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State responds to sanctions motion in Bowling Brook case

A motion to have sanctions placed upon the Carroll County State's Attorney's Office is baseless, according to the state's response to a request made earlier this week.

On Tuesday, defense attorneys for five former staffers at Bowling Brook Preparatory School charged in the 2007 death of a student, 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 include the dismissal of charges against all the defendants.

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

Former counselors 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 manner after Simmons became unresponsive.

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The state has complied with all of the requirements for disclosure of evidence in accordance to state law, the response filed Friday in Carroll County Circuit Court said.

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.

The autopsy was performed Jan. 24, 2007, at the Office of the Chief Medical Examiner in Baltimore.

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, according to the defense motion.

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The state 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, the state wrote.

On Jan. 3, 2008, Carroll County Circuit Court Judge Michael M. 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 has made discovery in the case available on May 29, 2007, which included the autopsy report of Simmons, and has since made multiple attempts to help the defense obtain the specific evidence requested, according to the state's motion.

On Wednesday, the state called the Office of the Chief Medical Examiner medical records office to "further attempt to assist Ms. [Kathi] Hill in the defendants' duties to obtain the slides," and the defense will receive the slides on a CD in a couple of weeks, according to its response.

Hill is the defense attorney for Kanavy.

The defense wrote: "...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 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 state wrote that the defense has not acted in good faith in filing the motion for sanctions, has not requested the "cuttings" from the state since September 2011, and should have filed a motion to compel discovery before filing for sanctions.

The defense wrote: "The state has continuously, over the period of substantial time, stonewalled the defendants' request for the production of what has been required and what has been ordered by the court.

"The history of this case has shown that the state does not intend to comply with the defendants' requests, demands, and the court's orders, and any further attempt to address this matter other than sanctions would be fruitless."

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