After he was fired from the Davidson County District Attorney's office Tuesday afternoon, longtime prosecutor Brian Holmgren called up the Scene and disputed just about everything that led to his ouster. Including what exactly led to it.
Holmgren confirmed that he had been fired but said it was not connected to the case of Jasmine Randers, recounted in a recent piece by The Tennessean, in which Holmgren reportedly made sterilization a part of plea negotiations. He would not elaborate further.
"Suffice it to say that what you need to know is there is a fundamental difference of opinions in how to handle cases in our unit between myself and [District Attorney Glenn] Funk," Holmgren said.
Funk's office confirmed to the Scene Wednesday through spokeswoman Dorinda Carter that a review of Holmgren's division found more than 130 child abuse cases that had not been prosecuted. The office would not say whether that was the reason for Holmgren's firing.Â
During his conversation with the Scene, Holmgren sharply criticized the Tennessean story, disputed the nature of how sterilization was brought up in plea negotiations with Randers and other defendants, and ultimately defended probation conditions like mandatory birth control and discussions of sterilization in certain contexts.
In decades as an assistant district attorney — including some 15 years in Nashville, during which he led the child abuse unit in the DA's office — Holmgren has earned a reputation as a uniquely aggressive prosecutor. That has made him a polarizing figure in legal circles. While colleagues have defended his approach as the righteously vigorous style of a man often faced with individuals who have committed heinous crimes against children, critics on the other side of the bar have described him as a "zealot" whose prosecutions can bring about human collateral damage.
Those criticisms were aired in a Scene cover story last year about a tangled child neglect case Holmgren prosecuted (see "Legal Limbo," Aug. 28, 2014). His work has been under renewed scrutiny this month after the aforementioned Tennessean story and another by the Associated Press last weekend, which reported Holmgren had used sterilization as a part of plea negotiations in at least three more instances in the past five years.
In the wake of those recent stories, Funk has banned the practice.
Holmgren takes a different view. He argues that while courts cannot order a defendant to be on birth control or have a procedure that would prevent them from being able to get pregnant, there are still "a multitude of cases" in which "one of the few means by which we can ensure safety of not only unborn fetuses but potential live births is to in fact have probation conditions that will either involve the use of contraceptives or the potential for not having to rely on contraception — i.e., sterilization in some form or another."
In those instances, he says, it is appropriate for mandatory birth control or sterilization to be a part of the discussion in one way or another. He insists that the Randers case was one such instance.
The story is certainly a tragedy from any vantage point. Randers was charged with aggravated child neglect after the mysterious death of her 5-day-old baby girl. She walked into a Nashville hospital carrying her dead baby, and would later say that she had fallen asleep in bed with the child and awoke to find her unresponsive. She was later found not guilty by reason of insanity after Funk removed Holmgren from the case and agreed to a deal with Randers' public defender, Mary Kathryn Harcombe.
But Holmgren criticized The Tennessean for omitting certain facts that he said would have further illuminated her mental health troubles and put his approach to the case in a more proper context. The paper does note Randers' history of alcohol and drug use, along with the fact that "she has been committed to mental health treatment programs more than 20 times."
Holmgren seized upon the omission of a 2004 incident, however, in which Randers stabbed herself in the stomach while pregnant but managed not to harm the fetus. Holmgren said she was placed in a mental health facility as a result, and that the child was removed from her care after birth. (The stabbing incident was included in the AP's report, which Holmgren said he hasn't read.)
"The likelihood that she would get pregnant again is high," he said. "The likelihood that she would follow through on her court orders for medication is very, very low. And we already had two situations that suggest this was a significant risk. I wasn't willing to create a scenario that offered a third."
When contacted by the Scene, Tennessean news director and executive editor Maria De Varenne said, "We are not aware of any omission that would have changed the premise of the story, which focused on a case that involved proposed sterilization and that was confirmed by the DA himself."
Nevertheless, Holmgren takes issue with what he describes as the story's false premise: that Funk intervened and removed Holmgren from the case because of his discussion of sterilization. The story's introduction does suggest this as one of Funk's primary motivations, but it also notes that Harcombe had gone over his head directly to Funk about the case, a fact Holmgren doesn't dispute. He says Funk removed him for refusing to follow the DA's order to try it as a bench trial in front of a judge, as opposed to a jury trial.
But Holmgren's use of sterilization as a part of plea-deal discussions in the case raises a number of questions. The procedure's history in America is a dark one, dating back to eugenics programs in the early 20th century targeting those with disabilities. The idea of using it in negotiations with a defendant is all the more questionable when the individual has a history of mental illness, as Randers does.
Harcombe told the Scene that she's had cases where clients had 13 or 14 kids, but Randers was only on her second pregnancy and that she had the same father for both. Her client is mentally ill, she said, but she's handled cases that were far more severe.
"Even in those cases, it's not OK to require sterilization," Harcombe said, "because as much as we would like to say, 'Look, you need to stop having kids,' unfortunately it's just not OK to kind of coerce an invasive procedure."
Asked about Harcombe's assertion, reported by The Tennessean, that insisting on sterilization as a prerequisite for plea bargaining is "inherently coercive," Holmgren rejected the notion.
"Her choice is whether to enter a plea that involves certain conditions of probation or exercising her right to trial and having the jury or a judge decide whether or not she's guilty of a crime," he said. "A defendant is not entitled to have a plea bargain in the first place."
While he doesn't deny discussing sterilization, Holmgren disputes the way those discussions were characterized by Harcombe. The defense attorney is cited by The Tennessean saying that "Holmgren would not discuss a plea deal unless Randers agreed to get her tubes tied." Holmgren said that's not accurate.
"It would be an accurate statement to say that our office, or me personally, did not feel that Ms. Randers was an appropriate candidate for an alternative sentence of release in the community unless she could no longer have children," he said.
Assistant public defender Joan Lawson told the AP that in her experience, such discussions were typically off the record and without an explicit demand.
"It's always been more of, 'If your client is willing to do this, then I might be inclined to talk about probation,'" Lawson told the AP.
In this instance, Harcombe said, it was a plea deal for release, and that's the key distinction.
"He was willing to make her an offer that would send her to prison, and I did not believe that this was a case that in anyway merited prison or in any way made sense for this woman,"Â she said. "It's not that he wouldn't do any plea discussion, it's that he wouldn't discuss alternative sentence."Â
Harcombe said that in the past four or five years it had become "rather commonplace" for Holmgren to request sterilization, but that the Randers case was the most explicit she had experienced.
Holmgren, for his part, says he has never mandated such a procedure as a condition of a plea deal. But has the possibility been raised? At a different point in his discussion with the Scene, Holmgren put it this way:
"I can't remember a single case in which [sterilization] has been something that I've stipulated as part of a plea discussion. Have I talked to attorneys about whether or not their clients want to undertake that procedure which would relieve them of the condition of being on birth control? Yeah, we've had those discussions."
To some, those two versions of the discussion might seem effectively the same. But Holmgren insists they're not.
"It's the difference between whether or not a woman wants to be on a term or condition of probation that would involve them having to be on birth control and monitored for that versus having a procedure which makes that no longer an issue," he said.
Ultimately, while maintaining that he had not made sterilization an explicit condition for plea bargaining, he defends making birth control a mandatory condition of probation.
"I don't know of any other method to ensure that we're not repeating the same tragedies over and over and over again, when women had track records that demonstrated those issues," Holmgren said. "You can come look at any of those files that involve drug-exposed fetuses, and the vast majority of them had two, three prior episodes of the exact same thing, and you can look at all the statistics about the health care costs, the foster care costs, and the long term consequences of that and ask: Is that an appropriate condition of probation?
"And I will argue vehemently that absolutely, having people on birth control in those circumstances is an appropriate condition of probation if they want to be out in the community."
And sterilization?
"If the woman chooses to have that procedure done because she feels it's in her best interest to do that, she doesn't want to have more children, that's an appropriate thing for her to do," he said. "But I can't remember a single case where that has been a proposal that we made that the only way you're going to get probation is if you have a tubal ligation."
But only minutes later, he seemed to suggest again reasons to use a certain amount of pressure on certain defendants to accept sterilization in exchange for plea deals. He cited perhaps the most well-known example of offenders who live within certain constraints even after the criminal justice process. Â
"Sex offenders have tons of additional conditions on them in probation than do regular probationers," he said. " ... So we're in the business of trying to protect the community and in certain instances, standard conditions of probation are not sufficient to ensure that. Either the defendants are going to volunteer to take the next step to ensure that or give us that insurance, or they're not, and that's their choice."
He pointed to chemical castration as a close analogue to sterilization that is used with sex offenders in some states. It is also highly controversial, with civil rights groups like the American Civil Liberties Union lobbying against it as a form of cruel and unusual punishment.
With Holmgren gone, Nashville's DA's office says it won't be using sterilization as a bargaining chip going forward. Asked earlier Tuesday whether the DA planned to investigate the instances revealed this month and attempt to determine whether there were others, Carter told the Scene that Funk was "conducting a review to try to determine what offers were made and and why they were made."
"He believes there is no adequate justification for sterilization as an option in plea negotiations," Carter said.
