Teacher Won’t Be Charged in Death of Retarded Boy

No criminal charges will be filed in connection with the May 1 death of a 14-year-old retarded boy who suffocated after being restrained by a teacher at a Huntington Beach school, Orange County Deputy Dist. Atty. Richard F. Toohey said Wednesday.

“There is insufficient evidence to support any criminal homicide prosecution,” Toohey said.

However, a spokesman for Huntington Beach police, who investigated the case, said police believe that involuntary manslaughter charges should have been filed in the death of Barth Pico, who went to school at the Gill Education Center, a county-operated facility.

Meanwhile, officials at the Orange County Department of Education and at Fairview Developmental Center, where the boy lived, said they will begin investigations of their own to determine whether local and state regulations were violated. And a regional panel that oversees programs for the developmentally disabled Wednesday asked the Orange County district attorney’s office to reconsider its decision.

The incidents leading up to Pico’s death began when the boy threw a tantrum on the bus ride from Fairview in Costa Mesa to Gill Education Center in Huntington Beach.

The youth had thrown feces, scratched himself and others and knocked another student down, reopening a cut on that youth.

Became More Violent

As he became more violent, his teacher covered the boy’s eyes with a diaper, covered his hands with socks to keep him from scratching and rolled him in an exercise mat and sat on him, police said.

Barth stopped breathing and later was pronounced dead.

The teacher, Jeanne Warnecke, 32, who has been employed at Fairview since 1978, could not be reached for comment. Her attorney, Paul S. Meyer, said, “The district attorney’s office engaged in an extremely thorough investigation. They were not going off on emotion.”

Warnecke is regarded as an expert in dealing with the developmentally disabled and has instructed other teachers in how and when to use restraining techniques, according to Toohey and Larry Belkin, director of special schools programs for the county Department of Education.

Warnecke has been reassigned to administrative duties at Fairview pending the investigation there, according to Fairview Director Hugh Kohler.

“We don’t know if anyone is at fault,” Kohler said. “We wanted her out of the classroom situation until that can be evaluated. Is the individual at fault, is the system at fault, is the school district?”

Belkin said that, except in emergency situations, restraints used on Fairview students at county facilities must be approved in advance by a special committee.

Was Being Evaluated

“The boy in this incident was currently being evaluated by a county psychologist on the possibility of having to invoke some type of behavior management techniques because of his tendency to strike out at times,” Belkin said. “It never did get to the committee.”

Toohey called the death “a very tragic and terrible situation.”

But he stressed that “I have had an opportunity to review all the facts and circumstances. I looked at the conduct of everyone who was in the care of that individual. No one had exclusive care or custody . . . at the school.”

There were numerous adults present during the incident, Toohey said.

Police Dispute Decision

Huntington Beach Police Lt. James Walker said police will “abide by the district attorney’s decision.” But Walker characterized the restraints used on the 62-pound youth as “totally inconsistent with what anyone can do.”

“We’re at odds with (the district attorney). We were pushing for involuntary manslaughter,” Walker said. “We feel it was a negligent” act.

Walker said he believes Fairview’s written policy on restraints had been violated. He conceded, however, that the Fairview policies “are rules, as opposed to laws.”

Meyer, Warnecke’s attorney, said the “case falls far, far short of any kind of criminal misconduct or mishandling.”

Board Asks Reconsideration

The attorney declined to discuss the restraints, other than to say they were intended to protect the boy from injuring himself and others.

However, Rhys Burchill, executive director of the Developmental Disabilities Area Board XI in Tustin, said the board’s chairman has prepared a letter to Dist. Atty. Cecil Hicks, asking that the case be reconsidered “on behalf of the 28,000 youngsters we have enrolled in special education (classes) in the county.”

Burchill said the letter, signed by board Chairman Merle Tracy, expresses the agency’s “grave concern that this death be given consideration equal to that given the deaths of any citizen of our community.”

Burchill said, however, that the letter was written without board members seeing police or district attorney reports on the case. “We have no documents at this point,” she said.

Wide Ramifications

The letter also said the board, one of 13 regional monitoring agencies in the state, is “willing to assist in every way.”

Toohey declined comment on the request for reconsideration. Hicks, could not be reached for comment.

The decision to file no criminal charges, Burchill said, has wide ramifications because of what she termed a lack of recognized statewide standards detailing the types of restraints that should be used with the developmentally disabled, plus the circumstances under which they should be applied.

“We have so many youngsters in special education programs in Orange County, and we don’t have a process to formally develop intervention,” Burchill said. “This could be very serious.”

Authorities said Barth Pico’s family has not obtained an attorney and has requested that the family not be contacted about the incident.