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Schlitterbahn charges tossed. Judge says Kansas AG ‘irreparably tainted’ grand jury


A Wyandotte County judge on Friday said that the Kansas Attorney General ‘irreparably tainted’ a grand jury with prejudicial evidence to obtain indictments against several Schlitterbahn employees and associates involved in the design, construction and operation of a water slide that killed a 10-year-old boy in 2016.

Judge Robert Burns dismissed indictments against three individuals and two corporate affiliates of Schlitterbahn, the company that built the 17-story Verruckt water slide in Kansas City, Kan., in 2014. It drew large crowds until Caleb Schwab, son of Kansas Secretary of State Scott Schwab, was killed by decapitation on the ride. The water slide, once billed as the world’s tallest, was torn down last year.

Burns sided with defense attorneys who argued that lawyers in Kansas Attorney General Derek Schmidt’s office showed a Wyandotte County grand jury evidence that would not have been admissible in trial — clips of reality television, misleading expert testimony and references to an unrelated death from years ago — that improperly influenced the grand jury in handing down criminal charges.

Taken all together, Burns found the grand jury had been abused to obtain indictments, which contained charges as serious as second-degree murder for two of the defendants.

“The court has grave doubts as to whether the irregularities and improprieties improperly influenced the grand jury and ultimately bolstered its decision to indict these defendants,” Burns said. “Quite simply, these defendants were not afforded the due process protections and fundamental fairness Kansas law requires.”

For now, Schlitterbahn co-owner Jeff Henry, Verruckt designer John Schooley and former Schlitterbahn operations manager Tyler Miles face no criminal charges in Caleb’s death. The Kansas Attorney General can seek criminal charges again, either through another grand jury, through a preliminary hearing or seek an appeal of Burns’ decision. Or they could just walk away from the case.

Assistant Kansas Attorneys General Adam Zentner and Shon Qualseth declined to comment on Burns’ ruling and referred questions to Schmidt’s office.

Schmidt on Friday afternoon released a statement that was noncommittal about his next steps on the case.

“We are obviously disappointed and respectfully disagree with the court’s decision,” Schmidt said. “We will review the ruling carefully, including the court’s observation that the ruling ‘does not preclude the possibility that the State could continue to pursue this matter in a criminal court,’ and take a fresh look at the evidence and applicable law in this tragic and troubling case to determine the best course forward.”

Since the Kansas Attorney General took over the case from the Wyandotte County District Attorney, county taxpayers have paid Schmidt’s office more than $125,000 in reimbursed expenses through November. The office’s work has resulted in two defendants being acquitted at trial last year and now five dismissed indictments.

In dismissing the indictment, Burns noted the tragic nature of Schwab’s death.

“I obviously recognize that the circumstances and events giving rise to these indictments are indisputably tragic,” Burns said. “A young child’s life was lost and his troubling death was mourned by family, friends and the entire Kansas City community and beyond.”

Caleb died on Aug. 7, 2016 when his raft went airborne as it ascended a second hump, causing him to collide with a metal pole that supported a netting system meant to keep riders on the slide. He was there with his family on a day when Schlitterbahn invited elected officials and their families to the Kansas City, Kan., water park free of admission. Scott Schwab was a Kansas House member from Olathe at the time.

A Wyandotte County grand jury indicted Henry, Schooley, Miles and Schlitterbahn corporate affiliates Henry & Son’s Construction, a contracting company, and KC Water Park Management, a business entity for the Kansas City water park. The indictments portrayed Henry and Schooley as having cavalier attitudes about designing a thrill ride without technical qualifications, all while ignoring safety warnings. Miles was accused of overlooking maintenance issues and later helping cover up Schlitterbahn’s recklessness.

Jeff Morris, an attorney representing Henry & Sons Construction, said the company agreed with Burns’ assessment about the tragedy of Schwab’s death.

“We have consistently said that the fact that it’s a tragedy doesn’t mean it’s a crime and I think we pretty persuasively indicated that the manner in which the state tried to establish a criminal offense was not done the right way and the court agreed,” Morris said. “We’re pleased the judge agreed with our arguments. We thought our arguments were well founded and we will see what the next step in this situation is.”

Winter Prosapio, a spokeswoman for Texas-based Schlitterbahn, said the company welcomed Burns’ decision.

“We are thankful for all the support and encouragement we’ve received,” Prosapio said in an email to The Star.

Scott Schwab, through a personal attorney, declined to comment.

Burns’ decision follows an aggressive effort by defense attorneys to discover how the Kansas Attorney General used a grand jury to obtain charges against the defendants. Grand juries are secret proceedings in which jurors hear only evidence put on by prosecutors. There’s no judge present, which requires prosecutors to employ restraint in how they portray evidence.

In Kansas, grand juries are rarely used. Typically, a criminal defendant goes to a preliminary hearing where a judge decides whether the state has enough evidence to show that there’s probable cause of a crime.

Attorneys for Henry and the other defendants pushed to obtain transcripts of the grand jury proceedings. As they read them, they realized that the Kansas Attorney General leaned heavily on footage from a Travel Channel show that had filmed the construction of Verruckt, the world’s tallest water slide when it opened.

Defense attorneys said showing grand jurors the Travel Channel show was improper because it was scripted and dramatized to play up the riskiness of the ride.

Burns agreed with that assessment.

“Upon viewing the video, the court concludes this exhibit was not a likeness of what it purported to represent,” Burns said, “and depicted a staged demonstration for entertainment purposes, not a factual depiction of the design and construction of the water slide.”

Defense attorneys also took issue with testimony by expert witness Edward Pribonic, who suggested to grand jurors that Henry and Schooley were allegedly negligent in bypassing industry standards set forth by the American Society of Testing and Materials when they designed and constructed Verruckt. ASTM standards, however, were not required under Kansas law at the time water slide was built.

“Again, a grand jury of laypersons heard testimony and were exposed to evidence which was not in conformance with the applicable legal standards given the unsubstantiated, irrelevant and somewhat confusing basis of Mr. Pribonic’s conclusions,” Burns said.

Lastly, Burns said that Pribonic’s testimony about the 2013 death of a man at a Schlitterbahn water park in South Padre Island, Texas, in which he made references to hundreds of Occupational Safety and Health Administration (OSHA) violations at the water park was not evidence that would have been allowed at a trial.

“The only conclusion is that this reference to the wholly unrelated death of an employee in Texas and caused by the defendant’s violations of a ‘literal’ hundred OSHA violations was not legal evidence and should not have been heard by a jury,” Burns said.

Friday’s dismissal is the most severe blow to the Kansas Attorney General’s criminal case against the Schlitterbahn defendants, one that some legal experts found problematic from the start.

Defendants in the case assembled a team of several of Kansas City’s most well-regarded criminal defense attorneys. Henry was represented by Carl Cornwell, Schooley by Justin Johnston, Miles by Tom Bath and Tricia Bath and the corporate defendants by Jeff Morris, Melanie Morgan and Erin Thompson. Each have extensive experience in representing criminal defendants and have frequently been called upon in high-profile cases.

Blaine LeCesne, professor at the Loyola University of New Orleans who has followed the case, said he always doubted that there was enough evidence and facts to support a murder charge.

“Even as extreme as those facts may seem, as we saw in the indictment, it still didn’t rise to the level of intent as necessary,” LeCesne said. “In other words, you have to have a very high level of foreseeability of harm to justify a reckless murder or reckless manslaughter charge and that simply wasn’t supported by the facts.”

The indictments grabbed attention and headlines when first presented, but it’s rare that people who design products that later kill its consumers are held criminally liable. Civil lawsuits are typically how producers of defective products are held to account.

In the Schlitterbahn case, the company and others involved in designing and constructing Verruckt settled with the Schwab family for nearly $20 million.

The criminal case has been far less successful.

The Kansas Attorney General had to refile charges against KC Waterpark Management LLC last year after it had originally filed charges against a corporate entity that didn’t exist.

Later last year, two maintenance workers at Schlitterbahn went to trial on charges that they lied to authorities to frustrate the investigation into Schwab’s death. But those maintenance workers were acquitted by a jury that said afterwards that the Kansas Attorney General put on a weak case.

Then earlier this year, the Kansas Attorney General dropped two charges of interfering with law enforcement against Miles without explanation. Miles has been accused of hiding records from investigators, a charge that his attorney steadfastly denied.

Miles’ attorney Tom Bath declined to comment after the indictment against his client was dismissed. Bath and the other defense attorneys will now wait to see if the Kansas Attorney General pursues criminal charges anew.

The Wichita Eagle’s Jonathan Shorman contributed to this report.

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