EDITOR’S NOTE: This first-person account describes project reporter Mike McGraw’s attempt to pursue the complete story of what happened the night in 1988 when an explosion in south Kansas City killed six firefighters. That investigation began several years before McGraw retired from The Kansas City Star, where he had earlier won a Pulitzer Prize, and continues now as he works with KCPT’s Hale Center for Journalism. A stage production based in part on McGraw’s reporting in The Star begins in Kansas City in February.
I don’t know what happened up there 27 years ago this past November, the morning six firefighters died on a windswept hill in south Kansas City. Maybe no one will ever know, except for the arsonists responsible for their deaths.
But I do know this. The federal government — the same federal government that imprisoned five people for life in the case — has acknowledged that it never fully solved the crime. And it shows no interest in finishing the job.
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That’s one reason I can’t let it go.
I first got involved in this case in 2006. I’ve studied the 4,000-page trial transcript. I interviewed all five defendants and remain in contact with one of them. I interviewed some of the witnesses who testified in court and many of the people who were questioned by investigators. And I’ve talked to others whom federal investigators never bothered to question.
I think about the case almost every day.
I’m not a cop or a lawyer or prosecutor. But I’ve spent the better part of 40 years as an investigative reporter poking around in places where I’m not always welcome. And this always felt like one of those places.
Paul Becker, the assistant U.S. attorney who prosecuted the case, once told me that the trial did not answer all his questions about what happened up there that night. But that’s not unusual.
“Unless you have a case on video,” he said, “there are questions.”
But he said he’s certain the five people in prison, one of whom has since died, are guilty.
But some of the jurors have acknowledged that they believed at least one of the five was innocent. They found her guilty just the same, they said, because they mistakenly believed that letting her go would allow the others to go free.
My writing about the case — I wrote at least 20 stories about it in The Kansas City Star before I retired from there in 2014 — has angered at least one family member of one of the firefighters killed. She called me once and let me have it for dredging all this up again, for reopening an old wound.
But Leo Halloran, a brother of firefighter Gerald Halloran — one of the six men who died that morning — once told me that a federal grand jury ought to hear new evidence in the case “to clear all this up.”
The “all this” he was referring to is not just a loose thread here or a stray fact there. It’s much more than that, say attorneys familiar with the case, and it includes witness recantations, new unprosecuted suspects identified by the U.S. Department of Justice and additional evidence that raises questions about the 1997 convictions.
It’s only fair to acknowledge that the federal government put together a strong case against the five defendants. That’s true even though there was no physical evidence tying any of them to the crime. No DNA, no fingerprints, no admissions, no tell-tale tracks in the mud, no eyewitnesses.
The government’s theory was simple. About 3 a.m. on Nov. 29, 1988, the five defendants made their way up to a rugged, rocky highway construction site along U.S. 71 at about 87th Street. They had planned to steal tools to sell for drug money.
“It’s no more complex than that,” Becker told the jury nine years later.
They set fire to a tractor-trailer — not in an effort to kill anyone, but to cover up their crime and as a diversion for security guards they believed were somewhere close by. They set those fires “purely out of meanness, out of being ornery, that they were unsuccessful in their thieving,” Becker added at the trial.
Sometime in the midst of this diversion, the government added, they hung around the crime scene a while longer. They went across the highway and set a separate fire, some distance away, in an unattended pickup truck owned by one of the security guards.
A few minutes later at 4:08 a.m., the burning trailer, filled with thousands of pounds of low-grade construction explosives, blew up, awakening an entire city and killing all six firefighters who had just arrived to fight the fire: Thomas Fry, Gerald Halloran, Luther Hurd, James Kilventon Jr., Robert D. McKarnin and Michael Oldham.
The blast set off another explosion 40 minutes later in a second trailer parked nearby.
Becker backed all this up with testimony from 59 government witnesses.
Perhaps the most reliable witness was a woman who lived next door to two of the defendants in Kansas City’s Marlborough neighborhood, not far from the explosion.
The woman, a nurse, testified that the first explosion knocked her out of bed. A few minutes later she heard a pickup truck pull into the driveway next door. She said four people got out, but she only recognized two, defendants Frank and Skip Sheppard, the brothers who lived there.
Most of the other witnesses testified that they heard one or another of the defendants admit some role in setting the fires. Besides Frank and Skip Sheppard, the other defendants included their nephew Bryan Sheppard, his best friend Richard Brown and Frank’s girlfriend Darlene Edwards.
‘Hatched in hell’
I hadn’t thought much about the case until a man named Pat O’Connor, the former publisher of an alternative Kansas City newspaper called The New Times, approached me in 2006. He brought me several affidavits he had gathered in which some of the government’s witnesses recanted their testimony, some saying they were pressured to lie.
I set up initial interviews with the lead investigator, Dave True, a now-retired agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives, and with Becker.
For the most part, they were earnest and helpful at first, and gave freely of their time. Becker questioned why I was looking into such an old case, this being nearly a decade after the convictions.
But one thing was clear at the outset. Many of Becker’s witnesses were not what most of us would call fine, upstanding citizens. Neither were the defendants.
Of the more than 50 witnesses who testified that they heard the defendants boast about their involvement, 24 had been convicted of a total of 76 felonies for crimes that included assault, drug sales, prison escapes, embezzlement, counterfeiting, fraud, forgery, sexual assault, explosives violations or manslaughter.
One witness had 17 felony convictions. Another acknowledged she’d had selective amnesia, according to the trial transcript. One was legally blind, but later told me that she is confident the defendants were guilty partly because she is a Pisces and therefore “psychic.”
When I asked Becker about all that, he quoted a colleague, who years earlier had explained to a jury why his own witnesses had similar characteristics.
“Conspiracies hatched in hell,” he told them, “aren’t witnessed by angels.”
Each witness claiming to have heard the defendants admit involvement was allowed to testify against only one defendant. As a result, only a small subset of the witnesses accused any single defendant.
An analysis of their testimony reveals conflicts with earlier statements they made.
In earlier interviews with police, for example, some witnesses had named others as having claimed credit for setting the fires — people who were never charged. Some had told investigators shortly after the explosions that they had no helpful information, yet recalled damaging facts about the five defendants nearly nine years later. And some witnesses insisted that other defendants — defendants other than the one they testified against — were not involved at all.
All told, the witnesses placed each defendant in as many as seven different places at the same time. And many of them shared the $50,000 reward offered in the case.
How close is too close?
The first time I met Bryan Sheppard, the youngest of the five defendants, was in September 2006. The newspaper sent me to interview all five of the defendants.
He was at the 49-acre Florence Federal Correctional Complex about two hours south of Denver.
He had refused a plea deal. Repeatedly. “We had nothing to do with this case and I’m not going to send them all up the river for something none of us did,” he told me.
Maybe he thought he’d get off. After all, he’d gotten off before. Jackson County authorities had indicted Bryan Sheppard in the firefighters’ case less than a year after the blast.
The county’s case was based on claims by fellow Jackson County jail inmates. They said Sheppard had admitted to them his involvement in the arsons while he was serving time for violating his probation on an earlier conviction for stealing a bicycle.
The county arson charges were dropped three months later after his lawyer proved that the informants had lied.
But federal investigators had found new informants. A lot of them. And that was partly because they had posted fliers in jails and prisons across Kansas and Missouri offering inmates a $50,000 reward — and perhaps a reduction in their sentences — for information about the case.
Sheppard’s history prior to being jailed speaks for itself.
He was an unruly kid in his early teens, sneaking out of the house at night, smoking pot and running the streets in his Marlborough neighborhood. He was convicted several times on drug charges. A girlfriend once shot him.
Sheppard, his parents and his girlfriend at the time have all maintained for years that he was home in bed the night of the explosions, and he passed a lie detector test. Though federal investigators also use polygraph exams, they are not admissible in court.
During his years in prison since his conviction, Sheppard has earned a GED and has completed drug treatment and anger management courses. He’s had one disciplinary infraction.
He’s written me numerous letters and emails over the years; we generally talk by phone every month or so — all subject to prison monitoring.
I’ve grown to respect how he’s changed over the nearly 10 years I’ve known him. He’s well-spoken, fit and meticulous about his appearance.
Paul Becker, the prosecutor who built a massive, convincing case against him and the others, remains adamant about his guilt.
As for me, I’m not so sure.
And I often wonder if that’s partly because I’ve gotten to know Bryan Sheppard too well … so well that I’ve lost perspective, lost that dispassionate edge that journalists are supposed to maintain.
While the government’s witnesses were not candidates for sainthood, that wasn’t the extent of the problems with the case — at least according to many local defense attorneys, who say they are more troubled by the unanswered questions in this case than with any other case in recent memory.
All five defendants had alibis; they all asked for polygraph exams, and the three who were eventually tested all passed.
Two of them, under pressure from the government, had briefly told stories implicating some of the others, then recanted. Later, they all turned down the five-year plea deal offered by the government and pled not guilty.
Even Tenilla Sheehan, the court deputy at the time, remained troubled by the convictions years later. Sheehan told me that the trial — especially the conviction of Darlene Edwards, the woman some jurors thought was innocent — “was my worst experience in the whole time I worked in the courthouse, and I worked there 30 years.”
A lot of new information has surfaced since then.
In 2006, Ed Massey, who had been cutting trees on the construction site to sell as firewood, told me a story he had never told investigators years earlier. He said he was at the site that night and saw someone set the fires, but that it was not the five defendants.
There’s no one to corroborate Massey’s story, and Becker doesn’t believe it. But Massey told the same story to ATF agents about the same time he talked to me. The Star polygraphed him twice. He passed both times.
Several witnesses have said repeatedly over the years that one of the security guards at the site had admitted a role in setting the fires as part of an attempted insurance fraud. In fact, Massey told the ATF and The Star that another guard, Debbie Riggs, had once asked him to set her truck on fire so she could collect the insurance money.
Riggs, who has steadfastly refused to speak with me, acknowledged during the trial that she had previously arranged to have a car stolen to collect the insurance money.
A key witness in the case, Darlene Edwards’ daughter Becky, has since said that she was pressured to lie at the trial about overhearing her mother and the others planning a theft at the construction site. She was 11 years old at the time of those alleged meetings.
The federal investigation of the case had focused for years on the theory that the arsons were the work of union operatives angry that the site employed nonunion workers. Even Debbie Riggs — who ended up testifying for the prosecution — told investigators at one point that “six union people” were behind the crime.
At least one former Kansas City homicide detective who investigated the case early on, and a former fire department battalion chief who was on the scene when the explosion occurred, say the story told by the guards does not stand up under scrutiny.
In fact, the guards claimed they weren’t even at the construction site when the fires were set. They said they had left the site in search of a shadowy prowler who was never nabbed.
Then in 2009, an old police report surfaced for the first time that raised new questions about that claim.
It’s an interview with a woman who said she saw a pickup engulfed in flames at the same time as two white cars circled nearby with spotlights.
Her testimony at the trial — had she been known to defense attorneys — could have been used to contradict the guards’ claims about where they were moments after the fires were set.
But the defense attorneys didn’t have it, and no one seems to know why.
The report “arguably shows,” as one of the original defense attorneys later put it, that the security guards knew their pickup truck had been torched before they left the site in search of a prowler, not after they returned, as they had claimed.
Over time, more witnesses came forward to the newspaper to change their stories, sometimes by a little and sometimes by a lot. Many agreed to be recorded, some signed affidavits. Some said they lied at the trial. Others said they were coerced but never told investigators what they wanted to hear, so never ended up testifying.
And there are others, including one I haven’t written about until now, and more that I can’t write about because they won’t go public.
The newest witness to recant is John F. White Jr. He had testified at the trial that now-deceased defendant Earl “Skip” Sheppard had admitted he was involved in the crime while they were both inmates in the St. Clair County (Mo.) Jail.
White called to tell me that it was all a lie he told to get a break on a federal sentence in a separate case. “It was false; I made it all up,” White told me in a telephone interview.
Other witnesses said they worried the government would charge them with perjury if they went back on what they said at the trial, but no perjury charges have been filed. The U.S. Justice Department did re-interview some of them about four years ago. While the results shed little new light on the case, there was one unexpected revelation.
Investigating the investigators
The Kansas City Star’s articles about witnesses saying they had been coerced prior to the 1997 federal trial in the firefighters’ case apparently touched a nerve. In 2008, the U.S. attorney responded by asking for an independent review of those claims.
Investigators for the U.S. Department of Justice — the same department that indicted the five defendants who were now serving life sentences — looked into those claims for more than two years.
In July 2011, the government released a two-page summary of its findings. (It has steadfastly refused to release an unredacted version of the entire 20-page report on which the summary is based.) That summary said their investigators in the original investigation acted properly and there was no “credible evidence” to support claims of coercion.
The summary did not say how many of the people claiming coercion were interviewed by investigators. But it did say that of the five trial witnesses quoted in The Star’s stories as claiming they were coerced to lie, only two agreed to talk to the investigators and “both stated that their trial testimony was truthful.”
But in the final section of the summary, the report said investigators also found “several newly-developed pieces of information, not previously known to the prosecution,” suggesting that other persons “may have been involved in the arsons.”
Still, the report added, the five people convicted of the crime remain guilty. In other words, they all acted together. The five sent to prison and others, who remain unnamed, were all involved.
Now there were more than just five culprits — and some of them remained free.
I have tried numerous times to ask the U.S. attorney’s office here whether these new suspects have been or ever will be investigated. And I’m itching to know why the government believes the four remaining defendants serving life in prison wouldn’t have pointed the finger at their alleged co-conspirators by now, whoever they are.
But the government won’t discuss it.
As for coercion, it can take many forms. And the federal government will readily acknowledge that it is perfectly acceptable, even routine, to give witnesses an incentive to testify — one witness in the case got a 25-year sentence reduction — or to threaten them with jail time if they refuse to testify.
It’s all legal, as long as all those deals are revealed to the defense attorneys.
All that said, one federal judge skewered the government’s tactics in the matter of Alan Bethard, a potential witness in the firefighters’ case.
Bethard had denied to investigators that he ever heard any of the defendants admit to the crime, and he offered to take a lie detector test to prove it. He said investigators even offered him the entire $50,000 reward.
But he refused to lie, he said, and that’s when the federal government followed through on a threat, apparently meant to either punish Bethard or get him to change his story.
Jackson County prosecutors had charged Bethard with car theft and his case was pending in state court. But the case was transferred to federal court, where penalties can be harsher. Assistant U.S. Attorney Paul Becker — the same lawyer prosecuting the firefighters’ case — also prosecuted Bethard.
A lawyer for Bethard compared the tactic to extortion, and the judge in the case all but agreed.
After Bethard pled guilty, U.S. District Judge Scott Wright threatened to dismiss the case as “vindictive prosecution.” He ordered Bethard to pay restitution and gave him five years’ probation.
Then the judge asked Becker a question that he never allowed the prosecutor to answer.
His question was this: “Did it ever occur to you,” Wright asked, “that your witness might be the one that’s lying?”
Truth, as a concept
Journalists and the courts have a complicated relationship.
Journalism that questions whether the system is flawed has no quarter. Its methods don’t meet judicial standards. It can, and often does, misconstrue what prosecutors do, making their actions appear improper when — legally at least — often they are not.
Indeed, the late Judge Joseph Stevens, who presided over the firefighters’ case, expressed that sentiment quite clearly during the 1997 trial.
Defense attorneys were questioning ATF agent Dave True about his earlier theory that the arsons at the nonunion construction site were the work of someone loyal to organized labor.
True had been quoted in The Star as having said that. He suggested in court that the reporter had taken his comment out of context, but acknowledged he never complained about it to the newspaper.
Stevens interrupted an attorney who was arguing that the article was “correct.”
Stevens asked if he meant “totally correct,” then added: “I have never seen a Kansas City Star article that was totally correct…”
Whatever the flaws in America’s legal system, there’s no question but that it’s constantly evolving. A U.S. Supreme Court decision has forced open a door — ever so slightly — that may give one of the four remaining defendants another bite at the apple.
Bryan Sheppard was the only one of the five who was a minor at the time of the crime. And because he was 17 then, he’s affected by a case called Miller v. Alabama. The court ruled that recent brain science had confirmed that 17-year-old brains can’t always make rational decisions and they can easily be misled by older co-defendants.
And if a 17-year-old was sentenced under “mandatory” sentencing guidelines, as Sheppard was, they should get a chance to argue just that at a resentencing hearing.
State courts around the country have not exactly embraced the decision. And you can’t blame them. “Miller cases” have been popping up all over the place — there are about 2,500 — costing taxpayer money as one-time juvenile offenders grasp at a chance for a shorter sentence.
Louisiana is in court now arguing that Miller should not be retroactive — that it should only apply to future cases.
Bryan Sheppard’s is one of a relatively few federal Miller cases. He has won the right to a resentencing hearing, but it’s on hold because of the Louisiana case.
In preparation for his hearing, Sheppard’s current attorney, Cyndy Short, asked for a full, unredacted copy of the Justice Department’s 2011 report and the names of the additional suspects it identified. She argued that the findings could bolster Sheppard’s argument for a shorter sentence.
She hasn’t gotten it yet and may never get it.
Exactly what Short will argue at Sheppard’s hearing when it occurs is not clear. But it is clear that the government will be arguing that none of the new evidence should have any place in his resentencing hearing.
The pertinent facts should not include whether Sheppard and the others are guilty — that’s already been determined, they will argue. Arguments of innocence, or trial error, or new suspects, or misconduct by investigators or coercion of witnesses, the government has argued, have no place in such a hearing.
Unless he retires first, any resentencing hearing in Sheppard’s case will be presided over by U.S. District Judge Fernando Gaitan, a George H.W. Bush nominee who’s been on the bench since 1991.
As for the 2011 report Short is seeking, Gaitan has already ruled that, “Sheppard will be free at sentencing to address what he believes his level of participation in the crime to have been, but he is not entitled to ‘see, study and investigate’ an internal DOJ (Department of Justice) memorandum addressing whether other individuals might have been involved in the crime or what role they may have played.”
Just how far Gaitan will allow Short to take her arguments on Sheppard’s behalf remains to be seen. Based on his ruling, however, the odds of even a partial recounting of the new evidence in open court aren’t good.
I am sorry that all this has forced some family members of the firefighters who died that morning to relive their pain. It’s too bad that this nation’s system of justice is so resistant — at least after the fact — to questioning its own conclusions. It’s unfortunate that some of the investigators and prosecutors in the case see all this as nothing more than a few errant details in an otherwise successful prosecution.
I would probably feel the same in their shoes.
But, as Leo Halloran, the brother of one of the firefighters who was killed, has said, a reopening of the case is “the only way to clear all this up.”
Mike McGraw can be reached at email@example.com.
KCPT’s Hale Center for Journalism serves as a center for local multimedia journalism and collaboration with national and regional news sources. The Center houses Flatland, an open-source, digital forum producing stories and conversations about things that matter in Kansas City.
A stage production by StoryWorks KC is inspired in part by The Kansas City Star reporting of Mike McGraw, who has been writing about the firefighter case since 2007. “Justice in the Embers,” written by Michelle T. Johnson, is intended to honor the firefighters and to be a community airing and theatrical exploration of the issues — local and universal, touching on justice — that arise from the 1988 tragedy. It will run from Feb. 4-20. For more information, go to www.flatlandkc.org/tag/storyworks-kc/