number of big, polarizing cases. After every June, it’s tempting to draw big conclusions about the direction of the court on the basis of two or five or 10 big decisions, and, of course, we all do that. But it’s easy to over-predict.

What cases that the court has agreed to hear this term have received less attention than they deserve?

Baude: It’s surprising there hasn’t been more attention to the court’s case about the Indian Child Welfare Act, a federal law on how state family law treats Native American children. The case has three or four major constitutional questions about the fundamental structure of federal Indian law. It raises federalism questions about the source of Congress’ power over Indian tribes and the ability to force states to implement federal policies. It also raises questions that go to the fabric of the whole field, such as whether regulations of Indians or Indian tribes are a form of race discrimination. Those are obviously important in their own right and also important for what they tell us about the court’s approach to big constitutional law cases more generally.

Epps: I’ll rest on Will’s submission.

What cases that the court hasn’t yet agreed to hear are you keeping an eye on?

Baude: I certainly think the court is about to wade into the constitutionality of the Texas and Florida social media laws, which impose limits on content moderation. The Florida law was struck down by the U.S. Court of Appeals for the 11th Circuit, but the Texas law was upheld by another federal appeals court, the 5th Circuit. The court has already shown some interest in these cases.

Epps: I’m sure people are wondering whether there’s going to be something new related to the ongoing investigation of President Donald Trump that will work its way to the court. I’m not sure that the special master issue is going to. It seems like the 11th Circuit smacked that down, but potentially other things like that could pop up.

Baude: If the case proceeds to the point of criminal charges against a former president, it’s easy to imagine the court feeling it has to be the one to settle it, even if the issues aren’t that thorny. It’s an unusual enough thing, and the court is still one of our more legitimate institutions.

Much remains unknown about the leak of the draft majority opinion in Dobbs. But how do you foresee it affecting the workings of the court?

Epps: You’ve got to think there are going to be some changes to internal procedures. I don’t know what those are going to look like — whether they’re going to involve physical searches when people leave the building or they’re just going to involve individual justices telling their clerks to be more secretive. Related to that, you’ve got to think there’s going to be a little bit more of a culture of distrust and anxiety in the building. I’ve got to think that’s going to change the atmosphere and the day-to-day of what it’s like to work there.

Baude: It’s also possible that this will pass. After Bush v. Gore, quite a few law clerks breached confidences and talked to the press. A few years later, everybody recognized that was a once-in-a-generation case, and what happened there wasn’t going to become the new normal for everything. It could be that Dobbs was a once-in-a-generation case.

You were both involved in President Joe Biden’s commission on Supreme Court reform, which was prompted by calls from the political left to expand the number of justices. Professor Baude, you were a commissioner; Professor Epps, you testified before the commission. The commission issued a nearly 300-page report late last year, and you all dedicated a fascinating episode of “Divided Argument” to broader reflections on the commission. Looking forward, where do you see the debate over court reform going?

Epps: It’s not going away, and I think decisions like Dobbs are going to ensure that it doesn’t go away. There was a poll that came out about five days ago — and it’s just one poll — but it said 51% of respondents favored increasing the size of the court, which is a lot more than in prior polls. That’s coupled with significantly reduced public approval for the court. In that environment — if you get to a point where a majority of Americans favor court expansion, court packing — the conversation changes dramatically. We are far from the fringes at that point, and it’s something that you’re going to see even more politicians thinking about.

Baude: One funny thing is that you don’t see a huge amount more confidence in Congress and the presidency than you do in the court. When court reform is most likely is when you have an incredibly popular Congress with a huge mandate and a court with much less of a mandate getting in Congress’ way. We’re closer to a point where none of our institutions are popular or have a mandate, which doesn’t mean court reform is not possible or maybe even good. But it’s a very different environment.

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by Caleb Bedillion, Northeast Mississippi Daily Journal

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

Public defender Merrill Nordstrom walked into a Mississippi federal courtroom in May 2021 ready to challenge the no-knock search warrant behind her client’s arrest.

It had happened two years earlier, after an informant bought less than a gram of marijuana from Antoine Bryant. Police broke open Bryant’s door with a battering ram, shattering the glass. Three children sleeping inside were startled awake.

Police found no cache of drugs, but they did find a pistol Bryant wasn’t supposed to have.

By the time Nordstrom asked a judge to toss out the evidence against Bryant, a year had passed since the fatal police shooting of Breonna Taylor during a no-knock raid in Louisville, Kentucky. Taylor’s death and the tactic that led to it had caused widespread outrage.

It was time, Nordstrom said, for similar scrutiny of how these warrants were used in Greenville, the Mississippi Delta’s largest city.

She had learned that most search warrants issued in Greenville were no-knock warrants, which allow law enforcement to barge into someone’s home unannounced. She suspected that many of those raids violated the Fourth Amendment’s protection against unreasonable searches.

“When I saw that they had orchestrated a confidential informant to purchase $10 worth of marijuana, and based on that went and asked for a no-knock search warrant — that, to me, was really egregious,” Nordstrom said. “That’s not what the Fourth Amendment is for. That’s not what our government is supposed to do.”

She faced a major obstacle. Though she had the search warrant for Bryant’s home, she couldn’t find records for most other raids in the city. The search warrants and supporting documents weren’t at the courthouse, even though the state Supreme Court’s rules require law enforcement to return warrants to the court.

Instead they were at the Greenville Police Department, hidden from view because law enforcement agencies, unlike the courts, can claim a broad public records exemption over records in their possession.

Greenville isn’t the only place in Mississippi where many search warrant records are inappropriately off-limits to the public. An investigation by the Northeast Mississippi Daily Journal and ProPublica has found that almost two-thirds of Mississippi’s county-level justice courts prevent access to some or all search warrants and related documents. So do municipal courts in at least five of the state’s 10 largest cities, including Jackson, the capital.

Justice courts handle misdemeanor crimes, small civil cases and, often, search warrants. The judges who preside over these courtrooms are similar to justices of the peace in other states and are not required to have a law degree.

Some of those courts violate state rules by failing to require law enforcement to return search warrants and related documents. Other courts do keep search warrant records but won’t let the public see them, defying well-established jurisprudence about the availability of court records.

The independence and integrity of the judicial branch of government requires openness, said William Waller Jr., a retired chief justice of the Mississippi Supreme Court.

“You should have transparency,” said Waller, who helped write the rules of criminal procedure that some courts are violating. “After it’s been executed, the search warrant should be returned to a judicial officer and that should be a part of the files and available for public inspection.”

On the Trail of No-Knock Search Warrants in Mississippi A no-knock search warrant allows police to enter someone’s home unannounced to conduct a search, even if they have to break down the door. Here’s what happens in Mississippi. First, law enforcement must go before a judge to justify why they want to search the property and why they’re asking for a no-knock warrant. After searching the property, the police must bring the warrant and a list of what they took back to the judge. The warrants are supposed to be stored by the court. But that doesn’t always happen. In some counties, law enforcement keeps the search warrants. That’s against the rules. Some courts have incomplete records. That’s against the rules, too. Other clerks claim that search warrants are off-limits to the public. These practices all block access to information about no-knock raids. (Illustrations by Anuj Shrestha, special to ProPublica)

The U.S. Supreme Court has long recognized the public’s right to view court records, though it hasn’t ruled on the accessibility of search warrants in particular. Although federal appeals courts agree the public generally can view search warrants at some point in the legal process, they disagree on when those records become public. Because of those differing rulings, plus poor record-keeping and orders that seal the documents, it’s often hard to get access to warrants. Similar issues exist in many state courts.

Even against this landscape, legal experts say recordkeeping and access problems in Mississippi’s justice courts are extreme.

“It would be very, very atypical to have a jurisdiction where you never see any warrant materials,” said Katie Townsend, legal director for the Reporters Committee for Freedom of the Press. “That’s just not how it works.”

After Taylor’s killing, which occurred as police tried to enter her apartment to search for drugs they believed had been hidden there by a former boyfriend, activists called for bans on no-knock raids. But researchers and academics have little data about how often and why police use no-knock warrants.

Limited access to court records is part of the problem. A recent Washington Post effort to identify how many people have been killed in recent years during the execution of no-knock search warrants was hampered by sealed, missing or otherwise secret records.

“You can’t do justice in a corner,” said retired U.S. Magistrate Judge Stephen Smith, who reviewed applications for search warrants when he sat on the bench in Houston. He’s a vocal advocate for greater transparency in the process. “You have to see what judges are doing. It goes to the legitimacy of our legal system.”

What Happens When Police Burst in Police raided Antoine Bryant’s home in Greenville, Mississippi, to execute a no-knock search warrant in June 2019. He was charged with possessing a firearm as a convicted felon. (Rory Doyle for ProPublica)

In Mississippi, no-knock raids have caused fear, injuries and even death.

Two federal lawsuits over people who were shot in no-knock raids have been settled this year; a third suit over injuries caused in a raid is ongoing. Another federal suit involves a dispute about whether sheriff’s deputies entered without knocking. And in 2020, a state appeals court upheld damages awarded over a botched no-knock raid conducted several years before.

“It’s so dangerous for these guys to go in there the way they do,” said Michael Carr, a lawyer who has represented both clients whose homes have been searched and deputies who have been sued over such raids. “I’ve seen them kicking in people’s doors, and you’ve got little kids in there.”

Lawsuits Filed Over No-Knock Raids in Mississippi

Shot 17 Times Coahoma County sheriff’s deputies shot Maurice Mason at least 17 times after breaking down the door to search the home where he was staying in March 2020. Mason, who survived, was not the target of the search, was unarmed and was never charged with a crime. Mason sued the county, which denied any wrongdoing; it settled the lawsuit this year.

Grabbed a Gun When Police Burst In In January 2020, Coahoma deputies (the same ones who would later shoot Maurice Mason) burst into Trekevious Hayes’ home and shot him. In a court filing, he said he retrieved a gun for self-defense after the police shot first. Coahoma County Sheriff Charles Jones, however, said that deputies announced themselves and Hayes shot first.

Authorities charged Hayes with aggravated assault for allegedly shooting at the officers. He has not been indicted.

Shot While Holding an Air Gun In October 2015, Monroe County sheriff’s deputies shot and killed Ricky Keeton during a 1 a.m. no-knock raid. In depositions, deputies said he fired a pellet pistol and they shot back; his girlfriend said he thought someone was breaking in.

In September 2022, Monroe County agreed to settle a federal lawsuit over his death for $690,000, though the settlement hasn’t been finalized.

Raided the Wrong House In April 2015, state narcotics agents raided the wrong house in Vicksburg, forcing Henry and Rita Hunter to the floor at gunpoint — even after local police tried to intervene. A judge awarded the couple $50,000 following a civil trial.

No-knock warrants arose at the onset of the war on drugs under President Richard Nixon. Proponents argued that police had to be able to enter buildings without warning so suspects couldn’t destroy evidence or open fire on officers.

Despite complaints about the violence associated with these warrants, their use grew. The debate eventually reached the U.S. Supreme Court, which considered the issue in three key cases and ruled that no-knock warrants must be the exception, not the rule.

In a key 1997 ruling, U.S. Supreme Court Justice John Paul Stevens wrote for the court’s majority that if no-knock searches were broadly sanctioned, “the knock-and-announce element of the Fourth Amendment’s reasonableness requirement would be meaningless.”

Those rulings mean police must not only show a judge why they have probable cause to believe that the search will yield evidence of a crime, but they must also explain why the circumstances of the case justify a no-knock warrant.

That’s why Nordstrom grew concerned by the frequency of no-knock raids in Greenville. In a court filing, Nordstrom wrote that she had identified one case in which Municipal Judge Michael Prewitt allegedly signed a no-knock warrant even though police hadn’t asked for one on the application. She wanted to see if the judge frequently approved no-knocks without sufficient evidence.

Nordstrom sent her investigator to Greenville Municipal Court. Although Greenville authorities acknowledged that most search warrants in the city were no-knocks, the municipal court had no records of any searches authorized by Prewitt, the city’s only municipal judge for most of the prior two decades.

Nordstrom and Prewitt sparred in the May 2021 court hearing over whether the no-knock warrant in Bryant’s case was justified. Prewitt took the witness stand and acknowledged saying that he could issue a no-knock search warrant even to look for a sweater, but he denied “rubber-stamping” applications for no-knock warrants.

His explanation for signing so many no-knock warrants? Police conduct a lot of drug investigations in Greenville.

In an email to the Daily Journal and ProPublica, Prewitt said he meant to suggest that a no-knock warrant might be necessary to recover a sweater if it had forensic evidence that could easily be destroyed. (He did not offer that explanation when he testified in court.)

Greenville Police Chief Marcus Turner said his officers don’t execute no-knocks now due to staffing turnover among his investigators, but he plans to reinstate the raids.

Nordstrom couldn’t convince the federal judge overseeing Bryant’s case to throw out the evidence obtained in the search. Bryant ended up pleading guilty, but he has appealed the judge’s ruling on the no-knock warrant.

“I was so appalled by the no-knocks and how prevalent they are in that county,” Nordstrom said. “It would have been nice to figure out if there was a pattern.”

Reasons for Missing Warrants Vary

In any court, the clerk’s office, with its shelves upon shelves of file folders, is the place to go if you’re looking for key records in a criminal proceeding. Arrest warrants. Bail bonds. Judge’s orders. But not, in some of Mississippi’s justice courts, search warrants.

These are important documents. The warrant itself identifies the place police will search. The application for a no-knock warrant says why officers believe they should be allowed to barge into someone’s home without announcing themselves. The property inventory says what police seized during the search. Waller, the retired chief justice, and Matt Steffey, an attorney and law professor, said all that paperwork is supposed to be at the courthouse.

Warrants issued by Greenville’s municipal judge must be returned to the court, according to rules issued by the state Supreme Court. An investigator for a federal public defender didn’t find any there. (Rory Doyle for ProPublica)

“We don’t keep those,” said Lamar County Justice Court Clerk Sandra Owen.

“Usually the return goes back to the sheriff’s offices,” said Jones County Justice Court Clerk Stacy Walls.

“I hardly ever see search warrants — before, during or after,” said Marion County Justice Court Clerk Wynette Parkman.

But Mississippi’s rules are clear: Law enforcement must bring search warrants back to court after serving them. Virtually all state courts in the country, as well as federal courts, have similar requirements.

“There needs to be a record that isn’t squirreled away in a law enforcement file,” said Steffey, who was involved in writing the rules of criminal procedure.

ProPublica and the Daily Journal surveyed all 82 county justice courts in Mississippi, as well as municipal courts in the state’s 10 largest cities. Although any judge in Mississippi can sign a search warrant, municipal and justice court judges commonly handle them.

More than a third of Mississippi’s justice courts are breaking rules that require them to keep all search warrant records. That includes 15 justice courts that have no search warrants among their records and 16 that have only some.

The reasons for the missing warrants vary because no two justice courts operate exactly the same way. Clerks say they don’t know when judges sign warrants, so they don’t know if police fail to bring a warrant back. In some counties, law enforcement agencies return some warrants but not others, and clerks don’t know why. Some counties have warrants only if charges were filed.

Few justice courts even keep a list of issued search warrants, making it easy for these documents to fall through the cracks.

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by Talia Buford

ProPublica’s Emerging Reporters Program, now in its eighth year, is focused on providing financial resources and mentorship to students for whom investigative journalism might otherwise be inaccessible, so they can pursue early career opportunities in the field.

Participants receive a $9,000 stipend, a trip to the annual NICAR investigative journalism conference, occasional training and presentations by speakers. They’ll also be paired one-on-one with ProPublica journalists, who can help counsel them on stories, build their connections in the industry and expose them to the varied paths for careers in investigative journalism. Past Emerging Reporters have gone on to work at The New York Times, The Atlantic, THE CITY, Vox and other outlets.

Our goal is to encourage the next generation of journalists who seek to shine a light on abuses of power and produce stories of moral force that provoke change. In choosing the class, we look for students who demonstrate an early dedication to journalism as a career, through internships, work at local news outlets or campus publications. And where those opportunities — which are often unpaid — aren’t accessible, we look for other ways the student has shown an eagerness and drive to learn the craft.

The 2022-2023 academic year’s class of outstanding student journalists are from Florida and New Mexico, Colorado and Shanghai. They represent a range of collegiate journeys, and their desire to learn and pursue ambitious, important stories inspired us. Through their work, the students have already shown not only their dedication to the craft, but a yearning to tell stories with the potential for impact.

They have investigated university labor disputes and inaccurate health insurance directories that can lead to big bills for patients. They’ve helped launch hyperlocal news outlets and worked as full-time reporters in addition to carrying a full course load. Some of them are editors and reporters at their school newspapers, while others are preparing to look for their first professional newsroom jobs.

We’re so excited to support them.

Meet our 2022 class:

Chad Bradley is a senior at the Walter Cronkite School of Journalism and Mass Communication majoring in journalism and minoring in American Indian studies. Bradley’s reporting focuses on indigenous communities and tribal nations, and he hopes to improve coverage and understanding of the issues Indigenous people face. They currently fact-check with PolitiFact Arizona for the 2022 midterm elections and previously reported for Carnegie-Knight News21 and Cronkite News. Bradley is from northwestern New Mexico and is a member of the Navajo Nation.

Kevin Palomino is a junior at the University of Oklahoma majoring in journalism and minoring in international studies. Palomino serves as the president of his school's chapter of the National Association of Hispanic Journalists. For the past two years, he was a reporter at Telemundo Oklahoma, covering news stories ranging from death penalty executions to Oklahoma's wild, severe weather. Palomino was born in Chihuahua, Mexico, and immigrated to Oklahoma with his family in 2005.

Yiwen Lu is a senior studying economics and political science at University of Chicago, where she serves as the managing editor for The Chicago Maroon. Her reporting focuses on subjects at the intersection of business and technology. Lu previously worked at The Washington Post, USA TODAY, NBC Chicago and The Charlotte Observer. She also participated in the Politico Student Journalism Institute and the Asian American Journalists Association’s Voices program in 2022. Lu is from Shanghai, China.

Alexandra Caban-Echevarria is a senior at Muhlenberg College, majoring in both media & communication and English. She is a managing editor at The Muhlenberg Weekly and the assistant editor of the Allentown Voice, a nonprofit news project covering Allentown’s affordable housing crisis. She worked as part of the inaugural team of journalists on the project and currently runs the project’s social media channels.

Alex Perry is a junior at Northwestern University double majoring in economics and journalism with a minor in data science. Currently a part-time associate copy editor at Axios, Perry has interned at the Pittsburgh Post-Gazette, The Macon Telegraph and the Johns Creek Herald. She is also currently a managing editor at The Daily Northwestern. She’s passionate about investigative business journalism, as well as the business of journalism, and wants to report on the media industry.

Nadia Bey is a senior at Duke University, where she is digital strategy director and former managing editor of the daily student newspaper, The Chronicle. Bey was the first intern on McClatchy’s North Carolina investigations team, writing about health, policy and gun violence for The Charlotte Observer and its sister papers in summer 2022. Her interests include public health, data, education and labor. She is from Huntersville, North Carolina.

Cameron Pugh is a senior at Williams College, where he studies English and Africana studies. Pugh currently serves as the managing editor of The Williams Record, and before that he served as a section editor for the paper’s arts section. He has been an investigative reporting intern at GBH News — at Boston’s local NPR station — where he contributed to covering labor trafficking in Massachusetts and beyond. He is from Port St. Lucie, Florida.

Irie Sentner is a junior at Columbia University studying political science and creative nonfiction. He serves as the university news editor for the Columbia Daily Spectator, is an incoming intern on the NBC News digital politics desk and previously interned for the New York Post. He is originally from Durango, Colorado.

by Cezary Podkul

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A new type of online fraud emanating from scam sweatshops in Southeast Asia is facing its first major crackdown. Cambodian authorities have stepped up raids on compounds alleged to house workers engaging in online fraud, seizing computers, phones and electric shock batons and freeing thousands of involuntary workers. And Apple has removed from its app store two popular trading apps that cybercriminal groups in Cambodia, Laos and Myanmar have used to defraud people.

The moves are likely to disrupt — perhaps only temporarily — the lucrative global scam known as “pig butchering.” Named for its analogy to a farmer fattening up a hog before slaughtering it, the fraud relies on convincing people to deposit more and more money into fake online platforms controlled by swindlers. Once the targets become unable or unwilling to deposit more funds, they’re informed that they’ve lost access to their cash and can retrieve it only by depositing more money or paying a hefty fee, a process that compounds their losses.

As ProPublica reported in a Sept. 13 investigation, pig butchering scams have been fueled by human trafficking. Workers from around Asia are tricked into going to Cambodia, Laos or Myanmar for seemingly well-paid jobs that instead trap them inside scam sweatshops run by Chinese criminal syndicates. Those who resist directives to engage in online fraud face beatings, food deprivation or worse.

Several human trafficking victims who were tricked into such jobs told ProPublica that they worked on pig butchering scams that used a trading app known as MetaTrader to target victims abroad. ProPublica interviewed iPhone and Android users in the U.S., Canada and elsewhere who lost vast amounts of money — sometimes more than a million dollars — after fraudsters convinced them to download MetaTrader and deposit their savings into sham brokerages accessible via the app.

MetaTrader allows customers to access various online brokerages to trade foreign currencies and other financial instruments. However, MetaQuotes, the Cyprus-based company behind the app, allows brokerages that it contracts with to sublicense MetaTrader software to other brokerages with few checks to ensure the legitimacy of the sublicensed operations. This has allowed scammers to use MetaTrader as a front for fraudulent websites.

In late September, ten days after ProPublica spotlighted MetaTrader’s role in financial scams, Apple removed two versions of it, MetaTrader 4 and MetaTrader 5, from its app store. However, already-installed versions remain active. The apps are also still available on Google’s Android app store. Apple and Google did not respond to requests for comment. MetaQuotes also didn’t respond, but a representative told the trading news website Finance Magnates that the company received a letter from Apple on Sept. 23 stating that its apps do not comply with the app store’s review guidelines.

Cooperation from tech platforms is one prong of a multistep strategy to fight the scams, according to Vitit Muntarbhorn, a United Nations special rapporteur on human rights in Cambodia. Another prong — more aggressive law enforcement — is finally starting to happen in Cambodia, where authorities have stepped up their efforts to crack down on criminal syndicates perpetrating the scams.

Since mid-September, police raids in at least three Cambodian cities have freed thousands of workers from buildings where they were said to have been detained against their will, according to press releases and local news reports. The crackdowns followed escalating diplomatic pressure and rising scrutiny from local and international press, including ProPublica.

In Sihanoukville, a coastal city in Cambodia that has become the country’s de facto capital of online fraud, provincial authorities described finding almost 2,000 foreign workers from 11 countries when they inspected just four compounds on suspicion of human trafficking, illegal detention, torture or other crimes. Authorities identified people from China, Vietnam, Malaysia, Indonesia, India, Bangladesh and other nearby countries, along with some from as far away as Russia. Most were released but were fined for working in Cambodia without permits or sent to an immigration detention center for deportation. Similar raids are ongoing.

In Phnom Penh, the nation’s capital, hundreds of foreigners were removed from buildings in at least 11 similar raids, according to local media outlet VOD News. The compounds dotted the city, including some prominent locations like a building across the street from the Australian Embassy.

The raids have confirmed the worrying nexus of cybercrime, human trafficking and torture that ProPublica documented in its investigation. A statement describing one police inspection of a building complex in Sihanoukville listed 8,776 phones, 804 computers, 16 laptops, four pairs of handcuffs and 10 electric shock devices among evidence seized in the raid. Video of the compound shot by a VOD reporter shows buildings with barred windows surrounded by barbed-wire fences, similar to locations visited by ProPublica in May where workers alleged illegal detention and torture.

The coordinated inspections are a big step up from the previous response by the Cambodian government. Authorities had previously spent months denying allegations of human trafficking linked to cybercriminal groups in Cambodia. When trafficked workers complained, police occasionally rescued individual workers, even as they sometimes made statements downplaying victims’ accounts.

The change is noticeable. On Sept. 29, Cambodia’s prime minister, Hun Sen, publicly acknowledged the problem, saying “do not let Cambodia become a haven of crime, a place of money laundering, a place of human trafficking,” according to VOD. Vietnam’s Foreign Ministry said in a Sept. 22 press briefing that Cambodian and Vietnamese authorities have saved over 1,000 Vietnamese citizens who had been tricked into working illegally in Cambodia. Jake Sims, Cambodia country director for International Justice Mission, a nongovernmental organization that has been helping rescue people trapped inside scam sweatshops, commended the efforts to end what he called the “scam-slavery phenomenon.” Sims said more action is needed to hold perpetrators accountable and to care for victims, and he cautioned that the task will become more difficult as criminal groups shift operations to more remote regions.

There’s evidence that’s already happening. Even as authorities raided some scam locations in Sihanoukville, others were busy packing up and busing their workers elsewhere, according to local news reports. Operations in Chinatown, an area notorious for allegations of scam-linked forced labor, emptied out their workers over the weekend of Sept. 17-18 before any police raid could take place. When local reporters arrived on the scene, they could freely enter what had once been a heavily guarded prison-like area. One reporter saw workers loading up a truck with chairs; a tuk-tuk driver told another reporter he’d witnessed five or six buses at a time leaving the area in recent weeks.

Some of the workers were relocated to remote areas on the Thailand-Cambodia border, according to three individuals who have been involved in rescuing human trafficking victims from scam compounds in Cambodia in recent months. One of the three shared coordinates provided by a person who was relocated from Sihanoukville, which matched that description. Myanmar, where upheaval in the wake of a military coup has created an opportunity for criminal syndicates to expand, is also emerging as a destination for relocating scam operations.

“It obviously raises concerns that these enslaved individuals are simply being moved around the country rather than being freed,” said Naly Pilorge, outreach director for Licadho, a Cambodian human rights organization that has also seen signs that scam operations are relocating to rural areas. She said there’s only one thing the world needs to know about the scam industry that’s taken root in her country: “It must stop altogether.”

by Hannah Dreyfus

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

This story was co-published with The Denver Post.

Elina Asensio had a restraining order in place against her father when she met with a court-appointed psychologist assigned to determine whether he should be part of her life.

She expected Mark Kilmer, the Colorado “parental responsibility evaluator” appointed to her parents’ custody case, would want to hear about the incident that had led to her father being charged with felony child abuse and pleading guilty to misdemeanor assault. The 14-year-old was surprised, then, as she talked to Kilmer on the front porch of her mother’s suburban Denver home in October of 2020, that he didn’t seem interested in learning about it.

A year earlier, according to police reports, her father had grabbed Elina from behind by her lucky charm necklace and hoodie and dragged her up a flight of stairs. “Dad, I cannot breathe. … You’re hurting me, stop it,” Elina had screamed, according to the police report. She was left with burst blood vessels on her eyelids and a deep cut from ear to ear where the necklace had dug into her neck, according to the police report. A child welfare investigator described the resulting scar as a “ligature mark,” the imprint left after strangulation.

It was Elina who first brought up the incident, mentioning it after Kilmer asked why, “if you love your Dad,” she was not attending therapy with him, according to notes that accompanied Kilmer’s report to the court.

“I still feel my dad’s hands around my neck sometimes,” she recalled telling Kilmer, who is the brother of actor Val Kilmer.

He responded with a blank stare, she said.

Elina told him about other violent incidents involving her father, including one directed at a sibling, according to Kilmer’s notes.

“Father’s parenting failure(s) ending in an assault conviction appear to be an aberration.”

—Mark Kilmer’s evaluation of the Asensio custody case

Colorado family courts began appointing parental responsibility evaluators, or PREs, to custody cases 14 years ago as a privately funded alternative to court-furnished evaluators. The litigants shoulder the cost, which can run into the tens of thousands of dollars, and in some instances the PRE is paid by only one of the parents in a dispute. The intent was to allow a broader range of psychologists, including those the court could not afford, the opportunity to lend their expertise to custody decisions. They have operated with little oversight.

Elina didn’t know at the time they met that Kilmer says he does not believe about 90% of the abuse allegations he encounters in his work, or that he himself had been charged with domestic violence. Kilmer was arrested and charged with assault in 2006 after his then-wife said he pushed her to the bathroom floor, according to police reports. Following the incident, the woman obtained a restraining order against him and he was required by the court to give up his guns pending resolution of the criminal charges, according to court documents.

The following year, he pleaded guilty to harassment and, in a separate divorce proceeding, temporarily lost decision-making power over his children because of concerns about his parenting. The court placed him on probation for 24 months while he completed domestic violence counseling. After he completed probation, the court dismissed the assault charge.

“Unfortunately, I had a conflicted divorce myself,” Kilmer said in an interview. “She made up these false allegations and had me arrested. It was pretty humiliating and shocking.” His guilty plea was the result of poor legal representation, he said, and he regrets not going to trial.

Kilmer, who received a doctorate in psychology from the California Graduate Institute, had also been previously disciplined by the State Board of Psychologist Examiners in 2009 for revealing confidential information about one client to another client in an effort to set them up on a date. He was required to have his practice monitored for a year but was allowed to continue working as a custody evaluator. (Kilmer said he obtained consent from both parties before introducing them, according to board records. The board noted clients “cannot consent to a boundary violation and/or breach of confidentiality.”) Today, Kilmer’s psychological license is in good standing.

Colorado’s State Court Administrator’s Office, which is responsible for vetting PREs, said a criminal misdemeanor conviction older than 15 years does not disqualify a custody evaluator from family court appointments. ProPublica found that four evaluators on the state’s roster of 45 PREs, including Kilmer, have been charged with harassment or domestic violence. In one case, the charges were dismissed. In the two others, it is unclear how the charges were resolved.

The court administrator’s office also said that discipline by the State Board of Psychologist Examiners does not disqualify an evaluator unless it currently affects their license. ProPublica found that 1 in 5 PREs, including Kilmer, has been sanctioned by the board, six times the rate of discipline among all psychologists with active licenses in Colorado.

One evaluator who works with victims of domestic violence was sanctioned after the state received a complaint alleging she had publicly referred to a domestic violence client as “full of shit,” and after she admitted to having a member of a domestic violence counseling group she oversaw do work in her neighborhood. Others were sanctioned for misrepresenting their credentials, and several failed to keep clients’ information private, including one PRE who revealed the home address of a domestic violence victim enrolled in the state’s Address Confidentiality Program, which endangered the client, the state board found.

None of the sanctioned PREs lost their licenses or had them suspended.

Prospective PREs are asked to disclose board violations from the past 10 years, which would “trigger” further investigation, according to a court spokesperson.

After Kilmer met with Elina and the rest of her family, he filed a report recommending that Elina’s father immediately gain equal custody of her siblings, and that he begin therapy with Elina and transition back to limited parenting time with her. Kilmer also recommended that he have equal decision-making authority over his children, including choices about their medical care, social activities and academic path. Kilmer described the father’s assault conviction as an “aberration” and noted that he had “considerable positive parenting skills and abilities.” He also recommended that Elina’s restraining order be modified so she could participate in reunification therapy with him.

Elina’s mother, Karin Asensio, who said she was fearful the judge would use Kilmer’s recommendations to reduce her parenting time, agreed to resolve the custody dispute through arbitration. There, the parents agreed to divide parenting time equally and to modify the restraining order so Elina could go to therapy with her father.

“Mark Kilmer’s decision affects every day of my teenage life,” Elina said in an interview. “They let him speak for me but they wouldn’t let me speak for myself.”

When Elina wanted to get a learner’s permit, she said her father refused to grant her permission. She later got a license over his objections. (Trent Davis Bailey for ProPublica)

Kilmer declined to comment on this or any case, saying it’s prohibited by the court. “I am — forever — under a statute and direction from the Honorable Court to hold all of my cases in the strictest of confidentiality and privacy,” he said in a statement to ProPublica.

But in an interview about his approach to custody cases, Kilmer said he does not believe a “great majority” of abuse allegations he encounters in his work.

“The #MeToo movement informs us that, you know, about 90% of all allegations are true, or something around there,” he said. “In my forensic work, that’s completely flipped on its head: About 90% of the allegations I hear are false.” Kilmer emphasized the estimates are based on his “own experience,” not scientific research.

“Sometimes the Judge Just Cuts and Pastes All My Recommendations”

In Colorado custody cases that trigger legal disputes, family court judges may appoint an evaluator to assess the best interests of the children. The cost of these child and family investigators, who are not required to be mental health professionals, is capped at $2,750, which can be paid for by the state or split between the parties.

But for parents willing to pay uncapped fees as high as $30,000, Colorado law permits the appointment of a parental responsibility evaluator from a roster of state-approved experts, most of whom have masters or doctorate degrees in psychology.

The two-tiered system was created at the urging of psychologists who argued the courts’ $2,750 limit on fees didn’t adequately cover their services, including in-depth personality testing for complex cases. As PREs, psychologists could work as court appointees without cutting their fees or curtailing their analytical methods.

PREs acknowledge that they wield tremendous influence over family court proceedings and are subject to little oversight or transparency.

This is by design, according to Bill Fyfe, who worked with the Colorado Supreme Court to draft procedures governing PREs and became one of the state’s longest-practicing custody evaluators. The more costly and highly trained professional advisers were given as much independence as possible while still functioning as appointees of the court.

Fyfe retired from serving as a PRE in protest last year, after a new law took effect requiring increased oversight and training for custody evaluators. “The court shouldn’t be involved in managing us. They’re good people, but they have no idea what we do or how we do it,” he said.

Kilmer and other PREs told ProPublica that judges accept their recommendations in the overwhelming majority of custody decisions, though that’s impossible to verify because their reports are filed under seal and seldom made public.

“At this point in my career, sometimes the judge just cuts and pastes all my recommendations and puts it into the court order,” Kilmer said.

Mark Kilmer (Nabil Nezzar, special to ProPublica)

Kilmer, 64, is tall and broad with blond hair, a square jaw and a beefy handshake. When he is not assessing parents in living rooms, in kitchens or on front porches, he sees clients at one of his several offices in the Denver area.

When Kilmer received his doctorate in 1998, the California Graduate Institute’s psychology program was not accredited by the American Psychological Association, according to a spokesperson from the organization. The program now goes by a different name and has received APA accreditation.

Kilmer said he was attracted to PRE work because “it’s lucrative — as far as things go in psychology.” His fee averages $14,000 per court-ordered report, but his charges can rise to more than $30,000, he said. “People have a lot of money, and they just keep sending stuff to me.”

The domestic dispute Kilmer was charged for occurred in August 2006. When a Boulder County police officer arrived at Kilmer’s residence to investigate a report of an assault, Kilmer had already left, according to the police report. The officer found Kilmer’s then-wife on the bathroom floor complaining of pain on her left side. Two days earlier, she said, Kilmer had also blocked the entrance to their home and only moved after she threatened to scream and call 911. Kilmer was 6’1” and weighed 225 pounds, according to the report.

An excerpt of the police report on the incident that led to Kilmer’s domestic assault charge (Obtained and annotated by ProPublica)

Asked if his criminal record comes up when he works with victims of domestic violence and abuse, Kilmer answered: “Just look at my resume, right? It’s like, look at what I’ve done and who I am and what I’ve been trying to put together for myself. Do you think, beneath all of this, I’m some kind of monster?”

Multiple parents said custody evaluators downplayed or omitted from reports to the court the traumatic and lasting effects of abuse they said they had experienced.

ProPublica also spoke to 45 Colorado parents currently or recently involved in custody disputes with allegations of child and domestic abuse. In cases evaluated by a PRE with a criminal or disciplinary record, parents told ProPublica they only learned about that record after the court had appointed the evaluator to their case.

According to the APA’s code of ethics, psychologists should recuse themselves if their personal histories could “reasonably be expected” to affect their objectivity or expose a client to harm or exploitation. Experts said it would be “highly unusual” for a psychologist who’s been charged with domestic violence or child abuse to evaluate custody cases involving domestic violence or child abuse, especially if those charges were not disclosed beforehand.

“I would question such a custody evaluator’s ability to look at claims of domestic violence or abuse in a fair and objective way,” said Helen Brantley, a clinical psychologist who chairs the task force that developed the APA’s guidelines for child custody evaluations in family law proceedings.

Kilmer’s then-wife made a voluntary statement to the police in 2006 about Kilmer. (Obtained by ProPublica)

Kilmer said he has never recused himself in 30 years working on over 600 court-ordered reports. “Once the court appoints me, that’s it. There’s no bailing out.”

His call to action: saving kids. “Like the whole situation in Uvalde, with the cops,” he said, referring to the mass shooting at a Texas elementary school earlier this year. Surveillance video showed armed officers waiting more than an hour to enter a classroom and confront the gunman.

“There’s no not going in,” Kilmer added. “Sometimes people are really disturbed and violent and it’s just like, that’s part of the job.”

A Colorado statute requires courts and court-appointed evaluators to consider claims of domestic violence and child abuse in child custody cases.

Karin Asensio filed a complaint against Kilmer with the State Board of Psychologist Examiners, alleging that he failed to take her ex-husband’s assault conviction into account when making his recommendations. The board dismissed the complaint, stating that it did not amount to a violation warranting disciplinary action.

Evaluators’ findings in custody cases are consequential: The Leadership Council on Child Abuse and Interpersonal Violence estimates that each year 58,000 children are placed in the custody of an abuser. Since 2008, 864 children have been killed in cases where a divorcing or separating caretaker has been accused of the crime, according to the Center for Judicial Excellence, which tracks news reports of child deaths; in 117 of those cases, a family court was involved prior to the death but failed to prevent it.

Kilmer said he’s particularly skeptical of abuse allegations from a person who stayed in a relationship for a long time.

A court document shows Kilmer temporarily lost decision-making authority over his children in 2007 during his divorce. (Obtained and annotated by ProPublica)

“People come in and say, ‘You know, this person has been terrible to me for 17 years.’ And you’ve just been hanging in there all that time and you had five kids? How was it really that bad all that time?” he said.

Then, he said, he’ll meet the partner who’s been accused of the abuse, “I look at their information and I’m like, ‘Oh, these allegations are really not even possible.’”

More often than not, he said, the accusers are exaggerating “to see what kind of legal advantage they can get.”

Conducting a Custody Evaluation During a Criminal Investigation

While the Colorado statute governing PREs requires evaluators to release their underlying case file to involved parties who request it, the files don’t include some aspects of how evaluators arrive at their recommendations. PREs frequently conduct in-depth psychological testing, but may refuse to release the results to clients, forcing parents to hire another psychologist to review the data. And parents are not immediately privy to what was included and omitted from their final report.

The day after Kilmer released his report, Elina’s mother requested the documentation used in his evaluation. Kilmer gave her his shorthand notes but refused to release recordings or transcripts of his interviews. When Karin continued to pursue the information, Kilmer sent her a cease-and-desist letter.

Sometimes the contents of evaluators’ reports are only disclosed if the PRE is subpoenaed and testifies in court.

That’s how one woman said she found out that Kilmer had not mentioned her ex-husband’s violence against her and her daughter in his recommendations. The woman asked to remain anonymous for fear of retaliation from her ex-husband.

In that case, Kilmer was not acting as a PRE but as a court-selected investigator. The court appointed Kilmer in August of 2019. Midway through the evaluation, she said, she learned of Kilmer’s record of domestic violence but didn’t challenge his involvement for fear it would hurt her case.

In her initial interview, she told Kilmer that her husband had become increasingly violent toward her after she became pregnant with their child, according to the woman and Kilmer’s court testimony. When she was five months pregnant, her ex-husband was arrested and charged with assault after grabbing her hair and slamming her head into the ground, resulting in a concussion and a neck contusion, according to medical records. “Assault” is listed as part of the medical diagnosis. The woman was reluctant to pursue charges and the district attorney chose not to prosecute the case, according to court testimony.

Under cross-examination in the couple’s custody case, Kilmer said he knew about the incident and had reviewed the husband’s arrest records and the woman’s emergency room medical records. Explaining why he had excluded those details from his report, Kilmer said, “I don’t take medical providers’ consideration or determination of whether a crime happened or not. Allegations, documentation, validations are not reality.”

In the same custody case, Kilmer omitted witness accounts of the father grabbing his then-2-year-old daughter by the neck and lifting her off the ground. Under questioning, Kilmer acknowledged that more than one source had described the incident to him, but said he “didn't understand” if abuse “had actually taken place or not.”

The mother said that when she told Kilmer about the incident, he chastised her for not calling the police. No charges were filed.

“I don’t take medical providers’ consideration or determination of whether a crime happened or not. Allegations, documentation, validations are not reality.”

—Kilmer, in court testimony

In his final recommendations, Kilmer told the court that “both parents” appeared to have made “mistakes” and exhibited “poor judgment.” Among the mother’s mistakes, he noted, was “publicly disparaging” her husband. Kilmer did not specify mistakes made by the father.

In court testimony, Kilmer said he did “consider” in his evaluation the fact that the father had lied when asked if he’d been arrested for domestic violence, but Kilmer decided against mentioning it in his report. “It ultimately didn’t seem to be something that was germane to the issue of trying to figure out … what was the safest and most appropriate parenting plan for [the child]. … I made [recommendations] with the understanding that there were these allegations but they were just that, allegations.”

This month, the judge adopted most of Kilmer’s recommendations and awarded the parents joint custody. While Kilmer had recommended that the parents share decision-making authority, the judge awarded that power solely to the mother.

Legal and custody experts advise court-appointed mental health professionals against agreeing to participate in cases involving allegations of abuse if law enforcement is still investigating them. “It is not the place of a custody evaluator to determine if abuse took place, that’s a criminal matter,” said Brantley, the chair of the APA child custody task force. Brantley said that this is a best practice but not a formal guideline.

In 2020, Kilmer accepted a custody case involving allegations of spousal rape and child sexual abuse and issued a report while police were still investigating the allegations involving the child. (Police closed the spousal rape inquiry shortly before Kilmer’s appointment due to a lack of corroborating witnesses or DNA evidence, according to the police report.)

Kilmer did not speak to the detective investigating the case, according to his report. The police department confirmed to ProPublica that they have no record of Kilmer contacting them. The detective investigating the case also confirmed that the child abuse case remains open.

Kilmer also did not interview a social worker at a local children’s hospital who had reported suspected abuse of the same child to the Adams County Sheriff’s Office. According to police records, the hospital employee said that the then-2-year-old child was brought in for an exam because a caretaker reported she was“displaying abnormal behavior” after staying with her father, and the girl was “touching and rubbing her vagina.”

In his PRE report, Kilmer accused the mother of “knowingly making false allegations in order to further a legal position.” He also threatened — in the only portion of the report in capital letters, bolded and underlined — that he would advise the court to restrict the mother’s parenting time if she subjected the child to further physical examinations: “IF MOTHER CONTINUES, UNFORTUNATELY FOR THE CHILDREN A RESTRICTION OF HER PARENTING TIME SHOULD BE REVIEWED BY THE HONORABLE COURT, DESPITE HER OTHERWISE EXCELLENT PARENTING SKILLS.”

Lawrence Jay Braunstein, a former prosecutor and expert on child abuse litigation, said custody evaluators should not give an opinion as to whether abuse has or has not occurred. To do so would be unethical and inappropriate, he said. “Custody evaluators stay in their lane, that’s the theory,” said Braunstein.

Kilmer declined to comment on why he did not contact law enforcement investigating this case or why he deemed the abuse allegations to be “false.”

“People often ask me, ‘How can you tell if people are lying?’ That’s where my own clinical experience comes in,” he told ProPublica. “I know what it looks like when somebody’s telling me the truth.”

“So Easily Rigged”

A Colorado law that took effect in January requires court evaluators to receive additional training on how to identify domestic violence and child abuse and on how a history of abuse should be weighed in custody recommendations. The law also tasked the court with vetting PREs and reviewing complaints against them.

The bill’s sponsor, state Rep. Meg Froelich, hopes it will spur improvements, but remains unflinching in her criticism of the system.

“Apparently, we don’t even have the ability to prevent convicted domestic abusers from being PREs,” said Froelich, adding that she was not referring to any specific PRE.

Despite the system’s problems, Froelich sees value in mental health professionals advising the court. “But what we don’t need are court professionals being hired and paid exorbitant sums of money by one of the parties.”

Colorado allows one party to a custody dispute to request and pay for a court evaluator, though the court must approve and issue the appointment.

“The PRE system is so easily rigged,” Froelich added. “PREs are racking up huge expenses, which of course benefits the more affluent spouse.”

Kilmer acknowledged that custody evaluators are put in an ethically complicated situation when one party pays them to do work on behalf of the court.

“Sometimes people are like, ‘Hey, I’m paying you! I hired you!’” said Kilmer. “And then, more often than not, the other party will complain and be like, ‘I’m not the one that wanted you. You’re clearly working for them.’”

Kilmer said he addresses this by encouraging both parties to be “upfront” about any concerns they might have about his objectivity.

“I charge time for preparation, travel and a four-hour minimum for expert witnessing.”

—Kilmer

PREs can earn even more by serving as expert witnesses in custody cases. And unless the court stipulates otherwise, the party who requests the testimony foots the bill.

“Payment for the evaluation will not cover testimony as an expert witness,” states a PRE contract reviewed by ProPublica.

“I charge time for preparation, travel and a four-hour minimum for expert witnessing,” Kilmer told ProPublica. He said his hourly rate is $325.

Robin M. Deutsch, a former chair of the APA Ethics Committee who trains judges, lawyers and court-appointed custody professionals in how to recognize intimate partner violence, was surprised Colorado courts allow PREs to act as expert witnesses while being paid by one party.

It is not unusual for an evaluator to testify in court if they are subpoenaed, she said. But “agreeing to shift from a parental evaluator role to be an expert witness hired by one side is absolutely an ethics code violation.” An evaluator is “the court’s witness” and should not appear to be working for one party by testifying on their behalf, she said.

Bill DeLisio, a spokesperson for the court, said Colorado law allows PREs to work as both a custody evaluator and an expert witness on the same case. The court is responsible for monitoring complaints about their objectivity and managing their testimony, he said.

Kilmer said he frequently acts as an expert witness on cases for which he also served as an evaluator. He dismissed as “ridiculous” concerns over the ethics of serving in both capacities.

“If you can produce a report, you can talk about it to the court,” he said.

Kilmer said acting as an expert witness is his “favorite” part of the job and he has improved his courtroom presentation through years of involvement in Toastmasters.

“Being in court is like being in Kabuki theater,” said Kilmer, who received his undergraduate degrees in dramatic literature and theater arts. “There’s a whole presentation — there’s a whole way that you can be more effective, by the way you talk and the way you present yourself. And you do all those things not because you’re being false, but just because that’s what the theater requires.”

“Questioning Every Bit of Reality I Had Fought to Reestablish”

In pleading guilty to misdemeanor assault, Elina's father, Cedric Asensio, avoided a trial on charges of felony child abuse and criminal neglect. He received a deferred judgment, meaning at the end of a probation period, the plea was withdrawn and the case dismissed.

Cedric Asensio’s attorney, Kimberly Diego, said in a statement to ProPublica that the initial charge of felony child abuse against her client was “very serious,” but noted that the case was ultimately resolved through a plea to misdemeanor assault and deferred sentence, which indicates “there is much more to the story.”

“In reaching this resolution, a host of information was provided to the prosecuting attorney,” Diego stated. “What was provided included text messages, social services records, police reports, medical records, emails, and a number of media files. It was after consideration of these materials that the case was resolved in the way it was.”

When the criminal case was resolved, Elina was living full time with her mother, was going to therapy and had started ninth grade.

“Things were starting to feel a little more normal,” she said.

Her interview with Kilmer — in which she recalls him pressuring her to forgive her father and saying that it would “ruin” her relationship with her dad if she didn’t — triggered what she described as post-traumatic stress and depression. The aftermath of the conversation left her “questioning every bit of reality I had fought to reestablish.”

She stopped going to school. She sat alone in her room for hours and went days without sleeping. She lost weight and wanted to be even thinner. She thought several times about taking her own life.

“I wanted there to be less of me,” she said. “And I was too scared to ask for help. I didn’t want to prove them right, that I was sick. That I was out of control. That this was, somehow, my fault.”

Elina’s father retains equal decision-making authority over his daughter.

Elina’s countdown app on her iPhone tracks the days, hours and minutes until she turns 18. (Trent Davis Bailey for ProPublica)

In June 2020, he refused to let her participate in a mentor and therapy program, according to court documents.

A few months later, when Elina wanted to get her learner’s permit, she said he told her no. Elina got her driver’s license over her father’s objections.

In May 2021, he denied her request to receive a COVID-19 vaccine, according to court documents. Elina said she got the vaccine anyway.

Cedric Asensio said he requested that his ex-wife wait a few weeks “to get more data on safety” before Elina got the vaccine.

Karin Asensio filed an emergency motion requesting that her daughter be allowed to address the judge directly about the parenting arrangement.

The court denied the motion, saying that she had not offered new reasons why the parenting arrangement should change.

Elina keeps a countdown app on her iPhone tracking the days, hours and minutes until she turns 18 and is no longer under her father’s control.

She never got back the gold necklace she was wearing the day her father assaulted her. The chain had been given to her by her maternal grandmother a few weeks earlier. The nurse who examined her in the emergency room swabbed the small four-leaf clover pendant dangling from the broken chain before giving it to police as evidence. Elina never saw it again.

“It’s really hard to think about the things I’ve lost,” she said. “But it’s scarier to think about how much more I could have lost, if my injuries that day hadn’t been bad enough for people to believe me.”

Mariam Elba contributed research.

by Megan Rose

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

A military judge found Seaman Recruit Ryan Mays not guilty on Friday of setting fire to a $1.2 billion Navy ship.

Mays, 21, had stood trial on charges of aggravated arson and willfully hazarding a vessel for the four-day blaze that destroyed the USS Bonhomme Richard, an amphibious assault ship, in 2020.

The acquittal marks the end of a two-year ordeal for Mays, who spent 55 days in the brig after he was arrested.

“I can’t get everything I’ve lost back, but today is the start of my new life,” Mays told ProPublica in a statement. “I am grateful that the military judge saw me for who I am: an innocent man who wanted to serve his country. This fire was traumatic for me and a lot of other sailors. This court-martial is an added layer of trauma.”

On July 12, 2020, the Bonhomme Richard was moored at a San Diego Navy base and undergoing a major overhaul. That morning, an area of the ship known as the “lower V” caught fire, and the blaze quickly spread throughout the vessel. The warship was lost and had to be decommissioned.

A ProPublica investigation into Mays’ case found there was little to connect him to the fire. There was no physical evidence that Mays — or anyone — purposefully set the fire. The Navy had one witness who placed Mays at the scene shortly before the fire but whose story changed over time.

The criminal investigation into Mays also stood at odds with another Navy inquiry into the fire, which found that 34 people, including five admirals, either directly led to the loss of the ship or contributed to it. That investigation uncovered a litany of failures that put the ship at risk for a catastrophic fire, including poor training, insufficient oversight and dangerous storage of hazardous materials. Additionally, 87% of the ship’s fire stations were out of order.

The Navy continued to pursue Mays even after a military judge recommended this year that the case be dropped for lack of evidence after a probable cause hearing.

In closing remarks, Mays’ lead defense attorney, Lt. Cmdr. Jordi Torres, said the investigation was a “live-fire exercise in the dangers of confirmation bias.” He said investigators and then the prosecution discounted any evidence that didn’t fit the narrative of Mays as the arsonist.

The lead prosecutor in the case, Capt. Jason Jones, told the judge, “You’re allowed to use inferences and circumstantial evidence” in making a determination of arson. Jones said criminal cases are like puzzles, and even when there is a missing piece, the picture is still clear.

Jones also addressed some of the findings of the other Navy investigation in his closing remarks, saying the prosecution didn’t dispute that the ship was lost to firefighting failures. But, he said, the fire started as a “sucker punch from behind” that the Navy couldn’t have prevented.

In the nine-day court-martial, the Navy had alleged that Mays was a disgruntled sailor who had gone down to the lower V with a bucket of flammable liquid, set the fire and then snuck out a hatch, changed his clothes and slipped back among the sailors on duty.

Mays was 19 at the time of the fire, assigned to menial jobs such as mopping and painting. He had previously dropped out of SEAL training and had told fellow sailors that the special warfare program was where he thought he belonged. Being on a ship he disliked, the prosecution said, was his motive.

Investigators found a blue Bic lighter in Mays’ possessions and have pointed to it as the possible way the fire was started. Torres was dismissive, saying “apparently just having a lighter makes you an arsonist.”

The trial largely centered on two competing witnesses and arguments over whether a crime had even been committed.

Fire investigators with the Bureau of Alcohol, Tobacco, Firearms and Explosives ruled the blaze an arson that was started by someone putting an open flame on large cardboard boxes. But defense experts disputed that conclusion, saying that there were two other possible causes ATF investigators missed and that “undetermined” was the only reasonable conclusion. The defense experts testified that lithium batteries and arcing from an engine wire on a forklift could not be ruled out as causes of the fire.

Phil Fouts, the fire investigator who testified on behalf of the defense, said he could not with any scientific certainty say whether the batteries, the forklift or arson was more likely the cause of the fire.

An ATF electrical engineer testified that he did not take any pictures or notes about the batteries during his examination of the scene, even though the batteries were found in the area that the agency identified as the origin of the fire. The batteries were then stored in a Home Depot bucket by ATF investigators. The engineer also did not photograph the forklift. The engineer testified that upon further inspection and testing of both the batteries and the wire, he did not think either caused the fire.

Trying to rebut the defense experts’ findings, the ATF engineer showed the judge a presentation using a forklift photo to highlight why he thought it couldn’t have caused the fire — but the photo was of the wrong forklift. There were two in the lower V, and the defense expert had found evidence of arcing in the other forklift.

Jones said that arson cases are often based on circumstantial evidence and the government had done its due diligence in reexamining the possible causes brought up by the defense.

The prosecution’s key witness, Petty Officer 2nd Class Kenji Velasco, testified that while he was standing watch the morning of the fire, he saw Mays go into the lower V shortly before he spotted smoke. Velasco at first told Naval Criminal Investigative Service agents he couldn’t identify the person he saw, but over several interviews he changed his story to say he was sure it was Mays. Velasco said the person he saw was wearing coveralls, but several witnesses testified they saw Mays in a different uniform that morning.

In an unusual twist, the prosecution did not call the lead NCIS agent to the stand. However, defense lawyers did call agent Maya Kamat to testify. The defense mainly questioned Kamat about an alternative suspect she investigated for several months. Another witness told NCIS she had spotted the sailor, Seaman Recruit Elijah McGovern, sprinting from the lower V around the time she saw smoke that morning.

Miya Polion, who is now out of the Navy, testified she saw McGovern jump over a cone that had been blocking off the lower V. “It’s kinda weird to be running on the ship,” she said, so she kept looking at him the entire time he was in view.

The prosecution claimed that video evidence showed Polion could not have seen McGovern that day because there was too much contractor equipment, such as scaffolding and dumpsters, in the way.

When interviewed by NCIS agents, McGovern denied setting the fire. McGovern had been searching online for fire characteristics the morning of the blaze and had a drawing on his phone depicting steps to set a coffee shop on fire. McGovern had told agents that the searches were research for a book he was writing about dragons, and that the novel began with a ship on fire.

Kamat testified she stopped investigating McGovern because he left the Navy and NCIS no longer had jurisdiction. Several months later, the Navy charged Mays with the crimes.

In response to prodding by the prosecutor during cross-examination, Kamat agreed that she also stopped investigating McGovern because she had exhausted all leads.

In closing arguments, Jones dismissed McGovern as a sci-fi loving sailor who had been seen leaving the ship and had been properly cleared as suspect.

The Navy and Capt. Derek Butler, the military judge, have refused to release nearly all records in Mays’ case, citing Article 140a of the Uniform Code of Military Justice as well as a memo issued by the former Defense Department general counsel and Navy interpretations of that guidance. ProPublica has filed a complaint and motion for a temporary restraining order and preliminary injunction to prevent the Navy from continuing to withhold court records in Mays’ case, contending that the Navy and the judge are violating the First Amendment and common law rights of access to court proceedings and records.

During the court-martial, exhibits also weren’t always visible, including photographs of key evidence, and stipulations of fact, sometimes to correct testimony, weren’t publicly available.

“There was never any evidence to support a conviction, and that’s about the only thing that makes sense about this court-martial, because Seaman Mays is innocent,” Torres told ProPublica on behalf of the defense team. “Thankfully, the military judge based his verdict on the evidence and not on mere argument and supposition. The Navy won today because an innocent sailor avoided a wrongful conviction.”

Update, Sept. 30, 2022: This story was updated with comment from Seaman Recruit Ryan Mays and Lt. Cmdr. Jordi Torres.

by Lisa Song and Alexandra Zayas

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

Two communities saw major impacts this month stemming from a first-of-its-kind ProPublica endeavor to map toxic industrial air pollution.

The Environmental Protection Agency will start monitoring the air in Verona, Missouri, where a manufacturing plant named BCP Ingredients emits a potent carcinogen called ethylene oxide. The mayor of Verona, Joseph Heck, has fought for air monitoring for nearly a year, since ProPublica’s analysis showed the company’s emissions substantially raised the local cancer risk. In some parts of the small city, the industrial cancer risk was an estimated 27 times what the EPA considers acceptable.

It feels “amazing” to finally see progress, Heck said in an interview. The EPA will install three air monitors in Verona to track ethylene oxide. The agency will also operate a mobile monitoring vehicle that can take additional samples.

Heck said the attention from ProPublica and local TV station KY3, which reported on ProPublica’s findings, helped spur these developments. Those stories have “prompted a lot of things. ... When a company or even EPA gets in the public eye, then they’ve got to look like they’re doing something about it. I couldn’t have done this on my own. There ain’t no way.”

In a statement, the EPA said the monitoring is expected to begin this fall.

BCP Ingredients did not immediately respond to a request for comment.

During a surprise inspection in June, the EPA found multiple health and safety violations at the plant. The agency recently issued an administrative order for compliance on consent, which requires the company to update its emergency procedures and take other steps to fix the violations. The order does not include a fine; in a statement, the EPA said it “has reserved the right to seek penalties in a future action.”

Heck said the monitoring alone will not solve everything. He worries about the health effects of living near ethylene oxide and how the EPA might react if the monitoring shows high concentrations. His partner, Crystal Payne, was a breast cancer survivor and in remission when they moved to Verona eight years ago. Within a year, her cancer came back and spread to her brain and her liver. Payne died this month.

“She’s in a better place,” Heck said. “No more tests, no more suffering.”

Crystal Payne, left, and Sue Pikari hug after last December’s EPA meeting in Verona. Payne, the mayor’s partner, was battling breast cancer. She died this month. (Kathleen Flynn, special to ProPublica)

Also this month, residents of St. James, a Louisiana parish on a stretch of the Mississippi River known as “Cancer Alley,” won a yearslong battle to block the building of a $9.4 billion petrochemical complex that would have been one of the largest industrial projects in state history. As reported by Lylla Younes for Grist, a state district judge withdrew the air permits, finding that state officials did not adhere to the Clean Air Act when issuing them.

“The Louisiana Department of Environmental Quality’s decision to authorize these potential public health violations, without offering evidence to show it had avoided the risk to the maximum extent possible, was arbitrary and capricious and against the preponderance of evidence under the agency’s public trust duty,” Judge Trudy M. White wrote in her ruling.

ProPublica found in 2019 that the air around the complex proposed by Formosa, a Taiwanese chemical giant, already contained more cancer-causing pollution than 99.6% of industrialized areas in the country. The proposed facility could have caused toxic air levels in some parts of St. James to triple.

“Formosa was wrong to even want to come in here and poison us because we’re already being poisoned,” Sharon Lavigne, a lifelong parish resident, told Grist’s Younes, who previously led ProPublica’s investigation. After Formosa announced its plans for the complex, Lavigne founded the grassroots group Rise St. James, which teamed up with the environmental watchdog Earthjustice to sue the state over its decision to grant the permits.

The Louisiana Department of Environmental Quality plans to appeal the judge’s decision. An agency spokesperson said they had “no other comment on this active litigation.”

Formosa did not respond to ProPublica’s request for comment. Janile Parks, the spokesperson for the Formosa unit in charge of the project, told Reuters it disagrees with the court opinion. “We believe the permits issued (by the state) are sound and the agency properly performed its duty to protect the environment in the issuance of those air permits,” she said in a statement, adding that it intends to “construct and operate it to meet all state and federal standards.”

Update, Sept. 29, 2022: This article was updated with a comment from the Louisiana Department of Environmental Quality.

by Karim Doumar and Cynthia Gordy Giwa

Sign up for ProPublica’s User’s Guide to Democracy, a series of personalized emails that help you understand the upcoming election, from who’s on your ballot to how to cast your vote.

Let’s get you ready to cast your ballot by creating a voting plan.

First things first: Have you confirmed your voter registration yet? You’ll need to be registered in order to vote by mail or in person.

All registered to vote? Let’s talk about your options.

See our simple guide to voting here.

Every county has at least a couple of options for casting a ballot — a combination of in-person voting on Election Day and an extended period for early voting, for example. Or maybe there’s expanded access to voting by mail and polling sites where you can cast a ballot in person. Those options will be handled differently depending on where you live because of our patchwork voting system, which has more than 10,000 jurisdictions that all run elections in different ways.

The good news is, the more choices that are offered, the likelier you are to find the one most appropriate for your needs. Here, we’re going to discuss voting options in broad strokes.

Voting Early in Person or on Election Day

Even as many states have expanded the ability to vote by mail, a lot of people prefer to do the job in person. Voters with who have difficult speaking or reading English may require an interpreter to help them with their ballot. Many people are wary about voting in any way other than an in-person system that allows them to see their ballot being physically cast. Some states make it challenging to vote any other way.

There’s a national campaign underway to recruit people to staff polling places during early voting and on Election Day, and you can find information on how to volunteer here.

Most states — 46 in total — offer some kind of early voting. The website for your election administrator has more details about the local rules and how many days of early voting you get (if it’s offered). But if you’re able to cast your ballot early in your state and are confident in your choices, consider voting as early as possible.

Here’s one reason: If you go to your polling place and there’s a long line, you can try coming back the next early voting day. But if you put it off until Nov. 8, then you’ll have no choice but to wait it out. That can help ease the Election Day crush for other voters and poll workers.

How to Vote in Person

Prefer to fill out your ballot in person at your polling location? Follow these steps to make a plan to vote in person.

1. Locate your polling place. It might not be where you voted last time. For some of you, your polling site won’t be sorted out until a couple weeks before Election Day. Check out the status of where you’re supposed to vote (and remember to double-check closer to voting time) at your county election official’s website or look it up here.

2. Decide whether to go early or on Election Day. Investigate early voting options at your election administrator’s website.

3. Figure out if you need ID. If you’re a first-time voter, you are required to show identification at the polls. And in some states, all voters have to present ID. But what you’ll need to bring varies by state. Sometimes drastically. You can check your state’s ID requirements here.

• Strict Photo ID: Some states require voters to show government-issued photo identification, like a driver’s license or U.S. passport.
• Strict Non-Photo ID: In some states, a non-photo ID with your name and address, such as a utility bill or bank statement, is required.
• Non-Strict Voter ID: Some states request either of these forms of ID, but ID is not required for you to vote. Under this category, you can still vote through alternative options like signing an identity affidavit, having election officials vouch for your identity or voting on a provisional ballot that is double-checked by your local election officials. (But, like all things on Nov. 8, your options come down to the state where you’re voting.)
• No Document Required to Vote: Finally, in some states, you don’t have to show any ID at all — unless you’re a first-time voter.

Once you know where and when you’ll vote in person, make sure to allow yourself enough time to travel to your polling location and possibly wait in line if it’s busy.

Voting by Mail

Thirty-five states and the District of Columbia currently allow anyone to vote absentee — that is, vote by mail. In most of those places you have to request an absentee ballot, although several send every registered voter an application for one.

Fifteen states require an excuse to vote by mail. In most of these states, you can still request an absentee ballot if you are going to be out of your county on Election Day, are sick or have a physical disability that makes it hard to get to the polls, are on active duty in the U.S. military or are working a required shift that coincides with polling hours.

See your election administrator’s website for details on how to get your ballot. If you live in a state where you have to request an absentee ballot, do it now. Election offices are slammed in the weeks before Election Day. And the sooner you request and receive your ballot, the sooner you can send it back.

Voting by mail has proven to be secure and effective.

In all states, voting by mail involves a ballot return deadline. As with practically every other part of the voting process, the absentee ballot deadline varies by state — but the U.S. Postal Service recommends that voters mail their ballot at least one week before the due date required by each state to allow for disruptions like severe weather and other unforeseen circumstances. The earlier you send it, the safer you’ll be.

If you want to bypass the mail, some states have ballot drop-off boxes — a secure, time-tested way to return your ballot. Others let you drop off your absentee ballot at the county election office or your polling place. To check your drop-off alternatives (if any), contact your local election office.

We have all heard again and again false claims of fraudulent mail-in ballots, stuffed ballot boxes and other outlandish statements meant to break our trust in election results. But cases of fraudulent voting are exceptionally rare.

How to Vote by Mail

1. Check the deadlines for requesting and submitting a ballot. See your election administrator’s website for details.

2. Find drop-off box locations that might work for you. Contact your local election office to learn about drop-off options for your absentee ballot.

3. Request the ballot! Why wait? The sooner you have your ballot, the sooner you can fill it out and turn it in so your vote can be counted on time.

4. Fill out your ballot. Be sure to follow all instructions for marking your vote and sealing the envelope.

5. Mail in your ballot by the deadline. Try to mail your ballot at least one week before Election Day. Or see if your state has ballot drop-off boxes so you don’t have to worry about it being postmarked on time.

Getting Help Voting — or Helping Others

The right to vote is protected for those who do not know how to read, and the Voting Rights Act entitles people who struggle with literacy to get help casting their ballots. This is also true for people who do not speak English and those with intellectual disabilities.

Our reporters recently dove deep on this in a stunning investigation titled “The Fight Against an Age-Old Effort to Block Americans From Voting.” Here’s what they found:

“For all of the recent uproar over voting rights, little attention has been paid to one of the most sustained and brazen suppression campaigns in America: the effort to block help at the voting booth for people who struggle to read — a group that amounts to about 48 million Americans, or more than a fifth of the adult population. ProPublica analyzed the voter turnout in 3,000 counties and found that those with lower estimated literacy rates, on average, had lower turnout.”

But you can help. Read our report on how to make voting easier, and share our simple guide to voting!

Clarification, Sept. 30, 2022: This story has been updated to reflect that the secretary of state does not administer elections in every state.

by Robin Fields

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

With the rollout this month of a new coronavirus booster, U.S. public health leaders once more face the challenge of persuading Americans that they should roll up their sleeves and get another, possibly better, shot targeted at the omicron strain.

This has become tougher with each successive vaccination campaign.

About 68% of the U.S. population has received either two doses of the Pfizer-BioNTech or Moderna vaccines or one dose of Johnson & Johnson, but only one-third has chosen to get a booster. In Canada, much of Europe, Japan and South Korea, people have chosen to get additional doses at far higher rates.

This summer, when COVID-19 vaccines were finally authorized in the U.S. for children under 5, they met with low demand. By mid-August, just under 5% of kids under 5 had received their first shots and only about 1% were fully vaccinated.

When it comes to the newest boosters, so far about 4.4 million people — about 1.5% of those eligible — had opted for the shots through Sept. 21, though reporting lags in some states.

This time around, the messaging also needs to overcome the publicly expressed qualms of some notable vaccine experts.

Several have said there’s inadequate proof that the reformulated booster shot will provide better protection than the original or that it’s been rushed out after being tested only on animals, not people. Centers for Disease Control and Prevention Director Rochelle Walensky and other proponents of the new booster have countered that waiting for more evidence would have left the U.S. using a potentially outdated vaccine if, as expected, COVID-19 surges this fall and winter.

Among the most notable of the objectors is Dr. Paul Offit, the director of the Vaccine Education Center at Children’s Hospital of Philadelphia and a member of the Food and Drug Administration advisory committee that recommends whether to authorize vaccines and for whom. Offit has pristine pro-vaccine credentials: He’s the author of “Deadly Choices: How the Anti-Vaccine Movement Threatens Us All” and has been one of the nation’s most vocal advocates for childhood vaccination.

We spoke to Offit about where he thinks the public messaging about the COVID-19 vaccine and boosters has broken down. The key group for health officials to reach, he said, isn’t those adamantly opposed to getting the vaccine or those who’d happily line up for 10 doses. It’s everyone else, he said, the ones thinking: “Do I really need another dose? How badly do I need this dose?”

In an emailed statement, a spokesperson for the U.S. Department of Health and Human Services defended the CDC’s and FDA’s messaging on vaccines and promoted the new booster: “We know we can save tens of thousands of lives if we can encourage the public to get their updated booster vaccine.” (See full statement here)

The stakes go beyond whether Americans will embrace each new COVID-19 shot, holding the potential to damage public confidence in all vaccines, Offit said. He pointed to four moments when leaders at the CDC, the FDA or in the Biden administration failed to communicate clearly what to expect from the COVID-19 vaccine and when and for whom extra shots could make a critical difference:

1. Vaccine meets world

When the Pfizer and Moderna vaccines were authorized in December 2020 and became available to an eager public, their makers and public health officials touted them as having efficacy rates of over 90% against mild, moderate and severe illness.

That was true, but temporary. What got lost in the messaging was that the shots’ protection against mild illness was bound to decline over time, Offit said. Public health officials should have made clearer that the principal goal was to prevent disease severe enough to lead to hospitalization or death. That’s what the vaccines delivered:

“If I could go back in time, right then when our committee was presented with those data in December [2020], I think we should have stood up or people should have stood up and said: ‘Realize that this protection is great. And we hope this protection holds up against severe illness and keeps you out of the hospital and keeps you out of the ICU and keeps you from dying. But this protection against mildly symptomatic illness is not going to hold up over time.’ And that’s what happened. Six months later, protection faded. Instead of offering a reasonable explanation for that, we did the opposite.”

2. Breakthroughs

By mid-2021, there was a flurry of stories about so-called breakthrough infections — cases of COVID-19 among Americans who were fully vaccinated. At the time, they were considered rare. Perhaps the most memorable: an outbreak in Provincetown, Massachusetts, that began over the July 4 weekend and infected 469 people, including 346 who’d had the requisite vaccine doses.

Here, Offit said, was an opportunity to remind people that the vaccine’s protection against serious disease remained. Labeling mild cases or asymptomatic infections as “breakthroughs” was an avoidable error, he said:

“Four of the 346 were hospitalized. That’s a hospitalization rate of 1.2%. That is a vaccine that is working well. We should have stood up and said this is what you want from this vaccine. And the other 342 had a mild or asymptomatic infection, which we labeled ‘breakthrough’ infection. And that’s the CDC’s word, I mean, in their Morbidity and Mortality Weekly Report, that was the headline in that report of that outbreak, when it should have been the opposite. It should have been, ‘This vaccine is doing just what you expected it to do.’”

The fallout from not framing breakthrough infections this way continues to this day. A July survey of vaccinated adults conducted by Kaiser Family Foundation found that almost half, 48%, said they didn’t think boosters are effective because some vaccinated people are still getting infected.

3. Boosters for all?

In August 2021, the Biden administration announced plans to begin offering boosters to most fully vaccinated adults starting the following month.

The announcement was unusual, in part because the advisory panels that typically guide the CDC and FDA on vaccine decisions hadn’t yet weighed in on the booster question. Scientists who were convinced the data backed another shot quickly began debating those who thought that, at least for younger, healthier people, the first two were still plenty effective.

That September, the panel on which Offit sits, the FDA’s Vaccines and Related Biological Products Advisory Committee, rejected the notion that most adults needed a third dose, endorsing boosters only for those 65 and older or at high risk because of underlying health conditions.

“I mean, the most recent data, the data that were generated just a month before that, showed protection against severe disease was holding up. So what was [Biden] trying to do? Was he trying to protect against mild disease? Because that’s not doable. And so that came to our committee, and we voted no. We unanimously voted no.”

A CDC advisory panel came to a similar conclusion, recommending boosters only for limited groups. Ultimately, though, both agencies went beyond their advisers’ guidance. The FDA authorized boosters for any adult whose work or living conditions put them at higher risk of exposure. The CDC expanded its recommendations to match.

Said Offit: “So now you’re additionally confused. Should we get a booster dose or not?”

The landscape shifted again with the arrival in late 2021 of the omicron variant. Omicron was sufficiently genetically different from earlier versions of COVID-19 to spark worries about how well the vaccine’s protection would hold up.

Many public health experts who’d questioned the push to boost all adults became converts. CDC studies showed that fully vaccinated people who got boosters were less likely to end up in the hospital with COVID-19 than those who’d had only the first two doses of vaccine.

But certain subsets of people gained far more protection against serious illness from boosters, while others gained far less, Offit said. Public health officials should have articulated this more clearly:

“The question was, who was benefiting from that third dose or that fourth dose? Was it everybody? Was it a healthy 25-year-old? Or were there just certain select groups that were benefiting from that additional dose? And the answer is, just certain select groups. No. 1, far and away, older people. And by that, I mean really older people. People over 75. The other group was people who had the kind of serious health problems where even if they had a mild illness, they could still end up in the hospital. And then the third group, to a lesser extent, were people who were immunocompromised. That’s who was benefiting from that third or fourth dose.”

4. Omicron booster

Conveying a clear message about the benefits of the newest boosters has been more challenging than for previous shots, Offit said. “Even if you’ve been paying attention and reading everything you can, it’s been confusing,” he said.

As omicron became the dominant strain of COVID-19 worldwide, manufacturers began work on reformulated vaccines designed to provide better protection against it.

Some were what’s called bivalent, containing both the mRNA codes for the spike protein in the original virus strain that emerged in China and the spike protein in a strain of omicron.

In June, Pfizer-BioNTech and Moderna presented data from small-scale human trials to the FDA advisory committee on which Offit sits. The data showed that people who received a bivalent booster targeting the omicron BA.1 strain made somewhat more antibodies in response to Omicron BA.1 than people who received the original booster. (For all subjects, the boosters were their fourth shots overall.)

From Offit’s perspective, though, the increase in antibodies “did not translate to a clinically significant difference” in protection from severe disease. Other experts have expressed similar concerns.

Since the BA.1 strain of omicron is no longer circulating, the FDA asked manufacturers to develop boosters tailored to fight the now-prevalent BA.4 and BA.5 strains. The companies provided data from animal tests for this booster, showing it triggered a strong immune response to all omicron variants.

Ultimately, Offit voted against switching to an omicron-matched booster, but almost all his fellow panelists recommended that the FDA move ahead with these shots.

Though its counterparts in Europe, the United Kingdom and Canada have authorized the booster targeting BA.1, for which there was some human data, the FDA authorized a booster matched to BA.4 and BA.5.

The Biden administration has bought 171 million doses — possibly the last free doses of COVID-19 boosters Americans will get, as Congress has blocked the administration’s requests for more funding.

At this stage in the pandemic, after so many cases and so many shots, the HHS spokesperson acknowledged that “our communications strategy is different.” Still, the administration’s statement set a high bar for what the new shot would deliver, saying it’s “expected to not only improve protection against serious disease, but may also restore protection against symptomatic disease.”

Offit expects that by mid-October, additional data will become available on how people’s immune systems respond to the new U.S. booster, answering at least some of the lingering questions about the shots.

“We’ll see whether or not they were right,” he said of the booster’s advocates.

Offit fears that the federal government’s mistakes in explaining the purpose of the COVID-19 shots and boosters have the potential to undermine public confidence in other vaccines, engendering pushback even against those with decadeslong track records. That, in turn, could bring the return of devastating infectious diseases once thought vanquished.

He pointed to a recent case of paralytic polio in Rockland County, New York, the first in the U.S. in almost a decade. Rockland County’s vaccination rates, which have long lagged those of the state and the nation, dropped even further during the pandemic. Offit worries the rest of the nation could travel down a similar path.

“You’ll see these diseases come back,” Offit warned. “And believe me, that’s not a disease you want to see come back. I was in a polio ward when I was 5 years old. ... I didn’t have polio. I had a failed operation on my right foot. But that landed me in a polio ward for six weeks. And I remember those children. I remember iron lungs. ... I was in hell for six weeks. Nobody wants to go back there.”

We Want to Talk to People Working, Living and Grieving on the Front Lines of the Coronavirus. Help Us Report.

by Eric Umansky

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

Voters in Sweden this month gave a leading role to a far-right party with neo-Nazi roots. Italy is also on the cusp of putting a party in power that has fascist origins. And of course, in the United States, one party has increasingly embraced election denialism and attempted to undermine the legitimacy of the electoral process.

To try to understand what, exactly, is happening, I talked with Barbara Walter, a political scientist at the University of California San Diego who studies democracies across the world. Her book “How Civil Wars Start” has become a bestseller. Rather than talk about the prospects for political violence, we discussed why many democracies are retrenching and how the U.S. stands alone — and not in a good way.

This conversation has been edited for length and clarity.

Can you walk through the vital signs of democracy that you and other political scientists have been tracking and that are trending the wrong way in the U.S. and elsewhere?

So there are probably five big data sets that measure the quality of democracy and countries around the world. They all measure democracy slightly differently. But every single one of them has shown that democracies around the world are in decline. And not just the fledgling democracies, but sacrosanct liberal democracies in Sweden, the U.K. and the United States.

These indices are like vital signs, but instead of for your body, it’s for our body politic. What are the most important ones?

So, empirically, we can’t rank order them. But we know what the good things are, and if you start attacking them, you’re attacking the vital organs.

One is constraints on executive power. You want lots of checks and balances on the executive branch. Here in the United States, you want to make sure that the legislative branch is strong and independent and willing to check presidential power. You want to know that the judicial branch is the same. Another one would be rule of law. Is the rule of law actually respected? Is it uncorrupted? You don’t want a system where certain individuals are above the law. If you want to become, say, Orban 2.0, you place loyalists in the Justice Department who are beholden to you and not to the rule of law.

You also want a free and open press, so that your citizens get high-quality information and they can make good decisions. Another one is you really want a competitive political environment, so that there’s a level playing field for people who are competing for power. You could make a very uneven playing field by party. So you can restrict the vote, you can make voting more difficult.

So these are all vital: Do you have constraints on the executive? Do you have the rule of law, so that there’s accountability? Do you have a level playing field, so that there can really be popular participation?

Another warning sign you’ve talked about is when a party becomes less about policy and more about identity, a shift one can see in the Republican Party in recent years. Can you talk about it?

The Republicans have always had a challenge that they were the party of wealthy Americans and business. The problem is wealthy Americans will always be a very small minority of Americans. So for wealthy Americans, they have to convince at least some nonwealthy Americans to support their platform. How do you do that? Well, you do it with issues of identity, their sense of threat, their sense of fear, their sense of the world is changing and “I’m being left behind.” It’s very effective.

I want to get to why we see these dynamics playing out across so many countries. You cite three dynamics. One is that the dominant caste in many nations, white people, is trending toward minority status. Another is increasing wealth concentration, where rural areas are often losing out. And then there’s a new medium that has risen that is unregulated and unmediated: social media.

On No. 3, the new medium, I would state it stronger than that. It’s not that it’s unregulated per se. It’s that it’s being driven by algorithms that selectively push out the more extreme incendiary messages.

You also wrote about another concept that I hadn’t heard before: ethnic entrepreneurs. These are politicians like, say, Slobodan Milosevic, the former Serbian strongman, who recognize an opportunity in appealing to the fears of a particular group.

Yep. He was not a nationalist. He was a straight up Communist. And again, that gets back to the difference between a political party based on ideology and one based on ethnicity. He became the leader of the Serb party.

So he saw which way the wind was blowing and he put up a sail. And that’s what an ethnic entrepreneur does?

Yes, but it can also be more strategic than that. Milosevic really had a problem in that communism was over. And if he wanted to stay in power, he was going to have to compete in elections. How is he going to get elected? And then he’s like, “Oh, like the largest ethnic group, and in this country are Serbs. I’m Serb!” If I can convince the Serbs during this time of change and insecurity and uncertainty when everyone’s a little bit on edge that unless they support a Serb, the Croats are gonna kill them, then then I can catapult myself to power. That’s classic ethnic entrepreneurship.

I want to ask you a last question I’ve been thinking about a lot myself. Like a number of news organizations, we’ve created a team devoted to covering threats to democracy. But after I read your book, I stopped referring to it as that because it occurred to me that the term threats to democracy reinforces a story that we Americans tell ourselves: that we already have a true democracy, the best darn one in the world, and we just need to protect it.

Our American democracy, even when we were happy with it and thought it was doing really well, it already had a whole series of undemocratic natures that no other healthy liberal democracy has.

Our electoral college, nobody has that. That was a compromise to rural states. We have the fact that our elections are run by partisan agents. No other healthy liberal democracy has that. Canada, this enormous country, has an independent electoral commission that runs all of the elections. Every ballot is the same no matter if you vote in Prince Edward Island or the Yukon. Or that we allow so much money to be injected into our system. Nobody else has this.

So we have not only these undemocratic features but a whole number of vulnerabilities that if you really did want to somehow cement in minority rule, you could do this legally. So in many ways we have a terrible system that’s ripe to be exploited.

Help ProPublica Investigate Threats to U.S. Democracy

by Tony Schick, Oregon Public Broadcasting

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

Leavenworth is a charming tourist town, tucked in Washington’s North Cascades mountains and styled as a Bavarian village. I spent a weekend there, noodling around in souvenir shops, snacking on pretzels and soaking in faux-European culture. It wasn’t till after dark, when I headed to the banks of Icicle Creek just outside of town for an interview, that I saw a vestige of what the region once was.

Perched on a plywood scaffold over roaring waters, a Wenatchi father and son fished using long nets made by hand and under the cover of darkness so it’s harder for salmon to spot them.

Only a handful of their tribe still fish this way. Dams through the region’s system of rivers have electrified cities, irrigated crops and powered industry. But those dams also decimated salmon numbers and wiped out fishing grounds that were central to tribes’ ways of life.

“My people have had to sacrifice a lot of these things so everybody else can have that,” Jason Whalawitsa, the father, told me as he fished. “We pay for that with our culture.”

When Whalawitsa said “we pay for that,” he meant tribes like his throughout the Columbia Basin who consider themselves the “salmon people.” And when he said “so everybody else can have that,” he might as well have pointed right at me.

I live in Portland, Oregon, the city where I grew up. It sits just south of the confluence of the Willamette and the Columbia rivers on land taken from Indigenous people.

My dad’s foundry supply business — the one that housed me, fed me and put me through school — only existed because of the shipping and manufacturing industries enabled by the river and the dams.

I proposed to my wife on a stern-wheeler on the Columbia River, the tourist boat floating on a reservoir created between two dams, in a spot that used to be a series of rapids where tribes fished.

There’s no one in this region whose life isn’t touched by the fish, whether they think about it or not. We populated towns to fish for salmon and can them. We sacrificed them for cheap electricity. Even the region’s iconic farming and timber industries wouldn’t be possible without salmon, whose dying bodies have enriched the Northwest soil with ocean nutrients.

But for decades the injustice at the heart of that story has been systematically hidden. There was nothing in my history or social studies classes about Northwest tribes. It wasn’t until 2017 that the Oregon Department of Education required schools to teach Native American history. And the Army Corps of Engineers, which operates most Columbia River dams, has its own curriculum for use in schools around the region; it glosses over the damage done to tribes, talking instead about how they’ve worked alongside federal agencies to help salmon recover.

David G. Lewis, a professor at Oregon State University and a member of the Confederated Tribes of the Grand Ronde in Oregon, has spent much of his career compiling previously untold histories of tribal experiences in the region, rewriting the “white person’s history” he sees in most published works.

“Average folks just do not know how bad that history is,” Lewis said, “the trauma, the abuses, the loss tribes experienced for more than 150 years.”

Before the era of dam building, the most important fishing site for upper Columbia River tribes was a huge collection of waterfalls they called Shonitkwu (meaning “roaring waters”). Downriver tribes had Wy-am (“echo of falling water”). In a case from the early 1900s, the Supreme Court described Native peoples’ right to fish locations like these as “not much less necessary to their existence than the atmosphere they breathed.”

Both those iconic sets of waterfalls, known today as Kettle Falls and Celilo Falls, are gone. Also gone are other, smaller fishing grounds, destroyed by the dams. That’s a blatant violation of treaty language, signed by the U.S. government and tribes, that reserved the right to fish at all usual and accustomed places.

Tribes, who have never stopped fighting for salmon and their treaty rights, are now in negotiations with the Biden administration. Over the next year, the administration says it will decide whether to take the unprecedented steps of removing some dams on the Snake River and reintroducing salmon in areas of the Columbia where they’ve been extinct for nearly a century.

Scientists say that because of climate change, the time to reverse some of the damage on the Columbia and Snake rivers is, essentially, now or never.

In the early 1900s, after the salmon canning industry had begun to exhaust fish populations, Northwest states sought to preserve the supply for commercial catch — specifically by putting restrictions on fishing by tribes.

This wasn’t an anomaly. “From the time of the founding of the Republic, state governments have consistently maintained an adversary, if not openly hostile, posture towards the Indian tribes and their separate rights.” That was the conclusion reached by Alvin Ziontz, an attorney who spent 30 years representing tribes in the Northwest, in a little-known history of treaty fishing rights he assembled in 1977.

Both Washington and Oregon, according to Ziontz, found ways to allocate nearly the entire harvest of the region’s salmon to nontribal fisheries. They justified it by saying restrictions on tribal fishing were necessary for salmon conservation, even though there’s evidence that before European settlers, tribes actually increased abundance by actively managing salmon populations.

In 1947, as we previously reported, the Department of the Interior asserted that the “the present salmon run must be sacrificed” for the sake of dam building, but it added that “efforts should be directed toward ameliorating the impact of this development upon the injured interests.”

Columbia River tribes, whose traditional fisheries would be located behind many proposed dams, were the most injured interest. But they received almost none of the amelioration, which came in the form of 26 government-funded hatcheries along the Columbia. All but two of those were sited below the dams, to boost commercial and sport fishing nearer the ocean: The fish they made would never swim as far as tribes’ fishing grounds.

Around that same time, after returning from fighting in World War II, two members of the Warm Springs Tribe began hatching salmon to plant in Central Oregon rivers. State officials shut the effort down because they hadn’t authorized it.

For many years, states also tried to prevent tribes from ever harvesting fish produced at government hatcheries. As late as the 1970s, Washington argued in court that tribes had no right to harvest the salmon produced in its hatcheries.

Tribal members fought to assert their treaty rights. And they were jailed for it.

In an infamous case known as the Salmon Scam, 75 Native fishermen were arrested in a federal sting operation claiming their poaching was responsible for 40,000 fish missing from the Columbia River. Yakama fisherman David Sohappy, whom federal investigators cast as the ringleader, was sentenced to five years in prison. It later turned out the fish weren’t actually missing: As the Yakima Herald-Republic reported, they’d been driven away by pollution from a nearby aluminum plant.

In the middle of the last century, as dam building and state policies were driving Columbia River Indian people from their homes and ways of life, a national policy emerged to terminate Native tribes entirely: For 20 years, the U.S. aimed to erase its obligations to tribes by assimilating Native people into cities and white culture, and then eliminating recognized tribes, reservations and the federal Bureau of Indian Affairs. (The policy was abandoned by the Nixon administration, which condemned it as “clearly harmful.”)

In the Northwest, tribes found ways to preserve their culture and adapt to the losses of wild salmon and sacred fishing grounds. They also faced backlash for it.

Richard Whitney, a wildlife manager at Colville Tribes Fish and Wildlife, prepares salmon immediately after an early morning salmon ceremony. The salmon is skewered and then placed over a fire, to be eaten for lunch just a few hours later. (Chona Kassinger for ProPublica)

When we reported on dwindling survival rates for salmon, I received emails blaming Native people for catching too many fish, despite the fact their harvest agreements with states are closely monitored. The same thing happened when Seattle TV station KING 5 reported on salmon and dams in the Skagit River, prompting the head of Washington’s Department of Fish and Wildlife to denounce such blame as “misinformation.”

Similarly, tribal hatcheries have come under scrutiny from federal regulators and wild fish advocates for diluting the health of wild salmon with fish bred in captivity. It’s an ironic dynamic given that the hatcheries were the government’s own stop-gap invention, and that tribes have pioneered hatchery techniques specifically designed to help wild populations.

“Tribes and salmon will not look as they did 200 years ago, so maybe stop expecting that of either, given what we live in now,” said Zach Penney, a fisheries scientist and member of the Nez Perce Tribe.

I spoke with Penney a few months ago while he was head of fisheries science for the Columbia River Inter-Tribal Fish Commission, a coalition of four tribes that coordinates fisheries policy. He’s now a senior adviser for the National Oceanic and Atmospheric Administration, the federal agency responsible for endangered salmon recovery. Penney said that back when he was a doctoral student, he was asked to explain the tribal perspective on salmon so often that he eventually developed a slide presentation.

In it, he draws a parallel between Native people, who were driven onto reservations, and salmon, who were driven into hatcheries. Both were forced to adapt to unfamiliar lifestyles. And for both, the changes did not bring good things.

As fishing disappeared, Ziontz wrote in his history 45 years ago, the river tribes’ economic position also changed: “From a life of relative plenty and ease, they moved to the position ultimately of poverty and want.”

The harms have outlasted the policies that caused them. Now, as state and federal officials look to address the region’s fish and rivers, they are seeking compromises — without acknowledging the compromises that have already been made.

In debating the merits of dam removal and other measures to save salmon from extinction, elected leaders in the region and Washington, D.C., are taking every measure to ensure that the river’s other users — like farmers, irrigators and power producers — are kept whole in the process.

Penney recalled sitting in meetings in the past few years where tribes were told they’d need to make compromises along with everyone else.

“I think that’s really insulting,” Penney said. “We’ve already compromised our way of life. This has all been compromised already. And you’re asking for more?”

Help Us Understand Pacific Northwest Salmon and Treaty Rights

by Alec MacGillis

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The property management subsidiary of Jared Kushner’s family real estate company has agreed to pay a $3.25 million fine to the state of Maryland and to reimburse many of the tens of thousands of tenants in the Kushners’ Baltimore-area apartment complexes for excessive fees and for rent they were forced to pay over the past decade despite serious maintenance problems in the units.

The agreement represents the settlement of a 2019 lawsuit brought against the subsidiary, Westminster Management, by the Maryland attorney general. The state alleged that the company’s “unfair or deceptive” rental practices violated Maryland’s consumer protection laws and “victimized” people, “many of whom are financially vulnerable, at all stages of offering and leasing.”

“This is a case in which landlords deceived and cheated tenants and subjected them to miserable living conditions,” said Attorney General Brian Frosh, a Democrat, at a press conference announcing the settlement Friday morning in Baltimore. “These were not wealthy people. Many struggled to pay the rent, to put food on the table, to take care of their kids, to keep everybody healthy, and Westminster used its vastly superior economic power to take advantage of them.”

Kushner Companies, which has since sold off most of the complexes, did not respond to requests for comment, but in a statement to the Baltimore Banner, it said: “Westminster is pleased to have settled this litigation with no admission of liability or wrongdoing. We look forward to moving past this matter so that we can focus on our ever-expanding real estate portfolio.”

Frosh took issue with that characterization. “You don’t pay three million two hundred and fifty thousand bucks if you’re not liable,” he said. “They may not have formally signed a piece of paper saying that they did it, but they did.”

The state lawsuit followed on the heels of a May 2017 article co-published by ProPublica and The New York Times Magazine describing the Kushner Companies’ highly litigious treatment of tenants at the apartment complexes it started buying in the Baltimore suburbs in 2012. The 17 complexes contained a total of about 9,000 units and provided a strong cash-flow ballast for a real estate company better known for trophy properties in New York.

The article reported that the company had brought hundreds of cases against current and former tenants over unpaid rent and broken leases, including people who had moved out of the complexes before the Kushner Companies even purchased them. The company also pursued tenants who possessed evidence that they did not owe the money claimed, with all manner of court and late fees piling on top of the original claims.

The article also described the shoddy conditions that many tenants had to contend with at the complexes, including mice, leaky roofs and rampant mold.

At Friday’s press conference, Frosh and two former tenants elaborated on the deplorable conditions. Frosh showed images from squalid units, including one of a large cluster of mushrooms growing beside a toilet. Tiffany Dixon described the floor and wall damage in her family’s unit at a Kushner complex called Commons of White Marsh that she said was caused by a large hole under the kitchen sink of an adjacent unit. Dixon recounted the horrifying discovery, after her kitchen stove stopped working, of mice remains inside the oven. Vaughn Phillips described living in a unit in another complex, Fontana Village, that had water pouring out of the kitchen wall for months “to the point where there was a small pond in my kitchen and living area.” Phillips also said that gas leaked from the unit’s kitchen stove and that “mice that would come out and watch TV with me.”

Frosh displayed one of the many internal company emails that his office obtained during its investigation, showing that officials were well aware of the problems. “We desperately need your help at the Commons of White Marsh with the number of roof leaks that are still occurring due to the damage of the storm that was caused from the storm back in March,” the community manager at the complex wrote to the director of construction at Kushner Companies, in September 2018. “I am receiving at least 30 complaints per day and residents coming [in] and screaming in office. We have a large amount of drywall damage and potential for mold is becoming an issue.”

Before the state’s lawsuit in 2019, a group of tenants filed a class-action lawsuit in late 2017, alleging that the company was improperly inflating payments owed by tenants by charging them late fees that are often unfounded and court fees that are not actually approved by any court. That case made its way to the state Court of Special Appeals in early 2021, but a ruling has not yet been issued. (The Kushner entities have denied wrongdoing in that suit.)

The state case against the company won a major victory in April 2021, when an administrative law judge found that Westminster violated consumer laws in several areas, including by not showing tenants the actual units they were going to be assigned to before signing a lease, and by assessing them a range of “spurious” fees. The ruling came after a 31-day hearing in which about 100 current and former tenants testified.

The company had initially downplayed the lawsuit as a politically motivated stunt to embarrass Kushner, the highly influential son-in-law of then-President Donald Trump. But after the ruling by the administrative law judge, the company entered into negotiations with the state. “It became very clear that they had done wrong and we were not going to let them off the hook,” Frosh said.

Frosh said that the state was looking into whether other large landlords in Maryland have been engaging in practices similar to those employed by Westminster. The Baltimore Banner recently reported that Maryland landlords are far more aggressive in using the courts to threaten eviction as a routine practice for collecting rent than are landlords in other states.

Under the terms of the settlement, Westminster must make an effort to reach all of the estimated 30,000 tenants who resided in its Baltimore-area complexes to alert them that they may submit claims of restitution for rent they were forced to pay despite substandard conditions. Former tenants will be able to start submitting claims in three months and will then have a year to do so. The claims will then be assessed by a special master selected by the company with the approval of the state. Separately, the company will automatically reimburse former tenants for excessive court fees and late fees, based on its records; former tenants will not need to file claims for that restitution.

Westminster may end up paying considerably more than $3.25 million, since there is no limit on the amount of restitution the special master can order. (Of the $3.25 million fine, $800,000 will be treated as a down payment on the restitution.)

The former tenants at the press conference expressed satisfaction with the settlement. “I wasn’t looking for financial gain,” Dixon said. “I was just looking for justice. I was looking for someone to acknowledge the negligence so that other people didn’t have to endure what we did.”

by Megan Rose

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Update, Sept. 30, 2022: A military judge found Seaman Recruit Ryan Mays not guilty on Friday of setting fire to the USS Bonhomme Richard. Mays, 21, had stood trial on charges of aggravated arson and willfully hazarding a vessel for the four-day blaze that destroyed the amphibious assault ship in 2020.

On the morning of July 12, 2020, the first orange flickers of destruction took hold in the bowels of the hulking USS Bonhomme Richard as it sat moored at a San Diego naval base.

Unimpeded, the fire gathered force, surging upward, conquering one level of the 844-foot ship and then the next, while the crew — the ship’s critical firefighting force — fled to the pier. There, the captain and his sailors stood by as the Bonhomme Richard burned, in cruel irony of its motto “I have not yet begun to fight.”

Not until the San Diego fire department went aboard did anyone spray water on the fire — nearly two hours after it had started. By then it was too late. Gas cylinders were exploding and shooting through the air, and firefighters didn’t have a map or even a sailor to guide them through the smoky maze of the ship. A firefighter’s warning that a compartment was “about to blast” forced firefighters off the Bonhomme Richard just minutes before an explosion so powerful it was heard 13 miles away and hurled debris onto a nearby destroyer.

That afternoon, the flames, hot enough to warp steel beams, danced along the flight deck and engulfed the ship’s outer structure. As the inferno raged, it melted the inside of the 300-ton control center on top of the ship, spewing molten aluminum onto the decks below.

Before nightfall, the Bonhomme Richard was a salvage heap. Sailors later watched as the forward mast, where the American flag flies while the ship is at sea, collapsed.

In this handout released by the U.S. Navy, a fire engulfs the USS Bonhomme Richard at Naval Base San Diego on July 12, 2020. (Mass Communication Specialist 2nd Class Austin Haist/U.S. Navy via Getty Images)

Four days later, when the fire was officially out, the U.S. Navy faced the sickening loss of a $1.2 billion warship, not to war, or even at sea. But to a wholly preventable fire while moored in a stateside port. For the Navy, whose reputation as the world’s finest had been battered by recent collisions at sea and allegations of shoddy equipment and training, the loss of the Bonhomme Richard was an embarrassing — and painfully public — blow.

The service immediately launched two parallel investigations into what went wrong and why.

The command investigation, led by a three-star admiral, sent a team of investigators on a prodigious and methodical examination of the fire. As the months passed, the investigators uncovered in exhaustive detail an astonishing array of failures — broken or missing fire hoses, poorly trained sailors, improperly stored hazardous material — that had primed the ship for a calamitous fire.

A separate investigation by the Naval Criminal Investigative Service, for its part, focused on whether anyone was criminally responsible. As the months passed, NCIS investigators appeared to operate in isolation, discounting the damning findings of the command investigation to pursue a case of arson, despite scant evidence.

Six weeks into both inquiries, the Navy told the command investigation to accept at face value what NCIS and federal fire investigators judged to be the fire’s origin. Both investigations concluded in 2021.

The command investigation traced the problems back to when the Bonhomme Richard docked for maintenance and Navy leaders throughout the ranks abandoned responsibility for the ship’s safety. Risks mounted, and nobody paid attention. All told, investigators determined that the actions of 17 sailors and officers directly led to the loss of the ship, and those of 17 more, including five admirals, contributed. The long list was a staggering indictment of everyone from sailors to top admirals who had failed in their jobs.

The NCIS investigation, however, laid the blame at the feet of a single young sailor. The true culprit, the one who bore responsibility for the billion-dollar loss, the Navy said, was then-20-year-old Ryan Mays. And for that, he should face life in prison.

The Navy continued its pursuit of Mays, even as a military judge recommended against it, bluntly calling out the lack of evidence and citing the findings of the Navy’s own command investigation.

Starting this week, Mays is being court-martialed in a military trial in San Diego for aggravated arson and willfully hazarding a vessel.

Ryan Mays, in long sleeves, and his lawyer Lt. Cmdr. Jordi Torres after a court hearing in August (Devin Yalkin, special to ProPublica)

A Navy spokesperson said the service couldn’t comment on ongoing litigation, but noted that the admiral who ordered the court-martial carefully reviewed the recommendation before deciding to move forward. “Everyone is entitled to a fair trial and the Navy is committed to upholding that principle,” Cmdr. Sean Robertson said.

In court, the Navy has tried to stymie questions about its motivations — and even to quash evidence its own officers gathered about dangerous conditions aboard the Bonhomme Richard. Last month, the prosecutor, Capt. Jason Jones, asked the judge to forbid Mays’ counsel from presenting the conclusions of the command investigation. Mays, who now holds the lowest military rank of E1, should not be able to ask the court to view him as the fall guy, Jones said.

The Navy wasn’t the problem, Jones said in court, and the trial argument shouldn’t in any way imply that “the Navy needs a scapegoat and therefore we picked an E1.”

Firefighters prepare to board the Bonhomme Richard two days after the fire started. (Mass Communications Specialist 3rd Class Jason Waite/U.S. Navy)

On Naval Base San Diego’s Pier 2, investigators cordoned off the charred wreckage of the Bonhomme Richard with yellow police tape.

Within days of the fire being extinguished, Bureau of Alcohol, Tobacco, Firearms and Explosives investigators, who co-led the criminal inquiry with NCIS, stepped into the watery shell of the ship, looking for what ignited the blaze.

Because the amphibious assault ship had been “in the yards” at the time of the fire, its flight deck, which stretched longer than two football fields, had been empty of the helicopters and F-35 fighter jets it was designed to carry. One of eight such ships in the Navy, the Bonhomme Richard is like a small aircraft carrier, made to ferry thousands of Marines into combat. It had been out of commission for a year and half during a $249 million overhaul. The morning of the fire, the upgrade was nearly complete.

The agents determined that the fire had started in an area of the ship known as the “lower V,” which normally stowed dozens of Marine Corps tanks and other vehicles, but during the overhaul was being used as a catchall, according to testimony and reports. On the day of the fire, the lower V had been packed with two fueled forklifts, a man lift, pallets of hand sanitizer, lithium batteries and other combustibles, wood beams, scaffolding, rope and thick, tall cardboard crates, some stacked two high.

A warship is an unusual scene for ATF investigators. They turned to the ship’s damage control assistant, Lt. Cmdr. Felix Perez, for a tour. Perez was the officer directly in charge of the firefighting hoses and systems aboard the ships, training sailors to fight fires and ensuring the ship followed fire prevention precautions.

Perez guided the agents through the ship, stopping at the fire stations closest to where the fire began. At three, hoses were missing, cut or otherwise unusable. Perez told the agents he or his staff had walked the ship two days before the fire, and it was nearly impossible they had overlooked the fire stations, according to an NCIS affidavit about the case.

The stations, Perez told the agents, must have been tampered with.

Sailors stand at attention during morning colors as the Bonhomme Richard burns in the background. (Mass Communications Specialist 3rd Class Jason Waite/U.S. Navy)

A few weeks later, in a building catty-corner from the Bonhomme Richard, some 77 naval officers, enlisted experts and civilians set up shop for the command investigation.

Early on, investigators realized Perez had not done his job well, according to a person close to the investigation who spoke to ProPublica on the condition their name wouldn’t be used so they could speak freely about sensitive matters. The fire stations were inoperable from broad neglect — and Perez and other leaders had failed to recognize the disintegration of the ship’s condition.

From the start of the command investigation, NCIS immediately curtailed the team’s efforts, forbidding its experts and officers from interviewing anybody from the ship, command investigators wrote in their report. Backed by Navy policy, NCIS’ criminal inquiry took precedence over the systemic investigation. So the command investigators turned instead to 26,000 pages of records, downloading databases and piecing together logs of the ship’s equipment, maintenance and training.

The investigators soon discovered an astonishing list of ways the ship was at risk, so many that cataloging the bad decisions day after day became depressing, the person involved said. For long stretches, all the ship’s heat sensors, sprinklers and other emergency systems were turned off, investigators wrote in their report. On the day of the fire, just 29 of the ship’s 216 fire stations and 15 of 807 portable fire extinguishers were in standard working order.

Perez was the ship’s principal representative on its mandated fire safety council, which investigators found met ad hoc and seemed to exist simply to waive safety requirements. Investigators scoured the meeting minutes and logs looking for ways Perez and others had considered mitigating each risk created by waiving those requirements and found almost none. They concluded that Perez, as well as his direct boss and other senior leaders, had abdicated their responsibilities for addressing fire prevention on the ship. Perez declined to comment on the investigation’s findings but said he thought his naval record showed he was a good officer.

Investigators also learned that Bonhomme Richard sailors had been living nearby on a berthing barge, basically a floating dormitory, until shortly before the fire. But that week they’d started to move back onto the ship while it was still in disarray. The supplies of both the contractor and the ship were shoved everywhere. The disorder had become normalized enough, the investigation found, that sailors of all ranks routinely walked by improperly stored oil drums, gas cylinders and other combustible items without much thought to the danger. To investigators, the condition of the ship was an “ideal environment for the fire to develop and spread.”

Just days before the fire, Mays had angrily texted his division officer, complaining about having to live among contractors who were doing work that was “hazardous as fuck.” A worker was welding near his bunk as he slept, and Mays said he was burned by a stray spark. In 2015, a major fire started on another warship in a shipyard with similar conditions: sailors moving aboard while “hot work” was being done.

The command investigators hung posters of ship drawings all over the walls, each one tracking a different potential problem. While NCIS’ early impressions of the case included a theory of sabotage, another picture altogether was becoming clear to command investigators: The Bonhomme Richard had been a tinderbox.

Smoke rises from a fire onboard the U.S. Navy amphibious assault ship USS Bonhomme Richard at Naval Base San Diego on July 12, 2020. (Bing Guan/Reuters)

On July 24, 2020, less than one week after beginning the criminal investigation, the ATF preliminarily ruled the Bonhomme Richard fire to be arson.

The lead ATF agent, Matthew Beals, and his team of investigators had found no physical evidence anyone purposefully set the fire. Beals later testified that he’d ruled out accidental causes, such as electrical and mechanical, as well as natural ones. With those causes eliminated, along with his assessment of how the fire grew and witnesses' statements, he concluded it must have been arson.

The National Fire Protection Association’s 921 guide, essentially the fire investigation bible, requires investigators to use the scientific method to determine cause. “You can’t in the absence of everything else rule it was arson,” Robert Duval, a director with the association, told ProPublica. ATF said it could not comment on pending litigation. Beals testified that his methods followed the manual and his conclusions were based on a variety of evidence.

In the area of the lower V that was most heavily scorched by the fire, Beals focused on the large cardboard crates he’d later call “Amazon boxes on steroids.” He theorized based on field tests that someone used an accelerant to ignite them, but said in court that he couldn’t find any fire data to corroborate.

He would testify at Mays’ probable cause hearing that he believed the fire was started by someone purposefully using an open flame and possibly an accelerant on the boxes.

NCIS began interviewing Bonhomme Richard sailors. Earlier in the year, NCIS publicly acknowledged the field office in San Diego had mishandled a high-profile investigation into Navy SEAL Special Operations Chief Edward Gallagher for war crimes; Gallagher was acquitted. The Navy took corrective action against seven agents. As the NCIS office developed its case on the fire, its leadership was still under a cloud.

The Bonhomme Richard’s top enlisted sailor identified Mays as someone who disdained the Navy, according to an NCIS affidavit. To go with their finding of arson, agents had a name of a possible suspect.

Ryan Mays (Devin Yalkin, special to ProPublica)

Mays, just out of high school and still baby faced, was known as something of a loudmouth on the ship. He’d enlisted early in Kentucky with his mother’s permission as a 17-year-old senior who liked science, swimming and running across the football field shirtless with the flag before Friday night games. His Navy contract guaranteed him a chance at BUD/S, the notoriously grueling training program for the SEALs.

Mays appreciated the camaraderie of orientation, but wasn’t mature enough to last when training got intense. He quit on the fifth day. That left him without a Navy career path, and he was in limbo for months afterwards, awaiting a new assignment.

Mays stole a pair of headphones from the base store, thinking naively that it would be “a fast track out of the military,” he told ProPublica. To his surprise, he was only reprimanded, and the commander encouraged him to embrace his potential and his time in the Navy.

Mays said that restoked his desire to become a SEAL. The Navy gave sailors three chances. When he was sent to the Bonhomme Richard in March 2020, Mays was single-minded. He could stand on the flight deck and, on a clear day, see across San Diego Bay to the Coronado beaches where the SEALs train. That was where he wanted to be. Or at least in a special warfare program, like explosive ordnance disposal.

He buddied up with another sailor with similar goals, and they tested their physical limits with overnight workouts. Mays was small but strong and his ego surfaced in the usual teenage way: social media preening. Around the ship, he earned eyerolls from fellow sailors when boasting that he belonged among elite sailors. Mays was in reality a low-ranking deck sailor, mopping, painting and carrying out other menial custodial duties aboard the Bonhomme Richard.

Records and interviews showed agents zeroed in on Mays’ discontent and the fact that he dropped out of SEAL training.

Command investigators, meanwhile, were finding that the basic principle of firefighting as survival had withered during the Bonhomme Richard’s extensive time in port. Just as every Marine is a rifleman, every sailor is a firefighter. No matter what a sailor’s job is, knowing how to contain and extinguish a fire is paramount. When a ship is at sea, there’s nowhere to escape.

The investigative team broke into smaller groups to examine what should have happened during the fire and what actually did.

Shortly after 8 a.m., sailors first reported spotting smoke. Investigators were dumbfounded at the lack of urgency after that. Navy policy, they wrote in their report, dictates that sailors must douse flames with water as soon as possible but at most within 12 minutes. On the ship that day, more than 10 minutes elapsed before anyone even announced the fire over the ship’s loudspeaker. The slow response, they found, was typical for the Bonhomme Richard. For 14 drills in a row leading up to the fire, the crew failed to respond in time — a lack of proficiency that neither the ship’s leadership nor higher commands took steps to address.

That critical gap between the sign of smoke and the sounding of the alarm, investigators found, was the first in a cascading set of failures, by both the crew and leadership on the pier. Once the sailors realized many of the hoses nearest the fire weren’t operable, investigators learned, none of them moved to another important shipboard strategy to contain the fire: slamming shut the heavy steel hatches and watertight doors between compartments. And the sailors revealed that at first no one thought to use the ship’s sprinklers to distribute thick, white foam that can help extinguish the fire. Even if they had, they would have been unable to easily turn on the system: A maintenance report had been falsified in April, saying the system worked when it didn’t.

Ryan Mays (Devin Yalkin, special to ProPublica)

As the command investigation took a wide view of what led up to the fire, NCIS, records show, sharpened its focus on Mays. On the morning of the fire, Seaman Kenji Velasco, who had just come on duty along with Mays, had been standing watch at the top of the ramp to the lower V. He told NCIS that he saw someone go down the ramp shortly before the fire.

Velasco told nobody about this person for days, according to testimony — not even during the fire, when that person could have been in danger of being killed. When Velasco sat down with agents, he told them that someone had walked behind him, “but I’ve never seen him before.”

Agents went back to Velasco the day after the interview. This time Velasco said he was “fairly sure” the person was Mays, according to NCIS documents. Velasco told the agents that Mays was cocky and talked too much.

The agents then brought Velasco back again: How certain was he that he saw Mays? “90%,” Velasco told them.

The next month, agents scooped up Mays, surprising him as he checked in for work. The ATF’s Beals and an NCIS agent questioned Mays in a recorded interview for nearly 10 hours. He told them more than 150 times that he didn’t set the ship on fire.

The morning of the fire, Mays should have had a broom and dustpan in his hand, cleaning the back of the ship. Mays told agents he was instead just hanging out there, scrolling through his phone. With 24 hours of duty and not much to do, he wasn’t in a hurry right after roll call, and besides, he told ProPublica later, the general culture of the ship on its second extension in the yards was lackadaisical.

On a recording of the interview, Mays, wearing a brown uniform T-shirt and occasionally sweeping his hair off his forehead, vacillated between confrontation and distress.

In a confident voice, he asked eight times in two minutes if he was being detained.

“I’m not answering your questions, Ryan,” Beals said.

During his interview, Mays crudely put on display his disregard for the fleet Navy, and spoke of his desire to be a SEAL. In the beginning he even asked NCIS agent Albert Porter, a former SEAL, for a recommendation. Porter told Mays he’d never have another shot at the training program: “You’re not going back, dude. It’s not happening.”

Beals pressed him to “just admit to what you’ve done.” At one point, he told Mays they had him on video.

“You’re a liar,” Mays said.

“You’re a liar,” Beals replied.

Several times throughout the day, Mays asked to call his mom. He tried to think of anything he could tell the agents that would show them he was innocent. He begged them to take his DNA, search his phone and use GPS to track his whereabouts at the time.

At one point when the agents left him alone, he exclaimed to the empty room: “I didn’t do it. Let me go.”

Then he laid his head on the table and sobbed.

When Mays learned close to midnight he was going to the brig, a sailor who had been preparing to transport him said she heard Mays say something like “I’m guilty. I did it, I guess,” according to records and testimony.

Agents took the alleged remark as a confession. Mays said he was being sarcastic, expressing disbelief he was being arrested for a crime he didn’t commit.

The Navy booked Mays into the brig on Aug. 20, 2020.

A page from the Navy’s command investigation report shows aluminum that melted during the fire and flowed throughout the ship, top, and the gaping hole the fire left in the interior of the ship, below. (U.S. Navy command investigation)

In the months after the fire, NCIS and ATF agents were slow to interview some of the sailors who had been aboard the ship during the fire, NCIS records of interviews show. One of those sailors was among the first to see smoke that morning.

About a month after Mays was arrested, the witness told agents she had seen a sailor sprinting from the lower V about the time she saw a “white fog” wafting up. She identified the sailor as Seaman Recruit Elijah McGovern.

A month and a half later, records show, NCIS and ATF agents asked McGovern where he was when the fire started. McGovern denied setting the fire. He gave a series of stories over several interviews about where he was at the time that were later contradicted, witnesses testified. ProPublica could not reach McGovern for comment.

Beals and NCIS agent Maya Kamat investigated McGovern for months but ultimately set a low bar to clear him. They found grainy, distant video of a base exit near the Bonhomme Richard that showed a person leaving about 25 minutes after the fire started. Beals and Kamat testified they could not identify McGovern’s face on the video. But Beals said he could tell by the person’s “gait and walk and general build” that it was McGovern. Kamat said she thought the nondescript clothes matched McGovern’s. The agents decided the video helped provide McGovern an alibi, they testified at a preliminary hearing. NCIS said it could not comment on pending litigation.

The Navy was also quick to dump its own expert. After Mays was arrested, someone scrawled on a port-a-potty near the ship, “I did it. I set the ship on fire,” among other things, including a crude drawing of the ship in flames. The military’s handwriting examiner said he matched the script to McGovern’s.

Handwriting analysis is controversial, but the government often presents it as trustworthy evidence. Here, though, the graffiti didn’t identify the sailor the Navy ended up accusing of the crime, so prosecutors wanted it excluded from Mays’ court-martial, arguing at a preliminary hearing it was not strongly conclusive and irrelevant.

McGovern was kicked out of the Navy for misconduct the week of his last interview with investigators, records show.

A ship moored at Naval Base San Diego, 2022 (Devin Yalkin, special to ProPublica)

After the Navy lost a submarine, the USS Miami, to a fire in a Maine shipyard in 2012, the service adopted a “never again” mentality and issued a new 129-page fire safety manual. Command investigators concluded it was merely a paper fix. Three major fires in shipyards after the Miami had similar troubling patterns. And investigators found that some admirals in charge of maintenance weren’t following the manual.

NCIS had kept investigators from interviewing 150 Bonhomme Richard crew members and others until the first week of December, five months after the fire, according to the command report. By the time investigators could sit down with the ship’s leadership, they had already pieced together the ship’s poor condition. As officers came in one by one, investigators were surprised to find out how little they knew about the state of their own ship.

Capt. Gregory Thoroman, the Bonhomme Richard captain, broke down several times throughout the interview. As a Navy pilot put in charge of a large ship, he was somewhat out of his depth of expertise. For example, Perez hadn’t always told the captain about the safety requirements he was waiving, investigators wrote, and Thoroman didn’t know enough to ask.

The Navy’s backstop system for when an aviator such as Thoromon is in charge is to require the No. 2 be a surface warfare officer. That also failed: Capt. D. Michael Ray, investigators learned, wasn’t paying attention either.

Investigators were startled to find that even though the ship had recently loaded 900,000 gallons of fuel, none of the ship’s leadership knew which emergency response systems were working. Thoroman hadn’t read the fire safety manual, investigators found. Ray and other key officers on the ship, including Perez, didn’t understand it. Neither Thoroman nor Ray responded to requests for comment.

Command investigators also found that the admirals charged with overseeing ships in maintenance hadn’t noticed the rising risks on the Bonhomme Richard. Other admirals and captains responsible for fire response didn’t ensure even foundational precautions, such as having large fire pipes on the piers and the distribution of ship maps to local fire departments.

The Navy was at risk for mishandling even a minor fire, investigators found.

Mays and Torres enter legal offices on Naval Base San Diego in August. (Devin Yalkin, special to ProPublica)

A year after the fire, as top Navy leadership was endorsing the command investigation findings, the service was also charging Mays.

To some, the Navy’s actions were reminiscent of an ugly piece of its history. In 1989 an explosion on a turret of the USS Iowa killed 47 sailors, and the Navy tried to pin it on one of the dead sailors, who leaders suspected was gay. Only after Congress stepped in did the Navy acknowledge there was no evidence for its assertions.

More recently, after back-to-back collisions in the Pacific in 2017, ProPublica exposed how the Navy downplayed systemic culpability and fired those who had raised alarms.

After a dayslong probable cause hearing for Mays in December 2021, the judge said she wasn’t persuaded of Mays’ guilt. A nuclear-trained surface warfare officer who later became a Navy lawyer and then judge, Capt. Angela Tang is known for being thorough.

“Given the state of the evidence presented to me, I do not believe there is a reasonable likelihood of conviction at trial. Therefore I do not recommend referral of these charges even though there is probable cause to support them,” Tang wrote in her findings.

ProPublica reviewed the conclusions of her 43-page report, which the Navy has withheld from the public, as it has with almost all other court records in the case. Probable cause is a low bar, Tang cautioned. In explaining her recommendation to drop the charges against Mays, she repeatedly refers to “if” the fire was arson.

Her report also notes that defense expert witnesses testified about finding two other possible causes: lithium batteries that had leaked and exploded and arcing from an engine wire on a forklift. Given that evidence, the experts testified, the only reasonable conclusion was “undetermined.”

None of the evidence proved the fire was deliberately set, Tang wrote, and ATF’s conclusion could be doubted because agents missed possible causes found by the defense in the four hours they had at the scene. Tang noted Velasco was the prosecution’s lone eyewitness and — even if believable — wasn’t enough to hang the case on. She wrote that Velasco’s credibility was undercut by how long he took to report seeing someone and by his inconsistent statements, as well as by other witnesses who contradicted what Velasco said Mays was wearing. Furthermore, even if Mays was seen, it did not prove he set the fire or that it was arson, she wrote.

She also said investigators had valid reasons to suspect McGovern and wrote that jurors would probably view Mays’ “I’m guilty” remark as sarcastic.

Tang referenced, too, the Navy’s own conclusions that if not for systemic failures, the fire would have been extinguished long before the ship was lost. The Navy charged Mays with hazarding a vessel, but Tang wrote the fire, if arson, seemed intended to cause a distraction, not destroy the ship.

Vice Adm. Stephen T. Koehler, the military commander with the final say about whether to prosecute Mays, disregarded Tang’s recommendation. In February, the Navy announced Koelher had decided to send Mays to court-martial.

Much of the Navy’s case against Mays hinges on his alleged motive. Prosecutors are claiming he was a disgruntled sailor who hated the Navy so much he torched the ship out of revenge.

The Navy believes Mays was consumed by the realization he’d never don the SEAL trident, and having to move to a new berthing aboard the ship “sent him over the edge,” one of the prosecutors, Lt. Cmdr. Shannon Gearhart, said at a preliminary hearing.

Mays’ civilian lawyer at the time, Gary Barthel, argued at the probable cause hearing that Mays’ hubris proved he was an unlikable braggart but not an arsonist.

The young sailor was also making efforts to reapply to SEAL training, both through his punishing workouts and by asking for recommendations and taking steps to earn special qualifications to bolster his application, such as search and rescue swimming, according to Mays and his lawyers. His mom, Christy Hall, told ProPublica that her often-stubborn son “was bound and determined to go back” to the training program. He’d only had one strike, and had two more tries, she said he told her.

Ryan Mays (Devin Yalkin, special to ProPublica)

Two years into the ordeal, at a hilltop park overlooking San Diego, Mays sat with a military bearing, speaking with a newly reflective self-awareness. He said it’s fair for the Navy to say he had a bad attitude and didn’t want to be on the Bonhomme Richard.

“I don’t know how I feel about the word ‘disgruntled’ that they’re using right now. That doesn’t really make a lot of sense to me,” he said. “I was just like every other sailor in the department that didn’t appreciate, you know, cleaning shit. And so I don’t know if that makes me disgruntled or not.”

When Tang recommended against a court-martial, Mays said, he briefly felt relief. He thought that the anxiety that had him throwing up nearly every morning would finally subside. Then the Navy announced it would still prosecute him.

The experience, especially his time in the brig, has been “soul crushing,” he said. “A piece of me died in there and I don’t know if I’ll ever get it back.”

The Navy decommissioned the Bonhomme Richard after estimating it would have cost $3 billion and at least five years to fix. The service said that it made changes to its fire prevention policies, including instituting random safety checks and clarifying the chain of command. More than 20 people, including three admirals, were disciplined. The captain, executive officer and top enlisted officer on the ship all received punitive letters of reprimand, which is typically a career ender.

Mays’ defense has noted that on the same day as the Bonhomme Richard fire, another big deck ship at the San Diego base caught fire. NCIS concluded the USS Essex fire was arson, but that blaze was extinguished before it caused any damage. In this case, like Mays’, there was a single eyewitness who identified someone at the scene shortly before the fire was discovered. But the case was closed without charges after a yearlong investigation. The agent in charge testified that the suspect was “ultimately eliminated because nothing more linked him to the fire aboard the Essex.”

One of Mays’ defense attorneys pointed out at a preliminary hearing that “the Essex facts are eerily similar.” Except that ship didn’t burn down, so the investigation “just went away,” Lt. Pete Link said.

In the Bonhomme Richard case, there was a costly loss of an entire vessel, Link said, “and now here we are in court.”

by Emily Hopkins

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

What typically is routine procedure — a utility requesting and then receiving approval for a consumer rate increase — has turned unusually contentious for DTE Energy, the largest provider of its kind in Michigan.

Critics are both highlighting the financial impact on Detroit-area consumers and drawing attention to other issues affecting local communities, including widespread outages and the company’s treatment of customers who can’t afford to pay their bills.

A March investigation by ProPublica and Outlier Media revealed that DTE had cut service for nonpayment more than 200,000 times during the pandemic. In an August story, the news organizations showed how DTE had sold off old customer debt, an unusual financial maneuver by a Midwest utility. Reporters found that DTE had received just pennies for every dollar of debt it sold to a collections company owned by a private equity firm. The consequences were severe for thousands of Detroiters who were sued and in some cases had their wages garnished.

Last week, three members of Congress, including Rep. Rashida Tlaib, a Democrat whose district covers much of Detroit, introduced a resolution recognizing access to utility services such as electricity, water and broadband as a human right. That resolution calls for a ban on the sale of household debt, the creation of a federal database to track disconnections, and holding a congressional hearing on utility issues, among other things. Tlaib also testified at a public hearing on the rate increase, joining in a chorus of protest that included dozens of customers.

Following our article last month about debt sales, a spokesperson for Michigan’s office of the attorney general said it is “more closely examining” DTE’s debt sale practice. The spokesperson added that the attorney general plans to raise the issue in negotiations over DTE’s current and future regulatory cases, which are decided by the Michigan Public Service Commission.

In addition, Detroit council member Angela Whitfield Calloway, who represents part of the city’s northwest side, told ProPublica that she intends to ask DTE officials to appear before the City Council to face questions about the company’s shut-offs, outages and debt sales.

“Selling the debt in my opinion is egregious,” said Whitfield Calloway, who, following the March investigation, co-sponsored a resolution calling for DTE to put a one-year pause on electricity and gas shut-offs.

“What’s in it for DTE?” she asked. “You’re causing harm to your customers.”

The DTE rate proposal would bring in an additional $388 million in annual revenue from residential, commercial and industrial customers combined. About 60% of that revenue increase would come from residential customers, who would see rates increase by 8.8%. On Monday, an administrative law judge issued a proposed decision that would cut the revenue increase to $145.7 million. The commission has until Nov. 21 to issue a final order.

Brynn Guster, spokesperson for DTE, said in an email that when the commission approves new rates, it will be the first base rate increase in nearly three years.

In public filings, the company said its rate increase proposal is driven by investments in infrastructure improvements that would prevent power outages and improve worker safety.

Guster also said that the company plans to invest in “a grid of the future that supports our fast-evolving lifestyles, businesses, and economy.”

The utility has defended its shut-off policies; its rate of shut-offs was higher than that of the six other investor-owned electric utility companies in the state, reporters found. A DTE spokesperson told reporters that the company works with customers to arrange an affordable payment plan or find financial assistance through programs for low-income communities.

In response to questions about DTE’s debt sales, Guster previously said the sales lowered the financial burden on other customers and that DTE only sold debt from “closed” accounts, where customers’ utilities had been shut off or residents had moved away from DTE’s service area.

An estimated 200 people attended an August hearing on the proposed rate increase. It’s the first time the Michigan Public Service Commission, which regulates utility rates, has held a public hearing dedicated to taking testimony on a rate increase.

“We understand that people are frustrated,” said Matt Helms, spokesperson for the commission. “This is why the Commission decided to hold the hearing in Detroit, so that commissioners could hear directly from customers concerned about the costs and reliability of their electric service.”

Annie Beaubien of Detroit testified at the hearing about two outages in as many days in July that left her home without air conditioning or fans during 90-degree weather. Getting information from DTE about what was wrong or when power would be restored was difficult, she said.

“It’s just completely ridiculous, the amount of money we pay versus the quality of service we get,” she said in an interview.

Tlaib, meanwhile, took aim at DTE’s shut-off policies at the hearing. “You know what’s outrageous, and what should be the biggest outrage for all of you as members of the commission: In 2020, during the worst of the pandemic, DTE shut off power to customers more than 80,000 times,” she said. Democratic State Reps. Laurie Pohutsky and Yousef Rabhi also testified against the rate increase.

On Aug. 29, just a week after the hearing, severe storms left some 265,000 customers without power. The outages led to closures at 24 Detroit public schools, and some homes were left without power for days. More than 43,000 customers were still without power as of the afternoon of Sept. 2.

Guster said the company apologized to its customers who were affected by the late-August storm and said that the extensive damage from high winds and the complexity of the repairs delayed DTE’s efforts to restore power to some customers. She added that 99% of customers who had experienced outages were reconnected by the evening of Sept. 2.

Siedah Spencer-Ardis, a marriage and family therapist in Detroit, said she went four days without power after the Aug. 29 outage — a situation she described as “hell.”

Her two kids missed three days of school. She and other therapists had to juggle appointments as outages affected both them and their clients. She said her family had to discard food from two refrigerators in her six-member household. And this isn’t the first time: She estimated that she’d lost groceries during DTE power outages four times over the last three years.

“This is like a recurring thing where we lose power,” she said. “They need to do better.”

by ProPublica

by Karim Doumar and Cynthia Gordy Giwa

Sign up for ProPublica’s User’s Guide to Democracy, a series of personalized emails that help you understand the upcoming election, from who’s on your ballot to how to cast your vote.

Welcome to ProPublica’s User’s Guide to Democracy! This series will give you the information and resources you need to vote in the 2022 elections.

Want a personalized voting guide for the 2022 midterms? Sign up for the User’s Guide to Democracy email series to see detailed information about voting in your congressional district.

Who You’ll Be Voting for in the 2022 Midterm Elections

We’re going to start off with some basics. (You probably learned some of this in elementary school, but it’s easy to forget, and we need to start somewhere!)

Members of Congress

Made up of the Senate and the House of Representatives, which together are theoretically coequal to the presidency, Congress is tasked with making laws on our behalf.

Each member of the Senate represents their entire state, with two senators per state. Unless filling a vacancy, senators are elected to six-year terms, and every two years about one-third of them are up for election. That means a lot of places don’t have a Senate race this year. You can see which senators’ terms are ending here.

No matter what state you live in, your congressional district is voting for a House representative in this year’s election. Each of the 435 House members represents a portion of their state, known as a congressional district, averaging 760,000 people. This is the person in the federal government closest to you, working in your district’s name. You can find your representative and their voting history in ProPublica’s Represent database.

The 2022 midterms have an added complication: redistricting. Every 10 years, states go through a political process of redrawing their congressional districts. Sometimes it’s because the state has gained or lost house seats after the census. For example after the 2020 census, Texas gained two house seats while California and West Virginia lost one each. In fact, seven states lost a seat, and six gained seats.

But even without gaining or losing seats, states change their district maps. Using increasingly sophisticated mapping techniques, many states try to look at voting history to construct districts they know will be safe seats for either party. This is called gerrymandering.

A CNN analysis shows that after the most recent round of redistricting, there are 17 fewer competitive districts across the country.

State Officials and Down-Ballot Contests

Which state officials are up for election in 2022 depends on where you vote. You might see candidates for governor, lieutenant governor, attorney general, secretary of state and judges from various levels of courts. Further down the ballot, you might also find offices such as treasurer and school superintendent.

Your state legislators are probably also on the ballot. Across the 50 states are 99 legislative chambers — all states have their own lower (larger) and upper (smaller) chambers except for Nebraska, which works as one big assembly. Of those 99 chambers, 88 have seats up for election this year.

You’ve heard this before, but it bears repeating: The decisions made by your local elected officials are the ones that most directly affect your daily life and can set the tone for your community’s values. But they are also the hardest to keep track of and understand, and voting patterns show they get the fewest votes. We’ve all shown up at the ballot box before without a full understanding of the job description for an official we’re charged with electing.

ProPublica can’t be everywhere at once, but here are just a few stories from the last year about how hyperlocal officials like school boards impact the communities they serve.

• White Parents Rallied to Chase a Black Educator Out of Town. Then, They Followed Her to the Next One.
• “We’re Going to Be Conservative.” Official Orders Books Removed From Schools, Targeting Titles About Transgender People.
• A Push to Remove LGBTQ Books in One County Could Signal Rising Partisanship on School Boards

Local governments also take the lead on crucial issues such as policing and holding cops accountable in your community. Their work affects everything from school funding and services, to rent, affordable housing, the environment and public transit. Your local government has tremendous influence over how your community is run.

That’s one reason ProPublica started our Local Reporting Network. Here’s some of what our partners doing watchdog work in communities around the country have found:

• The City Where Investigations of Police Take So Long, Officers Kill Again Before Reviews Are Done
• $53.3 Million. 33 Jobs. No Plan. That’s How Mississippi Lawmakers Are Spending BP Oil Spill Money.
• New York Let Residences for Kids With Serious Mental Health Problems Vanish. Desperate Families Call the Cops Instead.
• Casinos Pled Poverty to Get a Huge Tax Break. Atlantic City Is Paying the Price.

The User’s Guide to Democracy will be primarily focused on federal offices like the House and the Senate. For information on what else is on your ballot, check out Ballotpedia. Enter your address into this online resource to see a sample ballot of what you’ll be voting on in November.

Are You Registered to Vote for the 2022 Midterms?

Even if you’re pretty sure you are, take a moment to get 100% certain.

Sometimes, election officials clean up voter rolls to remove people who are inactive and those who may have moved or died. These efforts, unfortunately, sometimes mean that active, registered voters are swept from the rolls without their knowledge.

Take a moment now to double check your voter registration status. Vote.org, a nonprofit working to increase political engagement, has a look-up tool that lets you verify your voter registration in seconds.

If you’re not registered, or if you need to update your information, there may still be time — but deadlines are different in every state. Get all the forms and facts you need at your secretary of state’s website.

by Mick Dumke

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.

Citing years of broken promises to build affordable homes, a Chicago City Council committee rejected a plan to lease public housing land to a professional soccer team owned by a billionaire ally of Mayor Lori Lightfoot.

That was on Tuesday. Less than a day later, allies of the mayor called a do-over and reversed the vote.

The full City Council then voted Wednesday to approve a zoning change needed to let the Chicago Fire soccer team build a practice facility on the 26-acre site.

A June story by ProPublica detailed how the land was once part of the ABLA Homes, a public housing development on the Near West Side where 3,600 families lived. After demolishing most of the ABLA buildings and displacing thousands of people, the Chicago Housing Authority promised to build more than 2,400 new homes in the area. So far, it has finished fewer than a third of them.

Lightfoot offered the ABLA site to the Fire late last year, and the CHA board signed off on the plan this spring. It is one of a series of deals the CHA has made to sell, lease or give away its land for nonhousing uses, including Target stores, a private tennis facility and a school running track and turf field. The Fire are owned by Joe Mansueto, founder of the investment research firm Morningstar.

The zoning change was considered one of the easiest steps needed to finalize the Fire lease, since Lightfoot’s allies control the city commission and the council committee that had to sign off. But it turned out that distrust of the CHA led to an embarrassing, if short-lived, setback for the mayor and her team, which had to resort to an unusual ploy for more time.

It’s hardly unprecedented for Chicago mayors to advance their agendas with strong-arm tactics and calculated legislative maneuvers. For example, former Mayor Richard M. Daley once waited until the council was about to adjourn before ramming through the repeal of a law he didn’t like in just a few minutes. Rahm Emanuel mastered a long tradition of letting loyal aldermen use committee budgets for patronage and perks. And Lightfoot fought to keep meetings with aldermen out of public view.

On many occasions, aldermen have been known to vote against ordinances they sponsored or to embrace measures they criticized after getting calls from the mayor. The do-over is another reminder of how Chicago mayors almost always get their way.

In defending the deal, the CHA has said that turning over land — the largest open plot at ABLA — to the Fire will not impact its plans for more housing. The agency has also said residents will benefit from recreational and job opportunities when the Fire facility is built. The team has emphasized similar points in describing the deal as an investment in the West Side.

But after years of watching CHA fail to deliver on its commitments across the city, many housing advocates and aldermen are skeptical. From the beginning of Tuesday’s zoning committee meeting, CHA and city officials were playing defense. “The CHA is well and far behind its goals,” Alderwoman Maria Hadden said at the meeting.

With rising homelessness and thousands of people on CHA waiting lists, she said, “It’s concerning to see such sluggishness.”

“Housing is what we do,” responded Ann McKenzie, chief development officer for the CHA. She said the agency hoped to start building 220 more units at ABLA this fall, split between low-income housing and market-rate buyers.

But McKenzie acknowledged that Hadden was right about the agency falling short of its commitments. Even when the new units are done, the CHA will have delivered less than half the homes it is obligated to under court agreements.

McKenzie vowed more housing will be built. To adjust for the land leased to the soccer team, she said, the CHA would have to concentrate more housing on nearby blocks. But she argued the Fire agreement could bring money and momentum.

“We actually think this is an improved plan,” she said.

McKenzie said under the current proposal the CHA would get $8 million up front plus about $750,000 to $800,000 a year for as long as 40 years.

A group of housing attorneys suggested in a letter to the committee that the plan violated civil rights laws and court orders. McKenzie and a city lawyer said that those issues would be part of a review by the U.S. Department of Housing and Urban Development, which must sign off any plan to dispose of public housing land.

Alderman Tom Tunney, Lightfoot’s hand-picked chair of the zoning committee, noted: “This is a zoning process. This is not about HUD agreeing with the use of the land.”

But aldermen continued to express frustration with the CHA.

“I came from public housing,” said Alderman David Moore, who grew up in the CHA’s Robert Taylor Homes and now represents a South Side ward. He wanted to see letters of support for the Fire deal from resident leaders.

McKenzie said she didn’t have letters but assured him the CHA had been talking with resident groups for months.

That wasn’t good enough for Moore. “I cannot support this item without a letter of support,” he said.

Alderman Jason Ervin, whose ward includes the Fire site, urged his colleagues to support the zoning change, arguing it would provide a boost to the community. Still, he said, “The concerns that have been raised are valid given what’s transpired with the CHA over the last 20 years.”

When Tunney began the roll call on Tuesday, it was quickly clear the measure was in trouble. Seven aldermen — including Hadden and Moore — voted no. Seven members of the committee were no longer present. And only four joined Tunney in voting yes. The item would not advance out of the committee.

But then, minutes later, Tunney announced that the committee would reconvene Wednesday morning to “reconsider the vote.”

With the help of two aldermen who changed their votes, the do-over on the CHA-Fire deal only took a few minutes.

Tunney started the meeting Wednesday by announcing the committee now had letters from resident leaders backing the Fire agreement. He asked for a motion to reconsider the first vote.

Under council rules, a vote can be reconsidered only if someone from the winning side moves to do so. Alderman Felix Cardona Jr., who voted against the Fire deal on Tuesday, was ready to make the motion. Tunney then called for a vote to reconsider the first vote. It passed 9 to 5 with the help of Cardona and Moore, who flipped from the day before.

Alderman Anthony Beale, a Lightfoot critic who cast one of the no votes, accused Tunney of “skirting our rules” by arranging for a second vote on the proposal.

Tunney brushed off the criticism, then announced that Cardona had moved for a vote on advancing the Fire plan. Cardona hadn’t said anything.

But the committee went ahead with the new vote to advance the zoning change to the full council. This time it approved the Fire deal, 9-5.

Afterward, Moore said the letters from resident leaders swayed him, while Cardona said Ervin persuaded him that ABLA residents were in favor of the proposal. Still, Cardona said he would make sure the council calls CHA officials to a public hearing to explain how they will build more housing.

“As you heard today, all my colleagues have an issue with the CHA,” Cardona said. “So the best thing for us is to bring them to the carpet and have a serious conversation with them.”

A few hours after the committee advanced the Fire deal, the full council approved it by a 37-11 vote. The CHA now has to submit the proposed agreement to HUD for review.

At a press conference later, Lightfoot said the CHA had done “an extensive amount of community engagement” in the ABLA neighborhood “to make sure the development really reflected what the community said they need.” Then she turned to praising Mansueto.

“Joe Mansueto has been very intentional about answering my call for business people to invest in areas of our city that have seen either little to no investment or, frankly, have been disinvested in,” Lightfoot said. “So I’m grateful to Joe Mansueto.”

by Perla Trevizo, ProPublica and The Texas Tribune, and Mike Hixenbaugh, NBC News

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The generator industry’s promised fix for deadly carbon monoxide poisoning was put to the test last year on a narrow patio outside Demetrice Johnson’s home after Hurricane Ida plunged much of Louisiana into darkness.

Johnson’s brand-new generator — equipped with a safety mechanism that manufacturers have said prevents “more than 99%” of carbon monoxide poisoning deaths — hummed into the night, inches from her family’s back door on Sept. 1, 2021, powering an air conditioner and a refrigerator.

If carbon monoxide levels got too high, the generator was designed to automatically sense the danger and trigger a shut-off switch.

But by the time emergency responders entered the three-bedroom brick house in Jefferson Parish the next morning, Johnson and her children, 17-year-old Craig Curley Jr. and 23-year-old Dasjonay Curley, were dead. They had been poisoned by exhaust fumes that flowed from the generator into their home, according to a sheriff’s office report, exposing a safety deficiency that federal officials and consumer advocates have warned about.

The safety switch’s failure to save Johnson and her children is detailed in an April report by the Consumer Product Safety Commission (CPSC) that was obtained this month by ProPublica, The Texas Tribune and NBC News through an open records request. The federal report followed an investigation by the news organizations that detailed the family’s deaths and found that attempts to make portable generators safer have been stymied by an oversight process that empowers manufacturers to regulate themselves, resulting in limited safety upgrades.

CPSC investigators couldn’t say whether the shut-off sensor on Johnson’s 6,250-watt Briggs & Stratton Storm Responder had activated at any point during the night, but when emergency responders arrived the next morning, the generator was in the “on” position with an empty fuel tank.

“This tragic incident exemplifies one of the limitations” of voluntary safety upgrades that have been championed by generator makers in recent years, one of the agency’s engineers wrote in a letter to the industry that accompanied the report.

Briggs & Stratton did not respond to messages requesting comment.

The Portable Generator Manufacturers’ Association has repeatedly said that automatic shut-off sensors would prevent more than 99% of deaths associated with what they call “misuse.” Joseph Harding, the group’s technical director, said in an email that the association stands by that claim in the wake of the CPSC investigation into the Louisiana case. Harding said no safety feature can prevent 100% of deaths.

“Unfortunately, the incident in Louisiana was a perfect storm of misuse operating in an outdoor location,” he said. “This tragic situation was in the ‘less than 1%’ category.”

A police report photo shows the position of a generator with the exhaust pointed toward the back door of Demetrice Johnson’s home. (Jefferson Parish Sheriff’s Office)

The findings add to growing scrutiny of an industry under pressure to make its products safer. In February, the CPSC announced that it intended to propose new mandatory regulations in its 2023 fiscal year to force stricter generator safety upgrades. And in June, a congressional committee launched an investigation, which remains open, into whether portable generator manufacturers have done enough to protect the public from carbon monoxide poisoning.

Portable generators are one of the deadliest consumer products on the market, killing about 80 people in the U.S. each year and poisoning thousands of others. The machines, used to power medical equipment and appliances during electrical outages, emit toxic levels of carbon monoxide fumes that can turn deadly when allowed to build up inside homes.

Carbon monoxide deaths caused by generators predictably follow nearly every major power outage caused by extreme weather, which scientists say is becoming more common with climate change. Generators played a role in at least 10 deaths in Texas during the February 2021 winter storm and electric grid failure, according to medical examiner investigations and incident reports. The Louisiana Department of Health reported that at least six people, including Johnson’s family, died of carbon monoxide poisoning after Hurricane Ida.

Federal regulators have known about these dangers for more than two decades, but the CPSC has not implemented mandatory safety standards that would require manufacturers to vastly reduce carbon monoxide emissions. Instead, the agency allowed the industry in 2018 to develop its own less costly solution: letting manufacturers voluntarily outfit generators with sensors that are supposed to automatically turn off the engines when carbon monoxide builds up to an unsafe level around them.

Harding, the generator industry representative, emphasized that generators should only be operated outside with the exhaust pointed away from windows and doors. He directed reporters to the industry’s public awareness campaign, which instructs users, “To protect yourself from these carbon monoxide emissions, all you have to do is take it outside.”

Photos included in the CPSC’s investigation show that the generator that killed Johnson and her children was placed inches from a back door, with the exhaust pointed toward the house. Because the generator was outside, the carbon monoxide safety sensor was unable to measure the amount of gas flowing through the back door and building up inside, a flaw in the safety mechanism that the CPSC and consumer advocates have highlighted.

Marietta Robinson, a commissioner with the CPSC from 2013-18, said the Louisiana incident “demonstrates perfectly that incorporating a shut-off switch in a portable generator instead of lowering emissions simply is not a way to protect consumers from this hidden hazard.” She noted that Johnson’s side yard was so small — only a few feet wide, according to photos — that it would have been impossible to follow generator makers’ instructions to keep the machine about 20 feet from the house.

As part of the CPSC’s announcement in February that it planned to propose new mandatory regulations, the agency released a report that studied the effectiveness of the generator industry’s voluntary safety measures. It concluded that too few manufacturers had adopted safety upgrades and that, based on a series of simulations run by the agency, carbon monoxide shut-off switches were not effective in preventing poisonings and deaths in some scenarios. Notably, the agency found, automatic shut-off sensors don’t work when users set up the machines outside with the exhaust pointed toward windows or doors — the same scenario that killed Johnson and her children.

Based on its own simulations, the agency found that automatic shut-off sensors could prevent 87% of deaths caused by generators — lower than the 99% figure promoted by the industry — while still leaving some consumers exposed to carbon monoxide levels toxic enough to require hospitalization.

CPSC staff members also tested a more stringent approach of equipping the machines with both shut-off sensors and engines that emit far less carbon monoxide and found that the combination would eliminate “nearly 100%” of generator deaths and the vast majority of hospitalizations.

In comments to the CPSC, industry officials have argued that requiring generators to emit less carbon monoxide in addition to shut-off switches “would only further exacerbate the burden on manufacturers, add unnecessary cost, and not provide any significant increase in benefit over the shutoff approach alone.”

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by Stefanie Dodt, ARD German TV

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A federal district judge in Washington, D.C., has ordered immigration officials to allow Mexican citizens with visas to sell their blood plasma in the U.S.

U.S. District Judge Tanya Chutkan granted a preliminary injunction overturning a policy announced last year by U.S. Customs and Border Protection officials that barred Mexican visitors from participating in what had become a multibillion-dollar business along the border.

Judge Chutkan ruled that CBP officials had “failed to consider” the extent to which blood plasma companies were relying on Mexican donors and that they had failed to adequately justify the policy.

In issuing the preliminary injunction, the judge found that the companies had shown they had a “likelihood of success” to overturn the ban if the case went to trial. She noted that the costs of opening collection centers in other regions to make up the shortfall — $2.5 million to $4 million per center — would be “substantial.’’

A spokesperson for CBP declined to say whether the agency planned to appeal the ruling, saying “this matter is still under litigation.”

U.S. officials had long acknowledged that the role of Mexican citizens in the blood plasma business along the border was a “gray area”in immigration law, with some Border Patrol agents refusing to let people enter the U.S. for donations while others allowed it.

Many people living on the Mexican side of the border hold visas that allow them to come to the United States to shop or visit relatives. After the CBP imposed its ban, they risked losing those visas if they were caught selling blood plasma.

ProPublica, ARD German TV and Searchlight New Mexico reported in 2019 that thousands of Mexicans were crossing the border to donate blood as often as twice a week, lured by bonus payments and hefty cash rewards, an economic lifeline for many of them. Mexican law bars people from selling plasma.

In Facebook posts, the Spain-based pharmaceutical company Grifols, which had teamed up with its Australia-based rival CSL Plasma to sue CBP over the ban, is already inviting Mexican donors back to the U.S. plasma centers. Some plasma donors are still warning others to be careful at the border to avoid having their visas confiscated. “As if you would tell them on the bridge where you go,” a comment in Spanish says.

Some donors interviewed by ProPublica said they would welcome the legal clarity provided by the court decision. “Finally, we can cross without fear,” said Gamaliel, a resident of Ciudad Juárez who previously told his story of being a donor. “It was always so risky.” Nevertheless, he said, he would still only go back to donate in case of a financial emergency, because of the health risks associated with frequent plasma donations. As ProPublica and ARD found, frequent plasma donation was harming the health of some Mexican citizens who relied on the system for money. Some frequent donors were underweight and showed low levels of antibodies.

In her ruling, Chutkan, who was named by then-President Barack Obama to the bench, wrote that she had considered health risks for the donors, quoting studies analyzing potential negative long-term effects of plasma donations.

She rejected the companies’ argument that Mexican blood donors were no different from couriers ferrying laboratory samples across the border, since both were “carrying a substance that ‘originates in Mexico.’”

“The comparison is unpersuasive,” Chutkan responded in her ruling. “A person is more than just a shopping cart of biological products to be bought and sold at a later date.” She said that her decision to grant a preliminary injunction reflected the crucial need for blood plasma in manufacturing lifesaving medications.

“The decision recognizes the critical importance of the need for plasma in the manufacture of life-saving therapies for hundreds of thousands of people. We are excited to welcome back Mexican donors,” a spokesperson with CSL Behring, CSL’s U.S. subsidiary, said in a statement provided to ProPublica. A Grifols spokesperson said: “The decision is good news for the patients in the U.S. and worldwide who depend on the lifesaving medicines made from plasma.”  

The pharmaceutical companies are now scrambling to reorganize their centers along the border after the ban on Mexican donors had prompted layoffs of employees in a reduction in operating hours. Grifols announced it would provide buses beginning today to transport donors from the U.S.-Mexican border to its plasma centers. The Mexican newspaper Diario Frontera posted a picture of people sitting in line in the dark in front of a plasma center in Brownsville, Texas. 

People identified by Diario Frontera as Mexican donors line up in front of a plasma center in Brownsville, Texas, on Monday. (Facebook)

In the suit challenging the ban, the companies had acknowledged for the first time the extent to which Mexicans contribute to the world’s supply of blood plasma: Up to 10% of the blood plasma collected in the U.S. — millions of liters a year — came from Mexicans who crossed the border with visas that allow brief visits for business and tourism. The U.S. accounts for approximately 60% of plasma collected worldwide. It is the only country that allows people to donate plasma as many as 104 times a year.

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Correction

Sept. 27, 2022: This story originally incorrectly stated that the U.S. is the only country where donors are allowed to give plasma twice a week. At least one clinic in Canada also allows donations at that frequency.

by Vianna Davila, ProPublica and The Texas Tribune, and Davis Winkie, Military Times

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A Texas representative whose district includes one of the nation’s largest Army posts is calling for hearings to examine the military’s pretrial confinement system, which gives commanders the discretion to detain service members facing criminal charges ahead of trial.

Rep. Veronica Escobar, a Democrat who represents El Paso and sits on the House Armed Services Committee, said this month that an August investigation by ProPublica and The Texas Tribune raises serious questions about the use of pretrial confinement in the military. The news organizations’ first-of-its-kind analysis of nearly 8,400 Army courts-martial cases over the past decade revealed that soldiers accused of sexual assault are less than half as likely to be placed in pretrial confinement than those accused of offenses like drug use and distribution, disobeying an officer or burglary.

“Pretrial confinement had not been on my radar, so it was really eye-opening,” Escobar said of the investigation, which highlighted the case of Christian Alvarado, a private first class who avoided detention for months despite facing sexual assault accusations from multiple women. Alvarado, who has since been convicted of sexually assaulting two of those women, was a soldier at Fort Bliss. Escobar’s district includes the post.

Escobar, who is vice chair of the House Subcommittee on Military Personnel, said that during the congressional hearings she would like to explore ways to ensure all cases across the military are held to the same standard. She also said she reached out to the new commanding general of Fort Bliss to ask more about Alvarado’s case. Fort Bliss officials have declined to discuss with the news organizations why Alvarado was not initially put in pretrial confinement, saying they would not comment on internal deliberations.

The congresswoman has discussed the issue with Rep. Jackie Speier, D-Calif., who chairs the subcommittee. Speier shares Escobar’s concerns and believes pretrial confinement should be “part of the broader work of military justice reform,” her office said. A staffer in Speier’s office said the chair looks forward to learning more from military officials about pretrial confinement at a planned subcommittee hearing on Wednesday that will focus on the implementation of military justice reforms.

Army spokesperson Matt Leonard told Military Times that the rules governing pretrial confinement are “currently under revision.” He declined to provide details, referring questions to the Department of Defense. A DOD spokesperson said the military doesn’t have any “updates to announce at this time.”

News of the proposed revisions comes after publication of the ProPublica-Tribune investigation and of an article by Military Times that detailed another case in which a soldier was not placed in pretrial confinement despite multiple domestic violence allegations. The news organizations are partnering to cover aspects of the military justice system.

Under the current rules that are outlined in the Manual for Courts-Martial, commanders must determine if there’s good reason to believe a service member committed a crime and weigh whether the person is likely to flee before trial or engage in serious criminal misconduct. They must also first consider if less stringent restrictions are enough to keep service members out of trouble. Unlike in the civilian justice system, there is no bail in the military.

Rachel E. VanLandingham, a former Air Force judge advocate, said commanders should not control pretrial confinement because they are not trained as military attorneys. Commanders can override the advice of legal advisers in many situations.

“Because these commanders are F-16 pilots, these commanders are infantry officers, this is not their full-time job,” said VanLandingham, now a professor at Southwestern Law School in Los Angeles.

Congress last year overhauled much of the military justice system, stripping commanders of the power to decide whether or not to prosecute some felony-level crimes, including sexual assault. Amid pushback from military leaders, lawmakers allowed commanders to retain numerous powers, including the ability to place a service member in pretrial confinement.

Escobar had hoped to see broader reforms that would have removed commanders’ prosecutorial authority over all serious crimes, including robbery, assault and distribution of controlled substances. She said that taking away commanders’ control of pretrial confinement is “a possibility we absolutely should consider.”

“I completely understand the need for commanders to have the control that they want and have traditionally had,” Escobar said. “But I believe that we do need highly trained legal professionals who are making some of these decisions, because in my view, the status quo hasn’t worked. And in fact, it has failed soldiers.”

Despite facing sexual assault accusations from three women in 2020, Alvarado was not placed in pretrial confinement, according to the news organizations’ investigation. While being interviewed by an Army investigator about the first two allegations, Alvarado admitted that he continued to have sex with one of the women after she passed out. A month later, he sexually assaulted a third woman, which he admitted in text messages to the woman.

But Alvarado’s commanders did not place him in pretrial confinement until more women accused him of assault. A military judge later found him guilty of sexually assaulting two women and strangling one of those two women. He was sentenced to 18 years in a military prison and a dishonorable discharge. Alvarado’s case is currently under appeal. His appeals attorneys did not respond to a request for comment.

“That was shocking to me,” Escobar said. “When you have clear evidence of someone who is a repeat offender, that in and of itself, to me, merits pretrial confinement, and one of the things I do want to know about is why didn’t it happen?”

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