Schlitterbahn defense attorneys want charges dismissed, say Kansas AG abused grand jury

Attorneys for defendants facing charges related to the death of a young boy at the Schlitterbahn water park in 2016 sought to cast substantial doubt on the veracity of the Kansas Attorney General’s case, claiming it abused the grand jury system to obtain criminal indictments.

During a hearing in Wyandotte County court on Friday, attorneys for Jeff Henry, Tyler Miles, John Schooley and Schlitterbahn corporate entities said grand jurors heard improper evidence that unfairly prejudiced their clients.

The grand jury would later return indictments that alleged the defendants were responsible for the death of Caleb Schwab on the Verruckt water slide. Kansas Attorney General Derek Schmidt’s office is prosecuting the case.

Attorneys for the defendants portrayed much of the evidence shown to grand jurors as flimsy and not admissible at a trial.

Chief among those were clips shown to jurors from a Travel Channel television show that chronicled the construction of the 17-story Verruckt water slide, which defense attorneys said had no value as legal evidence. They said transcripts of grand jury proceedings never made it clear that the Travel Channel show was a scripted and filmed for dramatic effect.

“They decide, strategically, to play to the grand jurors fictionalized, dramatized television as truth for grand jurors to rely upon to make the determination to provide an (indictment),” said Jeff Morris, an attorney representing Schlitterbahn general contracting affiliate Henry & Sons Construction. “If that doesn’t violate due process under Turner (another case involving allegations of grand jury abuse) I don’t know what does.”

Adam Zentner, assistant Kansas attorney general, said defense claims were blown out of proportion.

He said defense attorneys were suggesting that grand jurors were “too stupid to discern a television show from evidence. We take exception to that characterization. This jury was aware and intelligent.”

Even so, Morris said that it was never made clear that the show, which played up the riskiness of the Verruckt water slide that was the tallest in the world before it was torn down last year, did not depict the facts of the ride’s construction. He said Zentner’s rebuttal, which was peppered by questioning from Wyandotte County Judge Robert Burns, supported the defense’s arguments.

“I believe the state’s presentation today only reinforces the validity of our arguments,” Morris said. “It is almost a concession that they screwed up. It is almost a concession that evidence they presented to the grand jury was improper.”

The case stems from the Aug. 7, 2016, death of 10-year-old Caleb Schwab, whose raft sailed down the 168-foot Verruckt water slide before climbing a subsequent 50-foot hump that sent him airborne. He was killed by decapitation when he struck a metal pole that supported a netting system above the ride.

Affiliates of Schlitterbahn and other companies involved in the development of Verruckt settled with Schwab’s family for nearly $20 million prior to criminal charges being filed. A criminal investigation continued after the settlement, even though it’s uncommon for the improper design of a product to result in criminal charges.

The Kansas Attorney General, which took over jurisdiction of the case from the Wyandotte County District Attorney, took the unusual step of convening a grand jury to seek an indictment. In most criminal cases in Kansas, a preliminary hearing is held where a defendant and their attorney can review evidence before a judge, who then decides whether there’s probable cause to continue on with a criminal case.

Grand juries are secret proceedings, attended only by the prosecutor, the prosecution’s witnesses and grand jurors. There’s no judge and a target of an investigation is usually not in attendance. Federal prosecutors use grand juries routinely, but it’s rare to use grand juries in Kansas.

There are examples in Kansas where the use of a grand jury has led to accusations of misconduct and abuse. Criminal charges against an attorney representing the Wyandotte County Board of Public Utilities accused of looting the utility was dismissed in 2014 because the Kansas Supreme Court found that, in part, prejudicial testimony had violated the defendant’s constitutional rights.

Defense attorneys argued that grand jury testimony tainted jurors’ impression of the defendants by including references to a 2013 incident at a Schlitterbahn water park in South Padre Island, Texas, where a lifeguard was crushed to death.

Tricia Bath, an attorney representing former Schlitterbahn operations manager Miles, said defense attorneys would have objected to testimony that summoned an unrelated case that occurred three years before Schwab’s death.

The one ruling Burns made on Friday addressed that death in South Padre Island. He ruled that the Kansas Attorney General can’t bring it up at trial, saying that the its prejudice against the defendants was outweighed by any value it had for the prosecution.

They also argued that the Kansas Attorney General and its main expert suggested to grand jurors that Schlitterbahn was required by law to follow amusement park standards spelled out by the American Society of Testing and Materials, and ultimately chose not to adhere to those standards. The ASTM standards were not included in Kansas laws governing amusement park rides at the time Verruckt was built and when Schwab was killed, but they are now.

Zentner defended his handling of the case, noting that there’s more leeway in front of a grand jury than in open proceedings during a trial.

“The state has never been hiding what it did before the grand jury,” Zentner said.

Burns asked if Zentner whether Kansas grand juries can be shown evidence that wouldn’t be admissible at a trial. Zentner said he believed the state’s evidence would be allowed to be shown at trial.

“This case comes down to the victims that were hurt and the methods that were used,” Zentner said.

The Kansas Attorney General’s case, which made headlines across the country when indictments were unsealed last year, portrayed Schlitterbahn and its key employees as reckless and unqualified in designing Verruckt, a ride marketed to appeal to thrill-seekers.

But since then, the state’s case has taken on water.

Last year, two Schlitterbahn maintenance workers charged with lying to to investigators were acquitted by a jury that said the Kansas Attorney General’s case was weak.

A pair of criminal charges against Miles that accused him of hiding evidence from investigators have also since been dropped by the Kansas Attorney General.

Burns did not rule on the arguments that indictments should be dismissed. He’s expected to set a hearing later on where he will announce his decision.

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Steve Vockrodt is an award-winning investigative journalist who has reported in Kansas City since 2005. Areas of reporting interest include business, politics, justice issues and breaking news investigations. Vockrodt grew up in Denver and studied journalism at the University of Kansas.