Karen Houppert

Prisoners Treated Like Cattle in New Orleans

On April 18, 2011, New Orleans police arrested Clarence Jones, a 41-year-old black man. Clarence contends that he was walking with his cousin Keitha Hyde, running some errands around 11:30 am, when he ducked into an alley to relieve himself. “It was just an empty house, so I went in the backyard out of sight,” he says, talking to me via phone from jail—and when cops turned the corner, he looked guilty. But police contend that Clarence was climbing out a window with pliers in his left hand, apparently scrapping for metal or copper wiring in the gutted building. The cops arrested him and his cousin and took them to the Orleans Parish Prison. On May 13, nearly a month later, Clarence finally appeared before a magistrate in Orleans Parish Criminal Court, who arraigned him on the charge—simple burglary—and set his bail at $10,000 (before raising it four days later to $20,000).
More than sixteen months later, Clarence Jones is still in jail waiting for an attorney to be assigned to represent him. “It’s been hell back here,” he says, explaining that he is living, along with approximately 400 other prisoners, in oversized tents that fill the prison grounds. In the aftermath of Katrina, which flooded huge swaths of the massive Orleans Parish Prison seven years ago, circus-style tents were erected to “temporarily” house the inmates. Today, the tents are still housing prisoners on a patch of barren ground in the middle of the city.
Even worse, the Orleans Parish Prison—already notoriously violent—veered out of control as Jones languished there. Things got so bad that the US Marshals Service pulled its prisoners from the facility in March 2012. Then the Justice Department sent a letter to the New Orleans sheriff in April citing “alarming conditions” in the “violent and dangerous” prison. The detailed list of constitutional violations runs twenty-one pages. Clarence Jones puts it simply: “It’s like we animals. They’re just packing more and more people in. They got us packed to capacity. Lots of us have no attorney. Can’t do nothing but sit back here. We’re just stuck.”
* * *
As an impoverished, incarcerated defendant in a criminal case, Clarence has a guaranteed right to free legal counsel. But in Louisiana, such rights are routinely flouted. Indeed, Clarence is one of 230 people sitting in limbo in the Orleans Parish Prison this summer after a $2 million budget shortfall forced the Orleans Parish public defender’s office to lay off twenty-seven employees, twenty-one of them lawyers. Hundreds more defendants are out on bond, trying to make sense of the court documents being sent to them and wondering whether they’ll ever be assigned a lawyer to help. As the post-Katrina federal dollars dry up and the fiscal crisis forces drastic budget cuts at the state and local levels, one of the areas hardest hit in New Orleans—and in the nation at large—has been public defender offices. When money gets tight, the lawyers charged with protecting the rights of the poor in criminal cases are considered expendable.
Whether public defenders are funded by the state, county, city or some combination thereof, governments across the country are sacrificing lawyers for the poor and putting the constitutionally guaranteed right to counsel at risk. US Attorney General Eric Holder decried the indigent defense “crisis” facing the nation when he spoke to the American Bar Association in February, asserting that programs across the country were “underfunded and understaffed.” Citing “insufficient resources, overwhelming caseloads, and inadequate oversight,” he worried about a breakdown: “Far too many public defender systems lack the basic tools they need to function properly.”
Strapped public defender offices are throwing their hands up in despair. This past July, the Missouri Supreme Court backed public defenders in the state who refused to accept new clients because their office was woefully underfunded. The lawyers complained that their caseloads had swelled to such an extent that they could no longer do a good job for their existing clients. Public defenders in Missouri represent 80 percent of the state’s criminal defendants, which in 2011 numbered 82,896, yet they’re being forced to walk away from people who desperately need a lawyer.
Something very similar happened in New Orleans. Squeezed by budget shortfalls, Chief District Defender Derwyn Bunton announced that he was laying off nearly a third of his lawyers. Bunton cut the entire staff of his conflicts division, the department responsible for representing additional defendants in cases with more than one person charged. (An example of a conflicts division case: a liquor store is robbed by two people and the cashier is shot, then each of the men points to the other as the shooter; they’ll need two separate lawyers.) As a result, a slew of people suddenly lost their lawyers.
If these conflicts division defendants aren’t provided with an attorney and a “speedy trial” can’t proceed, by law they ought to be released from prison. But most of them aren’t released, despite this clear violation of their constitutional rights. Why? For several reasons. First, it’s a Catch-22 for the jailed defendants: most of them need a lawyer to fully grasp how their rights are being violated and help them make that argument in court. Second, there is some linguistic fudging going on: it’s not that they’re being denied representation; these defendants are simply “on a wait list” for pro bono representation. (Since February 2012, the number of defendants on the pro bono wait list has been as high as 543.) Third, due to quirks in Louisiana law, folks can be held up to four months (depending on the alleged crime) before the district attorney decides whether or not to pursue the case. It’s possible that some particularly proactive judge could step in and start setting these jailed defendants free—but it had better be someone who doesn’t mind losing the next election for being “soft” on crime.
* * *
On June 11, 2012, I spoke by phone to Willie Cheneau Jr., a 32-year-old unemployed handyman who’d been sitting in Orleans Parish Prison for nearly two months, ever since his arrest for possession of a nickel bag of marijuana on April 24. The fact that this was his second arrest for possession bumped the charge up from a misdemeanor to a felony. Although he is very poor and qualifies for a public defender, Willie had no attorney assigned to represent him. His friend had been picked up in the same bust and merited a public defender, so Willie’s case was relegated to the now-defunct conflicts division. The judge set Willie’s bond at $1,000; to bail him out, someone would have to pay 13 percent plus fees, or $180.
Willie is single and had been living with his mother. When she was contacted by a bail bondsman to show up in court with the $180, his mom refused. She was mad at her son for smoking pot, the latest in a list of screw-ups. She figured he needed to get his life together. “She tired,” Willie explains. “She tired of me. She’s turning 50, all her children are grown. She’s been raising kids since she was 16, and she says, ‘Y’all grown—now I’m going to live my life.’” So he isn’t angry with her for not coming up with the $180 bail, but he desperately wants out of the Orleans Parish Prison, where he’s housed in a tent with eighty-eight other inmates. “It ain’t no place to be,” he says. “There’s a guy in here trying to see the nurse. He hasn’t eaten in eight days, coming down off of heroin. They won’t medicate him. Just stick him in here and make him go cold turkey.”
Willie doesn’t deny that he had the weed or pretend that he hasn’t been in trouble before. (As a teen, he was convicted of stealing a car and then, a few years later, on a burglary charge.) But he doesn’t understand why he should sit in jail for two months without being able to talk to a lawyer. He’d like to plead guilty to the marijuana charge—but he can’t even do that without a lawyer to represent him and get him into court.
Willie’s pretty typical of the people who flood the public defender’s office, and of the folks waiting for attorneys to represent them. But his plight doesn’t generate a lot of sympathy.
Chief public defender Bunton has tried, but it’s hard to rally support for the program. The state is funding 53 percent of New Orleans’s budget for public defense, while the city pays 1 percent. “And the rest we pray for,” Bunton says, explaining that the remainder of the budget for the forty-seven-person office depends on traffic tickets and court fees or fines from the mostly poor folks processed by the courts here—a practice not unique to New Orleans, but one that breeds instability. For example, until Hurricane Katrina, the system relied almost exclusively on traffic fines; but when the city emptied on the heels of the storm—and the cops, with bigger problems, ceased ticketing altogether—funding for indigent defense completely dried up, public defenders quit because they couldn’t get paid, and the whole criminal justice system ground to a halt. In the aftermath of the disaster, the federal government stepped in to help. But that money has since run out.
* * *
Today, public defenders in the city represent more than 28,990 criminal defendants each year. But even as the 2012 Orleans Parish public defender’s budget shrank from $9.5 million to $7 million, there was an uptick in the number of cases prosecuted by the local district attorney: 30 percent more felonies alone than the preceding year (arrests during the same period held steady). The district attorney’s budget—$14 million—is far larger than the public defender’s $7 million, giving prosecutors a serious manpower advantage in pursuing their cases. Here in New Orleans, the national economic crisis, the local public defender budget cuts and a new super-aggressive Orleans Parish district attorney have produced a perfect storm of trouble.
It was in this desperate context that, in February 2012, Orleans Parish Criminal District Judge Arthur Hunter took the radical step of appointing a collection of high-profile lawyers to represent thirty-two criminal defendants pro bono in his courtroom. These defendants were among the 543 people who were left without attorneys to represent them on the heels of the public defender layoffs. The judge, insisting that he was merely acting to appoint lawyers in this “constitutional emergency,” named state legislators, the head of the local crime board and other high-powered attorneys—whether or not they had ever practiced criminal law.
Democratic State Senator Karen Peterson learned that she had a client named Kayla Brignac, 22, who’d been charged with possession of marijuana and alprazolam and possession with intent to distribute hydrocodone. She quickly filed a motion to withdraw from the case. “I’ve never, ever appeared or represented anyone in criminal court,” she told the Times-Picayune in February. “I practice commercial transactions.”
Many of those asked to take on these cases pro bono are attorneys at big law firms with expertise in civil suits, not criminal cases. Some of these private attorneys admit to being out of their depth—and several have contacted Katherine Mattes at Tulane University’s law clinic for advice and assistance. “Having tax attorneys and property lawyers tackle criminal cases is far from ideal,” Mattes says. “You don’t ask the cardiologist to do your brain surgery.”
Other judges in the city have asked laid-off public defenders to remain on their cases. But these are folks who are scraping by, having been laid off with only two weeks’ notice from a job where the annual salary was in the $40,000 to $60,000 range. It’s fair to wonder how much work someone in that situation will do when they’re ordered to defend a client without pay. (The laid-off lawyers I spoke with were ethical professionals deeply committed to their work; one, who consented to be interviewed on the condition that I not use his name, says he’s remained on several cases at the judge’s request. “I can’t afford to work for free,” he says. “But whether I’m rehired or working as a private attorney, I’m likely to be arguing a case in that judge’s courtroom in the future. I don’t want to burn any bridges with him.”)
Norris Henderson, founder and director of the New Orleans–based advocacy group Voice of the Ex-Offender (VOTE) and a board member of the re-entry program Resurrection After Exoneration, insists that this breakdown in public defender services threatens the criminal justice system as a whole. “If you’re sent to battle with 500 soldiers and find out you need 5,000, you’re going to take on a lot of casualties,” Henderson says. “You simply don’t have the same resources the other side has.”
Then, too, the strength or weakness of a public defender system has broad ramifications beyond the impact on people who might be wrongly convicted and spend years of their life behind bars. Tulane’s Mattes calls it the “trickle-down theory of community safety.” It’s hard to measure such things, but the logic makes sense, especially when considering the social consequences of radical breakdowns in the courts. (Think Mexico, where the failure of the justice system has led to widespread corruption and broader social disorder.) As Mattes explains, “The public defender system is one of the most important public safety systems we have. A strong public defender who challenges the prosecutor, ensuring that [he] can make his case, forces the prosecutor to make sure that the police are investigating and making solid arrests based on evidence, not bias, attitude or laziness.” Mattes concludes: “I think it is essential for the public to understand this relationship between effective, well-funded public defense systems and their own safety.”
* * *
The case of Clarence Jones, the New Orleans man accused of burglary, is complicated but instructive. At his May 17 arraignment—almost a month after he’d been arrested—the judge agreed with Clarence’s assertion that he was indigent and qualified for a public defender. (Clarence works as a day laborer in construction, mostly with hazardous materials—including, in the aftermath of Katrina, such things as mold remediation and lead paint and asbestos removal. At the time of his arrest, he was out of work and qualified for food stamps.) Because his co-defendant in the case had already secured a lawyer from the public defender’s office, Clarence was appointed someone from the conflicts division, LaShanda Webb.
Then, on June 27, 2011, Clarence was sent from the jail to the courthouse for a preliminary hearing. But his attorney, likely busy in another courtroom, never showed up. The hearing was rescheduled for July 11. Clarence’s lawyer and a police officer showed up for that one, and probable cause was found for the burglary charge. The judge found no probable cause for Clarence’s cousin, Keitha Hyde, and reduced her charge to trespassing. A trial was scheduled for July 25.
On July 25, the state asked for a postponement. The court granted the request and set a new trial date, September 22. On September 22, the court docket says simply: “Defendant, Clarence Jones Jr did not appear for trial. Defendant in custody and not brought into court.” This would become something of a refrain in the records; Clarence has lost track of the number of times the jail neglected to bring him to court or, having transported him to the building, left him sitting in the “docks,” a holding pen for inmates waiting to be brought by sheriff’s deputies into their respective courtrooms. One public defender insider observed mildly that such snafus were “not completely uncommon.” In Clarence’s case, this happened at least eight times in sixteen months—and since a trial cannot go forward without the defendant in the courtroom, the delays piled up.
Meanwhile, Clarence’s attorney also failed to show up on September 22. The judge postponed the trial, and a hearing was set for September 29—at which point the judge set a new trial date of December 7. On December 7, she set a new date for a pretrial conference on December 12. On that day, Clarence had a newly appointed attorney, Leigh Ann Rood, show up in court on his behalf: unbeknownst to him, his original lawyer, Webb, had left her job at the public defender’s office. Clarence says Rood never met with him. Clarence’s trial was rescheduled for March 1—but by then, Rood had become a casualty of the mass layoffs at the public defender’s office. She lost her job, and Clarence became one of the 543 indigent defendants in the city of New Orleans who were suddenly without a lawyer, people charged with everything from marijuana possession to murder.
A year passed, slowly.
Clarence spent it in the Orleans Parish Prison tents. “I never been appointed another lawyer,” he told me in June. “They call me to court, I sit back in the docks, and they never let me in.” He tried to educate himself on the law: reading some books from the prison library, talking to other inmates and doing some seat-of-the-pants legal work on his own behalf. “I’m not the only one back here don’t have a lawyer,” he says. “We get law books, so I read a few pages to see what fits my case.” He tells me that he filed a motion for “discovery and inspection” to see what kind of evidence might be introduced during the trial, as well as a motion to “squash” (meaning quash) based on a violation of the Louisiana Code of Criminal Procedure, which says he has the right to a speedy trial. And while Clarence may be a bit off on the lingo, he’s correct on the essence: “The trial of a defendant charged with a felony shall commence within one hundred twenty days if he is continued in custody….” Clarence is doing the best he can, but after spending so many months in jail, he is growing discouraged and starting to wonder if he’ll ever get out. “I think it sucks,” he says. “I think if I had an attorney, I would have been home.”
Not that Clarence Jones is an angel. Indeed, he’s been arrested five times in his life and convicted twice: once in March 2004 for a misdemeanor (possession of marijuana) and a second time in May 2004 for a felony (distribution of marijuana). It’s not inconceivable that he did attempt a burglary and is lying about what he was doing in that alley. The point is, who knows? (I personally had to consult three local attorneys to “translate” the docket master and comprehend the loopy history of his case.)
Almost fifty years ago, an indigent man who shared the same first name—Clarence—and the same charge (he was accused of burglarizing a pool hall in Panama City, Florida) helped establish the right to counsel in the precedent-setting Supreme Court decision Gideon v. Wainwright. Like Clarence Jones, Clarence Earl Gideon didn’t have a lawyer and wrote to the court himself. “Petitioner can not make any pretense at being able to answer the learned Attorney General of the State of Florida because the petitioner is not a attorney or versed in law nor does not have the law books to copy down the decisions of this Court. But the petitioner knows there is many of them,” Gideon wrote to the US Supreme Court in April 1962 from his jail cell. He continued: “It makes no difference how old I am or what color I am or what church I belong too if any. The question is I did not get a fair trial. The question is very simple. I requested the court to appoint me attorney and the court refused. All countrys try to give there Citizens a fair trial and see to it that they have counsel.”
In March 1963, the US Supreme Court agreed. Writing for the majority, Justice Hugo Black stated the obvious: “Reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Echoing Clarence Earl Gideon, Black further insisted: “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”
Is it?
* * *
Postscript: As this article went to press, Willie Cheneau was finally appointed a lawyer, who promptly got his charge reduced from a felony to a misdemeanor; Willie pleaded guilty to possession of marijuana and was released within two days—after spending two months in jail. Clarence Jones finally was appointed a pro bono attorney who specializes in tort, product liability, construction and insurance law. The attorney, Kirk Gasperecz, said that he was already “up to his armpits in alligators” at work, but nonetheless agreed to take Clarence’s case when a local judge told him Clarence had been sitting in jail for over a year. Gasperecz says he will work closely with colleagues who have criminal experience to get Clarence out of prison.
Also, the Orleans Parish public defender’s conflicts division was revived in August, but is struggling along with only three attorneys. As of press time, the number of defendants on the wait list for pro bono representation was down to seventeen.

Another Brutal Rape Cover-Up at KBR

Editor's Note: Lisa Smith is a pseudonym used on request. Additional reporting by Te-Ping Chen. Research support provided by the Investigative Fund of The Nation Institute.

HOUSTON -- It was an early January morning in 2008 when 42-year-old Lisa Smith*, a paramedic for a defense contractor in southern Iraq, woke up to find her entire room shaking. The shipping container that served as her living quarters was reverberating from nearby rocket attacks, and she was jolted awake to discover an awful reality. "Right then my whole life was turned upside down," she says.

What follows is the story she told me in a lengthy, painful on-the-record interview, conducted in a lawyer's office in Houston, Texas, while she was back from Iraq on a brief leave.

That dawn, naked, covered in blood and feces, bleeding from her anus, she found a U.S. soldier she did not know lying naked in the bed next to her: His gun lay on the floor beside the bed, she could not rouse him and all she could remember of the night before was screaming and screaming as the soldier anally penetrated her while a colleague who worked for defense contractor KBR held her hand -- but instead of helping her, as she had hoped, he jammed his penis in her mouth.

Over the next few weeks, Smith would be told to keep quiet about the incident by a KBR supervisor. The camp's military liaison officer also told her not to speak about what had happened, she says. And she would follow these instructions. "Because then, all of a sudden, if you've done exactly what you've been instructed not to do -- tell somebody -- then you're in danger," Smith says.

As a brand-new arrival at Camp Harper, she had not yet forged many connections and was working in a red zone under regular rocket fire alongside the very men who had participated in the attack. (At one point, as the sole medical provider, she was even forced to treat one of her alleged assailants for a minor injury.) She waited two and a half weeks, until she returned to a much larger facility, to report the incident. "It's very easy for bad things to happen down there and not have it be even slightly suspicious."

Over the next month and a half, she says, she faced a series of hurdles. She would be discouraged from reporting the incident by several KBR employees, she says. She would be confused by the lack of any written medical protocol for sexual assault (as the only medical person on site, she treated herself with doxycycline). She would wander through a tangled maze of interviews with KBR and Army investigators about the incident without any clear explanation of her rights. She would be asked to sign several documents agreeing not to publicly discuss the incident, she says. She describes having her computer -- which she saw as her lifeline, her main access to the outside world -- confiscated by Army investigators as "evidence" within hours of receiving her first email from a stateside lawyer she had reached out to for help.

And eventually she would find herself temporarily assigned to sleeping quarters between two Army Criminal Investigation Division (CID) officials, who, she says, assured her that it was for her own safety, since her alleged assailants were at the same camp for questioning; they roamed freely. When she wanted to move about the camp to get meals, etc., she was escorted.

Smith felt very alone. But she was not.

In fact, a growing number of women employees working for U.S. defense contractors in the Middle East are coming forward with complaints of violence directed at them. As the Iraq war drags on, and as stories of U.S. security contractors who seem to operate with impunity continue to emerge (like Blackwater and its deadly attack against Iraqi civilians on Sept. 16, 2007), a rash of new sexual assault and sexual harassment complaints are being lodged against overseas contractors -- by their own employees. Todd Kelly, a lawyer in Houston, says his firm alone has 15 clients with sexual assault, sexual harassment and retaliation complaints (for reporting assault and/or harassment) against Halliburton and its former subsidiary Kellogg, Brown & Root LLC (KBR), as well as Cayman Island-based Service Employees International Inc., a KBR shell company. (While Smith is technically an SEII employee, she is supervised by KBR staff as a KBR employee.)

Jamie Leigh Jones, whose story made the news in December -- when she alleged that her 2005 gang rape by Halliburton/KBR co-workers in Iraq was being covered up by the company and the U.S. government -- also initially believed hers was an isolated incident. But today, Jones reports that she has formed a nonprofit to support the many other women with similar stories. Currently, she has forty U.S. contractor employees in her database who have contacted her alleging a variety of sexual assault or sexual harassment incidents -- and claim that Halliburton, KBR and SEII have either failed to help them or outright obstructed them.

Most of these complaints never see the light of day, thanks to the fine print in employee contracts that compels employees into binding arbitration instead of allowing their complaints to be tried in a public courtroom. Criminal prosecutions are practically nonexistent, as the U.S. Justice Department has turned a blind eye to these cases.

Jones' case was the subject of a House Judiciary hearing in December. Right now, Jones' lawyers are awaiting a decision on whether she will get her day in court or be forced to submit to binding arbitration, which KBR is insisting on. Likewise, the company is pressuring Lisa Smith into pursuing her claims against the company through its Dispute Resolution Program based on the contract she signed before she went to Iraq. Critics argue that the company's arbitration system allows it to minimize bad publicity and lets assailants off the hook.

Smith, who retained a lawyer only two weeks ago, is weighing her options.

KBR attorney Celia Ballí, responding to a letter from Smith's lawyer, wrote in a letter dated March 17, "The company takes Ms. Smith's allegations very seriously and has and will continue to cooperate with the proper law enforcement authorities in the investigation of her allegations to the extent possible." Ballí noted that the matter has been turned over to the CID and said that Smith has been "afforded with counseling and referral services through the company's employee assistance program." Ballí wrote in the letter that there are "inaccuracies" in the description Smith has put forward regarding her treatment after the alleged sexual assault. "Therefore, the company requests that you fully investigate all the facts alleged by Ms. [Smith] as the company intends to pursue all available remedies should false statements be publicized."

Such "investigation" may prove difficult for her attorney. In the next sentence, the company says it is "not in a position to release any personnel or investigative records regarding Ms. [Smith's] allegations at this time." In response to a request for comment on this story, a company spokesperson wrote in an email that Smith's "allegations are currently under investigation by the appropriate law enforcement authorities. Therefore, KBR cannot comment on the specifics of the allegations or investigation." The spokesperson added, "Any allegation of sexual harassment or assault is taken seriously and investigated thoroughly." It remains unclear, however, what law enforcement investigation is examining the KBR employee's role in the alleged assault, since Army CID is charged with investigating only cases that involve U.S. military personnel.

For her part, Smith can't quite call herself a victim yet. In the course of several conversations over several days, she never once says the word "victim" out loud. Let alone "rape." Let alone "gang rape."

She simply describes what happened, moving through the course of events as if this had happened to someone else, as if the recitation of details were an act of contrition she was compelled to perform.

Like many rape survivors, she feels guilty. In this case, Smith confesses that she broke company policy the evening of the incident by having a drink (alcohol is expressly forbidden). She had landed at Camp Harper only a week earlier, when she returned from a stateside R&R with her family. Since arriving in Iraq six months earlier, she had been at a larger facility, Camp Cedar. But her new posting at Camp Harper put her in a smaller outpost of 60 people: part U.S. military, part KBR employees, part SEII workers. When some KBR colleagues invited her to join them for a drink after work, she did.

Smith says she had only one drink -- and she asked someone to hold it after a few sips while she went outside for a smoke. Smith's attorney, Daniel Ross, speculates that someone slipped the date-rape drug Rohypnol in her drink.

Smith's memory of the evening is fuzzy, and the only thing she remembers clearly about the events surrounding her assault is the aforementioned moment of oral and anal penetration. She also remembers screaming.

The morning after the incident, Smith says, she was called into the office of her supervisor, who was Camp Harper's KBR manager; he appeared to know -- at least in part -- what had happened. She would later learn from an Army investigator that her supervisor had been in the room where the drinking and alleged rape had taken place at least twice that evening. Smith, who appears to have blacked out, has no direct knowledge of his participation -- or indeed of who else among the crowd initially gathered in the room may have been involved. "He was one of the people involved in saying, 'Don't say anything,'" Smith says of her conversation with the KBR camp manager the morning following the incident. "Then he said, 'This will never happen again.'"

Smith offered to pack up and go home. But he sent her back to work. First, though, he responded to Smith's plea to get the soldier she still had not been able to rouse out of her bed by contacting the military's Special Forces liaison at Camp Harper. The liaison, whom Smith knew only by his nickname, DJ, was direct. "He told me not to speak of this to anyone and that he would take care of it," Smith says.

Smith sat tight for a few days, but then contacted a friend at Camp Cedar, where her permanent assignment was, and asked if the employee assistance person for KBR was back from her R&R yet. She was not. Smith was worried about even discussing the incident, since she knew that none of her conversations were confidential. "Camp Harper has only three phones," she says. "One is in the camp manager's office. One is in the operations office. And one is in a hallway." She wavered. A few days later, when she knew that the employee assistance person for KBR would be back, Smith called her on the phone. The employee assistance woman was a friend of hers and, without getting too specific about the details of the incident, Smith sought her advice. "We had worked other situations together in the past, and I talked to her and she was like, 'I don't know if I'd report that. You know what happens when you report things.' And I did. I'd seen it."

Despite Smith's silence, rumors were circulating at the camp. Two and a half weeks after the incident, she was questioned by someone from the KBR employee relations office, who appeared to be investigating a series of improprieties at the camp, Smith says. Fearful, she denied knowledge of any wrongdoing at the camp.

When Smith returned to her original posting at Camp Cedar, a larger facility with a human resources person and more friends she could approach for advice, she recontacted the man from employee relations who had been investigating "improprieties" and told him her story.

This set the wheels in motion for a series of interviews, most of which concluded with Smith being asked to sign a nondisclosure statement by representatives of the company, she says.

Eventually, shortly before she was slated to return to the United States for R&R, one of the investigators for KBR suggested that Smith get tested for STDs, hepatitis, HIV, etc. and took her to the nearby military Combat Support Hospital. "The doctor took me into her office, and we talked a long time before she did an exam," Smith says. "We talked about the assault and the details, and she was actually very, very kind and encouraged me to report it to the military. She tried convincing me that it wasn't my fault [for having a drink]. She was just a really kind lady -- and that was the first time I had given any of the whole details of all that had happened."

In fact, military protocol compelled the doctor to report the incident; Smith was immediately contacted by the Army Criminal Investigation Division and questioned.

A few days later, shortly after contacting an attorney in the United States to advise her on her rights, the attorney sent her a draft letter he was sending to KBR on her behalf, notifying the company that he was representing her and briefly summarizing her accusations. The military came to her office within hours, she alleges, and confiscated her computer as "evidence," effectively limiting her access to the outside world. The CID did not respond to requests for comment.

Many victims of sexual assault find themselves without meaningful recourse when they work for U.S. defense contractors that are powerful companies on foreign soil. "It's one big battle over where to fight the battle," said Smith's attorney Ross, who is considering if and how and against whom to file charges on behalf of his client.

Take Jamie Leigh Jones' case, for example.

Since Jones alleged she was gang-raped in 2005, while KBR was still a Halliburton subsidiary, her case is covered by an extralegal Halliburton dispute-resolution program implemented under then-CEO Dick Cheney in 1997. The program has all the hallmarks of the Cheney White House's penchant for secrecy. While Halliburton declared the program's aim was to reduce costly and lengthy litigation (and limit possible damage awards in the process), in practice it meant that employees like Jones signed away their constitutional right to a jury trial -- and agreed to have any disputes heard in a private arbitration hearing without hope of appeal. (While two lower courts declared the tactic illegal, in 2001, the Texas Supreme Court overturned those rulings.)

Accordingly, Jones faces two major roadblocks in the fight for justice. The first is the battle to have the perpetrators prosecuted in criminal court -- which, because of Order 17, may be nearly impossible. According to the order, imposed by Paul Bremer, U.S. defense contractors in Iraq cannot be prosecuted in the Iraqi criminal justice system. While they can technically be tried in U.S. federal court, the Justice Department has shown no interest in prosecuting her case. In fact, for more than two years now, the DOJ has brought no criminal charges in the matter. Rep. Ted Poe, a Texas Republican who has taken up Jones' cause, reports that federal agencies refuse to discuss the status of the investigation; meanwhile, in December, the DOJ refused to send a representative to the related congressional hearing on the matter.

Even more appalling, the Justice Department, which can and should prosecute most of these cases, has declined to do so. "There is no rational explanation for this," says Scott Horton, a lecturer at Columbia Law School who specializes in the law of armed conflict. Prosecutorial jurisdiction for crimes like Jones' alleged rape is easily established under the Military Extraterritorial Jurisdiction Act and the Patriot Act's special maritime and territorial jurisdiction provisions. But somebody has to want to prosecute the cases.

Horton wonders what the 200 Justice Department employees and contractors stationed in Iraq do all day, noting that there has not been a single completed criminal conviction against a U.S. contractor implicated in a violent crime anywhere in Iraq since the invasion.

"We have a complete process in place for solving military criminal violations when soldiers commit crimes, but for the 180,000 employees of private contractors over there, there is nothing," says Horton. "It's like Texas west of the Pecos in 1890 over there!" It's just common sense that you're going to have some violent crimes when you throw this many people together, he says. "Think about it. You have 180,000 people over there, you're going to have a few crimes. I don't know how anybody could fairly view this as a partisan issue. Crimes happen when you bring people together anywhere, and in a war setting, without adult supervision, crimes are going to increase. That is just a fact. And if you eliminate law enforcement, the crimes are going to get worse because people will quickly learn they can get away with it."

Things don't look a whole lot rosier when it comes to seeking relief in the civil courts.

For example, KBR is fighting tooth and nail to make sure Jones' case stays in private arbitration, as per her contract. And given that in February, a federal district court ruled that Tracy Barker -- another KBR employee who says she was sexually assaulted -- couldn't present her case in open court, prospects for the civil suit Jones brought last May look dim.

And that's particularly troubling, according to Jones' attorney, Todd Kelly, because the clandestine nature of arbitration allows corporate malfeasance to go unchecked. Trials serve a purpose above and beyond pronouncing verdicts. "It's like the Enron trial here in Houston," he says. "Where every day in the Houston Chronicle there was a story exposing what egregious things go unchecked in the corporate culture. The United States got to peek into the corporate underwear drawer and saw it was not as pretty as it looked from the outside." Kelly argues that Halliburton and KBR ought to be similarly exposed to public scrutiny via jury trials. These civil remedies arranged in a secretive manner have repercussions beyond the dollar figures. "It allows for future rapes to occur," he says, arguing that these defense contractors have been able to quietly settle and compel victims to remain silent: The public remains oblivious to the crimes, no one is punished, and a hostile and violent workplace continues unchecked.

In the future, the sole recourse for victims like Jones may be through Congress. Last October the House overwhelmingly passed legislation that requires the FBI to investigate allegations of wrongdoing and permits all U.S. contractors to be tried under American jurisdiction. The Senate has yet to vote on the legislation.

For her part, Jones intends to persevere. "Part of the reason I'm going forward with this case is to change the system," she says. "Who knows how many of us rape victims are out there?"

Smith, who is now back in the United States on two weeks R&R, is uncertain what the future holds for her. "I don't think I've been able to make any decisions or plans or goals yet," she says. First of all, there is the fact that she arrived home from Iraq to learn that her husband had been rushed to the hospital earlier that day after a partial stroke. She needs her job with SEII because she is the one who gets health insurance -- vital not only for the two teenage daughters still living at home but for her husband, with his health problems. She worries, "Human Resources made me sign statements saying that I'm supposed to be back in Dubai on April 7 at 10 p.m., and if I'm not there, I will not be reimbursed my $1,600 airfare or for my two weeks' vacation."

And indeed, the March 17 letter her attorney received from KBR attorney Celia Ballí says that Smith can be placed on medical leave "pending resolution of the investigations related to this matter" but warns, "However, per company policy, [her] leave will be unpaid." She is welcome to apply for workers' comp, the lawyer states.

Can she return to her old job as a paramedic in Lena, Illinois?

"Yes, my license is in good standing, and I've never had a problem," she says. "But it means a difference of about $6,000 a month in salary and no health insurance. My biggest reason for working for KBR in the first place was so I could get insurance for my husband and girls…" Smith's sentence trails off. She begins a new one. Stops midway. She tries again to organize her thoughts. "I've been trying to figure out how I'm going to go back to work. How am I going to make myself do this?" she says, manifesting the confused indecisiveness and sense of a "foreshortened future" that are hallmarks of post-traumatic stress disorder.

Has she seen a rape crisis counselor?

Not yet, Smith says. "Someone from KBR Employee Assistance gave me a flier to call someone in Houston," she says, but it turned out to be for general financial or emotional problems during deployment. They referred her to a website. "I'm 9,000 miles away in Iraq, and the website says, 'Please put in your zip code, and we'll refer you to a rape crisis counselor in your zip code area.'"

Smith, who says she cannot sleep, appears exhausted. She tells her story without affect, little inflection and tamped emotion. She only tears up twice, most visibly when speaking about one of her sons, a 22-year-old U.S. soldier who served in the Middle East recently. While she was in the process of debating whether -- and how -- to go about reporting her assault, she contacted him to see what his feelings were on the matter. "I didn't want him upset with his mom," she says, explaining that she was very loyal to the mission in Iraq and that he was similarly loyal to his service. "I was assaulted by somebody who was wearing the same uniform as him, and I just didn't want him to think bad of me. My children are pretty much my world." Smith's eyes fill with tears, and she pauses to collect herself. "I didn't want him to be upset because I was calling out somebody who was wearing his same uniform. They're supposed to be proud of what they do. And I'm proud of my sons. And in my mind, I live that war every day. I can make all sorts of excuses under the sun for bad behavior."

Her son advised her to make the formal complaint.

"He was like, 'Of course you're going to talk to CID, Mom. Of course you are.'" Smith smiles. "He doesn't think people should be allowed to wear his uniform and act like that. He's been in the war too and says it's no excuse. They're better trained than that. That's what my son thought. And he's not angry at his mom."

Deluded Judge Suggests Domestic Violence Victim Wanted to Be Hit

This post, written by Karen Houppert, originally appeared on The Nation

Domestic violence cases are notoriously difficult to prosecute.

But every once in a while, prosecutors get handed the tools for a conviction on a silver platter: An impartial eyewitness who just happens to be a police officer.

Such was the case in a domestic violence trial that made the local papers here in Maryland last week. A cop pulling into an Exxon station saw a man hit his girlfriend in the face three times, called in back-up and had the man arrested.

But according to Anne Arundel County Circuit Judge Paul Harris, who is "probably as against domestic violence as anybody, when the case is proven," one can't simply assume that a woman who is being hit didn't consent to the attack. "Sadomasochists sometimes like to get beat up," the judge reminded the courtroom--then acquitted the man.

The judge appeared to be in a snit because the girlfriend, the alleged victim in the attack, had disappeared, even though she had been ordered to testify. Ignoring decades of research proving that domestic violence victims are often too afraid and intimidated to testify against perpetrators, the judge discounted the female cop's eyewitness account.

The Baltimore Sun reported on the judge's comments: "The state is stepping into the shoes of the victim when she obviously doesn't care," Harris told the prosecutor, according to a recording of the October 3 hearing. "It's that big brother mentality of the state....But I have to decide the case based on what I have and I think a crucial element is missing." Judge Harris, defending his position, asserted that to prove this was truly a second-degree assault, it had to be clear that "the defendant's actions were not consented to by the victim." He wondered, "How do you determine that without the victim?"

Hmmm.
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