Defendant in Firefighters’ Tragedy Gets a Re-Sentencing Hearing

Graves of firefighters covered in snow A memorial near 85th Street and Blue River Road honors six firefighters who died in an arson-related explosion at a construction site in November 1988. The case will be brought back to court next month when defendant Bryan Sheppard, 17 at the time of the explosion, receives a re-sentencing hearing. (Keith Myers | The Kansas City Star file)

For the first time in nearly 20 years, details of one of the city’s most enduring tragedies are about to play out once again in a Kansas City courtroom.

Bryan Sheppard, one of five defendants convicted in the 1988 arson deaths of six Kansas City firefighters, will be asking a federal judge next month for his immediate release from a life sentence that came with no possibility of parole.

A 69-page memorandum filed Friday by Sheppard’s attorney lays out the details of Sheppard’s chaotic and often volatile upbringing. It describes a troubled, once-illiterate thrill seeker who redeemed himself during his 20 years in federal prison.

Sheppard was raised by alcoholic parents who themselves were raised by alcoholics, according to the memorandum by Cynthia Short, Sheppard’s court-appointed attorney in the case.

“He lived an unusually chaotic life regularly punctuated by devastating traumas.”

While such claims are common excuses for criminal behavior, none of it would be pertinent except for the fact that Sheppard, now 45, was a 17-year-old juvenile at the time of the crime.

That, along with other factors, gives Sheppard the right under a 2012 Supreme Court case to seek a shorter sentence.

The case, Miller vs. Alabama, holds that, for juveniles, mandatory life sentences without parole violate the cruel and unusual punishment clause of the Eighth Amendment.

The case is based on research showing that adolescents “lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.”

The judge in the Sheppard re-sentencing, senior U.S. District Court Judge Fernando Gaitan Jr., has a wide range of options, from releasing Sheppard now to requiring that he serve his entire life sentence.

Because they were older at the time of the crime, none of the other four defendants in the case, one of whom has died in prison, has the same option.

The Sheppard case will be the first re-sentencing under the Miller decision to take place in the Western District of Missouri, according to a spokesman for the U.S. Attorney’s office here.

One other case is pending.

The spokesman added, “We think it would be appropriate to reserve any comments to our filings with the court.”

Actual Innocence?

Lurking in the background at the hearing next month, and woven here and there in today’s motion, are longstanding questions about whether Sheppard and his codefendants actually committed the crime in the first place, despite their 1997 convictions in federal court.

The motion points out for example, that many of the prosecution witnesses in Sheppard’s case were informants who were arguably motivated to testify in exchange for consideration on pending charges.

Such “snitch” testimony, the motion says, has been found to be the leading cause of wrongful convictions in capital cases.

The filing also notes that Sheppard had an alibi the night in 1988 that an arson-fueled explosion at a Highway 71 construction site killed the six firefighters, who had been dispatched to a burning construction trailer that contained explosives.

Killed instantly were firefighters Thomas Fry, Gerald Halloran, Luther Hurd, James Kilventon Jr., Robert D. McKarnin and Michael Oldham.

Indeed, with no physical evidence tying any of the defendants to the crime and no admissions or eye witnesses, the government’s case in the 1997 trial was built primarily on informant testimony.

A number of the more than 50 prosecution witnesses have since recanted their testimony, and some have done so in sworn affidavits.

The case was the subject of a lengthy investigation by The Star which, at one point prompted an independent Department of Justice investigation.

While that 2011 inquiry found “no credible evidence” to support The Star’s findings that some witnesses, as they claimed at the time, were pressured by the government t to lie, it did say that investigators found new evidence that additional perpetrators “may have been involved in the arsons in addition to – and not to the exclusion of – the defendants.”

The names of the “new” perpetrators were stricken from a copy of the report released to the public, and the report did not explain why the defendants in prison never told authorities they had accomplices.

Paul Becker, the assistant U.S. Attorney who prosecuted the case in 1997, will represent the government in the hearing, scheduled for Feb. 15 and 16. He has argued in the current case that claims of innocence have no place in such a hearing, and the judge has agreed.

Chaotic Upbringing

What Sheppard’s attorney will argue, according to today’s motion, is that Sheppard’s chaotic upbringing should earn him a reduced sentence.

Sheppard was beaten by family members, nearly died after being shot by a former girlfriend and he was present when his grandfather committed suicide. He later turned to drugs.

“The future was not a real factor in his day to day life,” the motion says. “He moved from house to house, slept in a tent one summer, partied whenever possible, worked minimum wage jobs, and drank and smoked despite having clear examples of the consequences those same behaviors had had for many friends, neighbors and family members.”

In addition to the motion, 55 letters of support, reports by a criminologist, a psychologist and other experts and 15 videos were filed Friday in the case.

Rehabilitation in Prison

Despite all Sheppard’s upbringing, the motion says, “Mr. Bryan Sheppard epitomizes what can be done in the Federal system by the highly motivated.”

Illiterate when first imprisoned, Sheppard has since earned his GED, has quit smoking and using drugs and alcohol.

“While spending his life in prison for a horrific crime that he maintains he did not commit,” the motion says, “Mr. Sheppard continues to think about the other people whose lives have been irreversibly changed by the events of that day: he regularly expresses sincere and moving empathy for the families of the firefighters who died in the explosion…

“Bryan Sheppard has been in custody on this offense since 1996. He has served nearly 20 years of his original sentence. He is nearly 46 years old. He is sober, connected to the community and ready for release.”

At least one legal expert on sentencing guidelines said that, based on other similar cases, Sheppard may have decent odds at getting a reduced sentence.
Douglas Berman, a law professor at Ohio State University, notes that many states passed legislation after the Miller decision offering juvenile offenders serving life sentences a chance for release or parole after 20 years in prison.

Even though Sheppard’s case is federal, he added, “That may put some wind at the back of his defense attorney.”

As for claims of innocence, Berman said, re-sentencing hearings don’t offer a chance to re-litigate a conviction, but they can help “resuscitate concerns about wrongful convictions.”

— Mike McGraw is a Special Projects Reporter for KCPT’s digital magazine, Flatland. Follow his stories online at FlatlandKC.org and @FlatlandKC.

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