Prosecutor says JCPS failed autistic boy whose legs were broken. But he won't seek charges

Jefferson Commonwealth's Attorney Tom Wine will not seek charges in the case of a teenage boy with autism who suffered two broken legs in a staff restraint at a Jefferson County public school, saying a second police investigation did not find evidence of a crime.

But Wine offered pointed criticism of both Louisville Metro Police and staff at the Binet School for disabled children for failing to respond appropriately and promptly to the 2014 incident that left Brennan Long, then 16, in critical condition with two shattered femurs.

In a 12-page, March 28 letter to the teen's parents, Brian and Kim Long, Wine said Louisville police lost valuable time by not starting interviews of key witnesses until two weeks after Brennan was critically injured and delayed attempting to interview the alleged perpetrator for more than a month.

Further, Wine accused staff at Binet of "subterfuge," saying their statements are not credible and witnesses appear to have colluded in providing similar accounts that the boy was inexplicably injured in a safe restraint by teacher's assistant Sherman Williams.

Brian Long, Brennan's father, who had pushed police to reopen the investigation, said he and his wife are disappointed that Wine's office isn't seeking charges, calling it "abundantly clear that Williams and the five witnesses in the room colluded in an attempt to obstruct justice."

"It is our belief that a jury would easily be able to see through all of the cover-up and attempts to obstruct justice in the case," Long said in an emailed statement.

JCPS paid the Long family $1.75 million in 2016 to settle the case, but the parents have continued to press for answers about the near-fatal injuries to their son, which left him hospitalized in intensive care for eight days and in physical rehabilitation for another 25 days.

Brian Long has been particularly critical of how police handled the case.

Background: Family incensed at JCPS over son's broken legs

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Jessie Halladay, a spokeswoman for Louisville Police Chief Steve Conrad, said the department hasn't made any changes as a result of the case.

"We respect and value Mr. Wine’s opinion," she said in an email. "To date, there have been no policy changes as a result of our investigations into this case. Each case is unique and complex and offers different challenging circumstances."

JCPS spokeswoman Allison Martin said school officials have not received a copy of Wine's letter. But she said Marty Pollio, recently hired as the district's superintendent, has announced plans to reform the system of reporting and investigating any such incidents.

"It’s important to note that Dr. Pollio has focused his efforts directly on a plan to address concerns raised regarding the district’s response to reported incidents," she said. "These changes include several steps that will ensure a swift and streamlined response.”

The Kentucky Department of Education opened a sweeping, unprecedented management audit last year that was initially triggered in part by concerns over JCPS' use and reporting of restraint and seclusion.

At a meeting with the state board of education on Wednesday, Education Commissioner Stephen Pruitt said it was "going very well" and "very close to release."

Meanwhile. Oliver Barber, a lawyer for Williams, denies his client did anything wrong. Barber said he is working to have an adverse finding against the teacher's assistant overturned so Williams can return to the classroom.

"Tom Wine is as wrong as he could possibly be," Barber said.

JCPS records show Williams was transferred to an administrative job last year after the state Cabinet for Health and Family Services substantiated neglect in his treatment of the boy.

A state social services investigation found, while it could not document assault, that Williams "interacted with the child in such a way that aggravated the child's behavior so he could then apply a hold on the child." The investigation said Williams' actions constituted a misuse of restraint, which is only supposed to be used when a child is a danger to himself or others.

After that finding in November 2017, three years after Brennan was injured, JCPS removed Williams from the classroom at Binet pending his appeal of the neglect finding, which prevents him from working with children. The confidential hearing is to be held before an administrative law judge with the cabinet under a secretive process that allows appeals by people found to have abused or neglected children.

Barber said two police investigations found no evidence of wrongdoing and said he also has interviewed all the staff who witnessed the event.

"Every single one of them say he did not do anything wrong or create any problems or cause any harm for this young man," Barber said.

Read this: JCPS fires employees after reports that preschoolers were abused

But Wine was critical of the statements by JCPS staff, saying they "may have colluded" in producing similar accounts. He also criticized Binet staff for refusing to answer some questions by police on the advice of a union representative, a lawyer, who sat in on the interviews.

"That JCPS staff would appear uncooperative in the course of a criminal investigation relating to the injury of a child is simply beyond belief to me," Wine said.

He also questioned why Detective Eric Boswell, in the first police investigation, waited two weeks before attempting to interview anyone at the school and didn't attempt to interview Williams for more than a month. By then, Williams had hired a lawyer and refused to speak with police.

Wine also questioned why Maj. Bridget Thomerson, head of the department's Crimes Against Children Unit, would allow Binet staff to refuse to answer questions when she conducted a second investigation.

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Outside experts have said Brennan's injuries could not possibly have occurred from a restraint described by Williams and others in the room.

Wine said the claim of staff that Williams safely lowered Brennan to the floor through an approved restraint technique — with one eyewitness calling it "picture perfect" — is "not physically or medically possible."

An engineer calculated such fractures to the femurs, the longest and strongest bones in the human body, would have taken more than 1,000 pounds of force. And three outside child oversight bodies have found Brennan's injuries consistent with abuse.

What's more likely, said Wine, is the account of another teacher's assistant, Julia Daniels, who came forward later to say Williams, who weighed around 300 pounds, appeared to have fallen forward on top of the boy whose legs were crisscrossed under him.

Daniels, who was not initially interviewed by police, said she saw Brennan on the floor with Williams, pushing down on top of him until there was a loud "pop," Wine's letter said. Daniels said Williams then unfolded Brennan's legs and commented that "he thought he broke Brennan's legs."

Despite inconsistencies in her statements and her delay in coming forward, Daniels "is the one witness who provides a possible, plausible explanation for Brennan's injuries," his letter said.

"Quite frankly, the staff at Binet School, including Williams, should have been straightforward and simply admitted a mistake had been made instead of engaging in the subterfuge that Brennan's legs had been broken for some unknown reason or unexplained force," his letter said. "They wanted to protect Williams when they should have concentrated on improved training to protect children."

Nonetheless, Wine said, police who investigated the case were not able to establish evidence Williams had any intent to injure the boy, or acted wantonly, which would be necessary to show that a felony offense had occurred. The one-year statute of limitations for misdemeanor offenses has expired.

As for JCPS employees who may have not been truthful with police, Wine said none of the statements were under oath and there is no law in Kentucky making it illegal to lie to police.

Brian Long said that's among his many disappointments in how the case was handled.

"There may not be a law in effect in Kentucky to tell the truth to the police," he said. "But it should be an expectation for employees to tell the truth to police."

Deborah Yetter: 502-582-4228; dyetter@courierjournal.com; Twitter: @d_yetter. Support strong local journalism by subscribing today: www.courier-journal.com/deborahy.