Saturday, July 6, 2019

Nonprofit Christian Hospital Suspends Debt Collection Lawsuits Amid Furor Over Suing Its Own Employees

by Wendi C. Thomas, MLK50

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.

Methodist Le Bonheur Healthcare, the largest hospital system in Memphis, Tennessee, said it has suspended “court collection activities” over unpaid medical bills, days after an investigation by MLK50 and ProPublica detailed its relentless pursuit of debts held by poor people and even its own employees.

“We recognize that we serve a diverse community and we are always thinking about how we can do more and serve our community better,” Methodist said in a statement. “Over the next 30 days we will be reviewing our policies and procedures to ensure we are doing everything possible to provide the communities we serve with the care and assistance they need. Also, we will immediately suspend any further court collection activities during this period.

“As a learning organization that is committed to continuous quality improvement, we want to be absolutely sure that our practices continue to support our mission and vision of improving every life we touch regardless of ability to pay.”

Methodist dropped more than two dozen cases that were set for initial hearings on Wednesday’s morning docket at Shelby County General Sessions Court.

“Currently, Methodist is in the process of reviewing its collection processes,” R. Alan Pritchard, one of Methodist’s attorneys, told General Sessions Court Judge Deborah M. Henderson.
“You are free to leave,” Henderson told one defendant, who looked puzzled, a purse on her shoulder and a folder full of papers in her hand.

Henderson called the names of other defendants whose cases were on the docket.

Again and again, Pritchard said: “Dropped, please, your honor.”

One of the defendants whose case was dropped is Adrien Johnson, who works for the city of Memphis. Methodist sued him this year for an unpaid hospital bill of more than $900.

Reached by phone, Johnson said he believes the hospital bill was for X-rays he had taken while he was covered by his wife’s insurance. Wednesday was his first court date, and after the hearing, he said he wasn’t clear what the status of his debt was.

“I don’t know what they’re doing,” he said. “I need to find out what’s going on.”

From 2014 through 2018, the hospital system affiliated with the United Methodist Church filed more than 8,300 lawsuits, according to an MLK50-ProPublica analysis of Shelby County General Sessions Court records. That’s more than all but one creditor during that five-year period.

One story by the news organizations chronicled the struggle of Carrie Barrett, who makes $9.05 an hour at Kroger, to pay her 2007 hospital bill for $12,019. The bill has ballooned to more than $33,000 due to interest and attorney’s fees.

Another detailed how Methodist sues its own employees, some of whom make less than $13 an hour, for unpaid bills related to care delivered at its hospitals. Its health plan doesn’t allow workers to seek care at hospitals with more generous financial assistance policies.

Defendants talked about how the lawsuits upended their lives and left them in a position where they would never be able to pay off their debts, which grew from year to year as interest mounted.
With $2.1 billion in revenue and a health system that includes six hospitals, Methodist leads the market: In 2017, it had the most discharges per year and profits per patient, according to publicly available data analyzed by Definitive Healthcare, an analytics company. Methodist says it has “a hospital in all four quadrants of the greater Memphis area, unparalleled by any other healthcare provider in our region,” plus more than 150 outpatient centers, clinics and physician practices. The system also said it provides community benefits of more than $226 million annually.

The number of lawsuits Methodist files isn’t out of proportion to its size, at least compared to competitor Baptist Memorial Health Care and Regional One Health, the county’s public hospital. But Methodist stands out in other respects.

Its financial assistance policy, unlike those of many of its peers around the country, all but ignores patients with any form of health insurance, no matter their out-of-pocket costs. If they are unable to afford their bills, patients then face what experts say is rare: A licensed collection agency owned by the hospital.

Also, after the hospital sues and wins a judgment, it repeatedly tries to garnish patients’ wages, which it does in a far higher share of cases than other nonprofit hospitals in Memphis. A court-ordered garnishment requires that the debtor’s employer send to the court 25% of a worker’s after-tax income, minus basic living expenses and a tiny deduction for children under 15.

Methodist secured garnishment orders in 46% of cases filed from 2014 through 2018, compared with 36% at Regional One and 20% at Baptist, according to an analysis of court records by MLK50.
Methodist’s announcement was welcomed by some local lawmakers.

“Methodist has been such a great community partner throughout Shelby County that I’m glad to hear they’re reviewing their process over the next 30 days,” said Shelby County Commissioner Mickell Lowery, whose district includes Methodist University Hospital.

U.S. Rep. Steve Cohen, D-Tenn., said: “I was surprised to read about Methodist Le Bonheur’s billing practices, and I’m glad that the company is re-examining them. … I will continue to monitor this situation and look forward to the company’s assessment.”

But the Rev. Anthony Anderson, a United Methodist elder at Faith United Methodist in Memphis, was more reserved.

“I am still heartbroken, and I say that spiritually,” Anderson said. “It breaks my heart to know that a Methodist-related entity, a hospital, would have these types of practices.”
He welcomed the policy review, but only if it leads to the complete erasure of all outstanding patient debt.

“This debt needs to be wiped away,” he said. “That will be the direction I will be pushing towards as a Methodist, that we don’t burden families with these type of financial penalties.”

New data obtained from Shelby County General Sessions Court shows that Methodist has filed more than 600 new lawsuits this year. Its most recent suits were filed on June 21, days before the MLK50-ProPublica stories were published. Its most recent garnishment order was filed on Tuesday.
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Monday, May 27, 2019

Separated by Design: How Some of America’s Richest Towns Fight Affordable Housing


by Jacqueline Rabe Thomas, Connecticut Mirror


WESTPORT, Conn. — A dirt field overgrown with weeds is the incongruous entrance to one of America’s wealthiest towns, a short walk to a Rodeo Drive-like stretch replete with upscale stores such as Tiffany & Co.

But this sad patch of land is also the physical manifestation of a broader turf war over what type of housing — and ultimately what type of people — to allow within Westport’s borders.
It started when a developer known for building large luxury homes envisioned something different back in 2014 for the 2.2 acre property: a mix of single- and multifamily housing that would accommodate up to 12 families. A higher density project is more cost efficient, he said, and would allow him to sell the units for less than the typical Westport home.

But the site was zoned to hold no more than four single-family houses, so he needed approval from a reluctant Westport Planning and Zoning Commission, which denied his plan. Residents erupted in fury each time he made a scaled-back proposal, and it took the developer four years after purchasing the property to win approval to build two duplexes and five single-family homes.
“You are selling out Westport,” one resident yelled out as the final plan came up for a commission vote last spring. Other residents picketed commission meetings with signs reading “Zoning is a Promise.”

The commission’s discussion was couched in what some would regard as code words and never directly addressed race or income. Chip Stephens, a Republican planning and zoning commissioner, voted against the plan, declaring, “To me, it’s too much density. It’s putting too much in a little area. To me, this is ghettoizing Westport.”

Now under construction, these two-bedroom duplexes and single-family homes have a price tag of $1.2 million, the going rate for a home in this swanky village just outside Bridgeport and Norwalk.
“We spent hundreds of thousands of dollars to get this through. Would I do this all over again? No. Probably not,” said the developer, Johnny Schwartz, of Able Construction.
Welcome to Connecticut, a state with more separate — and unequal — housing than nearly everywhere else in the country.

This separation is by design.

Westport is only one example of a wealthy Connecticut suburb that has surrounded itself with invisible walls to block affordable housing and, by extension, the people who need it.
In a liberal state that has provided billions in taxpayer money to create more affordable housing, decisions at local zoning boards, the Connecticut Capitol and state agencies have thwarted court rulings and laws intended to remedy housing segregation. As far back as data has been kept, Connecticut’s low-income housing has been concentrated in poor cities and towns, an imbalance that has not budged over the last three decades.

Many zoning boards rely on their finely tuned regulations to keep housing segregation firmly in place. They point to frail public infrastructure, clogged streets, a lack of sidewalks and concerns of overcrowding that would damage what’s often referred to as “neighborhood character.”

An investigation by the Connecticut Mirror and ProPublica has found that more than three dozen Connecticut towns have blocked construction of any privately developed duplexes and apartments within their borders for the last two decades, often through exclusionary zoning requirements. In 18 of those towns, it’s been at least 28 years.

In Westport — where gated residences overlook the Long Island Sound and voters solidly backed Democrats in the most recent state and presidential elections — private developers have been allowed to open just 65 affordable housing units over the last three decades. Public housing rentals operated by the local housing authority have also grown at a snail’s pace, with 71 new units opening in this charming small town of 10,400 homes.

The impact of this logjam on families is that the share of housing specifically dedicated for low-income residents has actually decreased by small percentages in one-quarter of Connecticut’s municipalities since 1990.

“I think the vestiges of our racial past are far from over,” said former Democratic Gov. Dannel P. Malloy, who left office in early 2019 after eight years and regularly butted heads with General Assembly members who wanted local officials to have even more authority over housing decisions. For minority residents striving for safe and affordable housing, the state has “denied the opportunity that we allowed white middle-class aspirants to access,” Malloy said.

Meanwhile, state lawmakers and bureaucrats watch from the sidelines, reluctant to intervene.
This doesn’t appear likely to change any time soon.

Gov. Ned Lamont, a Democrat from Greenwich who took office this year, declined to be interviewed for this story, but he has said his statewide goal is to “work collaboratively with the locals in terms of what they want and what they are not willing to take. At the end of the day, that community will probably take the lead on making that choice.”

Lisa Tepper Bates, Lamont’s senior coordinator for housing and transit-oriented development, said in an interview that the administration hopes to bring change by adopting a “different philosophy, which is to go to the communities and try and have this discussion and try and see how far we can get.”
The Cunningham family is feeling the brunt of decisions left to local zoning boards.

Ashana Cunningham, a 33-year-old mother of three, lives 9 miles from Westport’s posh downtown.
Each workday, she takes a bus from a homeless shelter in Bridgeport, where she lives with her family among a landscape of abandoned factories, run-down houses and trash-lined streets to her job in a suburban cornucopia a few miles away.

She tends to children from privileged families at a pricey day care in Fairfield. Two days a week she works a second job at Family Dollar.

This is not the life Cunningham imagined. She earned an associate degree to become a medical assistant but has never made more than $14 an hour. She and her wife struggled to pay $1,200-a-month rent for a small Bridgeport apartment, and then her wife became disabled and could not work.
A car crash further complicated their lives. Cunningham was injured and left without transportation — and, ultimately, out of a job.

By the time she found the day care job, which pays $12.50 an hour, the family was living in the shelter, where the smell of bleach lingers and bachata music from a neighbor’s apartment pulses through the walls. Her second job as a cashier pays $11 dollars an hour.

She knows that she is trapped, that moving to a town like Westport, Trumbull or Fairfield is impossible.

“There’s no other place for us to go. Fairfield or Trumbull? Forget about it,” Cunningham said. “You can’t afford to pay your rent if you are only making $707 every two weeks.”

“You Build Where You Can”

Racial and economic segregation is not unique to Connecticut, but it is extreme and runs counter to the state’s liberal image. Democrats have controlled the state legislature for 22 years and the governor’s mansion for eight.

In southwest Connecticut, the gap between rich and poor is wider than anywhere else in the country. Black and Hispanic residents statewide live in some of the nation’s most segregated neighborhoods, census data shows.

The repercussions of living in segregated neighborhoods often last a lifetime.
“Neighborhoods matter,” researchers at Brown, Harvard and the U.S. Census Bureau concluded.
The “Opportunity Atlas” they created makes clear just how much it matters by showing the stark differences in where the 20.5 million children they tracked ended up. For example, children who grew up in Cunningham’s Bridgeport neighborhood were five times more likely to be imprisoned on April 1, 2010, than those who grew up 2 miles down the road over the Fairfield line. The Bridgeport natives also made half the income of their Fairfield peers.

But the families of low-income children have few housing options in Connecticut’s higher-opportunity neighborhoods: 63 of the state’s 169 municipalities have no housing authorities to facilitate the creation of public housing and manage it.

In southwest Connecticut, where Cunningham lives with her family, it costs 3.5 times more to live near high-scoring elementary schools than the struggling schools her children attend, the Brookings Institution reported.

“Would-be movers would have to spend about $25,000 more per year on housing to make that jump,” Brookings found.

Malloy, now a visiting professor at Boston College, explained in an interview why such a large share of affordable housing that opened during his tenure was in the poorest neighborhoods.

“You build where you can, where a community is inviting,” he said. “I do believe that there is not an openness and willingness to have the people who work in town, live in town. Maybe that’s because some towns want everyone to be the same. I don’t know why a town wouldn’t want a fireman or a policeman or a day care worker who works in their community to be able to live in that community.”
During Malloy’s years in office, his administration directed $2.1 billion in public funding to renovate run-down public housing or build new housing so more low-income residents have an affordable place to live. The new housing was disproportionately built in the state’s poorest communities, however. Three-quarters of the new units constructed since 2011 were in the state’s 10 poorest municipalities, although only 20% of Connecticut’s housing stock is located in these communities. Just over 5% opened in the 10 wealthiest towns.

Government subsidies aside, another way to bring down housing costs is to build duplexes or apartments on a lot — but that’s not being allowed in many communities, despite state law requiring local zoning commissions to “encourage” such development in order to “promote housing choice and economic diversity in housing.”

While dozens of towns have not permitted any duplexes and apartments to be built in two decades, the multiunit construction in another three dozen towns just replaced similar units that had been demolished. (This new construction data only includes privately owned residential developments and not public housing, dorms or hotels.)

Local zoning rules are often to blame for the lack of more affordable development.
“You can’t even build a duplex. Zoning just kills it,” said Sean Ghio, policy director at the Partnership for Strong Communities, an advocacy group that lobbies for more affordable housing. “People often fear the unknown, and as a result try to keep the unknown out of their lives by maintaining the status quo. The status quo in Connecticut is living in segregated communities.”
Local officials, however, say there are often legitimate reasons to deny multiunit housing because local infrastructure is not in place or there are environmental concerns.

“Unfortunately, we are limited in what we can provide,” said Joyce Stille, who since 1995 has been the administrative officer of Bolton, a small town in central Connecticut that has limited sewer access and where just one duplex has received a permit in 30 years. “Because of our proximity to Vernon and Manchester, we don’t really need any [affordable housing]. They have such a wide range of options. People don’t come to Bolton because Bolton has a higher cost of living.”
Only 19 cities or towns allow housing with three or more units to be built without requiring special permits, according to a 2013 review by Trinity College’s Cities, Suburbs, and Schools Project and the Connecticut Fair Housing Center. Twenty-five municipalities explicitly prohibit such housing and 123 require a special town permit.

In some towns that do allow it, other zoning requirements make it exceedingly difficult for projects to come to fruition since they need more land to build anything besides a single-family home.
For example, Monroe, a high-income town in southwest Connecticut, requires at least 70 acres for multifamily housing construction, and each unit may have no more than two bedrooms. A single-family home requires 1 acre.

In its specially zoned “Housing Opportunity District,” 20 acres of land are required to build multifamily housing, but because of density restrictions only 13 apartments or townhomes may be built.

Avon requires 15 acres for a two-unit home, compared with 1/3 acre for a single-family residence.

“A large lot requirement makes it financially infeasible for such housing to be built. That’s just logic,” said Fionnuala Darby-Hudgens, who did the analysis that Connecticut’s Department of Housing used in its mandatory report to the federal government on exclusionary zoning.

A Watered-Down Law

All of this comes 30 years after the Connecticut Supreme Court ruled for the first time that exclusionary zoning practices that quash moderate-priced housing are illegal. That groundbreaking case involved a truck driver attempting to build an affordable single-family home in middle-class East Hampton that was smaller than the minimum square feet the town required. The justices ruled against the town, saying its requirements “are a form of economic discrimination.”

In the following months, state lawmakers passed a law that set the stage for the courts to review local zoning decisions in towns with few affordable homes. Most notably, the law — commonly referred to by its statutory reference as 8-30g — outlined the process for developers to bypass local zoning decisions by going through the courts if they set aside 30% of a project’s units for poor people.
But the law had limited impact. Just 2% of all the housing developed in Connecticut since then is dedicated to low-income families. Since the law passed, the share of housing for low-income residents has actually decreased in 47 of the state’s 169 municipalities, according to state Department of Housing data.

“Any developer who’s going to use [this law] has to be ready for the potential of a long, expensive slog, first through the zoning commission and then through the court system,” said Timothy Hollister, the land-use attorney who won the East Hampton case. He has been trying since 2005 to win approval for a client to open affordable units in Westport.

Each year, legislators file a slew of bills to weaken the law.

State Rep. Brenda Kupchick, a Republican from Fairfield who served as the ranking member of the legislature’s Housing Committee from 2013 to 2018, said her top committee priority is to scale back the law.

“Predatory developers are taking advantage of communities, and we aren’t getting much affordable units out of it,” she said. “In 30 years, the needle hasn’t moved. It’s not working. Let’s brainstorm and come up with some ideas that may actually work.”

Former Senate Minority Leader John McKinney, a Republican from Fairfield, said amending the law was a big issue for his caucus during his 16 years in the state Senate.
“Look, I get the argument that you need it. You can’t let the Westports and the Greenwichs off. You have to have something. I just think there is a better way,” said McKinney, who left office in 2014 to run for governor, a bid he ultimately lost.

He and Kupchick believe the state should provide financial incentives for towns that allow more affordable housing to be built within their borders.

Otherwise, he said, developers game the system.

“They are not really out to build affordable housing for the community. They are out to build market-rate housing, and if they have to put some affordable units with it to get approval, that’s what happens,” McKinney said. “There are developers who literally come into these meetings with two plans and say, ‘Give us this plan, or you get this affordable housing plan.’”

After years of failed attempts, lawmakers in 2017 finally weakened 8-30g by making it easier for towns to get exemptions from the law’s requirements.

Malloy vetoed the measure, because he said it would “perpetuate the harmful effects of bad economic policy and institutional segregation.” But the General Assembly overrode the veto.
This March, the Department of Housing granted Westport — where 3.4% of the housing is considered affordable — a four-year exemption, which prevents a judge from overriding its zoning decisions.

The exemption protects the town from legal challenges, but it came after the zoning commission had already approved 44 new low-income units, mostly studios or one-bedroom units with monthly rents starting at $1,400. A commissioner made it clear during project hearings that only the threat of a lawsuit under 8-30g persuaded him to approve the plans. And now that threat is gone.

“The statute requires me as a commissioner to essentially pass this proposal, or give very narrow reasons for denying it, none of which were presented as evidence to this commission. So we don’t have that option. We must pass it,” said then-Commissioner Alan Hodge, a Democrat, before the 2016 vote.

Westport currently has 265 units for low-income individuals that were constructed with public or private funding, though one-third of those units replaced existing affordable housing. For example, the town purchased Westport’s only trailer park and replaced its 60 mobile homes with 93 affordable apartments run by the local housing authority.

What this means is that approximately 1 out of every 30 housing units in Westport is dedicated to low- or moderate-income residents, compared with 1 in 8 next door in Norwalk, or 1 in 5 in Bridgeport 9 miles away.

In May, the commissioners signaled they were prepared to reject a new batch of affordable units. They say they are doing a great job developing affordable housing.

“They are unnecessary,” Danielle Dobin, a Democratic commissioner, said during the panel’s discussion of the proposed units. “This commission and the commission before us have been very successful in creating so much more affordable housing in Westport.”

Just over 4% of Westport residents are considered to be living in poverty — two-and-a half times less than the state’s poverty rate. Just under 1% of those who live in this town are black and 5% are Hispanic, a long way off from the state’s makeup.

The Lamont administration expressed satisfaction with the current law as it stands.

“8-30g is the law in Connecticut and can be one of many important tools we have to ensure that the housing our residents need is available to them,” Bates, the senior coordinator for housing and transit-oriented development, said. “The administration is seeking no changes at this time.”

Asked what happens if minds can’t be changed, Bates declined to talk about next steps.

“I constitutionally don’t believe that in general people’s minds can’t be changed. I think it’s a question of whether there is an effective way to engage them in discussion and conversation. I think sometimes you can go a lot further that way,” Bates said. “You know this is a new administration, so it is hard to come into it and say you are ready to beat somebody with a hammer when you haven’t had that conversation with them.”

Vehement Opposition

Local objections to affordable housing projects run the gamut, with developers typically facing intense zoning board scrutiny about issues like a lack of sidewalks or potential impact to the environment.

Broader concerns, such as preserving a community’s character or the quality of its schools, are also frequently cited.

During his State of the Town Address a few months ago, Westport’s Republican first selectman, Jim Marpe, said high-density developments keep him up at night.

“The challenge to our community is not just to the character of neighborhoods, but also to firefighting and police response, potentially to educational capacity, to human services support and to our tradition as a single-family home community,” Marpe told his audience.

He added, “Within the tri-state region, Westport remains an attractive and desirable location relative to many nearby communities, and we must invest in keeping our town in that position.”
This mindset was on display in March, when a disgruntled Westport board discussed a proposed 187-unit apartment complex, of which 57 units would be available to low-income residents, located a half-mile from the town’s commuter train station. This developer has been trying to break ground since 2005.

At one point, board members became incensed when the developer’s attorney expressed disappointment that town officials declined to meet with officials in neighboring Norwalk to negotiate changes that would need to be made so the gravel road in that city could be used for emergencies at the complex. The pathway is on land adjacent to the proposed apartment complex and would serve as a second exit that Westport officials say is necessary for emergency vehicles to access the property. Board members appeared to resent the suggestion that they take any action that would be interpreted as benefiting the developer.

“I would like to put it on the record, I am vehemently opposed, disappointed and don’t understand why the town of Westport would be involved in a meeting like that,” Stephens, a planning and zoning commissioner, said. Asked why he was opposed, Stephens declined to elaborate during a recent interview, saying it’s an ongoing legal matter.

When unanimously rejecting the proposed development last week, however, commissioners pointed to uncertainty about whether Norwalk would allow its gravel road to be paved and used as a second exit during emergencies.

Sometimes local officials even offer money to keep affordable housing from being built.
Richard Freedman, another developer who has been trying for years to build in Westport, said the town offered to purchase the land on which he proposed building 48 apartments, 29 of which would be for low-income families.

“The town attorney approached my attorney to buy the property. I said: ‘It’s not for sale. We are building affordable housing,’” said Freedman, president of Garden Homes Management.
Email correspondence from the developer’s attorney to town attorney Ira Bloom in October 2015 specifically rejects the town’s offer to buy the property. Bloom responds the next day with alternative locations that might be more appealing..

Asked about the town’s attempt to purchase the property, Bloom said, “I don’t recall that.” He remembers conversations about finding an alternative building site for the developer, and he said he helped connect the developer with other groups interested in purchasing the property.
In 2001, the town paid $4.2 million to purchase a 4-acre property adjacent to a local elementary school where only 5% of the students come from low-income families. The developer had planned to develop 60 units, of which 15 would have been dedicated for poor residents. The land is now a community garden and parking lot.

Several years later, the town’s first selectman reached out to several potential buyers to facilitate the $14.5 million purchase of another property where the owner wanted to build 200 apartments by replacing a local hotel, the Westport Inn. Sixty of the units would have been for poor residents.
A hotel remains there today.

Even if elected officials are supportive of affordable housing, the opposition from residents can be intense.

Petition drives are launched. Pamphlets are mailed. Lawn signs go up. Facebook groups are set up to strategize. Fundraising campaigns are created to pay for land-use attorneys and environmental experts. Connecticut has more law firms than any other state specializing in land use, a key indicator of restrictive zoning, the Brookings Institution reported.

In Westport, a political party was established to help elect zoning commissioners who the party’s leaders believe will preserve the neighborhoods and small-town New England character.
Occasionally, residents voice fear of the type of people they believe affordable housing will bring.
“The drug addicts are going to be here, believe me,” William Woermer, of Branford, testified in November 2017 about a proposal to demolish a 50-unit, run-down low-income housing project for seniors and replace it with 67 units for poor families. “Retirees, disabled, old people — I have no objection to renovate the whole place and make it nice for them. But don’t get too much of that riffraff in. There will be a lot of riffraff. Then we go onto, with a project like this, you need security guards in the area.” Woermer did not respond to an interview request.

In Greenwich, a public hearing in August 2017 about plans for an apartment complex next to the town’s commuter train station quickly devolved into residents complaining that low-income residents wouldn’t be able to afford to shop locally. “Nobody goes to our restaurants [if you’re] living in affordable housing,” Adam Tooter, a resident who had recently bought a $1.5 million home, said during the August hearing. Tooter did not respond to messages.

Gayle DePoli, another local resident, said: “Those people won’t be able to afford to live in Old Greenwich. They won’t be able to afford to shop in King’s [gourmet grocery store]. They won’t be able to afford to eat in any restaurant but Dunkin’ Donuts and maybe grab a slice at Arcadia Pizza. They won’t even be able to afford getting a scoop of ice cream at Darlene’s.”

During a recent interview, DePoli said she is opposed to the development because the area is already too congested and it is unfair to have poor people living in such high-cost areas.

“It’s not about not in my neighborhood. It’s: enough in my area. It’s overbuilt with condos,” said DePoli, an independent contractor for media companies in Manhattan. “Your heart’s got to bleed a little bit for people that need low-income housing, and then you are going to put them in the middle of something they can’t afford. They can afford the rent, but what else? They aren’t going to the restaurants down there. Everything they can afford [is a car or bus ride] away. It’s pretty sad.”
In March, the commissioners approved a scaled-back version of this proposed development that will have about half as many affordable apartments. The apartment will be located 2 miles from Greenwich Point, a beach restricted to residents only until the Connecticut Supreme Court in 2001 unanimously ordered the town to open it to everyone.

During a zoning commission meeting in rural Oxford in 2014 for a proposed affordable housing project, the town’s first selectman expressed concern there would not be enough parking for visitors on holidays, specifically pointing to one that originated in Mexico.

“I’m sure they could have their little parking spaces, but somebody throws a party, or it’s Cinco de Mayo or something else and pretty soon you can’t park there. Well, you also can’t bring an ambulance there and you can’t bring a fire engine there,” said First Selectman George Temple during a public hearing on the project, adding: “I’m not for putting slumlords into Oxford. You know, that’s perhaps an overstatement, and I am sure it is, but I am concerned about these units.”
Malloy has little patience for such concerns.

“Is safety genuinely 100% the fear or is there something else at play and the reason why these projects aren’t moving forward,” he said. “Let’s drill down for a second. Every one of those towns has housing on a street that doesn’t have a sidewalk. The difference being that those are single-family homes which are not affordable.”

All of this pushback is code for not allowing in poor people, says Hollister, the land-use attorney.

“Does anybody say we need to keep blacks and Hispanics out of Westport? No, but they talk about property values, safety and preserving open space — all the things that a town can do to prevent development that would bring up a more economically and racially diverse housing population,” Hollister said. “They don’t use the overt racial terms, but it’s absolutely clear to everybody in the room that’s what they’re talking about.”

Unmet Demand

Marpe, Westport’s first selectman, disputes the idea that the town has practiced discriminatory zoning.

“I have lived in many communities in the United States and I would argue Westport is as open and welcoming as any community I have ever lived in. So to cast that as an underlying principle, I would disagree,” he said during an interview. “Anyone who asserts that we don’t want anything to do with ‘those people,’ I would strongly disagree.”

Marpe points to the town’s commitment to providing emergency housing for men, women and children, such as homeless shelters and halfway houses.

He also points out that decisions on what gets to break ground do not rest with him alone. He cites a proposal he made early in his five and a half years in office for a private developer to build 167 units for senior citizens — 111 dedicated for low-income residents — on a 23-acre town-owned site where an abandoned mansion has sat vacant for years. That proposal was rejected by the town’s Planning and Zoning Commission and the Representative Town Meeting, Westport’s legislative body, didn’t have enough votes to override their decision.

Town officials have designated the site as open space, preventing anything from being developed on the land. Marpe and Mary Young, the town’s director of planning and zoning, said there is a path for projects to make their way more easily through zoning approval. That “streamlined process” is only available, however, for those looking to build in one section of town: the highly commercialized Route 1.
Winning approval outside of that zone is hard. That was the case for the developer who waited four years to build multiunit housing on the lot of a former landscaping business, which is a short distance from the high-end shopping district.

“Should it have gone faster? I’m sure from anyone’s perspective, it was not streamlined. But it was not one of the processes that was enacted by my Planning and Zoning Commission. That was a developer who took his own path,” Young said. “If we’ve laid out the red carpet and asked you to come, you’re more likely to get what you need more quickly.”

Stephens, the zoning commissioner, said there were legitimate reasons for the application to take so long, none of which had to do with the type of residents it would attract.

“We have one of the most welcoming communities here,” Stephens said. “We go above and beyond. I would be aghast if anyone suggested differently.”
Marpe said he must listen to voters.

“I have to respect the fact that people who have moved here, or have grown up here and continue to live here, are here because the nature of the community is what they are looking for,” Marpe said. “So to try and change that nature with large structures maybe gets to some goal, but I don’t believe [that’s why] people who have invested in this community and want to be part of this community … came here or stayed here.”

When asked if the town has, in fact, purchased or arranged for others to purchase property to keep it from being developed as affordable housing, Marpe said it is not a strategy of the town to avoid having more affordable housing.
He facilitated the purchase of the Westport Inn because it’s the town’s only hotel outside a 12-room inn on the Long Island Sound, he explained.

“When we have had serious storms, the Westport Inn was the one place we could offer somewhat permanent shelter,” he said. “I believe there is a need for that as well. That was the motivating factor in my mind.”

Several hotels are a few miles down the road in Norwalk or Fairfield.
The new developments that have been built in Westport are not meeting the demand for affordable housing.

The last time the town’s housing authority opened its wait list three years ago, 1,000 people applied in 30 days. Then the waitlist closed, and it hasn’t been opened since. The housing authority still gets calls every day, including on weekends.

“They come in at all hours,” said Carol Martin, the executive director of the Westport Housing Authority. “It is very much at a crisis.”

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Saturday, April 13, 2019

Joe Bryan Denied Parole for Seventh Time

Though a forensic expert who testified against Bryan has admitted his conclusions were wrong, Bryan will remain behind bars.

by Pamela Colloff, ProPublica

The Texas Board of Pardons and Paroles denied Joe Bryan parole for a seventh time on Friday, citing the brutal nature of the crime he stands convicted of — the 1985 shooting death of his wife, Mickey — in concluding that the 78-year-old “poses a continuing threat to public safety.”

Bryan has twice been convicted of Mickey’s murder, which took place in their Clifton, Texas, home. Bryan, then a beloved high school principal, had been attending an education conference in Austin, 120 miles away, in the days surrounding the murder. He has always maintained that he was asleep in his hotel room at the time of the crime. His conviction, for which Bryan has spent 31 years in prison, rested largely on bloodstain-pattern analysis, a technique still in use throughout the criminal justice system, despite concerns about its reliability.

At an evidentiary hearing last year in Comanche, Texas, Bryan’s attorneys presented new evidence that jurors who convicted him never heard — most notably, that the forensic testimony used to convict him was erroneous. “My conclusions were wrong,” retired police Detective Robert Thorman, who performed the bloodstain-pattern analysis in the case, wrote in a sworn affidavit submitted to the court. “Some of the techniques and methodology were incorrect. Therefore, some of my testimony was not correct.”

Last July, before the hearing, the Texas Forensic Science Commission — which investigates complaints about the misuse of forensic testimony and evidence in criminal cases — announced that the blood-spatter analysis used to convict Bryan was “not accurate or scientifically supported.”
In December, however, Judge Doug Shaver, who presided over the evidentiary hearing,
recommended that Bryan’s conviction stand, and that he not be granted a new trial. Shaver adopted the prosecution’s findings in their entirety. This included an argument by Bosque County District Attorney Adam Sibley acknowledging that parts of Thorman’s testimony were incorrect but arguing that it didn’t matter: “Thorman’s testimony was not important to the case.”

Bryan’s plea for a new trial is currently before the Texas Court of Criminal Appeals. Its justices may take as long as they like to consider the case, a fact that does not work in Bryan’s favor, since he suffers from congestive heart failure.

The board’s denial followed a concerted effort on the part of Bryan’s parole attorneys, Allen and Shea Place, and the Bryan family to win his release. They hoped that Bryan’s sterling disciplinary record, combined with the revelations of the Comanche hearing, would bring a different result.
The parole board’s reasoning in rendering its decision will never be known. Its members’ deliberations, as well as the documents and testimony they reviewed, are exempt from state open record laws. Who opposed Bryan’s bid for parole, and what they told parole board members, also is confidential.

“I’m in total disbelief,” said Joe’s oldest brother, James, from his home in Houston. “How is a 78-year-old man whose heart is failing, who can barely walk 20 paces without breathing hard, a danger to society? How is a man who hasn’t had a single disciplinary problem in over 30 years in prison a danger?”

Sibley was not available for comment at the time of publication but has previously declined to comment on the Bryan case.

Bryan’s attorney Jessica Freud sees Texas’ highest criminal court as Bryan’s last chance for redemption. “All we can do is continue to anxiously await a decision from the Court of Criminal Appeals,” she said, “and hope that the court will act in time to prevent an innocent man from dying in prison.”
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Sunday, March 31, 2019

HUD Sues Facebook Over Housing Discrimination and Says the Company’s Algorithms Have Made the Problem Worse

The Department of Housing and Urban Development announced Thursday it is suing Facebook for violating the Fair Housing Act by allowing advertisers to limit housing ads based on race, gender and other characteristics.

The agency also said Facebook’s ad system discriminates against users even when advertisers did not choose to do so.
ProPublica first reported in 2016 that Facebook allowed housing advertisers to exclude users by race. Then in 2017, ProPublica found that — despite Facebook’s promised changes — the company was still letting advertisers exclude users by race, gender, ethnicity, family status, ability and other characteristics.

“Facebook is discriminating against people based upon who they are and where they live,” HUD Secretary Ben Carson said in a statement. “Using a computer to limit a person’s housing choices can be just as discriminatory as slamming a door in someone’s face.”

In a statement, Facebook said, “We’re surprised by HUD’s decision, as we’ve been working with them to address their concerns and have taken significant steps to prevent” ad discrimination.
HUD’s suit comes a week after Facebook announced sweeping changes to its advertising portal, preventing landlords, employers and lenders from discriminating in housing, employment or credit ads.

Facebook also disputed HUD’s conclusion that the system itself discriminates beyond advertisers’ choices: “HUD had no evidence and finding that our AI systems discriminate against people.”
A Facebook spokesperson told ProPublica that the company declined to give HUD data about who is actually seeing ads because of privacy concerns.

Asked about that, HUD spokesman Brian Sullivan said, “We are bound, and Facebook itself is bound, not to disclose sensitive negotiations, and so there’s very little we can say to that point.”
Peter Romer-Friedman, an employment attorney involved in multiple lawsuits that Facebook settled last week, said HUD’s suit — and the contention that Facebook’s algorithm is amplifying discrimination — may have implications for other cases related to employment and Facebook ads. “The point that the HUD complaint makes about bias in the delivery algorithm is the same exact point that we’ve been making for nearly a year” in another case involving alleged age discrimination on Facebook, Romer-Friedman said.

Thursday’s charge comes after a year of litigation from housing groups. In March 2018, the National Fair Housing Alliance sued Facebook, alleging it allowed advertisers to discriminate against legally protected groups, including mothers, the disabled and Spanish speakers. A few months later, the Department of Justice filed a statement of interest in the case. Soon after, HUD filed a formal complaint, signaling that it had found enough evidence during its initial investigation to raise the possibility of further legal action.

Facebook’s previous response to HUD contended that advertisers — not the company — were responsible for targeting ads. In March 2018, Facebook spokesman Joe Osborne said at the time: “There is absolutely no place for discrimination on Facebook. We believe this lawsuit is without merit, and we will defend ourselves vigorously.”

HUD’s suit against Facebook is an unusual decision for the Trump administration. It has frequently moved to curtail civil rights investigations. At the same time, Facebook and other social platforms have faced criticism by conservatives who allege their posts expressing political views are being suppressed.
Carson is scheduled to testify on the Hill in budget hearings on April 3.
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Sunday, March 24, 2019

Aging Machines, Crowds, Humidity: Problems at the Polls Were Mundane but Widespread


Instead of fireworks from voter intimidation or cyberattacks, Americans grappled with the mundane frustrations of using dated equipment to vote in huge numbers.

by Ian MacDougall, Jessica Huseman, and Isaac Arnsdorf, ProPublica

If the defining risk of Election Day 2016 was a foreign meddling, 2018’s seems to have been a domestic overload. High turnout across the country threw existing problems — aging machines, poorly trained poll workers and a hot political landscape — into sharp relief.
Michael McDonald, a political science professor at the University of Florida who studies turnout, says early numbers indicate last November's midterm saw the highest percentage turnout since the mid-’60s. “All signs indicate that everyone is now engaged in this country — Republicans and Democrats,” he said, adding that he expects 2020 to also be a year of high turnout. “Election officials need to start planning for that now, and hopefully elected officials who hold the purse strings will be responsive to those needs.”

Aging Technology

Electionland monitored problems across the country on Election Day, supporting the work of 250 local journalists in more than 120 local newsrooms. Thousands of voters reported issues at the polls, and Electionland sought to report on as many as possible. The most striking problem of the night was perhaps the most predictable — aged or ineffective voting equipment caused hourslong lines across the country.

American voting hasn’t had a major technology refresh since the early 2000s, in the aftermath of the Florida recount and the passage of the 2002 Help America Vote Act, which infused billions of dollars into American elections. More recent upgrades, such as poll books that could be accessed via computer, were supposed to reduce bottlenecks at check-ins — but they repeatedly failed on election day, worsening waits in Georgia, South Carolina and Indiana.

                                                               Read More>>

Sunday, March 17, 2019

The Story Behind Jared Kushner’s Curious Acceptance Into Harvard

ProPublica editor Daniel Golden wrote a book a decade ago about how the rich buy their children access to elite colleges. One student he covered is now poised to become one of the most powerful figures in the country.

by Daniel Golden, ProPublica

I would like to express my gratitude to Jared Kushner for reviving interest in my 2006 book, “The Price of Admission.” I have never met or spoken with him, and it’s rare in this life to find such a selfless benefactor. Of course, I doubt he became Donald Trump’s son-in-law and consigliere merely to boost my lagging sales, but still, I’m thankful.

My book exposed a grubby secret of American higher education: that the rich buy their under-achieving children’s way into elite universities with massive, tax-deductible donations. It reported that New Jersey real estate developer Charles Kushner had pledged $2.5 million to Harvard University in 1998, not long before his son Jared was admitted to the prestigious Ivy League school. At the time, Harvard accepted about one of every nine applicants. (Nowadays, it only takes one out of twenty.)

I also quoted administrators at Jared’s high school, who described him as a less than stellar student and expressed dismay at Harvard’s decision.

“There was no way anybody in the administrative office of the school thought he would on the merits get into Harvard,” a former official at The Frisch School in Paramus, New Jersey, told me. “His GPA did not warrant it, his SAT scores did not warrant it. We thought for sure, there was no way this was going to happen. Then, lo and behold, Jared was accepted. It was a little bit disappointing because there were at the time other kids we thought should really get in on the merits, and they did not.”
Risa Heller, a spokeswoman for Kushner Companies, said in an email Thursday that “the allegation” that Charles Kushner’s gift to Harvard was related to Jared’s admission “is and always has been false.” His parents, Charles and Seryl Kushner, “are enormously generous and have donated over 100 million dollars to universities, hospitals and other charitable causes. Jared Kushner was an excellent student in high school and graduated from Harvard with honors.” (About 90 percent of Jared’s 2003 class at Harvard also graduated with honors.)

My Kushner discoveries were an offshoot of my research for a chapter on Harvard donors. Somebody had slipped me a document I had long coveted: the membership list of Harvard’s Committee on University Resources. The university wooed more than 400 of its biggest givers and most promising prospects by putting them on this committee and inviting them to campus periodically to be wined, dined, and subjected to lectures by eminent professors.

My idea was to figure out how many children of these corporate titans, oil barons, money managers, lawyers, high-tech consultants and old-money heirs had gone to Harvard. A disproportionate tally might suggest that the university eased its standards for the offspring of wealthy backers.
I began working through the list, poring over “Who’s Who in America” and Harvard class reunion reports for family information. Charles and Seryl Kushner were both on the committee. I had never heard of them, but their joint presence struck me as a sign that Harvard’s fundraising machine held the couple in especially fond regard.

The clips showed that Charles Kushner’s empire encompassed 25,000 New Jersey apartments, along with extensive office, industrial and retail space and undeveloped land. Unlike most of his fellow committee members, though, Kushner was not a Harvard man. He had graduated from New York University. This eliminated the sentimental tug of the alma mater as a reason for him to give to Harvard, leaving another likely explanation: his children.

Sure enough, his sons Jared and Joshua had both enrolled there.

Charles Kushner differed from his peers on the committee in another way; he had a criminal record. Five years after Jared entered Harvard, the elder Kushner pleaded guilty in 2004 to tax violations, illegal campaign donations, and retaliating against a witness. (As it happens, the prosecutor in the case was Chris Christie, recently ousted as the head of Trump’s transition team.) Charles Kushner had hired a prostitute to seduce his brother-in-law, who was cooperating with federal authorities. Kushner then had a videotape of the tryst sent to his sister. He was sentenced to two years in federal prison.
I completed my analysis, which justified my hunch. Of the 400-plus tycoons on Harvard’s list — which included people who were childless or too young to have college-age offspring — more than half had sent at least one child to the university.

I also decided that the Kushner-Harvard relationship deserved special attention. Although the university often heralded big gifts in press releases or a bulletin called — in a classic example of fundraising wit, “Re:sources” — a search of these outlets came up empty. Harvard didn’t seem eager to be publicly associated with Charles Kushner.

While looking into Kushner’s taxes, though, federal authorities had subpoenaed records of his charitable giving. I learned that in 1998, when Jared was attending The Frisch School and starting to look at colleges, his father had pledged $2.5 million to Harvard, to be paid in annual installments of $250,000. Charles Kushner also visited Neil Rudenstine, then Harvard president, and discussed funding a scholarship program for low- and middle-income students.

I phoned a Harvard official, with whom I was on friendly terms. First I asked whether the gift played any role in Jared’s admission. “You know we don’t comment on individual applicants,” he said. When I pressed further, he hung up. We haven’t spoken since.

At Harvard, Jared Kushner majored in government. Now the 35-year-old is poised to become the power behind the presidency. What he plans to do, and in what direction he and his father-in-law will lead the country, are far more important than his high school grades.

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Thursday, February 28, 2019

FBI Scientist’s Statements Linked Defendants to Crimes, Even When His Lab Results Didn’t

by Ryan Gabrielson, Propublica

A man stepped into a rural South Carolina bank a few days before Christmas in 2001, aimed a gun at tellers and stole $7,800 from the drawers. Witnesses couldn’t identify the robber. The surveillance video was too grainy to help investigators.

More than three years later, FBI agents narrowed the investigation to a suspect. They believed John Henry Stroman robbed the bank. But during questioning, Stroman told them the security footage instead showed his brother, Roger. How could investigators prove one brother was the robber and not the other? Agents shipped the video and pictures of both Stromans to the FBI Laboratory in July 2005.

The package went to Richard Vorder Bruegge, one of the bureau’s image examiners.
In his report, Vorder Bruegge wrote that John Henry Stroman and the robber had similar “overall shape of the face, nose, mouth, chin, and ears.” But Vorder Bruegge stopped short of declaring a match, saying the video and pictures were too low resolution for that.

Nevertheless, prosecutors said in court filings that if Vorder Bruegge took the stand, he would testify that “the photograph is of sufficient resolution to definitively state that the robber is John Henry Stroman.” The judge said the testimony would be admitted if the case went to trial. A week later, Stroman accepted a plea deal.

It wasn’t the first time, nor the last, Vorder Bruegge’s lab results said one thing and the courts were told something different. Court records and FBI Lab files show statements by prosecutors or Vorder Bruegge veered from his original conclusions in at least three cases.

Vorder Bruegge, who earned a doctorate in geology 28 years ago, came to the FBI after abandoning his hopes of becoming an astronaut. He had no crime laboratory experience, but he quickly became a force in the forensic sciences.

Now 55, he is the most prominent member of the Forensic Audio, Video and Image Analysis Unit at the FBI Lab in Quantico, Virginia. The unit’s comparisons can advance investigations by sharpening pictures and narrowing the list of suspects. But most of the image examiners’ lab work has no scientific basis proving their methods are reliable and findings are correct.

A ProPublica investigation, published in January, found that image examiners’ methods have never had a strong scientific foundation. The bureau’s use of the unit’s findings as trial evidence troubles many experts and raises anew questions about the role of the FBI Lab as a standard-setter in forensic science.

Such shortcomings could have led judges to block image analysis from criminal trials. But Vorder Bruegge single-handedly built a body of case law that has kept the FBI unit’s testimony admissible in the courts. His 22-year-old comparison of bluejeans is the legal foundation for most photo comparison methods.

The FBI Lab’s image unit had routinely used unproven techniques since the 1960s, but Vorder Bruegge embraced and expanded them, according to court records and his published articles. At times, he has given jurors baseless statistics to say the risk of error was almost zero. Studies on several methods in the past decade have found them unreliable.

Today, Vorder Bruegge is one of the nation’s most influential crime lab scientists. He serves on the Forensic Science Standards Board, which sets rules for every field, from DNA to fingerprints. He’s a co-chair organizing the American Academy of Forensic Sciences meeting this week in Baltimore, a gathering of thousands of crime lab professionals, researchers, lawyers and judges.

Vorder Bruegge has testified for the federal government so often, and so successfully, that a 2013 law review article referred to him as “perhaps the most ubiquitous of the United States expert witnesses.”
ProPublica requested an interview with Vorder Bruegge and sent him written questions. The FBI declined the requests and did not respond to the questions.

Vorder Bruegge has produced an extensive public record detailing and defending his practices during his 24-year career at the FBI. Image analysis typically involves scrutinizing pictures from crime scenes to determine if suspects’ faces, hands, clothes or cars match, according to court documents and published articles. Examiners base their identifications on the pattern they see along a shirt seam, the shape of an ear or a cluster of freckles.

At a conference in Seattle last year, Vorder Bruegge recounted the most common criticism he hears from defense attorneys: he’s just looking at pictures, no different than anyone else with eyesight.
Vorder Bruegge has a ready response.

“Yes, I’m just looking at this pair of images,” Vorder Bruegge said, “the same way a radiologist looks at an X-ray. Anyone in this room can look at an X-ray, just look at it. But who do you want deciding what type of treatment you are going to get as a result of examination of that radiograph? Do you want anyone in this room to determine if you have cancer, or if you just have an artifact in your image?”

Radiologists and FBI image examiners both work with pictures. The similarities end there. Radiology is exhaustively researched and its methods continually tested to make certain they are reliable. Radiologists must graduate from medical school and complete four-year residency programs before they diagnose patients.

Image examiners rarely have advanced degrees. New examiners learn how to analyze pictures by doing casework with lab veterans. Their methods remain unproven, at best.

Vorder Bruegge, however, has not only a doctorate in geology but an ease with the language and standards of science. At public events, he sounds like a progressive voice urging crime labs to improve, said Hal Stern, a University of California, Irvine, statistics professor who researches forensic science methods.

Despite that public image, Vorder Bruegge has used unproven science throughout his career.
“It’s a little disturbing, to be sure,” Stern said.

From the Cosmos to Forensics

Vorder Bruegge moved to Providence, Rhode Island, in the fall of 1981 for his freshman year at Brown University, a couple of hours from his family’s home in Connecticut. He majored in electrical engineering and spent summers working for a data processing company.

His focus turned sharply during a planetary science course on the solar system, taught by geology professor James Head III. Over the years, Head’s lectures have inspired many Brown undergraduates to study space, “including Rich,” said Scott Murchie, who met Vorder Bruegge while both were graduate students.

Vorder Bruegge completed his bachelor’s degree in engineering in 1985, then secured a place on Head’s research team. He would study Venus’ mountain belts while earning a master’s degree and doctorate in planetary geology. He met his future wife, a fellow Venus researcher, and aspired to join the NASA space program.

Duane Bindschadler worked alongside Vorder Bruegge examining Soviet radar images of Venus’ surface. Vorder Bruegge was innovative from the start, Bindschadler said, “trying to come up with new interpretations or extract new information from them.”

The research required complex image analysis, said Murchie, now a planetary scientist at the Johns Hopkins University Applied Physics Laboratory. Vorder Bruegge was one of several impressive students working with Head in the late 1980s. (Ellen Stofan, director of the Smithsonian’s National Air and Space Museum, was another.)

“I have nothing but wonderful things to say about Rich,” Murchie said. “He was a young researcher with a great deal of integrity.”

Vorder Bruegge finished writing his doctoral thesis in October 1990 and went to work that same month for a NASA contractor in Washington. He was providing technical support for space missions, but he intended to make it a stepping stone. “The person whose job I took left to become an astronaut and that was actually something I was trying to do, so I thought it would be a good career move,” Vorder Bruegge said during a 2008 court hearing in which he was asked about his credentials and training.

NASA chose new astronaut classes in 1992 and 1994; Vorder Bruegge didn’t make it to the interview stage of the intensely competitive process either time.

In January 1995, he again veered onto an entirely different course, taking a position at the FBI Lab on what was then called the Special Photographic Unit. He’d examine security video rather than spacecraft images.

Vorder Bruegge’s move to the FBI surprised some of his colleagues, said Bindschadler, now a systems engineer at the NASA Jet Propulsion Laboratory. “Scientists with kind of an academic bent, that isn’t the first place you think that people are going,” he said. “Especially if they’re in the physical sciences. I doubt the FBI employs more than one geologist.”

Vorder Bruegge’s resume shows that, even with his Ivy League degrees and image analysis experience, he started with a two-year apprenticeship under the unit’s veterans, same as any other photo examiner. But he proved his value shortly thereafter.

The U.S. Supreme Court had recently raised the standard for scientific evidence to require proof that methods are reliable. No one had tested any of the FBI Lab’s long-standing photo comparison techniques, let alone proven them trustworthy. Defense lawyers might be able to block image examiners’ testimony from trials outright.

The high court’s opinion lists several ways a method can meet the new requirement, including “peer review” — scrutiny by outside experts — and publication in a scientific journal.

In a 1996 bombing and bank robbery case in Washington state, Vorder Bruegge identified bluejeans in surveillance footage as the pair seized from a suspect. He used one of the unit’s established techniques: matching the series of light and dark spots along the seams.

Vorder Bruegge’s testimony helped convict defendants in the bombings. Then he used the case to secure something vital for his team: publication in a scientific journal. The new image examiner wrote an article describing the unit’s method of comparing bluejeans’ seams in pictures and submitted it to the Journal of Forensic Sciences.

In the article, Vorder Bruegge used technical terms — “ridge-and-valley pattern” and “planar surface” — that echoed his doctoral thesis about mountains on Venus. He included pictures showing his results, zoomed-in images of bluejeans with arrows pointing where the seams and hemlines allegedly matched.

The journal accepted Vorder Bruegge’s article and published it in spring 1999. The article repeatedly acknowledged that the technique had not been validated. Nonetheless, court records show Vorder Bruegge referenced the article in at least a dozen trials and hearings as proof that the image unit’s methods were reliable evidence.

At ProPublica’s request, several forensic scientists, statisticians and clothes manufacturing experts reviewed Vorder Bruegge’s article. They said the FBI examiner’s central claims were misleading or wrong.

Building a Legal Foundation

But in the years after the article on bluejeans identification was published, Vorder Bruegge won acclaim for his work. Newspapers ran short articles characterizing the method as a forensic science breakthrough. In interviews, Vorder Bruegge gave credit to his predecessors at the FBI . “I’m really standing on their shoulders,” he told the Chicago Tribune in June 1999, adding, “It’s exciting to find ways to show that everything around us is unique.”

The television documentary series “Forensic Files” aired an episode about the Washington state case a couple of years later. It featured Vorder Bruegge extensively, even showing him outfitted in a full-length lab coat to take pictures of bluejeans.

Over the following decade, Vorder Bruegge went on a legal winning streak. He convinced judges across the country that unproven methods were sound science.

ProPublica searched court databases and found more than a dozen criminal cases involving Vorder Bruegge’s lab work since 2000. In those cases, judges overruled each request from defense lawyers to block his testimony. The FBI did not respond to questions about Vorder Bruegge’s casework.

Courts have historically permitted evidence from the FBI Lab, sometimes without considering its accuracy. “Jurors think that if you’re a big FBI examiner you know it all,” said Alicia Carriquiry, an Iowa State University statistics professor and director of the Center for Statistics and Applications in Forensic Evidence.

Vorder Bruegge’s statements contradicted his written lab results in at least three cases, court and FBI Lab records show. His testimony in several other trials indicate he improvised techniques.
In a 2002 trial highlighted in ProPublica’s investigation of image analysis, Vorder Bruegge testified that he had identified a defendant’s plaid shirt as the shirt a robber wore to seven banks during a spree in South Florida. He told jurors only 1 in 650 billion plaid shirts would randomly match as precisely as the defendant’s shirt.

None of Vorder Bruegge’s lab reports included calculations to support the statistics he gave in court. In fact, the reports said nothing about how he reached his conclusions. And for one of the robberies, Vorder Bruegge wrote he could not conclusively match the defendant’s shirt to the robber’s. He said the opposite on the stand, according to trial transcripts.

At the time, Vorder Bruegge led a group that wrote most of the guidelines for law enforcement image analysis. It compiled a list of criminal cases in which judges ruled that examiners’ testimony was scientific evidence. Those provided the field with a kind of legal foundation, giving judges a clearer path to admitting photo comparison evidence.

The plaid shirt case, U.S. v. McKreith, was the first to win clearance for image analysis. Vorder Bruegge’s facial comparisons in the South Carolina bank robbery case, U.S. v. Stroman, is another.
In child pornography cases, prosecutors must often provide evidence that video and pictures show actual children. Such “authentication” has become part of FBI image unit’s regular caseload. During a 2008 federal court hearing in Boston, the transcript shows Vorder Bruegge estimated a victim’s age in a picture based solely on the size of her breasts and pubic hair.

The image analysis group lists that case, U.S. v. Frabizio, as another piece of the field’s legal foundation.

In his presentations and articles,Vorder Bruegge hasn’t mentioned perhaps the most remarkable legal victory of his career. To bolster a conviction that was being challenged, Vorder Bruegge took the stand in 2010 to assail his field’s most common method and dispute his own lab results.

A jury had convicted 19-year-old Brian Avery in 1995 of participating in two armed robberies at Milwaukee convenience stores. Prosecutors built their case on witness identification and Avery’s confession during police interrogation, court records show. (Avery recanted his confession and declared his innocence thereafter.) The trial judge sentenced him to more than 20 years in prison.
Lawyers at the Wisconsin Innocence Project took up Avery’s case in 2007. They hired a video analyst to measure the robber’s height in surveillance footage. The images had been too fuzzy to use at trial. But in intervening years, software engineers had developed programs to filter and sharpen pictures and others to measure the distance between pixels.

FBI examiners have calculated criminals’ heights in pictures for decades using a collection of techniques called “photogrammetry.” Computers increasingly allowed the bureau and others to analyze low-quality images.

Avery stood 6 feet, 3 inches tall when police booked him into jail.

The innocence project’s video expert, unaware of Avery’s actual height, determined the robber was under 6 feet tall, according to court records. The defense lawyers filed a motion for a new trial.
Local prosecutors asked the FBI Lab to see if its own analysis could include Avery. Vorder Bruegge determined the robber could not have been taller than 6 feet, 2 inches, court records show. Therefore, the Lab’s own results also found Avery was at least an inch taller than the robber, which the defense team argued exonerated him.

However, Vorder Bruegge’s testimony at an appellate hearing did otherwise. He said the photogrammetry method is too imprecise to reliably rule out a suspect. “I am saying you can’t determine absolutely that it can’t be this person,” he said of Avery. “That is the bottom line of my examination.”

The bureau’s examiners have presented height measurements in court in scores of criminal cases.
Under cross examination, Vorder Bruegge acknowledged he knew Avery’s height before starting his analysis. That height — 6 feet, 3 inches — was what prosecutors hoped Vorder Bruegge would calculate for the robber. Such information can influence how an examiner performs lab work and reaches conclusions.

More than a dozen scientists and law professors filed a brief with the Wisconsin Supreme Court urging the judges to disregard the FBI examiner’s testimony as severely biased by trial records, especially details on Avery’s height.

The state Supreme Court did not disregard Vorder Bruegge’s testimony. Rather, the judges accepted his argument that height measurements aren’t scientifically reliable enough and denied Avery a new trial.

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.

Wednesday, February 13, 2019

Appeals Court Rules Key Anti-Age Discrimination Protections Don’t Apply to Job Seekers, Only Employees

by Peter Gosselin Feb. 12, 3:11 p.m. EST

In a decision last month, the 7th U.S. Circuit Court of Appeals in Chicago has sharply limited a federal law that protects workers who are 40 and older from age bias by ruling that key provisions only apply to those who already have jobs, not those seeking them.

The 8-4 decision, written by Circuit Judge Michael Scudder, a Trump administration appointee, said the “plain language” of the Age Discrimination in Employment Act shows that in enacting the measure, Congress aimed its sweeping prohibition against discrimination at employees but “did not extend that same protection to outside job applicants.”

The ruling prompted a fierce dissent from Circuit Judge David Hamilton, an Obama administration appointee, who accused the majority of taking a “deliberately na├»ve approach” to the law and “closing its eyes to fifty years of history, context and application.”

The ADEA’s anti-discrimination language originally matched that of the 1964 Civil Rights Act, which covers race, gender, religion and other categories. And for much of the last half-century, federal courts have treated provisions of the two laws as largely interchangeable.

The ruling came in a lawsuit brought by an Illinois lawyer, Dale Kleber, who was 58 in 2014 when he applied for a senior attorney position with CareFusion Corp., a unit of medical device maker Becton Dickinson & Co., but was passed over for an interview. The job eventually went to a 29-year-old candidate.

Kristen Cardillo, a spokeswoman for Becton Dickinson, said in statement the company was “pleased” with the decision. “Fostering an inclusive and diverse culture is at the very heart of our core values,” she said. Lawyers for Kleber said they haven’t decided whether to appeal to the U.S. Supreme Court.
The decision in the Kleber case is the second in which an appeals court has said that the ADEA’s strongest provisions only apply to employees and one in a string of cases since the 1990s that have shrunk what counts as age discrimination, giving employers new leeway to oust or refuse to hire older workers.

A deeply divided 11th U.S. Circuit Court of Appeals in Atlanta ruled in 2016 that executive Richard Villarreal, then 49, had not suffered age discrimination when a subcontractor for R.J. Reynolds Tobacco Co., following Reynolds guidelines, discarded his resume and those of almost 20,000 other older applicants in hiring a regional sales manager. Among other things, Reynolds’ lawyers argued that if the law was read to apply to applicants it could prohibit hiring programs for internships and entry positions aimed at young people and “impose massive litigation costs on employers.”
The majority in the Chicago case cited the Villarreal decision in ruling against Kleber.
Sen. Robert Casey, a Pennsylvania Democrat who’s the ranking member on the Senate Select Committee on Aging, called the new decision “yet another example of the discrimination that older workers face – either on the job or while applying for a job.”

Casey called for strengthening the ADEA.

Dara Smith, a senior attorney with the AARP Foundation who represented Kleber, called the Chicago ruling “very disappointing and frustrating” and said it means that the ADEA is “not particularly useful for older job applicants.”

While she said the law still bans explicit age limits in job postings, she acknowledged the prohibition is weak. The Chicago court rejected Kleber’s argument that the language in CareFusion’s job ad, which asked for applicants to have “no more than 7 years” experience, effectively ruled out older workers like him from applying.

Under the law, older applicants and employees can still prevail if they can prove employers intentionally discriminated against them. But in a 2009 decision, the Supreme Court set a higher bar for proving intentional age bias than for any other type of legally prohibited discrimination, saying that age must be the sole reason for a worker being unfairly treated.

The issue of whether anti-age discrimination protections cover job applicants has taken on new importance as evidence has mounted that older workers are more apt than generally appreciated to lose longtime jobs and have trouble getting hired for anything like comparable work.
ProPublica and the Urban Institute, a Washington think tank, analyzed data from a government-funded study that since 1992 has followed a nationally representative sample of Americans from the time they turn 50 through the rest of their lives.

The analysis, published in December, showed that between entering the study and leaving paid employment, 56 percent of older workers were laid off or left longtime jobs under such financially damaging circumstances it’s likely they were forced out. Only one in 10 of these workers ever again earns as much as they did before their employment setback.

In both the Chicago and Atlanta cases, the decisions that federal anti-age bias protections don’t apply to job applicants prompted sharply worded dissents.

The dissenters argued that drawing a line between employees and job applicants ignores the intent of the legislators who wrote and enacted the ADEA. “In simple terms,” said Ralph Yarborough, a U.S. senator from Texas who was the measure’s chief sponsor, during a hearing, “this bill prohibits discrimination in hiring and firing.”

Hamilton, who wrote the dissent in the Chicago case, said the majority decision “undermines the stated purpose of the statute…to address unfair employment practices that make it harder for older people to find jobs.”
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Tuesday, January 29, 2019

Power to the (rich) people!

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Why Aren’t Hedge Funds Required to Fight Money Laundering?

For many years, the federal government has required banks, brokerages and even casinos to take steps to stop customers from using them to clean dirty money.

Yet one major part of the financial system has remained stubbornly exempt, despite experts’ repeated warnings that it is vulnerable to criminal manipulation. Investment companies such as hedge funds and private equity firms have escaped multiple efforts to subject them to rules meant to combat money laundering.

The latest attempt, which began in 2015, appears to have ground to a halt, according to sources familiar with the process.

“You’ve got several trillion dollars, the management of which nobody is required to ask any questions about where that money is coming from,” said Clark Gascoigne, deputy director of the Financial Accountability and Corporate Transparency Coalition. “This is very problematic.”

The Financial Action Task Force, an intergovernmental organization that seeks to combat money laundering around the world, characterized the lack of anti-money laundering rules for investment advisers, such as those who manage hedge funds and private equity funds, as one of the United States’ most significant lapses in a report two years ago.

The push to regulate hedge funds and similar investment firms took off after the Sept. 11 attacks, when Congress passed the Patriot Act. Among other things, the law required federal agencies to take new steps to keep illicit money out of the U.S. financial system. The Treasury Department exempted investment firms at the time, planning to return to them after tackling other sectors. “Eighteen years ago, the Patriot Act required investment companies to install their own AML [anti-money laundering] programs,” said Elise Bean, a former staff director of the U.S. Senate investigations subcommittee who supports the proposed rule. “But Treasury has yet to enforce the law,” she said.

The Treasury Department, through its Financial Crimes Enforcement Network, or FinCEN, initially proposed rules in 2002 and 2003 requiring firms like hedge funds and their investment advisers to adopt anti-money laundering measures. That attempt languished as FinCEN waited for the Securities and Exchange Commission to retool its approach, said Alma Angotti, who wrote the original proposal while at FinCEN and is now co-head of global investigations for the consulting firm Navigant. So much time passed that FinCEN withdrew the proposed rules in 2008. FinCEN then launched its second attempt to impose such regulations seven years later.

That second attempt is the one that has now crawled to a virtual stop. “It’s the kind of thing that should have taken two to three years, not 17,” said Joshua Kirschenbaum, senior fellow focusing on illicit finance at the nonpartisan think tank the German Marshall Fund and a former supervisor in FinCEN’s enforcement division.

Hedge funds and private equity funds can be attractive to big-dollar launderers who prize the funds’ anonymity, the variety of investments they offer and, in some cases, their use of off-shore tax and secrecy havens, experts say. After 2001, the number of annual hedge fund launches surged more than threefold, according to one report, and investments by high net worth individuals exceeded those of institutional investors.

“They’re a black box to everyone involved,” Kirschenbaum said. “They’re sophisticated and can justify moving hundreds of billions.”

Money launderers seek to hide illicit proceeds by making it appear they come from legal sources. Laundering hides crimes as diverse as drug dealing, tax evasion and political corruption. Experts say the massive, untracked streams of cash it creates can fuel more illegal activity, including terrorism.
That’s one reason banks are required to implement protocols aimed at identifying and reporting dodgy transactions to authorities, and verifying that customers are who they say they are.
FinCEN’s latest proposed rule targets investment advisers who manage funds for clients such as hedge funds. The rule would apply primarily to the largest advisers with $100 million or more in assets under management, who are required to register with the SEC.

“As long as investment advisers are not subject to AML program and suspicious activity reporting requirements, money launderers may see them as a low-risk way to enter the U.S. financial system,” the proposed rule states, noting that in 2014, 11,235 advisers registered with the SEC reported roughly $61.9 trillion in assets for their clients.

Foreign political corruption is one of the money laundering risks for investment advisers, Angotti said. Instead of needing quick access to their money, the ultra-wealthy involved in such graft often want to park their illicit profits somewhere safe, making them more tolerant of fund rules that can delay withdrawals for a year or more.

Having federal anti-money laundering protocols is no panacea. Regulators periodically conclude that certain banks and brokerages are not abiding by various aspects of the rules. Last year, for example, regulators announced more than $2 billion in penalties against Morgan Stanley Smith Barney, Charles Schwab & Co., UBS Financial Services, CapitalOne Bank and others, according to a company that tracks such enforcement. (The companies neither admitted nor denied the allegations against them.)
Experts say it’s impossible to quantify how much money may be laundered through hedge funds. And prosecutors retain the right to charge such a fund if it is proven to have participated in money laundering; but without the FinCEN rules, regulators cannot fine the fund’s managers for, say, not taking steps to prevent abuse.

There are multiple reasons the attempts to adopt rules have bogged down. The principal ones include the financial industry’s cascade of requests for modifications to the rule and inertia among federal bureaucracies, according to people familiar with the process.

The industry has tended to proclaim that it favors the principle of anti-money laundering rules — while simultaneously contesting many of the specifics. Several industry groups contend that the proposed rule overstates the risk that private equity funds will be used for illicit finance.

“We’re very supportive of having an aggressive AML regime,” said Jason Mulvihill, general counsel of the American Investment Council, which represents private equity funds. But, he added, “if you were trying to launder money, the last place you’d want to put it is in a private equity fund” because of the industry’s standard practice of requiring investors to leave their investments in place for 10 years. And, he added, most private equity firms already have some anti-money laundering policies in place, just in case.

Mulvihill’s organization has proposed that FinCEN exclude advisers who require investors to hold their investment for more than two years — a carve-out included in the original FinCEN proposal — which effectively would allow most private equity funds to remain exempt from the anti-money laundering rule.

The Investment Adviser Association also supports the goal of the regulations, said Karen Barr, the group’s president and CEO. But it worries that some advisers will need to implement costly changes that aren’t warranted. Those include advisers who also have clients for whom they provide recommendations, not money management. “We think investment advisers are a low risk because they don’t hold assets,” she added. More than half have 10 employees or fewer, she said, and “the sort of cumulative effect of all these regulations on small shops is really burdensome.”

In response to a request for an interview, a spokesman for the Managed Funds Association, which represents hedge funds, referred to a letter the group sent FinCEN in 2015, in which it stated that it “strongly supports adoption of the Proposed Rule.” The letter also included 25 pages of “background,” suggestions and requests for clarification.

Industry concerns were not the only reason for the rule’s stasis, said former FinCEN employees who spoke with ProPublica. They said staffing, competing agency priorities and other factors also contributed. The Trump administration’s general slowdown in rule-making added to delays, they said.
The rule’s implementation would also require coordination with the SEC, whose job it would be to make sure investment advisers are complying. Policing advisers has not been a major priority for the agency, which five years ago examined only 8 percent of registered advisers. The agency increased the number to 15 percent in 2017.

FinCEN and Treasury spokespeople did not return calls or provide answers to questions about the proposed rule that ProPublica sent by email. Many Treasury employees are not working because of the government shutdown. A spokesman for the SEC said the agency could not answer questions about the rule until the shutdown ended.

Seeing the rule flounder is vexing for Angotti. Some firms may be effectively executing their own anti-money laundering measures, she said. But without more scrutiny, she said, “who knows?” Such steps are expensive “and it requires them to turn away business,” Angotti said. “Without strong enforcement, it’s hard to get businesses to do this stuff.”
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