A jury deliberated for less than three hours Thursday before finding two Schlitterbahn maintenance workers not guilty of obstructing an investigation into the 2016 death of Caleb Schwab on the Verruckt water slide in Kansas City, Kan.
David Hughes and John Zalsman, charged in May with lying to investigators, left the Wyandotte County Courthouse cleared of committing any crime after Judge Robert Burns read the verdicts. Both men said they would prefer that their attorneys speak on their behalf.
“I’m relieved for my client,” said Chris Joseph, who represented Zalsman. “I think John really was innocent. I think he went there to try and help out. There’s no way he went there to try and throw off an investigation. I don’t believe it for a second.”
Adam Zentner, the assistant Kansas Attorney General who tried the case, declined to comment as he left the courthouse, deferring comment to an office spokeswoman.
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“The verdict speaks for itself,” Kansas Attorney General spokeswoman Jennifer Montgomery said in an email, declining to comment further.
Prosecutors had accused both men of lying to investigators about a feature on the Verruckt water slide — a brake pad that prosecutors suggested was meant to slow the movement of the water slide raft as it climbed a hill that followed the initial 17-story descent.
Prosecutors said Zalsman and Hughes told agents from the Kansas Bureau of Investigation in separate interviews that the brake pad was only on the slide during testing phases, but not while it was open for customers.
Caleb, 10, died on Aug. 7, 2016, when his raft went airborne on that hill and he struck a metal pole that supported a netting system meant to keep passengers from flying off. Prosecutors said the brake mat, which had been peeling off the slide during the 2016 season, came completely off the slide less than two weeks before Caleb’s death and was never replaced.
Zentner suggested a motive during the trial: Zalsman and Hughes lied to cover up their neglect in replacing the mat.
But jurors said the attorney general’s case never produced evidence that any requests to fix the brake mat ever made it to Zalsman or Hughes. Zentner produced several reports written by lifeguards that indicated the brake pad was peeling or had come off, but could not prove that those reports ever made it to the defendants.
“If there had been any supporting evidence, like a paper trail, emails, anything, going from park management to the maintenance team to complete certain jobs,” Greg Sowell, one of the 12 jurors, told The Star. “There was really no evidence as to whether there was any communication.”
Testimony in the trial suggested that the reports made it to the park’s operations department, but that appeared to be as far as the attorney general could show they went. Matt Lawrence, the general manager of Schlitterbahn in Kansas City, Kan., said in 2015 and 2016 that the park lacked a system to track work orders and instead employees relied on verbal commands.
“If something is not fixed over and over and over again, it’s not the maintenance guys who are lazy,” Joseph said. “If their bosses told them to go do it they would have gone to do it. These guys are not in charge of anything. They do what operations tells them to do. If operations had told them to do it, they would have done it.”
One juror said they could not have convicted Hughes because KBI agents interviewed him at his house in Basehor, which is in Leavenworth County. Jury instructions said that among the elements that the prosecution had to prove was that the alleged crime happened in Wyandotte County. The other elements were that the defendants lied, did so intentionally and for the purpose of obstructing the investigation.
“With the one gentleman, David (Hughes), the biggest problem the prosecution had was the jurisdiction,” said presiding juror Karl Cox. “You have to have four elements. Once that fourth element wasn’t available to you, the whole thing was gone.”
Scott Toth, attorney for Hughes, attempted to have Judge Burns dismiss the case before it went to the jury on the basis that the crime was charged in the wrong county, but that matter was left to the jury.
“A very significant issue was the fact the attorney general’s office decided to file, on behalf of the people of Wyandotte County, a case that should have been heard in Leavenworth County,” Toth said. “I am at a complete loss for how something like that happens.”
Joseph said the prosecutors learned of that problem as the trial started.
“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,” Joseph said. “Sounds like the jury took that into consideration. They really didn’t realize that. That’s a big mistake that cost them badly.”
Sowell suggested the jury might not have found Hughes guilty regardless.
“I think it still would have been the same,” he said. “But it made the decision quicker.”
Schlitterbahn officials welcomed the news of Zalsman’s and Hughes’ acquittal.
Winter Prosapio, corporate director of communications for Schlitterbahn, issued the following statement after the verdict, “We have maintained our belief in the integrity of our staff and respect the process and decision by the jury.”
Cases remain pending for other defendants associated with Verruckt.
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 then ignoring warnings about its safety.
Tyler Miles, a former director of operations for the water park, is charged with involuntary manslaughter and other counts related to accusations that he covered up the poor maintenance of the water slide.
Their trials are not yet scheduled.
It’s not clear what meaning, if any, that Thursday’s not guilty verdict has for the other cases.
“I don’t want to speak to those other cases because they’re still yet to be tried,” Toth said. “There’s significant components of this case that have carryover, but the focus on those cases are obviously different than what we were focused on.”
Tom Bath, who represents Miles, applauded Thursday’s verdicts.
“We feel it was a just verdict,” he said. “We look very much forward to having our case tried to the jury.”