The first part of Brendan Depa’s sentencing took place on May 1 and lasted all afternoon. It’ll be three months and a week before the second part is held on Aug. 6, this time starting at 8:30 in the morning to ensure that it is completed that day, a few days before Depa will mark his 19th birthday, a full year at the Flagler County jail, and a year and a half in lock-up. He was 17 at the time of his arrest. He was held at a juvenile jail in Jacksonville before he turned 18.
Circuit Judge Terence Perkins is deciding how to sentence Depa for the aggravated battery of his teacher’s aide, Joanne Naydich, at Matanzas High School in February 2021. Surveillance video of the beating has been a silent witness in the Depa case, turning it–as many such cases have not turned–from an obscure and generally unremarked case of a student assaulting a teacher to a spectacle with national reach and a man’s fate at stake.
The delay is unusual but not necessarily damaging to the prosecution or the defense as Perkins alone, not a jury with a fallible memory, is making the decision. Perkins relies on his own copious notes. These will not change whether the notes are two hours old or three months old. But the delay may give the defense more time to prepare and potentially more effectively countervail the impact of the prosecution’s witnesses, which was not minor, and against which the defense looked impotent on May 1. The prosecution may yet present more witnesses in anticipation of just such a move.
The delay also lengthens the period of Depa’s incarceration, all of which will be credited to him at the time of sentencing, whatever punishment he receives. He faces a first-degree felony charge as an adult. The maximum penalty is 30 years in prison. Even if sentenced as an adult, he would not get anywhere close to that, according to sentencing guidelines. Perkins has the option of sentencing him either as an adult or as a juvenile offender, which would also limit the extent of the punishment.
The prosecution will be asking for state prison time. The defense will be arguing for probation or house arrest in a group home, which has already been lined up for Depa, and using the year and a half of incarceration he’d have served to argue that he’s already served considerable jail time. Based on the prosecution’s case so far, however, it may be difficult for the judge to avoid prison time altogether. If he were to impose a prison sentence of a few years, credit for time served and “gain time,” or early release after serving 85 percent of a sentence, for which Depa would be eligible, would reduce actual time in state prison .
His family and his lawyer will argue that any prison time may just as significantly damage Depa, who, at the county jail, has benefited from sustained and successful education and health services through volunteers and a jail administration that has been remarkably nurturing.
None of that will matter as much as the defense hopes if the judge puts more weight on the prosecution’s case. That case was laid out on May 1. It included the visceral testimony of Naydich herself describing the beating as a life-changing event that has left her a shadow of her former self. It included the showing of the surveillance video from three angles. It included the testimony of a prison health official who described Florida prisons’ mental health services in terms little different from those of an enviable resort. And it included a neuropsychologist who painted a portrait of Depa as a malingerer whose autism is not severe, who makes up stories to make himself appear to have more behavioral issues than he really does, who is chronically violent, and who is an outright danger to society.
Two articles have previously detailed Naydich’s testimony and that of Suzonne Kline, chief of mental health at the Florida Department of Corrections. The testimony of Gregory Pritchard, a psychologist hired by the prosecution–he’s testified between 1,500 and 2,000 times in cases, he said–came last, and had not been reported here until today.
If Perkins puts much weight on Pritchard’s testimony, it would be quite damaging to Depa, particularly since Kurt Teifke, the defense attorney, did not manage to undo much of that damage. Pritchard’s hour and 10 minutes on the stand (by zoom, anyway) was not without some glaring contradictions, generalities and guesswork. But much of that stood unchallenged.
Pritchard, who evaluated Depa in person for at least 90 minutes in the presence of Depa’s lawyer, drew the portrait of a Depa no one had heard before so far: he found Depa to be an attentive, intelligent, communicative, thoughtful man, even calling him “very articulate” at one point (the usually condescending if not prejudicial white cliche about Blacks, though context in this case suggests otherwise). Pritchard said Depa has “good judgment” and “good insight,” showing an ability to talk about his own mistakes–or to talk abstractedly, as when Depa said God had communicate to him. Listening to that portrait one might have mistaken Depa the special education autistic student under arrest for a gifted student who was the pride of his school and home.
But the portrait was often contradictory. While it was clearly intended to downplay Depa’s autism or mental health issues while playing up his intelligence and self-awareness, as well as downplay his humanity at the expense of his violence, it also describing him as a man with agency, and therefore control over his actions even as he was made out to be a violent boy in his youth and adolescence who couldn’t control himself. At least until the judge asked Pritchard, the portrait-painter, to more directly address Depa’s agency in the beating of Naydich. The psychologist demurred, undermining his claims.
Depa told Pritchard that he heard voices, and was even hearing them while speaking with the psychologist. Pritchard didn’t buy it. “He was claiming those, but there was no objective indication that that was actually occurring,” he told Assistant State Attorney Melissa Clark, the prosecutor, as if he had an insight into what Depa was hearing.
“So it’s your supposition that he is faking this?” Teifke asked him on cross-examination. Pritchard downplayed the matter: he didn’t think it was “that significant of an issue,” though he conceded that Matanzas High School staff and Depa’s former group home staff had all reported that he spoke of hallucinations. Nor did he think Depa was using the alleged hallucinations to influence the criminal case.
“Which is my concern about this precisely,” Teifke said, “if he’s either hearing these voices, and that could be some sort of psychosis or maladaptive behavior, or he’s claiming to with no apparent end game.” Wouldn’t either case raise concern? he asked.
Pritchard evaded the question, saying people who claim hallucinations usually want to be deemed incompetent to avoid trial. But “that ship has sailed,” Teifke reminded him: the court judged Depa competent a year ago. For some reason, Teifke didn’t press the point further.
In his analysis of the aftermath of the beating, Pritchard said Depa blamed Naydich for “picking on him” and “instigating” the situation. Two days after the incident, he was part of an Individualized Education Plan meeting (all special education students have IEPs, and he had not yet been charged as an adult by then since the video, which influenced that decision, had not yet circulated widely). During the meeting, he told faculty that he didn’t think he needed a teacher’s aide, that Naydich “was the problem. If she wasn’t in his class with him, there wouldn’t have been a problem,” he said, according to Pritchard’s recollection of the documents about that meeting.
Clark was establishing that Depa “was not taking responsibility for his actions,” in her words–what will be a central plank of her argument for prison time. She pressed that point in various ways with Pritchard. Teifke’s attempt to counter it fell flat.
“I guess we’re supposed to believe that he’s bad, that he just likes doing that,” Teifke told Pritchard of Depa’s blaming Naydich, without really asking a question.
“I wouldn’t necessarily say that, Mr. Teifke,” Pritchard replied. “I would never say that, probably. But I think it’s just a factual characterization of the things that went on.” But he couldn’t say what it meant other than that “externalization of blame is typically something certain kinds of personalities do.” Teifke did not exploit a gaping claim that could apply to a vast swath of people, only musing–rather than directly asking a question–about why Depa would feel compelled to blame others.
In direct testimony to Clark, Pritchard downplayed Depa’s behavioral diagnoses, including his Oppositional Defiant Disorder: “There’s no, like, clear line or delineation where autistic spectrum issue starts and where Oppositional Defiant Disorder begins,” he said, as if implying that the two are mutually exclusive (they are not). Teifke did not challenge him on that score. “It could have been present in his past, but I don’t think it’s a current issue for him,” Pritchard said of ODD. That would be news to Depa’s parents.
Yet minutes later, talking about a different issue, Pritchard described Depa’s habit of running away from his aide as “more oppositional than it is something that is typical for the autistic spectrum population. There were quite a few of those behaviors as well.”
Clark asked about Intermittent Explosive Disorder, which Pritchard said is an issue, going on to describe Depa in exactly the sort of terms Clark wanted him to use–terms that describe Depa as unfit for society: “In Mr. Depa’s case, the aggression has always been an issue, continues to be an issue. And the aggression is extreme. And that’s kind of where the Intermittent Explosive Disorder characterization or diagnosis comes into play. It sees extreme responses, this extreme angry, aggressive responses, where the stimulus, whatever made the person angry, it doesn’t warrant that kind of response. And you see it kind of repeatedly in an individual. So I think that is a diagnosis that’s separate from the autistic spectrum problem that does apply to Mr. Depa.”
Put another way: Depa is not violent because of his autism. Depa is violent because he is violent. Teifke did not challenge Pritchard on that score, either, even when Pritchard contradicted himself moments later when he described Depa’s behavior as being triggered by unexpected changes (as there had been the day of the attack).
Pritchard then testified about instances when Depa stole electronic devices or money, exhibiting behavior not usually associated with autism, he said, or when he bullied “smaller staff members or residents” of his group home–again, details that sought to portrayed Depa as a brute, with or without autism. Pritchard, without evidence and with a questionable conclusion, described Depa’s ability to get around a lock as “another example of being outside on the autistic spectrum” (though intelligence and autism are also not mutually exclusive).
Clark had a list of questions about what is and isn’t typical of the autism spectrum: inappropriate sexual gestures or comments, which Depa apparently engaged in: not typical. Lying? Not typical. Aggression? Not typical, at least not in older individuals. “As they get older, those aggressive behaviors tend to go away,” Pritchard said. “They’ve learned different skills, they’re better able to address frustration in some other means other than aggression.” He was speaking in generalities–not with regard to Depa specifically. But Clark’s aim was to show that Depa was atypical for different reasons.
The testimony revealed that Depa after his adoption by his parents had been placed in kindergarten. But his aggression led him to be homeschooled from the time he was 6 or 7 to when he was 13 or 14, and “was having a lot of trouble there,” showing aggression toward his brother and sister and his parents. Several times he got Baker Acted (the involuntary psychiatric commitment of individuals who threaten harm to others or to themselves).
“In his characterization, he would yell, scream, hit,” Pritchard said, also describing a time when Depa was arrested in an aggressive encounter with other youths (Pritchard did not mention that Depa, who has a heightened sense of his blackness, had been racially baited). That was the reason his parents opted for a facility that specialized in children with mental health and autism difficulties.
“So even in that specialized setting, he was still acting out physically and aggressively with both peers and staff,” Clark asked him.
“Yes,” Pritchard said. That was the case in two different facilities, including the group home where he lived while going to Matanzas High School.
“Do you believe he understands the difference between right and wrong?” Clark asked him.
“Yeah, I don’t think there’s any question about that, he understands right from wrong.”
“Do you think that Mr. Depa is capable of controlling his temper?”
Pritchard said he was, though his analysis was contrived out of records he’d read. He said that in late 2021 at Matanzas, his aggressive conduct had allegedly improved over the course of a year that began in August 2021 through December 2021. “So no aggressive incidents at Matanzas during that four month span, which would have been the beginning of the 2021-2022 school year,” Pritchard claimed. “They also commented on how he seemed to be learning, in terms of he will walk away from incidents where he’s upset or antsy. So there’s some indication that he was learning and that he was engaging in alternative behaviors that weren’t destructive.”
Teifke did not challenge Pritchard’s account during cross-exaination. But a civil lawsuit filed against the school last month directly and sharply contradicts Pritchard’s claims and timeline: Once he was allowed to start school in August 2021, the suit states, Depa “was almost immediately suspended out of school
for five days for making threats to other students and for harming a district employee. He pushed an adult aid who fell down and was injured. The police were called.”
It went on, referring specifically to the IEP meeting Pritchard had referred to in rosier language: “An IEP meeting was held on December 7, 2021. The team agreed that a new FBA [Functional Behavior Assessment] would be conducted due to this violent behavior. The team agreed to meet again in 60 days. But
before they could meet again, B.D. was again disciplined for harassing and intimidating the school staff. He would use aggressive language and approach the staff in an aggressive manner, putting his finger in their faces. His response, ‘This is not physical aggression. I am not touching you.'”
“B.D. is smart, but he has been diagnosed with an autism spectrum disorder and has communication deficits that were not properly addressed,” the suit states. “His explosive nature was also ignored and his need for social and pragmatic language interventions were not sufficiently addressed.” The lawsuit is not evidence unless the defense manages to ring in that evidence through witnesses of its own. But what the lawsuit shows is that it is on a different page from the defense’s in the criminal case. The civil suit doesn’t dispute that Depa is chronically violent. But it claims that he was just as chronically mismanaged.
The defense has yet to put on its own case. But it’ll have to either overcome or neutralize–if not also concede–the conclusion Clark was driving at all along with Pritchard, illustrated by the videos: “Do you have an opinion as to whether or not Mr. Depa is dangerous?” she asked.
“My opinion is he is dangerous,” Pritchard responded. “I don’t think that a professional can really see it any other way, given Mr. Depa’s history.” Of course professionals do and have seen it very differently, because those who do would not have done what Pritchard subtly did next: he conflated danger with aggression, as if they were identical. “Aggression in the school initially, aggression in the home, aggression in the community,” and so on. Pritchard said. “What that tells you is that’s part of Mr. Depa’s response style, with physical aggression. So in that sense, yes, I believe he’s dangerous.”
Pritchard dug the dagger deeper, glibly calling Depa an animal in more polite terms learned over 2,000 testimonies and coded for court: “You know, he is a big young man. He’s six foot six and 250 pounds. So that kind of increases his dangerousness a little bit in the sense that if he engages, he’s a hard guy to handle. So I think there’s, you know, high probability he’s going to continue to respond aggressively sometimes.”
Clark had wrapped up much of the argument she will make before the judge. Teifke in his cross-examination circled around Pritchard without a specific target. It was as if he was trying out various points of vulnerability without finding any, in part because he didn’t seem to have a mastery of facts with which to challenge and undermine Pritchard’s testimony (as with Pritchard’s allegation that Depa at he end of 2021 had made significant progress). It wasn’t clear, for example, why Teifke asked about Depa’s seizures,
His strongest parry was in questioning Pritchard’s conclusion about Depa’s autism. “Essentially, you’re relying on whatever information you choose to rely on and you’re making an educated guess, right?” Teifke said. Pritchard said it was inevitably subjective.
“You don’t feel at all incentivized to downplay his autism, do you?” Teifke asked.
“Not at all. I mean, I have no dog in the fight. I’m just going to call it as I see it,” the psychologist said. (Expert witnesses are generally paid handsomely, however.)
When Teifke’s cross-examination was done Clark felt no need for redirecting Pritchard. It was Perkins, the judge, who then asked the most essential question of the afternoon: “You talked about conduct and actions that you described as ‘volitional and intentional.’ And my question for you is simply: to what extent do you believe that those descriptions, ‘volitional and intentional,’ applied to the incident in question?”
“It’s hard for me to say for sure,” Pritchard said. “But what I will say is, I believe, and I think I said it in my testimony, that Mr. Depa does have the capacity to control his conduct certainly better than how he controlled his conduct then.” That wasn’t an answer to the judge’s question so much as a retread of what he’d said earlier. He then reinterpreted what led up to the incident, discounting what Depa’s IEP had cautioned against–don’t reprimand him in front of others, handle the electronic device with care–to reduce it exclusively to Depa’s reaction to being disciplined.
It was not a fair reflection of the incident, nor did it answer the judge’s question further. But Pritchard wasn’t there to give the defense ammunition Teifke himself had not been able to elicit.
Pat V says
“neuropsychologist who painted a portrait of Depa as a malingerer whose autism is not severe, who makes up stories to make himself appear to have more behavioral issues than he really does, who is chronically violent, and who is an outright danger to society.”- nailed it. This man is a danger to his own family and the community. Anyone calling for leniency should house him.
Ray W. says
Yet another comment in the unceasing theater of the absurd style of argumentation.
The only reason our founding fathers insisted on the creation of an independent judiciary as a third branch of government that was unique from all other known forms of government was the vengeful nature of individuals who walked among them.
I am not arguing that Mr. Depa should not be punished or that the punishment should never be severe. I am arguing that when one reads the words of Pat V, one can feel the venom of his or her words. We need a judiciary to limit the impact on us all of the vengeful among us, in part by bringing an unresolvable dispute to an end. Finality is the boon to a just society. Endless strife the bane of all that can be good.
To our founding fathers, vengeance was to be abhorred, justice revered. After all, in their day, the list of crimes punishable by death was quite long; they didn’t want the list to lengthen.
In an age of Beccaria, an Italian philosopher who received wide acclaim for his idea that it was cruel to punish anyone one day more than that term necessary to inhibit the commission of any individual crime, our founding fathers created an 8th Amendment during the first Congress to prohibit cruel and unusual punishments, because they knew that people like Pat V would always wander among us spewing hate.
They created a Due Process clause that ensures everyone about to receive the firm hand of justice a right to have their voice heard and considered by a neutral and detached magistrate because they knew that people like Pat V, forever cruel in his or her vengeful mind, would deny at whim and caprice the grievances of the minority (defendants are always in the minority).
I accept the wisdom of our founding fathers over the cruel lockstep walk of Pat V every day. We must forever defend the power of the judiciary to consider and apply justice to all of us. We must oppose those who confuse justice with cruelty. I am not calling for leniency. I am calling for justice imposed by a fair and impartial judge who does not prejudge one party’s arguments. It might be that Mr. Depa cannot be rehabilitated. Pat V. just might be right. One the other hand, the neuropsychologist might be wrong.
By coincidence, last night, as I occasionally do, I googled Nietzsche quotes. One was:
“You have your way. I have my way. As for the right way, the correct way, and the only way, it does not exist.”
Our founding fathers understood that vengeance will always find a way, justice must always find a way, and our Constitution is to light the way. We all live on the razor’s edge that is the path to salvation.
Steve says
That post was powerful Ray W. Thank you
Ray W. says
Thank you, Steve.
As I state and restate:
I do not advocate for one political party over another.
I oppose the vengeful among us, the deceitful among us, the misinforming and the disinforming.
I favor the commenter who engages in reason as it was practiced by many of our founding fathers, the rigorous exercise of intellect.
I do not live in a “perfect or bad” world. I live in a good/better/best, bad/worse/worst world.
The “pestilential” partisan member of faction is to be opposed. The virtuous partisan member of faction is to be supported.
The three plagues that infect the entire world are the plagues of religious extremism, nationalism and racism.
Pat V says
Prison exists to protect society…Depa has proven with past behavior to be violent. Further an expert has confirmed that he’s a danger to society. It isn’t vengeance Ray W., it’s justice for the victim and protection for anyone who may inadvertently “trigger” him.
Ray W. says
You just cannot figure out that judges decide sentences, not you. You just cannot figure out that judges decided whether a neuropsychologist is right, not you. You just cannot figure out that judges determine who is a danger to the community, not you. Our founding fathers insisted that you and people like you never hold the power to sentence. You have the right to proclaim your opinion, even when you are vengeful, but you will never be able to act on it. Your form of justice is not justice, it is vengeance.
Byron Washington says
No his form of Justice IS Justice. Especially for the victim Mrs Nayditch. You’re form of ” Justice” involved letting criminals get off easy. None of the founding fathers would have leniency for this criminal.
Ginger says
That is why he should be sentenced to a special hospital and not prison. He is mentally ill not a bad kid.
Byron Washington says
He absolutely IS a bad kid. He is high functioning and has complete control of his actions yet he chose to bully others and badly physically assault a staff member.
Scott F. says
This is the most cringe-worthy word salad I’ve ever read. Look at the video. You write about founding fathers (whatever the hell that’s all about) and vengeance. The only vengeance I saw was the evil in his eyes when he went barbaric on a hard working American teacher, just trying to do her job.
Math’s pretty simple for this one. Aside from some mitigating factors, and a PSI, he will get his due process. And I hope sentencing sees reasons and justice is served. Hoping he’ll get 15+ years. Probation shouldn’t be on the table as a person crime should be grounds for mandatory minimum sentencing, regardless.
Hope the kid learns a trade and vows to do better.
David Schaefer says
He needs to be in prison for what he did disability or not….
William Stonehocker says
Except the prison system ain’t designed for someone like him.
Alcalino says
Well, it’s a shame, the prison system is not made for prisoners, it is made to protect society.
William Stonehocker says
Brendan doesn’t belong in prison, he will get exploited there and his mom knows. I want everyone to shut their mouths if they think he belongs in prison. I’m not sorry.
William Stonehocker says
I think it’s time the rest of Brendan’s family as well as employees from ECHO tell their side of the story. Also, maybe Buchanan should tell her side of the story.
Ahmed Bilal says
Who the hell is Buchanan? It seems the only people your suggesting be interviewed are ones that would make Mr Depa look innocent. The staff at Matanzas High School have already given statements and stated Mr. Depa is in fact high functioning, and was a bully who threatened the staff whenever he didn’t get what he wanted. Mr. Depa’s family members are not objective witnesses and would of course try and make their fellow family member seem innocent.
William Stonehocker says
Buchanan is the first-year teacher Brendan had that also requested the group home send his Switch into school every day. Her first name is Barbara. It was clear she was part of the problem, not being trained to deal with a guy like Brendan.
I include the rest of his family as in his father and grandmother. The mom LeAnne already told her side of the story.
And stop using the functioning label, it’s offensive. Think about how many people out there who are non-verbal autistic, yet are very capable at a lot of things. I include Abigail from FatheringAutism, who is non-verbal, but is also a hottie.
William Stonehocker says
Also, Brendan is a bullying victim himself.