Two years ago, the U.S. Department of Justice opened an investigation into possible flaws in the prosecution of five people convicted in the 1988 deaths of six Kansas City firefighters.
But they have yet to release a report, and advocates for the defendants in the case are starting to question the extent of the effort so far.
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Justice Department officials in Washington continue to decline to comment on where the investigation stands, when it might be completed, or to even confirm that it is — or was — under way.
"They should have done something by now," said Senior U.S. District Judge Scott Wright, one of many legal experts with longstanding concerns about how the government handled the case.
The inquiry involves the federal investigation of five people who were convicted in the 1988 explosion-related deaths of the firefighters. The trial occurred in 1997, nine years after the crime. All five, one of whom died recently in prison, were sentenced to life with no possibility of parole.
"For those of us who are concerned about what really happened out on that hill in 1988, this is taking too long," said U.S. Rep. Emanuel Cleaver of Kansas City, who supported the re-investigation of the case. "Justice delayed could be interpreted as justice denied."
Killed in the blast were firefighters Thomas Fry, Gerald Halloran, Luther Hurd, James Kilventon Jr., Robert D. McKarnin and Michael Oldham. They were attempting to put out a fire in a trailer containing explosives on a south Kansas City highway construction site.
The Justice Department’s inquiry was sparked by a July 2008 story in The Kansas City Star in which 15 witnesses alleged that a federal investigator pressured them to lie. A few days later, the then U.S. attorney, John F. Wood, citing the newspaper’s findings, asked for a "thorough and unbiased" review of the matter.
According to those who have been interviewed, the two investigators assigned to the re-investigation are Pamela McCabe, a special agent for the department’s Office of Inspector General, and John Cox, a prosecutor in the department’s criminal division. Both have traveled to Kansas City at least once to interview witnesses and have spoken with others by phone, those interviewed said.
It is unclear how broad the investigation is, but those interviewed said they were asked numerous questions about whether they were pressured to lie or perjure themselves at trial.
What is clear is that the latest investigation has affected attempts by the Midwestern Innocence Project to gather documents in its efforts to review the case, said Tiffany Murphy, the project’s legal director.
"There are vital documents that were turned over to the investigators that we can’t get now because of the ongoing investigation," Murphy said, "because it’s now an open case again."
Pat O’Connor, a private citizen who has taken an interest in the case and been an advocate for the defendants, said he learned several months ago that Justice Department investigators had completed a preliminary report and it is being reviewed by their supervisors.
O’Connor, a former newspaper publisher, has been working to free the defendants: Frank Sheppard, Bryan Sheppard, Richard Brown and Darlene Edwards. Earl "Skip" Sheppard died last year at the Bureau of Prisons’ medical center in North Carolina.
Before their trial, all of the defendants refused offers to testify against one another in return for lighter sentences, and all have insisted since their arrests that they are innocent.
Prosecutors had no physical evidence linking the defendants to the crime, and no eyewitnesses came forward for the 1997 trial. Most of the government’s evidence was based on testimony from numerous witnesses who claimed that one or more of the defendants admitted involvement in the crime.
Assistant U.S. Attorney Paul Becker, who prosecuted the case, has acknowledged that while many of those witnesses were not sterling citizens, they told consistent stories. Many stood behind their testimony over the years, but the testimony of others was challenged at the trial by defense attorneys, or comes from people who now say they were pressured to lie.
"In not interviewing some of the key figures (who claimed they were pressured), the new federal investigation could not be considered complete," O’Connor said in a recent interview.
He is hopeful Justice Department investigators will eventually interview all witnesses who alleged they were pressured by federal authorities. O’Connor also wants them to explore an alternate theory of the crime: that a security guard may have played a role in setting arson fires at the construction site, including the one that led to the deadly explosion.
The Star’s four-year investigation found four people who alleged that two female guards — one of whom wasn’t on duty — later acknowledged involvement in the crime.
One person, whose alleged coercion by federal authorities became part of a court record, said he has never been contacted by the investigators. Alan Bethard told The Star that he was willing to meet with Justice Department officials at any time and any place.
"I don’t understand why nobody’s talked to me," Bethard said.
In the early 1990s, Bethard said federal authorities pressured him to say that one of the defendants admitted involvement in the explosion, even though he never heard such a statement. After that, he said, authorities made good on a threat.
Bethard said authorities dropped a stolen-car charge against him that was pending in state court and refiled it in federal court, where penalties are harsher. Bethard pleaded guilty, but Wright, the federal judge in the case, chastised the government publicly for trying to force Bethard to change his story.
Wright threatened to dismiss the case as "vindictive prosecution" and told Bethard, "I’m sure the (federal) Sentencing Commission would never in their wildest dreams anticipate that the government would pull something like this, like they’ve pulled on you."
Becker, who prosecuted the five defendants in the 1997 trial, denies that the government retaliated against Bethard. He said authorities were only seeking Bethard’s cooperation.
"We call it an inducement," Becker said in June 2008, adding that Bethard committed a crime and "it is our obligation and duty to go out and prosecute violations of federal criminal law."
Many witnesses have told The Star that excessive pressure in the original investigation came from Dave True, now a retired agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives.
True has repeatedly denied that he coerced or intimidated witnesses and has said, "There’s no question in my mind that the right people are in jail." True declined to comment for this story.
Wood, the former U.S. attorney who requested the current inquiry, also declined to comment because "I wouldn’t want to interfere."
U.S. Attorney Beth Phillips acknowledged that a Justice Department investigation has been under way. She issued a statement recently saying her Kansas City office has fully cooperated.
"But in order to preserve the integrity of the process, we have consistently declined to make any public statement," Phillips said.
Cleaver, who was mayor pro tem at the time of the explosion, said two years ago when the Justice Department launched its inquiry that it was an appropriate response to the newspaper’s findings.
"If we fail to investigate this now, it is one of the most blatant malfunctions of justice we have ever seen in this city," he said.
Cleaver also said then that if the new inquiry didn’t go far enough, he would call on U.S. Attorney General Eric Holder to ensure that it does.
In an interview Friday, Cleaver said recent efforts by his office to determine where the Justice Department investigation stands have gone unanswered.
"I do want some closure to this, as do the families of those who were killed, and the citizens who believe that we didn’t have all the information on the case at the time of the convictions," he said.
Meanwhile, Jean Paul Bradshaw, who was U.S. attorney during part of the original firefighters investigation, said he was surprised that the latest inquiry has taken so long.
"I would think that if they were going to say no wrongdoing occurred, they should have done so sooner than this," he said.
Bradshaw speculated that if the investigators had found any problems, "they may be talking about what to do, because it’s never a positive thing to let something like this hang this long."
Cheryl Pilate, a local defense lawyer who is representing one of the defendants, said there are "a lot more people with pertinent information who want to talk to the investigators."
But at this point, Pilate added, "we have to assume they have done a good-faith job and that they just have limited tools to work with, limited time and a limited ability to travel."
The Justice Department investigators also are working without subpoena power, she noted.
"I am very much hoping this is a first step and that they recognized in the screening process that there are enough problems here to set off alarm bells," Pilate said.
George Kendall, a New York lawyer and criminal justice expert, said inquiries into possible wrongdoing in federal convictions "don’t happen often enough."
When they do, he added, "they move slowly."
HOW YOU CAN HELP
Anyone with information about the case may contact the Office of the Inspector General at 312-886-7050.