Regina Kelly’s story highlights the fact that in a plea-based criminal justice system, facts matter less than situations.
by Bruce Reilly. The Brennan Center for Justice at NYU School of Law
Regina Kelly’s story is one that stands out. Her battle with Robertson County District Attorney, John Paschall in Hearne, Texas has been memorialized in the film American Violet; to have her speaking at a conference for Public Corruption was like meeting Erin Brockovich or Karen Silkwood. Regina’s story about standing up to her small-town district attorney and all the power that he brought to bear against her is the type to inspire any of us in our darkest hour.
In 2000, Regina was arrested in a drug sweep initiated by a paid confidential informant (snitch) who had a known history of mental instability. The district attorney told him he needed to give up at least 20 people “to work off” a case of his own, because the office had received a large federal grant for drug enforcement and needed to generate arrests. So the informant simply pointed to 28 people, nearly all of whom lived in Regina’s housing project. The informant was found to have used baking soda and water to make fake crack cocaine to use as evidence in support of the cases he fabricated. In one case, a person he claimed to have sold drugs to was found to be in the hospital at the time.
Hearne is a town of 5,000 in East Texas. African Americans make up 44 percent of the population. The average median income is $20,000. Erma Faye Stewart, then 30, a single mother of two, was arrested. Regina Kelly, a waitress, who was 24 at the time and a single mother of four, was also arrested.
Kelly and Stewart shared a cell; neither had been in jail before.* They put their faith in their court-appointed lawyers. When they went to court to meet their lawyers, both maintained their innocence and asked their lawyers to spend time investigating their case. But their lawyers, they say, gave them little time. (When asked by FRONTLINE about Stewart’s case, her court-appointed lawyer had no recollection that she had ever been his client, although his name was on her plea agreement.)
Kelly and Stewart’s court-appointed lawyers urged them to plead guilty, take probation and get out of jail. Kelly says she was told that if she didn’t plead and instead went to trial, she could be facing “five to 99 years.”
Regina told the group that she was “lucky” to have a committed, feisty mother who was instrumental in her eventually being freed on bail, but she could not overlook the other women who weren’t as lucky. In particular, she told us the story of her cellmate who could not make bail, and ultimately took a guilty plea just to end her suffering in jail. Regina refused to plead guilty; she would not be pressured by anyone, not even her own lawyer, to take a deal.
Three weeks after her arrest, Kelly’s parents managed to get her bond reduced from $70,000 to $10,000 and she went home to await trial. Stewart stayed in jail.
But a week later, with no one to take care of her two small children and unable to stand being in jail alone, Stewart decided to plead guilty to delivery of a controlled substance of more than four grams in a drug-free zone. She was sentenced to 10 years probation and was required to pay $1,800 in fines and report to her probation officer monthly. An hour later, she was released.
Out of the 27 arrested in the Hearne, Texas drug sweep, Stewart was one of seven who pleaded guilty. Those who refused to take a plea, and couldn’t post bond, spent five months in jail awaiting trial.
Ultimately, the snitch’s lies were exposed, and all of the open cases were dismissed, including Regina’s. However, those who had taken pleas did not gain the dismissals that truth demanded. The way our criminal justice system works, their pleas were considered to be binding, in spite of the fact that they were innocent.
Regina stayed committed to seeking justice, and sued the district attorney in civil court. Her civil suit ultimately exposed the virulent racism and callous opportunism that motivated the district attorney, and forced a favorable settlement. We viewed a clip of a pivotal moment in American Violet, where Paschall’s daughter gave a videotaped interview regarding his racism. Paschall lost his composure during the viewing, confronting an African-American attorney who was conducting the questioning, saying essentially, “So what? Everyone is racist in this town.” Paschall settled the case, and the fifteen plaintiffs were vindicated, but that was not the moral of this story.
The public defenders at the conference were forced to contemplate their roles in a justice system, where someone like Regina can rightfully end up feeling that even her advocates were against her. From the beginning of the case, her public defender advised her to plead guilty, without investigating the case. She had no representation in family court, where Paschall attempted to have her children taken from her. If not for her extraordinary fortitude, she would have been like millions of people in this country who are forced to “take the deal” rather than fight.
Her story highlighted the fact that in a plea-based criminal justice system, facts matter less than situations: Her public defender was over-burdened and under-resourced, and the prosecutor had unchecked power, and a federal mandate to make arrests. Threatened with years of prison time, suffering in jail, taking a plea becomes the smart choice, in spite of being innocent.
Of course, the first question out of the crowd was: What happened to the district attorney? He stayed in office for several years. Elected, and re-elected by the voters in Robertson County. When everyone in the room groaned, Regina further saddened us by saying that he hadn’t changed one bit. However he was brought up on charges himself a few years ago and is no longer an attorney. Due to law enforcement harassment, she had been forced to move to Houston, only visiting her Hearne family in secret.
Regina Kelly says she wants “a formal apology” from the former D.A. so she can clear her name in her small community. But the Robertson County D.A., John Paschall, told FRONTLINE that he believes all of those arrested are guilty, but says, “But I don’t believe the state had enough evidence to convict them beyond a reasonable doubt.”
No apology can help Erma Faye Stewart. Three years after she pleaded guilty in order to go home and take care of her children, she is destitute. Because of the plea, she is not eligible for food stamps for herself or federal grant money for education. She can’t vote until two years after she completes her 10-year probation. And she has been evicted from her public housing for not paying rent.
Her children slept in various homes and she spent her nights outside the housing project, waiting for the the morning when she can go to work as a cook — a job that paid $5.25 an hour. She owed a $1,000 fine, court costs and late probation fees which she has been pressured to pay.
“They see it like, as long as I have a job, I can pay them,” says Erma Faye. “I already told them, I’m having a hard time, buying my son medicine. I have to have his medicine for his asthma. They don’t really care about that. All they want is, you know, the money.”
In spite of all that, her presentation was ultimately inspirational. Yes, injustices continue — in Hearne and all over — but so does her fight. Regina now travels the country telling her story to groups like the Community-Oriented Defender Network, so that those interested in justice system reforms can see the actual human costs of this assembly-line criminal justice system. Several attendees asked for her contact information, hoping to bring her to their offices, and many talked about how her presentation already had them thinking about how they would change their approach to their clients back at home.
The former District Attorney was indicted in 2015 by a Robertson County grand jury on a first-degree felony charge of misapplication of fiduciary property.
Paschall, had been misusing money belonging to the estate of Calvert resident Marium Oscar while he served as its executor. Oscar died in 2004.
The grand jury reached its decision following a two-day meeting in which special prosecutors from the Texas Attorney General’s Office presented the case.
Paschall, who served six terms as Robertson County’s district attorney, turned himself in to the Robertson County Sheriff’s Office shortly after grand jurors returned an indictment. He was released from jail on a $30,000 personal recognizance bond.
The misapplication of more than $200,000 is a first-degree felony punishable by five years to life in prison if convicted.
The issue was first raised in 2011 when attorney Ty Clevenger filed a lawsuit on behalf of two of Oscar’s distant relatives. The petition was amended two years later, naming as plaintiff the Calvert Historical Foundation, which is the nonprofit organization where Oscar wanted her remaining assets donated after her death, according to her trust agreement.
In January 2014, what Paschall said remained of Oscar’s estate, $86,000, was submitted to the county registry. The estate, inherited from Oscar’s deceased sister in 1991, had been appraised at about $300,000.
Judge H.D. Black dismissed the civil suit in August 2014 after the foundation cut ties with Clevenger, who had agreed to represent the plaintiff pro bono.
At that time, The Eagle reported that the Texas Rangers, the Texas Attorney General’s Office and the State Bar of Texas was investigating Paschall for misappropriation of funds.
Clevenger called Paschall’s indictment “a relief.”
“He’s done a lot of bad things to a lot of good people, and he’s been getting away with it for far too long,” Clevenger said.
Paschall, who ran as a Democrat, was district attorney from 1980 to 1984. He ran again in 1992 and went on to serve five terms, ending in 2012, as the county’s lead prosecutor.
He was indicted in January 1987 on charges of theft by a public servant and misapplication of fiduciary property stemming from allegations that he had pocketed money intended for a crime victim. A grand jury later dropped the theft charge but reindicted Paschall on the misapplication of funds charge in May 1987. The case was once again sent to a grand jury in June 1987 but the charge was dismissed, according to his attorney, Jim James.
What was the final outcome? The Texas Attorney General cut a plea deal with Paschall to surrender his law license and serve 30 nights in jail.
John C. Paschall Attorney at Law
Bar Card Number: 15554200
TX License Date: 11/06/1978
Primary Practice Location: Franklin , Texas
P.O. Box 681
Franklin, TX 77856-0000
Practice Areas: Criminal, Family, Litigation: Personal Injury
Statutory Profile Last Certified On: 11/19/2014
Disciplinary Status Resigned in Lieu of Disciplinary Action
Not Eligible to Practice in Texas