Failed KCK water slide death prosecution took unusual path to Kansas attorney general

Nearly four months after 10-year-old Caleb Schwab was killed riding the Verruckt water slide in August 2016 and as police continued to investigate the matter, then-Wyandotte County District Attorney Jerry Gorman received an unusual request.

Mike Rader, a Leawood attorney representing Caleb’s family, sent Gorman a letter asking that Gorman recuse himself from the case. The letter explained that the Unified Government of Wyandotte County and Kansas City, Kan., where the water park is located, was a potential defendant in a civil lawsuit and Gorman’s involvement in an investigation could be viewed as a conflict of interest.

“When it comes to evaluating culpability from a prosecutorial perspective, I believe your office’s involvement in reviewing this matter could be viewed as improper or biased,” the letter said.

Copied on the letter, which was obtained by The Star through a Kansas Open Records Act request, was Kansas Attorney General Derek Schmidt. Caleb’s father, Scott Schwab, was a Kansas state representative at the time. He is now Kansas secretary of state.

“I don’t know that I’ve received other letters like that,” Gorman told The Star. “But I hadn’t had, as 12 years as district attorney and 23 years as an assistant district attorney, I had not had a case quite like that with civil ramifications to it.”

Carl Cornwell, an attorney representing Schlitterbahn co-owner Jeff Henry, questioned the request.

“I would just tell you that it just doesn’t make any sense that the people who represented Mr. Schwab and his family on the death of their son should have any input on the criminal prosecution,” Cornwell told The Star.

Rader told The Star that the letter was sent at a time when potential claims against the Unified Government were being assessed. The Unified Government has not been sued in connection to Caleb’s death.

The letter was the first in a series of events that led to the Kansas attorney general taking over the high-profile case that uraveled last month when a Wyandotte County judge dismissed indictments after finding that a grand jury was shown improper evidence.

Gorman didn’t grant Rader’s request, telling him that the Unified Government only sets his office’s budget but otherwise has no sway on him as an elected judicial officer.

Gorman said he later received a phone call from Schmidt, who inquired about whether the attorney general’s office could take the case — another unusual request.

In Kansas, it’s the local jurisdiction that has to request the assistance of the state attorney general in criminal matters. And those requests usually come from smaller, rural counties that lack the resources to deal with a major crime on their own. Wyandotte County is one of the biggest counties in Kansas.

“I don’t think the attorney general would be involved in criminal cases in various counties without being requested,” said Bob Stephan, the Kansas attorney general from 1979 to 1995. “It’s possible you could be, but it just doesn’t make any sense.”

Gorman let Schmidt’s office take the case. He had just lost a primary election to current Wyandotte County District Attorney Mark Dupree. Some of his top attorneys were leaving, too.

On Dec. 15, 2016, Schmidt accepted the case. He assigned it to Adam Zentner, an assistant attorney general who joined Schmidt’s office in January 2016 after several years as an assistant district attorney in Leavenworth County. Zentner, a 2011 graduate of the University of Kansas School of Law, prosecuted felony crimes, drug cases and traffic offenses while in Leavenworth, according to his LinkedIn profile. The same profile says he has prosecuted homicides, human trafficking and drug cases while in the attorney general’s office.

In the two years that have followed, the attorney general office’s handling of the case has resulted in two acquittals and five dismissed indictments. A judge said the office improperly influenced a grand jury, an extreme rarity in criminal law. One case had to be refiled when the attorney general named a corporate defendant that did not exist. Jurors in one trial said the attorney general charged a defendant in the wrong county.

Wyandotte County taxpayers have reimbursed the attorney general for more than $200,000 worth of expenses so far.

Along the way, missteps in the office’s handling of the case became apparent.

Now, as Schmidt’s office explores whether to pursue charges against the Schlitterbahn defendants again, new prosecutors have been assigned to the matter. Ed Brancart, an assistant Kansas attorney general and former Wyandotte County assistant district attorney, is leading the prosecution. Lannie Ornburn, a longtime Johnson County assistant district attorney, has also been called upon.

Schmidt’s office declined to discuss the new assignments or the office’s handling of the case.

“We are conducting a fresh review of the evidence and the law to determine the best path forward,” said Schmidt spokesman C.J. Grover. “We have nothing further at this time.”

Cornwell, Henry’s defense attorney, told public radio station KCUR last month after the indictments against his client and others were dismissed that he suspected “political considerations” were at play.

“I really didn’t think when we initially got the case that it was politically motivated,” Cornwell told the radio station. “But let me ask you this: Suppose it was some disadvantaged young kid from Wyandotte County. Do you think they (the attorney general’s office) would have filed charges? Yeah, I don’t think so.”

Rader, the attorney representing the Schwab family, rejected the notion that politics were involved. He said Cornwell’s comments were baseless and any insinuation that Schwab was “somehow responsible” for Henry being prosecuted was “reckless at best.”

Would Gorman have handled the case differently had he retained jurisdiction? He said he didn’t know enough of the facts to say for sure.

But other observers have been critical of how Schmidt’s office has pursued the case.

In 2018, a grand jury in Wyandotte County indicted five people and two corporate affiliates of Schlitterbahn on serious criminal charges, portraying each as reckless in their pursuit of a record-breaking water slide and uncaring for the safety of customers.

The indictments themselves were headline-grabbers for the searing nature of the charges.

The 47-page indictments said Henry and Verruckt designer John Schooley lacked qualifications to design a ride that would break records for its 17-story height that lured thrill-seekers for the stomach-turning experience. It alleged that the defendants knew of myriad safety concerns with the slide and disregarded them. The ride was engineered with rough calculations to get the ride ready for a publicity tour, the document said.

Henry and Schooley faced second-degree murder charges, suggesting extreme indifference to the lives of others. The seriousness of the murder charges drew skepticism when they were filed.

“It’s totally inappropriate to charge someone with any form of murder or reckless manslaughter or any intentional act surrounding fraught design, simply because the required mental state is such a high level to justify criminal penalties that it could never be met under the facts shown to the grand jury,” said Blaine LeCesne, a law professor at Loyola University in New Orleans.

The first public cracks in the state’s case emerged the day after the indictments were filed against former Schlitterbahn director of operations Tyler Miles, accused of overlooking maintenance issues with the slide and interfering with the investigation.

The indictment was garnished with quotes, without citation, of defendants seemingly acknowledging the safety risks of the slide and brushing off concerns.

“If we actually knew how to do this, and it could be done that easily, it wouldn’t be that spectacular,” Schooley was quoted as saying, in one instance.

The following day, defense attorneys disclosed that the quotes in the indictment were plucked from a Travel Channel show “Xtreme Waterparks,” which chronicled the construction of Verruckt.

The show wasn’t a documentary effort meant to show a factual portrayal of the ride’s construction, Schlitterbahn’s attorneys said. Instead, they said it was a scripted, fictionalized show meant to excite viewers with overly dramatic depictions of the ride’s riskiness.

A week after Caleb’s death, The Star reported that the construction time line for Verruckt was accelerated to meet the production schedule for the Travel Channel show. The same report quoted experts raising concerns about the nature of Verruckt, specifically the overhead netting system that killed Caleb, as well as designing a slide that mimicked a roller-coaster but lacked similar safety features.

Companies involved in the design of Verruckt later settled with the Schwab family for nearly $20 million, a matter in which Rader represented the Schwab family.

It wasn’t clear at the time how much the state’s case before a grand jury hinged on the Travel Channel show. But it would become a key element in the case being thrown out.

Even before attention centered on the use of the Travel Channel show, other problems with the state’s case became apparent.

The attorney general had to drop an indictment against a corporate affiliate of Schlitterbahn that operates the Kansas City water park after it was pointed out to them that they got the name wrong. The state went back to the grand jury and re-filed charges against the correct corporate entity.

Then came the trial in October against two maintenance workers, John Zalsman and David Hughes, who the attorney general accused of lying to investigators.

But a seemingly crucial error in the state’s case surfaced during the trial. Hughes was interviewed at his home in Leavenworth County where he allegedly lied. But the case was filed in Wyandotte County, not where the crime occurred.

After Zalsman and Hughes were acquitted, jurors told The Star that they couldn’t have convicted Hughes even if they wanted to because the alleged crime happened in another jurisdiction. Jurors also said that the state’s case was generally weak.

“I was a little bit embarrassed for the attorney general to not realize until the second day of trial that they filed in the wrong county against David Hughes,” said Chris Joseph, attorney for Hughes, at the time. “Sounds like the jury took that into consideration. They really didn’t realize that. That’s a big mistake that cost them badly.”

Not long afterward, defense attorneys for the remaining defendants had transcripts of the grand jury proceedings.

The use of a grand jury at all was an oddity.

Grand juries, used all the time in the federal criminal system, are rarely used in Kansas courts. Grand juries convene in secret. They hear only evidence that a prosecutor chooses to show them. No judge is present to observe the proceedings; defense attorneys cannot object to what goes on.

Usually when someone in Kansas is charged with a crime, they go before a judge at what’s called a preliminary hearing. The prosecutors tell the judge what evidence they have, the defendant’s attorney can challenge it and a judge decides whether there’s enough probable cause to continue.

The use of grand juries has been problematic in Kansas.

In 2008, a top official and a lawyer were indicted on accusations of looting the Kansas City, Kan., Board of Public Utilities. The lawyer was accused of submitting hundreds of thousands of dollars in legal bills without documentation to support the work done.

The Kansas Supreme Court later dismissed the indictments after finding that a Kansas Bureau of Investigation agent tainted the grand jury with testimony attempting to link the defendants with an unsolved murder. They also said that forcing the defendants to testify in front of a grand jury where they invoked their Fifth Amendment right to refuse answering potentially incriminating questions had the effect of further prejudicing jurors.

A result of that case was that prosecutors generally couldn’t show a grand jury evidence that couldn’t be shown to a trial jury.

On Jan. 25, the attorney general’s office had to explain during a hearing in Wyandotte County Court its use of reality television before a grand jury. Judge Robert Burns heard arguments on motions by defense lawyers that the attorney general abused the grand jury by showing the Travel Channel show to the jurors.

Burns asked Zentner, the lead prosecutor in the case, how grand jurors untrained in the law evaluate evidence put before them.

“I guess if there’s evidence put in front of a grand jury that is improper or inadmissible or illegal, whatever term you want to use, I mean, how can you say that’s not substantially impactful on a probable cause determination?” Burns asked. “How do you separate out the good evidence from the bad evidence?”

“That’s their job,” Zenter replied.

Burns later asked if Zentner thought the Travel Channel videos would be admissible in front of a jury at a trial.

“I think there’s an argument that there, that it may be, with proper limiting instructions, because it’s statements made by these individuals,” Zentner said. “It’s statements they made publicly.”

Burns didn’t buy the argument. In dismissing the indictments recently, he called the video “fictional and dramatized,” and said that its value, “which is questionable,” was outweighed by the harm it caused by the inaccurate portrayal that it was a factual depiction of the slide’s construction.

“The grand jury was clearly swayed by its exposure to this video and said video cannot be viewed as legal evidence,” Burns said.

Burns also concluded that expert testimony before the grand jury was prejudicial because it implied that industry standards in building the slide were legally required at the time Verruckt was built — they were not — and it invoked an unrelated death at a Schltterbahn park in Texas.

It ended the case, one of the highest profile criminal cases in Wyandotte County in recent years, unless the attorney general decides to pursue the case again. If he does, the state cannot rely on the Travel Channel or expert witness evidence.

“The cumulative effect of these violations,” Burns said, “cannot be deemed harmless.”

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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.