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Bowling Brook: Motion filed for sanctions against state

Defense attorneys for the five former staffers at Bowling Brook Preparatory School charged in the 2007 death of a student jointly filed a motion Tuesday for sanctions against the Carroll County State's Attorney's Office.

The sanctions have been requested as a result of the state's inaction, failure and refusal to disclose certain evidence in the case, according to the motion.

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The motion comes weeks before the trials are set to begin for the five former staff members charged in the death of 17-year-old Isaiah Simmons III.

On Jan. 23, 2007, Simmons became unconscious and died while being restrained by staff at Bowling Brook, a juvenile facility in Middleburg.

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

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. In the motion, the defense stated that it has not received the evidence despite various attempts and a court order.

The cuts are microscopic slides of tissue from various organs recorded by the medical examiner during an autopsy.

The Simmons autopsy was performed Jan. 24, 2007, at the Office of the Chief Medical Examiner in Baltimore, according to Kathi Hill, defense attorney for Kanavy.

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On Jan. 3, 2008, Carroll County Circuit Court Judge Michael M. Galloway ordered that the custodian of records from the Office of the Chief Medical Examiner shall provide the cuts and re-cuts of Simmons to the defendant's expert witness.

The defense wrote: "The information and evidence which would be gleaned from the production of the evidence by the state to the defendants' expert and the examination by the defendants' expert may be crucial to the defense.

"That at this point in time, with such a short time between the filing of this motion and the trial dates, even if the cuts and re-cuts were to be produced by the state and sent to the defendants' expert, there would not be enough time for the defendants' expert to conduct a proper examination."

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

The motion asks for sanctions to be granted against the state, which would include the dismissal of the cases.

The motion also requests that the court grant other sanctions including prohibiting the state from calling as a witness any expert witness from the Office of the Chief Medical Examiner or any other medical expert witness.

Assistant State's Attorney Allan Culver said the state is willing to cooperate and provide any information the defense wants from the Medical Examiner's Office. He said the state has contacted the Office of the Chief Medical Examiner and has tried to assist the defense in receiving the information.

Culver said this isn't a case of trying to withhold information from the defense, and he is confident the defense will receive the requested information.

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, 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 last hearing in the case was held June 21, 2011 in Carroll County Circuit Court.

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