In the end no one was going to remember the two days of testimonies three months apart, the experts, the victim’s recollection of the attack, the victim’s mother’s history of raising a troubled, autistic child, now charged with a first degree felony as an adult.
Eighteen months after Brendan Depa attacked and mauled Joan Naydich, his paraprofessional at Matanzas High School, it was all about the sentence Circuit Judge Terence Perkins would impose, the sentence he imposed this afternoon with more anguish than for most sentences he has imposed in his decade and a half as a judge.
Perkins sentenced Brendan Depa to five years in prison followed by 15 years on probation.
The courtroom was full, with Depa supporters on one side, Naydich supporters, in smaller numbers, on the other, but including R.J. Larizza, the state attorney, who turns up at only the highest profile cases. All remained silent as the sentence was pronounced, as did Depa.
“Although this event was senseless, I don’t want to lose sight of the fact that at the time of this event, Mr. Depa was 17 years of age. However, this was not an isolated event,” the judge said, listing juvenile cases and violence at two group homes Depa lived in, and on a bus. “It’s an event that shows the progression of the aggression and violence that Mr. Depa was exerting on those that were around him.”
Perkins considered the problems chronic, and that autism was not the cause. He described the video as “senseless” and “extreme.”
“In this case, it was clear from this incident and some of the prior incidents that Mr. Depa’s aggression was extreme and not proportional to the triggering event,” the judge said, crediting the local jail for significantly diminishing a pattern of violence before Brandon arrived there.
Brandon’s criminal scoresheet added up to a minimum of 34.6 months in prison. He has already served 533 days, or 17.5 months. In effect, with gain time, Depa will serve 33 months in prison before probation begins.
“I don’t think he’ll survive prison,” his mother had said.
Defense Attorney Kurt Teifke’s entire strategy had been to make the case for house arrest, not prison. Assistant State Attorney Melissa Clark’s strategy was to ensure prison time. Perkins rarely goes one way or the other. He looks for the just middle, if it is legally defensible.
The defense did not minimize so much as ignore the attack, focusing instead on Brandon’s personal history and lifetime of challenges to his family, as well the support system he would have in society, if he were to return to it. As the defense attorney questioned one of its expert witnesses, Kimberly Spence, an autism-disorders specialist, Spence spoke of Depa’s regret over the attack for the first time: “He said to me, he doesn’t want to do this. He’d never ever want to do this again. He doesn’t want to hurt people. He wants to be in the community, he wants to be a productive citizen.”
As thorough as Teifke was in making the case for Brandon’s autism profile–his witnesses provided a detailed but often intractable seminar about the disorder–he had no witnesses from the school district or about the school district to shed light on what went wrong there before the attack, aside from peripheral references to Brandon’s education plan at Matanzas High School. The blind spot indemnified the school and the district and inevitably shifted more responsibility back onto Brandon than the defense argued he should bear.
The prosecution had played the footage of the attack from three angles. It had Naydich testify at length about her challenges with Brendan before the attack and with the consequences of the beating since. Clark had the law on her side: mental illness, autism, disorders, are not excuses.
Her approach was direct: a crime is a crime, and must be punished accordingly. Brendan had shown aggressive and concerning behavior in every setting–at home, at school, at group homes, in juvenile detention, Clark said, and had even defense witnesses concede. He had been getting treatment all along, especially in the last two group homes he’d lived in, and for all that, Clark said, he still attacked Joan Naydich. (Clark did not mention that in the past year at the county jail, Brendan’s record has been much different, with just once violent incident he was responsible for.)
The mentally ill will be treated accordingly by the prison system’s health care structure, she argued, relying on the testimony of the prison system’s mental health director.
In sum, to Clark, Brendan is a dangerous individual who must pay for the attack.
The defense attempted to counter the argument when it asked Spence if she believed he was “inherently more dangerous.”
“There’s just a lot of things that I believe need to happen if all of the right things are in place,” Spence replied. “Mental health treatment, medication management, therapeutic intervention, stable living environment. That would dramatically and should dramatically reduce any concerns about behavior.”
The attorneys summed up the two days’ testimonies in their closing arguments, which did not begin today until after 5 p.m., and did not add more than rhetoric to the testimony and the evidence. Clark stressed “the lack of remorse” and that “he is dangerous,” a word she used repeatedly in her 10-minute closing. “He has a high probability of violence in the future, and that’s incredibly frightening.”
She asked for prison (notably without specifying the length of the term) and a long period of probation, and repeated a common if gross misconception: “As you know, that is the primary purpose of the judicial system is punishment.” It is not, of course. The primary purpose of the judicial system is justice, which may and often does mean punishment.
Teifke pushed for two years in a juvenile justice system’s home, which clearly gave the judge heartburn: Perkins did not see how that would benefit even Brandon if he were released from that measure in two years. But the heart of his argument was a question Teifke posed as if he were the judge: “Is that in fact true that the public interest require that I impose an adult sentence?”
Perkins was on such a different page that he even proposed the more logical argument to Teifke: why not take advantage of the court’s authority to impose a sentence with a window of up to 30 years, even a probationary sentence, which could then enable supervision until Brendan was ready to terminate out of it? The judge had opened the door to a strictly probationary sentence. He had not even mentioned prison. It was an arresting opening for the defense.
Teifke didn’t take it. He either didn’t understand what the judge had done or thought it somehow too harsh. He was focused on his own argument. He still believed the juvenile sanction approach was best. If he went with the judge’s proposal, he told Perkins, “I wouldn’t be doing my job.”
Clark in her second closing understood exactly what the judge had proposed, saw Teifke lose his chance, and pounced: “I think everybody is losing sight of what happened here,” she said, meaning the beating that changed Naydich’s life. Then she specified: seven years in prison, followed by at least 10 years on probation. “Everybody wants to see Mr. Depa succeed, but first we need to deal with what he did,” Clark said.
It was difficult to imagine how the judge would close the case without a prison sentence, however brief, however discordant with Brandon’s history when divorced from the public frenzy the video of the attack against Naydich generated–a video without which the case would have not likely generated either the attention or the consequences it has.
On May 1, in what Perkins described as Phase 1 of the hearing, the most dramatic testimony had been that of Naydich. Today, it was that of Brendan’s mother, Leann Depa.
Her time on the stand was a biography of Brendan spoken in an often broken voice recalling the history of a fragile character. He was 5 months old when the Depa family got him as a foster child, with the intention to adopt him, as the family had adopted a previous child. He’d come from a violent home.
As he grew up, “his emotions were always really big,” Leann Depa said. “If something was funny, he was hysterical. Just big belly laughs, and if something was upsetting, he could just sob and sob and sob. He could easily get overwhelmed and have a meltdown.” Child care and public schooling did not agree with him. He had a lot of fears. “The sound of flies would drive him insane.” He was afraid of stickers on bananas, of rubber bands. Noise upset him. Commotion upset him. His temperament was unpredictable. “It could go from zero to 100 in a second.” He would be fine, then he would suddenly react.
Homeschooling went better, but sensory issues remained. “Everything black and white,” his mother said. She pulled her other children from school and homeschooled.
He’d take ADHD medication but the side effects were horrible: he’d imagine swarms of flies around him. No single medication seemed to work. In 2017 the family had a “major crisis,” Leann Depa testified, when her mother, who was very close to Brandon, was dying of pancreatic cancer. At the same time, Leann’s daughter had a mass removed from her brain, and became more impulsive after her surgery. That’s when Leann put him on the sort of psychotic medication she had previously resisted, because of his young age. It did not go well.
He was on 17 different co*cktails of medications because of all the professionals involved,” and through that period, Baker Acts–the involuntary commitment to a psychiatric facility to prevent self-harm, or harm to others–accumulated. He was also gaining 10 pounds a month after being a normal-size child.
“It was a constant in and out that year with all the doctors doing the opposite of each other and adding on to each other,” Leann said, referring to the medication co*cktails. Disorder diagnoses accumulated, too–opposition, defiance, aggression, each with its own technical term. “I was trying to manage the best I can and I was failing,” his mother said.
She took master classes in autism, studied various theories, took training in emotional regulation.
The first baker Act was in 2018, a lot of it the result of aggression with his sister. Health care professionals had advised her to call 911 whenever there was trouble. “I was more afraid for Brendan and his sister together, how they were going at each other, and I couldn’t see a way out of treating him in the home at that time with the medication,” Leann said, even as homeschooling was working. She placed him in a residential home in South Carolina. Then Covid hit. “Everything got shut down to where we couldn’t go see him,” she said. “Covid was such a factor in all of this.” Add to all this Leann’s husband’s massive heart attack.
She then placed him in the “Level 6” ECHO group home in Palm Coast in November 2020, Level 6 meaning that he needed the most support. That lasted until his arrest in February 2023. She and her husband would alternate visits every two weeks, staying in hotels with him or taking extended time at Airbnb’s. He was doing OK.
ECHO forced all its clients to go to public school, making it a requirement if someone was a resident there and assuring families that it had a support team to ensure success. It took the Flagler school district four months to place him. From there on, it was the wrangles over the IEP, the Individualized Education Plan prepared for all students with special needs through an elaborate and continuing process involving a sizable committee that includes school personnel and family members. Depa warned Matanzas of her son’s triggers, electronics among them.
She read from the IEP: what to do with Brendan, how to do it, what to avoid, among the 25 directives listed in the plan.
But the prosecution objected every time Depa’s lawyer asked his mother to assess his emotional maturity or other psychological observations. Since he’s been in jail, she has found a group home 20 minutes from her house that can take him now–in the Tampa area, with a full awareness of Brendan’s needs: the home met and screened him online. She’s also lined up several transitional homes, in case he is imprisoned and released.
She’s also prepared to take him home in case he is given a community-based sentence (such as house arrest). She’s been talking to him every day at the Flagler County jail. She described a broad support system prepared to work with Brendan, whether it’s a former school resource officer or other parents of autistic children or Gene Lopes, the retired educator and his tutor for the past year at the jail. “Brendan is always going to be with one of us. He’s not going to be out in public on his own. He will be with one of us,” his mother said. She addressed the judge directly: “I beg you, to let him come home with me. I want my son back.”
The prosecutor’s questions focused on the challenges of caring for Brendan at home.
Clark when she cross-examined Leann Depa almost immediately elicited the history of Brendan’s “problems with aggression,” at home, at the residential home in South Carolina, at Echo, punching staff, punching a psychiatrist several times, head-butting staff, throwing chairs, groping female staff inappropriately, attacking fellow-residents, ripping a door off. “Fair to say that his aggressive behavior was continuing well into his stay at ECHO,” Clark asked Depa, more as a statement than a question.
Clark repeated the same questions to both the defense’s expert witnesses, bringing out more alarming behavior, “including being cruel or purposefully harming an animal,” that he often lied to get things he wanted, stole, “annoyed people on purpose,” and so on.
Depa’s mother refuted the claim that he’d harmed an animal. The most he’d ever done was hiss at a cat. “Brendan has never, ever harmed an animal,” she said when she was recalled to the stand in the afternoon. The testimony undermined the credibility of some of the prosecution’s other claims, especially since some were based on Brandon’s reporting, not on independent documentation.
Clark followed a line of questions about the homes Leann Depa has lined up for her son, skeptically asking why she would seek out facilities primarily focused on drug recovery, if Brendan has no issues with drugs and alcohol, in facilities that are not secure: no gates, no way to prevent a resident from leaving.
Clark questioned her about her reluctance to medicate Brendan, though Leann stressed that it was only to limit the side effects, and about the family’s decision to send Brendan to residential and group homes for “several years.” Clark was preparing to argue that Brendan was difficult to manage, even now, with the group home his mother found for him in Tampa. But it was a mostly muted cross-examination.
The defense then questioned Eugene Lopes, the retired special education teacher who since last November has spent some 200 hours tutoring Brendan at the county jail, over 80 to 100 days, all as a volunteer. Lopes could combine his experience with special education (including its procedural intricacies) with his familiarity with Brendan. Lopes spoke of paraprofessionals as little short of heroic. He could also speak of the critical importance of following IEPs to the letter (which was not done in Depa’s case), of personal connections with students, and of being attacked.
“I’ve been spit on, I’ve been kicked, I’ve been punched, I’ve been called fat a couple of times, and I’ve thinned out, I’ve been bit,” Lopes said. The experiences informed his approach. “But don’t escalate. That is a thing you want to avoid at all costs. Don’t escalate.”
The prosecutor had no questions for Lopes.
The defense also questioned Kimberly Spence, the autism-disorders specialist, and Julie Harper, a psychologist, both expert witnesses–the hired-gun equivalent to Gregory Pritchard, a psychologist and expert for the prosecution. (The prosecution disingenuously asked the defense’s expert witnesses to say how much they were paid to appear, when its own expert was paid in the same range.)
In May, Pritchard had downplayed the severity of Brendan’s autism. Without referring to them, Spence shrugged off Pritchard’s conclusions to make the case for extensive services. “I disagree that he’s a Level 1,” she said in reference to the three levels of needs for people on the autism spectrum. She (like Harper) rated him as Level 2. He would require “substantial services.”
“I do not believe you will receive the treatment he needs” in prison, Spence said, “and the things that are happening in Brendan’s behavior, incarcerating him is not going to change the factors that precipitate that behavior.” Incarceration would not rehabilitate him, she said.
In a dueling rebuttal, the prosecutor returned Pritchard to the stand, via zoom–he’d followed all the proceedings–to reject the defense’s argument that Brandon’s punishment should be limited to a residential home for two years. Calling it “misguided,” he said previous residential homes showed “minimal or nonexistent” gains, if improving his behavior was the goal. As he had on May 1, repeatedly, Pritchard wasted no time before he mentioned Depa’s “large size.”
“He’s going to need support and supervision for a lot of things, and a lot of things have been mentioned.,” Pritchard said. “So yes, this going to be carried out for a long time for Mr. Depa, there shouldn’t be any expectation that he’s suddenly going to not need any of this intervention.” But in prison. Not elsewhere.
“Just so I’m understanding this correctly,” Teifke asked Pritchard, “if there’s been prior problems when he interfaces with other juveniles, you believe that no such problem would exist if we place him in a general prison population with adult criminal balance?”
“No, I think Mr. Depa was going to have problems no matter what environment he is in, in going forward for at least a fairly significant amount of time, judging from his history,” Prictahrd said. But he was, in fact, saying that Depa was better off in a state prison with adults: “What I am suggesting is that peers, especially peers with problems, they would ostensibly be more difficult to get along with, maybe more apt to pick on Mr. Depa, push his buttons, more immature things of that nature relative to people who are maybe more mature adult population.”
Teifke could barely control his disgust, and returned to the defendant’s table with an inaudible, dismissive statement.
Spence earlier provided as lucid a definition and explanation of autism as had been heard in the two days of testimony until then: “If you’re a person that doesn’t have autism, your factory setting as I like to say is you are pre-programmed to look at people in the face. You are pre programmed to look to seek out information from people’s body language, from the tone of their voice. When you have autism, your brain is not wired in that same way. So you’re often missing that information. You’re missing nonverbal social cues. You’re missing subtleties that exist in communications between people. And when you miss that you often miss a lot of the meaning that happens in a communication.”
Elegant summations aside, the expert testimonies were more technical than those of Depa’s mother and Lopes, and were intended purely as tactical rebuttal of the state’s case that Depa’s mental health challenges are not particularly unusual and that they would be monitored and treated appropriately in prison. But Spence also left little doubt that Depa’s IEP was not followed. She said it was “shocking” the extent to which the IEP’s directives on electronics was ignored.
It had been an instance of disciplining Brandon, using his game, that triggered the attack on Naydich. Spence returned to those flawed responses to Depa by school staff three or four times.
Harper had also worked with the Department of Juvenile Justice as a competency assessor and to determine the level of service needs juveniles needed. Her testimony was about the significantly different ways juveniles make decisions and behave–a testimony apparently intended to sway the judge toward sentencing Brendan as a juvenile offender rather than as an adult.
The last witness, Woody Douge, a senior probation officer at the Department of Juvenile Justice, was the last witness of the day, stepping into the box at 4 p.m. He was the probation officer assigned to Depa. After Brandon pleaded, he was responsible for making a sentencing recommendation to the court. That recommendation was for commitment to a residential program that would work much like a diversionary option. He listed several. He could be there until he’s 21, but would then be released outright.
If he is not successful in that program, Brandon can be returned to the court system. But that recommendation was made without awareness of Brandon’s violent outbursts at the residential homes in South Carolina and in Palm Coast.
Click On:
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- At Brendan Depa Sentencing, Prisons’ Mental Health Chief Draws Bizarrely Rosy Picture of Services Awaiting Him
- Joan Naydich, Brendan Depa’s Victim of Beating, Details How ‘Everything Was Taken Away’ from Her
- Chief Engert: How Flagler County Jail Stepped Up to Ensure Brendan Depa’s Continuing Education
- Lawsuit Blames Flagler Schools’ Failure to Address Brendan Depa’s Known Needs and Risks Before Attack on Aide
- The Dis-Education of Brendan Depa
- The Brendan Depa I Have Come To Know
- Brendan Depa’s Mother Tells Her Son’s Story
- Brendan Depa's Sentencing is Postponed as Lawyers Cite More Preparation Needed
- Brendan Depa Tenders Open Plea in Beating of Matanzas High Staffer, Leaving Sentence Up to Judge
- Brendan Depa Will Plead Out in Teacher-Assault Case, Leaving His Fate to a Judge
- Brendan Depa, Now 18, Is Transferred to the Flagler County Jail to Await Trial
- Shocking Disparities in Flagler’s Handling of 3 Different Assaults by Disabled Students Against School Staff
- Despite Severe Autism, Judge Finds Depa, Ex-Matanzas High Student, Competent to Be Tried for Assault on Aide
- Court Roundup: Plea Possible in Ex-Matanzas Student Case; Murder Trials Pushed Back
- Matanzas Aide Attacked by 17 Year Old Had Reported His Threats As Far Back as August
- Judge Orders Mental Evaluation for Matanzas Student Who Assaulted Aide
- Matanzas Assault Case: A Miscarriage of Justice Hardens Before Our Eyes
- Matanzas Student Who Attacked Aide Was Arrested 3 Times for Battery Before; Other Cases Examined
- Matanzas Student Charged as Adult with 1st-Degree Felony in Assault on Teacher Aide
- Matanzas High School Special Education Student Arrested in Attack of Teacher Aide
