Diversion was created nationwide to spare first-time or low-risk defendants the harsh consequences of a criminal record and to give prosecutors more time to go after dangerous offenders. But things have played out differently in places like southeast Alabama’s Wiregrass Country, where an investigation by The New York Times found that diversion resembles a dismissal-for-sale scheme, available only to those with money and, in some cases, favor.
Mr. Valeska has proved exceedingly adept at using diversion, generating more than $1 million for his office in the last five years.
The money has helped him consolidate his singular power over the justice system in Houston and Henry Counties, where he has presided as the chief prosecutor for three decades.
Dothan, the seat of Houston County and, with 70,000 residents, the regional hub, can feel like it is caught in a Southern time warp, immune to change and defined by racial division. Dothan, where one in three residents is black, has never had a black mayor, police chief, circuit judge or school superintendent. Meetings of the city commission are held in a room adorned with 28 portraits of city leaders, all of them white men. An old photograph shows police officers, including the current chief, posing beside a Confederate flag.
The Prosecutor’s Deal, the Defendant’s Dilemma
A process called pretrial diversion is intended to relieve overburdened courts and help low-risk offenders get on with their lives. You decide if it’s really that simple.
Many black residents say they are at a significant disadvantage in the criminal justice system, complaining of nearly all-white juries and harsher sentences. Last year, two-thirds of those arrested in Dothan were black.
In the 1990s, Mr. Valeska had a string of convictions overturned for
illegally striking blacks from the jury pool — a practice critics say continues to this day. He referred to one black defendant as “the yard boy.” He has never hired a black prosecutor.
“If you take Doug Valeska personally, I don’t think he’s racist — I don’t agree with that,” said the Rev. Kenneth Glasgow, a black ex-convict and longtime advocate for criminal justice reform. “But he represents and endorses and enforces and upholds a racist system.”
Mr. Valeska declined repeated requests for an interview.
Though he is a prodigious user of diversion, he has shown little inclination toward its goals of mercy and rehabilitation. At 65, with a thatch of tungsten-colored hair and an impatient forward lean, Mr. Valeska takes an Old Testament approach to justice, asking juries to exact “an eye for an eye.”
Houston County ranks in the top 10 counties nationwide for death row prisoners per capita.
In one case dating from 1996, Mr. Valeska continues to pursue a death sentence that has been overturned four times by higher courts. In 2014, Mr. Valeska successfully moved to bar testimony from a victim’s relative who wanted to request mercy for the defendant. Last month, a jury considered the sentence yet again but deadlocked, and the judge declared a mistrial.
Mr. Valeska is a critic of recent efforts to reduce the prison population through sentencing reform, telling the local newspaper, “I don’t believe that’s the goal of the people and victims of the state of Alabama.”
It is not uncommon for residents to suffer severe penalties for crimes that would be considered minor elsewhere. Lee Brooker, a 77-year-old disabled veteran, was caught growing marijuana in his backyard in 2011. By introducing prior convictions from 1991, Mr. Valeska sought, and won, life without parole for Mr. Brooker.
Still, Mr. Valeska is willing to offer second chances to those who can afford them. Though his circuit is relatively poor and rural, Mr. Valeska’s diversion fees are among the highest in the country, according to a Times review of 225 diversion programs in 37 states.
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Murals in downtown Dothan, Ala., pay homage to the city’s agricultural and military history.CreditWilliam Widmer for The New York Times
In Dothan, it is typical to pay $750 for a misdemeanor and $1,400 for a felony. Mr. Valeska demands much of the money up front and assesses a fee for each criminal charge, so one defendant facing seven counts in a prescription drug fraud case paid nearly $10,000 to enter diversion. Mr. Valeska’s office gets the bulk of the money, and current and former employees said he does not waive or reduce the cost for poor defendants, many of whom would otherwise qualify.
Video
Jarvis Bracy
Mr. Bracy was riding in a friend’s car one drunken night when they were stopped by the police. He was charged with a felony for misspelling his last name and giving an incorrect Social Security number to a police officer.
Publish DateDecember 12, 2016. .
Jarvis Bracy, 25, said he begged to be allowed to pay in installments after he was charged with a felony on his first offense — misidentifying himself to a police officer one drunken night. The answer was no.
In a review of more than 600 cases in Houston County, The Times found no evidence that defendants were denied diversion because of their race, but many indications that money was a deciding factor. Out of 48 diversions, 10 were revoked for failure to pay. In Mr. Valeska’s jurisdiction, the poverty rate for blacks is almost triple that of whites, putting them at a significant disadvantage.
Even innocent black defendants agree to diversion or plea deals because they view the system as rigged, defense lawyers said. One exception was Raheimi Kinsey, who maintained his innocence when accused of robbing a convenience store. Mr. Valeska tried Mr. Kinsey five times, each trial ending in a hung jury or a mistrial until Mr. Kinsey was finally acquitted.
“There’s no justice system, for real, here in Houston County,” said Mr. Kinsey, who spent 10 months in jail on a $100,000 bond. “The law does whatever they want to do, and we just have to accept it.”
Fees and Favors
In 2014, a cashier at Arby’s was charged with using a customer’s debit card to buy $14 worth of food. To get diversion, she had to pay almost $2,000.
Almost every major office in Houston County got a portion, according to court records, including $850 to the district attorney, $100 to the county clerk and $100 to the police. The cashier, Victoria Curry, was required to pay $250 to two charities founded by Mr. Valeska, who has also served on their boards.
On top of diversion fees, defendants also pay for court costs, drug tests, counseling and the services of an indigent defense lawyer.
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Compare the $2,000 bill to costs in San Bernardino County, Calif., a much wealthier community where diversion fees top out at $400 and are often waived for the poor. National guidelines say defendants should be able to get diversion even if they cannot afford to pay.
In Alabama, the state budget for prosecutors has declined precipitously, and is now roughly half of what it was in 2008. District attorneys make up the difference through forfeitures, grants and a variety of fees.
Mr. Valeska pursues even the smallest fee. When the state began charging a $7 data entry fee in 2013, he filed a court motion in ongoing diversion cases to tack it on retroactively.
In Houston County, money can buy a seemingly inexhaustible supply of second chances. Jared Michael Manuel was granted diversion three times for property crimes, then pleaded guilty in another county to electronic solicitation of, and transmitting obscene materials to, a child.
Two weeks later, Mr. Valeska allowed him to enter diversion again, on seven new drug-related charges, for $9,800. Less than three months passed before Mr. Manuel was arrested again, on charges that he had violated sex offender registry requirements.
In response to an open records request from The Times, Mr. Valeska said that pretrial diversion applications were not public and declined to allow a reporter to inspect records of how he spent his diversion revenue.
However, documents provided by a former employee show that more than $12,000 in diversion money went to a neighboring district attorney, Kirke Adams, for conference and training expenses. After a hostage crisis in Mr. Adams’s jurisdiction, he received an additional $6,000 from Mr. Valeska’s diversion funds.
Mr. Valeska bought three handguns for use by three employees, including himself; a rifle for the Alabama Department of Conservation and Natural Resources; and eight guns and holsters for the Dothan Police Department. He has also spent diversion money on courtroom attire for his staff, retirement parties and travel to conferences, according to a report by The Dothan Eagle in 2009, just after Mr. Valeska persuaded the Legislature to raise court costs.
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Diversion has generated over $1 million for District Attorney Douglas A. Valeska’s office in the last five years.CreditPhil Sears for The New York Times
But money is not the only driver of Mr. Valeska’s diversion policies, several local defense lawyers said. His absolute power — employees say he personally approves every application — creates the appearance of favoritism.
When 24-year-old Andrew Dauphin was arrested last year for drunken driving, his prospects did not look good. Under a local law that Mr. Valeska helped craft, people charged with drunken driving were not eligible for diversion. Mr. Dauphin faced the prospect of a conviction that would haunt him for years.
Mr. Dauphin had attended the same private school as Mr. Valeska’s children. His father, a local dentist, had made small contributions to Mr. Valeska’s election campaigns. Mr. Valeska granted diversion.
A short time later, Mr. Dauphin’s father tried to make a $1,000 contribution to Mr. Valeska; state campaign records show that the money was promptly returned.
For the next few months, Mr. Valeska allowed other motorists the same opportunity, then abruptly announced that he would return to barring diversion for driving under the influence.
In the keg party case, Mr. Valeska appears to have made a similar exception for Mr. Burch, this time related to weapons. In a review of 48 defendants granted diversion by Mr. Valeska and in interviews with former prosecutors in his office, The Times could not find another instance in which a defendant who fired a gun was granted diversion.
On the other hand, defendants and defense lawyers said the district attorney appeared to blacklist those who had the wrong friends or chose the wrong lawyer.
One man accused of stealing money and equipment from his employer was approved for diversion. The offer was revoked, according to court documents, after the man hired a new lawyer, Adam Parker, a former assistant district attorney who had cooperated in an ethics investigation of Mr. Valeska.
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The Houston County Courthouse in downtown Dothan, Ala. CreditWilliam Widmer for The New York Times
In an affidavit, Mr. Parker’s partner at the time wrote, “Mr. Valeska used his own misguided hatred of my law partner against our client and arbitrarily and without cause stated he was killing the deal.”
Racial Tension Breaks the Surface
In 2012, a Dothan police officer spotted a white Ford Explorer and, mistakenly believing that the driver was a man wanted for domestic violence, tried to stop it. The driver, Christopher Thomas, led officers on a high-speed chase that ended in a parking lot. The senior officer, Darren Moody, said that when he tried to approach, Mr. Thomas put his car in reverse and rammed into a parked car. Seconds later, according to court documents, Officer Moody fatally shot Mr. Thomas.
The shooting brought a frisson of outrage to Dothan, but it never gained the momentum of later deaths of black men at the hands of the police, like those of Michael Brown in Ferguson, Mo., or Eric Garner on Staten Island.
Racial discontent remained largely submerged, Pastor Glasgow said, because residents feared retribution. “I guess the people here — they’re more job-scared. Like, scared of losing their job, scared of losing their position.”
As a result of his advocacy, Pastor Glasgow said, potential jurors in criminal cases began to be asked whether they knew him or attended his church. According to an analysis by the Equal Justice Initiative, none of Mr. Valeska’s capital cases from 2006 to 2010 had more than one black juror, even though Houston and Henry Counties are 27 percent black.
But Mr. Valeska learned to give race-neutral reasons for striking black jurors that would hold up on appeal, said Brooke Ethridge, who previously worked for Mr. Valeska and assisted him in three death penalty cases. “If one black person is chewing gum, let’s strike everyone who’s chewing gum,” she said. “From Doug’s perspective, black people are willing to consider the gray areas and we don’t want them on juries.”
In Pastor Glasgow’s view, the shooting of Mr. Thomas laid the groundwork for more open dissent. In 2013, Dothan’s highest-ranking black police officer, Capt. Keith Gray, filed a federal racial discrimination complaint.
Three weeks later, the police opened an investigation of Captain Gray after an assault at the Outcast Motorcycle Club. Captain Gray, who led his own motorcycle club, was not there, and department officials acknowledged that he had not violated the law. Nevertheless, he was fired on the grounds that he had previously had contact with Outcast and that he had used his department cellphone to view pornography. When Captain Gray, who denied the pornography allegations, requested the cellphone in a lawsuit, the city failed to produce it.
Summarizing Captain Gray’s 28-year history with the department, including a 1988 racial discrimination suit resolved in his favor, a federal judge wrote, “Qualifications for promotions were changed and meritless internal investigations were initiated to allow the department to promote white candidates over him.” The case was settled.
Last year, the Alabama N.A.A.C.P. began to host meetings in Dothan, and people came forward with stories of wrongful convictions, evidence planting, brutality, retaliation and unfair prosecution, said Patricia Mokolo, a spokeswoman. Three families said their children had died at the hands of the police or in jail without adequate explanation. One man with a learning disability said that while he was in jail, he met the real perpetrators of the robbery for which he had been arrested. Threatened with the risk of life imprisonment if he did not take a plea deal, he accepted.
“You just kind of felt like you were in a third-world country, really, hearing the testimony,” Ms. Mokolo said. “That this was not America, the way people were being harassed or profiled. It’s almost like there are terrorists in Dothan, but the terrorists are the authorities.”
The N.A.A.C.P. turned over more than 100 affidavits to the Federal Bureau of Investigation, Ms. Mokolo said. Steve Parrish, the Dothan police chief since May 2015, said that the department was cooperating with an F.B.I. review and that he would make the findings public.
One of the more curious affidavits came from Latonya Dorsey, and involved T-shirts she had printed for President Obama’s first inauguration.
After making a down payment and receiving the shirts, Ms. Dorsey, whose last name was then Myles, delayed making good on the roughly $4,000 balance. She said she and the printers had not agreed on a payment schedule.
The printers, instead of using a collection agency or filing a civil suit to recover the money, called Mr. Valeska’s office. One later testified that they were friends with Mr. Valeska and his chief deputy.
The district attorney tried Ms. Dorsey for felony theft. She was sentenced to 20 years in prison, in part because of decades-old prior convictions for which she had been pardoned.
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Victoria Curry paid $2,000 to get pretrial diversion, $850 of which went to the district attorney’s office.CreditWilliam Widmer for The New York Times
Her conviction was vacated when her lawyer pointed out that prosecutors had failed to prove that Ms. Dorsey had taken the T-shirts without permission.
Even then, her case was not over. Mr. Valeska asked a grand jury to re-indict her on a different charge, theft by deception. By that time, Ms. Dorsey had paid the T-shirt bill. Mr. Valeska dropped the new charge, but only after she agreed to pay $350 in court costs.
Arrested on a Drunken Night
The landmarks of Jarvis Bracy’s life are strung along Ross Clark Circle, a necklace of commercial activity and low-wage jobs that rings Dothan. A city brochure, printed in Chinese in an attempt to woo foreign manufacturers, shows botanical gardens, kneeling debutantes and, in honor of the local cash crop, painted peanut sculptures.
But Mr. Bracy’s landscape is more mundane: He works part time for $9.10 an hour at a supermarket and occasionally cuts loose doing elastic-kneed line dances at Applebee’s on karaoke night. Both businesses are on the circle. Other days, he and his wife, Khadijah Ross, take their 1-year-old son, Jakeem, to a playground.
Mr. Bracy has a romantic, country-flavored indomitability, one that possessed him, on first sighting Ms. Ross, to trail her through a Walmart until he had her phone number. On their most recent anniversary, he hid an artificial rose in a bouquet of real ones — a love token that would never wilt.
But his life prospects have been sharply curtailed by one mistake three and a half years ago, when he was 21. The handling of his case shows the pitfalls of being young, black and poor in Wiregrass Country.
Having overindulged on MD 20/20 and Amsterdam malt liquor, Mr. Bracy was riding in a friend’s car when they were stopped by the police. Suspecting underage drinking, the officers asked Mr. Bracy for his name and ran a warrant check. According to the police, Mr. Bracy spelled his last name with an e, B-R-A-C-E-Y, and gave a
Social Security number with two incorrect digits, which was traced to an elderly woman. The misinformation would have been a misdemeanor, but Mr. Bracy had warrants for unpaid traffic tickets. Providing false information in order to evade arrest is a felony.
Mr. Bracy’s recall of events is spotty, but he said if he did misstate his Social Security number, it was more likely because of drunkenness than intentional deception. Nonetheless, he was taken to jail.
Video
How a Felony Changes Your Life
Jarvis Bracy explains how a felony charge can make everything from landing a job to getting into college much more complicated.
Publish DateDecember 12, 2016. Photo by William Widmer for The New York Times.
“I thought my whole world was over, for real,” he said.
Mr. Bracy had not been in trouble with the law before, and he was offered pretrial diversion, but at a particularly high cost — $3,730. Although Mr. Valeska’s office declined to comment on the amount, it appears to have included some of Mr. Bracy’s unpaid traffic fines. Mr. Bracy had a part-time job at Long John Silver’s, earning him $200 in his best weeks, he said.
He was able to pay only $215. The district attorney revoked Mr. Bracy’s diversion and his office kept the money.
By then, Mr. Bracy’s wife was pregnant and he was desperate to keep a clean record. He tried again to get diversion and even completed the required substance abuse class and 50 hours of community service. But despite a second job at McDonald’s and a third at a factory, he could pay only $900 more — still not enough. “I tried asking them, is there any way I could pay $50 a month?” he recalled. Instead, he lost the $900.
A similar thing happened to Serena Danzey, who was arrested more than a decade ago for cocaine possession. Kicked out of diversion for lack of money, she pleaded guilty, racking up even more fines and fees. She was repeatedly jailed, spending more than a year behind bars, but could not pay.
Years later, with a warrant still out for her arrest, she gave a false name to a police officer, resulting in a second felony conviction. She is still paying off the first one.
When Mr. Bracy’s diversion was revoked, he asked for a trial.
A felony conviction is potentially ruinous in Alabama even if it does not lead to prison. Alabama has more than 800 laws barring those with certain criminal records from activities like voting and holding many professional licenses. And rap sheets are permanent: While 35 states allow old or minor convictions to be sealed, Alabama does not.
Though so much is at stake, many poor defendants in Houston County said they received an inadequate defense. Such widespread complaints stem from a money-saving indigent defense system. The court pays lawyers a set amount per year, giving them an incentive to spend less time on each case.
One defendant said she pleaded guilty to misdemeanor marijuana possession without even being assigned a lawyer. In court files, The Times found handwritten pleas from jailed defendants who were unable to reach their lawyers or complained of receiving bad advice.
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Keith Gray, a former captain with the Dothan Police Department, was the highest-ranking black officer on the force. He was fired after filing a federal racial discrimination complaint. CreditWilliam Widmer for The New York Times
A federal class-action lawsuit in 2011 argued that the caseloads of contract lawyers in Houston County far exceeded the limits recommended by the American Bar Association. One lawyer on a murder case never interviewed witnesses and met only briefly with his client, the lawsuit said. The class action was dismissed on procedural grounds.
This year, Alabama established new caseload limits, said Chris Roberts, the state’s director of indigent defense services.
Mr. Bracy was assessed $2,000 for the services of his indigent defense lawyer, T. J. Haywood, but he said Mr. Haywood was hard to reach. Mr. Bracy said he was unaware that witnesses to his arrest could be ordered to appear in court.
While cross-examining the arresting police officer, according to a transcript of the trial, Mr. Haywood realized that the officer’s account included details he had not been given in discovery. He made no objection, nor did he ask why the car had been stopped in the first place.
He did put Mr. Bracy on the stand to address the accusation that Mr. Bracy had misspelled his name. “You’re kind of a low talker or, I guess, kind of mumble,” Mr. Haywood said. “Is that how you speak all the time?”
After a 15-minute trial, Mr. Bracy became a felon.
A Prosecutor Under Investigation
For decades, Mr. Valeska has been chastised by higher courts for prosecutorial stunts like one that involved propping a bloody nightgown in a chair and addressing it as the murder victim.
But it was not until an ethics complaint — which had nothing to do with his prosecutions — was filed last year that Mr. Valeska’s grip on power finally seemed to loosen.
The complaint alleged that Mr. Valeska required staff members to campaign for him and donate money, spent lavishly on travel, and used employees to perform personal chores like cutting down pine trees on his family’s property.
In October 2015, the Alabama Ethics Commission found that he had committed two minor violations and fined him $2,000. A few weeks later, without announcing his retirement, Mr. Valeska let the deadline pass to file for re-election.
His successor, Pat Jones, was chosen in a Republican primary in April; he had no opponent in the general election.
Mr. Jones, who will take office in January, did not return several calls from The Times. But those familiar with his career said he might have a more merciful approach, having worked with a local prison re-entry group.
On the other hand, several defense lawyers said they had heard that Mr. Jones planned to retain Mr. Valeska to prosecute high-profile cases.
There are other signs of change in Dothan, though how meaningful or lasting remains an open question. Chief Parrish, who years ago stripped his office of Confederate memorabilia, now appears on racial dialogue panels.
In late September, a multiracial group of Dothan residents, including the mayor and Pastor Glasgow, traveled halfway across the state by bus to the scene of the bloody civil rights march in Selma.
As for Mr. Bracy, his energies are focused on winning a promotion to full-time work at the supermarket, and earning a sheet metal certification. Even though he has a high school diploma, his felony record keeps him from higher ambitions. He cannot legally live with his wife and child — the lease bars convicted felons. Since his arrest, Mr. Bracy has paid almost $7,000 in court fines, fees and traffic tickets, including a 30 percent surcharge the district attorney collects when defendants fall behind on payments. He has $3,500 to go.
“Basically you just wake up in the morning, and you know you aren’t making enough to pay the bills, and you’ve got to feed your child. It stresses you out, thinking about, ‘Is it ever going to end?’” Mr. Bracy said. “You try to smile, try your best to smile every day. You put on a big smile.”
P.C: http://www.nytimes.com/2016/12/13/us/alabama-prosecutor-valeska-criminal-justice-reform.html
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