The Kids of Rutherford County, Episode 3: ‘Would You Like to Sue the Government?’

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The two attorneys, Wes Clark and Mark Downton Were feeling pretty good. They just gotten in a 15-year-old kid out of solitary confinement. And that felt like a big victory against Judge Davenport. They’d also decided to team up for real, form a firm of their own, called Downton-Clark. It had no real office, no business cards. But it did have one very specific goal.

Here’s Mark.

And they needed the money. While the work at juvenile court was steady, the pay was low as far as attorneys go. Court-appointed cases were capped at $50 an hour. Wes had law-school loans and was still living at his mother-in-law’s house. Mark was a little more flush, thanks to a side gig, doing document review for higher-paid lawyers. But he also had a kid and mortgages for his house and office.

So they started a private practice that would take civil cases, personal injury, business disputes. They knew it would take some time to really get established. But they had faith. They both remember an early case Wes brought in from adult court that seemed promising.

Instead, they were out of pocket about $400 for the filing fees, plus other expenses. And things only went downhill from there.

Most of their cases were duds right out of the gate. And even the ones that paid out didn’t result in much. One client had so little money, she offered to pay Mark with a homemade painting of Lake Louise.

And it’s while they’re hustling to find cases outside the juvenile court that Mark and Wes got a call from a lawyer at the ACLU, asking if they wanted to take on some new clients, some kids from a school called Hobgood Elementary. They’d been arrested for not stepping in to stop a fight.

Wes had been reading about the arrests. And he thought the whole thing was just so absurd, a bunch of kids arrested on this vague charge of criminal responsibility, a charge that turned out to not even be real. And a few of the kids were even held in juvenile detention overnight.

It would be a pro bono case. And it meant going back to the Rutherford County Juvenile Court, going back in front of Judge Davenport. But immediately, Wes was like, yes, absolutely, we’ll take it, because —

And more importantly —

Wes figured they’d sue the police, false arrest and malicious prosecution. He began by reviewing the police’s take on what happened. Following the arrests at Hobgood, in an attempt to address all the confusion and the outrage, the police department had conducted an initial audit. So Wes figured he’d start there, with that report.

Wes reads through the report in front of him.

It’s jargony. But to Wes, that line said a lot. You see, in Tennessee, police have a few options when it comes to kids accused of minor offenses, like misdemeanors. Depending on what happened, they can arrest a kid or maybe just issue a citation, with a notification for the kid to show up in juvenile court for a hearing on another day. Or they can do nothing, just send the kid home with a stern talking to. The police have discretion.

But this line that Wes found, referencing a judicial requirement, requiring kids to be arrested, and prohibiting police from citing and releasing, it seemed to be saying the police had only one option, arrest the kid. Wes was stunned.

To Wes, the whole thing seemed illegal, and perfect for a big lawsuit.

And as for the judicial requirement, Wes knew immediately who was behind it.

Davenport, meaning Judge Davenport.

2 and 1/2 years earlier, when Wes first started taking cases in Rutherford County, he’d done it because his buddies had told him there’s always work in juvenile court. At the time, he hadn’t thought about why that might be. But the longer he worked there, the why seemed like a more and more important question. And now finally, he felt like he was on the verge of answering it.

From Serial Productions and “The New York Times,” I’m Meribah Knight. And this is The Kids of Rutherford County, Episode 3: Would You Like to Sue the Government?

(POWERFUL JAZZ MUSIC)

When Wes found this line about there being a judicial requirement to arrest a kid for any and all infractions, it felt like a smoking gun. He thought he and Mark finally had what they needed to expose Judge Davenport, the person who oversaw the court and the jail, and also slap Rutherford County with a class-action lawsuit, something much larger than just this Hobgood mess.

Mark didn’t share Wes’s eagerness.

Mark felt they had a better chance focusing on a class-action lawsuit related to solitary confinement. They’d already gotten a favorable ruling on that issue. They should spend their time on that. So he waved Wes off. But Wes, he was still convinced. There’s got to be something here.

He figured, if Mark doesn’t want to help me, I’ll find someone who can. So he spoke to a lawyer he really respected, who’d done some important cases involving police misconduct, a guy named Kyle Mothershead. Kyle’s a good lawyer. He’ll tell you so. And that’s not all he’ll tell you.

As you can hear, Kyle has a lot of confidence, and for pretty good reason. For one, he actually does look like Bradley Cooper. And two, he’s won some big civil rights cases in Tennessee. And even though Kyle told me he found Wes to be, quote, “very, very, very, very, very green,” five verys, this case was too good to pass up.

Kyle laid out a plan for Wes. Let’s first file a lawsuit on behalf of one of the Hobgood clients. Then maybe through discovery in that case, we can find evidence that Judge Davenport really is telling police to arrest all kids in a way that violates state law. So in July 2016, the lawyers filed a lawsuit. And a few months later, they got their first big round of discovery, an email link to a bunch of documents, internal memos from the judge, the jail, the sheriff’s office and the police.

As they started reading through the documents, they quickly found exactly what they were looking for, a series of policy memos, written by Davenport to law enforcement, about arrests. One memo said, even kids accused of the most minor offenses, things like skipping school, smoking cigarettes, or breaking curfew, should be, quote, “taken into custody and transported to the juvenile detention center.”

There was no other option, no notice to show up in court at a later date, nothing.

The police had to arrest kids. Wes couldn’t believe it was written down so starkly, just there, in black and white.

This explained so much, why Rutherford County’s Police were arresting so many kids. But it didn’t explain everything Wes had been seeing. Remember, for over two years, Wes had been in court, waiving around the state’s detention statute, complaining that his clients were getting jailed when they shouldn’t be.

Tennessee law was really clear and narrow about when a kid could be locked up, generally for only the most serious charges and circumstances. With the memos, Wes now understood why these kids were being arrested and brought to jail for processing. But why were the county’s juvenile jail staff also locking these kids up instead of sending them home? Well, Wes found the answer to that was also written down in black and white.

Wes is referring here to Lynn Duke, the woman Davenport appointed to run the jail. For years, the jail had an informal system for its intake process. If a jail staffer wasn’t sure what to do with a kid, put them in jail or let them go, well, they could call administrators like Duke or even Davenport, who would tell the jail staff what to do with the kid.

Lynn Duke declined to talk to me for this story. But in a deposition, she said the problem with this informal system was that it was exhausting. Jail staff had just too many questions for administrators like her, especially after work hours. So in 2008, Duke and her team put together a new intake policy, called the filter system, a quote, “guideline” jail-intake officers could refer to when deciding to keep a kid or release them.

It was a two-column chart. On one side was when to release. On the other was when to hold, i.e., hold a kid in jail. But under that section, many of the reasons listed were in direct violation of actual Tennessee law. For instance, this so-called filter system said kids would be held any time a victim alleged an injury, even just a scratch. A kid could get jailed.

The most disturbing category though, was also the most vague. And it echoed something Wes had heard a lot in Davenport’s courtroom. According to the filter system, any kid would be held if they were considered quote, “a true threat.”

But nowhere in the jail’s manual did it actually say what a true threat was. There was no definition. It was up to the ranking jail staff to decide whatever that phrase meant.

Wes didn’t just how many kids had been wrongly arrested over the years because the police followed Davenport’s memos or how many kids were wrongly jailed by Lynn Duke’s filter system. So just to get a sense of how big this could be, he went into his own files, to look back at all the kids he’d represented.

From what Wes could see, about a third of his old clients were either arrested or detained illegally, some both. And he was just one lawyer out of a dozen or so who regularly worked at the court. Plus, Wes had only been there for 2 years. The filter system had been on the books for 8. Davenport had been on the bench for almost 20. How many kids were caught up in this?

I talked to 25 people, now adults, who told me about being arrested or locked up as kids in Rutherford County.

A kid named Zeb was in ninth grade when he got charged with petty theft for taking a portable speaker from his grandma.

Grace, 16, was at a party with some friends.

So the police arrested grace and her friends for underage drinking. And there was Thomas, the fifth-grader arrested for truancy.

Brandon, the seven-year-old, was horsing around with his older brothers in a vacant duplex. And they made some holes in the drywall. Sometime after that, the police came to their house.

As varied as the reasons for the arrests were, the people I spoke to were usually thrown into the back of a police cruiser, often in handcuffs, and taken to the same place.

Once the jail staff decided to keep a kid, here’s what would happen next.

Lockdown, you might remember, was the county’s term for solitary confinement. 15-year-old Quintarius Frazier was once put on lockdown for eight days straight.

Kids told me about their struggles to get their basic needs met. Here’s grace, the girl arrested for underage drinking.

Dylan was 15 years old when he went to jail. It was the first time he’d ever been in trouble with the law.

At some point, the kids will go before Judge Davenport for their hearing, where they’d find out if they’d be released or stay in jail even longer.

As for seven-year-old Brandon, Judge Davenport sent him back to jail for another week.

With two key pieces of evidence in hand, the arrest policy and the filter system, Wes knew they had the makings of a massive lawsuit, just the kind of case he’d been dreaming of. These policies have been on the books for years. And now, seeing just how many of his own clients were affected, it didn’t take much imagination to ponder the scope of it all, 4, 5 6,000 kids maybe, all of whom were now potential plaintiffs.

When a handful said yes, that they were prepared to be the named plaintiffs for a class action, that’s when things got real. Even mark, who dismissed all this early on, was by now, fully on board.

A case that could finally hold the County responsible for its juvenile justice system, and make a difference in the lives of the kids there. But let’s be honest. These guys are also plaintiff’s lawyers. And they also saw the potential for their lives to change.

The guys now knew, with all their hard evidence, that they had a powerful story to tell in court about the illegal things Rutherford County and Judge Davenport had been doing to kids. But for years, Judge Davenport had been telling her own story. And that story held a different kind of power. That’s after the break.

archived recording

(SINGING) WGNS, Murfreesboro.

archived recording (bart walker iii)

Well, good morning to you. Welcome in to the action line from WGNS. This morning, we’re talking about the Rutherford County Juvenile court system. And Judge Donna Scott Davenport is our guest this morning. Good morning to you.

archived recording (donna scott davenport)

Good morning, Bart.

archived recording (bart walker iii)

Good to have you with us today.

archived recording (donna scott davenport)

Thank you, always —

Judge Davenport wouldn’t talk to me. So I wasn’t able to ask her directly any of my questions, which were all variations of the same question. Why? Why order law enforcement to arrest children when they shouldn’t? Why allow jail staff to lock them up when they shouldn’t? But there was a place where, for 10 years, Judge Davenport shared many of her views on all things juvenile court, WGNS Radio, Rutherford County’s “Good Neighbor” Station. On the first Tuesday of every month, she could be heard chatting with host, Bart Walker III.

I’ve listened to 70 hours worth of these radio broadcasts. And in the process, I’ve come to understand something of Judge Davenport’s worldview, a worldview with a healthy dose of nostalgia for a simpler time —

— a time when society had better values —

— back before things like cell phones and video games infiltrated kids’ lives.

During the years Davenport had this radio segment, juvenile crime in Rutherford County was actually on the decline. But statistics be damned. According to Judge Davenport, things were getting worse every year. And she was seeing younger and younger kids coming into her courtroom.

Part of the problem was parenting. Judge Davenport said many parents were simply unwilling to do what was necessary to keep their kids safe.

Listening to these radio segments, it sounded to me that Judge Davenport saw herself as part of that Department of Common Sense, waging a battle against the decline in civility and morals, the increase in entitlement and aggression. And the detention center was a vital tool for keeping kids from going down that path.

Davenport bragged about the detention center all the time, the great staff there, the great programming, how state of the art it was. She called it a dream come true, and even opened it up for tours.

As for the kids who are held in the jail, Davenport liked to refer to them as hers, as in, I’m seeing a lot of aggression in my 9 and 10-year-olds. In fact, her role as a stand-in parent was pretty explicit.

Listeners to the radio show would sometimes call in to praise Judge Davenport’s work.

It’s like in one reality, there were the lawyers, Wes and Mark, and now Kyle, who were saying, the way you’ve been running this operation is against the law. And it’s pretty clear. The State says exactly when to arrest and jail a kid. And you and the County have ignored what the State says, and made up your own rules. But on the other side was Judge Davenport, who was confident in her own criteria.

(VOCALIZING)

(SINGING) You may say that I’m a dreamer, but I’m not the only —

In the spring of 2017, nine months after Wes, Mark, and Kyle filed their lawsuit, they got their chance to put the two versions of reality side by side in a different courtroom, where a different judge presided. It was a preliminary injunction hearing, where they would present all the evidence and say to a federal judge, hey, while we know this lawsuit is still going to take a while to resolve, in the meantime, Rutherford County is illegally arresting and jailing kids. Can you force their hand, make them stop using these policies immediately?

The attorneys had uncovered a hefty bit of evidence to present, the memos outlining the arrest policy, the jail’s manual, laying out the filter system. There was also some striking data from the County and the State that they found too, from just a few years before. It suggested that Rutherford County had been jailing kids at 10 times the state average. They also had depositions.

Judge Davenport, in a deposition, told the lawyers that when she’d issued her arrest memos, it was never her intention to take away police discretion. But a sheriff’s deputy, in his own deposition, said essentially, well, that’s how his Department interpreted Davenport’s memos. It was why they arrested kids for even the most minor offenses. It’s our policy to obey court orders and not be in contempt of juvenile court, the deputy told the lawyers.

Jail staffers testified that they were trained on the filter system, that they could be quizzed on it went up for a promotion or disciplined for not applying it as written. One said, we were told, when in doubt, hold them because it’s better to hold a kid that should have been released than release a child that should have been held.

Now, inside the stately halls of Nashville’s Federal Courthouse, the federal judge would weigh the lawyers evidence. And he would decide what reality they were living in, Judge Davenport’s or the law’s. Here’s Wes.

Again, Duke being Lynn Duke, who ran the jail and put together the filter system.

The hearing lasted only one day. And then the lawyers waited for a decision. If Judge Crenshaw rejected their request for an injunction, that could kill the entire case. It would mean the lawyers were out months of work and thousands of dollars. Even more, Rutherford County would likely continue to jail kids at an extraordinary rate.

It took about a month, until one day, having just finished a medical appointment, and sitting in his car in the parking lot, Wes got a notification. The judge’s ruling was in. Only Wes couldn’t read the order on his phone.

Needless to say, they’d won.

Judge Crenshaw found that the kids were, quote, “suffering irreparable harm every day through Rutherford County’s illegal detention of them.” He ordered the County to stop using the filter system immediately. He also said, the arrest policy likely violated State law. But he ruled it wasn’t a constitutional issue. So it was out of his hands. That said, police departments in the County eventually stopped following Davenport’s policy anyway.

For Wes, he told me Judge Crenshaw’s ruling was the best thing he’d ever read in his entire life. For so long, he’d complained about Judge Davenport and what her court and detention center were doing to children, the arrests, the jailings. And for so long, he felt like he’d failed, failed to get anyone to see what he did.

Now, finally, his reality had prevailed. What had been happening to the kids in Rutherford County was wrong. The next step in the lawsuit was to make the County pay for it. That’s on the last episode of The Kids of Rutherford County.

(UPBEAT MUSIC)

The Kids of Rutherford County is a co-production of Serial Productions, the New York Times, ProPublica and Nashville Public Radio. It was reported by me, Meribah Knight, with additional reporting from Ken Armstrong. The show was produced by Daniel Guillemette, with additional production by Michelle Navarro, editing from Julie Snyder and Jen Guerra along with Sarah Blustain and Ken Armstrong at ProPublica and my colleague, Tony Gonzalez, at Nashville Public Radio. Additional editing from Anita Badejo and Alex Kotlowitz.

The supervising producer for Serial Productions is Ndeye Thioubou. Research and fact checking by Ben Phelan, with additional fact checking by Naomi Sharp. Sound design music supervision and mixing by Phoebe Wang. The original score for our show is from The Blasting Company. Susan Wessling is our standards editor, and legal review from Dana Green, Al-Amyn Sumar, and Simone Procas.

The art for our show comes from Pablo Delcan. Additional production from Jenelle Pifer. Mack Miller is the executive assistant for Serial. Sam Dolnick is the deputy managing editor of “The New York Times.” Special Thanks to Katie Mingle, Mike Comite, Aaron Reiss, Bianca Giaever, Jordan McCarley and Rob Robinson. The Kids of Rutherford County is produced by Serial Productions, “The New York Times,” ProPublica, and Nashville Public Radio.