More perpetrators possible in firefighters' deaths, feds say

July 27, 2011 Kansas City Star By Mike McGraw

Link to Investigation Summary (PDF)

A federal review prompted by stories in The Kansas City Star has found new evidence that additional perpetrators may have been involved in a 1988 arson that killed six Kansas City firefighters.

The same federal review, however, found "no credible support" for allegations by numerous witnesses quoted in The Star that they lied or were coerced by investigators during a 1997 trial in the case.

Federal officials, however, said any new suspects in the case would have committed the crime along with the five people already serving life sentences, and the new information does not call into question the guilt of those five.

A Justice spokeswoman in Washington, D.C., declined to say whether the department is investigating the new-found evidence in the case.

Federal officials said their conclusions are backed by a 20-page report on the case completed this week, but they released only a 2½-page summary of that document. The summary does not identify the new suspects or any of the witnesses interviewed by investigators.

U.S. Attorney Beth Phillips said in a statement that the government review "vindicates our longstanding confidence in the professionalism of our attorneys and law enforcement agents" and the credibility of the criminal justice system.

"The bottom line: There is nothing that calls into question the defendants' guilt of the crimes for which they were convicted."

She declined to take questions.

The Justice spokeswoman said the full report could not be released without a Freedom of Information Act request to protect "confidential, sensitive, law enforcement and investigative material." The Star has submitted such a request.

Cheryl Pilate, who represents Darlene Edwards, one of those convicted in the case, said Wednesday she would seek a copy of the full report under the federal Freedom of Information Act.

"The summary report issued by the Department of Justice opens up a whole new box of questions that properly must be addressed by a federal grand jury investigation," Pilate added.

Indeed, the summary of the report leaves a number of questions unanswered.

According to the summary, the government's finding that witnesses were not coerced and did not lie is based on interviews with some witnesses who agreed to talk with investigators. The summary makes no reference to the signed affidavits by some witnesses recanting their testimony.

Charles Davis, an associate professor of journalism at the University of Missouri who specializes in open-government issues, said it is "highly unusual" for federal officials to release a summary of such a document but not the entire report.

"That constitutes a game of hide and seek between reporters and the government and creates a very unequal playing field," he said. "The full report could be highly redacted and released."

Sean O'Brien, a law professor at the University of Missouri-Kansas City and an expert on legal claims of innocence, said Wednesday that the review seems clearly to be aimed at debunking The Star's stories.

The fact that the review found possible new suspects "is huge, but I see no reason to trust their conclusion that this new evidence is irrelevant to the convictions of the original defendants," said O'Brien, who is on the board of the Midwestern Innocence Project, which is also looking into the case.

"If the truth is ever brought to light in this case, it will have to depend on people other than the government."

Witnesses and numerous lawyers in the Kansas City defense bar have been raising concerns about the convictions since the 1997 trial in the case.

Then-U.S. Attorney John Wood requested the review in 2008 after The Star began publishing stories about the case quoting witnesses as saying they either lied at the trial or were coerced by federal investigators.

The crime

The case remained one of Kansas City's biggest mysteries for years after an arson-fueled explosion at a U.S. 71 highway construction site killed six firefighters who were called to fight the blaze at a construction trailer filled with explosives.

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

Some years later, after the case was aired on the television show "Unsolved Mysteries," federal investigators caught a break when informants pointed to a suspect who lived in the nearby Marlborough neighborhood.

Their investigation led to a 1996 federal grand jury indictment of brothers Frank and Skip Sheppard, their nephew Bryan Sheppard, his best friend Richard Brown and Frank Sheppard's girlfriend, Darlene Edwards, for setting the fires to cover a botched burglary.

Authorities alleged in a 1997 trial that the five defendants were on the construction site the morning of the explosion looking for tools, batteries, dynamite and anything else they could steal and sell for drug money.

"The defendants set that fire ... purely out of meanness, out of being ornery, that they were unsuccessful in their thieving attempts," Assistant U.S. Attorney Paul Becker stated at the trial.

The five defendants in the case are serving life sentences with no possibility of parole. One of the defendants, Skip Sheppard, has since died.

The Star's findings

Questions were raised about the convictions almost as soon as the trial ended.

More recent investigations began when a man named Ed Massey went to federal investigators during the time he was being interviewed by The Star.

Massey, who was cutting wood cleared by construction workers at the site, told the agents he saw someone set the fires that caused explosions but that it was not the five defendants who were convicted in the case.

A series of stories published by The Star beginning in 2007 made these additional findings:

-Four witnesses told The Star that Donna Costanza and Debbie Riggs, both security guards at the site, had implicated themselves in the fires. Both women have consistently declined to speak to The Star about the case and could not be reached Wednesday.

-Defense attorneys were never provided with a one-page police report, obtained by the newspaper in 2009, that they could have used to defend their clients and implicate others in the crime. In the report, a witness described what appeared to be security guards at the site when arson fires were burning. Security guards on duty that night testified at the trial that they had left by then.

-Jurors in the case apparently failed to follow a federal judge's instructions when they convicted the five defendants in the case. One juror told The Star that he and others might have voted to find at least one of the defendants, Darlene Edwards, not guilty if the jury had fully understood their instructions in the case.

-Five witnesses recanted their trial testimony in tape-recorded statements to the newspaper or in affidavits, and other witnesses who did not testify said federal investigators attempted to coerce them to change their stories in ways to protect the prosecution's case. At one point a federal prosecutor in the case was chastised by a federal judge for pressuring one witness.

The federal summary

The Justice Department summary said the review "was not, and was not intended to be, a re-investigation of the arsons. Rather, the review was intended to address the Star's assertions that the defendants may have legitimate claims of innocence."

The summary said the review "did not find any credible support" for The Star's allegations of government misconduct in the case.

The summary made these findings:

-False testimony. The summary noted that the newspaper identified five trial witnesses who allegedly said they were coerced to give false testimony. "Two of those witnesses agreed to speak to the review team," the summary said. "Both stated that their trial testimony was truthful."

The summary did not identify the witnesses who were interviewed or note that some of The Star's witnesses had signed affidavits recanting their testimony.

-Coercion. The summary said The Star identified numerous witnesses who did not testify at trial but who contended the government coerced them. The summary found the government not to be at fault.

"The review team has concluded that the government did not engage in conduct intended to improperly coerce those individuals ... and that the individuals either possessed no relevant information or, in those instances in which they did, the ... defense team had the information prior to trial."

The summary said investigators interviewed as many of those witnesses as they could locate and who would agree to speak with them, but it did not say how many there were.

-Withholding information. The summary also said The Star asserted that evidence from four people that would have helped the defendants was suppressed by prosecutors. In three of those cases, the summary said, the evidence was not turned over to defense lawyers.

But in each of those three cases, the summary said, "the review team concluded the information ... would not have called into question the defendants' guilt of the crimes charged."

-Involvement of others. Parts of this section of the summary were omitted for "privacy reasons," the government said. The section deals with allegations raised by the newspaper that other parties may have some responsibility for the arson fires.

Most of that information was either available to the defense team, the summary said, or would not have helped the defendants prove their innocence.

This part also contained the newest and potentially most damaging findings of the review team.

It said they found "several newly-developed pieces of information, not previously known to the prosecution," suggesting that other people, who were never prosecuted and who were not named in the summary, "may have been involved in the arsons."

The summary appears to redact the name or names of other people.

Nothing in that discovery changes the fact, the summary said, that the five people convicted of the crime remain guilty of committing it.

John Osgood, one of the original defense attorneys in the case, said that such a conclusion by the Justice Department is silly.

"How can they say now that there were other perpetrators when they described the five defendants at the trial as a close-knit group?" Osgood asked.

"That's nonsense. Those two findings are mutually exclusive. That is just a shocking conclusion in my mind," added Osgood, a former federal prosecutor turned defense attorney.

However, former U.S. Attorney John Wood, who requested the review three years ago, said "it appears that the Justice Department conducted a very thorough and professional review of the allegations."

Wood, now a partner in the Washington, D.C., firm of Hughes, Hubbard & Reed, added that "The review has been completed in the independent, professional manner that I had requested. Based on the findings described in the summary, I am fully satisfied that the government has fulfilled its obligations to ensure that justice was served and that no innocent individuals were convicted."

But Pilate, the defense attorney, said the report's acknowledgement that new perpetrators may have been found "is a huge step forward in getting at the truth in this tragic case. Although this new information does not ... undermine its confidence in the convictions of the five defendants, that conclusion can properly be reached only after the newly discovered evidence is fully developed and examined in its totality."

Pilate called for more investigations.

"The defendants, the victims' family and justice all demand a prompt and thorough grand jury investigation of this new evidence," she said.

To reach Mike McGraw, call 816-234-4423 or send email to

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