The Kansas Bureau of Investigation doesn’t think a crime was committed in the high-profile death of a black Wyandotte County Jail inmate this summer, and bodycam footage bears that out, sources tell The Heartlander.

Nonetheless, a white sheriff’s deputy has been charged by Wyandotte County District Attorney Mark Dupree with second-degree murder/reckless or, in the alternative, involuntary manslaughter in the July 5 asphyxiation death of inmate Charles Adair, 50.

Adair was a medically compromised inmate who a KBI affidavit reports had failed to comply with verbal orders and struggled with multiple deputies while being transported to a medical unit and again back in his cell. The KBI affidavit says he died in his cell after deputies struggled with him in an effort to merely uncuff his hands.

While acknowledging the heartbreak of the situation, a longtime local criminal justice veteran with intimate knowledge of the case tells The Heartlander he’s seen the bodycam footage and sees neither a crime nor recklessness or negligence in the deputies’ actions, notably of the one charged in the case, Richard Fatherley.

“I watched a video of a guy die. And I’m not trying to take away from the tragedy of that guy dying,” said the veteran, who requested anonymity.

Adding emotional weight to the tragedy is that Adair was in jail on multiple traffic violations, albeit with added charges of failure to appear in court.

Still, the veteran says, in watching the video footage “there was nothing that jumped out at me as inappropriate or excessive.”

Untrue claims in local media

One news report by Kansas City’s National Public Radio station KCUR claims Fatherley held Adair down “for more than a minute” in “‘prone restraint,’ where an arrested person is placed face down on the ground so their arms can be pulled back and handcuffed. This tactic has been known to be deadly since the mid-1990s, KCUR previously reported, and famously caused the 2020 death of George Floyd in Minneapolis.”

But the KBI affidavit, citing the video footage, indicates that’s completely untrue.

In truth, the affidavit says Adair was up on his knees with his upper torso resting on the bunk and his hands cuffed in front of him – not in back.

And, indeed, both the affidavit and The Heartlander’s source say deputies were simply trying to take Adair’s handcuffs off of him so they could leave him in his cell following treatment in the medical unit for a preexisting and apparently longstanding gaping leg wound.

Moreover, the KBI affidavit also notes that, while Fatherley was holding Adair down with a knee, it was on the inmate’s lower back – unlike the actions in the Floyd case.

“The part where Fatherley had his knee on this guy’s back or across this guy’s back, however you want to refer to it, there was nothing about that portion of the video that made my toes curl as bad or otherwise inappropriate,” the criminal justice veteran said.

“It was the lower back. It was nowhere close to the neck or throat, I’ll tell you that.”

Medical complications complicate the situation

One legitimate similarity to George Floyd’s death might be the fact that Adair’s health was severely compromised by various medical conditions and alleged substance abuse, according to the KBI affidavit – which quotes the autopsy report as listing “hypertensive cardiovascular disease and hepatic cirrhosis due to chronic alcoholism” as “contributory causes” to his death.

The affidavit also notes untreated diabetes, leading to a prior hospital recommendation that his leg be amputated, “but he has refused.” The affidavit also says Adair told the jailers of a pacemaker; blood clots in his left arm; high cholesterol and elevated fat levels in his blood; hypertension; and schizophrenia.

In addition, the affidavit says when Adair tried to turn himself in to the jail “on numerous misdemeanor warrants and an NCIC warrant out of Johnson County,” he was turned away “due to a large infected wound on Adair’s left leg.”

He received treatment at Providence Medical Center for “osteomyelitis,” described as “an inflammation of the bone and bone marrow, usually caused by bacterial infection.”

The criminal justice veteran found body cam footage of the leg wound stunning in size and scope, and the medical response to it in the jail striking.

“If you were to see the video from the examination and the treatment up in the medical unit – if you were to see that or even just a couple of still shots from it that showed the wound from the deputy’s body cam – your jaw would hit the floor.  

“I mean, it is the most remarkable wound I’ve ever seen.”

The gaping wound stretched from “just below his knee,” where it was nearly as wide as the leg, “all the way down almost to his ankle,” he said, adding that the wound appeared to have extended entirely through the back of the leg.

“I’m told that exposed bone was part of this wound. This is the kind of wound that you would expect to see from somebody who’s been through war – recently.”

At one point while being transported to the jail’s medical unit in a wheelchair, the affidavit says he locked the wheels to stop it. When another unnamed deputy reached down to unlock the wheels, Adair yelled that the deputy was trying to hit him, and proceeded to throw himself on the floor.

Where the case might hinge

The criminal case against Fatherley will likely pivot on not just the medical examiner’s testimony, and whether any experts disagree with it, but also on the actions of the deputies – and whether it’s perceived that Adair was restrained far beyond any time he started complying with the removal of his handcuffs.

The KBI affidavit says statements by the various deputies were mixed about whether Adair ever did comply.

Another key factor is whether the KBI – by law the investigating agency for in-custody deaths in the state – believes a crime was committed. At this point, the KBI simply isn’t saying – declining The Heartlander’s invitation to comment.

More importantly, the KBI’s own affidavit fails to either cite a crime or recommend criminal charges.

Both the criminal justice system veteran The Heartlander interviewed and Fatherley’s attorney James Spies say they’ve never seen a criminal affidavit that doesn’t make note of any crime.

Both say they have information there’s a good reason for that: the KBI simply doesn’t believe a crime was committed – not even an unintentional one, which this case alleges.

The Heartlander asked Spies if he’d ever seen a criminal affidavit that doesn’t allege a crime. 

“No,” said the attorney who’s been practicing law for 30 years.

Does he find that remarkable?

“I find a lot of things about this case remarkable. So, I think, yes, I do find that remarkable.”.

The Heartlander also asked the criminal justice veteran of 25 years if he’d ever seen a KBI affidavit such as this that just doesn’t even address criminal charges.

“I’ve never seen one from the KBI, the Kansas City, Kansas Police Department, the Wyandotte County Sheriff’s Office, or any other law enforcement agency,” he said. “It’s something I’ve never seen.”

Both sources say they have it on good authority that the KBI concluded internally that there was no crime committed.

“What I understand is that the KBI did not think that there was wrongdoing in this case. But I can’t officially say that from some source, so to speak,” Spies said.

“It is my information that the KBI has determined that no criminal wrongdoing has occurred here,” the criminal justice veteran confirmed.

Will KBI weigh in?

Why wouldn’t the KBI just say that publicly?

“I don’t have an answer for that,” the veteran said. “I come down on the side of Dupree should not have charged this. There’s a lot of outrage in the law enforcement community about this deputy being charged, and understandably so.”

But now that the case has been charged, the criminal justice veteran acknowledges there are good arguments to be had on both the prosecution and defense sides.

“I think it’s a good case for the state to prosecute. And I think it’s a good case for the defense to defend,” he said, adding he suspects the case could end in as many as three hung juries.

“It’s my assessment that, based on the video that I saw, you’re not going to get 12 jurors to unanimously say anything one way or the other about this.”

Somewhere along the way, investigators at the KBI are going to have to explain why they’ve stood mute on whether there was a crime.

“The stuff that would traditionally be contained within an affidavit and application for warrant, none of that is contained in the [KBI] document that Dupree used to charge this,” the veteran says.

The KBI’s assessment is “going to come out eventually,” he adds. “And if I’m right in my prediction, it’s going to come out multiple times during multiple different settings, not only preliminary type settings, but multiple trials.”

Spies argues the evidence simply doesn’t support the charges leveled against his client.

“I am shocked that they charged him with second-degree murder/reckless. I’ve not seen any evidence that could even begin, in my opinion, to meet that threshold,” he said. “And I don’t even think it meets the threshold of recklessness for involuntary manslaughter. …

“How does a sheriff’s deputy, how does somebody in the jail, confront or deal with a scenario in which an inmate is not conforming to their orders, not obeying their orders? You can’t just let havoc run wild. And they took what I believe were reasonable steps to get this inmate properly secured in his cell.”