By By Steve Kilar, Arthur Hirsch and Scott Dance and The Baltimore Sun
Mar 28, 2012 | 9:59 PM
Carroll County prosecutors have dropped reckless-endangerment charges against five former juvenile facility staff members in the death of a Baltimore teenager because the main detective on the case is being investigated for perjury.
"It's devastating right now," said Felicia Wilson, the mother of Isaiah Simmons III. The 17-year-old died in 2007 at Bowling Brook Preparatory School, a facility for juvenile offenders in Keymar. The five defendants, whose trial was scheduled for May, were accused of pinning Simmons to the floor and delaying calls for help.
"We've been fighting this battle for the last five years," said Wilson, who is grandmother to a child Simmons fathered before being sent to Bowling Brook. "Going into a sixth year, no justice has been done or served."
The case against the counselors was dismissed by a Carroll County judge a year after the incident but was resurrected by the state's highest court two years ago. The state's attorney's revived allegations hinged on the timing of events on a January evening when Simmons was restrained, face-down, for hours.
In a brief court hearing Wednesday afternoon, Carroll County State's Attorney Jerry F. Barnes said the decision to drop the reckless-endangerment charges had been made for several reasons, but "the straw that broke the camel's back," was the questionable credibility of a key witness, Carroll County Sheriff's Office Detective Douglas Epperson, the lead investigator.
Prosecutors conceded that they lacked other credible witnesses. Some of the youths who said they saw Simmons die have since been accused of felonies, including rape and armed robbery. Other witnesses have moved and could not be located.
Prosecutors said they began having doubts about Epperson's credibility months ago as events unfolded in an unrelated first-degree murder case. They said Epperson is being investigated for perjury in testimony in a case involving Russell Scott Laderer Jr. and Cassandra Glover, accused in the stabbing death of Jeremiah DeMario in Hampstead. Questions about his credibility arose in connection with conflicting statements Epperson made under oath in several pre-trial hearings in that case.
He did not return a call Wednesday evening.
"Ethically, we do not have a sufficient degree or amount of evidence to go forward," Barnes told Circuit Judge Michael M. Galloway.
Barnes, who has been a prosecutor for more than 35 years, said dropping charges because of investigator misconduct is rare. He recalled that several cases had to be dropped in the mid-1990s because a police officer was accused of planting evidence, but he said he could not recall it happening in Carroll County since.
In an interview after the hearing, Deputy State's Attorney Allan J. Culver said Epperson was key to the Simmons case because on the basis of his interviews with defendants and others, he would have been able to establish the sequence of events leading to Simmons' death.
Prosecutors charged that Simmons died after being subjected to "various types of restraint" by staff members over three hours and in several locations on the Bowling Brook campus, both outdoors and indoors, from about 5 p.m. to 8 p.m. on Jan. 23, 2007, Culver said.
Culver said prosecutors charged that staff members did not call an ambulance until 41 minutes after Simmons lost consciousness.
He said that the case for reckless endangerment depended on proving that it was "apparent to [the defendants] that they should contact 911." Epperson's testimony was crucial evidence, he said.
The state medical examiner ruled the death a homicide. An exact cause of death was never found, although the examiner found "possible positional asphyxia," meaning the teenager's breathing could have been impaired by the position of his body at some point.
Simmons was pronounced dead that night at Carroll Hospital Center, Culver said.
The Simmons case "has always been an uphill battle," he said. In trying to bring a criminal prosecution against Bowling Brook staff members for failing to call an ambulance in time, prosecutors were working in an area of the law "that had never been ruled upon before."
The indictment for reckless endangerment was challenged by the defense and the case against the five men was dismissed. The dismissal was backed up by the Maryland Court of Special Appeals, but the state's highest court overturned those rulings and sent the case back to Circuit Court for trial.
Even if the trial had gone forward, Simmons' family questioned the state's attorney's choice of charging reckless endangerment, which only carries a maximum penalty of five years' imprisonment.
"We were never happy with that charge on its own," Danielle Carter, Simmons' sister, said Wednesday. "To now say they won't even have to face that is just ludicrous. These guys have been free since the day he died, and they continue to be."
Barnes expressed condolences to Simmons' family in a statement, telling them they "deserve a more satisfactory outcome."
Wilson and her family, including Simmons' daughter, Shakyia, plan to mark what would have been Simmons' 23rd birthday May 15 by sharing dinner and releasing balloons, as they have every year since he died.
Barnes encouraged Simmons' family to take solace in the fact that Simmons' death resulted in changes to the oversight of private schools for juvenile offenders. Bowling Brook was closed weeks after Simmons' death and has since reopened under new leadership as Silver Oak Academy.
After Simmons' death, the state Department of Juvenile Services banned what is known as prone restraint, which places the person face-down on the ground. It also increased staff assigned to checking up on privately run facilities like Bowling Brook and the frequency with which the staff visited the facilities, department spokesman Jay Cleary said.
The five men facing charges were Jason Willie Robinson of Springfield, Va.; Mark Richard Sainato of Gettysburg, Pa.; Brian Gerard Kanavy of Mechanicsburg, Pa.; Dennis Harding of Baltimore; and Shadi Sabbagh of Germantown.
Timeline of Bowling Brook reckless endangerment case
Jan. 23, 2007 —
East Baltimore teen Isaiah Simmons III dies after being restrained at the Bowling Brook Preparatory School near Westminster in Carroll County. Simmons, 17, was placed at the school after being found responsible for an armed robbery. Within several days, at least four students come forward and tell authorities they witnessed school staff sit on the boy, who was face down, and restrain him on the floor for hours.
Jan. 30, 2007 —
Maryland Department of Juvenile Services releases a report that concludes school staff delayed administering CPR or calling for an ambulance because they believed he was pretending to be asleep.
March 2007 —
The 50-year-old Bowling Brook Preparatory School is closed. Maryland's medical examiner rules Simmons' death a homicide.
April 2007 —
Six former staff members of Bowling Brook are indicted by a Carroll County grand jury in connection with Simmons' death. All are charged with reckless endangerment.
Jan. 25, 2008 —
Charges are dropped against one of the six men charged after the state's attorney determines that the man was not present during the incident.
Jan. 29, 2008 —
A judge dismisses the charges against the five other staff members. The judge concludes that a failure to call for help does not constitute reckless endangerment. The state files an appeal.
May 15, 2008 —
Simmons' family files a civil suit, for negligence and wrongful death, in federal court. This suit was later dismissed by the family and another civil suit was brought in Baltimore City Circuit Court.
— The family's case against the school and the Department of Juvenile Services is settled for $1.2 million.
Sept. 21, 2010 —
The Maryland Court of Appeals, the state's highest court, overturns lower court rulings and concludes that reckless endangerment "includes the willful failure to perform a legal duty." Prosecution of the five former staff members resumes in Carroll County.
Carroll County state's attorney decides to drop the reckless-endangerment charge against the five men, citing witnesses' loss of credibility and availability and the trial court's restriction on evidence the state could use at trial.