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‘I Can’t Let It Go’ | Part I

(Illustration: Kelsey Borcherding)
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EDITOR’S NOTE: This first-person account of one journalist’s attempts to shed light on potential problems in the U.S. justice system is part of a larger effort by KCPT and The Center for Investigative Reporting (CIR) to explore the meaning of justice in the context of the 1988 explosion in south Kansas City that killed six Kansas City firefighters. The effort, called StoryWorks KC, includes a stage production about the case, based in part on reporting in The Kansas City Star. Find more information on the production and on how to share your memories of the explosion and subsequent court cases at the bottom of this page. 

This commentary is in two parts. Find Part II tomorrow on Flatland.

UPDATE: This article was updated Jan. 7, 2016, to reflect minor changes for clarification.

‘There Are Questions’

I don’t know what happened up there 27 years ago last week on a windswept hill in south Kansas City the morning six firefighters died. 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 they show no interest in finishing the job.

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 who didn’t. And I’ve talked to others that 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.

The government gave the defense attorneys all the information they were required to hand over, he said, and a jury of their peers found them guilty.

And that they did.

But some of those 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. For making the families relive a heartbreaking tragedy.

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, including witness recantations, new un-prosecuted suspects identified by the U.S. Department of Justice and additional evidence that raises questions about the 1997 convictions.

From the Files: “There’s A Lot of Questions That Will Go Unanswered.”

The Case

But before we go down that path, it’s only fair to acknowledge that the federal government put together a strong case against the five defendants. That’s especially true considering that there was no physical evidence tying any of the defendants to the crime. No DNA, no fingerprints, no admissions, no tell-tale tracks in the mud, no eye witnesses.

The government’s theory was simple. At 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,” Assistant U.S. Attorney Becker told the jury at the trial 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. Despite their earlier failed attempt at thievery, valuables left inside the truck were still there.

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.

That’s a lot of witnesses, and some seemed very credible. Perhaps the most reliable witness was a woman who lived next door to two of the defendants in Kansas City’s Marlborough neighborhood, just across the highway from the explosion.

The woman, a nurse, testified that the first explosion literally 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 others included their nephew Bryan Sheppard, his best friend Richard Brown, and Frank’s girlfriend Darlene Edwards. She was the woman that some on the jury had wanted to set free.

‘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, 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.

He asked me to take another look at the case, following up on the work of a former colleague of mine at The Star, a man named J.J. Maloney. Maloney, who himself had served 13 years in prison for the 1959 murder of a St. Louis confectionary owner, was hired by The Star after he was paroled in 1972. He stayed six years.

He was a colleague and, like most of the other reporters in the newsroom, I considered him a friend. He was a chain-smoking, wise-cracking dogged reporter and he knew the system from the back side.

Maloney saw the trial as more an effort for closure than a search for truth. After he left The Star, Maloney had written several stories about the case for The New Times just after the trial. The stories won an award from the Missouri Bar Association. He died two years later. Neither O’Connor nor Maloney ever tried to hide their feelings about the government’s case. The stories ran under the headlines, “Frame Up” and “Railroaded.”

I was dubious. The defendants had good lawyers. There had been a lengthy trial, a guilty verdict and numerous failed appeals.

I thought Maloney may have gotten too close to the case. He was at the trial working as an investigator for one of the defense attorneys. I did not live in Kansas City at the time of the explosions, and I didn’t cover the trial.

But Maloney’s stories — just like all his stories — raised lots of fascinating issues and I was intrigued, as were The Star’s editors. They told me to start poking around in the case, knowing full well that a story about jailed arsonists convicted of killing six firefighters wasn’t likely to make us many friends.

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, the assistant U.S. Attorney who prosecuted the case.

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 was nearly a decade after the convictions, and suggested that I was just finishing up the work of my “old buddy” Maloney.

One thing was clear at the outset. Many of Becker’s witnesses were not what most of us would call fine upstanding citizens. But 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.”

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. 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.

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.”

TIMELINE: Follow the Events Through the Years with this Interactive Timeline

How Close is Too Close?

The first time I met Bryan Sheppard, the youngest of the five defendants, was in September 2006. The newspaper had sent me to interview all five of the defendants, housed in two different federal prisons.

He was at the 49-acre Florence Federal Correctional Complex about two hours south of Denver. There are actually three federal prisons there, including the Supermax facility, the home of Zacarias Moussaoui, the only person convicted in civilian court of the September 11 attacks.

Sheppard was housed at the next highest security prison there, known as USP (United States Prison) Florence High, as in “high security.” Here is how the bureau of prisons describes Florence High, which houses 600 men: “The doors of the cells and corridors are all controlled from a central control room and the cells are positioned so that inmates are unable to see the exterior building line in order to reduce the possibility of escape. A perimeter fence, seven guard towers, and a patrol road ensure the security of the prison.”

After emptying my pockets of everything but a small digital recorder and passing through a metal detector, I was taken to a small glassed room. Inmate No. 09138-045 was brought in and seated across from me.

One of the first things Bryan Sheppard told me was how his lawyer had begged him before the trial to take the five-year plea deal the government had offered all defendants. Admit to being part of a conspiracy to commit arson, testify against the others, and get five years. Otherwise, he could get life.

He refused. Repeatedly. “We had nothing to do with this case and I’m not gonna 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 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 — the same lawyer who represented him nearly nine years later against similar federal charges — proved that the informants had lied.

But the federal agents who had taken the case over from local police had found new informants. A lot of them. And that was partly because they had posted flyers 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.

He had been on the honor role in seventh grade, but was expelled two years later, “because I was a troubled kid and I wouldn’t go to class or stay in class — that was even if I went to school at all.

“I grew up around a lot of people that partied or sold or used drugs. My neighborhood is not what you would call upper class. It’s mostly hard working people or welfare people. I knew what a dope house was at an early age.”

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 before the federal court case. Even though federal investigators also use polygraph exams, they are not admissible in court.

During his 18 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 talk by phone every month or so — all subject to prison monitoring. He sends me birthday cards.

I’ve grown to respect how he’s changed over the nearly 10 years I’ve known him.  He’s well-spoken, fit, and is 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.

There’s one other fact about Bryan Sheppard that’s worth noting. It’s a fact that went all but unnoticed at the 1997 trial. But it would later become the key factor in focusing renewed attention on the case, or at least part of the case, and the fact was this: Bryan Sheppard was only 17 at the time of the crime.

‘Witnessed By Angels’

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. Had any of them been willing to testify to being part of the conspiracy and pointed a finger at the others, they could have been back on the streets for years by now.

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, who knows Massey is an ex-convict, 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 one of the guards, Debbie Riggs, who had been an early suspect in the case, 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, despite the trouble that the defendants allegedly went to in an effort to create a diversion, 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 whose 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 defense attorney 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 (Missouri) 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, which hasn’t happened. In fact, the U.S. Justice Department re-interviewed some of them about four years ago. But, while the results shed little new light on the case, there was one unexpected revelation.

For Part II of reporter Mike McGraw’s commentary on this case, return to Flatland tomorrow.


StoryWorks KC

For tickets to the StoryWorks KC performances, click here

KCPT, The Center for Investigative Reporting (CIR) and Kansas City’s The Living Room Theatre present StoryWorks KC, a project that will explore, and bring to the stage, the story of the 1988 explosion in south Kansas City that caused the tragic deaths of six Kansas City firefighters. The StoryWorks KC production is inspired by the Kansas City Star reporting of Pulitzer-prize winning journalist Mike McGraw, who has been writing about the case since 2007. Join StoryWorks KC, February 5-20, 2016 for a community airing and theatrical exploration of the issues — local and universal, touching on justice, equality and belief — that arise from this tragic Kansas City story. Visit KCPT.org for more information on local events and programming.

To be a part of the conversation, fill out KCPT’s request for community input with the Public Insight Network regarding the explosion and subsequent trial:
Remembering 1988 explosion that killed 6 KC firefighters

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