Abuse of Power: One Family's Fight

Since Michael Nicholson was suffocated and killed by a Lubbock State School worker last June, his brother has played investigator, medical examiner, detective and attorney. He has pleaded for police and prosecutors to take up the case, which they did this fall. But with each day that passes, David Nicholson fears that the man who killed his profoundly disabled brother — and the other employees who stood by and watched it — will join the ranks of state workers who are never convicted for their acts. “The physically and mentally handicapped are not equally represented under the laws of Texas,” David says. “And nobody seems to want to do anything about it.”

David has reason to worry. Of the 75 employees fired from Texas’ institutions for the disabled for “Class 1” sexual or physical abuse in the last decade, just 13 have been prosecuted, according to a Texas Tribune investigation. And only two ever served jail time.

Paula Mixson, a consultant who spent two decades working for the Texas agency that conducts abuse investigations, says getting local authorities to pursue these cases is a constant battle. “We really struggled to get our cases to their attention, but they were rarely ‘sexy’ enough,” says Mixson, who retired from the Department of Family and Protective Services in 2003. “In the scale of everything else going on, these aren’t seen as major crimes.”

In Lubbock County, District Attorney Matt Powell insists that’s not the case. The Lubbock County District Attorney's Office, which has prosecuted more serious state school abuse cases in the last decade than any other Texas D.A.'s office, is pursuing a manslaughter charge against 38-year-old Donnell Smith, the Lubbock employee who pinned down and asphyxiated Michael on June 6. Powell won't talk specifically about Michael’s case; he's got a policy against discussing cases he's investigating. But he maintains his office is always “aggressive and proactive” about abuse cases — no matter how difficult they are to prosecute. “You see the same challenge in a lot of these cases: a victim who can’t communicate, no witnesses to it,” he says. “You want to focus on the guy who was really the main abuser.”

At the time of his death, Michael, 45, had lived at the Lubbock State School for three decades. He was non-verbal, fragile, and had the mental capacity of an infant, and he was not supposed to be physically restrained under any circumstances.  Yet according to the state abuse report, when Michael refused to get dressed on that June day, Smith repeatedly sat and lay atop him to hold him down, mocking him and then choking him with a towel until his face turned blue. When Michael became unresponsive, Smith didn’t immediately call for help; it took 10 minutes for him to start his failed attempt at CPR. When investigators asked Smith how Michael had died, he lied repeatedly, telling them Michael hit his head while jumping on the bed.

Though Smith, 38, was fired for his acts, and a detailed state investigation released shortly after determined he’d committed “Class 1” physical abuse, David said Lubbock police expressed little interest in the case for two months — until he took matters into his own hands. Outraged at what he calls a complete lack of communication between Lubbock police and prosecutors, David delivered the 66-page state investigative report to the medical examiner himself. In August, the medical examiner declared Michael’s death a homicide. But police didn't issue an arrest warrant until October 28, four and a half months after Michael’s death. Smith, who was charged with manslaughter, made bail several days later. Weeks later, when David called the Lubbock District Attorney's Office, he said he learned police had not yet turned over evidence or reports to local prosecutors.

Two phone messages left with the Lubbock police chief were not returned.

David, who has since drawn disability advocates into the fray, says he’s pleased Smith has been charged — but he's still waiting anxiously for a trial date. And he's livid that the five other employees who witnessed Michael’s death, all of whom have been fired for their inaction, haven’t been charged with failing to intervene. In the highly publicized Corpus Christi State School “fight club” ring last year, workers who watched but didn’t participate were still prosecuted for their involvement. None of those disabled residents died or were seriously injured.

Powell, says in some cases, prosecutors have no choice but to let the lesser criminals off the hook so they have someone to testify against the worst offender. Witnesses to a crime could be charged with failing to intervene, for example, or with making false statements. But if they’re charged, they’re more likely to lawyer up and far less likely to speak freely about the perpetrator’s conduct. “If you have a victim who dies or is unable to relay what happened, you have to rely on guys who may be culpable in some way, but can give witness statements against the main actor,” Powell says. “Sometimes you’ve got to make a pact with the devil to get the main actor.”

But Lilly Nicholson, Michael and David’s mother, says that “pact” is unacceptable for her family. “It just makes me so angry and sick in my stomach,” she says. “We want these people to be prosecuted. If this happened to anyone else, it would be prosecuted to the full extent of the law.”