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Oct 29, 2016

And justice for some

Co-produced with PRX Logo

Unless you’ve been caught up in the justice system, most of our understanding of courts come from what we see on TV.

In popular dramas like “Law & Order,” everyone gets a lawyer, the crime is usually solved in a neat and timely way, and – of course – justice is served. But in real life, it doesn’t always work that way. On this week’s episode of Reveal, we take a look at the cracks in the system that prevent people from getting a fair shake.

Take something as simple as bail. It’s supposed to keep you from languishing in jail while you wait for your day in court.

On July 10, 2015, Sandra Bland was arrested during a traffic stop and couldn’t post the $515 bond to get out of Waller County Jail in Hempstead, Texas. Three days later, she was found hanged in her cell. Her death was ruled a suicide. Many experts say Bland should never have been in jail in the first place.

Getting locked up for failure to pay bail affects hundreds of thousands of other people across the country.

This week, we’re going to begin an occasional series we’re calling And Justice for Some – an investigation into how the courts treat people differently, depending on how much money they have, their race or gender.

Our partners at the Houston Chronicle start us off with a look at the Harris County Jail, the third largest in the country. Even a short stay at the Harris County Jail can be life threatening –  especially for defendants with depression, mental illness or chronic health problems. A Houston Chronicle investigation found that from 2009 to 2015, 55 people died in the Harris County Jail – pretrial.

Producer Peter Haden takes us to bond court, where large groups of defendants pour into the room every three hours in a process that feels like a cattle call. They appear in front of a judge and a prosecutor through a video link on a big TV set. No defense lawyers are there. An individual hearing can take less than a minute.

Critics say the bonds, even amounts as low as $500, hurt poor people the most. And that has a disproportionate impact on communities of color. Sometimes, defendants will plead guilty to crimes they didn’t commit just to get released.

In New Mexico, a Supreme Court justice is trying to reform the cash bail system in a state that for years has had one of the highest pretrial detention rates in the country.

The United States and the Philippines are the only two countries in the world where bail is a commercial business. And here, it’s a multimillion-dollar industry wedged between the desire to protect poor people who can’t afford bond and the public against suspects accused of violent crimes who can afford to pay for their release.

But changing the bail system can be bad for business for some people. Dog the Bounty Hunter is involved in efforts to kill the reform proposed by New Mexico Supreme Court Chief Justice Charles W. Daniels that, if approved by voters next month, would amend the state constitution.

Jeff Proctor, of New Mexico In Depth, and Reveal’s Andy Becker, bring us the story.

Being poor isn’t the only thing working against people who show up at court. Our final story is about a mother in Alabama fighting to regain custody of her daughters.

A courtroom can be a terrifying place. The language of the court is complicated even for native English speakers. Language issues are compounded for non-English speakers. State courts across the country are required to provided interpretation in criminal trials and juvenile cases.

For 16 years, the Justice Department has made it clear – courts that receive federal funding are required to comply with Title VI of the Civil Rights Act of 1964, which includes providing interpreters.

But some state courts have been slow or unwilling to comply. In 2005, a Tennessee judge mandated that a mother who speaks Mixteco, an indigenous language from Mexico, learn English in order to get her kids back. In 2008, the Mississippi Department of Human Services took away the newborn baby of a woman who spoke another indigenous language, Chatino, without giving the mother an interpreter. In Nebraska, in 2009, a mother from Guatemala had her kids taken away. She was never given an interpreter and was deported back to her home country.

In practice, the judge in each courtroom has discretion over whether to offer interpretation. Ashley Cleek brings us the story of a Mixteco-speaking mother in Alabama, and how a case can go wrong without an interpreter.

Dig deeper

Credits

Support for Reveal is provided by The Reva and David Logan Foundation, the Ford Foundation, the John D. and Catherine T. MacArthur Foundation and Mary and Steven Swig.

Track list:

  • Camerado, “True Game (Reveal show theme)” (Cut-Off Man Records)
  • Keith Fullerton Whitman, “Stereo Music for Yamaha Disklavier Prototype, Electric Guitar and Computer” from “Multiples” (kranky)
  • Nick Jaina, “Travelogue (Instrumental)” from “Brutal Lives (Instrumentals)” (Needle Drop Co.)
  • Blue Dot Sessions, “A Certain Lightness” from “Migration
  • Ars Sonor, “The Final Journey (Home is Where Your Heart Is)” from “Future Journeys”
  • Blue Dot Sessions, “In Passage” from “Migration”
  • Blue Dot Sessions, “Thread of Clouds” from “Migration
  • David Szesztay, “Look Of A Lover” from “Atmospheric Electric Guitar” (Needle Drop Co.)
  • David Szesztay, “First Step Inside” from “Atmospheric Electric Guitar” (Needle Drop Co.)
  • Will Bangs, “I'll Miss You” from “Collected Recordings for Video” (Needle Drop Co.)
  • Yo La Tengo, “Autumn Sweater (Tortoise Remix)” from “A Lazarus Taxon” (Thrill Jockey)
  • Lake Mary, “Solitary Trees Marked Distant Hills Like Obelisks” from “And The Birds Sing In Chorus First” (Eilean Records)
  • Lake Mary, “To Kill A Man With Two J's In HIs Name” from “Bicycles & Breakfast” (Eilean Records)
  • Lake Mary, “Future Sounds Of Ghosts” from “Bicycles & Breakfast” (Eilean Records)
  • Lake Mary, “Surfca” from “Everything is Wrong, Everything Is Fine” (Eilean Records)
  • Robin Allender, “An Uneven Lie” from “Foxes In The Foyer” (Needle Drop Co.)
  • Robin Allender, “Instar (Instrumental)” from “Above the Dreamer's Head (Instrumentals)” (Needle Drop Co.)
  • Robin Allender, “Gravestones” from “Foxes In The Foyer” (Needle Drop Co.)
  • Can, “Vitamin C” from “Ege Bamyasi” (United Artists)
  • Alex Fitch, “Seeking Clarity Pt II” from “Collections For Film” (Needle Drop Co.)
  • Lake Mary & M. Sage, “Howl (I Know)” from “Wolfwalkers in Daylight” (Eilean Records)
  • Lake Mary, “For atrophe” from “Everything Is Wrong, Everything Is Fine” (Eilean Records)
  • Lake Mary, “It's In The Letting Go” from “There Are Always Second Chances In The Mountains” (Eilean Records)
  • Lake Mary, “Lake Mary” from “Sheep Dog EP” (Eilean Records)
  • Lake Mary, “Snow Owl” from “Lake Mary EP” (Eilean Records)

TRANSCRIPT:

Reveal transcripts are produced by a third-party transcription service and may contain errors. Please be aware that the official record for Reveal's radio stories is the audio.

Section 1 of 5          [00:00:00 - 00:10:04] (NOTE: speaker names may be different in each section)

Al Letson:

From the Center for Investigative Reporting and PRX, this is Reveal. Susan Trinkline tried to track down her brother Gary after he was arrested for trespassing and couldn't afford bail.

Susan:

They would not tell me anything, they would not answer any question.

Al Letson:

She eventually found out that he got sick while in police custody and ended up dying in the hospital alone.

Susan:

To let people just disappear, and that's what I feel happened to my brother. He just disappeared because there was no one there to fight for his rights.

Al Letson:

On this episode of Reveal how cracks in the system are throwing the scales of justice out of balance. From the Center for Investigative Reporting and PRX, this is Reveal. I'm Al Letson. If you haven't been caught up in the justice system, I think that many American's understanding of courts comes from what we see on TV. In those dramas, everyone gets a lawyer, the crime is solved by the time the show is over and justice is served. In real life, it doesn't always work out that way. There are huge cracks in the system that prevent people from getting a fair shake.

 

Take something as simple as bail. It's supposed to keep you from languishing in jail while you wait for your day in court, but what happens if you can't make bail? If you just don't have the money, or if you don't have any close friends of family who can help out. On July 13th, 2015 that's exactly what happened to Sandra Bland.

Police:

Hello ma'am. The reason for your stop is you failed to signal the lane change. Do you have your license and insurance on you? What's wrong?

Al Letson:

She was pulled over for a minor driving violation. A simple traffic stop escalated.

Police:

Stand outside of the car.

Sandra:

You don't have the right.

Police:

Stand out of the car.

Sandra:

You do not have the right to do that.

Police:

I do have the right. Now step out or I will remove you.

Sandra:

I refuse to talk to you other than...

Al Letson:

Sandra was taken to the Waller County Jail in Hempstead, Texas. She needed just $515 to post bond and get out of jail, but couldn't raise it. Three days later, she was found hanged in her cell. Her death was ruled a suicide. Sandra Bland became one of the biggest stories in 2015. Many experts say she should never have been in that jail in the first place. I recently spoke with Sandra Bland's mother Geneva Reed Veale, who told me she still can't believe what happened.

Geneva:

You wake up as a parent and you say this is still not real. Even thought you know you put your baby in the ground, even though you know you have a death certificate, even thought you know you've been to the cemetery. It's still feels unreal.

Al Letson:

Yeah.

Geneva:

Honestly.

Al Letson:

A part of the story that we're working on is basically people being held in jail with a bail that they can't pay. When they actually could be released on personal recognizance for free. In a way they figure out whether a person can be released by personal recognizance is by looking at the chances of them coming back. Looking at whether or not they are a risk to society. Was Sandra a threat to society?

Geneva:

No, she was not a threat to society. Are you kidding me?

Al Letson:

Would she have come to a court date?

Geneva:

Of course she would have. She was excited about getting back to the area and also working on her masters in Political Science, along with being a student ambassador as well. I cannot tell you why she was not offered personal recognizance. I have no idea, but I am of the belief that yeah, she should've been able to walk right out of there. Unfortunately, she was not able to do that.

Al Letson:

She wasn't able to do that, and neither are hundreds of thousands of other people across the country. Former attorney general Eric Holder estimated that the cost of holding all of these people in jail is about 9 billion dollars a year. He said that two-thirds of them are nonviolent offenders like Sandra Bland. This week we're going to begin an occasional series we're calling "And Justice For Some." Looking at how the court's treat people differently, depending on how much money they have, race, gender. Our partners at the Houston Chronicle start us off with a look at the Harris County Jail, the third largest in the country. Peter Haden brings us the story.

Susan:

Oh this picture I love. This was picture of him, he is out in our backyard playing in the dirt like little boys will do.

Peter Haden:

At her home outside St. Louis, Susan Trinkline is still trying to fill in the gaps of what happened to her brother Gary Fraizier. She was about to get on a plane to Europe last May when she got a call. It was a doctor in LBJ hospital in Houston who said Gary was there. That he was unconscious and in the ICU. After arriving in Europe, she called the hospital again.

Susan:

My call was forwarded to a sheriff's officer.

Peter Haden:

What did they say he had been arrested for?

Susan:

They would not tell me anything. They would not answer any questions at all.

Peter Haden:

Susan kept calling. Finally, one of the deputies helped her out.

Susan:

He told me that my brother was arrested for trespassing. I said, "You're kidding?" So he's got a deputy officer posted outside of his room, and He was only arrested for trespassing?

Peter Haden:

An officer's report said that he had found Gary sleeping near a Houston grocery store and arrested him. Gary was homeless and had some previous run in's with the law. Misdemeanors for public intoxication and substance abuse, trespassing, and theft, but when he was arrested this time, he was very sick. Susan finally got one of Gary's doctors on the phone. He said Gary had throat cancer and a severe case of pneumonia that caused his body to go into septic shock. The doctor himself was shocked that the sheriff's office wouldn't let Gary's family speak to him.

Susan:

He was like, "This is absurd." He said, "You know, your brother is in very serious condition and it's very possible that he may not live many more days," so he said to me, "You let me handle that."

Peter Haden:

The next day, a phone was put in Gary Frazier's room. Susan called, but Gary was too sick to speak.

Susan:

I of course told him that I loved him, and that you know, tried to talk about some fun times that we'd had, or some good things, good memories. I actually literally stayed on the phone listening to a machine and every now and then I would say, "Are you still there?" At some point in time, I heard a nurse come in to the room, and it sounded like the phone fell and she just hung up the phone. My brother died the next day. He had fallen into what you might say a big void, a hole.

Peter Haden:

That hole was the Harris County criminal justice system.

Male:

Gentlemen, are there any ladies here, I don't see.

Susan:

Yes.

Peter Haden:

Normally, people arrested in Harris County are brought here, Harris County probable cause court.

Male:

Each of you is charged with either a Class A or B misdemeanor or a felony. I'm going to determine whether probable cause exists to further hold you, and then I'll set a bond on each of your cases.

Peter Haden:

It's a dingy room in an old brick building near the jail. The room is lined with rows of wooden benches like church pews. At the far end of the room, there is a big TV set. In front of a square marked off on the floor in red tape, that's where the defendants stand.

Male:

You have a number of rights that are available to you. You have the right to remain silent.

Peter Haden:

Under Texas law and the U.S constitution, defendants are entitled to a bond hearing, but in Harris County, the process is something like a cattle call. Big groups of defendants pour into the room every three hours. They appear in front of a judge and a prosecuter through a video link on that big TV set. No defense lawyers are there. An individual hearing can take less than a minute.

Male:

You also have the right to an attorney whether you can afford one or not. If you cannot afford one, one will be appointed to represent you.

Peter Haden:

Trespassing is a misdemeanor charge, and the maximum penalty is usually a small fine or a few days in jail. We don't have tape of Gary Frazier's hearing, but here's how the process went for another guy who was recently charged with that crime.

Male:

Edward [inaudible 00:09:10], so you're charged with trespass.

Speaker 11:

Your honor, the suspect was found under a freeway or a freeway underpass where there are no trespassing and no camping signs, and he has previously been given a criminal trespass warning about being in that location.

Male:

Probable cause? Sir, have you ever been handled by the mental health people?

Speaker 12:

No sir, your honor.

Male:

All right. I'm setting your bond at $5,000. Are you going to be asking for a court appointed attorney?

Speaker 12:

Yes sir.

Male:

All right. Silly question for me. You got to sleep under a bridge, poor gentleman can't afford a lawyer that's for sure.

Peter Haden:

That assumption was not made for Gary Frazier. He couldn't attend his bond hearing, he was too sick lying in a jail infirmary. A judge went ahead and set his bond at $5,000.

Section 1 of 5          [00:00:00 - 00:10:04]

Section 2 of 5          [00:10:00 - 00:20:04] (NOTE: speaker names may be different in each section)

Peter Haden:

Infirmary, so a judge went ahead and set his bond at $5,000 and because he wasn't there, he couldn't ask for a court-appointed attorney, so he never got one, and because he couldn't pay, he remained stuck in jail.

Rodney Ellis:

He was never given a lawyer to represent him and I got serious problems with that. It's a Constitutional requirement.

Peter Haden:

Texas state Senator Rodney Ellis co-wrote the Texas Fair Defense Act in 2001. The law guarantees that people who get arrested get a lawyer and a bond hearing within a reasonable amount of time, usually a couple days.

Rodney Ellis:

We are required in this nation of laws to give someone a lawyer if they cannot afford one. That doesn't mean that you get to bypass that because somebody is in a hospital. If they're in a hospital and not of their own free will and being detained by you, you ought to give them a lawyer. That's just ridiculous.

Peter Haden:

Ellis is an outspoken critic of Harris County's pre-trial detention policies, including a rigid bail system called The Bond Ladder. Judges use it to assign one size fits all bail amount for defendants based on their alleged crime with no meaningful assessment of their risk or ability to pay. The result: Over 70% of the people in Harris County jail at any given time have not been convicted of a crime. That's about 6,000 people awaiting trial. Many just too poor to buy their way out.

Rodney Ellis:

What we have right now here in Harris County is a system where your income is determining whether or not you're innocent, and that's just not right. System's awful. It's rotten and it stinks like hell.

Peter Haden:

A diverse mix of government officials, lawyers, and legislators say the Bond Ladder system likely violates both state law and the US constitution. John Wool is director of the Vera Institute of Justice in New Orleans. It's a non-partisan research organization focused on improving the criminal justice system. Wool says financial bonds, even small amount like $500, hurt poor people the most. That has a disproportionate impact on some communities.

John Wool:

Black people are jailed at a rate four times higher than white people. Latinos higher than white people as well, although not as extreme as black people. That's an extremely damaging social phenomenon.

Peter Haden:

Sometimes defendants will plead guilty to crimes they didn't commit just to get released.

John Wool:

It's very telling when we incarcerate people pre-trial when they enjoy the presumption of innocence and then as soon as they plead guilty in large numbers of cases, then we allow them to be at liberty. You know we've got something backwards when we're letting people out only after they're convicted.

Peter Haden:

Even a short stay at the Harris County Jail can be life-threatening, specially for defendants with depression, mental illness, or chronic health problems. A Houston Chronicle investigation found that from 2009 to 2015, 55 people died in the Harris County Jail pre-trial.

Lauren Carruba :

Howard Graham, drug possession. Mark Giles, theft under $1,500.

Peter Haden:

My colleague, reporter Lauren Carruba, reads from the list.

Lauren Carruba :

Fernando Ariano, DWI and three people who were charged with trespassing.

Peter Haden:

Eight defendants were too ill to appear at their initial bail hearings, so their individual circumstances were not considered by the judges who set their bond. Gary Frazier, the man who was arrested for trespassing, was one of them. Even people who can't afford bail can face real risks in jail.

Ahmed:

This is getting bad and I feel like I'm about to throw up.

Peter Haden:

Ahmed Al [inaudible 00:13:47] is 28. He's a muscular sales clerk at a big box store and he's managed his Type 1 Diabetes ever since he was a kid without problems, but Ahmed barely survived his one and only trip to Harris County's troubled lockup. The Houston Chronicle interviewed him in 2015. He'd been arrested on a DUI charge and was being held until he could post bond. His insulin had been confiscated and the guards didn't seem to care.

Ahmed:

"You know, I really need my insulin. I'm diabetic," and he goes, "There's about 22 diabetics in here. If we let you just go have yours, we've got to let them have their medicine too."

Peter Haden:

Medical records show Ahmed begged for insulin for 30 hours before being rushed to the hospital. By them he was vomiting and nearly in a life-threatening coma.

Ahmed:

It's not like insulin is a new thing. Side effects are understood, everybody knows what could happen when you take it. I don't feel like I should or anybody in my situation should have to wait a day and a half for a doctor to see them. To say, "Hey, okay. Cool. You need to stay on the medication that you said you needed to begin with."

Peter Haden:

Across the country, over 5% of local jail inmates have have diabetes according to The US Department of Justice. More are depressed and potentially suicidal like [inaudible 00:15:04]. Suicide is the number one cause of death in jails according to the DOJ. You can see reported nearly 970 inmates died in local jails in 2013 and that number is on the rise. Suicides and other jail deaths have become such a big problem in Texas state lawmakers are holding special meetings on the issue.

John Whitmire:

The 10 that passed in September. We got 10 folks that have committed suicide and darn near every one of them's with a sheet.

Speaker 6:

Yes, sir.

John Whitmire:

Can we run a jail without a sheet if that's going to be the one that they use?

Peter Haden:

Senator John Whitmire chairs the Texas Senate Criminal Justice Committee. He says problems at the jails are an issue of bad management and policy making.

John Whitmire:

It's a symptom of our broken criminal justice system. We have 181 [inaudible 00:16:00] in Texas. 150 House members, 31 Senators. Quite frankly, most of them just don't have a lot of contact with criminal justice. I don't know if they know anybody that's ever been arrested or aware that you can be driving down the street and you've got some outstanding traffic tickets because you're broke and you need to pay your electric bill, and you can get pulled over and you'll end up in the Harris County Jail. You'll stay there if you can't post bond.

 

I actually asked the sheriff in one of our small jurisdictions, "What happens to a diabetic?" He said, "You're probably going to have to go into a coma and then they call 911."

Peter Haden:

Harris County Sheriff Ron Hickman is taking steps to improve training for his jailers, but he says he doesn't have the resources to keep the massive jail population safe. This is Sheriff Hickman at a recent press conference held in response to another pre-trial death. This time a guy accused of stealing a guitar was beaten to death by two other inmates in a holding tank.

Sheriff Hickman:

We're several hundred employees short within the jail system now and we're only able to operate by pulling other people in to pull double shifts, which is very hard on your staff.

Peter Haden:

Judges can, if they choose, grant personal bonds to defendants. With personal bonds or PR bonds, bail fees are waived in exchange for a promise to appear in court, but in 2014, Harris County judges granted personal bonds to only about 1% of felony offenders and 9% of misdemeanor offenders. Judges say they're worried about releasing people who could go out and cause more problems.

Mike McSpadden:

Our defendants here in Harris County have an abysmal record of staying clean on bond.

Peter Haden:

That's district Judge Mike McSpadden.

Mike McSpadden:

We just don't see a lot of clean people with absolutely no record coming through our courts these days. I wish we did. It'd be easy.

Peter Haden:

We have to speak with judge Larry Stanley about Gary Frazier's case to find out if he knew Gary was dying while in custody and had never been appointed an attorney. He wouldn't talk to us, but other judges told us they need better information about the people appearing before them. In some cases they say they weren't told that defendants were sick, suicidal, or dying.

Susan:

It was my job to rock him and get him to sleep.

Peter Haden:

When they were kids, Susan always took care of her brother, Gary.

Susan:

I would lay in bed with him, and I would sing him songs, and rub his head until he would fall asleep.

Peter Haden:

She remembers him as a bright kid who loved art in high school. He served two years in the Navy and when he got out, he never quite found his place. He drifted for a while and then he wound up in Houston where ...

Susan:

He decided that he just was going to live on the streets.

Peter Haden:

Susan says since Gary died, it's been tough getting information out of the Harris County Sheriff's Office. Now that she knows what happened to him, she says there's one thing that she just can't shake.

Susan:

If he had to appear on a video tape to get an attorney. To be able to say, "Yes, I want an attorney," who doesn't want an attorney when they've been arrested? To let people just disappear. That's what I feel happened to my brother. He just disappeared because there was no one there to fight for his rights.

Speaker 10:

That's [inaudible 00:19:39] from Peter Haden, with reporting from James Pinkerton, Lauren Carruba, Anita Hassan, and edited by Lisa Olsen of Houston Chronicle. Their reporting has drawn the attention of a non=profit, who earlier this year sued Harris County in federal court over its pre-trial detention policies. The case is still pending. Coming up, New Mexico's trying to bring down the ...

Section 2 of 5          [00:10:00 - 00:20:04]

Section 3 of 5          [00:20:00 - 00:30:04] (NOTE: speaker names may be different in each section)

Al Letson:

Coming up, New Mexico's trying to bring down the number of people who stay locked up before trial because they can't make bail. It's an uphill battle. That's next on Reveal.

Amy:

Hi Reveal Podcast listeners. Reporter Amy Julia Harris here. Earlier this year I exposed how religious day cares can operate without state oversight and put kids in danger. We've got some updates on that reporting. In Florida, there are groups that are supposed to be monitoring religious day cares, but they're not always doing their jobs and they've let dangerous providers get back in business.

 

There's a new Change.org petition that calls on Congress to close a loophole that allows religious day cares to operate without oversight. It's got more than 41 thousand signatures so far. If you want to read more about both of these stories, visit RevealNews.org.

Al Letson:

From the Center for Investigative Reporting and PRX, this is Reveal. I'm Al Letson.

 

You may not realize this but the bail system we've been talking about it is pretty unusual. The United States and the Philippines are the only 2 countries in the world where bail is a commercial business. Here in the US it's a multi-million dollar industry and that leads to a lot of scenes like this one, playing out every day.

Judge:

Versus Thomas [Chesinsky 00:21:24].

Al Letson:

It's a typical morning in Albuquerque Metro Court.

Judge:

Sir, did you hear the advice of rights that was read earlier?

Tom:

Yes ma'am.

Al Letson:

The man the judge is talking to is in the county jail wearing an orange jumpsuit. He appears in court by a video feed.

Judge:

You understand your rights this morning?

Tom:

Yes ma'am.

Al Letson:

His name is Tom Chesinsky. He's a retired architect. He'd been touring the western US in his motor home when police arrested him in June for a DWI, driving while intoxicated. They hauled him off to jail. This was his first court appearance.

Judge:

You're charged in this case with aggravated DWI. The penalty is a minimum of 2 days up to 90 days in custody and up to a 300 dollar fine. You're also charged with reckless driving, which is up to 90 days in custody and up to a 300 dollar fine.

Al Letson:

Tom has pronounced jowls and a ski slope nose. The resemblance to Richard Nixon is striking. In jail, the inmates nicknamed him Mr. President. The judge sets bond for Tom. He has to come up with 500 dollars to get out of jail while he awaits trial.

Judge:

Okay, well you have to stay in New Mexico, you understand that, right?

Tom:

Correct.

Judge:

Okay. We're going to give you your next court date today. You need to make sure that you show up for it.

Tom:

Okay.

Al Letson:

Tom lives on a fixed meager income so he doesn't have that much cash and can't make bond. He gets taken away to jail until his court date. Tom's story sounds a lot like what we've heard happening in Houston, but in New Mexico there's a twist. A state court justice wants to change the system and he's helping to put a constitutional amendment before voters that he says will protect people like Tom.

 

Jeff Proctor of the non-profit newsgroup, New Mexico In-Depth, picks up the story.

Jeff Proctor:

For most of us, 4 decades practicing law, Charlie Daniels didn't pay much attention to cash bail, but he new something wasn't right. It took a murder case to snap the problem into focus.

Charlie:

I've always had an uneasiness about this money bail system, but I never really focused on it that much as a lawyer, which I was for 38 years.

Jeff Proctor:

Daniels has been on the New Mexico Supreme Court since 2007 and is now Chief Justice. He never gave cash bail much thought until 2014 when the court got an unusual case brought by a murder suspect. Walter Brown was accused of stabbing a man to death in 2011. He stayed locked up for almost 3 years without going to trial. He couldn't afford the 250 thousand dollar bond that the judge had set.

Charlie:

What judges will do, being humans and caring about the community, will be to sort of stretch the law and faced with the choice of violating their oath of office which says the person is entitled to be released on bond under the constitution, or protecting the communities, some of them will stretch and set an amount of bond they don't think the person can meet. Sometimes they're right and the person is held in jail, and sometimes they're wrong and the person goes out and does something horrible.

Jeff Proctor:

Daniels understands judges are torn between protecting a defendants constitutional rights and the need to protect the community. Instead of using bail as a way to ensure that a person comes to court as intended, it's used to keep people locked up, whether they pose a risk or not. For Daniels and the other justices, the Brown case was eye opening.

Charlie:

We got a real graphic look at what was going on in the ground in the state and saw that terrible adverse consequences and abuses of the concept of justice that were going on because of this money system.

Jeff Proctor:

While it was terrible crime, the court agreed Brown's bond was set too high and ordered him released. A month later the case was thrown out all together after a trial judge ruled his right to a speedy trial was violated. Justice Daniels also issued an opinion on the entire bail bond system, reminding judges they couldn't set bonds so high there was no way someone could pay. Many judges still felt they faced an almost impossible choice, a person's freedom versus the community's safety.

 

But what about when the case is not a matter of life and death? Many people who can't post bond are facing misdemeanor charges. People like Tom Chesinsky who's charged with drinking and driving.

Tom:

I'm not a violent person. I'm not a threat to society. There's really no reason to hold a person like me in jail.

Jeff Proctor:

Since Tom can't come up with his 500 dollar bond, he stays in county jail for 34 days until a new judge reconsiders his bail.

Judge 2:

State versus Thomas Chesinsky. DW 2016 1028.

Jeff Proctor:

This time he has a public defender who argues for his release out of trial.

Public Defender:

There's no bond he can post so we're asking that he be released.

Judge 2:

I can release him but it's going to have to be on pre-trial services.

Public Defender:

Okay.

Jeff Proctor:

Tom gets out of jail until his court date. Chief Justice Daniels had hoped that the opinion he issued in the Walter Brown case would prevent people like Tom from being held in jail in the first place, but Daniels says judges continued to throw people in jail when they couldn't afford bond, so he decided to go even further.

Charlie:

Our court said we're responsible for the justice system in New Mexico, we ought to do something about this. We became aware in the course of that case that other states were doing that too, so we started reaching out seeing what other states had done. We saw what New Jersey had just done by changing their constitution and we became convinced that we had to do that in New Mexico as a first step.

Jeff Proctor:

Change the constitution. Daniels became convinced that was a crucial step to solve the problem in New Mexico so he launched an effort to put the issue before voters on the ballot this year. But changing the bail system can be bad business for some people.

Charlie:

There are a lot of bondsmen that will tell you that giving money to them will somehow protect the safety of the community when that's demonstratively false.

Jeff Proctor:

A bail bondsman is sort of like an insurance agent who guarantees for a fee that a person will show up for court when the judge sets bond. The defendant usually pays just 10 percent of the total. If they don't show up to court that's when a bondsman may hire bounty hunters to find them, like reality TV stars, Duane "Dog" Chapman and his wife, Beth.

Beth:

My husband is a split personality.

Dog:

My name is Dog.

Beth:

The problem is that that Dog guy comes around.

Dog:

I'm going to let this canine in on you brother.

Beth:

He's nasty ...

Jeff Proctor:

The Chapman's are adding star power to the fight to leave the current system alone.

Charlie:

The agents themselves have a national organization and Beth Chapman, who's sometimes called Mrs. Dog, ran for president of that association just a few months ago, specifically on the platform that she was going to lead them in successfully fighting bail reform all over this country.

Jeff Proctor:

Here in Albuquerque, local bail bond companies know the Chapmans well.

Gerald:

[inaudible 00:29:10].

Jeff Proctor:

I am.

Gerald:

How are you?

Jeff Proctor:

Good. Jeff Proctor.

Gerald:

Jeff.

Jeff Proctor:

Nice to see you again.

Gerald:

Let me finish this call.

Jeff Proctor:

Sure thing. Take your time.

 

Gerald Madrid's office is just down the street from the courthouse. There's a photo on his desk, he's posing with Dog the Bounty Hunter.

Gerald:

I see him twice a year because he's in a national association that I'm in.

Jeff Proctor:

Gerald's president of the State Bail Bond Association. The entire Madrid family is a bail bond institution in New Mexico. They've been in the business for 3 generations and run a handful of companies.

Gerald:

Yes. Yeah, this is Gerald Madrid.

Jeff Proctor:

It's a potential client calling from jail.

Gerald:

... But the jail up there's not letting you out on it.

Jeff Proctor:

Gerald fields phone calls like this all day long from people who've been arrested or from their anxious relatives. He says in the past 30 years he's helped release some 60 thousand people facing criminal charges, but-

Section 3 of 5          [00:20:00 - 00:30:04]

Section 4 of 5          [00:30:00 - 00:40:04] (NOTE: speaker names may be different in each section)

Al Letson:

... At least some 60000 people facing criminal charges. In spite of his family's success, Gerald says business has taken a hit in the past couple of years. Justice Daniel says judges are still using bond to keep to many people behind bars until their trial dates. Gerald disagrees. He says judges have become reluctant to set the kinds of bonds that are the Madrid's bread and butter.

Gerald:

There's nothing that's put up in advance other than a defendant's promise to return to court, and that's where the system is broken, is where the judge is relying on the defendant to bring himself to court with no consequences if he does it. That's what's broken.

Al Letson:

Tom [Shazinkey 00:30:45] agrees that the system is broken. If a bond company like the Madrid's had helped out, he would only have had to come up with 10 percent of his $500 bond, or 50 bucks. But no one wanted to take a chance on him, because he didn't have ties to the city.

Speaker 3:

Yeah, all right Will, let's head on back to the shelter, it's time.

Al Letson:

I meet up with Tom in September at a homeless shelter, where he's been since his release.

Speaker 4:

[crosstalk 00:31:21].

Tom:

Yeah, this is Tom [Sea 00:31:22] in Bank 56.

Speaker 4:

[inaudible 00:31:24].

Tom:

Could you leave the gate open for a few minutes? Thank you.

Al Letson:

As soon as he got out of jail, he ran into more problems. He had to come up with $1400 to get his motor home out of the tow yard.

Tom:

Then if I didn't pay them, then the motor home would be taken from me and sold to cover the fees, and that the County of Bernalillo would gain access or ownership of the motor home and I would forfeit it.

Al Letson:

Tom's motor home was gone and so was a life's worth of stuff. Photographs, power tools, even stocks from a company he'd once worked for. He was stuck in Albuquerque for as long as his court case was still open.

Tom:

I really don't have any other choice right now, other than to live out on the street because I don't have any clothes, I don't have really anything other than what the homeless shelter can give me as far as clothes and a place to stay.

Al Letson:

All of that because he couldn't post bond. New Mexico has one of the highest rates of pre-trial detention in the country. Just as Daniel says his referendum will change that. It says, "Judges can withhold bail from people they deem dangerous." It says that indigent defendants who pose no risk should be released. Bail bondsmen like the Madrid's, say judges are already releasing people they shouldn't. So who's right?

 

Reveal and New Mexico In Depth, decided to take a look at what's happening inside the Metropolitan Detention Center near Albuquerque, that's New Mexico's largest jail. Here's what we found, for three months over the summer, more than a thousand people eligible for bail stayed in jail for three days or more. Nearly two out of five of them could have gotten out for 500 bucks or less.

Lisa:

We know today from research that there are consequences to their criminal case.

Al Letson:

Lisa Foster is with the Justice Department.

Lisa:

There's a greater likelihood that if you're held in custody pretrial, your sentence will be longer.

Al Letson:

The government reformed the bail system at the federal level 50 years ago. But it's barely filtered down to the states. So far just four states, Illinois, Kentucky, Oregon and Wisconsin have banned commercial bail outright. In 1991, DC reformed it's system and now 90% of defendants are released before trial. Almost all of them stay out of trouble and return for their court date.

 

Lisa Foster is worried about the way the New Mexico referendum is worded. Justice Daniels and his group made a concession to the bail bonds industry and changed some of the language. Foster says that gets tricky because defendants now have to prove that they're not a danger or a flight risk, and that they can afford bond.

Lisa:

If a person is neither a danger nor a flight risk, then in our view it raises the question of why they're being held in custody pretrial at all.

Al Letson:

Because of the change, the ACLU and other groups pulled their support for the constitutional amendment. Justice Daniel says he's confident the amendment will fix the system.

Justice Daniel:

They were worried that this amendment was going to result in a greater detention of people prior to trial than currently exists. I think they're absolutely wrong about that. I think history will show it to be so.

Al Letson:

I meet up with Tom one last time at the bus station in town. He ended up getting his case dismissed for lack of evidence. After four months here, he's going to stay with family in California. How's it going?

Tom:

I'm leaving on the 8.10 or 8.15 bus today to St. Anna.

Al Letson:

Okay.

Tom:

I need to check this box.

Al Letson:

All right, go ahead and fix it on this [inaudible 00:35:23] right here.

Tom:

[inaudible 00:35:26].

Al Letson:

Got ya.

Tom:

After arriving here with the motor home, this is what I'm leaving with.

Al Letson:

As he's getting ready to board the bus, Tom reflects on how he's going to put his life back together.

Tom:

When the county says they're done with you, you're not done with yourself yet, there's a whole litany of other things that you need to do to put your life back to normal. I'm going to be in the process of doing that for probably a couple more years. At my age, it's really, it's not something I really had planned to be having to happen to me at this age.

Speaker 8:

All right, can I see your tickets sir?

Tom:

It's in the car, just one second. Okay.

Speaker 8:

Okay.

Al Letson:

Now there haven't been any statewide polls on whether voters will approve the constitutional amendment to change the cash bail system in New Mexico. Even if it passes, Justice Daniel says the rest of the country has a long way to go to reform this part of the criminal justice system.

Justice Daniel:

We can look around at the rest of the country and there have been research projects that are pretty consistent in their results. You'll find that states that have not undertaken bail reform have experienced the same thing New Mexico has.

Al Letson:

Thanks to Jeff Proctor of New Mexico In Depth for bringing us that story. Reveal's Andrew Becker was the producer. Well, being poor isn't the only thing working against people who show up at court, our next story is about a mother in Alabama fighting to regain custody of her children. The court appoints a Spanish interpretor but the problem is, that's not the language she speaks. That's next on Reveal.

Speaker 9:

Hey podcast listeners, [Bayer 00:37:16] Duncan here, Reveal's community manager. This election season we're part of Election Land. It's a coalition of news rooms led by [Propublica 00:37:24] working to cover access to the polls. We want to hear from you. You can help us track voting problems or debunk false ones on election day. It's simple to sign up. Just text election land to 69866, and we'll be in touch. Again text election land, one word to 69866.

Al Letson:

From the Center for Investigative Reporting in PRX, this is Reveal. I'm Al Letson. All this hour, we've been talking about how people have been caught in the justice system because they can't afford to get out. Imagine having to navigate the ins and outs of the system and not understand a word of what's being said because you don't speak the language. By law, you're supposed to have an interpretor, but in some cases, that doesn't happen and those people have no idea what's happening to them. Ashley Cleek has a story of how that played out for one mother's court battle in Alabama.

Ashley Cleek:

This is Rosa. She's the mother of three daughters and she lives in South Alabama. She's speaking Mixteco, an indigenous language in her native Mexico. About three years ago, Rosa rented a house in a suburban neighborhood. It's living room and three bedrooms are just enough for her small family. She rents one room to a tenant, the other two, she's decorated for her kids. On the walls, Rosa's hang photo collages of her pre-teen girls. They goof off in soccer jerseys. Her gap toothed mouth opens and smiles. She switches to Spanish, a language she's recently picked up.

Rosa:

That's my youngest daughter's bear.

Ashley Cleek:

Rosa picks up their toys and squeezes the stomach of her youngest daughter's favorite stuffed bear. Her kids don't live here and never have. Rosa hasn't spoken with them in seven years. The language she grew up speaking, the only one she knew a state agency placed them with a foster family across town is one reason they've remained apart.

 

Over the years, Rosa has appeared in court several times to try to get her kids back, often without an interpretor and knowing only Mixteco, a language spoken by three quarters of a million people in Mexico, but that few people in Alabama had even heard of. When she first dealt with the state Rosa says, she felt panicked, like a little animal lost in the woods.

Rosa:

I didn't have anyone to translate, anyone to do anything for me, because I didn't know to talk to anybody about why did they take my girls, or what I was going to do ...

Section 4 of 5          [00:30:00 - 00:40:04]

Section 5 of 5          [00:40:00 - 00:53:44] (NOTE: speaker names may be different in each section)

Speaker 1:

About why did they take my girls? Or what I was going to do? Or how I was going to talk about it?

Speaker 2:

The Alabama Department of Human Resources now seeks to terminate Rosa's parental rights. Her case has put the state courts in a bind. It's one of many that have raised questions about language interpretation in courts across the country.

 

Necessity prompted Rosa to take some initiative. A few years ago she attended English as a Second Language classes at a local church. There she picked up spanish from other students in the class. These days she can speak pretty fluently, but she still slips up sometimes.

Speaker 1:

My old spanish is coming back.

Speaker 2:

Because her children are at the center of this juvenile case, a lot of information is confidential. Also, Rosa is undocumented. In this story, we're using a different name to protect her and her daughter's identities.

 

Rosa is thirty-two years old, small, around five feet, and chubby. She was born in a small town in Southern Mexico. Her family was very poor.

Speaker 1:

I went to school, but it was maybe just two or three months a year.

Speaker 2:

Rosa says she never even learned to write her name. At some point, it's unclear when, Rosa came to the U. S. About fifteen years ago she moved to Alabama with her husband. They lived with his brother, and his brother's wife in a dusty trailer park outside of town that houses a small cluster of Mixteco speakers. Rosa was pretty isolated and lonely. Her three daughters were her life until one day in April in 2009.

Speaker 1:

There was a moment where they took my girls.

Speaker 2:

We don't' know exactly what happened, but the Alabama Department of Human Resources accused Rosa's husband of molesting their eldest child. The agency removed the three daughters, seven, six, and eighteen months old from the home.

Speaker 1:

You know they took my husband to jail.

Speaker 2:

Her husband pleaded guilty to felony abuse. Immigration and customs enforcement deported him to Mexico. Rosa said she didn't know about the abuse and has had no contact with her husband since his arrest. At the time though, she couldn't really say anything because she only spoke Mixteco.

Speaker 1:

I was completely alone in my house.

Speaker 2:

Later that week she went to the courthouse. There was some sort of hearing between Rosa, the judge, and lawyers from the state welfare agency. Rosa said she had no idea what was being said, but it had something to do with what would happen to her kids. The attorney for the Department of Human Resources had a spanish interpreter, but Rosa only spoke Mixteco. She would go back to court every few months and there would always be an interpreter translating into spanish. This went on for about a year before the court assigned Rosa a different lawyer and another spanish language interpreter, Alexia Peterson.

Alexia:

She didn't even speak to me. I didn't speak to her. She would smile and I would smile back to her, but I didn't have a rapport with her or anything like that.

Speaker 2:

Alexia just interpreted. The judge said something, Alexia repeated it in spanish, Rosa listened. A lawyer said something. Alexia interpreted. Rosa listened. Gradually Alexia sensed that Rosa wasn't really understanding everything. Rosa didn't ask questions. She didn't object to anything.

 

Then one day Rosa was standing at the table with her lawyer and Alexia. The attorney for the Department of Human Resources tried to ask Rosa a question. Alexia interpreted the question in spanish to Rosa.

Speaker 1:

Alexia asked me the question three times and I still didn't understand it.

Speaker 2:

Rosa's brother in law who speaks spanish and Mixteco, was in court that time sitting in a bench behind her. Rosa said he whispered to her, "Tell them you don't understand."

Speaker 1:

That's when I ... I don't know if someone realized or if the judge realized. The judge asked me, "Do you understand?" I said, "No." Then he says, "You don't understand what Alexia is saying?"

 

"No."

Speaker 2:

Rosa said the judge asked her what she wanted. She told him, "Someone who speaks my language, Mixteco." The judge never found a Mixteco interpreter. A few months later the judge called Alexia back to interpret again. Because juvenile cases are confidential, the judges in this case declined interviews for this story. The current judge ordered prosecutors and child welfare agents not to speak with me.

 

About two years into her case Rosa started going to ESL classes at a small church near the trailer park. That's where she met Brenda Hem.

Speaker 4:

We've got two more classes before we let out for summer, but it's going to be a pretty day so we thought we would just make carving the pizza and let the kids play. Come on back. Let's get some air in here. Have a set.

Speaker 2:

Brenda teaches English to around a dozen women who live in the trailer park. Almost all are Mixteco speakers like Rosa.

Speaker 4:

She was really quiet. Just very quiet.

Speaker 2:

As she watched Rosa learn Spanish and a smattering of English words, Brenda started to learn Rosa's story. Parts of the story didn't sound right. The length of time her case had gone on, the ban on visits with her kids. Brenda and her husband started to go to meetings with the Department of Human Resources and Rosa.

Speaker 4:

Then we went ... He also went to her court hearings to just sit there and listen to what's being said. Her right have just been trampled all over. DHR didn't get it. They didn't' get that that twas a different language.

Speaker 2:

They keep on calling it a dialect.

Speaker 4:

Choctaw is not a dialect of English. Cherokee is not a dialect. It's an Indian language just like Mixteco is an Indian Native Language.

Speaker 2:

Brenda says she and her husband tried to talk to the agency. She called everyone she could think of, but no one seemed to listen. She thinks the mother of three had two strikes against her from the beginning. She's undocumented and she couldn't speak English.

Speaker 4:

If she was an American citizen it wouldn't have ever happened. It would have gotten this far. She would have had family, but it's almost like there was a gap. It happened. The wheels had already started. By the time people came in and started trying to help her it was too late.

Speaker 2:

For sixteen years the Justice Department has made it clear. Courts that receive federal funding are required to comply with Title Six of the Civil Rights Act of 1964 which includes providing interpreters. Some state courts have been slow or unwilling to comply.

 

In 2005 a Tennessee judge mandated that a Mixteco speaking mother learn English in order to get her kids back. In 2008, the Mississippi Department of Human Services took away the newborn baby of a woman who spoke another indigenous langue, Tatino, without giving the mother an interpreter. In Nebraska, in 2009, a woman from Guatemala had her kids taken away. She was never given an interpreter and was deported back to Guatemala.

Speaker 5:

I've just never felt like justice should be equated to being officiant. We just have to do what we have to do to insure that these people's rights are in place.

Speaker 2:

Judge Thomas Head sits on a circuit court in South Alabama. His daughter was Rosa's lawyer and he's determined to make sure that people in his court understand what's going on. It isn't easy. Right now he's presiding over a murder case in which the suspect and several witness speak Mixteco and he hasn't been able to find an interpreter. He prints and saves his emails so he can show an appeals court if it comes to that. He tried his damnedest to try to find a Mixteco interpreter. It's possible the murder trial could end in a plea deal. The judge doesn't say so, but you get the feeling he's determined not to repeat the same mistakes that happened to Rosa.

Speaker 5:

If there is not an adequate means for an individual accused of an offense to communicate with their attorney and to make their side of a story known in court, then they're not being afforded due process.

Speaker 2:

Rosa's current attorney, Amy Marshall, said that seven years in it's hard to consider this case and not see failure all around.

Speaker 6:

I don't think that the Department of Human Resources have ever planned on giving the children back.

Speaker 2:

Amy says she's worked on a lot of dependency cases in which the state agency charges parents with abuse or neglect. She's seen the state work to reunite kids with parents who have drug problems, even felony convictions. In Rosa's case that didn't happen.

Speaker 6:

She couldn't speak the language. She wasn't from here. She had the possibility of being deported. I think all of that played a major factor in why they felt that the children were better off not being with her.

Alexia:

I think a long time ago they formed an opinion of her.

Speaker 2:

Here's Alexia, the interpreter again. She had formed an early opinion about Rosa too without realizing it. The town where the two women live is tiny, but it took awhile for Alexia to realize that years before her kids and Rosa's had been in the same class at school. Alexia remembers dropping her son and daughter off there and seeing how perfectly Rosa had brushed and braided her daughter's hair.

Alexia:

There was such detail. Such love that went into that hair and I didn't know who it was. It just made me take a note as a mother how much she was putting into that child.

Speaker 2:

As her case wore on Rosa got involved in a local church and started studying the Bible in Spanish. When there was a final court hearing about Rosa's fitness as a parent, around eight people showed up to testify on her behalf.

 

About three years ago when Alabama's Child Welfare Agency was still trying to reunite Rosa with her kids, social workers told her that in order to get her children back she needed a better place than a trailer to shelter them. Rosa got a job cleaning houses. Eventually she rented the three bedroom house. Now, Rosa sleeps in the room meant for her eldest child. Every morning when she wakes up, she stares at her phone. The home screen carries a blurry picture of her kids scrunched together in a hug. She holds the phone close to her face. Seven years ago at the beginning of her case, the court barred her from seeing or speaking with her children. These days, she still pretends to.

Speaker 1:

Now when I get up I see my girls. I see their smiles.

Speaker 2:

At times like this Rosa wishes she'd been more educated. "Then," she says, "she would have been able years ago to explain her situation to the child welfare agency and ask for help." She doesn't expect to get her children back now. It's been seven years. She believes the foster family can provide more for her girls than she every could.

Speaker 1:

But now I know that I am going to get through this.

Speaker 2:

One day, she hopes her kids will know her and hear her story. Until then, she talks to them in the mother tongue they share and pretends they're close.

Speaker 8:

Thanks to reporter Ashley Cleek for bringing us that story. In this edition of Podcasts that [inaudible 00:52:02] and loves, you have got to listen to the Outside podcast for interviews with iconic adventurers and remarkable tales of survival. The stories in this thing are just bananas. If I was stuck in the woods I would just die, but these men and women do it all the time. They had this one recent episode where a diver spent two days trapped underwater in a shipwreck. See if that was me I'd be shark food. Check it out in Itunes, Stitcher, or wherever you listen to Podcasts.

 

Deb George was our Senior Editor for today's show with help from Cheryl Devall and Jennifer Le Fleur. Andy Becker and Julia B. Chan were our producers. Thanks to Sandra Fish and Trip Jennings of New Mexico In Depth and K.U.N.M for providing production support. Mwende Hahesy is our Production Manager. Our Sound Design Team is the Wonder Twins my man Jay Breezy, Mr. Jim Briggs, and Claire C-Note-Mullen. Our Head of Studio is Christa Scharfenberg, Amy Pyle is our Editor and Chief. Suzanne Rebeer is our Executive Editor and our Executive Producer is Kevin Sullivan. Our theme music is by Camerado Lightning. Support for our viewers provided by the Reva and David Logan Foundation, the Ford Foundation, the John D. and John D. and Catherine T. MacArthur Foundation, the John S. And James L. Knight Foundation, and the Ethics in Excellence and Journalism Foundation. Reveal is a co-production of The Center for Investigative Reporting and PRX.

 

I'm Al Letson and remember, there is always more to the story.

Section 5 of 5          [00:40:00 - 00:53:44]