HOPEWELL, Va. -- More than a year after a teacher's aide and former police officer was seen on surveillance video allegedly assaulting a student at a Hopewell elementary school, the criminal case is set to go before a judge.
But the case won't be heard by a current Hopewell judge, nor will it be prosecuted by a Hopewell commonwealth attorney.
Michele Simpson said surveillance video recorded in the hallway of Harry E. James Elementary shows teacher's assistant Kevin Johnson allegedly assaulting her 8-year-old son on August 11, 2022.
"I watched it over and over again because I thought my eyes were tricking me," Simpson previously told CBS 6 in an interview.
As described in a police incident report, the video appears to show Kevin Johnson strike the boy with his hand, chase after him with a cane, grab him and jerk his neck, which appears to cause the boy to hit his head against a wall.
Johnson, a former Hopewell police officer and former candidate for Hopewell Sheriff, was then seen walking the student down the hall with his hand on the child's neck.
Hopewell Police investigated the incident, consulted with prosecutors and a magistrate, and ultimately charged Johnson with one count of misdemeanor assault.
However, the case never went before a judge because Hopewell Commonwealth's Attorney Rick Newman would end up essentially dropping the charge, much to the surprise of Simpson. Simpson said she only learned the charge was dropped in October 2022 through the police detective who investigated the case.
"He tells me, it's been nolle pressed and he was just as in shock as I was," Simpson said.
Upset with the outcome, Simpson went back before a magistrate in August of 2023 and petitioned to have an assault charge re-authorized against Johnson, to which a magistrate agreed.
Newman said in a prior email that if Simpson attempted to bring the charge back, he would request a special prosecutor be appointed to the case.
After a CBS 6 investigation into the case aired in August 2023, CBS 6 has learned through court documents that Colonial Heights Commonwealth's Attorney Gray Collins has been assigned as the special prosecutor.
An adjudicatory hearing has been set for December 14, but the case will not be heard by a sitting Hopewell judge.
Juvenile & Domestic Relations Court Chief Judge Jacqueline Waymack recused herself and all judges in the district stating, "The defendant is a former Hopewell police officer and it could create the appearance of impropriety."
The local court requested that a retired judge hear the case.
While Newman previously told CBS 6 he did not need to explain why he initially set aside Johnson's charge, he wrote in an email to a group of concerned parents and Simpson in May 2023 that he did not believe Johnson acted with intent to hurt the child. Rather, he believed Johnson was trying to protect the boy.
Newman also cited investigations by the school and Child Protective Services that he said revealed no evidence of criminal conduct or child abuse.
CBS 6 legal analyst Todd Stone said it's not the responsibility of CPS or schools to investigate criminal wrongdoing and that the opinions of the school or CPS "doesn't really matter" to a criminal judge.
A school incident report obtained by CBS 6 determined Johnson's physical restraint of the student was unsanctioned and that the student's behavior did not justify his actions including "to prevent a student from inflicting serious physical harm or injury to self or others."
A CPS report obtained by CBS 6 determined there was not a preponderance of evidence to suggest Johnson purposely caused the boy to hit his head and that the allegation of abuse and neglect was unfounded.
According to Hopewell Schools, Johnson didn't return to the school after the day of the incident and officially separated from the division in December 2022.
This is a developing story, so anyone with more information can email newstips@wtvr.com to send a tip.
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