If You Can't Argue the Facts...
County commissioners go to comical lengths to suppress jail study
Last March, George Rodrigue, the managing editor of The Dallas Morning News, received a rather stern letter from a high-paid private attorney representing Dallas County. Aggrieved that reporter Jim O'Neill documented the blistering findings of an outside study of the county jail, Ernest Figari of the corporate law firm Figari & Davenport wrote that the report was confidential and should not be discussed in the pages of a newspaper.
"It is unclear to me at this time how Mr. James M. O'Neill received the Report, but it's [sic] release was not authorized by the Commissioners Court, the County, or their legal counsel," read the letter, which actually was authorized by the county.
Figari, paid $450 an hour by the county, then requested that the newspaper return the report and all copies to him "immediately."
The lawyer's letter didn't exactly achieve its desired effect. Rather than deliver all copies of the jail report to the law firm, the Morning News instead posted it on its Web site for the entire wired universe to read. Figari & Davenport filed an emergency application for a temporary restraining order barring the paper from broadcasting the report, but a judge rejected it. Meanwhile, the paper's own attorney had a rejoinder to Figari's First Amendment-challenged letter. "The News has no intention to surrender any source material acquired in the course of meeting its obligation to report on this matter of public concern."
Since the release of the outside study of the Dallas County jail, the county commissioners and their legal help have gone to absurd lengths to control how it is used, as if they could possibly bury the scathing findings about a taxpayer-funded facility. They have failed miserably. Recently the county argued in federal court that lawyers for an inmate who went without water for nearly two weeks cannot make any reference to the jail report in their lawsuit. That might have something to do with how the report clearly corroborates the broad themes of their complaint. It doesn't really matter; on Friday, U.S. Magistrate Judge Jeff Kaplan rejected the county's petition.
Funded by the Meadows Foundation, the jailhouse report chronicled several cases in which the staff ignored the urgent medical needs of chronically ill inmates. In one case, an inmate displayed abnormal symptoms indicating a variety of chronic illnesses, but he was not properly diagnosed for six weeks. After he was belatedly examined, nobody took the time to evaluate his medical tests. He had no follow-up examination. Several days later, unable to breathe, he was rushed to the hospital and later died. The report cited another inmate who was hospitalized 10 times over a six-month period because the medical staff failed to care for a leg infection. Written by Michael Puisis, the former medical director of the Cook County Jail in Chicago, the report described a pattern of health care at the jail as a "form of systemic incompetence."
On December 30, 2004, lawyers for three inmates who did time at the jail filed a lawsuit alleging sweeping patterns of neglect that resulted in at least one death. Clarence Lee Grant was a 51-year-old paranoid schizophrenic who failed to receive his prescribed medication for nearly a week. Days later the jail's medical staff noticed that he looked confused, depressed, dehydrated and weak, but they did not take him to see a doctor. Grant's sister visited him in jail and was horrified by his condition. He could barely talk. Two days later, Grant died in his cell.
Another inmate represented in the suit, James Mims, suffered renal failure after water was turned off in his cell for 13 days.
Clearly, the independent study of the jail is a boon to the plaintiff's attorneys because it provides outside corroboration of the facility's dismal track record.
"We think the report itself is the best evidence," says Fort Worth attorney Jeff Kobs, who represents the plaintiffs.
So the county did everything it could to keep the report out of the public's hands.
Shortly after the report was completed, Morning News reporter O'Neill filed a written request asking for it to be released. It was denied. O'Neill has sources in the right places, however, and got a copy anyway. The District Attorney's Office investigated how the reporter obtained the document but came up with nothing. Months later, attorney Dennis Lynch, paid $250 an hour by the county, said that the chief question is how the report got to The Dallas Morning News, though U.S. Magistrate Judge Jeff Kaplan wasn't inclined to go along.
"I am not prepared to incarcerate any reporters" in order to find out what happened, he said.
Having abjectly failed to keep the report buried, the county then tried to prevent the plaintiffs' lawyers from using its findings. After the plaintiffs' lawyers included it in an appendix to their suit, Figari & Davenport filed a motion asking the court to restore the privileged nature of the jail study and prevent the plaintiffs from referring to it. On Friday, July 22, Lynch argued in federal court that the jail study was the "work product" of the county. Work product is a legal term that refers to the research, opinions and strategy of a lawyer or party in a lawsuit that is exempt from discovery. The jail study should remain confidential, Lynch argued, because it was prepared in response to the looming Mims case.
"It was clearly done in anticipation of the litigation that brings us here today," said the 36-year-old Lynch. That's an odd claim since the jail report makes no mention of the Mims case. Lynch also argued that even though the News posted the report on its Web site, the county did everything it could to keep it confidential.
One problem, however, is that since that hearing, Lynch's own clients have seemed to refute his point. In an interview with the Dallas Observer, County Judge Margaret Keliher, who initiated the report, says flat-out that it was done "in anticipation of litigation, not just the Mims case." In other words, the commissioners weren't just worried about the Mims case, but other lawsuits that have befallen the jail for years. That's not a fine point--if the origins of the report are more general in nature, it's tough to argue that it should be privileged for a specific case.
Then there's Commissioner Mike Cantrell. He says the commissioners mandated the report because former Sheriff Jim Bowles and the jail's medical provider, the University of Texas Medical Branch at Galveston, were not exactly the best source on how the jail was being run. "We had a sheriff who would not allow us access to the jail, and we had a vendor who could not disclose information because of [patient privacy] rules," he says. "So how else were we going to get information about the jail?"
He may be right, but that's the same exact argument opposing attorneys made. Interestingly, when I left a voicemail for Commissioner Maurine Dickey asking about conditions at the Dallas County jail, she encouraged me to read the report on The Dallas Morning News Web site. So how is this report confidential?
Judge Kaplan couldn't figure it out either. On Friday, a week after he heard the motion, he rejected the county's plea and placed the commissioners and their legal counsel in the unenviable position of having to argue the facts in the case. --Matt Pulle
Every Picture Tells a Story
Rogelio Santillan's latest project doesn't look like much at first, just a utilitarian mockup of a student dorm room occupying one corner of a warehouse down the street from Love Field. But Santillan, editor of El Sol de Texas, a 20,000-circulation Spanish-language weekly, hopes to revive a Latino pop art medium seldom seen north of the Mexican border: the fotonovela.
In form, fotonovelas are essentially comic books that use photos instead of drawings. In content, they closely resemble their better-known TV counterparts, telenovelas, Latino soap operas known for exquisitely coiffed actors and excruciatingly pregnant pauses. Unlike telenovelas, however, fotonovelas have declined in popularity in Latin America and are all but unknown in the United States.
Yet Santillan believes that his script, combining classic romantic intrigue with modern Latino characters living in America, could revive interest in the medium. In his view, a successful homegrown fotonovela could be seen as a coming-of-age of sorts for Dallas' Latino community. "We have had a mentality that we have to make do with what culture there is here," he says. "This is an opportunity to create something that is uniquely ours."
But not all of the fotonovela's Latino roots are healthy. The format's popularity, which peaked in the 1970s, was based partially on Latin America's historically low education levels. "It's a very good medium for people who have weak literacy skills," says John Comings, a Harvard professor who has studied and produced fotonovelas. The relatively low production cost of photography was another advantage in countries with little capital to invest in locally produced entertainment, and it kept the price low for poor consumers.
These factors help explain the fotonovela's limited development in the United States. Few, if any, have been produced here purely for entertainment, but they are an increasingly popular means for government agencies or nonprofit groups to deliver information to immigrant communities. Typical topics include prenatal care and STD prevention. But with his fotonovela, Santillan is determined to escape such pedestrian roots. "We are aiming for a sophisticated product, one with a high cultural level," he says.
His script, titled Idilio Azul, or "Blue Idyll," seems to reinforce the project's kinship with its melodramatic full-motion cousin the telenovela. The actors' lines are florid, while their instructions border on the baroque: "Moments before, you made love to him," one section reads. "Moments before, your lips hung on his, your dreams had his as their foundation. There was no part of your body that his delicate teeth did not mark, and you did the same to him. Thus you carry his taste in your mouth, though you try to hide it. Moments before, you asked him, you even heard yourself beg him to melt with you, saying it loud."
Obviously, Santillan's taste ventures beyond the restrained prose of his paper's news content. Traditionally, fotonovelas have a strong didactic element, and Santillan's is no exception, with its clear theme of responsibility.
Santillan plans to print a relatively modest run of 5,000 copies of Idilio Azul to test the waters but has high hopes that he can sell many more. So far he estimates that he has sunk $15,000 into the project, but at least the in-house talent comes relatively cheap. Santillan also splits shooting duty with other photo contributors to El Sol.
The leading man, Mario Torres, has performance experience of a different kind as a midfielder for professional soccer club FC Dallas (see "The Year of El Gato," July 14). Torres came to Santillan's attention in photos taken for an El Sol sports article. The cast and crew will see a share of any profits, but the only guaranteed compensation is the chance to participate in a unique endeavor.
Claudia Moreno, who plays the part of April, the unlucky third of the plot's central love triangle, is a star pupil in Santillan's Art Projects Model Academy. "In modeling you just keep moving, responding to directions and changing moods," she says. "For these kind of shoots you have to work to show a certain emotion and then just hold it."
Communicating emotion is the strong suit of the fotonovela format, Comings says. He is skeptical, however, that an entertainment fotonovela will appeal to a more educated and affluent Latino market without targeting a specific niche like adolescents, or including a well-known star. "I think there would have to be some kind of innovation here," he says. "A fotonovela with Brad Pitt would probably sell pretty well."
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The question hanging over Idilio Azul, then, would seem to be this: What statement would its success make? It could be that Santillan will have accomplished his mission to transcend the fotonovela's traditional market. Another, more troubling interpretation is that success would simply underscore Dallas Latinos' lagging affluence and education levels. An argument for this perspective can be found in 2003 Census figures showing that Hispanics in the area are less than half as likely as any other ethnic group to have completed high school.
Jesus Alvarado, a muralist and gallery director for the Icehouse Cultural Center in Oak Cliff, suggests still a third option. He notes that among young, hip Latino-Americans there has been a recent fascination with retro Hispanic kitsch. "You know what 'naco' is?" Alvarado asks. "It's like 'ghetto.' Everybody wants to be all 'naco' now, wearing T-shirts that say 'I like beans' and stuff like that. It wouldn't surprise me if they totally got into [the fotonovela]."
Even as midnight approaches, there is still plenty of energy on the set, fueled, appropriately, by the hip retro-rock of Café Tacuba blasting from a stereo. "It's really gratifying," Santillan says, gesturing at the assembled crew. "They've decided to join my dream and make it a reality."
At the moment, the dream being realized looks to be that of Torres, who is smooching costar Gabriela Gutierrez just above the beltline as the dark-haired actress throws her head back. When the photographer pauses to adjust his camera, Torres sits up and grins widely. "I think I'm quitting my old job," he says. --Rick Kennedy