Did Schlitterbahn maintenance workers lie to investigators, or just forget key facts?

Either Schlitterbahn maintenance workers deliberately lied to law enforcement investigating the death of Caleb Schwab on the Verruckt water slide, or they were forgetful after investigators took a year to quiz them about the incident.

Those were the contrasts on display in the first full day of testimony Tuesday in Wyandotte County District Court for the criminal trial of David Hughes and John Zalsman, both accused of obstructing the Kansas attorney general’s investigation of 10-year-old Caleb’s death.

In opening statements, prosecutors said Hughes and Zalsman misled investigators about an important feature of the 17-story water slide — a brake pad meant to slow the pace of the water raft — to deflect from their shoddy maintenance of Verruckt. Prosecutors said the brake pad came off Verruckt less than two weeks before Caleb’s fatal ride.

“They knew they had screwed up,” said assistant Kansas Attorney General Adam Zentner during opening arguments. “The brake falls off and two weeks later, a child died horrifically on the slide. Yeah, there’s motivation there to maybe misdirect things.”

Defense attorneys countered that many of the witnesses that the Kansas attorney general’s agents interviewed gave wrong or conflicting information, or simply didn’t remember key facts because interviews occurred a year after the fact, but were not investigated or charged with obstruction like Hughes and Zalsman.

Chris Joseph, an attorney for Zalsman, methodically showed how several people gave erroneous statements to investigators but were not charged. In one case, a lifeguard initially told Kansas attorney general special agent Jenna Murray that he had not seen the brake pad come off Verruckt. But documents showed he had inspected the ride on occasions after it had come off the slide.

“Did you conclude he was mistaken or attempting to obstruct?” Joseph asked Murray.

“I wouldn’t speculate on what he was,” Murray replied.

Joseph said the lifeguard got a pass while his client has been charged with a felony. He also pointed to transcripts that showed Murray gave some witnesses documents to help refresh their memories, an opportunity not afforded to his clients in their interviews.

Dionne Scherff, another attorney for Zalsman, said the state’s case hinges on one statement by Zalsman during his interview.

“When asked about this mat, Mr. Zalsman says, ‘I’m not sure, to be honest with you, I don’t recall us using one there but my memory isn’t the greatest,’” Scherff said. “He told them what he knew, he told them what he remembered.”

This week’s trial is expected to test the strength of the Kansas Attorney General’s cases against higher-ups at Schlitterbahn who are accused of more serious criminal charges.

A grand jury in April indicted Schlitterbahn co-owner Jeff Henry and Verruckt lead designer John Schooley with second-degree murder and a host of other felony charges for lacking the qualifications to design a ride like Verruckt and subsequently ignoring warnings about its safety.

Tyler Miles, a former director of operations for the Kansas City, Kan., water park, is charged with involuntary manslaughter and other counts related to accusations that he covered up the poor maintenance of the water slide.

They were explosive criminal charges when they were announced — designers usually face civil lawsuits when their products kill people — and came not quite two years after Caleb’s death. The son of Kansas Secretary of State candidate Scott Schwab was killed when his raft went airborne on Aug. 7, 2016, and he collided with a metal pole that propped up a netting system meant to keep riders from flying off the ride.

Caleb’s death and subsequent investigations exposed the weakness of Kansas regulations on amusement rides at the time, and showed how Henry and others were able to proceed mostly free of scrutiny with plans to build the risky attraction, largely to goose up publicity for the KCK water park.

Hughes and Zalsman were charged May 30, two months after the others were initially indicted. The Kansas attorney general accused Hughes and Zalsman of telling investigators that the brake mat was only used during testing periods, even though YouTube videos from other riders and testimony of Schlitterbahn employees indicated that the pad had existed on the slide up until July 28, 2016, days before Caleb’s death.

“When we get down to it, why would David Hughes and John Zalsman have made a false statement about the brake mat to law enforcement?” Zentner, the assistant attorney general, told jurors. “Law enforcement was not trying to pin these guys for that crime. They were trying to get an answer: Was it a maintenance issue? If it wasn’t a maintenance issue, they have to find some other reason why a child died on this ride.”

To support his point, Zentner had Kansas attorney general special agent Bruce Adams read off dozens of daily operations reports from lifeguards who inspected the ride.

According to Adams’ testimony, there were several inspection reports before July 28, 2016, about how the brake mat was in varying states of disrepair. On July 28, 2016, there were no fewer than eight reports about how the brake pad had finally come all the way off.

In reports between July 28, 2016, and Caleb’s death on Aug. 7, 2016, there were continued reports by lifeguards about how the brake pad needed to be re-applied.

On cross examination, Scott Toth, attorney for Hughes, asked if Adams was in a position to say whether the brake pad had anything to do with Caleb’s death.

“No sir, I’m not qualified to say that,” Adams said.

Judge Robert Burns, during a break in testimony, warned prosecutors against making the case about whether the brake pad contributed to Caleb’s death, offering a reminder that the case was about whether Zalsman and Hughes obstructed the investigation.

Defense attorneys insisted that prosecutors could not prove that their clients lied. They also said the maintenance reports didn’t go to their clients, but rather to the operations department of Schlitterbahn.

“What they’re not going to be able to show is whether that report ever came to Mr. Hughes or Mr. Zalsman because it didn’t,” Toth told jurors. “If you don’t prove that part of it, the whole rest of the house of cards will come tumbling down.”

Toth also hinted at something that could become a bigger issue later in the trial: Hughes was interviewed by investigators, and allegedly lied, at his home in Basehor in Leavenworth County, which could mean that Wyandotte County is the wrong place for the trial.

Scherff, attorney for Zalsman, said her client spoke with investigators at an International House of Pancakes restaurant without attorneys, indicating that he had nothing to hide.

Tuesday’s trial proceedings included testimony from Kansas City, Kan., Police Department detective Jason Sutton, who investigated Caleb’s death from the date it happened to when he handed the case off to the Wyandotte County District Attorney’s Office in December 2016.

Sutton said a key piece of evidence was a video shot by Olathe Mayor Michael Copeland, who was at the bottom of the Verruckt filming riders in anticipation of his wife coming down the ride. Copeland caught Caleb’s death on video, which was not shown to jurors.

Sutton described how the video captured Caleb being ejected from the raft upon colliding into the overhead pole. Sutton said water blasters were meant to help the rafts ascend the second hill, and that from the video it appeared that Caleb’s raft arrived ahead of the flow of water from the jets.

“In Caleb’s incident, the raft is way ahead of the water jet, which tells me this raft got from point A to point B faster than others did,” Sutton said.

On cross examination, Sutton was asked whether he gave his report to the Wyandotte County District Attorney with a recommendation that no charges be filed. Sutton said that wasn’t the case, adding that the KBI and the Kansas attorney general got involved in the case after he handed it off to the local district attorney.

Testimony is expected to continue Wednesday.

This story was originally published October 16, 2018 at 7:08 PM.