The Trials of Gabriel Fernandez (2020): Season 1, Episode 5 - Improper Regard or Indifference - full transcript
Workers at the Department of Child and Family Services are interviewed about why, despite abuse reports, Gabriel wasn't removed from the home. Gabriel's siblings testify about the torture ...
I just got my investigation for tonight.
What came in was a...
- Out-of-home abuse investigation,
- Okay.
which means
it's with one of our foster parents.
And in this case
it involves a five-month-old baby.
The foster parent and her partner
got into a physical altercation.
So it's a domestic violence.
Are you nervous at all?
What are some of the threats?
You can be assaulted.
It's never happened to me,
but just the surprise of us showing up...
it takes them a while to get over
that initial response to...
having somebody knock on their door
and, you know, make an allegation.
I'm more concerned about getting
in the door than anything else.
Let me see what this baby looks like.
I just wanna see a child that's breathing.
I wanna see a child that looks okay.
Like, I can't find out. I can't...
I don't see the entrance to this place.
And this may be the projects.
Just a...
I have to interview them both,
see who's in the home
and assess the child,
and then, we may remove the child.
Okay.
Hello?
Pardon the intrusion
at this hour, ma'am.
Um, I'm with Children's Services.
Okay.
And we got a call today
regarding your home.
- What about my home?
- So, what it is, we got a call tonight,
to our child abuse hotline,
and they made allegations
of domestic violence.
- For... For my home?
- Yeah.
Wow.
- So I need to see the child.
- I'm shaking, sorry.
- It's Okay.
- Can we come in?
I'm not gonna get arrested
or anything?
No. We're just gonna make sure
that the baby's okay and that you're okay,
- and then we'll be out of your way.
- Wow.
Let me explain to you
what's going on.
- We got a call tonight...
- Okay.
...and what they reported was, um,
there's a history of you
and your girlfriend,
um, getting into physical altercations
in the presence of your chi...
of the foster child.
That two weeks ago, you and the girlfriend
were arguing outside,
and that you ran over
the girlfriend's foot.
Caller states
that the child was in the car
with the foster mother
during the incident.
Uh, law enforcement was called
but no arrests were made.
I haven't had my car in over...
since maybe like December or November.
- So you have no vehicle?
- No.
Did that incident occur?
Um, I just recently just got into it
with the ex-girlfriend,
so if... if I know the time,
I can go back to my text messages
to show you some of the messages
that she sent me...
- Okay.
- ...regarding another case.
So it sounds like this is the person
that's calling
in, as far as this... this case.
Do you mind
if I just see the baby?
- Oh, that's a big ol' baby.
- Yeah, she'll be six months.
So let me ask you,
what they reported was,
you were arguing outside of the apartment
with your girlfriend, it escalated,
girlfriend started hitting
the shopping bags out of your hands,
foster mother dropped the car seat
with the baby in it.
So, I just need to know...
- No.
- ...did an incident occur?
No incident? Okay.
So what I'm gonna need to do is,
'cause they made an allegation
the baby fell,
I need for you to undress the baby.
Oh, my goodness.
What a happy baby.
So pretty, look at her.
Okay, perfect and then her buttocks,
please.
Okay. So what I need to do now
is just, uh,
it's a welfare check.
So I need to just check out the house
in the... uh,
- the refrigerator of your home for food.
- Okay.
So, I'm gonna open this
if you don't mind? Okay.
Okay.
And what k...
the baby on, what type of formula?
- She's not on formula.
- Oh, lot's of food. Oh, mama!
I like all this!
The formula.
I know, huh? No way.
Okay, I'm gonna make sure you have water.
I'm gonna look in this cabinet,
if you don't mind.
Go ahead.
Okay. Can you do me a favor
and turn on the stove?
Okay, perfect.
Let me see the bathroom really quick.
Okay, um, I do apologize that we had
to come at this hour.
But what matters here is
that you cooperated,
and that we came in
and we didn't find what they reported.
- Right.
- For whatever reason,
um... decisions were made to do this.
The concern is... I have is that, um,
the person is gonna do this again,
and you gotta stop all communications.
- I'm about to actually change my number.
- Yeah.
When you have allegations
of physical abuse, you know,
domestic violence,
you have to look for the evidence,
which is the house.
There's no drugs in the house,
there was no booze.
Um, ample amount of food.
You know, you look at the care
of the child, that's a robust child.
But bottom line,
the child is safe.
Yeah, I feel good.
I don't feel that the child's in danger.
I don't feel like I had to remove a child.
Hello?
Hello, may I speak
with Patricia Clement, please?
Yes, this is Patricia.
Hi, this is Mary Cenovich.
I'm an investigator,
from the Los Angeles County
District Attorney's Office.
- How are you this morning?
- Yes.
Not good right now.
I'm so sorry. Um...
What are you calling me about?
I would like to, um,
speak with you regarding
your prior employment by LA County.
Why?
Um, I have just a few,
like, procedural questions, I would like...
Are you go...
are you gonna charge me with something?
I have no way of knowing that.
I'm an investigator.
Why am I being...
is this regarding the little boy?
Yes, yes it is.
I didn't have anything
to do with that. They're lying.
Oh, God.
They're the District Attorney's Office.
Oh, God.
Are you able to speak with me?
I don't know.
I think I need to get an attorney,
if you're gonna... do this to me.
I had nothing to do with that.
I did my job.
Okay. Um, let me...
If... are you able...
are you driving right now?
No, I'm at home.
Okay.
I-I lost my house.
I lost everything!
Do you want the defendants to approach?
Yes, absolutely.
All right, let me call
the matter of the People vs. Kevin Bom.
The defense filed a motion
to dismiss.
What they basically are saying is
there was not sufficient evidence
to require them to stand trial.
We have a case here
that is unprecedented.
If you look at what the People have filed,
there is... there's nothing
that they've cited
that remotely comes close to the facts
that we have today, and...
there's a reason for that, Your Honor.
This is a case that just never
should have been filed
and it's a case
that the court should dismiss.
The social workers
are being charged
with child endangerment
resulting in death,
and...
falsification of public records
or documents.
But what kind of negligence
applies to a social worker
who is having problems?
Is it sufficiently clear
when they've crossed the line
from negligence or mistake
to gross negligence or recklessness?
After Gabriel died,
the case workers had no choice
but to sit down with Internal Affairs
investigators.
It was a condition of their employment.
They didn't wanna be there
and the...
questioning was sometimes,
you know, very adversarial.
Were there any other
main issues
that were, the sort of the focus
for this family?
He, um,
was acting up in school.
He had... was angry,
was rude to his teacher.
Where is this information
coming from,
that he's so rude or acting out so much?
Those things were told to me
by mom.
- By mom.
- Yes.
Did you ever talk
to his teacher
or the school to get
any additional information
- about how he was doing at the school?
- No, I did not.
Okay.
Since the case had
originally come in for physical abuse,
had any verification been obtained
that there were no new incidents
of physical abuse or excessive discipline?
It was never brought
to my attention,
by the social worker.
So, in terms of asking
the specific questions,
because you want your workers
to ask the specific questions,
did you ask your worker specifically
if she had assessed
whether or not there was
any ongoing physical abuse?
- I can't remember...
- Or physical discipline?
the details of a lot of that conversation,
but, um, no.
The tapes of these conversations
were very tightly held.
So far, they have been kept out
of the criminal trial,
and there is a question about whether
investigators relied on these statements
to build their case or not.
We evaluated everyone
who was involved with Gabriel's care,
very closely, looking at the law to see
if there were any violations of law,
and based on that we filed the case.
My client had only contacts
with the family from October 30th, 2012
to January 31st, 2013.
In that time, all injuries and evidence
and testimony presented after that date,
is irrelevant as to my client,
Ms. Rodriguez.
There were three subsequent supervisors,
two subsequent social workers,
one subsequent emergency response worker,
two other mental health professionals,
two law enforcement officers,
and all these people are mandatory
reporters, Your Honor,
came into contact
with the Fernandez family,
subsequent to the work of Ms. Rodriguez.
And no recommendations
for detentions were made,
no lingering injuries were noted,
no arrests were made,
and no removal orders made.
And with that, Your Honor, I'll submit.
Thank you.
Stefanie, she was a new recruit.
She didn't have a lot of experience.
But the basic allegations are saying
that you, Stefanie,
conducted a really shallow inquiry.
you didn't talk to the people
who knew the situation best.
You didn't talk to Gabriel's grandparents
who were really concerned
about what was happening.
When you look at Stefanie's notes,
you get the impression
that this is a gullible individual
who's easily manipulated
by Pearl Fernandez.
You know, time after time,
even when the explanations for, you know,
these supposed accidental injuries
are pretty thin,
Stefanie accepts them far too quickly.
And in the end she categorizes them
as accidents.
One of the things that social workers are
supposed to do is maintain a body chart,
and each time they see an injury
they're supposed to make a note about it.
She started one with that initial bruise
on Gabriel's butt,
after the beating with a belt buckle.
But then all these other injuries
never get marked.
The number of marks and bruises
and injuries
on this kid were all over the place.
And, if a body chart had been done,
it would have been made crystal clear
that this kid needed to get to the doctor.
The teacher calls and reports
that he's come to school
saying he's been shot with a BB gun.
The social worker walks away from that.
There's chunks of missing hair,
a shaved head with scabs.
Those are not typical childhood injuries.
Everybody can look from the outside
and say, "Oh, this should have been done."
But all the allegations that were made
were explained away.
The kids had done it, um,
It happened in the neighborhood.
It was never, ever
definitely defined that this was
the result of what the parents had done.
If you look at Mr. Bom's involvement
in this,
he had the file of Gabriel Fernandez
for three months.
In those three months, he approved
that there was a high risk level,
he approved
that there was general neglect,
and he approved that there was
improper corporal punishment
and he did what his job was to do.
He ran the case up the flagpole
for more intensive services.
Mr. Bom was no longer responsible
for the case.
Kevin Bom was Stefanie's boss.
He was supposed to be there to sign off
on every key decision she made,
for instance when it comes
to the decision about
not sending him to medical care, you know,
he's equally culpable for that.
The basic allegation is that Kevin Bom
took a fairly hands-off approach
to what she was doing.
He didn't make sure that she followed
the department's policy
to reach the appropriate witnesses,
to make sure that the body chart
was filled out,
to make sure that Gabriel saw a doctor
following some of these injuries.
You know, the reason he was there
was to make sure
that none of these things
fell through the cracks, but they all did.
When Kevin Bom and Stefanie Rodriguez
decide to close out their investigation,
they make a decision to walk over
to Greg Merritt's
Family Preservation team.
He's a supervising social worker
in the Palmdale office,
and one of his workers is Pat Clement.
Pat Clement was well-established
as a problematic worker.
She was generally perceived to be
pretty rude and unprofessional,
with clients and colleagues.
She was a nun for ten years
and that's one of the things
that really puzzles people now,
because the woman they see is profane,
loud.
So following Gabriel's death,
Pat Clement has given different accounts
of what happened
and what culpability she might have.
If you look at the Internal Affairs
interview,
that looks very different
from the conversation she has years later
with the District Attorney investigator.
There were never any mentions,
I gotta tell ya, of physical abuse.
That wasn't what the case was about.
The case was about neglect.
I was there, I did my job.
I gave the referrals. I was sitting there
with that family and it...
no one ever said anything. No one.
Not the children, not the older children,
no neighbors, no nothing...
said anything to me.
That there was any physical abuse
going on.
And there were never any bruises.
I saw the black eye.
Um, I can't remember the explanation.
I saw that he had a...
um, a BB shot,
and I was told that that was
a kid in the apartment complex.
When you saw marks on him,
did you ever complete a body chart?
No.
Are you aware that there
are body charts to mark?
Mm-hmm. Yes.
Okay.
Her assessment of Gabriel
was just, like, flatly false.
This was a period when he was
barely showing up to school,
and she said that he had virtually
perfect attendance.
She said that the family was improving
and that the...
that Gabriel's risk was diminishing,
not increasing.
That she spoke to Isauro and she deems him
a very pleasant person.
This man presented himself
as an upstanding, caring
adult.
He had no criminal history.
He said all the right things and did
all the right things and I had no...
there wasn't anything
that was a red flag about him.
How many times did you have
individual interviews
with mother's male companion,
the boyfriend?
The first time I went there.
- The first time?
- Yes.
Okay. After that, did you have any
individual interviews with the boyfriend?
No.
Pat backdated the end date
for... the case.
So she... when she closed the case,
that actually happened in April.
But she marked down a date in March
so that she wouldn't be responsible for
any visits to the family
during that final month.
It was only a week after she learned that
Gabriel had written these suicide notes,
that she wrote down that there were
no safety risks to Gabriel whatsoever
and her recommendation was
to close the case.
Okay, so based
on your understanding of the family,
at the time this referral was closed,
did you feel that the family was
at moderate risk? At high risk?
At no risk?
I would say they were
at a moderate risk,
from the information that I had.
Clearly, some information
that I thought I had,
I did not verify, which was my problem.
Other than Patricia's
report to you
about how the family is doing,
were any other steps taken by you
to verify any of that information?
I don't recall
any steps I've taken.
I'm not a horrible, terrible
person and I did not hurt that child.
His mother and her boyfriend
killed him. I did not.
I had nothing to do with that.
I didn't miss anything.
And it... it...
breaks my heart, it... it...
rips me apart,
when people in the community call him
by his first name.
They did not know that child.
It's, uh, excuse me very much,
but why don't you crucify the person
that did this to him?
I don't have any control
over what goes on in that family,
because a social worker has
no control over what goes on in families.
My client supervised
over 180 children
and he spent his entire life
trying to prevent
what occurred on that day.
These... these social workers
really aren't villains,
they're really unsung heroes in this case.
What I saw, I think certainly
indicated that they shouldn't be with…
the Department of Children
and Family Services again,
but in terms of whether there was
a criminal act that occurred,
I'm just not in the position
to comment on that.
There are affirmative things
that they did to keep that kid
in an abusive environment
and it was, quite frankly, foreseeable
that kid was going to die.
The DCFS has had all kinds
of child deaths in the past
that have never been the subject
of criminal prosecution.
And it's easy to find scapegoats.
The public is clamoring for justice
to be done.
I'm really angry.
I'm really angry.
They should have done their job.
They had a job and their job was
to save a little boy.
I've always wondered
how many...
kids under their care
were overlooked.
How many kids besides Gabriel,
did they actually leave in an abusive
home and did not do their job.
And we will never know,
because they're not gonna come out
and say it.
Unfortunately,
Gabriel, my cousin...
had to die and suffer to make this, um...
make it a known case that, you know,
the social workers, the DCFS...
it has to change.
Following consideration
of the overall evidence presented,
this court concludes that for purposes
of the requisite burden of proof required,
that there does exist a strong suspicion
that the defendants' overall conduct
does support the charges pending
against them.
From the overall evidence presented,
there is a strong suspicion
that said conduct was reckless
and or criminally negligent.
The defendants' actions and/or inactions,
similarly demonstrated an improper regard
for human life,
or indifference to the consequences.
As such the defendants' motions to dismiss
are hereby denied.
That is the court's ruling.
Alright, thank you all.
- Thank you, Your Honor.
- You're welcome.
All four of them really
understood
thqt things were becoming
even more serious.
Nevertheless, they figured
there's one more thing we can do.
We can go to the Appeals Court
and ask them to reconsider
Lomeli's decision
about sending this forward to trial.
This appeal is really one of their last
chances to avoid facing the jury.
And now it's just a waiting game
to see what happens.
And everybody's in limbo.
The judge said that the actions
represented an improper regard
for human life.
How do you respond to that?
I don't believe that at all,
that's his opinion.
Uh, I have 24 years...
uh, working with children,
and...
I have always been a person
who has regarded human life.
What the Judge said was,
"there was failure here at every level."
Well, at every level means
there is failure here at a systemic level.
Uh, and that begs the question,
"Why are there only for social workers
being tried?"
Emily Putnam-Hornstein,
I am an associate professor
in the School of Social Work at USC
and director
of the Children's Data Network.
What was your impression
of the Gabriel Fernandez case?
I struggle with the Gabriel case.
It's absolutely heartbreaking, um,
as are, you know,
you know, other child deaths, but...
it's hard to understand some of the...
the decisions that were made.
Most of my research has focused
on using administrative records
to better understand maltreated children,
and children who are involved
with our child protection system.
There is a broad body of literature
that would suggest
that humans are not
particularly good crystal balls.
Instead, what we're saying is,
let's train an algorithm
to identify
which of those children fit a profile
where the long-arc risk would suggest
future system involvement.
People are using automated algorithms
everywhere, in all parts of life.
Most people are familiar with it
in their Facebook news feed,
how it ranks which of your friends' posts
you might find most interesting,
or on their Google Maps
when they're driving
and it sends them on some weird route
that the algorithm has decided is awesome.
But people don't realize
that they're also being used
in all sorts of high-stakes
human decision making.
I'm Marc Cherna,
The director of the Allegheny County
Department of Human Services.
In the 90s, in Allegheny County,
there were a number
of high-profile deaths.
The last director was,
basically, run out of town.
There were a lot of hearings,
a lot of demonstrations.
And we were looked at
as a national disgrace.
The problem that Allegheny County
was looking to solve was
that they were fielding
significant volumes of calls
to their child protection hotline,
and they were trying to figure out
whether they could use data,
to better understand which calls
they should screen in and investigate,
and which calls they could safely
screen out and not investigate.
We actually have around six
or seven million children
who are reported for alleged abuse
or neglect every single year in the US.
And, historically, the way that we have
made some of our screening decisions,
are just based on, kind of,
gut assessments.
Predictive risk modeling is saying,
"No, let's take a more systematic
and empirical approach to this."
- The worker gets the call.
- CYF Intake, may I help you?
The worker looks up the case to see
what records we have,
and get the history of that.
Do the children have any special needs?
And they will then press a button
and that will give them
the Allegheny Family Screening tool.
The Allegheny Family
Screening tool uses
a statistical technique
called data mining,
to look at historical patterns
in the data,
and use those historical patterns
when there's a new case,
to try to make a prediction
about what might happen
in the current case of a child or family.
Well, there's a hundred or so
different factors that are looked at.
Some basic examples are child
welfare history, parents' history,
certainly, drug use and addiction,
certainly, mental illness,
jail and convictions,
and especially if there are assaults
and things like that.
It's searching all of the data,
it's pulling that in,
and then the algorithm is applied.
They will see a number
from one to 20.
It's kind of a thermometer
in terms of what is
high risk, medium risk, low-risk,
in terms of that call.
I'm not sitting here and telling you
we can predict who's going to go on
to be abused and neglected.
We know that there is bias in our system,
we know that there are differences
in surveillance.
What we are doing here, is we are trying
to predict future system involvement.
I have no idea
how would a model have classified Gabriel.
We know that the risk assessment tool
that was filled out by workers,
was already indicating
that he was very high risk,
but all of the data
that I have worked with
and have seen, would suggest
that these algorithms are
unambiguously better
than human judgment alone
and are superior to tools that are currently being used.
But I've definitely heard from critics who
I truly do respect
that, ultimately, what we're doing
is creating
the equivalent of a nuclear weapon,
that can be used by the field at large.
Poor and minority communities
are over-represented
- in data collected by counties.
- Mm-hmm.
So if the data is already biased against
African Americans and other communities,
how do you create an analytics tool
that doesn't make the problem worse?
So, that is a very real
and legitimate concern.
For sure, there is bias
in our systems.
Child abuse, as seen by us in our data,
is not a function of actual child abuse,
it's a function of who gets reported.
We're very sensitive to that
and we are looking at our data
ongoing, in terms of seeing,
is this proportion growing
or being reduced?
And we have not found,
in effect, a disproportionality,
so far with this.
In Allegheny County, this system
is owned by the public,
but in a lot of places, these algorithms
are being run by private companies.
Is there a danger in these systems
being outsourced to private companies?
It's incredibly important
that these not be proprietary algorithms
or models.
I think they are built from data
that belongs to the public agencies
that are serving these clients,
in our community.
I do feel that's a kind of a fight
for this technology right now
by people who wanna use it
for their purposes,
which is not always for the public good.
It's like a black box.
They have no way to figure out
how they're actually deciding
a level of care that has a huge impact
on an individual.
Here, it's working.
Here, we are comfortable
with what we're doing.
Our ethical report is that it's unethical
not to try to keep kids safe
if you have tools to do that.
The software is ready.
They built it, they're ready to do it,
they're advocating for it and
it sure would save a lot of money, right?
And so we are coming up really fast
on these very important questions
that we need to address,
because, otherwise, we're all gonna be
answering to a machine,
and we're not gonna know
how it made its decisions,
and we're not gonna be able to hold it
accountable.
What I'm frustrated by is
the comfort so many have with criticizing
the child protection system.
But anytime a child welfare agency
attempts to innovate,
that quickly gets shut down
because people are more fearful
of the new thing
than they are of business as usual.
Today, possibly
an even more intense day,
as the two children took the stand
who witnessed the abuse,
Gabriel's older brother and older sister.
They were just 11 and 12
at the time of the abuse.
The first person on the stand was
Gabriel's brother, Ezequiel.
Details today about
how an 8-year-old Palmdale boy was killed
from someone who says
he saw it happen, his brother.
No cameras allowed
in the court today,
as the older brother of Gabriel Fernandez
took the stand.
He's now 16 and was identified
only as Ezequiel.
...should be a lot quicker.
Okay, good. So you're gonna have
Deputy McCarthy wrap it up with him?
- And then you're gonna have the children?
- Just the two children
- Who's first?
- Uh, Ezequiel.
Okay. We're gonna have...
the jury's probably close to being here,
let's take a break and then, uh,
we'll start. All right?
Very good.
Ezequiel is,
uh, Gabriel's older brother.
Virginia is
Gabriel's older sister.
Uh, they were the two children
who were living with Gabriel at the time,
with both defendants, who also witnessed
the last beating on, um...
at the end of Gabriel's life.
Both were called to testify
during the trial.
I'm a retired professor
and associate dean,
also retired psychotherapist.
In my psychotherapy practice,
that I had for 40 years,
I saw and treated many survivors
of sexual abuse and child abuse.
We showed you
some of the videos of…
Ezequiel and Virginia being questioned
by the detectives.
What was your impression of that?
What I saw, in both cases was, you know,
the initial attempt to hold up
the facade,
and then the gradualunburdening,
you know, and crumbling of that,
to reveal two frightened...
children.
Can you tell me what a truth is?
Can you define that word truth?
It means that you're telling
the real thing,
and not the thing
that you don't wanna say.
Okay. What about a lie?
What does a lie mean?
A lie means that you're not telling
the truth and
you're saying another thing that's
not the word that you want to say.
The experience of witnessing
Gabriel's abuse,
and of having to lie about it,
and of their own fears of their parents,
it's just an enormous burden.
Enormous.
When's the first time that you saw
something really bad at home
happen to Gabriel?
Um, I've seen him
pick Gabriel up and choke him.
Okay, so is Gabriel standing up?
- Yeah.
- And Tony picks him up how?
Like...
You can stand up and show me, that's fine.
He would pick him up... like, he'd have him
right here and then he'd have him up there
- 'cause he was tall, so...
- Okay, so he put him against the wall?
- Yeah.
- And would he hold
his hand against his neck?
- Yeah.
- One hand or two?
One.
- One hand?
- Yeah.
- And would him pick him up off his feet?
- Yeah.
Like how high off his feet?
I think, like, his feet would be,
like, up here.
- His feet would be up there?
- Yeah.
Gabriel used to cl... clean
the kitty litter.
- Okay.
- And Gabriel used to say he was done,
so my dad would go check
and the whole kitty litter was peed on.
Tony would say, "Pick it up right,
or I'll make you eat it."
Mm-hmm.
And what did Gabriel do?
When Gabriel didn't pick... when Gabriel
didn't pick it up right,
he said, "Get in this corner and eat it."
Really?
Did he eat it?
He had to.
None of us knows
how to really think about that.
That you could do this to a child.
Your child.
Or any child.
One of the most moving days
of the trial,
was when Ezequiel and Virginia
came into the courtroom.
There were no cameras allowed
in the courtroom,
because they're minors,
but we did get the transcripts
of what happened.
This is prosecutor Jon Hatami
interviewing Ezequiel,
Gabriel's older brother.
"Do you remember where that box was at?
In my parents' room.
And do you remember
if Gabriel would be in that box a lot?
Yes."
Exhibit number seven, they brought in
the box into the courtroom,
and one thing that was also memorable
about the box or what stuck in my mind,
is that it had all these little tickers
of tape on it to mark
where his bodily fluids were.
"So, I noticed you had two,
two beds in your room, right?
Yes.
But Gabriel still stayed in that box
most of the time.
Yes.
He slept in that box.
Yes.
Even sometimes during the day?
Yes."
And then again later on.
"Do you remember
how they put him in there?
They put him in with handcuffs.
Were the handcuffs, were they on him,
or were they on the outside?
On the outside.
So, the two little metal handles?
Yes.
Did they do anything to keep him talking
or from saying things?
They wrapped a bandana around his mouth.
I'm sorry, they wrapped a what?
A bandana.
Okay.
Did they put anything in his mouth?
Sometimes a sock.
How did Gabriel go to the bathroom?
Inside the box.
Was Gabriel ever made to clean up?
Yes.
Did the defendant make him clean it up
sometimes?
Yes.
Would the defendant, kind of,
hide him in there sometimes?
Yes.
Who was he hiding him from,
do you remember?
Social workers, when they would come over.
So sometimes when social workers
came over,
the defendant would put him in there
and kind of hide him, gag him?
Both him and my mom.
Both your mom and the defendant?
Yes.
Was Gabriel hungry?
Yes.
You tried to give him a banana?
Yes.
Was Gabriel hungry a lot of times?
Yes.
Did you try to give him the banana
when he was in the box?
Yes.
So even though the handcuffs were
on the box,
were you able to get a bit of space
in there to squeeze in the banana?
Yes."
I knew the case
was...
a really serious case of child abuse,
but it really wasn't until I got
all of the evidence,
that I realized how egregious
the case was.
Especially, hearing the testimony
of Ezequiel and Virginia.
I think then...
it probably hit me more.
"How were Gabriel's
teeth knocked out?
With a bat.
My mom hit him with the bottom side
of the bat in the teeth,
and, you know, they got knocked out.
Was he crying?
Yes.
Was he on the ground?
Yes.
Did they take him to the doctor
or the dentist?
No. Ever? No.
Ezequiel, what's that?
Pepper spray.
Whose was that?
My mom's boyfriend.
So the defendant?
Yes.
One of the things
for being a security guard?
Yes.
Did he ever do anything with that,
that you remember?
Yes.
Can you tell the jury what you remember?
Uh, I remember them both, my mom
and her boyfriend, putting Gabriel
inside the bathtub and my mom's boyfriend
spraying him in the face
with pepper spray.
What did Gabriel do?
He started crying and trying to get out
of the restroom.
Was he able to get out?
No, they had locked the door.
Did they ever call him gay?
Yes.
Mom or the boyfriend or both?
Both.
Did the boyfriend call him gay a lot?
Yes.
So...
sometimes the defendant would put makeup
on his bruises. Yes.
Sometimes the defendant would put Gabriel
in a cold bath
to help get bruises to go away. Yes.
Was Gabriel cold?
Yes.
Was he ever put anywhere
after the cold bath?
Inside the Box."
Hearing about from the children,
strikes me to the core.
That really helps parse out
what exactly took place,
in that apartment.
"Okay, in your own words,
the best that you can,
can you tell the jury what you remember
happening that night?
I just came home from playing outside
and I walked to the house,
and I see my mom, Virginia
and Gabriel inside Virginia's room.
And then they were arguing
about something.
I think I remember that my mom got mad
because Gabriel was playing with Virginia,
with the toys, and then she got mad,
and started hitting him in the face.
She dragged him into a room,
and then that's when my mom's boyfriend
went to the room and they closed the door.
And then I was hearing screaming
and a lot of banging.
And then my mom came out,
I was scared.
And, um, she told me to tell the police
or the paramedics
that me and Gabriel were playing,
and that he hit his head and that's it."
Gabriel's sister then goes
on the stand.
"I was sitting on the edge of the bed
and my mother's boyfriend
was punching him.
Was there a point
where he didn't get back up?
He knocked the air out of him,
and he fell over
and he didn't get back up.
Nothing further.
So they picked him up.
Nothing further, Your Honor.
Are you finished?
They threw him in the shower,
and he kept on yelling at him to wake up,
and when he didn't wake up,
my mother decided to call the police.
And she told me to grab a rag,
and we cleaned up all the blood
that was on the floor.
Did you say nothing further?
Nothing further."
We'll never know,
really what Gabriel went through.
I don't know how you...
I don't think we'll know.
I didn't see any emotions
from Isauro Aguirre.
He sat there stoic and he stared
completely forward.
I didn't see a single tear drop
when Virginia testified,
about the amount of blood,
about the kicking and the punching.
I think that during that time there...
everybody in the courtroom
was emotional and he sat there.
Um...
I don't know how a reasonable person
can sit there and not feel anything,
but apparently he was able to do that, so.
Ezequiel and Virginia seem to have
now found some degree of safe harbor
in their uncle.
What does that stable home mean for them
and their future?
That's everything.
I mean, we all need that.
I mean, I'm so glad that they have him.
You have to have that
to be able to resolve
any of the rest of it.
If you don't have that... you can't.
But now having a kind of holding
environment that is benign,
and trustworthy,
it means everything.
And I hope that they will be able
to recover.
You know, I think they can,
but it will be a long process.
I mean, these are
terrifying experiences.
Terrifying.
And to feel in any way
implicated also,
it's just very tough.
One of the most important aspects
in recovering from trauma,
that's abuse trauma,
is moving it outside of yourself.
That is, it's not something about you,
it's not something you did,
it's something that happened to you.
And I think that shift is
the most important
kind of juncture toward healing.
I know I did something
to Gabriel.
What did you do to Gabriel?
I never went to go see him
or tell him I was sorry.
To tell him you were sorry?
Why were you gonna tell him that?
Because...
because
every time we would play together,
I would always tell him
that he can't play with me.
Why? Why couldn't he play with you?
Because every time he wanted to play
with me, I was with my friends.
And so that's what you did bad to him?
Because you didn't wanna play with him?
He always stayed in the dark
with no one.
He stayed in the dark where?
Inside my mom's room.
I'm gonna tell you this,
Because you're gonna talk,
you're gonna talk to all kinds of people.
You already have.
Would you say you've already had to talk
to a bunch of people in two weeks, right?
You... you're gonna be talking
to more people, okay?
But this is something...
the reason this is what I'm saying,
eye-to-eye with you,
is so important,
is I'm the policeman,
who's investigating the whole case.
I'm the guy in charge.
Okay? From the guy in charge,
I'm telling you,
none of this was your fault.
None of it.
- Do you believe me?
- Yeah.
I want you to believe me.
That's the guy in charge.
So you can hear
from a lot of different people about...
this and that and the other thing.
But when you go to bed at night,
I want you to try to remember,
the head guy told me, it's not my fault.
Okay?
'Cause it's not.
Nothing that happened
and nothing that you were told to do,
nothing that they made you do,
is your fault.
And I want you to believe that.
Okay? You're a good... you're a good guy.
All right.
And we're gonna work through this.
All right?
Okay.
Any questions?
- No
- Okay.
I think it's dinnertime.
What do you think?
Okay, come on.
♪ Every age ♪
♪ Has its turn ♪
♪ Every branch of the tree ♪
♪ Has to learn ♪
♪ Learn to grow ♪
♪ Find its way ♪
♪ Make the best of this
Short-lived stay ♪
♪ Take this seed ♪
♪ Take this spade ♪
♪ Take this dream of a better day
♪ Take this mind ♪
♪ Take this pen ♪
♪ Take this dream of a better land ♪
♪ Take your time ♪
♪ Build a home ♪
♪ Build a place where we all ♪
♪ Can belong ♪♪
What came in was a...
- Out-of-home abuse investigation,
- Okay.
which means
it's with one of our foster parents.
And in this case
it involves a five-month-old baby.
The foster parent and her partner
got into a physical altercation.
So it's a domestic violence.
Are you nervous at all?
What are some of the threats?
You can be assaulted.
It's never happened to me,
but just the surprise of us showing up...
it takes them a while to get over
that initial response to...
having somebody knock on their door
and, you know, make an allegation.
I'm more concerned about getting
in the door than anything else.
Let me see what this baby looks like.
I just wanna see a child that's breathing.
I wanna see a child that looks okay.
Like, I can't find out. I can't...
I don't see the entrance to this place.
And this may be the projects.
Just a...
I have to interview them both,
see who's in the home
and assess the child,
and then, we may remove the child.
Okay.
Hello?
Pardon the intrusion
at this hour, ma'am.
Um, I'm with Children's Services.
Okay.
And we got a call today
regarding your home.
- What about my home?
- So, what it is, we got a call tonight,
to our child abuse hotline,
and they made allegations
of domestic violence.
- For... For my home?
- Yeah.
Wow.
- So I need to see the child.
- I'm shaking, sorry.
- It's Okay.
- Can we come in?
I'm not gonna get arrested
or anything?
No. We're just gonna make sure
that the baby's okay and that you're okay,
- and then we'll be out of your way.
- Wow.
Let me explain to you
what's going on.
- We got a call tonight...
- Okay.
...and what they reported was, um,
there's a history of you
and your girlfriend,
um, getting into physical altercations
in the presence of your chi...
of the foster child.
That two weeks ago, you and the girlfriend
were arguing outside,
and that you ran over
the girlfriend's foot.
Caller states
that the child was in the car
with the foster mother
during the incident.
Uh, law enforcement was called
but no arrests were made.
I haven't had my car in over...
since maybe like December or November.
- So you have no vehicle?
- No.
Did that incident occur?
Um, I just recently just got into it
with the ex-girlfriend,
so if... if I know the time,
I can go back to my text messages
to show you some of the messages
that she sent me...
- Okay.
- ...regarding another case.
So it sounds like this is the person
that's calling
in, as far as this... this case.
Do you mind
if I just see the baby?
- Oh, that's a big ol' baby.
- Yeah, she'll be six months.
So let me ask you,
what they reported was,
you were arguing outside of the apartment
with your girlfriend, it escalated,
girlfriend started hitting
the shopping bags out of your hands,
foster mother dropped the car seat
with the baby in it.
So, I just need to know...
- No.
- ...did an incident occur?
No incident? Okay.
So what I'm gonna need to do is,
'cause they made an allegation
the baby fell,
I need for you to undress the baby.
Oh, my goodness.
What a happy baby.
So pretty, look at her.
Okay, perfect and then her buttocks,
please.
Okay. So what I need to do now
is just, uh,
it's a welfare check.
So I need to just check out the house
in the... uh,
- the refrigerator of your home for food.
- Okay.
So, I'm gonna open this
if you don't mind? Okay.
Okay.
And what k...
the baby on, what type of formula?
- She's not on formula.
- Oh, lot's of food. Oh, mama!
I like all this!
The formula.
I know, huh? No way.
Okay, I'm gonna make sure you have water.
I'm gonna look in this cabinet,
if you don't mind.
Go ahead.
Okay. Can you do me a favor
and turn on the stove?
Okay, perfect.
Let me see the bathroom really quick.
Okay, um, I do apologize that we had
to come at this hour.
But what matters here is
that you cooperated,
and that we came in
and we didn't find what they reported.
- Right.
- For whatever reason,
um... decisions were made to do this.
The concern is... I have is that, um,
the person is gonna do this again,
and you gotta stop all communications.
- I'm about to actually change my number.
- Yeah.
When you have allegations
of physical abuse, you know,
domestic violence,
you have to look for the evidence,
which is the house.
There's no drugs in the house,
there was no booze.
Um, ample amount of food.
You know, you look at the care
of the child, that's a robust child.
But bottom line,
the child is safe.
Yeah, I feel good.
I don't feel that the child's in danger.
I don't feel like I had to remove a child.
Hello?
Hello, may I speak
with Patricia Clement, please?
Yes, this is Patricia.
Hi, this is Mary Cenovich.
I'm an investigator,
from the Los Angeles County
District Attorney's Office.
- How are you this morning?
- Yes.
Not good right now.
I'm so sorry. Um...
What are you calling me about?
I would like to, um,
speak with you regarding
your prior employment by LA County.
Why?
Um, I have just a few,
like, procedural questions, I would like...
Are you go...
are you gonna charge me with something?
I have no way of knowing that.
I'm an investigator.
Why am I being...
is this regarding the little boy?
Yes, yes it is.
I didn't have anything
to do with that. They're lying.
Oh, God.
They're the District Attorney's Office.
Oh, God.
Are you able to speak with me?
I don't know.
I think I need to get an attorney,
if you're gonna... do this to me.
I had nothing to do with that.
I did my job.
Okay. Um, let me...
If... are you able...
are you driving right now?
No, I'm at home.
Okay.
I-I lost my house.
I lost everything!
Do you want the defendants to approach?
Yes, absolutely.
All right, let me call
the matter of the People vs. Kevin Bom.
The defense filed a motion
to dismiss.
What they basically are saying is
there was not sufficient evidence
to require them to stand trial.
We have a case here
that is unprecedented.
If you look at what the People have filed,
there is... there's nothing
that they've cited
that remotely comes close to the facts
that we have today, and...
there's a reason for that, Your Honor.
This is a case that just never
should have been filed
and it's a case
that the court should dismiss.
The social workers
are being charged
with child endangerment
resulting in death,
and...
falsification of public records
or documents.
But what kind of negligence
applies to a social worker
who is having problems?
Is it sufficiently clear
when they've crossed the line
from negligence or mistake
to gross negligence or recklessness?
After Gabriel died,
the case workers had no choice
but to sit down with Internal Affairs
investigators.
It was a condition of their employment.
They didn't wanna be there
and the...
questioning was sometimes,
you know, very adversarial.
Were there any other
main issues
that were, the sort of the focus
for this family?
He, um,
was acting up in school.
He had... was angry,
was rude to his teacher.
Where is this information
coming from,
that he's so rude or acting out so much?
Those things were told to me
by mom.
- By mom.
- Yes.
Did you ever talk
to his teacher
or the school to get
any additional information
- about how he was doing at the school?
- No, I did not.
Okay.
Since the case had
originally come in for physical abuse,
had any verification been obtained
that there were no new incidents
of physical abuse or excessive discipline?
It was never brought
to my attention,
by the social worker.
So, in terms of asking
the specific questions,
because you want your workers
to ask the specific questions,
did you ask your worker specifically
if she had assessed
whether or not there was
any ongoing physical abuse?
- I can't remember...
- Or physical discipline?
the details of a lot of that conversation,
but, um, no.
The tapes of these conversations
were very tightly held.
So far, they have been kept out
of the criminal trial,
and there is a question about whether
investigators relied on these statements
to build their case or not.
We evaluated everyone
who was involved with Gabriel's care,
very closely, looking at the law to see
if there were any violations of law,
and based on that we filed the case.
My client had only contacts
with the family from October 30th, 2012
to January 31st, 2013.
In that time, all injuries and evidence
and testimony presented after that date,
is irrelevant as to my client,
Ms. Rodriguez.
There were three subsequent supervisors,
two subsequent social workers,
one subsequent emergency response worker,
two other mental health professionals,
two law enforcement officers,
and all these people are mandatory
reporters, Your Honor,
came into contact
with the Fernandez family,
subsequent to the work of Ms. Rodriguez.
And no recommendations
for detentions were made,
no lingering injuries were noted,
no arrests were made,
and no removal orders made.
And with that, Your Honor, I'll submit.
Thank you.
Stefanie, she was a new recruit.
She didn't have a lot of experience.
But the basic allegations are saying
that you, Stefanie,
conducted a really shallow inquiry.
you didn't talk to the people
who knew the situation best.
You didn't talk to Gabriel's grandparents
who were really concerned
about what was happening.
When you look at Stefanie's notes,
you get the impression
that this is a gullible individual
who's easily manipulated
by Pearl Fernandez.
You know, time after time,
even when the explanations for, you know,
these supposed accidental injuries
are pretty thin,
Stefanie accepts them far too quickly.
And in the end she categorizes them
as accidents.
One of the things that social workers are
supposed to do is maintain a body chart,
and each time they see an injury
they're supposed to make a note about it.
She started one with that initial bruise
on Gabriel's butt,
after the beating with a belt buckle.
But then all these other injuries
never get marked.
The number of marks and bruises
and injuries
on this kid were all over the place.
And, if a body chart had been done,
it would have been made crystal clear
that this kid needed to get to the doctor.
The teacher calls and reports
that he's come to school
saying he's been shot with a BB gun.
The social worker walks away from that.
There's chunks of missing hair,
a shaved head with scabs.
Those are not typical childhood injuries.
Everybody can look from the outside
and say, "Oh, this should have been done."
But all the allegations that were made
were explained away.
The kids had done it, um,
It happened in the neighborhood.
It was never, ever
definitely defined that this was
the result of what the parents had done.
If you look at Mr. Bom's involvement
in this,
he had the file of Gabriel Fernandez
for three months.
In those three months, he approved
that there was a high risk level,
he approved
that there was general neglect,
and he approved that there was
improper corporal punishment
and he did what his job was to do.
He ran the case up the flagpole
for more intensive services.
Mr. Bom was no longer responsible
for the case.
Kevin Bom was Stefanie's boss.
He was supposed to be there to sign off
on every key decision she made,
for instance when it comes
to the decision about
not sending him to medical care, you know,
he's equally culpable for that.
The basic allegation is that Kevin Bom
took a fairly hands-off approach
to what she was doing.
He didn't make sure that she followed
the department's policy
to reach the appropriate witnesses,
to make sure that the body chart
was filled out,
to make sure that Gabriel saw a doctor
following some of these injuries.
You know, the reason he was there
was to make sure
that none of these things
fell through the cracks, but they all did.
When Kevin Bom and Stefanie Rodriguez
decide to close out their investigation,
they make a decision to walk over
to Greg Merritt's
Family Preservation team.
He's a supervising social worker
in the Palmdale office,
and one of his workers is Pat Clement.
Pat Clement was well-established
as a problematic worker.
She was generally perceived to be
pretty rude and unprofessional,
with clients and colleagues.
She was a nun for ten years
and that's one of the things
that really puzzles people now,
because the woman they see is profane,
loud.
So following Gabriel's death,
Pat Clement has given different accounts
of what happened
and what culpability she might have.
If you look at the Internal Affairs
interview,
that looks very different
from the conversation she has years later
with the District Attorney investigator.
There were never any mentions,
I gotta tell ya, of physical abuse.
That wasn't what the case was about.
The case was about neglect.
I was there, I did my job.
I gave the referrals. I was sitting there
with that family and it...
no one ever said anything. No one.
Not the children, not the older children,
no neighbors, no nothing...
said anything to me.
That there was any physical abuse
going on.
And there were never any bruises.
I saw the black eye.
Um, I can't remember the explanation.
I saw that he had a...
um, a BB shot,
and I was told that that was
a kid in the apartment complex.
When you saw marks on him,
did you ever complete a body chart?
No.
Are you aware that there
are body charts to mark?
Mm-hmm. Yes.
Okay.
Her assessment of Gabriel
was just, like, flatly false.
This was a period when he was
barely showing up to school,
and she said that he had virtually
perfect attendance.
She said that the family was improving
and that the...
that Gabriel's risk was diminishing,
not increasing.
That she spoke to Isauro and she deems him
a very pleasant person.
This man presented himself
as an upstanding, caring
adult.
He had no criminal history.
He said all the right things and did
all the right things and I had no...
there wasn't anything
that was a red flag about him.
How many times did you have
individual interviews
with mother's male companion,
the boyfriend?
The first time I went there.
- The first time?
- Yes.
Okay. After that, did you have any
individual interviews with the boyfriend?
No.
Pat backdated the end date
for... the case.
So she... when she closed the case,
that actually happened in April.
But she marked down a date in March
so that she wouldn't be responsible for
any visits to the family
during that final month.
It was only a week after she learned that
Gabriel had written these suicide notes,
that she wrote down that there were
no safety risks to Gabriel whatsoever
and her recommendation was
to close the case.
Okay, so based
on your understanding of the family,
at the time this referral was closed,
did you feel that the family was
at moderate risk? At high risk?
At no risk?
I would say they were
at a moderate risk,
from the information that I had.
Clearly, some information
that I thought I had,
I did not verify, which was my problem.
Other than Patricia's
report to you
about how the family is doing,
were any other steps taken by you
to verify any of that information?
I don't recall
any steps I've taken.
I'm not a horrible, terrible
person and I did not hurt that child.
His mother and her boyfriend
killed him. I did not.
I had nothing to do with that.
I didn't miss anything.
And it... it...
breaks my heart, it... it...
rips me apart,
when people in the community call him
by his first name.
They did not know that child.
It's, uh, excuse me very much,
but why don't you crucify the person
that did this to him?
I don't have any control
over what goes on in that family,
because a social worker has
no control over what goes on in families.
My client supervised
over 180 children
and he spent his entire life
trying to prevent
what occurred on that day.
These... these social workers
really aren't villains,
they're really unsung heroes in this case.
What I saw, I think certainly
indicated that they shouldn't be with…
the Department of Children
and Family Services again,
but in terms of whether there was
a criminal act that occurred,
I'm just not in the position
to comment on that.
There are affirmative things
that they did to keep that kid
in an abusive environment
and it was, quite frankly, foreseeable
that kid was going to die.
The DCFS has had all kinds
of child deaths in the past
that have never been the subject
of criminal prosecution.
And it's easy to find scapegoats.
The public is clamoring for justice
to be done.
I'm really angry.
I'm really angry.
They should have done their job.
They had a job and their job was
to save a little boy.
I've always wondered
how many...
kids under their care
were overlooked.
How many kids besides Gabriel,
did they actually leave in an abusive
home and did not do their job.
And we will never know,
because they're not gonna come out
and say it.
Unfortunately,
Gabriel, my cousin...
had to die and suffer to make this, um...
make it a known case that, you know,
the social workers, the DCFS...
it has to change.
Following consideration
of the overall evidence presented,
this court concludes that for purposes
of the requisite burden of proof required,
that there does exist a strong suspicion
that the defendants' overall conduct
does support the charges pending
against them.
From the overall evidence presented,
there is a strong suspicion
that said conduct was reckless
and or criminally negligent.
The defendants' actions and/or inactions,
similarly demonstrated an improper regard
for human life,
or indifference to the consequences.
As such the defendants' motions to dismiss
are hereby denied.
That is the court's ruling.
Alright, thank you all.
- Thank you, Your Honor.
- You're welcome.
All four of them really
understood
thqt things were becoming
even more serious.
Nevertheless, they figured
there's one more thing we can do.
We can go to the Appeals Court
and ask them to reconsider
Lomeli's decision
about sending this forward to trial.
This appeal is really one of their last
chances to avoid facing the jury.
And now it's just a waiting game
to see what happens.
And everybody's in limbo.
The judge said that the actions
represented an improper regard
for human life.
How do you respond to that?
I don't believe that at all,
that's his opinion.
Uh, I have 24 years...
uh, working with children,
and...
I have always been a person
who has regarded human life.
What the Judge said was,
"there was failure here at every level."
Well, at every level means
there is failure here at a systemic level.
Uh, and that begs the question,
"Why are there only for social workers
being tried?"
Emily Putnam-Hornstein,
I am an associate professor
in the School of Social Work at USC
and director
of the Children's Data Network.
What was your impression
of the Gabriel Fernandez case?
I struggle with the Gabriel case.
It's absolutely heartbreaking, um,
as are, you know,
you know, other child deaths, but...
it's hard to understand some of the...
the decisions that were made.
Most of my research has focused
on using administrative records
to better understand maltreated children,
and children who are involved
with our child protection system.
There is a broad body of literature
that would suggest
that humans are not
particularly good crystal balls.
Instead, what we're saying is,
let's train an algorithm
to identify
which of those children fit a profile
where the long-arc risk would suggest
future system involvement.
People are using automated algorithms
everywhere, in all parts of life.
Most people are familiar with it
in their Facebook news feed,
how it ranks which of your friends' posts
you might find most interesting,
or on their Google Maps
when they're driving
and it sends them on some weird route
that the algorithm has decided is awesome.
But people don't realize
that they're also being used
in all sorts of high-stakes
human decision making.
I'm Marc Cherna,
The director of the Allegheny County
Department of Human Services.
In the 90s, in Allegheny County,
there were a number
of high-profile deaths.
The last director was,
basically, run out of town.
There were a lot of hearings,
a lot of demonstrations.
And we were looked at
as a national disgrace.
The problem that Allegheny County
was looking to solve was
that they were fielding
significant volumes of calls
to their child protection hotline,
and they were trying to figure out
whether they could use data,
to better understand which calls
they should screen in and investigate,
and which calls they could safely
screen out and not investigate.
We actually have around six
or seven million children
who are reported for alleged abuse
or neglect every single year in the US.
And, historically, the way that we have
made some of our screening decisions,
are just based on, kind of,
gut assessments.
Predictive risk modeling is saying,
"No, let's take a more systematic
and empirical approach to this."
- The worker gets the call.
- CYF Intake, may I help you?
The worker looks up the case to see
what records we have,
and get the history of that.
Do the children have any special needs?
And they will then press a button
and that will give them
the Allegheny Family Screening tool.
The Allegheny Family
Screening tool uses
a statistical technique
called data mining,
to look at historical patterns
in the data,
and use those historical patterns
when there's a new case,
to try to make a prediction
about what might happen
in the current case of a child or family.
Well, there's a hundred or so
different factors that are looked at.
Some basic examples are child
welfare history, parents' history,
certainly, drug use and addiction,
certainly, mental illness,
jail and convictions,
and especially if there are assaults
and things like that.
It's searching all of the data,
it's pulling that in,
and then the algorithm is applied.
They will see a number
from one to 20.
It's kind of a thermometer
in terms of what is
high risk, medium risk, low-risk,
in terms of that call.
I'm not sitting here and telling you
we can predict who's going to go on
to be abused and neglected.
We know that there is bias in our system,
we know that there are differences
in surveillance.
What we are doing here, is we are trying
to predict future system involvement.
I have no idea
how would a model have classified Gabriel.
We know that the risk assessment tool
that was filled out by workers,
was already indicating
that he was very high risk,
but all of the data
that I have worked with
and have seen, would suggest
that these algorithms are
unambiguously better
than human judgment alone
and are superior to tools that are currently being used.
But I've definitely heard from critics who
I truly do respect
that, ultimately, what we're doing
is creating
the equivalent of a nuclear weapon,
that can be used by the field at large.
Poor and minority communities
are over-represented
- in data collected by counties.
- Mm-hmm.
So if the data is already biased against
African Americans and other communities,
how do you create an analytics tool
that doesn't make the problem worse?
So, that is a very real
and legitimate concern.
For sure, there is bias
in our systems.
Child abuse, as seen by us in our data,
is not a function of actual child abuse,
it's a function of who gets reported.
We're very sensitive to that
and we are looking at our data
ongoing, in terms of seeing,
is this proportion growing
or being reduced?
And we have not found,
in effect, a disproportionality,
so far with this.
In Allegheny County, this system
is owned by the public,
but in a lot of places, these algorithms
are being run by private companies.
Is there a danger in these systems
being outsourced to private companies?
It's incredibly important
that these not be proprietary algorithms
or models.
I think they are built from data
that belongs to the public agencies
that are serving these clients,
in our community.
I do feel that's a kind of a fight
for this technology right now
by people who wanna use it
for their purposes,
which is not always for the public good.
It's like a black box.
They have no way to figure out
how they're actually deciding
a level of care that has a huge impact
on an individual.
Here, it's working.
Here, we are comfortable
with what we're doing.
Our ethical report is that it's unethical
not to try to keep kids safe
if you have tools to do that.
The software is ready.
They built it, they're ready to do it,
they're advocating for it and
it sure would save a lot of money, right?
And so we are coming up really fast
on these very important questions
that we need to address,
because, otherwise, we're all gonna be
answering to a machine,
and we're not gonna know
how it made its decisions,
and we're not gonna be able to hold it
accountable.
What I'm frustrated by is
the comfort so many have with criticizing
the child protection system.
But anytime a child welfare agency
attempts to innovate,
that quickly gets shut down
because people are more fearful
of the new thing
than they are of business as usual.
Today, possibly
an even more intense day,
as the two children took the stand
who witnessed the abuse,
Gabriel's older brother and older sister.
They were just 11 and 12
at the time of the abuse.
The first person on the stand was
Gabriel's brother, Ezequiel.
Details today about
how an 8-year-old Palmdale boy was killed
from someone who says
he saw it happen, his brother.
No cameras allowed
in the court today,
as the older brother of Gabriel Fernandez
took the stand.
He's now 16 and was identified
only as Ezequiel.
...should be a lot quicker.
Okay, good. So you're gonna have
Deputy McCarthy wrap it up with him?
- And then you're gonna have the children?
- Just the two children
- Who's first?
- Uh, Ezequiel.
Okay. We're gonna have...
the jury's probably close to being here,
let's take a break and then, uh,
we'll start. All right?
Very good.
Ezequiel is,
uh, Gabriel's older brother.
Virginia is
Gabriel's older sister.
Uh, they were the two children
who were living with Gabriel at the time,
with both defendants, who also witnessed
the last beating on, um...
at the end of Gabriel's life.
Both were called to testify
during the trial.
I'm a retired professor
and associate dean,
also retired psychotherapist.
In my psychotherapy practice,
that I had for 40 years,
I saw and treated many survivors
of sexual abuse and child abuse.
We showed you
some of the videos of…
Ezequiel and Virginia being questioned
by the detectives.
What was your impression of that?
What I saw, in both cases was, you know,
the initial attempt to hold up
the facade,
and then the gradualunburdening,
you know, and crumbling of that,
to reveal two frightened...
children.
Can you tell me what a truth is?
Can you define that word truth?
It means that you're telling
the real thing,
and not the thing
that you don't wanna say.
Okay. What about a lie?
What does a lie mean?
A lie means that you're not telling
the truth and
you're saying another thing that's
not the word that you want to say.
The experience of witnessing
Gabriel's abuse,
and of having to lie about it,
and of their own fears of their parents,
it's just an enormous burden.
Enormous.
When's the first time that you saw
something really bad at home
happen to Gabriel?
Um, I've seen him
pick Gabriel up and choke him.
Okay, so is Gabriel standing up?
- Yeah.
- And Tony picks him up how?
Like...
You can stand up and show me, that's fine.
He would pick him up... like, he'd have him
right here and then he'd have him up there
- 'cause he was tall, so...
- Okay, so he put him against the wall?
- Yeah.
- And would he hold
his hand against his neck?
- Yeah.
- One hand or two?
One.
- One hand?
- Yeah.
- And would him pick him up off his feet?
- Yeah.
Like how high off his feet?
I think, like, his feet would be,
like, up here.
- His feet would be up there?
- Yeah.
Gabriel used to cl... clean
the kitty litter.
- Okay.
- And Gabriel used to say he was done,
so my dad would go check
and the whole kitty litter was peed on.
Tony would say, "Pick it up right,
or I'll make you eat it."
Mm-hmm.
And what did Gabriel do?
When Gabriel didn't pick... when Gabriel
didn't pick it up right,
he said, "Get in this corner and eat it."
Really?
Did he eat it?
He had to.
None of us knows
how to really think about that.
That you could do this to a child.
Your child.
Or any child.
One of the most moving days
of the trial,
was when Ezequiel and Virginia
came into the courtroom.
There were no cameras allowed
in the courtroom,
because they're minors,
but we did get the transcripts
of what happened.
This is prosecutor Jon Hatami
interviewing Ezequiel,
Gabriel's older brother.
"Do you remember where that box was at?
In my parents' room.
And do you remember
if Gabriel would be in that box a lot?
Yes."
Exhibit number seven, they brought in
the box into the courtroom,
and one thing that was also memorable
about the box or what stuck in my mind,
is that it had all these little tickers
of tape on it to mark
where his bodily fluids were.
"So, I noticed you had two,
two beds in your room, right?
Yes.
But Gabriel still stayed in that box
most of the time.
Yes.
He slept in that box.
Yes.
Even sometimes during the day?
Yes."
And then again later on.
"Do you remember
how they put him in there?
They put him in with handcuffs.
Were the handcuffs, were they on him,
or were they on the outside?
On the outside.
So, the two little metal handles?
Yes.
Did they do anything to keep him talking
or from saying things?
They wrapped a bandana around his mouth.
I'm sorry, they wrapped a what?
A bandana.
Okay.
Did they put anything in his mouth?
Sometimes a sock.
How did Gabriel go to the bathroom?
Inside the box.
Was Gabriel ever made to clean up?
Yes.
Did the defendant make him clean it up
sometimes?
Yes.
Would the defendant, kind of,
hide him in there sometimes?
Yes.
Who was he hiding him from,
do you remember?
Social workers, when they would come over.
So sometimes when social workers
came over,
the defendant would put him in there
and kind of hide him, gag him?
Both him and my mom.
Both your mom and the defendant?
Yes.
Was Gabriel hungry?
Yes.
You tried to give him a banana?
Yes.
Was Gabriel hungry a lot of times?
Yes.
Did you try to give him the banana
when he was in the box?
Yes.
So even though the handcuffs were
on the box,
were you able to get a bit of space
in there to squeeze in the banana?
Yes."
I knew the case
was...
a really serious case of child abuse,
but it really wasn't until I got
all of the evidence,
that I realized how egregious
the case was.
Especially, hearing the testimony
of Ezequiel and Virginia.
I think then...
it probably hit me more.
"How were Gabriel's
teeth knocked out?
With a bat.
My mom hit him with the bottom side
of the bat in the teeth,
and, you know, they got knocked out.
Was he crying?
Yes.
Was he on the ground?
Yes.
Did they take him to the doctor
or the dentist?
No. Ever? No.
Ezequiel, what's that?
Pepper spray.
Whose was that?
My mom's boyfriend.
So the defendant?
Yes.
One of the things
for being a security guard?
Yes.
Did he ever do anything with that,
that you remember?
Yes.
Can you tell the jury what you remember?
Uh, I remember them both, my mom
and her boyfriend, putting Gabriel
inside the bathtub and my mom's boyfriend
spraying him in the face
with pepper spray.
What did Gabriel do?
He started crying and trying to get out
of the restroom.
Was he able to get out?
No, they had locked the door.
Did they ever call him gay?
Yes.
Mom or the boyfriend or both?
Both.
Did the boyfriend call him gay a lot?
Yes.
So...
sometimes the defendant would put makeup
on his bruises. Yes.
Sometimes the defendant would put Gabriel
in a cold bath
to help get bruises to go away. Yes.
Was Gabriel cold?
Yes.
Was he ever put anywhere
after the cold bath?
Inside the Box."
Hearing about from the children,
strikes me to the core.
That really helps parse out
what exactly took place,
in that apartment.
"Okay, in your own words,
the best that you can,
can you tell the jury what you remember
happening that night?
I just came home from playing outside
and I walked to the house,
and I see my mom, Virginia
and Gabriel inside Virginia's room.
And then they were arguing
about something.
I think I remember that my mom got mad
because Gabriel was playing with Virginia,
with the toys, and then she got mad,
and started hitting him in the face.
She dragged him into a room,
and then that's when my mom's boyfriend
went to the room and they closed the door.
And then I was hearing screaming
and a lot of banging.
And then my mom came out,
I was scared.
And, um, she told me to tell the police
or the paramedics
that me and Gabriel were playing,
and that he hit his head and that's it."
Gabriel's sister then goes
on the stand.
"I was sitting on the edge of the bed
and my mother's boyfriend
was punching him.
Was there a point
where he didn't get back up?
He knocked the air out of him,
and he fell over
and he didn't get back up.
Nothing further.
So they picked him up.
Nothing further, Your Honor.
Are you finished?
They threw him in the shower,
and he kept on yelling at him to wake up,
and when he didn't wake up,
my mother decided to call the police.
And she told me to grab a rag,
and we cleaned up all the blood
that was on the floor.
Did you say nothing further?
Nothing further."
We'll never know,
really what Gabriel went through.
I don't know how you...
I don't think we'll know.
I didn't see any emotions
from Isauro Aguirre.
He sat there stoic and he stared
completely forward.
I didn't see a single tear drop
when Virginia testified,
about the amount of blood,
about the kicking and the punching.
I think that during that time there...
everybody in the courtroom
was emotional and he sat there.
Um...
I don't know how a reasonable person
can sit there and not feel anything,
but apparently he was able to do that, so.
Ezequiel and Virginia seem to have
now found some degree of safe harbor
in their uncle.
What does that stable home mean for them
and their future?
That's everything.
I mean, we all need that.
I mean, I'm so glad that they have him.
You have to have that
to be able to resolve
any of the rest of it.
If you don't have that... you can't.
But now having a kind of holding
environment that is benign,
and trustworthy,
it means everything.
And I hope that they will be able
to recover.
You know, I think they can,
but it will be a long process.
I mean, these are
terrifying experiences.
Terrifying.
And to feel in any way
implicated also,
it's just very tough.
One of the most important aspects
in recovering from trauma,
that's abuse trauma,
is moving it outside of yourself.
That is, it's not something about you,
it's not something you did,
it's something that happened to you.
And I think that shift is
the most important
kind of juncture toward healing.
I know I did something
to Gabriel.
What did you do to Gabriel?
I never went to go see him
or tell him I was sorry.
To tell him you were sorry?
Why were you gonna tell him that?
Because...
because
every time we would play together,
I would always tell him
that he can't play with me.
Why? Why couldn't he play with you?
Because every time he wanted to play
with me, I was with my friends.
And so that's what you did bad to him?
Because you didn't wanna play with him?
He always stayed in the dark
with no one.
He stayed in the dark where?
Inside my mom's room.
I'm gonna tell you this,
Because you're gonna talk,
you're gonna talk to all kinds of people.
You already have.
Would you say you've already had to talk
to a bunch of people in two weeks, right?
You... you're gonna be talking
to more people, okay?
But this is something...
the reason this is what I'm saying,
eye-to-eye with you,
is so important,
is I'm the policeman,
who's investigating the whole case.
I'm the guy in charge.
Okay? From the guy in charge,
I'm telling you,
none of this was your fault.
None of it.
- Do you believe me?
- Yeah.
I want you to believe me.
That's the guy in charge.
So you can hear
from a lot of different people about...
this and that and the other thing.
But when you go to bed at night,
I want you to try to remember,
the head guy told me, it's not my fault.
Okay?
'Cause it's not.
Nothing that happened
and nothing that you were told to do,
nothing that they made you do,
is your fault.
And I want you to believe that.
Okay? You're a good... you're a good guy.
All right.
And we're gonna work through this.
All right?
Okay.
Any questions?
- No
- Okay.
I think it's dinnertime.
What do you think?
Okay, come on.
♪ Every age ♪
♪ Has its turn ♪
♪ Every branch of the tree ♪
♪ Has to learn ♪
♪ Learn to grow ♪
♪ Find its way ♪
♪ Make the best of this
Short-lived stay ♪
♪ Take this seed ♪
♪ Take this spade ♪
♪ Take this dream of a better day
♪ Take this mind ♪
♪ Take this pen ♪
♪ Take this dream of a better land ♪
♪ Take your time ♪
♪ Build a home ♪
♪ Build a place where we all ♪
♪ Can belong ♪♪