Saturday, July 4, 2020

Happy Fourth of July

Have a safe & fun holiday weekend!

Grassley, Walden Request Investigation into COVID-19 Nursing Home Deaths

Washington Senate Finance Committee Chairman Chuck Grassley (R-Iowa) and Energy and Commerce Committee Republican Leader Greg Walden (R-Ore.) today sent a letter to the Office of the Inspector General (OIG) at the Department of Health and Human Services (HHS) requesting the OIG initiate an investigation into whether or not five states – California, Michigan, New Jersey, New York and Pennsylvania – violated federal guidance in pressuring nursing home facilities to accept patients who tested positive for COVID-19. In the letter, the leaders cite guidance issued by the Centers for Disease Control and Prevention as well as the Centers for Medicare and Medicaid Services, suggesting state officials that pressured COVID-positive patients back into nursing homes may have risked the health and safety of some of our nation’s most vulnerable citizens.

“As reported by the media, the governors of a handful of states in which nursing homes struggled to provide safe and adequate care recently ordered nursing homes ‘to accept patients with active COVID-19 infections who were being discharged from hospitals.’ Governors issuing such directives include those in New York, New Jersey, California, Pennsylvania, and Michigan,” Grassley and Walden wrote.

“These state directives were issued as the COVID-19 fatality rate in nursing homes soared. In Pennsylvania, which reportedly has the seventh highest death rate for residents of these facilities, 69 percent of the state’s COVID-19 fatalities are now attributable to nursing and personal care homes. Similarly, in New Jersey, the rate was roughly 52 percent as of last month; in New York, at least 6,000 deaths are attributable to nursing homes; and in Michigan, where the governor’s directive has yet to be rescinded, 34 percent of COVID-19 deaths reportedly are linked to nursing homes.”

Grassley and Walden requested the OIG deliver its findings to Congress no later than September 30, 2020. Read the full letter HERE.

Full Article & Source:
Grassley, Walden Request Investigation into COVID-19 Nursing Home Deaths

Foundation fights auction by so-called Hawaiian princess

FILE - In this Oct. 25, 2019 file photo, Native Hawaiian heiress Abigail Kawananakoa poses outside a Honolulu courthouse. A foundation working to ensure that Kawananakoa’s fortune goes toward benefiting Native Hawaiian causes now wants to stop an auction of items belonging to the heiress some consider a princess. Attorneys for the foundation are asking a judge to stop the auction before a conservator to handle Kawananakoa’s finances is named.(AP Photo/Jennifer Sinco Kelleher,File)
By Jennifer Sinco Kelleher

HONOLULU — A foundation working to ensure a 94-year-old woman’s fortune goes to benefiting Native Hawaiian causes now wants to stop an auction of items belonging to the heiress some consider a princess.

Attorneys for the foundation are asking a judge to stop the auction until a conservator to handle Abigail Kawananakoa’s finances is named.

Her $215-million fortune has been tied up in a legal battle since 2017, when her longtime lawyer, Jim Wright, argued a stroke left her impaired. Kawananakoa said she’s fine and fired Wright. She then married her partner of 20 years, Veronica Gail Worth, who later took her last name.

A judge ruled in March that she needs a conservator because she’s unable to manage her property and business affairs. Another judge ruled month last month her conservatorship should be unlimited and set a hearing for July 21 to determine who that will be.

Some consider Kawananakoa a princess because she’s related to the family that ruled the islands before the overthrow of the Hawaiian kingdom in 1893.

She inherited her wealth as the great-granddaughter of James Campbell, an Irish businessman who made his fortune as a sugar plantation owner and one of Hawaii’s largest landowners.

In a petition filed in court last week, her foundation directors said it’s troubling some of the auction items appear culturally significant, including what looks like a kukui nut lamp used by Hawaiians before European contact that had a bid of $336 as of Tuesday. On Wednesday, the item was no longer listed and there was a message that read, “Several items were recently removed from the auction at the request of the Kawananakoa family.”

The foundation directors allege her wife is behind the auction, saying she has the “chutzpah to auction off Ms. Kawānanakoa’s ‘unique’ and culturally priceless belongings to any random stranger with a credit card.”

A lawyer for Kawananakoa’s wife didn’t immediately respond to a request for comment.

“These items are personal property from Ms. Kawananakoa’s Punaluu cottage, which she no longer visits,” her attorney, Bruce Voss, said in a statement. “All net proceeds from the sale will go into an account to help pay Ms. Kawananakoa’s personal expenses.”

Voss said Kawananakoa needs money to pay her expenses because Wright, her former lawyer and trustee, paid more than $3 million to his attorneys and $400,000 to the foundation’s attorneys.

“Miss Kawananakoa continues to be well funded and the money from the sale is small especially compared to the harm it will cause,” Wright said. “This sale is a cruel repudiation of her life’s work of recovering and protecting Hawaiian artifacts. It is not the first time a Hawaiian leader has been diminished. It needs to be the last.”

The auction is scheduled to close July 12.

“It is extremely troubling to find that an auction has been scheduled to sell items of her personal property prior to the appointment of her Conservator – this is what Hawaiians call hewa (‘wrong’),” Lilikalā Kame’eleihiwa, one of the foundation’s directors and a professor at the University of Hawaii’s Kamakakūokalani Center for Hawaiian Studies, said in a declaration to the petition. “Many of these items are on sale for a mere $10 each. Therefore, the pending auction should be stopped before these objects are lost forever to Ms.Kawānanakoa during her incapacity.”

Full Article & Source:
Foundation fights auction by so-called Hawaiian princess

See Also:
Judge mulls conservator for so-called Hawaiian princess

With Spotlight on Nursing Homes, CMS Announces New Chief Medical Officer, Promotions

by Maggie Flynn

The Centers for Medicare & Medicaid Services (CMS) announced several new appointments on Tuesday, including a new chief medical officer who will help with the agency’s efforts on nursing home safety and security. The appointment comes four months after the last person to hold the role departed the agency.

Dr. Lee Fleisher, who currently serves as a practicing anesthesiologist, was named CMS’ new chief medical officer and director of the Center for Clinical Standards and Quality (CCSQ). Fleisher also serves as a professor of medicine and chair of the Department of Anesthesiology and Critical Care at the Perelman School of Medicine at the University of Pennsylvania.

He succeeds Jean Moody-Williams, who will continue in her role as a CMS deputy director, according to the announcement from CMS administrator Seema Verma.

Dr. Kate Goodrich, who served as CMO at the agency until earlier this year, left CMS in February to take on a new role with the insurance giant Humana (NYSE: HUM).

“As Director of CCSQ, Dr. Fleisher will use his prior experience to provide overall leadership to CCSQ while focusing on CMS’s continued efforts to ensure the safety and security of America’s nursing homes, improving quality and safety in our nation’s healthcare facilities, and reducing burdensome regulations to give providers more time to care for their patients,” Verma wrote in the announcement.

In addition to Fleisher’s appointment, Dr. Michelle Schreiber was promoted to the deputy director for quality and value at CCSQ, where she will work to move the health care system to one focused on paying for results and outcomes over service and procedure volume, according to Verma. Schreiber joined CMS in 2018.

Karen Tritz, the current director of the CCSQ’s Quality Safety and Oversight Group Division of Continuing and Acute Care Providers, was promoted to the role of survey and operations group director, a role created by a reorganization and expansion of the CCSQ that occurred last year.

Tritz has also served as the director of the Division of Nursing Homes in CMS’ Quality and Safety Oversight Group, at least in 2018; in that role, she worked on issues related to surveys and nursing home reporting requirements.

“These CMS staff changes build upon a leadership team at the agency that has made tremendous progress in advancing several quality initiatives, including by eliminating 79 measures across quality payment programs in the hospital setting, inpatient psychiatric facilities, ambulatory surgery, cancer hospitals, and hospital outpatient departments through the Meaningful Measures initiative,” Verma wrote. “This resulted in projected savings of $128 million and an anticipated reduction of 3.3 million burden hours.”

Full Article & Source:
With Spotlight on Nursing Homes, CMS Announces New Chief Medical Officer, Promotions

Friday, July 3, 2020

How Nursing Homes Got Away With Hiding Bodies During the COVID-19 Outbreak

by Brooke Madubuonwu and Charlotte Lawrence

When COVID-19 first reached the U.S., the epicenter was a single nursing home in Washington State, where 45 people died. That nursing home outbreak was a precursor of what was to come. Ever since, the virus has been devastating nursing homes across the country, due in part to systemic mismanagement and discrimination against the people who live and work inside.

To date, deaths in nursing homes and other congregate care facilities account for almost half of all COVID-19 deaths in the country, despite these groups making up less than 1 percent of the population. Residents of these congregate facilities are dying from COVID-19 at 8.6 times the rate of the overall 75+ population.
If current trends hold, that means nearly 90,000 people living in nursing homes and other congregate care settings could die by October 1.

Grim as this projection is, the actual death toll to date is likely much higher than currently reported. It took the Department of Health and Human Services (HHS) months after declaring COVID-19 a national emergency to start requiring nursing homes to report deaths and infections despite ample evidence that these facilities were at high risk. Even now, nursing homes are only required to report data from May 8 onward. HHS doesn’t require other congregate settings for people with disabilities, such as psychiatric homes, to report at all. This lack of transparency, in addition to the government’s systemic mismanagement of nursing homes and other congregate settings, has helped create the crisis we see today.

In some cases, facilities have not only failed to report, but have actively hidden deaths from residents, families, and the government. For example, a nursing home in the Harlem neighborhood of New York City hid 26 COVID-related deaths from the state by covertly shipping bodies out of the facility. At a nursing home in New Jersey, 17 bodies were packed into a shed and later crowded into a morgue meant to house only four bodies. Other stories emerged of residents’ families being left in the dark about whether loved ones were dead or alive.
While HHS has lagged in collecting data, states can independently choose to require reporting and publicize this information. But too often, states are slow to report, and the data is often piecemeal and insufficient for analyzing the full scale of the pandemic.

As of June 29, only 41 states report deaths in nursing homes, and the level of detail varies from state to state. Some states offer only state or county totals (such as Arkansas, Indiana, Vermont, and others) while others break down data by facility (including North Carolina, West Virginia, and Nevada). Only 12 states go as far as naming facilities, reporting both cases and deaths, and disaggregating between residents and staff. Disaggregating data in this manner allows us to more accurately measure the impact on various groups of people. Residents are mostly seniors and all are people with disabilities. Staff are disproportionately people of color, women, and low-income. All of these demographic variables are relevant and integral to any adequate public health response.  

Even when states do report deaths and infections in nursing homes, most do not offer critical demographic data. This information is essential for assessing the impact of COVID-19 on different communities and demographic groups and facilitating our response. Yet only two states — Mississippi and Iowa — report the demographics of residents or staff who have tested positive or died.

People with disabilities and the people who work with them deserve to be counted. States can and should modify current policies to collect and publicize vital data while maintaining privacy standards. Last week, the ACLU filed a petition calling on HHS to do its job to address this crisis — and its job includes collecting and reporting full data from facilities that receive Medicaid or Medicare dollars.

The government needs good data to adequately respond to COVID-19. Data helps to inform where to investigate, where to channel resources, and what policies and practices to adopt. At the individual level, data helps people decide which facilities to live in and which to avoid. And in the long run, data can propel change to ensure this crisis never happens again.
The first step to change the system is to get to the truth. HHS must tell the truth about what is happening in the nursing homes and other congregate settings for people with disabilities that it oversees and funds with our taxpayer dollars.

Maps reflect public data reporting as of 06/29/2020. Links to state-level data sources available here.

This piece is part of a series, read the previous entry here:

Full Article & Source:

Scathing report details "baffling" errors at veterans home where 76 have died during virus outbreak

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The leadership of a home for aging veterans in Massachusetts where nearly 80 residents sickened with the coronavirus have died packed dementia patients into a crowded unit as the virus spread, investigators said in a report released Wednesday. The move was one of several "utterly baffling" decisions that helped the disease run rampant, the report said.

The superintendent of the Holyoke Soldiers' Home was not qualified to run a long-term care facility and "substantial errors and failures" he and his team made likely contributed to the high death toll there, investigators found. Among them was a decision prompted by staffing shortages to combine two locked dementia units, both of which already housed some residents with the virus.
Virus Outbreak Soldiers Home
Flags and wreaths honor veterans, April 28, 2020, on the grounds of the Soldiers' Home in Holyoke, Mass. Rodrique Ngowi / AP
"Rather than isolating those with the disease from those who were asymptomatic - a basic tenet of infection control - the consolidation of these two units resulted in more than 40 veterans crowded into a space designed to hold 25. This overcrowding was the opposite of infection control; instead, it put those who were asymptomatic at even greater risk of contracting COVID-19," the report said.

CBS Boston reports that staff called the move "total pandemonium" and "a nightmare."

A recreational therapist said she felt like she was "walking (the veterans) to their death," while a social worker "felt it was like moving the concentration camp – we were moving these unknowing veterans off to die."

When a social worker raised concerns about the move, the chief nursing officer said "it didn't matter because (the veterans) were all exposed anyway and there was not enough staff to cover both units," the report said.  A nurse said the packed dementia unit looked "like a battlefield tent where the cots are all next to each other."

A healthcare administrator sent in three days later said it looked like "a war zone" and some veterans were unclothed and "some obviously in the process of dying from COVID-19."

As the virus took hold, leadership shifted from trying to prevent its spread, "to preparing for the deaths of scores of residents," the report said. On the day the veterans were moved, more than a dozen additional body bags were sent to the combined dementia unit, investigators said. The next day, a refrigerated truck to hold bodies that wouldn't fit in the home's morgue arrived, the report said.

Since March 1, 76 veterans who contracted COVID-19 at the home have died, officials said. Another 84 veterans and more than 80 staff have also tested positive.

The first veteran tested positive March 17. Even though he had been showing symptoms for weeks, staff "did nothing to isolate" him until his test came back positive, allowing him to remain with three roommates, wander the unit and spend time in a common room, investigators said.

An attorney for the superintendent, Bennett Walsh, said they dispute many of the investigation's findings and are "disappointed that the report contains many baseless accusations that are immaterial to the issues under consideration." The lawyer said in an emailed statement that "Walsh reached out for help when the crisis erupted" and sought National Guard assistance.

"The failure of the Commonwealth to affirmatively respond to that request contributed to many of the problems outlined in the report," the attorney, William Bennett, said.

Walsh was placed on administrative leave March 30 and the CEO of Western Massachusetts Hospital, Val Liptak, took over operations.

Susan Kenney, whose 78-year-old father Charles Lowell died in April after contracting the virus at the home, said she was horrified as she read details about veterans being denied basic care.
Virus Outbreak Veterans Home
An image of veteran Charles Lowell is projected onto the home he shared with his wife, Alice, for 30 years as she stands at left with her daughter, Susan Kenney, in Hardwick, Mass. Saturday, May 2, 2020. Lowell, a U.S. Air Force veteran and resident of the Soldier's Home in Holyoke, Mass., died from the COVID-19 virus at the age of 78. David Goldman / AP
"Veterans that fought for our country just put together like cattle, it's unacceptable, it's horrible," Kenney told CBS Boston. "This can never happen again."

The Air Force veteran would have been 79 Monday. Susan Kenney told the station that her his death "was preventable for sure."

The report said officials with the Department of Veterans Services were aware of Walsh's "shortcomings," but failed to do enough about it. The chief of staff for Secretary of Veterans' Services Francisco Urena told investigators they thought Walsh was "in over his head" and did not spend enough time at the home. But Urena allowed Walsh to remain in his job.

Urena told reporters late Tuesday he was asked to resign ahead of the release of the report.

"I'm very sorry," Urena told WCVB-TV. "I tried my best."

Republican Gov. Charlie Baker, who hired former federal prosecutor Mark Pearlstein to conduct the investigation, called the details in the report "nothing short of gut-wrenching." Baker acknowledged that his administration did not properly oversee Holyoke or the home's superintendent.

"The loss of life is difficult to even think or speak about. The events that took place at the Holyoke Soldiers' Home in March are truly horrific and tragic," Baker told reporters at a news conference.

Massachusetts Attorney General Maura Healey is also investigating to determine if legal action is warranted, she said. And the U.S. attorney's office in Massachusetts and Department of Justice's Civil Rights Division are looking into whether the home violated residents' rights by failing to provide them proper medical care.

Full Article & Source:
Scathing report details "baffling" errors at veterans home where 76 have died during virus outbreak

Pa. Senate committee holds hearing on virus and nursing home impacts

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HARRISBURG, Pa. - Even though the toughest coronavirus restrictions are being lifted in our area Friday, there's still a lot of concern about vulnerable people becoming infected.

The Pennsylvania Senate Aging and Youth Committee held a hearing Thursday on COVID-19's impact on nursing homes and long-term care facilities.

Health officials, lawmakers, and health care providers joined in virtually.

Senators said many families don't have the resources to take their loved ones out of nursing homes. They wanted to know what Pennsylvania's Health Department is doing to help keep those relatives safe.

"What we did not have the ability to do is what we're doing now, which is this large population-based testing of every staff and every patient, to try and pick up those asymptomatic carriers that are bringing it into the facility in the first place," said state Health Secretary Dr. Rachel Levine at the hearing.

State health officials say more than 4400 coronavirus-related deaths were in nursing homes. That's nearly 70% of the statewide death toll.

At least another 17,400 nursing home residents tested positive for COVID-19.

Full Article & Source: 
Pa. Senate committee holds hearing on virus and nursing home impacts

Probation for woman who stole $250G from her mother

by Alex Rose

Bernadette Branson-Lawler
MEDIA COURTHOUSE — A Springfield woman was given five years of probation and ordered to pay more than $250,000 to the estate of her mother after pleading guilty Tuesday to a theft charge.

Bernadette Branson-Lawler, 55, of the first block of Meetinghouse Lane, was originally reported to have stolen $337,715 from her 78-year-old mother over a period of nearly seven years, according to a release from the Delaware County District Attorney’s Office issued Jan. 28, 2019.

Assistant District Attorney Erica Parham told  Common Pleas Court Judge Margaret Amoroso Wednesday that Branson-Lawler had repaid $208,134 of the total $253,285 restitution amount being sought.

She will continue making payments of $500 per month over the next five years to satisfy the remaining $45,151 under the negotiated guilty plea worked out by Parham and defense attorney Matthew Sedacca. Neither Branson-Lawler nor her attorney said anything prior to the sentence being handed down.

Detective Sgt. Anthony Ruggieri of the Delaware County District Attorney’s Office Criminal Investigation Division Senior Exploitation launched an investigation in September 2017 after law enforcement received information about the possible financial exploitation of a 78-year woman, according to the release. The victim, who is non-verbal and predeceased by her husband in August 2009, was residing in a secure unit of an assisted living facility for individuals with dementia, the release states.

Following the death of her husband, the victim appointed her daughter, Branson-Lawler, as her power of attorney. Branson-Lawler remained an agent for the victim until July 2013, when she petitioned the Orphan's Court of Delaware County to become guardian for her mother due to her diminished mental capacity and other health related issues, the release says. Branson-Lawler was appointed plenary guardian by the court until she was removed by the Orphan's Court in October 2017 and replaced by a court-appointed attorney.

Brandon-Lawler sold her mother’s house in Springfield for $269,000 in January 2013, then moved her mother to an assisted living facility, according to the release. In July 2017, Branson-Lawler failed to file the annual guardian's inventory and the annual reports of the person and the estate, as required by the Delaware County Orphan’s Court.

After failing to submit the required guardian paperwork and not appearing for court, a court-appointed attorney reviewed all of the victim’s financial records and discovered suspicious withdrawals made by Brandon-Lawler.

When questioned, Branson-Lawler admitted that she withdrew money from her mother’s accounts for personal expenses, such as her interior design business, her electric and insurance bills and gym membership. She also indicated she wrote herself checks, according to the release.

An investigation ensued and Branson-Lawler was ultimately charged with 21 counts of theft by unlawful taking, theft by deception and false impression, and receiving stolen property, all second-degree felony offenses. The remaining counts were dropped under the plea deal.

Parham indicated that the commonwealth would not object to termination of the probationary sentence early if Branson-Lawler completed making restitution payments early.

Full Article & Source:
Probation for woman who stole $250G from her mother

Thursday, July 2, 2020

Suffolk man sentenced for $3.9 million international fraud conspiracy targeting the elderly

NORFOLK, Va. – A Suffolk man was sentenced Monday to more than nine years in prison for his role in an international fraud conspiracy that stole more than $3.9 million from hundreds of victims.

Court documents say 44-year-old William Onyebuchi Ogbonna, who is originally from Nigeria and is now a naturalized United States citizen, spent at least three years conspiring with local, national and international conspirators to steal more than $3.9 million from unwitting victims.

The victims were subjects of lottery, inheritance, romance and real estate scams, among other types of fraud, and were tricked into sending money to dozens of bank accounts Ogbonna opened in his name, under the fake name “Donald Miller,” and in the name of different business entities he created to further the scheme.

Records say Ogbonna would take a percentage and then send the remaining money to Nigeria, China and other countries. The majority of victims were elderly and many became destitute as a result of Ogbonna and his conspirators’ actions.

“William Onyebuchi Ogbonna was an organizer and leader of a large, international conspiracy to defraud hundreds of victims, many of who were elderly, of millions of dollars,” said G. Zachary Terwilliger, U.S. Attorney for the Eastern District of Virginia. “Elder justice has been a priority for this office for the past two years and this case is proof positive of that commitment. We are combatting these scams through education and awareness, deterrence, and prosecution.”

Elder abuse is an intentional or negligent act by any person that causes harm or a serious risk of harm to an older adult. It is a term used to describe five subtypes of elder abuse: Physical abuse, financial fraud, scams and exploitation, caregiver neglect and abandonment, psychological abuse and sexual abuse.

Authorities say elder abuse affects at least 10% of older Americans every year.

Full Article & Source:
Suffolk man sentenced for $3.9 million international fraud conspiracy targeting the elderly

State nursing board executives falsified data in report to state auditor, report finds

By Wes Venteicher

Nurses work in pairs as they wait for patients for coronavirus testing at Cal Expo in Sacramento on Wednesday, April 15, 2020.

Read more here:
Executives at the state Board of Registered Nursing falsified data in reports to the California State Auditor to make it look like the board was properly managing nursing investigations when it wasn’t, the auditor announced Tuesday.

The board is responsible for investigating misconduct by nurses and can take disciplinary action including suspending nurses’ licenses. The auditor found in 2016 that the board was assigning too many cases to each of its investigators and that investigations were often taking more than three years, even in cases including allegations of patient harm.

The auditor determined the board should keep caseloads to 20 investigations per investigator.

When the nursing board hadn’t reached that number by November 2018, three executives hatched a “plan to deceive the state auditor,” according to Tuesday’s report.

The day they had to report the caseload number to auditors, the executives reassigned a bunch of cases to managers who don’t normally carry caseloads and to an investigator who was out on extended leave, according to the report.

The next day, while the auditor’s team was reviewing a report showing the caseload goal had been met, the executives started reversing the reassignments, according to the report.

“The serious and egregious nature of the executives’ overall behavior regarding this matter constituted gross misconduct,” the report states.

The report doesn’t identify the executives. One of the three has since left the board, according to the report.

The nursing board and the Department of Consumer Affairs are investigating and have placed a notice of investigation in the file of the executive who left, Russ Heimerich, a spokesman for the Business, Consumer Services and Housing Agency, which oversees the board and the department, said in an email.

The agency and the board are working with the auditor to determine the maximum number of cases investigators should be assigned, Heimerich said in the email.

“We will also begin a department-wide initiative to ensure that this can never happen again,” he said in the email.

The report suggests disciplining the executives and fining them up to $5,000.

A group of employees at the nursing board has been pushing for leadership changes at public meetings. In February, former executive director Joseph Morris resigned after women who worked with him accused him of sexual harassment.

Since November 2018, the investigators have maintained caseloads of as many as 26 cases, according to the report.

Full Article & Source:
State nursing board executives falsified data in report to state auditor, report finds

San Luis Obispo developer arrested for fraud and theft

Jeremy Pemberton
A local developer accused of securities fraud, financial elder abuse, and grand theft related to his attempt to garner investors for a proposed bowling alley and bar in San Luis Obispo was arrested on Tuesday, almost three months after a judge issued a warrant for his arrest.

Jeremy Pemberton is accused of fraudulently obtaining in excess of $500,000 from one victim and more than $200,000 from another. Pemberton allegedly misrepresented the amount of financing he had received from other investors and failed to disclose a default on the lease for 1144 Chorro Street in San Luis Obispo.

Pemberton is facing charges of two counts of securities fraud, one count of financial elder abuse, and two counts of grand theft. If convicted of all charges, Pemberton faces a prison sentence of up 16 years, four months in jail.

In 2014, Jeremy Pemberton and his twin brothers Joshua Pemberton began to solicit investors in their plan to turn the site of the San Luis Obispo Sports Authority into a bowling alley, restaurant and performance site for live music. Their goal was to open in late 2015.

At the time, San Luis Obispo city officials voted in favor of the brother’s plans even though they had been accused of fraud regarding similar proposals in Santa Barbara County. The twins’ prior business deals resulted in claims of fraud and a bankruptcy with $1.4 million in unpaid wages, debts and charity pledges that were never fulfilled.

Pemberton’s arraignment hearing is scheduled for July 8 at the San Luis Obispo County Superior Court.

Full Article & Source:
San Luis Obispo developer arrested for fraud and theft

Wednesday, July 1, 2020

Thousands of U.S. judges who broke laws or oaths remained on the bench

In the past dozen years, state and local judges have repeatedly escaped public accountability for misdeeds that have victimized thousands. Nine of 10 kept their jobs, a Reuters investigation found – including an Alabama judge who unlawfully jailed hundreds of poor people, many of them Black, over traffic fines.


Judge Les Hayes once sentenced a single mother to 496 days behind bars for failing to Two pay traffic tickets. The sentence was so stiff it exceeded the jail time Alabama allows for negligent homicide.

Marquita Johnson, who was locked up in April 2012, says the impact of her time in jail endures today. Johnson’s three children were cast into foster care while she was incarcerated. One daughter was molested, state records show. Another was physically abused.

“Judge Hayes took away my life and didn’t care how my children suffered,” said Johnson, now 36. “My girls will never be the same.”

Fellow inmates found her sentence hard to believe. “They had a nickname for me: The Woman with All the Days,” Johnson said. “That’s what they called me: The Woman with All the Days. There were people who had committed real crimes who got out before me.”

In 2016, the state agency that oversees judges charged Hayes with violating Alabama’s code of judicial conduct. According to the Judicial Inquiry Commission, Hayes broke state and federal laws by jailing Johnson and hundreds of other Montgomery residents too poor to pay fines. Among those jailed: a plumber struggling to make rent, a mother who skipped meals to cover the medical bills of her disabled son, and a hotel housekeeper working her way through college.

Hayes, a judge since 2000, admitted in court documents to violating 10 different parts of the state’s judicial conduct code. One of the counts was a breach of a judge’s most essential duty: failing to “respect and comply with the law.”

DAUGHTERS ABUSED: When Marquita Johnson couldn’t afford to pay traffic fines that had accumulated for some eight years, Judge Les Hayes sentenced her to more than a year in jail. Her daughters were cast into foster care. One was physically abused, court records show, and another was molested. REUTERS/Chris Aluka Berry
Despite the severity of the ruling, Hayes wasn’t barred from serving as a judge. Instead, the judicial commission and Hayes reached a deal. The former Eagle Scout would serve an 11-month unpaid suspension. Then he could return to the bench.

Until he was disciplined, Hayes said in an interview with Reuters, “I never thought I was doing something wrong.”

This week, Hayes is set to retire after 20 years as a judge. In a statement to Reuters, Hayes said he was “very remorseful” for his misdeeds.

Community activists say his departure is long overdue. Yet the decision to leave, they say, should never have been his to make, given his record of misconduct.

“He should have been fired years ago,” said Willie Knight, pastor of North Montgomery Baptist Church. “He broke the law and wanted to get away with it. His sudden retirement is years too late.”

Hayes is among thousands of state and local judges across America who were allowed to keep positions of extraordinary power and prestige after violating judicial ethics rules or breaking laws they pledged to uphold, a Reuters investigation found.

Judges have made racist statements, lied to state officials and forced defendants to languish in jail without a lawyer – and then returned to the bench, sometimes with little more than a rebuke from the state agencies overseeing their conduct.

Recent media reports have documented failures in judicial oversight in South Carolina, Louisiana and Illinois. Reuters went further.

In the first comprehensive accounting of judicial misconduct nationally, Reuters reviewed 1,509 cases from the last dozen years – 2008 through 2019 – in which judges resigned, retired or were publicly disciplined following accusations of misconduct. In addition, reporters identified another 3,613 cases from 2008 through 2018 in which states disciplined wayward judges but kept hidden from the public key details of their offenses – including the identities of the judges themselves.

All told, 9 of every 10 judges were allowed to return to the bench after they were sanctioned for misconduct, Reuters determined. They included a California judge who had sex in his courthouse chambers, once with his former law intern and separately with an attorney; a New York judge who berated domestic violence victims; and a Maryland judge who, after his arrest for driving drunk, was allowed to return to the bench provided he took a Breathalyzer test before each appearance.

The news agency’s findings reveal an “excessively” forgiving judicial disciplinary system, said Stephen Gillers, a law professor at New York University who writes about judicial ethics. Although punishment short of removal from the bench is appropriate for most misconduct cases, Gillers said, the public “would be appalled at some of the lenient treatment judges get” for substantial transgressions.

Among the cases from the past year alone:

In Utah, a judge texted a video of a man’s scrotum to court clerks. He was reprimanded but remains on the bench.

In Indiana, three judges attending a conference last spring got drunk and sparked a 3 a.m. brawl outside a White Castle fast-food restaurant that ended with two of the judges shot. Although the state supreme court found the three judges had “discredited the entire Indiana judiciary,” each returned to the bench after a suspension.

In Texas, a judge burst in on jurors deliberating the case of a woman charged with sex trafficking and declared that God told him the defendant was innocent. The offending judge received a warning and returned to the bench. The defendant was convicted after a new judge took over the case.
“There are certain things where there should be a level of zero tolerance,” the jury foreman, Mark House, told Reuters. The judge should have been fined, House said, and kicked off the bench. “There is no justice, because he is still doing his job.”

Judicial misconduct specialists say such behavior has the potential to erode trust in America’s courts and, absent tough consequences, could give judges license to behave with impunity.

“When you see cases like that, the public starts to wonder about the integrity and honesty of the system,” said Steve Scheckman, a lawyer who directed Louisiana’s oversight agency and served as deputy director of New York’s. “It looks like a good ol’ boys club.”

That’s how local lawyers viewed the case of a longtime Alabama judge who concurrently served on the state’s judicial oversight commission. The judge, Cullman District Court’s Kim Chaney, remained on the bench for three years after being accused of violating the same nepotism rules he was tasked with enforcing on the oversight commission. In at least 200 cases, court records show, Judge Chaney chose his own son to serve as a court-appointed defense lawyer for the indigent, enabling the younger Chaney to earn at least $105,000 in fees over two years.

NEPOTISM BY WATCHDOG: While serving on a state board on judicial misconduct, Judge Kim Chaney violated the very nepotism rules he enforced on other judges, appointing his own son to more than 200 cases in his hometown.
In February, months after Reuters repeatedly asked Chaney and the state judicial commission about those cases, he retired from the bench as part of a deal with state authorities to end the investigation.
Tommy Drake, the lawyer who first filed a complaint against Chaney in 2016, said he doubts the judge would have been forced from the bench if Reuters hadn’t examined the case.

“You know the only reason they did anything about Chaney is because you guys started asking questions,” Drake said. “Otherwise, he’d still be there.”

Bedrock of American justice

State and local judges draw little scrutiny even though their courtrooms are the bedrock of the American criminal justice system, touching the lives of millions of people every year.

The country’s approximately 1,700 federal judges hear 400,000 cases annually. The nearly 30,000 state, county and municipal court judges handle a far bigger docket: more than 100 million new cases each year, from traffic to divorce to murder. Their titles range from justice of the peace to state supreme court justice. Their powers are vast and varied – from determining whether a defendant should be jailed to deciding who deserves custody of a child.

‘GUT INSTINCT’: Judge Les Hayes served on the Montgomery Municipal Court in Alabama since 2000. “With my years of experience, I can tell when someone is being truthful with me,” he told Reuters. Courtesy Montgomery Advertiser/Handout via REUTERS
Each U.S. state has an oversight agency that investigates misconduct complaints against judges. The authority of the oversight agencies is distinct from the power held by appellate courts, which can reverse a judge’s legal ruling and order a new trial. Judicial commissions cannot change verdicts. Rather, they can investigate complaints about the behavior of judges and pursue discipline ranging from reprimand to removal.

Few experts dispute that the great majority of judges behave responsibly, respecting the law and those who appear before them. And some contend that, when judges do falter, oversight agencies are effective in identifying and addressing the behavior. “With a few notable exceptions, the commissions generally get it right,” said Keith Swisher, a University of Arizona law professor who specializes in judicial ethics.

Others disagree. They note that the clout of these commissions is limited, and their authority differs from state to state. To remove a judge, all but a handful of states require approval of a panel that includes other judges. And most states seldom exercise the full extent of those disciplinary powers.
As a result, the system tends to err on the side of protecting the rights and reputations of judges while overlooking the impact courtroom wrongdoing has on those most affected by it: people like Marquita Johnson.

Reuters scoured thousands of state investigative files, disciplinary proceedings and court records from the past dozen years to quantify the personal toll of judicial misconduct. The examination found at least 5,206 people who were directly affected by a judge’s misconduct. The victims cited in disciplinary documents ranged from people who were illegally jailed to those subjected to racist, sexist and other abusive comments from judges in ways that tainted the cases.

The number is a conservative estimate. The tally doesn’t include two previously reported incidents that affected thousands of defendants and prompted sweeping reviews of judicial conduct.
“If we have a system that holds a wrongdoer accountable but we fail to address the victims, then we are really losing sight of what a justice system should be all about.”

Arthur Grim, retired judge
In Pennsylvania, the state examined the convictions of more than 3,500 teenagers sentenced by two judges. The judges were convicted of taking kickbacks as part of a scheme to fill a private juvenile detention center. In 2009, the Pennsylvania Supreme Court appointed senior judge Arthur Grim to lead a victim review, and the state later expunged criminal records for 2,251 juveniles. Grim told Reuters that every state should adopt a way to compensate victims of judicial misconduct.

“If we have a system that holds a wrongdoer accountable but we fail to address the victims, then we are really losing sight of what a justice system should be all about,” Grim said.

In another review underway in Ohio, state public defender Tim Young is scrutinizing 2,707 cases handled by a judge who retired in 2018 after being hospitalized for alcoholism. Mike Benza, a law professor at Case Western Reserve University whose students are helping identify victims, compared the work to current investigations into police abuse of power. “You see one case and then you look to see if it's systemic,” he said.

The review, which has been limited during the coronavirus pandemic, may take a year. But Young said the time-consuming task is essential because “a fundamental injustice may have been levied against hundreds or thousands of people.”

‘Special rules for judges’

Most states afford judges accused of misconduct a gentle kind of justice. Perhaps no state better illustrates the shortcomings of America’s system for overseeing judges than Alabama.

As in most states, Alabama’s nine-member Judicial Inquiry Commission is a mix of lawyers, judges and laypeople. All are appointed. Their deliberations are secret and they operate under some of the most judge-friendly rules in the nation.

Alabama’s rules make even filing a complaint against a judge difficult. The complaint must be notarized, which means that in theory, anyone who makes misstatements about the judge can be prosecuted for perjury. Complaints about wrongdoing must be made in writing; those that arrive by phone, email or without a notary stamp are not investigated, although senders are notified why their complaints have been summarily rejected. Anonymous written complaints are shredded.

These rules can leave lawyers and litigants fearing retaliation, commission director Jenny Garrett noted in response to written questions.

“It’s a ridiculous system that protects judges and makes it easy for them to intimidate anyone with a legitimate complaint,” said Sue Bell Cobb, chief justice of the Alabama Supreme Court from 2007 to 2011. In 2009, she unsuccessfully championed changes to the process and commissioned an American Bar Association report that offered a scathing review of Alabama's rules.

In most other states, commission staff members can start investigating a judge upon receiving a phone call or email, even anonymous ones, or after learning of questionable conduct from a news report or court filing. In Alabama, staff will not begin an investigation without approval from the commission itself, which convenes about every seven weeks.

By rule, the commission also must keep a judge who is under scrutiny fully informed throughout an investigation. If a subpoena is issued, the judge receives a simultaneous copy, raising fears about witness intimidation. If a witness gives investigators a statement, the judge receives a transcript. In the U.S. justice system, such deference to individuals under investigation is extremely rare.
“It’s a ridiculous system that protects judges and makes it easy for them to intimidate anyone with a legitimate complaint.”

Sue Bell Cobb, former chief justice of the Alabama Supreme Court
“Why the need for special rules for judges?” said Michael Levy, a Washington lawyer who has represented clients in high-profile criminal, corporate, congressional and securities investigations. “If judges think it’s fair and appropriate to investigate others for crimes or misconduct without providing those subjects or targets with copies of witness statements and subpoenas, why don’t judges think it’s fair to investigate judges in the same way?”

Alabama judges also are given an opportunity to resolve investigations confidentially. Reuters interviews and a review of Alabama commission records show the commission has met with judges informally at least 19 times since 2011 to offer corrective “guidance.” The identities of those judges remain confidential, as does the conduct that prompted the meetings. “Not every violation warrants discipline,” commission director Garrett said.

Since 2008, the commission has brought 21 public cases against judges, including Hayes, charging two this year.

Two of the best-known cases brought by the commission involved Roy Moore, who was twice forced out as chief justice of the Alabama Supreme Court for defying federal court orders.
Another Alabama justice fared better in challenging a misconduct complaint, however. Tom Parker, first elected to the state’s high court in 2004, pushed back when the commission investigated him in 2015 for comments he made on the radio criticizing the U.S. Supreme Court's decision legalizing gay marriage.

Parker sued the commission in federal court, arguing the agency was infringing on his First Amendment rights. He won. Although the commission had dropped its investigation before the ruling, it was ordered to cover Parker’s legal fees: $100,000, or about a fifth of the agency’s total annual budget.

In 2018, the people of Alabama elected Parker chief justice.

These days, Parker told Reuters, Alabama judges and the agency that oversees them enjoy “a much better relationship” that’s less politically tinged. “How can I say it? It’s much more respectful between the commission and the judges now.”

David Sachar, director of the Arkansas Judicial Discipline & Disability Commission: “People can be scared for their life.”

“Gut instinct”

Montgomery, Alabama has a deep history of racial conflict, as reflected in the clashing concepts emblazoned on the city’s great seal: “Cradle of the Confederacy” and “Birthplace of the Civil Rights Movement.”

Jefferson Davis was inaugurated here as Confederate president after the South seceded from the Union in 1861, and his birthday is a state holiday. As was common throughout the South, the city was the site of the lynchings of Black men, crimes now commemorated at a national memorial based here. Police arrested civil rights icon Rosa Parks here in 1955 for refusing to give up her seat on a city bus to a white passenger.

Today, about 60% of Montgomery’s 198,000 residents are Black, U.S. census records show. Even so, Black motorists account for about 90% of those charged with unpaid traffic tickets, a Reuters examination of court records found. Much of Judge Hayes’ work in municipal court involved traffic cases and the collection of fines. Hayes, who is white, told Reuters that “the majority of people who come before the court are Black.”

City officials have said that neither race nor economics have played a role in police efforts to enforce outstanding warrants, no matter how minor the offense.

CONFLICTING HISTORY: The great seal of Montgomery on the entrance to the city council chamber. Reuters/John Shiffman
In April 2012, Marquita Johnson was among them. Appearing before Hayes on a Wednesday morning, the 28-year-old single mother pleaded for a break.

Johnson had struggled for eight years to pay dozens of tickets that began with a citation for failing to show proof of insurance. She had insurance, she said. But when she was pulled over, she couldn’t find the card to prove it.

Even a single ticket was a knockout blow on her minimum-wage waitress salary. In addition to fines, the court assessed a $155 fee to every ticket. Court records show that police often issued her multiple tickets for other infractions during every stop – a practice some residents call “stacking.”

Under state law, failing to pay even one ticket can result in the suspension of a driver’s license. Johnson’s decision to keep driving nonetheless – taking her children to school or to doctor visits, getting groceries, going to work – led to more tickets and deeper debt.

“I told Judge Hayes that I had lost my job and needed more time to pay,” she recounted.

By Hayes’ calculation, Johnson owed more than $12,000 in fines. He sentenced Johnson to 496 days in jail. Hayes arrived at that sentence by counting each day in jail as $25 toward the outstanding debt. A different judge later determined that Johnson actually owed half the amount calculated by Hayes, and that Hayes had incorrectly penalized her over fines she had already paid. To shave time off her sentence, Johnson washed police cars and performed other menial labor while jailed.

Reiko Callner, director of the Washington state Commission on Judicial Conduct: Judges have unique power.
Hayes told Reuters that he generally found pleas of poverty hard to believe. “With my years of experience, I can tell when someone is being truthful with me,” Hayes said. He called it “gut instinct” -- though he added, in a statement this week, that he also consulted “each defendant's criminal and traffic history as well as their history of warrants and failures to appear in court.”

Of course, the law demands more of a judge than a gut call. In a 1983 landmark decision, Bearden v. Georgia, the U.S. Supreme Court ruled that state judges are obligated to hold a hearing to determine whether a defendant has “willfully” chosen not to pay a fine.

According to the state’s judicial oversight commission, “Judge Hayes did not make any inquiry into Ms. Johnson’s ability to pay, whether her non-payment was willful.”

From jail, “I prayed to return to my daughters,” Johnson said. “I was sure that someone would realize that Hayes had made a mistake.”

She said her worst day in jail was her youngest daughter’s 3rd birthday. From a jail telephone, she tried to sing “Happy Birthday” but slumped to the floor in grief.

“She was choking up and crying,” said Johnson’s mother, Blanche, who was on the call. “She was devastated to be away from her children so long.”

When Johnson was freed after 10 months in jail, she learned that strangers had abused her two older children. One is now a teenager; the other is in middle school. “My kids will pay a lifetime for what the court system did to me,” Johnson said. “My daughters get frantic when I leave the house. I know they’ve had nightmares that I’m going to disappear again.”

Six months after Johnson’s release, Hayes jailed another single Black mother. Angela McCullough, then 40, had been pulled over driving home from Faulkner University, a local community college where she carried a 3.87 grade point average. As a mother of four children, including a disabled adult son, she had returned to college to pursue her dream of becoming a mental health counselor.

Police ticketed her for failing to turn on her headlights. After a background check, the officer arrested McCullough on a warrant for outstanding traffic tickets. She was later brought before Hayes.

“I can’t go to jail,” McCullough recalled pleading with the judge. “I’m a mother. I have a disabled son who needs me.”

Hayes sentenced McCullough to 100 days in jail to pay off a court debt of $1,350, court records show. Her adult son, diagnosed with schizophrenia, was held in an institution until her release.

HOPES DASHED: Before she was pulled over for failing to turn on her headlights, Angela McCullough carried a 3.87 grade point average at a local community college. Jailed by Judge Les Hayes, she put her tuition money toward fines she owed. “I don’t think I’ll ever be able to afford to go back” to college, she says today. REUTERS/Chris Aluka Berry
McCullough said she cleaned jail cells in return for time off her sentence. One day, she recalled, she had to clean a blood-soaked cell where a female inmate had slit her wrists.

She was freed after 20 days, using the money she saved for tuition to pay off her tickets, she said.

Jail was the darkest chapter of her life, McCullough said, a place where “the devil was trying to take my mind.” Today, she has abandoned her pursuit of a degree. “I don’t think I’ll ever be able to afford to go back.”

A clear sign that something was amiss in Montgomery courts came in November 2013, when a federal lawsuit was filed alleging that city judges were unlawfully jailing the poor. A similar suit was filed in 2014, and two more civil rights cases were filed in 2015. Johnson and McCullough were plaintiffs.

The lawsuits detailed practices similar to those that helped fuel protests in Ferguson, Missouri, after a white police officer killed a Black teenager in 2014. In a scathing report on the origins of the unrest, the U.S. Department of Justice exposed how Ferguson had systematically used traffic enforcement to raise revenue through excessive fines, a practice that fell disproportionately hard on Black residents.

“Montgomery is just like Ferguson,” said Karen Jones, a community activist and founder of a local educational nonprofit. Jones has led recent protests in Montgomery in the wake of the killing of George Floyd, the Black man whose death under the knee of a cop in Minneapolis set off worldwide calls for racial justice.

In Montgomery, “everybody knew that the police targeted Black residents. And I sat in Hayes’ court and watched him squeeze poor people for more money, then toss them in jail where they had to work off debts with free labor to the city.”

It was years before the flurry of civil rights lawsuits against Hayes and his fellow judges had much impact on the commission. The oversight agency opened its Hayes case in summer 2015, nearly two years after plaintiffs’ lawyers in the civil rights cases filed a complaint with the body. Hayes spent another year and a half on the bench before accepting the suspension.

OUTRAGED: Community activist Karen Jones says she watched Judge Les Hayes “squeeze poor people for more money, then toss them in jail where they had to work off debts with free labor to the city.” REUTERS/Michael Berens
Under its own rules, the commission could have filed a complaint and told its staff to investigate Hayes at any time. Commission director Garrett said she is prohibited by law from explaining why the commission didn’t investigate sooner. The investigation went slowly, Garrett said, because it involved reviewing thousands of pages of court records. The commission also was busy with other cases from 2015 to early 2017, Garrett said, issuing charges against five judges, including Moore.

“Slap in the face”

A few months after Judge Hayes’ suspension ended, his term as a municipal judge was set to expire. So, the Montgomery City Council took up the question of the judge’s future on March 6, 2018. On the agenda of its meeting: whether to reappoint Hayes to another four-year term.

Hayes wasn’t in the audience that night, but powerful supporters were. The city’s chief judge, Milton Westry, told the council that Hayes and his colleagues have changed how they handled cases involving indigent defendants, “since we learned a better way of doing things.” In the wake of the suits, Westry said, Hayes and his peers complied with reforms that required judges to make audio recordings of court hearings and notify lawyers when clients are jailed for failing to pay fines.

As part of a settlement in the civil case, the city judges agreed to implement changes for at least two years. Those reforms have since been abandoned, Reuters found. Both measures were deemed too expensive, Hayes and city officials confirmed.

Residents who addressed the council were incredulous that the city would consider reappointing Hayes. Jones, the community activist, reminded council members that Hayes had “pleaded guilty to violating the very laws he was sworn to uphold.”

The city council voted to rehire Hayes to a fifth consecutive term.

Marquita Johnson said she can’t understand why a judge whose unlawful rulings changed the lives of hundreds has himself emerged virtually unscathed.

“Hiring Hayes back to the bench was a slap in the face to everyone,” Johnson said. “It was a message that we don't matter.”

On Thursday, Hayes will retire from the bench. In an earlier interview with Reuters, he declined to discuss the Johnson case. Asked whether he regrets any of the sentences he has handed out, he paused.

“I think, maybe, I could have been more sympathetic at times,” Hayes said. “Sometimes you miss a few.”

Additional reporting by Isabella Jibilian, Andrea Januta and Blake Morrison. Edited by Morrison.

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Thousands of U.S. judges who broke laws or oaths remained on the bench