Feds knew about TYC abuse cases By STEVE McGONIGLE and DOUG J. SWANSON / The Dallas Morning News
dswanson@dallasnews.compublished the 5th of this monthFor four years, U.S. Justice Department attorneys heard the horror stories: Inmates in Texas juvenile prisons were being beaten and molested by the people who were supposed to protect them.
Federal watchdogs discreetly collected information and discussed fine legal points as the assaults piled up. More than 2,000 allegations of staff abusing inmates were confirmed by the Texas Youth Commission from January 2003 to December 2006.
The Justice Department ultimately declined to prosecute anyone at TYC or do anything to compel agency-wide reforms.
Attorneys said they were constrained by narrowly drawn laws and insufficient evidence. But there was also a political climate at Justice that discouraged prosecution of official misconduct cases, former department attorneys said.
The lack of federal action against TYC left oversight to state officials who had looked the other way as administrators used threats of longer sentences or the promise of college assistance to have sex with young prisoners.
"There is no reason why a vigorous Department of Justice could not have gone in with a broom and cleaned up the TYC," said U.S. Rep. Sheila Jackson Lee, a Houston Democrat. "They are just not interested, and that is a tragedy."
Ms. Jackson Lee, a member of the House Judiciary Committee and frequent critic of the Bush administration, called federal TYC investigations "shallow" and the department's lack of aggression "a clear dereliction of duty."
Justice Department statistics show a steady decline in almost every category of civil rights prosecutions under the Bush administration, according to an independent analysis by Syracuse University researchers who track the data.
In 2005, the year federal attorneys declined to prosecute sex abuse allegations at TYC's West Texas State School, there were only 20 prosecutions of law enforcement officers nationwide, the analysis showed. That was the lowest annual total in a decade.
The Justice Department sharply disputes suggestions it has been weak on civil rights enforcement and says the Syracuse study is flawed.
But critics contend what happened in Texas reflects the federal government's lack of political will to enforce civil rights laws, which provide a constitutional safety net to state inaction.
"It amounts to state-sanctioned child abuse," said David Utter, an attorney who directs the Juvenile Justice Project of Louisiana. "There is no question that the kids have a right to protection, a right to treatment. There is plenty of law to be enforced. One has to assume it's lack of will."
Questions about the federal government's handling of the TYC abuse scandal come amid the growing political controversy enveloping the Justice Department under Attorney General Al Gonzales. Skeptics question whether the federal decision-making was guided by an unwillingness to take on a politically explosive issue in his and the president's home state.
The Dallas Morning News spent three months reviewing documents obtained under state and federal open records laws and interviewing current and former law officers familiar with the Justice Department's handling of the TYC cases.
None of those interviewed said they knew of any political pressure to drop TYC investigations.
But two former career attorneys in the Civil Rights Division contended the department's political leadership shifted enforcement priorities to human-trafficking prosecutions because that would appeal more to the president's conservative religious base. One of the attorneys said there was also a desire not to anger the law-and-order segment of the Bush constituency with abuse of authority prosecutions.
The tone set by the political leadership prodded career attorneys to think strategically about which cases they pushed, said Albert Moskowitz, chief of the Criminal Section from 1999 to 2005.
He said his supervisor, Bradley Schlozman, left no doubt about his distaste for abuse of authority cases. Mr. Schlozman, a former deputy assistant attorney general, has emerged as a key figure in Congress' investigation of Justice Department politics.
"He sort of made that clear, and that had a sort of self-censoring effect on people," Mr. Moskowitz said. "People got awards not for doing police cases but for doing [human] trafficking cases."
The Justice Department said Mr. Schlozman had no role in TYC, and it did not make him available for comment. "In this case, as with all our cases, our decisions are driven by the facts and law, and not by politics," a department spokeswoman said.
However, Jeff Blackburn, a leading civil rights attorney from Amarillo, said federal civil rights prosecutions under Mr. Bush's two attorneys general, John Ashcroft and Mr. Gonzales, were "a complete joke."
"On the surface, it just appears they're making case-by-case decisions, and they always have an excuse to not take one. But when you start piecing all those case-by-case decisions together, you see a sweeping decision," Mr. Blackburn said. "The decision to prosecute on these cases is totally political and always discretionary."
Complaints start
Alison Brock, a former chief of staff for state Rep. Sylvester Turner, D-Houston, said she referred 25 abuse complaints about the TYC's Crockett State School to the Civil Rights Division beginning in January 2003. She did so, she said, because the state agency was taking insufficient action.
Among the complaints confirmed by TYC investigators: Guards had used excessive force on inmates, and staffers had misplaced records of inmates' abuse claims.
Ms. Brock called an attorney in the Justice Department's Special Litigation Section, which enforces civil laws barring unconstitutional conditions in state custodial facilities. That section has a lower evidentiary threshold for bringing cases than the division's criminal section and can, if necessary, file suit to enforce recommendations.
The section looks for "pattern or practice" violations. Because its attorneys do not have subpoena power, they typically rely on citizen complaints or other public sources to build a case to open a formal investigation.
"One of the things I continued to hear [from federal attorneys] was that we need more complaints so we can show that it's systemic," Ms. Brock said. "And at some point I just thought, well, what do you need? A tsunami?"
No civil rights investigation of the Crockett facility ever occurred.
In June 2004, another Special Litigation Section attorney began calling Randy Chance, a retired TYC inspector general. A month earlier, Mr. Chance had released a self-published book about abuses at TYC, titled Raped by the State.
At the lawyer's urging, he said, he talked to her about abuses of youth at several TYC facilities as well as overall problems within the agency.
Again, federal interest appeared to wane. After three or four lengthy telephone conversations over several months, Mr. Chance said, the contact with the lawyer stopped in September 2004. "I never heard from her again."
Another opportunity for federal involvement soon arose. This one involved the Evins unit in Edinburg.
Evins had a history of trouble.
In early 2003, a TYC investigator found that prison guards were smuggling drugs to inmates. Later that year, a TYC report told of "widespread disruption" at Evins caused by "gang-related problems throughout the campus."
That same month, Mr. Chance filed an investigative report that said Evins' inmate complaint process – by which youth could file grievances against guards and administrators – "has basically been undermined by staff."
Complaints were often confiscated or purposefully lost by TYC employees, Mr. Chance reported. Staff members "went out of their way to display their dislike of the complaint program, and invented means to disrupt and destroy the system."
On Oct. 27, 2004, the nurse manager at Evins told her supervisors: "There are too many injuries resulting from youth restraints [by guards] and altercations." Among the injuries she noted were broken teeth and fractured bones.
Less than a week later, Evins inmates rioted.
'The nicest facility'
Inmates later alleged in a still-pending federal civil suit that they were beaten and abused by guards who quelled the riot. One said he was handcuffed and then dropped "face first on the concrete floor." Another said he was handcuffed and thrown into a concrete pillar.
A former Evins employee, who asked to remain anonymous, said she contacted several police agencies and elected officials shortly after the riot to report abuse of inmates.
A Justice Department spokeswoman said the department did not begin looking into TYC until March 2005. But TYC records indicate that the FBI, the department's investigative arm, had shown an earlier interest.
TYC Executive Director Dwight Harris notified agency board members on Jan. 25, 2005, that FBI Agent Lars Swanson would be visiting Evins. "He is not investigating anything," Mr. Harris wrote, "but just wants to walk through and monitor because the Department of Justice received complaints about the facility."
Six days later, TYC Chief of Staff Joy Anderson e-mailed her senior managers: "We have learned the FBI agent's visit to the Evins facility last Wednesday went well. The agent told the facility folks that it was the nicest facility he has been in."
One week after the agent's visit, an Evins inmate filed this complaint, as summarized in TYC records and confirmed by TYC investigators: "Staff slammed [inmate's] face into the door five times. Staff picked [inmate] up, turned [inmate] to the left and slammed [inmate] another 2 or 3 times into the group room window. Staff scolded [inmate] to listen next time Staff spoke."
TYC records show that over the next 16 months the agency received several requests from attorneys with the Justice Department's criminal section for information about abuse investigations and disciplinary actions taken against employees.
The abuse continued. Among confirmed cases was a guard who "slammed on the brakes of the security van, causing [inmate] to slam into the cage." Another guard body-slammed an inmate and struck him on the head. A third guard threw an inmate to the ground and "proceeded to push his eyes into his face."
On May 22, 2006, TYC Assistant General Counsel Emily Helm wrote that she had been told by a criminal section attorney in Washington that "they were closing the cases on the 'Evins incident' ... with no further action."
Ms. Helm added, "It was felt like TYC handled the situation properly."
The following month, TYC officials were surprised to learn that the Justice Department had opened a separate civil investigation at Evins.
The department issued its findings in March 2007, less than a month after The News and The Texas Observer first reported on allegations of a sex abuse cover-up at TYC's West Texas State School in Pyote.
Justice officials concluded that "conditions at Evins violate the constitutional rights of youth residents."
Nearly three years after the riot, the Justice Department and TYC are still trying to agree on required improvements. The measures will apply only to Evins, not to the myriad abuses confirmed at other TYC prisons, which house inmates 10 to 21.
The Justice Department has proposed, among other things, that an independent monitor oversee the prison for four years. The civil action is similar to those the department has brought in recent years against juvenile detention centers in Florida, Georgia, Maryland, Mississippi and Tennessee.
A TYC spokesman said no agency employee has been prosecuted for abusing inmates at Evins. The only criminal charges brought were in state court against 15 inmates who rioted.
Porn and sex toys
Texas Ranger Brian Burzynski arrived at the West Texas State School in isolated Pyote on Feb. 23, 2005, a few hours after receiving a tip from a volunteer teacher.
As detailed in the Ranger's 229-page report, five teenage boys told Sgt. Burzynski that Ray E. Brookins, the prison's assistant superintendent, and John Paul Hernandez, the principal at the prison's school, had sexually abused them.
Mr. Brookins was accused of ordering students into his office late at night. There, he was alleged to have shown them pornographic movies and to have used a sex toy on at least one inmate. One inmate who resisted his advances told Sgt. Burzynski that he was shackled in an isolation cell for more than 13 hours.
Other inmates said that Mr. Hernandez had sexually abused them in locked closets and classrooms, sometimes in exchange for candy or promises of help on the outside. In one instance, he allegedly offered to seek college financial aid for one student in exchange for sex.
Within a day of beginning his inquiry, Sgt. Burzynski approached the FBI. He said he worried that the local prosecutor, Ward County District Attorney Randy Reynolds, lacked aggressiveness.
"I never had a high opinion [of him]," Sgt. Burzynski told The News. "This was not a case for him."
Mr. Reynolds did not respond to requests for comment.
After being contacted by the Ranger, the FBI notified U.S. Attorney Johnny Sutton's office in San Antonio. Bill Baumann, a senior prosecutor, was assigned. He called Robert Moossy, a criminal attorney in the Civil Rights Division in Washington.
On March 21, 2005, Mr. Baumann and Mr. Moossy arrived in Pyote to inspect possible crime scenes and interview alleged abuse victims. Over the next three weeks, the federal attorneys discussed where to convene a grand jury and executed a federal search warrant on Mr. Hernandez's residence.
To Sgt. Burzynski, the steps were evidence of the Justice Department's interest. "I thought, 'Holy smokes, these guys are thinking what I'm thinking,' " he said.
The Ranger was particularly impressed with Mr. Baumann. "He was one of the most enthusiastic prosecutors I've ever worked with. He flat said, 'We're going to the grand jury,' " Sgt. Burzynski said. But he cautioned, the Ranger said, " 'This is not my call. This is not my decision.' "
The prosecutor's biggest concern, Sgt. Burzynski said, seemed to be whether sufficient proof existed to show that sex between the victims and administrators was coerced. All but one of the teenagers was above the state's legal age of consent. And while some victims said Mr. Brookins had threatened to extend their sentences, some also told investigators that they had not resisted the advances and enjoyed the sex.
Ultimately, Mr. Baumann and Mr. Moossy concluded the evidence would not prove victims' constitutional rights to privacy and against cruel and unusual punishment were violated, a Justice Department source said.
In July 2005, Mr. Baumann told Sgt. Burzynski the U.S. attorney's office was dropping the case. The prosecutor was not happy, the Ranger recalled.
"You could hear it in his voice," Sgt. Burzynski said. "It was a blow to him, to me. ... In fact, I think his exact words [were] it feels like his heart had been cut out."
TYC officials in Pyote received a letter in September 2005 from Mr. Moskowitz at the Justice Department, saying there was insufficient evidence to prosecute a federal civil rights crime.
Mr. Baumann was not allowed to talk to reporters, his boss, Mr. Sutton, said.
Mr. Sutton, chairman of the U.S. attorney general's advisory committee and a Bush family friend, said the decision not to prosecute the Pyote case was made on legal grounds by Mr. Baumann and his supervisor.
"The bottom line is prosecutors have to follow cases where evidence leads them," Mr. Sutton said. "In this case, it was a fairly easy decision."
The case, he added, belonged in state court.
Defining bodily injury
Historically, the Justice Department has taken a conservative approach to civil rights prosecutions. It routinely declines to prosecute more than 95 percent of the complaints it receives each year.
The number of abuse of authority cases prosecuted as civil rights violations averages fewer than 60 per year. But during the Bush administration, prosecutions dropped sharply, according to the Transactional Records Access Clearinghouse at Syracuse University.
The year the Pyote case was declined, TRAC data showed that the Civil Rights Division's criminal section prosecuted 20 such cases, the lowest total in the Bush era.
Federal lawyers faced at least two obstacles to prosecuting TYC abuses, said one Justice Department attorney familiar with the case: the limited reach of civil rights law and department policies that forbade high-risk prosecutions.
The criminal statute most often employed by the Justice Department in such cases was originally intended to protect the civil rights of emancipated slaves. The law was rooted in a belief that state authorities would be reluctant to prosecute violators.
In a letter explaining why his office was declining prosecution of the Pyote case, Mr. Baumann, the federal prosecutor in San Antonio, cited two main problems.
Prosecutors had to prove Mr. Brookins and Mr. Hernandez willfully deprived TYC inmates of a constitutional right while acting in their capacities as state officials.
There also had to be proof the victims had suffered bodily injury, or conviction would be limited to a misdemeanor and a maximum of one year in prison.
The legal definition of bodily injury routinely used by federal prosecutors requires that the victims suffered physical pain.
"As you know, our interviews of the victims revealed that none sustained 'bodily injury,' " Mr. Baumann wrote to Sgt. Burzynski. "None of the victims claimed to have felt physical pain during the course of the sexual assaults which they described."
Civil rights law does not define bodily injury. The definition citing pain as a requirement is found in four other federal criminal laws. A fifth law, on domestic violence and stalking, defines bodily injury as "any act, except one done in self-defense, that results in physical injury or sexual abuse."
The definition of sexual abuse in the same chapter of the federal criminal code includes oral sex and masturbation – the alleged misconduct in the Pyote case.
Prosecutors believed the definition of sexual abuse in domestic violence law could not be applied to civil rights prosecutions, said a representative from Mr. Sutton's office.
In summer 2005, Mr. Baumann called the Ward County district attorney to tell him that he would have the responsibility for prosecuting the TYC case in Pyote, his boss said. District Attorney Reynolds, however, did nothing until early 2007, after several rounds of questions from lawmakers and reporters.
He then ceded the case to the state attorney general's office, which took it to a grand jury. Mr. Hernandez and Mr. Brookins were indicted in April on felony charges.
Two years after the Justice Department bowed out, the West Texas case still is awaiting trial.
Ms. Jackson Lee, whose congressional committee has oversight of the Justice Department, asked Attorney General Gonzales in March to launch a criminal investigation of TYC.
She, too, is still waiting.
"They frustrate justice, as far as I'm concerned. They certainly don't pursue justice," she said. "These children, they are still suffering."
