Published May 8, 2014
Substitute from East Detroit drowning bound over to circuit court
By Kevin Bunch firstname.lastname@example.org
Following a day of testimony at the 38th District Court May 8, Judge Carl Gerds found sufficient evidence to bind over to Macomb County Circuit Court the case of Johnathon Sails, the East Detroit High School substitute teacher charged with involuntary manslaughter in the November drowning death of student KeAir Swift.
Sails’ arraignment at the circuit court was set for May 27. Gerds said that based on the testimony of three students in the swim class that day, it appeared that Sails met the gross negligence requirement set out by state law.
On Nov. 8, 2013, Sails had been left in charge of the last day of a three-week swim class. According to the students who testified — Harlan Evans, Edris Brown and Darrell Ford — at a point near the end of class, Swift had climbed the diving board and planned to jump in the deep end.
“KeAir asked if they (the four kids in the pool) could catch him if he jumped in, and they said yes,” Ford said. “So he jumped in.”
Evans, who was in the pool at the time, said Swift started panicking after hitting the water, and Evans and two other boys tried to help him out. When Swift started pulling Evans under, Evans said he went up for air while other students jumped in to help.
The students each said that during the class, Sails had been up in the bleachers not watching the pool, roughly nine feet above the pool deck itself, along with other students. According to Macomb County Assistant Prosecutor Bill Cataldo, state law requires a certified adult to be on the pool deck at all times when people are in the pool.
Ford said he ran and told Sails what was happening, and that Sails initially believed that Swift was just playing around in the pool. Ford then ran out to try and get help in the hall from a security guard.
Meanwhile, Brown said, students tried to get Swift out with a shepherd’s hook — a long stick used to help people drowning in the water — while Sails walked calmly down to the pool and locker area. The students then said he stepped into the locker room briefly, but did not appear to change out of his clothes when doing so.
Sails then “belly flopped” into the water, according to Evans, but stayed under for approximately three seconds before coming up and saying Swift was too far down to reach and that he couldn’t swim to get down there. Evans said some students jumped back in to try and help, but they were unable to pull Swift up very far. At that point, security guards jumped in to help, but it was assistant principal and health teacher David Zauner who was able to get Swift out of the water.
Zauner said that he was in then-Principal Mary Finnigan’s office reviewing a tape of a fight from earlier in the week alongside Finnigan, Assistant Principal Nicole Kirby and Athletic Director John Rizzo when they all received an alert on their walkie-talkies that a student was drowning. Zauner said he ran straight to the pool and dove in as soon as he saw Swift.
“We got him out and immediately went to chest compressions,” Zauner said. He added that when they moved Swift near the external doors to continue treatment, Zauner spotted the paramedics and Fire Department personnel as they arrived to take over.
Zauner said that swim teachers need to be lifeguard certified, and he had concerns after seeing how disorganized Sails’ class was while he was teaching gym. Zauner brought his concerns to the physical education department head, Mark Weigand, and Zauner said he heard Sails insist that he had that certification.
Athletic Director John Rizzo also said during testimony that he had asked Sails about lifeguard certification, and that Sails had told him that he had it. Rizzo did not ask for a physical copy of it.
Finnigan reported that she had received an email from Sails a month prior expressing interest in the physical education teaching job following the resignation of the previous teacher, Amy Altman. In it, he said he could provide his transcripts, CPR and first aid certifications, and “lifeguarding forms.” As the human resources department does the hiring, she did not check into that further.
Sails and Finnigan were track coaches together prior to her being hired as principal.
Finnigan added that after the drowning incident, she requested copies of all those forms, but Sails claimed in an email that he could not find the lifeguarding certification and would contact the Red Cross to get a copy. Cataldo said the investigation turned up that Sails had never received such a certification, nor had he ever taken a lifeguarding class.
While Sails’ attorney, Robert Leonetti, disputes that his client wavered over getting in the pool, he did not argue that Sails had lied about his certification. However, he said the blame for the drowning did not just lay with Sails, but with the lead teacher, James Reed, who had just been hired by the district a week prior.
During testimony, Reed said at the time he was hired, his CPR and lifeguard certifications were both expired and that the school had not made bringing those back up to date a condition of his employment.
He was in the midst of a transition phase that week, working with Sails as he settled into his role as the lead teacher, Reed said. However, on the day of the class, he said he was assisting a substitute teacher in the gym class across the hall in getting a handle on unruly students, leaving Sails to run the swim class.
While ushering students in the hall back to the swim area, he heard shouting and saw Sails with students standing around an area of the pool.
“Everyone was screaming and saying things. It took me a little while to process what was happening,” Reed said. “I looked down because they were all signaling down and saying down, and I didn’t see anything.”
“I didn’t take a chance,” he added. “I didn’t know what was happening and ran to get help. I did not go in.”
Susan Oliver, secretary in the East Detroit High School principal’s office, said that substitute teachers are not allowed to be teaching swim classes and did not know how Sails came into that position. After finding this out, she ordered Sails and Reed to be in the class together at all times.
Both Reed and the students testified that the swim classes tended to be disorganized under Sails, with no lesson plans or teaching taking place, with locker rooms being left open and students throwing around floatation devices.
Leonetti argued that Reed’s failure to be in the classroom after being told to stick with Sails at all times was a greater degree of negligence than his client’s, who did everything he could.
“Reed was the lead teacher, and Johnathon was the sub,” Leonetti said. “If Johnathon is such a bad teacher, why would Reed leave Johnathon in the pool? If there is trouble in the gym, why not have Johnathon go to the gym?”
Leonetti said Reed should have gone into the water after all the indications that something was wrong, rather than run to get help, adding that Reed being hired without being certified was a sign of negligence, as well.
Cataldo argued that while there may be grounds for a civil case against the school and others, there was sufficient evidence for Sails to be bound over to circuit court for involuntary manslaughter due to his violations of state pool safety statutes.
“I think we can see, from testimony that has come out, it is clear that Mr. Sails knew what the requirements were for that position,” Cataldo said. “And then we heard from students that after he got in, he said he can’t swim, that it looked like he did a belly flop.
“He lied about his certifications, he can’t even swim, and he was clearly in violation of the state statute.”
Gerds said negligence cases tend to bring up finger-pointing, but he agreed with Cataldo that it appeared Sails knew what the requirements were and lied about them.
“We have a pool, and a pool in and of itself is a dangerous circumstance — or instrument — where people must use the utmost care,” Gerds said. “Here we have an individual, albeit a sub, up in the stands — the bleachers — not paying attention, and to me that indicates a situation where gross negligence can occur. I believe they have met that.”
Lakisha Swift, KeAir’s mother, said following the examination that she believes Reed also should have been charged. She added that she wants Sails “to pay,” blaming him for the loss of her son.
Leonetti said that discovery still is going on in the case, and that as Sails had to deal with kids running around on the bleachers and in the pool by himself — after being told that Reed should have been paired with him the entire time — and tried to save Swift, he did not believe there were grounds for a conviction.
If convicted, Sails could face up to 15 years in prison.