Saturday, March 17, 2012

Scandal in Lock Down Mode: Rick Perry and the Texas Youth Commission 1/3

(this series first appeared earlier this year at Politicalgates)
by Nomad

Sergeant Brian Burzynski

The Easiest of Prey

If children, as a group, make ideal targets for predatory abusers and exploiters, then incarcerated juveniles undoubtedly make the easiest of that targeted prey. 

Subject to manipulation and intimidation, with limited access to legal recourse or independent monitoring and underrepresented in the political system, these children are easily forgotten by the public. The pleas from juvenile inmates generally go unheard. The very real threat of retribution by the authorities is sufficient to prevent any victims from coming forward.

So, when incidents are reported- and followed up on by authorities- it is generally an exceptional case. 

In February of 2005, Texas Ranger Brian Burzynski received reports from a volunteer instructor at the West Texas School, maximum security, all-male correctional facility in Pyote, Texas.
 One of many facilities scattered across the state, The West Texas school was built to house boys who had been in trouble with the law. The teacher who had contacted the Texas Ranger had had a crisis of conscience when several of his students had come forward with stories of sexual misconduct by the assistant superintendent. According to sources:
[The teacher] knew it would be futile to go to school authorities—his parents, also volunteers, had previously told the superintendent of their own suspicions, and were "brow beat" for making allegations without proof —so the next morning he called the Texas Rangers. A sergeant named Brian Burzynski made the ninety-minute drive from his office in Fort Stockton that afternoon. "I saw kids with fear in their eyes," he testified later, "kids who knew they were trapped in an institution where the system would not respond to their cries for help."
Initially, the Texas Ranger was somewhat skeptical of the allegations. Burzynski would later explain that he knew as he headed out to investigate that there was a chance of false allegations because it was, after all, a prison, not a summer camp. But his prejudice faded after talking with several inmates; he was sure their stories were not made up — they were detailed, not vague, the stories were specific, not generalized.

For example, when a boy resisted one of the alleged abuser’s advances in 2004, he was shackled in an isolation cell for thirteen hours. Other employees had corroborated these statements. Instructors and employees noticed, for example, certain students being pulled out of class for no apparent reason and spending long periods alone with the principal. 

Inmates were also taken from the dorm rooms after hours despite regulations to the contrary. Even after being warned not to spend time alone with the juveniles in secluded areas, both of the staff members, School Principal John Paul Hernandez and assistant superintendent Ray Edward Brookins, continued their suspicious conduct. 

Many saw events that, while inappropriate or at least, questionable, were not conclusive in and of themselves. Circumstantial evidence was not proof. The isolation of the facility- in one of the most remote areas of Texas, as well as the fear of retribution- might explain why many saw things but reported little. In fact, as the Texas Ranger was soon to discover, if one chose to follow the chain of command, there was little hope of any immediate and direct action by the West Texas School administrators. The accused parties were also the ones in charge.

Patterns Emerge
It was only when a thorough and independent investigation had been conducted that a pattern emerged. The Ranger’s investigation was the first wedge in breaking open what was going on in Pyote, Texas.

The West Texas School is an inaccurate, innocuous name for the juvenile detention facility. True, it is a school but it is much more of a prison. The facility is part of a network of institutions that is under the control of the Texas Youth Commission (TYC).

This agency is responsible for overseeing all youth correctional facilities in the state of Texas, that is, the care, custody and rehabilitation of the juvenile offenders who have been committed by the court.

Here are some important facts and figures about the Texas Youth Commission. The ages of youth committed to TYC range from 10 to 17. The TYC can maintain custody of the youth until the age of twenty-one. With an annual budget of $251.6 million, TYC had, at that time 4,847 employees, 94 percent of whom worked outside of the central office in Austin. 

TYC had 4,805 youths in 15 TYC facilities, 9 TYC halfway houses, and 15 contract facilities. The facilities and halfway houses are located mostly in small, rural towns throughout Texas. Based on headcount, TYC had an average of 2,948 juvenile correctional officers (60.82 percent of all 4,847 TYC employees) and 350 case managers (7.22 percent of all 4,847 TYC employees) in the fiscal year 2006. Surprisingly, perhaps, only 34 percent of those in juvenile detention are there for violent crimes.

According to the National Prison Rape Elimination Commission, more than 20 percent of those in juvenile detention were confined for technical offenses such as violating probation, or for “status offenses” like missing curfews, truancy, or running away—often from violence and abuse at home. For the most part, these are not hardened criminals, and, sadly, most of them have already come from abusive situations before they arrived. 

As The Dallas Morning News’ Doug J. Swanson, who would later play a pivotal role in getting this story before the public reported on March 2, 2007:
About 60 percent of them come from low-income homes. More than half have families with criminal histories, and 36 percent had a childhood history of abuse or neglect. Some 80 percent have IQs below the mean score of 100."
Given these facts, one can see how explosive a charge of sexual misconduct might be and the amount of anxiety from agency administrators that exposure might create. Some people involved would soon be asking, “How bad will this storm be? Where will it lead and how far up will it go?

A Lone Texas Ranger

Sergeant Brian Burzynski spent the next two months conducting a thorough investigation of the allegations, which included taking 44 witness statements, interviewing 74 prisoners and collected 354 pieces of physical evidence. By July 2005, he had identified 3 employees of the facility suspected of having sexual relations with the inmates (Later, it would reduced to two.)
According to,
When the TYC received Burzynski's findings, it launched its own investigation. The internal report this produced was deeply flawed. Investigators didn't interview or blame senior administrators in Austin, though many of them had seen the warning signs and explicit claims of abuse at Pyote. But agency officials saw how damning the story was. Neither their report nor Burzynski's was made public.
Burzynski then collected his findings and presented his conclusions to Ward County District Attorney Randall Reynolds in hopes of widening his investigation. While he waited for a response from the DA, Burzynski continued to gather evidence. For almost a year and a half, he waited, frustrated by the lack of action.
The Texas Ranger had this to say about his mounting frustrations- "In short, I had to file it with the local DA that I didn't want to in the beginning…He hasn't done anything with it and I am losing hope that he will before the statute of limitations expires."
U.S. Attorney General Alberto Gonzales 
with Vice President Cheney
Burzynski tried repeatedly to call the DA’s attention to the report about his investigation starting back in April of 2005. He also sent a memo to Assistant Attorney General William Tatum asking for the Attorney General’s help. After a two day wait, the Ranger sent a reminder to Tatum. Tatum, in a brief email, re-directed Burzynski back to the local district attorney. Then Burzynski emailed Texas Attorney General Greg Abbott and U.S. Attorney Johnny Sutton and U.S. Attorney General Alberto Gonzales. All denied that enough evidence to prosecute existed, when clearly Sgt. Burzynski had acquired a more than adequate supply of testimony and evidence.

A few notes on the people above:  A corporate lawyer for much of his career, Alberto Gonzales would be the subject of many controversies as President George W. Bush's Attorney General of the United States. Around the time of Burzynski's email, Gonzalez had just been appointed to the post. With the announcement of Supreme Court Justice Sandra Day's retirement, his name was floated as a possible nomination. This undoubtedly would have meant a great deal of scrutiny by both sides of the political spectrum. 

AG Greg Abbott, during this time, was more interested in other things. In March of that year, he was busy successfully defending the right of the state of Texas to display the Ten Commandments in front of the state Capitol in Austin United States Supreme Court case known as Van Orden v. Perry. (Incidentally, Abbott has continued with this attention-seeking self-promotion in Rick Perry's administration.

For example, in 2010, AG Greg Abbott asked a federal appeals court to toss out the Environmental Protection Agency's finding that greenhouse gases threaten the environment. To that his opponent, Barbara Ann Radnofsky, remarked that Abbott was picking fights more for the sake of his political career instead of Texans — ignoring legitimate problems and diverting limited state resources into "loser litigation.") 

Johnny Sutton was Bush’s former criminal policy director in Texas when Bush was governor, Sutton had been vilified in the right-wing press for prosecuting two Border Patrol agents for shooting a fleeing Mexican drug-runner and then trying to cover the incident up. In just another example of Texas justice under Bush, Governor Bush, in one of his last acts in Texas before heading to Washington, commuted the sentences.

When a Victim Isn't a Victim

Burzynski was dismayed by the July 28, 2005 letter from Bill Baumann, assistant U.S. attorney for West Texas in Sutton's office. In it, he stated his reasons for declining to prosecute on the grounds that under 18 U.S.C. Section 242, the government would have to demonstrate that the boys subjected to sexual abuse sustained "bodily injury."
Baumann wrote that, "As you know, our interviews of the victims revealed that none sustained 'bodily injury.'" 

Baumann's letter continued, adding a definition of the phrase "bodily injury," as follows: "Federal courts have interpreted this phrase to include physical pain. None of the victims have claimed to have felt physical pain during the course of the sexual assaults which they described."  

Does mean that sexual assaults can only be prosecuted if the victim is physically abused? If a rape victim, for example, does not incur any outside injuries, does that mean a sexual assault has not occurred? Apparently so.

Baumann also took another odd view when he went on to say that in order for the government to think about opening a case, a victim be aware of the victimization. It is a very peculiar thing to say, especially when a sexual crime involves children. When you think of that carefully, it is quite a presumption to make.
According to an article in,
Baumann wrote: "In order for the government to be successful in a criminal prosecution, it would be essential for us to show that the victim was in fact victimized. Most of the victims were aware of the power that the school principal and assistant superintendent held over them, but none were able to describe retaliative acts committed by either the principal or assistant superintendent. Although it is apparent that many students were retained at West Texas State School long after their initial release date, it would be difficult to prove that either Mr. Brookins or Mr. Hernandez prevented their release."
Likewise, despite volumes of evidence and countless interviews, the U.S. Department of Justice Civil Rights Division declined prosecution in a letter written to Lemuel "Chip" Harrison, the superintendent of the facility on Sept. 27, 2005, the Texas Youth Commission superintendent at the West Texas State School. In that letter, Justice Department section chief Albert Moskowitz wrote that "evidence does not establish a prosecutable violation of the federal criminal civil rights statutes."

In short, between the officials at the government agencies, the local district attorney, and the national department of Justice, not one felt they could lift a finger to stop the sexual abuse of children and teenagers. 
Not one of them felt that it was their duty or had a twinge of conscience when it came to the rape of a minor by a member of the staff of a state-run facility.

Political Concerns and Cover-Ups

Not until January of 2007- when rumors began to surface in the press- did Reynolds finally act, sending a letter to the attorney general requesting prosecutorial assistance. Still, it would take until April 10, 2007, before the Attorney General Alberto Gonzales obtained indictments.
Certainly a lot of people, who were in a position to do something, did nothing. 

According to one source, Alfonso Royal, a budget and policy analyst who oversaw the Youth Commission among other agencies, had been informed of the Burzynski report as early as Oct. 30 or 31, 2006. Royal had been forwarded graphic investigative reports about sexual abuse about the facility and did nothing. 

Some journalists have speculated that Royal sat on the information because of the potential negative fallout and its damaging effect on Perry’s reelection campaign. In fact, The Houston Chronicle reported that Royal may well have known about the details of the case as early as June 2005. For his part, Royal pointed fingers back at the local DA, Reynolds, for failing to press the case. 

Against all the evidence to the contrary, Governor Perry would later claim to Texas Monthly editor Evan Smith: "We knew about this probably about the same time you did, when we read it" in The Dallas Morning News.    

Others were not so easily convinced by Governor Perry’s denial of responsibility. Matt Angle of Lone Star Project, a political research and policy analysis project,
If you read the letters from Sutton's office or from DOJ, it's really amazing what abuse they describe and then downplay as not being serious...They describe systematic and widespread abuse of juveniles who were held in these facilities by the people who were administering these facilities, and they acknowledge this fully, yet they determine that the evidence is not sufficient to warrant federal prosecution...
This case developed right in the middle of Governor Perry's 2006 re-election campaign...I would speculate that the political powers in Texas and Washington in the Republican Party were not interested in this sex scandal coming to light. Sutton and Gonzales let their political responsibilities outstrip their legal responsibilities, and as a result you had children who were in danger of sexual abuse and were left in that danger.

Deafening Alarm Bells

It would not have been the first time that the Texas Youth Commission facilities had been under scrutiny. In 1999, at the Coke County Juvenile Justice Center in Bronte, in West Texas settled a lawsuit for $1.5 million after several female juvenile detainees claimed they had been sexually abused by a facility employee, who was a convicted sex offender at the time he was hired. 

More recent events involving another TYC facility should have suggested a need for closer inspection. In 2004, a serious riot at the Texas Youth Commission’s (TYC) Evins Regional Juvenile Center in Edinburg, Texas, amounted a near full-state take-over by the inmates. The event was over in a few hours but the retaliation by guards was particularly violent, according to lawsuits filed against TYC.

Claims of excessive and often cruel punishments suggested an absence of oversight and proper training. In 2005, the families of three incarcerated prisoners in Evins filed a $4.5 million federal lawsuit, claiming guards caused severe injuries by using excessive force when disciplining the detainees. One of the detainees, Calvin Barefield, claims he was left blind in his right eye after guards "grinded his face across the concrete sidewalk," scraping off the entire right side of his face. The lawsuit also alleged that guards had not been properly trained on how to use handcuffs or when to recognize medical emergencies.

Take this example from the Texas Observer, reported back on June 15, 2006:
(An inmate) alleges guards cuffed him and left him outside for several hours. When the skin on one side of his body turned red with sunburn, guards turned him over so the other side burned as well. Sanchez says he was lying on an ant nest and was bitten hundreds of times, but guards refused to move him. Medical examiners found injuries on many other boys, but investigators were unable to discover definitively when and how the damage took place, and did not confirm abuse... Eventually, more than 80 allegations of abuse would be filed; 11 were confirmed by TYC investigators.
One caseworker, Nelina Garza, who had been at the center for seven years, attempted to report misconduct.
Garza.. claims to have reported abuse to Evins administrators repeatedly over that long week, but says they ignored her. "There was really nobody to report to," Garza says. "They all knew, and they didn't care." Desperate, Garza began calling the parents of her caseload boys, telling them about the abuse and asking them to file complaints with TYC, which many of them did. Garza also called Hidalgo County law enforcement and filed an abuse report with Child Protective Services. Then she called the FBI, the Texas Rangers, and the local news station. "I was panicking," she says. "I couldn't sleep at night. I had to make it stop."
In fact, on June 9 2006, less than a week before the news reports, the US Department of Justice, Civil Rights Division, had informed Governor Perry of an investigation of allegations of misconduct (not of a sexual nature) at another juvenile facility. The Evins Regional Juvenile Center had been cited for serious violations in the confinement and treatment of residents. 

According to the letter sent to Texas government official (including Perry), by Assistant Attorney General Wan J. Kim,
In conducting the investigation we are obliged to determine whether there are system violations of the Constution of the United States in the conditions at Evin. Our investigation will focus on the protection of juveniles from harm.
The final report offered many warnings to the governor and to agency officials.
Virtually every correctional officer we interviewed expressed concern about maintaining control of the facility. As detailed above, we have found that this facility suffers from inadequate staffing, and that many of the staff at Evins have not been adequately trained nor do they have much practical experience on-the-job.
Following the revelations at the West Texas School, a subsequent State Auditors report on the TYC laid bare what some had always known but had done nothing about. Among the many problems the auditors found, the inability to prevent sexual predators from being hired seems to be most shocking. 

The report noted that the commission performed only computerized criminal history background checks on prospective employees using name and date of birth, rather then performing fingerprint checks. In addition, the commission did not have policies in place to prohibit TYC or its contractors working with youth from hiring convicted felons or sex offenders.

Also, TYC conducted criminal history background checks only when employees are initially hired. This created the risk that an employee could be arrested subsequently without TYC’s knowledge. TYC did not have policies that prohibited it or its contractors that work with youths from hiring convicted felons or sex offenders.

The natural question, then, is why would any government official or agency administrator be willing to gamble with the public trust in such a way, hoping beyond common sense and common decency that the emerging scandal might be suppressed or possibly smothered and buried absolutely? 

Admittedly, in terms of a scandal, it was unparalleled. Homosexuality, juveniles, intimidation, violence amounting to abuse and all within a government-owned institution. Few in the higher levels of state government wanted anything to do with it. It was a career-destroying type of scandal and everybody seemed to be trying to find a way to distance themselves from the problem. In fact, the most obvious reason goes beyond mere political expediency. 

Had the news of the goings-on at the West Texas School reached the public at the time it was first reported, it most certainly would have called into question one of Governor Rick Perry’s proudest talking points, the cornerstone of his political agenda. That is, Rick Perry’s free-market solution to budgetary shortfalls: the privatization of the public responsibilities of government. While the West Texas School was not privately-operated, many of the Texas Youth commission prisons were privately-run and any investigation on the prison system would necessarily have opened the doors to a review of all private and public prison. 

A thorough investigation was the last thing Rick Perry and his administration needed, especially not with the governor's re-election looming on the horizon.

In PART TWO of this investigation, we will be taking a closer look at dismal manner in which the investigation and prosecution of the West Texas School case was handled by the Perry administration.