WINCHESTER — The defendant often fidgeted and pulled his shirt up over his face, which only reached a foot above the defense table at his trial in Frederick County Circuit Court on Tuesday.
The defendant — a 15-year-old boy diagnosed with an emotional disability — was convicted as an adult in the non-life-threatening beating of another emotionally disabled 15-year-old boy on a school bus on Sept. 3. When the beating occurred, both boys were students at Northwestern Regional Educational Programs, which serves area children with emotional, mental or physical disabilities. The Winchester Star isn't naming the boy because he is a minor and the incident did not involve death or serious injury.
The victim and the boy had been feuding before the fight, according to testimony. Earlier in the day, the boy made a sound similar to scratching fingernails on a chalkboard by scratching a card against the gym floor and the two had words. On the bus, the boy scratched the card against a window.
The approximately three-minute attack that followed was captured on the bus surveillance video. The victim, who outweighs the boy by at least 50 pounds, screamed at the boy to stop scratching the window, then cursed and spat at him and gave him the middle finger.
Resisting a school bus attendant who tried to restrain him, the boy responded by standing on a seat behind the victim's seat. The boy, who was wearing a soft, Velcro cast on his right arm which had been fractured, punched the victim 60 to 75 times as the victim cowered and held a hardcover book to shield himself from the blows. The boy, who knocked the book away, then elbowed the victim with his right arm about 60 times and kicked him a few times.
"I don't want to die! I don't want to die! I don't want to die!" the victim screamed as the boy returned to his seat.
"I'm not trying to kill you bro," the boy responded.
The victim, who was bloodied in the attack, had dizziness and headaches the next day. Pediatrician Dr. Paul Joseph Russell testified that the victim sustained a moderate concussion.
Louis Campola, a county assistant commonwealth's attorney, told the six-man, six-woman jury that the assault fit the definition of the malicious wounding statute, which says the perpetrator intends to "maim, disfigure, disable or kill." He said the decision to charge the boy as an adult was based on the severity of the beating.
"It's pure luck that the victim didn't get killed or permanently injured or maimed," Campola said during closing arguments. "It's not because the defendant wasn't trying."
Defense Attorney Michael William Helm told the jury he was extremely frustrated by the commonwealth attorney's office's decision to hold a child to adult standards. If they chose to convict the boy, Helm asked the jury that it be for lesser charges such as unlawful wounding or assault and battery.
"He's 15 and they're saying he formed the intent to kill? He's fighting another kid on a school bus who spit at him," Helm said. "He wasn't trying to kill anyone or maim anyone. He was just reacting to a stupid provocation."
The jury deliberated about 90 minutes before reaching a verdict. Deliberations included whether to convict the boy for assault and battery, according to one of the jurors who spoke on the condition of anonymity after the trial. He said a couple of jurors were considering convicting on the lesser charges but were swayed by the video. It was played three times during the trial and the jury was allowed to watch it again during deliberations.
"I just watched the video and I saw what he was doing to that other boy and he knew what he was doing," the juror said. "Most of them were for it [convicting for malicious wounding]. A couple of them weren't, but they looked at the video again and everybody agreed."
However, jurors were not allowed to hear about the boy's mental diagnosis, despite the case hinging on his ability to think like an adult. Judge Alexander R. Iden forbid the defense from allowing Ralph Reese, the school's administrator, from testifying as well as the boy's father.
School records provided to The Star by the father on Wednesday said boy was diagnosed as having Attention Deficit Hyperactivity Disorder and bipolar disorder in 2012. The bipolar disorder causes him to become violent. According to the records, the boy has a history of aggressive behavior dating back to the third grade, including 10 "disruptive demonstrations" plus three incidents of fighting with staff and one with a student.
A Frederick County Public Schools' "disciplinary manifestation determination" done after the attack said the beating had a "direct and substantial relationship" to the boy's disability. The determination also said the assault was "a direct result of the school district's failure to implement the Individual Education Plan." The determination also references the failure of having someone on the bus trained to restrain a child with emotional disabilities.
The father, who is not being named because it would identify his son, said in an interview that what his son did was wrong and he deserved to be convicted of assault and battery in a juvenile court. But he said prosecuting his son as an adult was unfair because of his age and his emotional disabilities, which include frequent mood swings.
"He doesn't know how to process emotions. He doesn't understand them," the father said. "He can be happy and not even know why. He can be sad and crying and doesn't know why."
The jury was not allowed to hear that Deputy Angel M. Ruiz of the Frederick County Sheriff's Office, NREP's school resource officer, also planned charge the victim with assault for spitting at the boy. Campola said he overruled him.
The father said the victim taunted his son in Facebook messages the weekend before the assault, which he said his son deleted. However, the father provided The Star with two Facebook messages, one containing obscenities, in which the victim taunts the boy about being jailed after the incident.
Records from the Northwestern Regional Juvenile Detention Center, which were not introduced in the trial, show the boy was disciplined for cursing at staff and then flooded the toilet in his cell last month. In another incident, he tried to throw a desk before being restrained.
The father said the boy, who is scheduled to be sentenced at 1 p.m. on Jan. 1, has been devastated by his incarceration and prosecution. The boy remains incarcerated.
"This is extremely blown out of proportion," the father said. "If they'd left it at assault and charged him as a juvenile, OK."