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Bowling Brook charges dropped

Charges were dropped against the five former counselors of Bowling Brook Preparatory School for their role in the 2007 death of a 17-year-old there.

On Jan. 23, 2007, Isaiah Simmons III died while being restrained by staff at Bowling Brook, a former juvenile facility in Middleburg.

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Former counselors Brian Kanavy, Shadi Sabbagh, Mark Sainato, Dennis Harding and Jason Robinson were charged with one count each of reckless endangerment on charges they failed to call 911 in a timely manner after Simmons became unresponsive.

The Carroll County State's Attorney's Office dropped the charges Wednesday in Carroll County Circuit Court, citing the inability of the state to call the lead investigator, Det. Douglas Epperson of the Carroll County Sheriff's Office, as a witness in the case being "the straw that broke the camel's back."

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"The decision not to proceed with these cases was a gut-wrenching one," Carroll County State's Attorney Jerry Barnes wrote in a prepared statement.

"We reviewed all possible witness statements, admissible evidence, legal rulings and credibility of witnesses before making this determination. In the end, the inability of Det. Epperson to be called as a witness proved to be the final straw in an already difficult and uphill battle."

On March 12, the state notified the sheriff's office in a memorandum that due to the "unfortunate resolution of the Laderer and Glover cases" the state was no longer in a position to utilize the in-court testimony of Epperson.

That same day, the state dropped charges against Hampstead couple Russell Scott Laderer Jr., 24, and Cassandra Glover, 21, who had been charged with the Sept. 13, 2010 murder of their neighbor Jeremiah DeMario.

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The dropped charges came after conflicting testimony was given by Epperson and his commanding officer Maj. Nicholas Plazio in suppression hearings for the cases. No charges have been filed against Epperson or Plazio, though separate internal investigations are being conducted by the Office of the Maryland State Prosecutor into the allegations of misconduct at the sheriff's office and state's attorney's office.

Clarke Ahlers, attorney for Epperson, said that he was in the dark about Wednesday's decision and said that he has tried to contact Barnes several times about the case but hasn't received a call back from him.

Barnes is running for cover and placing blame where it doesn't belong, Ahlers said.

"This is an example of a prosecutor with a political agenda blaming a hardworking detective for his offices' mistakes," Ahlers said.

Ahlers is a candidate for judge for Howard County Circuit Court in the upcoming April 3 primary election.

Barnes detailed other factors as to why the decision was made to dismiss the charges, stating that several of the state's witnesses, who attended Bowling Brook at the time of the incident, have incurred serious impeachable adult felony convictions since the event more than five years ago.

Barnes said that the defense would use the offenses against the witnesses to damage their credibility.

Also, other state witnesses have since moved from the area and some are no longer able to be located, Barnes said.

"My heart goes out to the family of Isaiah Simmons. They deserve a more satisfactory outcome to these cases," Barnes wrote.

Simmons' family met with the state's attorney's office Tuesday, when they were told of the state's decision to drop the charges. The family feels they have been done a great injustice by the state's attorney's office.

Danielle Carter, Simmons' sister, said they have been unhappy with the state's handling of the case from the onset, and can't understand its rationalization for dropping the charges.

"We we're never happy with the reckless endangerment charges from the beginning, but at least it was something," Carter said. "Now not to move forward in the case is ludicrous."

"They didn't endanger his life," she said. "They took his life."

Epperson hasn't been charged or convicted of any wrongdoing, so to throw the whole case away due to allegations doesn't add up, Carter said.

"It seems awfully convenient to use the detective all of a sudden as to why they're dropping these charges," Carter said.

The state, however, felt it couldn't proceed with its prosecution.

"Unfortunately, because of the above enumerated issues, it is our belief that these cases cannot be successfully prosecuted. The state has the burden of proving each and every element of reckless endangerment against each defendant. We do not believe we can do that against any of them," Barnes wrote.

Charges dropped for third time

The charges against the defendants were first dismissed in 2008, but were reinstated in 2010 after a ruling from the Maryland Court of Appeals.

On Jan. 29, 2008, Carroll County Circuit Court Judge Michael M. Galloway dismissed the charges against the five counselors. The Maryland Court of Special Appeals upheld the decision Aug. 10, 2009, but in September 2010, the Maryland Court of Appeals ruled 6-1 to reinstate the charges against the five defendants.

On May 15, 2008, the Simmons' family filed a $207 million lawsuit against Bowling Brook and the Maryland Department of Juvenile Services, among others. The case was later settled out of court.

Bowling Brook Preparatory School closed March 9, 2007, a little more than two months after the death of Simmons.

On Feb. 28, 2009, the Department of Juvenile Services approved a proposal by Rite of Passage, a Nevada-based company, to operate a juvenile facility on the old Bowling Brook campus. The Silver Oak Academy opened in July of that year.

The trials for Sabbagh, Sainato and Harding are scheduled to begin May 7. The trials for Kanavy and Robinson are scheduled to begin May 21.

The last hearing in the case was held June 21, 2011 in Carroll County Circuit Court, though there have been motions filed from both sides related to the discovery of evidence.

The battle over evidence

Last week, defense attorneys for all defendants filed a motion for sanctions to be levied upon the state's attorney's office for its failure to disclose certain evidence in the case. The sanctions included the dismissal of charges against all the defendants.

According to the motion, the defense has been attempting to obtain full discovery of evidence of "cuts and all other necessary specimens/evidence" since 2007 from the state or Office of the Chief Medical Examiner and has not received the evidence despite various attempts and a court order.

The evidence at question is microscopic slides of tissue taken from various organs of Simmons, which were recorded by the medical examiner during his autopsy performed Jan. 24, 2007, at the Office of the Chief Medical Examiner in Baltimore.

On Jan. 3, 2008, Galloway ordered that the custodian of records of the Office of the Chief Medical Examiner shall provide the cuts and re-cuts of Simmons to the defendant's expert witness.

The state responded to the motion for sanctions March 23, stating the claims were "baseless" and the defense has "not acted in good faith in requesting sanctions."

The state wrote that has complied with all of the requirements for disclosure of evidence in accordance to state law, that the defense has not "acted in good faith" in filing the motion for sanctions, and has not requested the "cuttings" from the state since September 2011.

The state also wrote that it is not in possession of the evidence and the Office of the Chief Medical Examiner is an independent agency and is not covered under discovery obligations.

On Tuesday, Galloway issued a ruling that denied the defense motion for sanctions, one day before the state dropped the charges against the defendants.

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