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As Doctors Don Trash Bags, Firm Recalls 9 Million Surgical Gowns

Reprinted with permission from ProPublica.

There's an overlooked reason why hospitals treating COVID-19 patients are so short of protective gear. In January, just before the pandemic hit the United States, a key distributor recalled more than 9 million gowns produced by a Chinese supplier because they had not been properly sterilized.

"At this time, we cannot provide sterility assurances with respect to the gowns or the packs containing the gowns because of the potential for cross-contamination," Cardinal Health wrote to customers on Jan. 15. It added, "We recognize the criticality of our gowns and procedure packs to performing surgeries, and we apologize for the challenges this supply disruption will cause."

The recall immediately forced the canceling of some elective surgeries. It also meant that supplies of medical gowns were already low when hospitals and state governments began desperately searching for protective gear to cope with the pandemic. Most gowns are supposed to be worn once and not reused. As some doctors and nurses have resorted to covering themselves with trash bags, raincoats and hazardous materials suits bought online, many health care workers have contracted the virus, further taxing already overwhelmed hospitals.

"Demand has gone up at a time when supply was already constrained," said Bindiya Vakil, the chief executive of Resilinc, a Milpitas, California, firm that monitors supply chain disruptions worldwide. "Coronavirus made what was already a bad situation a lot worse."

Colin Milligan, a spokesman for the American Hospital Association, said that the group's members continue to experience shortages of medical gowns and that the Cardinal recall "has had a ripple effect."

A Cardinal spokeswoman said that "the supply of surgical gowns should not impact the supply of PPE," or personal protective equipment, for health care workers because they usually wear another type of outer garment, isolation gowns, when tending to coronavirus patients.

Cardinal received approval Tuesday from the federal government to donate the 2.2 million recalled gowns that remain in its inventory to the Strategic National Stockpile for distribution as isolation gowns. Each pallet must be "labeled in with a warning that the articles are for use for non-sterile apparel purposes only," according to the approval letter.

The company is "working around the clock to meet the needs of healthcare providers so they can safely serve the patients who depend on them," a Cardinal spokeswoman wrote in an email.

The shortage of gowns even before the coronavirus outbreak highlights the vulnerabilities of a U.S. health care system that depends on protective equipment largely made in other countries, led by China. The quality of gowns and other gear has been a recurring problem, including a dead insect in the packaging of a Cardinal gown, complaint records show. Replacing an overseas supplier can take months, and even if a new one is found quickly, it still has to ramp up production and arrange shipping.

"Unfortunately, like others, we are learning in this crisis that overdependence on other countries as a source of cheap medical products and supplies has created a strategic vulnerability to our economy," U.S. Trade Representative Robert Lighthizer said at a meeting Monday. "For the United States, we are encouraging diversification of supply chains and seeking to promote more manufacturing at home."

The recall also exposes flaws in how both companies and government regulators monitor the overseas manufacturers that produce much of the country's inventory of protective medical gear. Because surgical gowns are considered a medical device, their quality is monitored by the U.S. Food and Drug Administration, which inspects manufacturing plants every two years.

A spokeswoman for Cardinal, which is based in Dublin, Ohio, said that it has a "broad and diverse manufacturing and supplier network" that includes the U.S. and is not dependent on any one locale. Cardinal is also one of the largest prescription drug distributors in the world. It had revenues in 2019 of more than $145 billion, making it the 16th largest company in the U.S., according to Fortune.

Cardinal chief executive Mike Kaufmann told Wall Street analysts in February that the company understood "the gravity" of the recall. He said it had hired outside experts to review Cardinal's quality assurance procedures.

The company's board has established a special committee to review management's actions pertaining to the recall, according to Cardinal's website. The outside experts continue to scrutinize the company's practices, a spokeswoman said.

Of the recalled gowns, Cardinal had already distributed almost 8 million to health care facilities; the others had not reached customers. Some had been manufactured as early as the fall of 2018, the company has said. Cardinal does not have information on how many of the gowns were used but believes a majority of them were, a spokeswoman told ProPublica. Asked if any health workers or patients were infected as a result, she said that "we continue to track and analyze complaint data."

The FDA last inspected the problematic Chinese plant in April 2018 and did not identify any violations, an agency spokeswoman said. Manufacturers are responsible for detecting problems and reporting them to the FDA, she said, adding that the Chinese company did not report any such issues during the period covered by the recall.

The January recall was not the first time Cardinal had a problem with the supplier, which it has identified as Siyang HolyMed Products Co. in Jiangsu province on China's coast. Cardinal disclosed in a January press release that in the spring of 2018, around the same time the FDA was inspecting the Chinese company's manufacturing facility, the company learned that Siyang outsourced some of its production to an unqualified facility. Cardinal tested products at the time and determined there was no reason to take further action such as a recall, it said.

Then, last Dec. 10, Cardinal received a tip that Siyang was making gowns at two sites that weren't approved by the U.S. company or registered with the FDA, a Cardinal spokeswoman said. Ten days later, an on-site investigation confirmed the tip, she said.

In a Jan. 21 letter to customers, Cardinal said it couldn't guarantee that the gowns were sterile because Siyang made some of them at locations that "did not maintain proper environmental conditions as required by law." They were "commingled with properly manufactured gowns," Cardinal said.

Phone and email attempts to contact Siyang were unsuccessful. The FDA said in January that it was investigating how the gowns may have been contaminated. An agency spokeswoman did not respond to questions about the status of that investigation.

Health care workers wear gowns to protect themselves from coming in contact with blood and other bodily fluids, microorganisms and particulate material. The gowns offering the highest level of protection are sterilized. A gown that is not properly sterilized increases the risk of infection, which can be transmitted to a patient during a procedure.

Health care workers use two kinds of medical gowns. Surgical gowns, like those sold by Cardinal, provide the highest level of protection and are more heavily regulated by the FDA. Isolation gowns, which are produced in larger amounts, are not sterilized but are appropriate for many interactions with COVID-19 patients. Both are in short supply right now as hospitals are quickly burning through any gowns they have and, in some cases, using already depleted supplies of surgical gowns when isolation gowns are unavailable.

The 9.1 million gowns recalled by Cardinal likely represent about 30 percent of the company's global distribution, according to Premier, a Charlotte, North Carolina, company that negotiates prices on supplies bought by more than 4,000 hospitals and health care systems. The recall "absolutely contributed to the challenges that some of our hospitals are having treating their patients," Chaun Powell, a group vice president at Premier, said. "That put burden on the supply chain prior to COVID outbreaks, and then the COVID outbreaks only exacerbated that issue."

In the past two years, the FDA has received several complaints about the quality of Cardinal gowns. Adverse event reports filed with the agency include accounts of inadequate and improper protective wrapping on sterile gowns, holes in gowns, and blood soaking through the protective material. The reports disclosed to the public do not name the facilities or individuals reporting the product defects. Complaints have been filed about gowns purchased from distributors other than Cardinal as well.

In 2019, a hospital reported that a sterile gown arrived from Cardinal improperly wrapped, rendering it non-sterile. "This was noticed before it was opened to the surgical field; however, had it been opened it would have contaminated the entire field," the report said. Ten days later, another report noted another packaging defect that could have caused contamination. "This is not the first time this has happened," according to the report. "The gowns are coming from the manufacturer this way."

In February, after the recall, a hospital found a dead insect in the packaging of a Cardinal sterile gown, according to a report filed with the FDA. The hospital said the gown was not part of the recall. The report noted there had been previous, unconfirmed reports of hair, gum and a cigarette butt found in Cardinal products labeled as sterile.

Cardinal did not respond to questions about the adverse event reports.

China is the source of 45 percent of all the protective medical garments imported to this country, according to an analysis last month by the Peterson Institute for International Economics. Other countries where gowns for U.S. health care workers are manufactured include Mexico, Thailand, Cambodia, Honduras and the Dominican Republic, according to the nonprofit ECRI Institute in Plymouth Meeting, Pennsylvania.

Another major distributor of surgical gowns, Medline Industries Inc., declined to answer questions about where its gowns are made. Attempts to contact another supplier, Halyard, were unsuccessful.

At a health care conference last month, Halyard's parent company reported making surgical gowns at a plant in San Pedro Sula, Honduras.

For Cardinal, the recall has been a costly blow to its bottom line and reputation. The company's operating earnings declined 34 percent in the second quarter ending Dec. 31, in part due to a $96 million charge related to the recall.

"We don't know how this could affect our business going forward, and we're hoping that it doesn't," Cardinal's Kaufman said in a conference call with investment analysts in February. "But we know that we have created some pain."

With Shelters Under Threat, Crisis Looms For Migrant Kids

With Shelters Under Threat, Crisis Looms For Migrant Kids

Reprinted with permission from ProPublica.

Arizona health officials threatened on Wednesday to revoke the licenses of 13 federally funded immigrant children shelters, accusing the facilities’ operator, Southwest Key, of displaying an “astonishingly flippant attitude” toward complying with the state’s child protection laws.

But a day after the state sent its blistering letter to Southwest Key CEO Juan Sanchez, it became clear that any shutdown would create a tumultuous chain of events for federal and state regulators, who lack options for housing tens of thousands of unaccompanied children who cross the border every year.

“Shutting down the shelters would create a crisis for the federal Office of Refugee Resettlement, which is charged with housing children caught at the border,” said Maria Cancian, deputy assistant secretary for policy at the U.S. Department of Health and Human Services’ Administration for Children and Families from 2015 to 2016.

Southwest Key is the country’s largest operator of immigrant youth shelters, housing more than 5,000 children in Arizona, Texas and California. As many as 1,600 children currently reside in its Arizona facilities.

The Texas-based nonprofit has become an increasingly critical asset for the federal government as the number of children in its custody has reached record numbers — even as the Trump administration has ended the practice of separating children from their parents. Southwest Key has received more than $1.3 billion in federal grants and contracts for the shelters and other services in the past five years.

Arizona’s investigation showing the company has been lax in protecting children in its care highlights the government’s fraught reliance on shelter operators — and the power those operators have, even in the face of failures. The federal government desperately needs every shelter as tougher immigration policies have put the system near capacity, housing five times as many children as last summer. Former HHS officials said closing 13 shelters in Arizona at once would throw the system into chaos.

It would create a “humanitarian crisis,” said one former official, forcing federal officials to scramble to find safe, licensed housing with trained and vetted staff for 1,600 children.

Arizona launched its investigation of Southwest Key’s shelters after news reports raised questions about background checks and other issues. A ProPublica story in August detailed the charges against Levian Pacheco, a former Southwest Key employee who is accused of molesting eight boys at a Mesa shelter over an 11-month period. Pacheco, who is HIV-positive, went without a background check for nearly four months. He was convicted earlier this month of 10 sex offenses connected to the molestation.

In response to media attention and complaints, Arizona health officials reviewed records on background checks at every Southwest Key facility across the state. Of the 13 shelters, the state found two additional facilities also had problems with background checks. In mid-August the company agreed it would verify that all employees had complete background checks by mid-September.

Arizona health officials also found that Southwest Key hadn’t vetted all employees by interviewing their previous employers and hadn’t ensured all employee files contained proof of tuberculosis testing. At some facilities, officials discovered bedroom and bathroom doors missing and problems with the size of residents’ rooms.

In Wednesday’s letter, Dr. Cara Christ, the director of the Arizona Department of Health Services, told Sanchez that his organization had failed to comply with the mid-August agreement.

“Southwest Key’s lack of ability to deliver a simple report on the critical protections these children have against dangerous felons demonstrates an utter disregard for Arizona law,” Christ wrote.

Jeff Eller, a Southwest Key spokesman, said the nonprofit has requested a meeting with state health officials to discuss the matter. “We have apologized to DHS for missing the reporting deadline and are serious about ensuring that never happens again,” he said in a statement. Eller declined to comment on the substantive issues raised in Arizona’s investigation. The state’s move to revoke the licenses was first reported by Arizona media outlets.

Gov. Doug Ducey’s office said in an email on Thursday he expects licensed facilities to comply with the law or his administration will hold them accountable.

Federal HHS spokesman Kenneth Wolfe said in an email Thursday that the agency was reviewing the letter and working with the shelters and Ducey’s office “to get all of the facts regarding the Arizona Department of Health Services audit to determine the next step.”

Former federal officials said they anticipate HHS will step in to help negotiate an outcome between Southwest Key and Arizona that will allow the children to remain in the facilities. Even Arizona officials acknowledged that the letter represents the beginning of what would be a long process.

In Texas, which has 16 Southwest Key facilities housing about 3,700 children, state health officials say they are not aware of similar issues with Southwest Key.

The Texas’ Health and Human Services Commission said its “monitoring inspections have not produced evidence of a pattern of background check deficiencies within any SWK [Southwest Key] operation, nor any patterns of failure to comply with minimum standard training requirements.”

An official with California’s Department of Social Services said in June the agency re-inspected all known facilities used by the US Office of Refugee Resettlement — including those operated by Southwest Key — and found no licensing concerns. The dust-up comes as the number of immigrant youth in federal custody has continued to grow. Immigrant advocates and former health officials say the record population doesn’t appear to be due to an influx of children at the border, but to the fact that children are staying in the shelters nearly twice as long as in the past.

They attributed that to a Trump administration policy that requires health officials to share information with Immigration and Customs Enforcement to vet potential sponsors for children in the shelters. As a result, they said, many parents and relatives who have traditionally served as sponsors worry they’ll be turned over to ICE if they come forward.

Matthew Albence, who heads ICE’s Enforcement and Removal Operations, gave credence to that fear at a Senate hearing on Tuesday when he testified that ICE had arrested 41 people who either came forward as sponsors or lived with them.

“Close to 80 percent of the individuals that are either sponsors or household members of sponsors are here in the country illegally,” Albence said. “So we are continuing to pursue those individuals.”

Arizona’s move against Southwest Key is just the latest in a series of bad headlines for the nonprofit.

In addition to ProPublica’s reporting on Pacheco, two other cases involving abuse at other Southwest Key shelters in Arizona surfaced in July. An employee at a Southwest Key facility in Phoenix was arrested on allegations that he sexually abused a 14-year-old girl by kissing her and rubbing her breast and crotch, according to Phoenix news outlets. And The Nation reported in July that a 6-year-old girl, who had been separated from her mother, was allegedly fondled by a boy at a Southwest Key facility in Glendale in June.

At other Southwest Key facilities, police reports and call logs from the last five years detail dozens of runaways, inappropriate relationships with staff, sexual contact among kids, and allegations of molestation by employees, ProPublica found. In one case, a 46-year-old youth care worker in Tucson was convicted of groping a 15-year-old boy who had arrived in the United States five days earlier.

In response to each of these reports, a Southwest Key spokesman said the organization immediately reports any abuse claim to police, that it cooperates fully with all investigations and that it educates children in its care of their right to be free of abuse.

And in August, UnidosUS, formerly known as the National Council of La Raza, the nation’s largest Hispanic civil rights and advocacy organization, suspended its affiliation with Southwest Key.

Both UnidosUS and Arizona officials highlighted similar concerns about the Southwest Key officials’ attitude toward the scrutiny it is receiving. UnidosUS said the organization “failed to convey that it understands the gravity and magnitude of the situation” and had failed to apologize to the victims in its care.

In response to UnidosUs, Eller told the Austin American-Statesman in August that the company was disappointed in the group’s decision and said any insinuation that Southwest Key didn’t take allegations seriously was grossly incorrect.

A former HHS official with knowledge of how the refugee resettlement agency operates said the recent developments with Southwest Key raise serious questions about the organization’s ability to meet the government’s needs.

“It sounds like, based on their inability to respond or even communicate in a timely fashion that they have really significant internal operating challenges and that may or may not be indicative of the quality of care the children are receiving,” the former official said.

Nonetheless, other former officials said shuttering the facilities might not be in the best interest of the children. The state might have more effective options, such as increasing unannounced visits to shelters.

Claudia Flores, director of the International Human Rights Clinic at the University of Chicago Law School who has studied the conditions faced by immigrant youth at the border, highlighted the difficult position the federal government and Arizona are in with Southwest Key.

“It’s not a response to say we can’t shut down the facilities when there are reports of abuse taking place,” she said. “It’s really not the kids in these facilities that should be suffering.”

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Employee Charged With Molesting 8 Kids At Immigrant Shelter

Employee Charged With Molesting 8 Kids At Immigrant Shelter

Reprinted with permission from ProPublica.

 

Worker Charged With Sexually Molesting Eight Children at Immigrant Shelter

This story includes graphic details of alleged sexual violence against minors.

A youth care worker for Southwest Key has been charged with 11 sex offenses after authorities accused him of molesting at least eight unaccompanied immigrant boys over nearly a year at one of the company’s shelters in Mesa, Arizona, federal court records show.

The allegations against Levian D. Pacheco, who is HIV-positive, include that he performed oral sex on two of the teenagers and tried to force one of them to penetrate him anally. The other six teens — all between 15 and 17 — said Pacheco had groped them through their clothing. All of the incidents are alleged to have taken place between August 2016 and July 2017, according to a court filing last week that laid out the government’s case.

The case, initially investigated by local police, is now proceeding through U.S. District Court in Phoenix. Pacheco had worked at Southwest Key’s Casa Kokopelli shelter, one of eight the company runs in Arizona, since May 2016.

Casa Kokopelli was cited by the Arizona Department of Health Services in 2017 for failing to complete background checks, including fingerprinting, to ensure that employees hadn’t previously committed sex offenses and other crimes, records show. Pacheco worked for nearly four months without a complete background check, according to documents and an agency official. Those records did not show any previous arrests or convictions for sex offenses, they said.

Pacheco, 25, was indicted in August 2017 after an investigation by local law enforcement and the U.S. Department of Health and Human Services inspector general’s office. The current charges include eight counts of abusive sexual contact with a ward and three counts of sexual acts with a ward. Pacheco, who is in U.S. Marshals’ custody, could not be reached for comment, but he denied the charges in court documents. His federal public defender, Benjamin Good, said, “We are looking forward to defending Mr. Pacheco in court.”

Trump administration officials have repeatedly asserted that the shelters are safe, even fun, places for kids. But there has been increasingly intense scrutiny of the federally funded, privately run shelters after the administration separated some 3,000 children from their parents at the border and sent them to shelters and foster homes across the country. Last week, ProPublica reported that police nationwide have responded to hundreds of calls reporting possible sex crimes at shelters that serve immigrant children. One of those calls resulted in the conviction of a Tucson shelter worker for molestation.

Now further documents have emerged describing alleged incidents in Arizona involving Southwest Key, the largest operator of immigrant youth shelters nationwide.

ProPublica only discovered Pacheco’s case while trying to find additional information about a vague reference to a molestation case in Arizona inspection records. Federal officials had known about the case when answering questions from ProPublica last week and when describing the conditions of the shelters before Congress, but did not mention it.

In addition to Pacheco, two other cases involving abuse at other Southwest Key shelters have recently surfaced.

On Tuesday, an employee at a Southwest Key facility in Phoenix, Fernando Magaz Negrete, was arrested on allegations that he sexually abused a 14-year-old girl by kissing her and rubbing her breast and crotch, according to Phoenix news outlets. And The Nation reported Friday that a 6-year-old girl who had been separated from her mother was allegedly fondled by a boy at another Southwest Key facility in Glendale, Arizona in June.

At other Southwest Key facilities, police reports and call logs from the last five years detail inappropriate relationships with staff, dozens of runaways, sexual contact among kids at the shelters and other allegations of molestation by employees. In one case, ProPublica found, a 46-year-old youth care worker in Tucson was convicted of groping a 15-year-old boy who had just arrived in the United States five days earlier.

In an email, HHS spokesman Kenneth Wolfe said the agency has issued a stop placement order and removed all unaccompanied minors from the Casa Kokopelli shelter. He declined to say when the stop placement order was issued.

“These are vulnerable children in difficult circumstances, and the Office of Refugee Resettlement at HHS’ Administration for Children and Families treats our responsibility for each child with the utmost care,” he said. “Any allegation of abuse or neglect is taken seriously.”

In response to questions from ProPublica, Jeff Eller, a spokesman for Southwest Key, wrote in an email that he was unable to comment on specific cases. When asked how Pacheco’s alleged actions could have escaped detection for 11 months, Eller didn’t answer the question, but said: “Any employee accused of abuse is immediately suspended and law enforcement called. This is what we did in this case.” Eller said the allegations were also reported to the federal Office of Refugee Resettlement, which oversees the shelter system, and the appropriate state agency.

In response to a question about how the company could assure the public that children are safe in its facilities, Eller wrote: “We find the premise of your question dishonorable.”

“We report these cases to law enforcement and state agencies when they happen,” he said. “We educate every child in our care upon arrival to the facility of their right to be free from abuse or neglect in this program and this country. This message is repeated to the children throughout the duration of their stay at our shelters.”

In the past five years, the Texas-based nonprofit has received more than $1.3 billion in federal funds for the shelters and other services—including more than $500 million so far this year.

This week, following numerous reports of problems at the federally funded facilities, Sen. Charles Grassley, R-Iowa, and Sen. Dianne Feinstein, D-California, requested that the inspector general for the U.S. Health and Human Services department investigate the allegations of sexual and physical abuse at the shelters.

“These allegations demonstrate a long-term pattern of abuse warranting a thorough investigation into the claims, including the process and procedure by which any guards or contracted staff are hired, trained, and vetted,” the senators wrote in a letter to the inspector general.

HHS said Thursday that shelter operators reported 264 allegations of sexual abuse to the FBI last year. While those can include anything from “touching of the buttocks” to sexual assault, the agency said, 53 allegations involved an adult. The agency did not say how many of those allegations were founded or how many constituted more serious assaults.

Federal court records show that officials at the Southwest Key shelter in Mesa were unaware that Pacheco was abusing boys for months — and that it wasn’t until one of the boys spoke up last summer that the extent of the abuse allegations against Pacheco was uncovered.

Shelter officials first learned that Pacheco may have abused a boy at the facility when a teen identified in court records as “John Doe 1” told a teacher that a staff member had entered his room in the early morning hours of July 24, 2017 and touched his body, including his penis, over his clothing. The teen then told his roommate about the incident and that boy, known as “John Doe 2,” said the same staffer had fondled him in a similar way.

The second teen initially denied the incident when he was approached by staff members. Several hours later he told staffers that Pacheco had come into his room early one morning, tickled him and touched his “private parts.”

Pacheco was then removed from the facility and local law enforcement launched an investigation, records show.

The next day, July 25, a third teen told a shelter counselor that he had heard about Pacheco’s dismissal for inappropriately touching other boys. The teen told the counselor that Pacheco had also fondled him and that he was aware of three other boys Pacheco had molested. That child would later tell a “forensic interviewer” that Pacheco had groped him twice.

Local law enforcement and shelter staff tracked down those three teens and two others, who all said that Pacheco had molested them.

The fourth teen in the court records reported that Pacheco had touched him over his pajama pants sometime in June or July of 2017.

A fifth boy, who had been moved from Casa Kokopelli to another facility in Arizona, said he was brushing his teeth, and when he opened the bathroom door, Pacheco was standing there holding toilet paper. The boy said Pacheco then touched his penis over his clothing, the records show.

A sixth teen reported that Pacheco opened the shower door while he was bathing and stared at him but did not touch him. The boy later told social workers that on another occasion, he was changing his clothes after a soccer game when Pacheco walked into his room and said “My love, I have arrived,” according to court records. Pacheco proceeded to grab the boy’s penis, the teen said. Pacheco then laughed and told the child he “had it big,” the records show.

The seventh teen, “John Doe 7,” is the same victim whose allegations were briefly referenced in ProPublica’s story last week. The boy had been at the Mesa facility and was transferred to Tucson, where he revealed the molestation allegations to officials. The teen said he had been recovering from surgery in early June of 2017 and was groggy from pain medication when he awoke to find Pacheco in this room. Pacheco told the boy that he had a “big one.” The teen said he could tell that Pacheco had “ejaculated on himself,” according to court records.

On another occasion, the teen told officials, he was playing video games when Pacheco entered the room and told the boy to take out his penis. The boy refused and Pacheco grabbed the teen’s penis through his pants, according to court records. During a third incident, the teen said Pacheco pushed him down on a bed, pulled down his pants and underwear and began to shake his penis. The boy said he attempted to push Pacheco away, but was unable to because of his injury and surgery. Pacheco put the boy’s penis in his mouth, the court records state.

The eighth boy alleged that Pacheco came into his room and woke him by making noise with the blinds. Pacheco then told the boy he was going to “suck his,” according to court records. The boy said Pacheco took down his pants and put his mouth on the teen’s penis three times. The boy describes a separate incident in which Pacheco entered his room around midnight, took off his own pants and underwear and told the boy he wanted the teen to put his penis in Pacheco’s “butt,” records state.

Pacheco then attempted to force the boy’s penis into his anus, but the boy pushed him away and threatened to report him, according to the records.

Pacheco disclosed he was HIV positive when he was arrested, according to court records. Officials with the Southwest Center for HIV/AIDS educated the teenage boys about HIV and how it is transmitted and a “couple” of the eight children sought testing, records state. It’s unclear what the results were.

Five of the eight teenagers that Pacheco is accused of molesting either denied or didn’t disclose the allegation when first approached by interviewers and staff members.

Nayeli Chavez-Dueñas, a clinical psychologist who helped develop shelter guidelines on behalf of the National Latina/o Psychological Association, said she wasn’t surprised that alleged abuse went on for so long “because a lot of the children are terrified.” Many of the children have experienced sexual and physical violence, she said, and in the shelters, they face a lot of uncertainty.

“So when you have adults that are taking care of these children that are so vulnerable,” Chavez-Dueñas said, “they know that the children are going to be so afraid for their safety that they are not likely to report.”

Pacheco’s trial is scheduled to begin on August 28.

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Misdemeanor Defendants Facing Jail Time Not Told They Have A Right To Counsel, Bar Association Finds

Misdemeanor Defendants Facing Jail Time Not Told They Have A Right To Counsel, Bar Association Finds

Reprinted with permission from ProPublica.

The defendants were booked, photographed, fingerprinted and then led into Court 1A in the county courthouse in Nashville. There was no judge. Prosecutors handling the misdemeanor cases invited the accused who were interested in pleading guilty to step forward and finalized plea deals for suspended sentences and an array of fines. There were no defense lawyers, nor were any of the defendants advised they were entitled to one.

Later that day in September 2016, a group of five defendants was called up by a local prosecutor and offered the previously arranged plea deals, some of which might have resulted in days behind bars. One defendant asked to see a judge. The prosecutor said that was not possible, and that her only choice at that moment was to plead guilty, or to plead not guilty and go to trial. The defendant could only speak to the judge, the prosecutor said, if she rejected the plea offer. Again, none of the defendants was told they had the right to see a lawyer before entering any plea.

The scenes in Nashville’s Court 1A last year are included in an American Bar Association report examining what the organization sees as one of the most routine constitutional violations taking place in U.S. courts every day: the failure to notify indigent defendants facing misdemeanor charges that can carry jail time that they are entitled to a lawyer. The report, done by the association’s section on civil rights and social justice, was approved and released by the ABA’s board Friday afternoon.

The report’s authors declined to comment on the ABA effort, saying that the document speaks for itself.

“Volunteer lawyers repeatedly observed both judges and prosecutors violate indigent defendants’ right to counsel under Tennessee law,” the report states.

Nashville District Attorney Glenn Funk did not reply to an inquiry sent to his office seeking comment on the report.

The ABA report said the lack of counsel for defendants facing misdemeanor charges punishable with time behind bars is “an extremely serious and pervasive problem that can no longer be ignored or tolerated.”

The report points to a number of studies in recent years that had begun to better document the problem, including work the ABA had done in several states in 2006. “There is a shocking disconnect between the system of justice envisioned by the Supreme Court’s right-to-counsel decisions and what actually occurs in many of this nation’s misdemeanor courts,” it says.

The report cites two Supreme Court decisions in establishing that many of those charged with misdemeanors are entitled to a lawyer. A 1972 case said that such lawyers were required even in misdemeanor cases, absent a “valid waiver of counsel” by the defendant. Thirty years later, the report stated, the court made clear that defendants being offered suspended sentences — deals that spare defendants immediate imprisonment so long as they meet certain conditions — were also due representation by a lawyer.

In Nashville, the ABA had volunteer lawyers spend Sept. 12, 2016, in Davidson County General Sessions Court. The ABA described the effort as the launch of a national project to “review practices in misdemeanor courts in other states throughout the country.” In Tennessee, there are state provisions that make explicit the right to a lawyer, even for those facing misdemeanor charges.

The defendants in the courtrooms monitored by the ABA were typically facing minor drug charges or driving with suspended licenses, offenses that could result in jail time. The report describes an assembly-line atmosphere, done almost entirely without the presence of defense lawyers.

When a judge did turn up in Court 1A, she merely confirmed with the court clerk that plea deals had been signed, according to the report.

“The judge did not inquire whether the defendants understood the plea agreement or its consequences; did not inform defendants of their right to counsel and to a trial; and did not ask if defendants were waiving any of their rights,” the report states. “After accepting the pleas, the judge announced that she would return to the bench after the clerk had seven more pleas prepared. During the morning’s court session, this process was repeated several times.”

Joseph Ozment, president of the Tennessee Association of Criminal Defense Lawyers, said the prosecutors are not looking out for the defendant’s rights. Ozment also blamed the judges overseeing the cases.

“I think it’s an ethical conflict for the district attorney, I think they’re putting themselves in a position of representing a defendant when they start advising them of rights,” he said. “The trouble is that the judges let this practice go on. There’s a judge in that courtroom that can say, ‘No, I’m not allowing you to do this.’ Why the judges are allowing this is more troubling than the fact that the district attorney is doing it.”

Ozment said judges may allow the practice to lower their caseload and to dispose of cases quickly.

“I think it’s a situation where a judge is more concerned with the number of cases in his courtroom than making sure that the prosecutor is doing their job and the defendant’s rights are protected.”

Presiding Judge Gale Robinson in Nashville did not respond to a request for comment sent to him Friday through the state’s Administrative Office of the Courts.

The report also states that the ABA’s observers did not see the prosecutor inform defendants that there is a waiver process if they couldn’t afford to pay fees or fines.

The ABA lawyers spoke in detail with the woman who asked to see the judge and rejected a plea deal.

“She was a single black woman, age 37, with three children, ages 14, 10, and 8,” the report states. “Her disabled grandmother also lived with her. She worked two jobs to take care of her family and brought home just under $1200 monthly. After paying rent of $715, she had very little left to meet everyone’s needs. She reported having been to Court 1A five times in the past two years, facing charges of driving on a suspended license. Each time, her experience was the same. She was assessed a fine she could not afford and, for this reason, she was unable to get her license reinstated.”

A court bailiff overheard the ABA lawyers talking with the defendant. The bailiff then informed the defendant that she could go to the clerk’s office on a different floor of the courthouse and ask for a waiver that might lower the amount of the fine. The defendant told the ABA lawyers that during her previous appearances in Nashville’s courts, she was never told about the form even after telling the court she couldn’t pay the fines.

Several ABA observers then went to the clerk’s office to obtain about a dozen of the forms to make them available in Court 1A.

“The clerk replied she was only permitted to hand out one copy, and people who needed them had to request them from her directly,” the report states. “When the observers asked how defendants were supposed to know that these forms existed, she replied they would have to know they existed in order to request them.”

Nashville’s Clerk of Courts, Howard Gentry, did not respond to an inquiry for comment on the report’s findings.

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