Who is Brendan Depa?

Brendan Depa is an 18 year old level III (severely autistic) teenager. He’s a large young man who stands 6′ 6″ tall and weighs 270 pounds. As a result of his autism, he has the estimated emotional maturity of a 4-6 year old child. Despite this, he has an above average IQ of 113. According to Gene Lopes, a retired special education teacher who spent several months tutoring Brendan while he was incarcerated in the Flager County Jail, “His vocabulary and technical writing skills are in a superior range. He is a prolific writer who is presently writing two books. He is an (illustrative) artist. He (also) writes songs. His vocabulary and technical writing skills are in a superior range. He is a prolific writer who is presently writing two books.”

During his time with Brendan, Mr. Lopes was able to obtain a copy of his IEP plan from his adoptive mother. An IEP (Individualized Education Plan) is a legal document that is required for each special needs student under the Individuals with Disabilities Education Act (IDEA). Each plan is tailored for the specific needs of each student and specifies the instruction, supports, and services that the student will need to be successful in school.

Brendan’s IEP had twenty-five components. The ones that are most relevant to his case are the following:

1) “Utilize a token economy and allow him opportunities to earn tokens (level reward system) to cash in for tangible or edible items.” Explanation: To encourage appropriate behavior, students on a token economy get tokens for meeting the goals of a behavioral contract. These tokens may be exchanged for rewards. For example, I recently worked with an autistic pre-K child who would not stay seated during lessons. Since this student craved his teacher’s attention above all other rewards, he was told that for each lesson in which he could remain seated, he would receive one token. After earning five tokens, he would have earned the right to choose a book from the class library and to have a personal story time with his teacher at the end of the day. The student’s behavior literally changed within a matter of days and he was able to stay happily seated throughout each lesson.

2) “Avoid correcting, reprimanding, or redirecting Brendan in the presence of peers as student has a history of becoming verbally aggressive and defiant when approached this way.” Explanation: Teenagers can have very fragile egos and can be extremely sensitive regarding the use of criticism in front of their peers.

3) “Do not take comments personally, and use planned ignoring.”  Explanation: Since some students on the autistic spectrum have poor control over their emotions, they may be prone to screaming verbal abuse whenever they’re frustrated. The use of “planned ignoring” means that unless this behavior escalates to the point where the student poses a physical danger to others (including the special education teacher), this behavior should be ignored as engaging with the student would only make the situation worse. In situations like this, it might be necessary to evacuate the other students in a class to a safe and quiet place so that the autistic student could then have the time (and privacy) to burn through his or her frustration.

Although Brendan was adopted as a child, following two domestic assault issues which required the intervention of the police, instead of living with his parents, he lived at ECHO (East Coast Habilitation Options), a group home agency for behaviorally challenged youth. ECHO was a three hour drive away from his home.

In addition to his level III autism, Brendan is known to have:

  • Attention Deficit Hyperactivity Disorder
  • Oppositional Defiant Disorder
  • Intermittent Explosive Disorder
  • Mood Dysregulation Disorder
  • Post Traumatic Stress Disorder
  • Anxiety

As a level III autistic person, he is challenged with his ability to interact appropriately with others. He is hypersensitive to certain sounds and textures, has low frustration tolerances, poor emotional regulation, rigid thought processes (such as the need to strictly adhere to schedules), and difficulty with focusing.

His adoptive mother has said that he sometimes has problems with distinguishing between fantasy and reality. He is for example, scared by a mural at a restaurant called Tijuana Flats because the painting that was used to advertise its hot sauces showed a boy standing in a fire with tears streaming down his face. Brendan thinks that this picture is a representation of Hell.

She has also said that there is a shark statute in town that he doesn’t like because whenever he sees it, he’s afraid that it will come to life and attack him.

The Crime

Brendan Depa attended Matanzas High School. His special education teacher was a first year novice instructor named Barbara Buchanan. Her aide was a paraprofessional named Joan Naydich who had previously spent nearly 20 years working in the school cafeteria and was new to special education. From what I have read, she did not have any specialized training to work as a special education aide and did not follow Brendan’s IEP.

As with so many districts in the United States, the Flagler School District had severe staffing issues. Both Barbara Buchanan and Joan Naydich had volunteered to work at what was arguably one of the most challenging jobs in special education. They worked with a special education class of students with severe emotional/behavioral disabilities (EBD). Although neither educator had prior experience in special education let alone the challenge of working with emotionally challenged and potentially violent students, the district had nobody more qualified to place in this classroom given their overall staff shortages.

The placement of both educators in this classroom may have been facilitated by Florida’s relaxation of state mandated certification requirements for new teachers and paraprofessionals. From public records requests, it is known that neither person had yet completed the many hours of additional training that were required to be in an EBD classroom until after the incident of February 21, 2023.

It likely did not help that Governor DeSantis lowered the teacher certification requirements because he said they were too rigid. By way of example, between September 2019 and August 2021, nearly 1,200 would-be teachers failed their state certification test by scoring one standard error measure below the minimum passing score.

By way of contrast, EBD teachers in other states are required to have a bachelor’s in Special Education and a master’s in learning disabilities. Most (if not all) states also require the completion of up to 100 hours of professional development every four to six years.

Since Nevada is in much the same boat as Florida in terms of finding sufficient qualified teachers, they are allowing currently certified teachers like myself, to pursue certification endorsements for other areas. While I do not have a bachelor’s in special education or a master’s in either learning disabilities or autism, I have a bachelors in elementary education and a master’s in curriculum and instruction. To work as a SPED teacher with autistic students, I am working towards completing 33 credit hours of specialized training.

On the morning of February 21, 2023, Brendan’s day got off to a bad start. Having arrived from his group home in a van, he was annoyed that he had to wait for the other students to arrive on their school busses. Given limited special education staffing, the students in this class would wait until they had all gathered before going to the school cafeteria where they would eat breakfast. After breakfast the students went to the special education classroom where the aide, Joan Naydich, said that she would let Brendan play with a Nintendo Switch if he completed all of his academic tasks in his next class.

His first class was a regular education computer class for cybersecurity. Brendan was escorted by his aide to this class. Since the classroom teacher was absent, there was a substitute teacher in the room. Brendan took a seat, pulled out his Nintendo Switch, and began playing a game. This action distracted nearby students and made the aide ask him to put the device away. Although Brendan initially put the device away, within moments he again had it out and was playing a game. The aide subsequently texted the special education teacher to suggest that Brendan not be allowed to bring gaming devices to other classes.

When the computer class ended, the aide escorted Brendan to his special education classroom where his teacher began talking to him about the gaming device. Having realized that the aide must have told his teacher about what had happened, Branden became annoyed.

He angrily called the aide a “bitch” and a “whore”. When Joan Naydich decided to leave, Brendan spat in her face. After she left, Brendan charged her, knocked her down, and began kicking her unconscious body. The aide suffered five broken ribs, traumatic brain injury, damage to her shoulder, and permanent hearing loss before other educators could pull Brendan off her.

Brendan Depa (pictured below with his maternal grandmother) was charged as an adult with aggravated battery on an education employee, a first degree felony in Florida which comes with a maximum penalty of 30 years in prison. He was held in the county jail with a $1 million bond. Since his adoptive parents couldn’t meet the 10% required payment of $100,000 to get Brendan bonded out, he remained incarcerated until his trial.

How the System Failed Brendan Depa

While there is no doubt that Brendan lost his temper and that he physically assaulted the aide, his mother has claimed that the group home should never have enrolled him at Matanzas High School because this was a large school with 1,716 students. As such she felt that there were far too many potentially triggering opportunities. At the first IEP meeting that they had when Branden was 16, Leanne Depa observed that a large comprehensive traditional high school was not an appropriate environment for her son. Although she had wanted to place Branden in a residential non-public school, no such facilities were available within her area.

Despite her concerns, Branden’s group home placed him at Matanzas High. As a curious oddity, it should be noted that Matanzas High School is part of the Flager School District. This is the same district where black 4th and 5th graders were singled out later in 2023 for a segregated assembly in which the students were admonished for their underperformance by a school principal who then characterized these children as being potential criminals.

Leanne Depa further contends that Branden’s school violated his IEP. He should not have had access to a Nintendo Switch because the use of such gaming devices were a known trigger for him. Although the use of electronic devices was not part of his original IEP, the school says that they added the use of such devices at Brendan’s request. Insofar as Brendan was 17 (and a minor) when this allegedly occurred, his mother has said that she did not authorize or consent to this change. While I do not know who actually authorized this change, I will again point out that Brendan’s teacher was a first year instructor.

As a novice instructor, Brendan’s teacher did not follow the best practice of weekly progress monitoring or providing information sessions with all of the adults who would be interacting with each of her students. The school erred by placing a novice instructor and an inexperienced and untrained aide in an overly challenging special education classroom. They also erred by not having a trained behaviorist on staff who could have worked Branden while also helping the teacher and aide to better meet this student’s needs.

Although it is understood that they may not have had any other better qualified applicants, they could have “sweetened the pot” by supplementing the pay for this job by using school operational money to offer a higher salary. This is something that my last employer did. To attract teachers to a rural location, the school added over $10,000 to the district’s base salary for each teacher.

The use of the Nintendo switch was apparently a prearranged reward that Brendan had previously earned. Talking about taking the switch away would have violated the terms of the token economy (see item #1). Talking to Brendan about his behavior in the computer class (in front of the other students in the special education class) violated his IEP (see item #2). Reacting to Brendan’s screamed insults also violated his IEP (see item #3).

After Brendan assaulted the aide (pictured below), the school did not take responsibility for not having provided the structure and support that this student had desperately needed. Under §300.530(e) of IDEA, the Individuals with Disabilities Education Act, the district could have issued a “manifestation determination” which is a legal document that would have informed the police and the district attorney that the student could not be legally charged because his behavior (however harmful) occurred as a result of his disability.

Since the district chose not to do this and allowed the ten day clock for filing such a directive with the local authorities to run out, Brendan was charged as an adult even though he had only been 17 at the time of this incident.

How the System Failed Joan Naydich

In addition to not having made sure that Joan Naydich was appropriately trained to work in a SPED (special education) classroom, the district also failed to provide the aide with workmen’s compensation following the horrific injuries she sustained while working for the Flager School District. Workmen’s compensation is a U.S. Department of Labor program that provides wage replacement benefits, medical treatment, and rehabilitation for employees who are injured on the job.

Instead of filing a workmen’s compensation claim on her behalf, the district demanded that she return to work during the last two weeks of school in 2023. Since she was not physically able to do this, Joan Naydich returned to work at the start of the 2023-2024 school year in August under a different job title. For reasons unknown, after two days on the job, the district placed her on indefinite unpaid leave. As Ms. Naydich struggles to file her own claim for workmen’s compensation, a Gofundme account has raised over $100,000 to help with her expenses.

The Trial

At a pretrial hearing in March, Brendan was ordered to undergo a mental evaluation. His defense attorney, Kurt Teifke, subsequently asked the court for a competency hearing. This hearing was held in June and was conducted by two psychologists. One found him competent to stand trial. The other did not. Despite their conflicting opinions, it was ruled that Brendan was competent and that his trial would move forward.

Brendan’s attorney subsequently filed a guilty plea to the first degree felony charge. The charge itself was never in dispute since there was security video footage of this attack. Although guilty pleas are often accompanied with pre-negotiated sentencing recommendations, the defense and the prosecution were unable to reach a consensus.

Brendan’s attorney and his family wanted him sentenced as a juvenile offender with minimal or no prison time, probation, and treatment. The prosecutor did not accept extreme autism as a defense and wanted him sentenced as an adult to a state prison for 30 years,. The judge will render his sentence on May 1, 2024.

Brendan’s lawsuit against the Flagler school district

Maria Cammarata of Fort Lauderdale-based Cammarata & Cammarata and Stephanie Langer of Miami-based Langler Law have filed a suit on behalf of Brendan with the Florida Department of Education and the Division of Administrative Hearings.

The lawsuit contends that Matanzas High School was a perfect storm that was just waiting to happen because this school has had an unfortunate past history of not following IEPs. It’s not just Brendan who was failed. The complaint alleges that there have been several parents who have withdrawn their children from Matanzas because student IEPs were not being followed.

While I do not have firsthand knowledge of this school, 32 years of prior teaching experience would lead me to suspect that this school was “warehousing” their special needs students. Warehousing is the process of giving lip service to the idea of special education. So long as these students are kept out of sight and out of mind, the building administration would then be free to focus upon other concerns. Although this isn’t right and certainly isn’t fair (or even legal under the auspices of IDEA), this practice is sadly all too common.

To be fair, the district was having staffing issues. Even before the Covid pandemic of 2020 which has accelerated the rates of teacher turnover, there have long been shortages of special education teachers.

The graph below was created by Frontline Education based upon teacher data from 2020-2021.

By law, if the school was unable or unwilling to provide the support and services that Brendan needed, they were legally obligated under IDEA to increase or to change these services. Instead of meeting Brendan’s needs, the school delayed the development and implementation of his IEP. They ignored the recommendations from the reports of private psychologists that his parents had provided. These reports detailed mood difficulties, problems with anger, anxiety, emotional control, and depression. Brendan’s psychologists had recommended the use of specific strategies which were never adopted and implemented. They had also recommended placing him in a restricted environment.

Although his triggers were known, they were never addressed. While Brendan had once been suspended by the building administration following a disciplinary incident, all the suspension really did was to temporarily remove him from the school environment without having done anything to address his underlying mental health issues.

The lawsuit contends that as a result of the school’s mismanagement of Brendan’s treatment, an aide was seriously injured and Brendan is currently in prison, awaiting his sentencing.

I will update this post once his sentence has been determined.

My Personal Opinion

While I believe that an autistic businessman named Sam Bankman-Fried thoroughly deserved his twenty-five year long Federal prison sentence because he embezzled over a billion dollars of depositor funds from his bit-coin company, FTX, I do not believe that Brendan Depa merits being in a state prison. While his physical assault on Joan Naydich was inexcusable, by not having addressed his needs and by not having followed his IEP, the school’s negligence and possible criminal indifference created the conditions that led to this assault.

Brendan should never have been mainstreamed into a regular education class. He should not have had access to an electronic gaming device, nor should access to this device have been added to his IEP without his mother’s permission. The EBD classroom should not have been staffed with an inexperienced teacher and aide. There should have been a behaviorist on staff. If no such person had been available, the school should have contracted with a local clinic to have the EBD students evaluated and treated using an RTI (response to intervention) plan that would have been created for each student to target specific behaviors that were in need of replacement with ones that were more socially appropriate.

By way of example regarding the development of an RTI, as part of my on-going special education training, I observed a 5 year autistic child in a pre-K classroom. Using a frequency and duration recording sheet, I noted each time this student got up during a lesson to run away from his teacher and recorded how long he was gone. My observation of this student suggested that he was using avoidance behavior to get his teacher’s attention because he time he did this, his teacher would stop instruction to chase after him. This theory was confirmed in part when I learned that he was the only child of a single mother.

The goal of my RTI was to replace his avoidance behavior with staying seated during instruction. We did this by introducing a token economy. Since the student craved his teacher’s undivided attention more than anything else, he was given one token for each lesson during which he was able to remain seated. When he accumulated 10 tokens, he could then choose a book from the class library so that at day’s end, his teacher would read him a story.

To avoid reinforcing his negative behavior (jumping out of his seat to force his teacher to come after him), I had the classroom aide place him in a one minute time out each time he violated expectations. Whenever he ran away from his lesson, his teacher was instructed to completely ignore him.

It did not take long for this student to realize that he was more likely to get what he wanted (his teacher’s undivided attention) if he remained seated.

While an RTI plan for a teenager would be vastly more complicated than the plan I just outlined for a pre-K student, the basic principles of identifying the problematic behavior for correction would have been the same.

Brendan needs treatment in a highly structured residential program. Putting him in a state prison would be punitive and would add to his existing trauma instead of addressing his underlying disorders.

The sticking point for me was one of basic competency. While Sam Bankman-Fried was certainly competent and should have known that embezzling was wrong based upon his prior work experience on Wall Street, Brendan Depa does not appear to have a thorough understanding as to why what he did was wrong and what the consequences of his actions could be.

EDIT: Update, May 1, 2024

Sentencing for Brendan Depa has been delayed.

At 1:30 PM on May 1st, Brendan appeared in court wearing an orange prisoner jumpsuit. He was also handcuffed. The use of the orange jumpsuit and the handcuffs were aligned with the county’s judicial policy.

Prior to rendering a verdict, Circuit Judge Terence Perkins allowed Brendan’s defense attorney, Kurt Teifke, to cross examine the psychologist who had determined that Brendan Depa was competent to stand trial. Although another mental health specialist who had examined the defendant had determined that Brendan was not competent, the trial went forward.

When asked to explain why Dr. Prichard had not believed that Brendan suffers from hallucinations, the psychologist was unable to validate his opinion. His initial reply was to say that he didn’t know. He then repeated a claim from the staff at Matanzas High School as well as ECHO, Brendan’s group home, that Brendan had been faking his hallucinations. No explanation was given as to why any of these people thought that Brendan had been lying.

When told by the defense attorney that Brendan’s birth mother had had mental health issues that included hallucinations, the psychologist admitted that problems with hallucinations could be inherited.

The psychologist went on to explain that Brendan has had a long problem with aggression. He cited instances in which ECHO staff had had to retrain Brendan in a restraint chair. He further claimed that the defendant understood the difference between right and wrong and that he has the capacity to control his anger. Several instances of violent behavior were then cited at his adoptive home, at school, at his group home, and within the local community.

“This chronic aggression. It’s been occurring since he was really young,” Prichard said.

Insofar as the cross examination lasted until 5 PM, the judge has delayed sentencing in order for the cross examination to be completed. No date has yet been set for Brendan’s next court appearance.