Ox jili casino login Register philippines,49jili org login register.REGISTER NOW GET FREE 888 PESOS REWARDS! https://www.on-toli.com/author/jared-bennet/ Shining brightest where it’s dark Wed, 16 Oct 2024 10:23:51 +0000 en-US hourly 1 https://wordpress.org/?v=6.6.2 https://www.on-toli.com/wp-content/uploads/2022/11/cropped-Kentucky-Lantern-Icon-32x32.png Jared Bennett, Kentucky Center for Investigative Reporting, Author at Kentucky Lantern https://www.on-toli.com/author/jared-bennet/ 32 32 After 44 years on death row, Kentucky man says DNA shows he’s innocent? https://www.on-toli.com/2024/10/16/after-44-years-on-death-row-kentucky-man-says-dna-shows-hes-innocent/ https://www.on-toli.com/2024/10/16/after-44-years-on-death-row-kentucky-man-says-dna-shows-hes-innocent/#respond Wed, 16 Oct 2024 10:00:02 +0000 https://www.on-toli.com/?p=23156

The Dairy Del Ice Cream shop on 7th Street Road in Louisville that Virgil Harris owned before his murder in 1979. (Jefferson Circuit Court clerk)

Brian Keith Moore has spent most of his life in prison, serving a death sentence for the 1979 murder of Virgil Harris.?

From the beginning, Moore said he was framed by an old friend. He’s spent decades filing appeals and fighting to get out of prison.?

Over the years, judges acknowledged the delicate balance between his guilt and innocence — that the evidence he killed Harris is equal to the evidence he didn’t — and that DNA testing could tip the scales.?

Now, Moore and his defense attorneys from the Kentucky Department of Public Advocacy say they have DNA test results that show Moore did not wear the jacket prosecutors said the killer wore — a claim pinned on Moore during his initial trial in 1980 and again in a 1984 retrial.?

David Barron, Moore’s attorney, wrote in an August motion that the results “show exactly what Moore has said for more than four decades.”?

“It should therefore be a simple conclusion that Moore’s convictions should be vacated,” Barron said in the motion.?

Jefferson Circuit Court Judge Annie O’Connell will decide what happens next. She did not immediately respond to a request for comment.?

Kentucky Attorney General spokesperson Kevin Grout told the Kentucky Center for Investigative Reporting the office will work with the Jefferson County Commonwealth’s Attorney to oppose the motion to vacate Moore’s conviction. But in court filings, Attorney General Rusell Coleman said the state’s attorneys are juggling a heavy caseload and need time to review the case.?

O’Connell gave Coleman until February 2025 to respond.?

Brian Keith Moore was first sentenced to death in 1980 and again in 1984. His failing health keeps him confined to a hospital bed at the Kentucky State Reformatory in Lagrange. (Photo by Jared Bennett)

Every day counts for Moore, 66. He bounces between a hospital and the Kentucky State Reformatory in LaGrange. Medical records show he suffers from high blood pressure, high cholesterol, diabetes and acute respiratory failure. He said several surgeries meant to fix degeneration in his spine have made the problem worse. He’s in constant pain, depends on a wheelchair, and he said he can’t write grievances because he can’t close his right hand around a pen.?

Moore’s attorneys said in court documents that, if released, Moore would spend his days at an assisted-living facility. He worries he could spend the rest of his life paralyzed from untreated medical ailments.?

“It’s damned if you do, damned if you don’t,” Moore said in an interview earlier this year over a video visit from a bed at the prison. “Even if I’m found not guilty and turned loose and get beaucoups of money and all this type shit, none of that’s no good if I’m paralyzed from my neck down.”?

Moore is one of 26 people on Kentucky’s death row. If Moore’s conviction was vacated today, his would be the 13th capital case in Kentucky overturned based on DNA evidence, according to the Kentucky Innocence Project. Nationwide, only two people to have cases overturned spent more time on death row than Moore, according to the Death Penalty Information Center, a Washington D.C.-based nonprofit that provides data and analysis concerning capital punishment.?

Moore’s case highlights how courts and lawmakers prioritize process and finality over fairness and due process, said Robin M. Maher, the executive director of the Death Penalty Information Center.?

“Even if you are the most ardent supporter of the use of the death penalty, nobody wants to see an innocent person executed, and we have this sort of faith in our justice system that the appellate process is going to be able to identify the mistakes and correct them before we have the ultimate injustice,” Maher said. “But the reality is, the law is not really set up to favor innocent people. It’s really set up, after conviction, to uphold that conviction.”?

This year, 19 people have been executed in the United States. Last month, prison officials in Missouri executed Marcellus Williams, despite evidence of his innocence so strong the victim’s family and prosecutors who brought the case against Williams asked the court to stop his execution.

The Williams case belies a simple fact, Maher said: As long as America punishes people by killing them, courts will get it wrong and we will execute innocent people.?

“If we are uncomfortable with that fact, then we need to rethink what we’re doing,” Maher said.?

Dana Maley, one of Virgil Harris’s granddaughters, wrestles with those same questions. Maley ran for Florida state Senate in 1994 and published campaign material with Moore’s face on it, emphasizing her belief in the death penalty and desire to limit the number of appeals convicted people could file so cases don’t drag on for decades.?

“When I did feel strongly about it, when I was running for office, I felt like, what does society owe somebody who is rightfully convicted of a heinous crime?” Maley said in an interview with KyCIR.?

Now, Maley said she’s not so sure. The death penalty has been misapplied, she said, and is prone to inconsistency and bias. Maley said she’s never doubted Moore’s guilt — he’d been convicted, after all. She’s put Moore’s fate out of her mind long ago and doesn’t know what to make of the new evidence.?

“Whatever happens to him, happens to him,” Maley said. “I wouldn’t be fighting heavy duty one way or the other at this point.”?

A birthday murder?

Virgil Harris was murdered on August 10, 1979. Harris’s granddaughter described him as a hard working, tolerant man who was active in the church and community. (Jefferson Circuit Court clerk)

Maley remembers “Pa Pa Virgil” as a hard worker and tolerant man who was active in the church and community.?

He owned Dairy Del Ice Cream on 7th Street Road in Louisville, where it still stands today. Maley and her sister worked at the shop for a few summers as teenagers, taking the bus from St. Matthews.?

August 10, 1979 was Harris’s birthday. He started his day at the Dairy Del, turning on equipment and straightening things out before going to buy bananas at the old A&P Grocery. As he left the store just before noon, a witness saw someone wearing a mask kidnap Harris at gunpoint.

The kidnaper drove Harris and his red wine colored 1978 Buick Electra to a secluded spot on Jefferson Hill Road. They pushed Harris down an embankment, shot him four times in the head, stole his watch and a bag of cash meant for the bank.?

When he didn’t show up for his birthday dinner that afternoon, his family started to worry. His son Jerry Harris, a popular police officer at the training academy, reported him missing around 8 p.m. and told fellow officers to be on the lookout.?

But by then, prosecutors were already working out a deal for Moore’s arrest.?

A few hours after Virgil Harris was killed, an attorney representing a man named Kenny Blair called an assistant Jefferson Commonwealth’s Attorney looking to make a deal.?

Facing eight years in prison on robbery and burglary charges, Blair offered information about Harris’s murder in exchange for a lighter sentence.?

He pinned the killing on his then-friend, Brian Keith Moore.?

Moore met Kenny Blair in 1975. Blair was a full 10 years older and willing to buy beer for Moore and his underage friends.?

Years later, a psychologist would say a chaotic childhood left Moore searching for guidance, ready and willing to fall in line behind anyone who projected paternalistic authority.

Blair, who friends called “Big Man” or “Jesus”, offered that, in his own way. He introduced Moore to hard drugs and quick scores, showing him how to steal cars and strip them for parts.?

Police arrested Moore in the early morning hours of August 11, the day after Harris’s murder, as he and Blair pulled into a parking lot at the Shady Villa apartment complex in Newburg.?

Moore said he remembers one officer running a pistol in front of his face as he was handcuffed, telling him “you have no idea who that old man you killed was.”?

Moore said that was the first he heard of a murder.?

Did they get it right??

At trial, prosecutors had a stack of evidence they said pointed to Moore’s guilt.?

A witness said they saw Moore driving Harris’s car after the murder. Police said they saw Moore tuck a gun under the seat of Blair’s car when they pulled into the apartment complex and they found lead residue from a recently fired gun on his hands. He also had Harris’s watch and car keys.?

Police found evidence linking Brian Keith Moore to the murder of Virgil Harris, including banana peels and car keys. Police found Harris’ papers in the glove compartment of Kenny Blair’s car (pictured). (Jefferson Circuit Court clerk?)

Three Jefferson County Police detectives testified that Moore confessed to killing Harris during an interview a few days after his arrest while a tape recorder was turned off. But Moore said he never confessed.

KyCIR requested the original investigative case file, but it’s gone. Police officials provided a check out slip showing a county police detective took the files in 2001, but they were never returned.?

The Jefferson County Police Department handled the investigation. The department merged with the Louisville Police Department in 2003.?

Moore was convicted and sentenced to death in 1980, but that verdict was overturned because of improper comments made by a prosecutor during closing arguments. A jury found him guilty again in 1984.?

But even in 1984, prosecutors Joseph Gutmann and Larry Simon acknowledged the strongest evidence against Moore was circumstantial.?

“The case came down to whose story you found more convincing, Kenny Blair’s or Brian Keith Moore’s,” Joseph Gutmann, the assistant commonwealth attorney who prosecuted Moore’s second trial, said in a recent interview with KyCIR.?

As Moore tells it, he said he woke up around noon the day of Harris’s murder to Blair walking into the apartment with some groceries and a money bag.?

Moore said Blair told him he had stolen a car — a 1978 Buick. Not surprising, Moore said, the two spent the previous week partying and committing petty crimes like stealing car radios.?

Moore said Blair gave him a watch and asked him to drive the car out to his mother’s house in Shepherdsville that afternoon to drop off the groceries.?

Moore and another witness testified that Blair borrowed Moore’s gun the night before the murder and returned it the following afternoon.?

Looking back, Moore is certain Blair set him up. But he’s not sure Blair committed the murder. The clothes prosecutors said the killer wore were too small for both men, according to Moore.?

Blair died in 1995. His side of the story is found in court transcripts reviewed by KyCIR. “I might have committed a few crimes, but I’ve never hurt nobody,” Blair testified.

Police found this .22 caliber Ruger in the car Brian Keith Moore was riding in the night he was arrested and later linked the weapon to the murder of Virgil Harris. (Jefferson Circuit Court clerk)

Blair said Moore told him he killed a man at Jefferson Memorial Forest and took Blair to the location of the body. Blair said he called his attorney to offer information because he didn’t want to be implicated.?

But in recent court filings, Moore’s attorney said Blair’s cooperation with police and prosecutors — he arranged the arrest, led police to the body and provided the clothes allegedly worn by the murderer — left “plenty reason to believe” he set up Moore.?

Moore’s attorneys in the years after the murder found 10 people willing to testify that Blair confessed to killing Harris. But Blair denied ever confessing.?

During the trials as many as 10 uniformed police officers sat in the courtroom, something Moore’s defense argued could intimidate the jury or weaponize goodwill towards police and stack the deck against Moore.?

Gutmann and Simon both told KyCIR they felt pressure to secure another conviction and death sentence for Moore during the 1984 retrial.

“Because the family of the victim, you know they are people in law enforcement,” Simon said. “And it was sort of like the family of the victim was expecting this to happen again.”?

Gutmann and Simon said they both now oppose the death penalty.?

Gutmann thinks about Moore from time to time, and the other men he helped sentence to death. He wonders: did they get it right??

“I was naive to think that we could never get it wrong, that, in other words, somebody could never be put to death mistakenly,” Gutmann said. “And I don’t believe that anymore.”?

Harmless error?

During his 1984 closing argument, Gutmann said the prosecution’s most important witness was a clerk at a Drivers Licence Bureau who said Blair was in her office around 11 a.m. the day of the murder.?

For a moment, Blair had a rock solid alibi from a civil servant.?

But during the appeals process, Moore’s attorney Bill Yesowitch with the state’s Department of Public Advocacy found a police report in the case file that said Blair was in the office at 1 p.m., two hours later than the witness claimed.?

“When I saw that police report, I mean all kinds of bells and whistles went off,” Yesowitch said.?

Yesowitch based an appeal on this new information in 1995, arguing Moore’s previous attorneys failed to follow-up on this key piece of evidence and deprived Moore of a fair trial.?

The Kentucky Supreme Court in 1998 ruled that Moore’s defense counsel was deficient when it failed to challenge this testimony, but it did not harm Moore’s case. The court upheld the conviction.?

Yesowitch, now retired and living in Florida, is still convinced of Moore’s innocence. Yesowitch said the Kentucky Supreme Court’s ruling chalks up mistakes made by Moore’s earlier attorneys as a “harmless error.”?

“How do you have a harmless error in a death penalty case?” he said.?

An execution delayed?

David Barron calls the murder of Virgil Harris a “real life who-done-it,”one that could lead to the execution of an innocent man.

Barron took over Moore’s case in 2005 and focused on getting DNA testing on clothes the murderer was allegedly wearing — a suit jacket, floral shirt and a pair of black shoes.?

Moore said the outfit wasn’t something he’d wear. Plus, the pants, a size 34 waist, were six inches smaller than the pants Moore wore the day he was arrested.?

Brian Keith Moore was arrested for the murder of Virgil Harris in August 1979. He was sentenced to death in 1980 and again in 1984. His attorneys now claim they have evidence that proves his innocence. (Jefferson Circuit Court clerk?)

But days before Barron filed a motion in court for a judge’s order to do DNA tests, Kentucky Attorney General Greg Stumbo wrote a letter to Gov. Ernie Fletcher asking to schedule Moore’s execution in April 2006.?

This came after the U.S. Court of Appeals for the 6th Circuit rejected Moore’s request for relief from a federal judge a few months earlier — exhausting his opportunities to appeal his conviction.?

“It was our office policy to try and push those death penalty cases, because they had just been in the process so long,” Stumbo said in an interview with KyCIR.?

Barron requested the execution be put on hold while the DNA testing worked its way through the court.?

Stumbo didn’t work on Moore’s case directly, he said, but he doesn’t harbor any doubts about the conviction his office secured. Two sets of jurors sentenced Moore to death, he said, and the new DNA evidence doesn’t exonerate Moore.

“This guy’s argued this DNA crap, it looks to me, to excess,” Stumbo said. “Just because the Commonwealth thought he was wearing those clothes, maybe he was, maybe he wasn’t, that doesn’t exonerate him.”?

Stumbo’s firm belief in the death penalty stems from his faith in jurors’ ability to come to the right conclusion.?

But two months after Stumbo asked to schedule Moore’s execution, Barron talked to a man who served as a juror on the 1984 trial, Geoffrey Ellis. Barron told Ellis what they’d learned since the initial trials — how Moore could be innocent.?

Ellis, a well-known preacher and community leader in Louisville until his recent death, penned a 12-page affidavit questioning the conviction.?

“Based on the evidence brought to my attention after the trail and comparing that information to the evidence presented at trial, I have doubts about Brian Keith Moore’s guilt,” Ellis wrote. “The now known contradictions on this important issue are important to this case and whether Brian Keith Moore should have been convicted.”?

KyCIR talked with Ellis by phone before his death. He declined to comment further.

Can DNA tip the scales??

Jefferson Circuit Court Judge James M. Shake ordered DNA testing a month after Stumbo tried to schedule his execution.?

“The court finds the evidence set forth above is equally consistent with Moore’s assertion that he was set up by Blair and his girlfriend,” Shake said in his ruling.?

Shake wrote that DNA testing could help shift the balance in Moore’s favor.?

Prosecutors challenged his decision, and the case went to the Kentucky Supreme Court, which upheld Shake’s order and added there was even more evidence than Shake listed to “support Appellant’s [Moore’s] theory that he had been framed.”?

The judges said if testing excluded Moore as a source of the DNA, it would demonstrate he wasn’t wearing the clothes the lower court had already decided the murderer was wearing.?

But by then, the pants and shoes had gone missing, according to a response filed in court by the state crime lab.?

Tests on the jacket and floral shirt were inconclusive because the items didn’t contain enough biological material.

Barron, Moore’s attorney, then asked for more advanced DNA testing by a private lab.?

But Judge Shake retired without scheduling a hearing on the request. There’s been little movement in the case since then, as the DNA testing hung in limbo.?

Earlier this year, Moore’s defense team obtained an order from Judge O’Connell to release the evidence to a private lab for testing.?

The results show Moore is not the source of the DNA on the suit jacket. The results did not identify who the DNA belonged to.?

Witnesses saw Brian Keith Moore driving Virgil Harris’ maroon Buick after Harris murder in August 1979. (Jefferson Circuit Court clerk)

In August, Barron filed the motion to vacate Moore’s conviction based on the test results. The Jefferson Circuit Court and the Kentucky Supreme Court have already ruled a DNA test that backs Moore’s claim would have likely changed the outcome of his trial, Barron argues in the motion.?

“The only missing link then was that the DNA testing had not been [completed] and thus we did not have the results,” Barron wrote.

Moore reckons the first 20of his sentence were fair game, karmic retribution for his years of lawlessness.?

But Moore said he does not want to die in prison for a crime he insists he didn’t commit.?

“Anything I’ve done wrong, it’s been well paid for,” Moore said. “I didn’t kill this guy. So, if I was to die tomorrow, I would go knowing that I didn’t do this. And if there’s a higher power, he knows I didn’t do this.”

This story?is republished from the Kentucky Center for Investigative Reporting and Louisville Public Media.?

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Floodplain buyouts in Kentucky are ‘the fastest in the program’s history’ https://www.on-toli.com/2023/12/28/floodplain-buyouts-in-kentucky-are-the-fastest-in-the-programs-history/ https://www.on-toli.com/2023/12/28/floodplain-buyouts-in-kentucky-are-the-fastest-in-the-programs-history/#respond Thu, 28 Dec 2023 13:43:09 +0000 https://www.on-toli.com/?p=13064

Kimberly Sapp-Allen's home is one of 376 flood-damaged properties purchased by local government in Kentucky through FEMA's buyout program. (Kentucky Emergency Management)

When floodwaters rushed through the town of McRoberts in July 2022, Kimberly Sapp-Allen and her husband packed what they could in their vehicles, left their home that sat along the rising creek and headed for higher ground.

The floods scoured several counties across Eastern Kentucky, including Letcher County — where Sapp-Allen lives. In the end, 45 people died and thousands of homes were destroyed.

“It was the darkest dark I have ever seen in my life,” Sapp-Allen, 59, said. As they waited out the storm, flashes of lightning revealed their cars were surrounded by black water and floating debris.

They returned the next day to a home severely damaged by floodwater, but still standing.

And that’s where they’ve lived since — despite the mold and the constant worry with every rain that the nearby creek would flood again.

But this month she sold the place to the Letcher County government through FEMA’s property acquisition program. This will get Sapp-Allen out of her damaged house and, hopefully, into a new home out of the floodplain.

The federal buyout program is one part of FEMA’s hazard mitigation strategy. The idea: get people and homes out of the floodplain so there will be less risk and costs associated with future disasters. FEMA provides most of the funding for local governments to purchase homes at fair market value. The properties are then demolished and county governments are prohibited from building anything on the land that could flood again.

A previous Kentucky Center for Investigative Reporting analysis of FEMA’s hazard mitigation grants found the resources have been distributed unevenly throughout the state. Communities most at risk and struggling to overcome recent disasters have received fewer hazard mitigation dollars than other, more affluent areas.

The housing buyout program suffers from many of the same barriers. Usually, the program is slow and cumbersome, which prevents many rural, under-resourced communities from getting funds and frustrates survivors who can’t afford to wait years before moving on with their lives.

“It will allow us to turn our life around. It’s been such a blessing.”

– Kimberly Sapp-Allen

But in Kentucky, state officials and FEMA implemented a new, expedited buyout process after the Eastern Kentucky floods — and the changes seem to be working.

Sapp-Allen’s is one of 376 properties in Eastern Kentucky purchased through FEMA’s buyout program, a total cost of $63.8 million, according to Kentucky Emergency Management spokesperson Jessica Elbouab. She said the Eastern Kentucky buyouts have been “the fastest in the program’s history.”

The buyout process that once took years to complete ended up taking just months, Elbouab said. Officials closed the deal on the first 13 properties in Perry County — next to Letcher County — just 93 days after the flood.

Kentucky has also taken advantage of other buyout programs like one administered by the Natural Resources Conservation Service. Letcher County is seeking final approval for 118 buyouts through the NRCS, separate from the FEMA program.

Sapp-Allen said she’s been pleasantly surprised by the speed and relative painlessness of the buyout process. She thanks government officials who took action to help people, like her, who were in need.

“It will allow us to turn our life around,” Sapp-Allen said. “It’s been such a blessing.”

FEMA’s buyout program

A September 2022 report from the Government Accountability Office found FEMA’s property acquisition program can be hugely beneficial. It removes flood risks, lowers the cost of disasters and reduces strain on the federal flood insurance program, the GAO analysts concluded.

But the GAO also found the process took three to five years to complete — too long. That deterred many eligible people from applying, or caused others to back out.

The analysts also found that local governments struggle to keep up with the administrative and financial burden that comes with the program.

As a result, resources for disaster management have been distributed unevenly across the country, says Jim Elliott, a professor of sociology at Rice University who studies social inequality and the environment.

“You can imagine some cities and areas have quite a few resources. So they’re able to have the personnel who have the technical expertise to be able to submit these applications upstream to FEMA and then receive the funds,” Elliott said. “In other areas, not so much.”

Normally, county governments are responsible for packaging applications and completing the complex cost-benefit analysis required to unlock FEMA funding. But after the floods in Eastern Kentucky, FEMA officials allowed Kentucky Emergency Management teams to do most of the paperwork, said Scott Alexander, the Perry County judge executive. This, he said, cut out a middleman and allowed under-resourced counties, like his, to apply.

And he’s to credit, in part, for the change.

Perry County judge executive Scott Alexander helped get FEMA to change policies that expedited the home buyout process. (Kentucky Emergency Management)

Shortly after the flooding, Alexander said he asked FEMA officials to help Eastern Kentucky make the most of the buyouts. After that conversation, FEMA made the changes to the program that Alexander said have helped make it a viable option for people in Perry County.

Oftentimes, FEMA’s disaster assistance grants fail to cover the cost of repairing or buying a new home, Alexander said. So for many people in Eastern Kentucky, the buyout program is the best option to get their lives back on track.

“It’s the only thing that actually gives you back at least the worth of the property,” Alexander said. “It allows people to actually move on, otherwise they are just staying in their situation and fighting and scratching to get out of it.”

Where to go next

The first question most people will face if they are considering fleeing a floodplain, Elliott said, is where to go next.

Elliott’s research tracked the outcomes of nearly 10,000 property buyouts across the country. He found that people are more likely to take a buyout if they have a clear place to go that is close to their former home and maintains or improves their current lifestyle and community ties.

But in areas like Eastern Kentucky, affordable housing was already in short supply before the floods.

A report from the National Low Income Housing Coalition determined that 8,950 homes were damaged in the flood. This, coupled with the report’s finding that an average of 600 people have left eastern Kentucky each year since 1984, make displacement and population loss a real concern.

That’s why Elliott says disaster planning needs to coordinate relocation programs like FEMA’s housing buyout program with other planning efforts such as building affordable, resilient housing.

Site of the planned Olive Branch development, announced last December, on the Knott-Perry county line. (Governor’s office)

Kentucky has announced plans to build seven new “high ground” communities using money from the Team Eastern Kentucky Flood Relief Fund to help meet the region’s housing needs, but more housing is a top priority for local and state officials.

Sapp-Allen has 45 days to leave the home she recently sold to the county through the buyout program. She’s not sure where she’ll go next, but knows it has to be close to Letcher County.

Her husband needs to stay local to make regular dialysis appointments while he waits for a kidney transplant. Sapp-Allen plans to stay in Eastern Kentucky until that transplant comes. Then, she said she can retire and the two of them can move down to Tennessee where she has a pair of rental properties that she let her sister and family friend use after their homes were destroyed in the floods.

It’s something to look forward to, but still, the idea of giving up the home she’s lived in for over 15 years was difficult.

”You know, it’s like, you work and you work and you work, and it’s the American dream. You obey the law and you vote and you’re good to your neighbors,” Sapp-Allen said. “And then you’re almost 60 years old, and here you have to start all over.”

This story is republished from the Kentucky Center for Investigative Reporting and Louisville Public Media.?

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How flood cleanup left Kentucky disaster victims feeling violated and vulnerable https://www.on-toli.com/2023/04/27/how-flood-cleanup-left-kentucky-disaster-victims-feeling-violated-and-vulnerable/ https://www.on-toli.com/2023/04/27/how-flood-cleanup-left-kentucky-disaster-victims-feeling-violated-and-vulnerable/#respond Thu, 27 Apr 2023 09:50:21 +0000 https://www.on-toli.com/?p=5115

Don and Malissa Young stand on their property, in the location their living room was before debris contractors took their home without permission. (Photo by Justin Hicks/Louisville Public Media)

This article is republished from the Kentucky Center for Investigative Reporting.

On a steamy day in August, Don Young dug through the rubble that used to be his home. He was desperately trying to salvage the most precious possessions representing the life he’d made in the Letcher County community of McRoberts.

Floods last July ravaged Young’s community and much of Eastern Kentucky. But the wreckage that surrounded him that day was not caused by the storm.

Instead, it was caused by companies hired to pick up debris in the months after the flood.

Without any notice, cleanup crews ripped apart the home that Young shared with his wife, Malissa, for nearly 30 years. The mobile home had been lifted off the foundation, but was still intact.

For weeks the Youngs had been working to pack up what they could from the inside: Baby photos, home videos, memorabilia from Don’s time spent as a state police officer.

“Stuff like that, you can’t replace it,” he said. “You wouldn’t have took millions for it. And they just came and destroyed it like it was nothing.”

Malissa Young, a Letcher County public school teacher, grew up on this plot of land. Looking over the dirt lot where her home once stood, she said she’ll never move back.

“It’s like a death. You go through it once with the house and it being flooded,” she said before trailing off.

“…and then they come in and tear down everything that you did save and haul it off,” Don said, finishing her thought.

Don Young sits in rubble after cleanup crews demolished his home without is prior knowledge or permission. (Photo courtesy Don and Malissa Young)

A Kentucky Transportation Cabinet official overseeing the cleanup process called Don personally and afterwards told him to file a negligence claim with the state Board of Claims. They filed a claim seeking $400,000 to pay for the house and their belongings.

Instead, the state formally denied any liability in a response to the Youngs’ claim. An attorney for the Kentucky Transportation Cabinet argued the couple’s house was taken by an unnamed third party. In fact, the response said the Youngs “may themselves have been negligent in failing to remove or secure their personal property.”

Don Young said he couldn’t do any heavy lifting to remove their belongings because of an old back injury. Plus, the couple said their vehicles were destroyed and they had nowhere to put their property after the flood.

It was all they could do to survive, they said, and make periodic trips to check on the property before the unannounced demolition.

The Youngs said cleanup workers claimed to have knocked on the door before tearing down the house. No one answered, and workers made no other attempts to call or locate the property owners. John Moore, a project manager with the Transportation Cabinet, said crews were advised to make contact with residents before starting work on their property, but that was not always possible due to the urgency of the task.

The Board of Claims is yet to decide on the Youngs case.

An investigation by the Kentucky Center for Investigative Reporting found that the Youngs’ story was an early failure among many in the state and federal government’s attempt to clean up debris and dangerous materials left by the flood.

In daily reports, advisors from the U.S. Army Corps of Engineers regularly expressed concerns about crews taking trees or other materials that did not fit federal criteria for debris removal after a disaster. KyCIR heard from residents on multiple occasions that contractors removed debris such as valuable trees from private property without permission or cut half-mile long access routes through forests. It left them feeling overtaken and ignored by the very people charged with helping them.

Meanwhile, interviews with residents, as well as progress reports and data from the Transportation Cabinet show that there’s still plenty of debris left in Eastern Kentucky even though the state officially ended the cleanup mission in December.

People living in the area contacted state and county leadership and even organized a work stoppage to sound alarms about the danger posed by lingering debris. But state officials said the cleanup process was held back by federal agencies negotiating jurisdiction over removing debris from streams.

More cleanup projects are underway to address those concerns, but time is not on Eastern Kentucky’s side. When heavy rains descendedon the region again in February, leftover debris clogged drains and exacerbated flooding. The way some locals see it, the debris removal process that was supposed to help them recover instead made them more vulnerable.

A looming danger

Between July 26 and 30, 2022, a historic round of thunderstorms came through Southeastern Kentucky, dropping more than a foot of rain. Streams turned into creeks, creeks into rivers, rivers into destructive torrents.

When all was said and done, the flood caused damage across more than a dozen rural Appalachian counties and killed 45 people.

According to the National Weather Service, more than 600 helicopter rescues were needed to evacuate people trapped by quickly rising floodwaters. The Foundation for Appalachian Kentucky reported 1,722 homes were totally destroyed and 3,986 homes were partial losses.

Early estimates from the U.S. Army Corps of Engineers said the July floods created nearly 2 million cubic yards of debris in the waterways alone. That’s enough to fill the Churchill Downs racetrack and infield 23-feet high, according to a KyCIR analysis.

Debris included vehicles, campers, doublewide trailers, uprooted trees and storage buildings, according to an early Corps assessment report.

Contractors and subcontractors took thousands of tons of debris to temporary dump sites scattered throughout Eastern Kentucky where debris was sorted and processed. (Photo by Justin Hicks/Louisville Public Media)

Experts say this debris poses a threat unique to mountainous Eastern Kentucky. Whatever is left in the streams that scour the valleys will eventually clog the flow of water. Water with no place else to go will end up over the banks and flood nearby property.

Blockages were already starting to form, according to a Corps report from August.

“The affected streams are beginning to reroute themselves,” the report stated. “If more precipitation causes these streams to top their banks, these debris jams will result in even more county wide flooding.”

Justin Branham is a U.S. Army Corps of Engineers staffer and lifelong Letcher County resident who raised concerns about the cleanup project in an email to state officials. (Photo by Justin Hicks/Louisville Public Media)

Justin Branham was one of the Corps staffers who wrote those estimate reports. He grew up in Letcher County, less than half a mile from the Youngs’ home. He said the same creek that flooded the Youngs’ property ruined his parents’ garage, destroying vehicles, tools and other valuables.

Most of eastern Kentucky was in danger of flooding again because of debris piles blocking waterways, according to Branham.

“You’re living in a valley that’s 100 yards wide, and you’ve got a house, a creek, a road and a railroad,” Branham said. “And you’re going to cause flooding to it if you don’t get that stuff out.”

All that debris needed to get cleaned up, and quickly. Procurement documents show that, within a week after the flood, the Kentucky Transportation Cabinet signed a contract with Florida-based Ashbritt Inc. to lead the cleanup process. Since August 2022, the state has paid the company $157 million according to procurement records.

Ashbritt Founder and Chairman Randal Perkins and other executives did not respond to a detailed list of findings and requests for interviews.

While announcing the contract on Aug. 4, Democratic Gov. Andy Beshear said debris would be removed “at a rapid pace.” But more than eight months after the mission began, material still clogs streams and litters hollers across eastern Kentucky.

‘Too many coaches, not enough players’

From the beginning, the debris removal process hit snags. And it was dangerous.

In an email obtained through an open records request, Kentucky Division of Emergency Management officials said that when workers were scoping out debris on Aug. 19, a man came out of his house with a gun and flak jacket “demanding to know what they were doing.”

The encounter prompted one emergency manager consultant to express “great concern regarding the safety of the contractors,” according to the email addressed to Jeremy Slinker, director of the Kentucky Division of Emergency Management. Perry County Emergency Management Director Jerry Stacy warned crews that “there had to be some precautions taken.”

In a daily report compiled by several staffers, an Army Corps of Engineers advisor wrote that even trying to get an accurate assessment of the amount of debris was hindered by “too many coaches, not enough players.”

“The efficacy and efficiency of the mission is suffering from miscommunication and lack of coordination,” said another Corps report.

George Minges, chief of emergency operations for the Corps’ Louisville district, said the agency did an “adequate” job supporting the state and FEMA during the cleanup process.

“I think we had outstanding communication with those partners,” he said.

But local officials still didn’t have an accurate picture of where debris was located and which areas were hardest hit, according to the report. Scouting crews would show up at a site only to find no debris. Other crews would bounce from one county to another before finishing the job.

A Corps report from a few days later shows small cleanup contractors were zooming around the counties, picking up debris from roads and waterways with little to no coordination or supervision.

The Federal Emergency Management Agency will reimburse local governments for debris removal when that debris threatens health, safety or property. To make sure cleanup is done by the book, FEMA requires governments to hire monitors who watch over cleanup crews.

In reports, the Corps expressed concerns over the supervision provided by Thompson Monitoring, the company hired by Kentucky to serve this role. Corps advisors found monitors resting in their cars or positioned where they couldn’t actually see the work.

When emailed for comment on the debris removal mission, Thompson Monitoring declined to be interviewed and instead forwarded the request to the Kentucky Transportation Cabinet.

The waterway mission would prove the most difficult part of the cleanup process, in part because creeks often run through private property. (Louisville Public Media photo)

According to interviews with state officials and people involved in the cleanup process, the Transportation Cabinet decided to organize the project into two distinct sections: One mission focused on roads, another focused on clearing out the waterways.

The waterway mission would prove the most difficult part of the cleanup process, in part because creeks often run through private property. This created tension between cleanup workers and residents who were already going through a terrible ordeal.

People like Laverne Fields said they watched as crews cleaned up some debris, but left other material behind, seemingly without any explanation.

The flood left Fields’ house straddling a creek in Letcher County with bags of debris piled out front. She said debris contractors wouldn’t touch the bags of garbage. Instead they tore the house down before she could recover a safe containing vital documents she would need to get help from FEMA down the road.

“They ripped our bedroom off, that’s where [the] safe was at,” Fields said. Fields said she was never able to find the safe.

“I don’t know who they worked for,” Fields said. “They didn’t even ask me…They yelled at me over it.”

They didn’t have to ask.

Contractors and monitors interpret FEMA’s debris removal policies to determine what is debris and whether it needs to be removed, without input from property owners.

‘You picked the wrong house’

Don and Malissa Young said they spent the night of the flood watching the torrential downpour and worrying.

A neighbor’s house crashed into theirs. They jumped into the rushing water, which pulled them down the flooded street. Don, who can’t swim, said he survived by holding onto a neighbor’s porch. Malissa said she clung to a tree branch with their two small dogs tucked under her arm until the water receded enough for a rescue.

Their doublewide trailer was lifted off the foundation. Don Young said he knew it was waterlogged, but many of their belongings inside were still salvageable.

The Youngs took refuge with a relative in Virginia, just across the state border with Kentucky.

They returned every few days to check on their property when they could borrow a vehicle, since theirs were destroyed. The Youngs said that, over the next few weeks, they salvaged what they could in plastic bins until they could return with a larger vehicle and someone to help move heavy items.

The work was slow and emotionally grueling.

Then on Aug. 22, the Youngs said they got an alarming call from their neighbor: A cleanup crew was tearing down the house. If they wanted to save anything left behind, they needed to get there quickly.

They raced back to McRoberts to find their house half demolished, the scoop of an excavator poised above the rest as the workers took a break for dinner.

Don Young confronted the cleanup workers. He wanted to know who authorized the crew to take his home without so much as a warning. Young said a field supervisor from Thompson Monitoring Services introduced herself and told him to take his complaints up with Gov. Andy Beshear.

“She said the governor told them to tear down anything that they thought was in danger of causing a flood if it rained,” Don said. “I said, ‘Well, you picked the wrong house.’”

The Corps report about the incident said everyone on the site that day had concerns “regarding the notification process for owners of trailers, homes, or storage buildings being removed.” It ended with a plea: “Better messaging is needed by state and local officials.”

Justin Branham was the Corps staffer who wrote that report and knows the Youngs personally. He said when things went wrong during the cleanup process, contractors would point the finger at him and the Corps. Since he was from the area, Branham became the face of the project to many of his neighbors. It didn’t sit well with him.

“You’re pitting people against people they don’t need to be pitted against, they should be working as a team,” Branham said. “And I should be able to go out into my community and say I’m doing the best I can to help these people.”

Later that week, Don Young called Beshear’s office, upset and wanting to talk “man to man,” according to an email from the governor’s office summarizing the call. Don said a constituent services representative said he couldn’t speak with the governor, but that they would pass his concerns along to the appropriate agency.

Emails show the governor’s staff reached out to the Transportation Cabinet and emergency management team for an explanation.

Jim Garrett, head of volunteer programs for Kentucky Emergency Management, wrote back that work crews needed to be given “better messaging on what they are doing.” Garrett said he was concerned about “any state employee starting a conversation with upset constituents with ‘Governor Beshear said…’”

John Moore, with the Transportation Cabinet, responded to the governor’s team, saying that at this point in the cleanup process, “there was a great sense of urgency to gather the debris expeditiously to avoid additional flooding.” Moore said he would reach out to the Youngs directly.

Moore called Don Young, who explained the situation as he saw it: The home was not in danger of falling into the creek and causing additional flooding, Don said, and he sent pictures showing the exact location of the house.

After the conversation ended, Moore emailed the Youngs instructions on how to file a negligence claim with the state Board of Claims. After the Youngs filed their claim in November, the Transportation Cabinet responded that the couple’s home was demolished by an unnamed third party. The Kentucky Board of Claims is yet to decide on the Youngs negligence claim, pending a hearing that has not yet been scheduled. The Youngs now have a lawyer and are exploring other avenues for legal action.

Cleanup crews were paid by the ton for debris removed.

Don Young alleged that fact explains why crews were in such a hurry to demolish his house.

“Somebody saw a dollar sign there and just tore it down, I think,” he said.

Just two days after crews demolished the Youngs’ home, the state bestowed anyone working on debris cleanup with the legal right to enter private property through a memorandum of understanding between the Kentucky Energy and Environment Cabinet and the Transportation Cabinet. The environment cabinet has the authority to enter private property in emergencies that threaten public health. The cabinet extended that authority to crews clearing flood debris through this memorandum of understanding.

“The debris can not only impede stream flow but also may threaten the release of hazardous substances,” the memorandum of understanding explained.

To clean up debris, the Transportation Cabinet and its contractors were allowed to “enter into private property to, among other things, characterize and remove flood debris.”

Kentucky environmental attorney Randy Strobo said Kentucky law seems to justify that authority. But he said that power should be used carefully and communicated clearly.

“I think that needs to be limited. It’s not like you can do whatever you want,” Strobo said.

John Moore, with the Transportation Cabinet, said in an interview that cleanup crews were instructed to make attempts to contact property owners before starting the work.

“We advised them to work ahead to the greatest extent possible to knock on doors…but due to the urgency of the waterway, [we needed] to clear out the bridges and waterways to prevent additional flooding,” Moore said. “That was not always possible. The urgency of the mission was paramount.”

Even before the incident with the Youngs, Corps reports suggested that “law enforcement be available” if homeowners attempted to prevent the removal of structures.

Nearly a month later, the same work crew that demolished the Young’s home was confronted with threats and resistance when they tried to cut down live trees they considered to be a hazard to future flooding. This time they tried the law enforcement approach. A young, untrained police officer arrived on the scene to tase and arrest the homeowner.

The homeowners had no prior notice or information about what was happening and the mission debris workers were on. Like the Youngs, they’re also investigating legal remedies.

‘Those hanging on by a thread will be left with nothing’

In the days following the floods, people could be seen scavenging through large debris piles truing to find things they had lost or could salvage. (Photo by Justin Hicks/Louisville Public Media)

Despite this broad authority to enter private property, many residents began to feel the cleanup crews were not being sufficiently thorough. Records show nearly 300 calls to a debris hotline managed by the Transportation Cabinet. Some residents called multiple times over the course of months.

A series of complaints from the Calhoun family in Knott County show four calls from October to January complaining about debris blocking the creek near their home. During a call on Jan. 3 Victor Calhoun reported that the creek was still blocked with trees, garbage and siding.

On Nov. 18, a Letcher County resident who lives near Rockhouse Creek told a hotline operator that FEMA “has cleaned the creek but it has been done incorrectly.” Two weeks later, he called again to report that FEMA’s work had changed the path of the creek and it was “eating out 4-5 feet sections at a time of his land.”

Communication between various work crews and government agencies removing debris from waterways deteriorated as the mission dragged on.

That’s largely because another federal agency had stepped into the complex mix: the National Resources Conservation Service, a subdivision from the United States Department of Agriculture.

FEMA and NRCS both allow crews to pick up stream-clogging debris, but they follow different timelines. FEMA’s work starts immediately while the NRCS is more focused on long-term stabilization. There’s some overlap in those tasks, and FEMA guidelines stipulate that the agency won’t pay for any work the NRCS takes on, even if the NRCS doesn’t have the funding needed at the time. Moore with the Transportation Cabinet said that created an “impasse” that held up progress.

“At the very early stage in order for FEMA to get moving, they had to draw a line in the sand,” Moore said.

“The amount of sediment still sitting in these choked channels is incredible and the mission mostly funded by FEMA to remove it is being squandered and ran amuck. There are people hanging on by a thin thread up here and if another decent rain hits, those hanging on by a thread will be left with nothing.”

– Justin Branham in an email to state officials in September

Many of the debris workers weren’t privy to that line in the sand. They were constantly told by monitors to leave behind massive piles of debris. Not only did it mean they were passing up a chance to make more money, they felt like they were leaving dangerous garbage in communities they were supposed to be helping.

“They were changing guidelines every single day,” said John Collins, a local business owner who worked as a subcontracted debris hauler under Ashbritt, the company hired by Kentucky to manage the debris project. “They wouldn’t let us get any sediment. They wouldn’t let us get anything out of the creek. All you could get was a few dead trees and some garbage.”

Others noticed the problem including Corps staffer Branham, who wrote a scathing email to state officials in late September. Branham was writing as a concerned citizen, and in interviews with KyCIR has been clear he does not speak on behalf of the Corps.

“The amount of sediment still sitting in these choked channels is incredible and the mission mostly funded by FEMA to remove it is being squandered and ran amuck,” Branham wrote. “There are people hanging on by a thin thread up here and if another decent rain hits, those hanging on by a thread will be left with nothing.”

Some work crews even went on a temporary strike in October, unhappy with how they were being directed to leave behind areas of waterways full of debris. Neither the strike nor Branham’s warnings resulted in meaningful changes.

Unlike FEMA, the NRCS needs to apply for funding on a project-by-project basis. This means much of the stream work left to do in eastern Kentucky will need to wait until the agency secures funding and lines up agreements with local governments.

NRCS engineers and public information officers will not release information about when and where their work in Eastern Kentucky will take place. However, KyCIR found data on an online map last updated in September 2022, showing nearly 450 locations in Eastern Kentucky marked as “Approved NRCS Sites.” NRCS employees confirmed this data was accurate at that time, but has now changed.

Also in October, Gov. Beshear made an appearance at the University of Kentucky’s Blue and White basketball game, a pre-season scrimmage in Pikeville. Beshear said in a pre-game interview that workers were making great progress towards removing debris from eastern Kentucky.

“We are close, which is amazing three months out, to take that chaos and ship it out of town, out of county and out of state,” Beshear said.

But records show there was still plenty of work left to do.

In late November, the U.S. Army Corps of Engineers wrote a memo to state officials estimating the scope of work left to do. In ?Letcher County, they expected another six to eight weeks.

But Ashbritt told crews to wrap up work by Dec. 22, just five weeks later.

Source: KyCIR analysis of debris data supplied by Kentucky Transportation Cabinet. (Screenshot)

Calvin Waddles, a district magistrate in Knott County, reached out to the Transportation Cabinet in early August to complain about a complete blockage of the Beaver Creek near the border with Floyd County, according to a daily report from the Corps. He asked that the blockage be given priority status because rain could cause “a second round of flooding in the area.”

Waddles said the Beaver Creek blockage was still not cleared as of March 6.

“They still need to come back, this needs to be cleaned up,” Waddles said in a phone call. “There’s debris, basically, from mountainside to mountainside.”

An analysis from Kentucky Center for Investigative Reporting found that as of Dec. 22, only 59% of the debris initially estimated by the U.S. Army Corps of Engineers to be on ground following the flood had been picked up.

State officials said those estimates included categories of debris that FEMA wouldn’t pay to clean up, and as such were not the focus of the initial cleanup project.

When presented with KyCIR’s findings multiple times, a legislative representative for FEMA said “state and locals are responsible for debris removal” and that they are “supposed to have contracts in place” before a disaster. Kentucky did not. The representative was unsure if it would affect FEMA’s reimbursement. Despite promising more information, they never contacted us again.

Regardless of who pays, debris left behind is more than an eyesore. It can make future flooding worse.

Tonya Boggs spoke about the damage her property sustained during heavy rains in February, damage she says was made worse by clean up work following the July flood. (Photo by Justin Hicks/Louisville Public Media)

‘Band-Aids on bullet wounds’

Nearly seven months after what survivors have labeled the “big July flood” Tonya Boggs walked up to the podium at a monthly meeting of county officials. She was visibly frustrated. Her mother, Teresa Burke, stood beside her for support.

“It’s hard when you’re trying to rebuild what was destroyed, and then here this happens, and the water came right back in my house,” Boggs told county officials, politely trying to contain her anger.

The weekend before, a heavy rainstorm prompted the governor to declare another state of emergency for 22 counties due to flooding and landslides. Nearly a dozen of those counties were still trying to recover from July’s floods.

Boggs and Burke told officials that, even before the rain, debris clogged brand new culverts that were installed by cleanup crews. Then during the February storm, an embankment upstream gave way and washed down the creek, further clogging the culverts until they dislodged. That led to another flood in the house she’s frantically been trying to restore since July.

“Those culverts are halfway…and some of them are more than halfway full of just pure mud and sand and dirt and rocks,” Boggs said.

Many county officials were upset, too. Letcher County Judge Executive Terry Adams said he knows the culverts are “inadequate.” But he said that’s the only thing FEMA or the state will pay for. He said the temporary work often isn’t appropriate for the stream.

”The state and FEMA would not do that,” Adams said. “They wouldn’t put a bridge back in [where one had been before].”

Some of the local contractors who worked on the waterways were at the meeting too. They said they predicted this would happen long before Boggs’ house flooded again. Their warnings went unheeded, however, and they were constantly told to leave debris behind without much of an explanation.

“Every time we get a lot of rain this is what’s going to happen,” local debris contractor Wade Adams said. “It’s not our fault. I know everyone is mad at the contractors, but we can only do what we were told to. You can’t just clean out a part of the creek. ”

Most in eastern Kentucky say this is a familiar story. Government officials make TV appearances, but don’t listen to locals. They make promises they can’t deliver.

Candice Fields, disaster coordinator for the Kentucky River Area Development District, said the help that does come is akin to a “band aid on a bullet wound.”

“Andy Beshear gets on [the TV] and says, ‘Oh, things have changed,’” said Angela Collins, a Letcher County resident who is married to contractor John Collins. “Well, get your high horse down here and see how much it changed. Because they left garbage! Do we deserve garbage all over our land? No, we don’t. We’re not a bunch of you know, nutsy hillbillies. We’re human beings just like everybody else.”

To make things more dire, Collins said everyone knows spring is the wettest season in eastern Kentucky. Now, everyone is bracing for the worst.

Additional reporting contributed by Katie Myers.
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