LOUISVILLE, Ky. (WDRB) -- An attorney for two former employees of a state juvenile-detention center in Hardin County has asked a judge to dismiss criminal charges against them in the death of 16-year-old Gynnya McMillen, arguing they are being prosecuted because of their race.

Former supervisors Reginald Windham and Victor Holt are accused of lying about performing more than two dozen bed checks on the teen during the time she died.

Both men were fired and charged with misdemeanor official misconduct, with a trial scheduled for later this month.

However, defense attorney J. Clark Baird filed a motion in Hardin District Court Wednesday, noting that five other employees "engaged in the very same conduct" as Windham and Holt, yet were not charged.

The five employees, who are white, were also found to have skipped bed checks and falsified forms, Baird said.

One of them, Christopher Johnson, was fired for failing to perform bed checks and falsifying logs. He has not been charged. He missed and falsified checks seven times.

While Holt and Windham, who are black, were responsible for falsifying information on more room observation sheets -- 15 and 17 times, respectively, on the night of Jan. 10, 2016 and the next morning -- Baird said "that disparity should not be relevant."

"Does the person who robs one bank get a pass because another person robbed ten banks?" Baird asked in his motion. "Is trafficking one kilo of coke excusable in comparison to trafficking in fifteen kilos of coke?"

Baird argues in his motion that Holt and Windham were chosen as the only ones to be charged because they are the only black employees among the group, violating their Equal Protection rights under the 14th amendment.

"So none of the white employees who did the exact same thing the defendants did were charged," according to Baird's motion to dismiss for selective prosecution.

Their cases were the only two presented to the grand jury, he added.

Windham and Holt were on different shifts at the Lincoln Village Youth Center, both responsible for checking on Gynnya every 15 minutes during the roughly 24 hours she was in custody.

Hardin Commonwealth's Attorney Shane Young has said race had nothing to do with the grand jury's decision to indict Windham and Holt.

"We took (to the grand jury) the two people who were the most egregious violators," Young told WDRB last year. "I believe the evidence supports that those are the two people who should have been indicted."

A lawsuit filed by Gynnya's family accuses Lincoln Village employees of using "martial arts restraint techniques" on the teen prior to putting her into an isolation cell, "unmonitored and without medical care, for hours leading to her death from a cardiac event," according to court documents.

In the minutes before she died, McMillen coughed a few times and seized in an "uncontrolled manner," while a guard watched, according to the federal lawsuit filed last year.

An expert witness for Gynnya's family believes the coughing was McMillen gasping and losing consciousness and that Windham, who heard the coughing and saw the seizure, could have "in all likelihood saved the girl's life" if he had taken action, according to the suit.

Windham, according to the suit, said he checked on Gynnya "to make sure she had not thrown up and was choking or something like that." He looked through her cell door at 11:39 p.m. for 18 seconds, watching "her last gasps and dying breaths and final uncontrollable movements and seizure," the suit claims.

Windham "did not lift a finger to help her, instead returning to his desk," according to the suit.

An attorney for Windham and Holt has said they were following protocol at the center.

According to the suit, Windham admitted that "he sees so many things that could have been done that could have prevented this from happening,” including doing bed checks and going into the cell to do a wellness check.

Gynnya was arrested about 2 a.m. on Jan. 10, 2016, on a domestic violence related offense at her home and charged with 4th degree assault.

The day after McMillen died, the facility's superintendent told investigators "it appears we did everything right," according to an internal investigation.

But despite Michelle Grady's initial claim, an internal investigation lays out myriad mistakes from staffers at all levels throughout the teen's 24-hour stay.

Staffers repeatedly lied about checking on the teen, ate her food when she did not respond, left her lying in the same position for 10 hours without a closer examination to see if she was okay and failed to immediately provide CPR when they learned she was not breathing, among other failures, according to an internal investigation in court records.

While an autopsy determined that Gynnya died in her sleep from a rare heart condition known as sudden cardiac arrhythmia, the internal investigation concluded that "had staff conducted their checks as required, they might have detected a medical issue with her and provided the proper medical assistance that may have prevented her death."

Officials at the center admitted they do not check video to see if the bed checks are actually made. This has led to a culture where staffers often skip the checks, according to the records.

The internal investigation found that "not verifying the accuracy" of the observation logs "has caused the staff to become complacent. This in turn became a systemic practice of some staff falsifying the Room Observation Forms."

This "systemic breakdown led to staff possibly not noticing (Gynnya) in a medically stressed state," the internal investigation concluded.

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