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5 Innocent People Were Convicted

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Railroaded Part II: The Firefighters Case
The Trial
by J.J. Maloney
Copyright 1997

A criminal trial is a battle of wits. In most cases a single defense lawyer squares off against a single prosecutor and they battle over what evidence is admissible and, if admitted, what it means.

If evidence of guilt is overwhelming, the case usually ends in a guilty plea. When a case goes to trial, the defense usually has one of three theories: a) The defendant is innocent; b) The defendant has nothing to lose, because a jury won't give any more time than the prosecutor wants on a guilty plea; c) The jury will find the defendant guilty of a lesser crime than the one charged.

In this case there were five defense lawyers and each believed his or her client innocent. Because of the statements made to authorities by Richard Brown and Darlene Edwards, there were two separate camps in the defense: Richard Brown and Bryan Sheppard on one side, and Frank Sheppard, Skip Sheppard and Darlene Edwards on the other.

Frank Sheppard was represented by Patrick Peters, long known as "Doctor Death" because of the numerous death-penalty convictions he obtained as an assistant Jackson County prosecuting attorney. Peters left the prosecutor's office after he ran against Claire McCaskill in 1992 for the office of Jackson County prosecutor and lost.

Peters, the son of the late Jackson County Circuit Judge William Peters, is uncommonly handsome, vain, and keenly intelligent. With his color coordinated suits (on one occasion he changed suits at lunchtime), black hair, penetrating eyes and perfect teeth, he cuts quite a figure in the courtroom. Peters is a passionate lawyer who, although new to defense work, has considerable talent.

The opposite of Pat Peters in some ways would be John Osgood, who represented Richard Brown. Osgood's sartorial tastes run to rumpled. As a long-time federal prosecutor, Osgood had a reputation for impeccable honesty. Osgood, on more than one occasion, expressed disbelief that Becker would use witnesses whose testimony conflicted to such a degree that any reasonable person would have to conclude that many of them were committing perjury.

Osgood is balding and has a bulldog look about him -- and that is precisely his style as a lawyer.

John P. O'Connor, Bryan Sheppard's lawyer, although in his 40s, exudes a boyish exuberance. He radiates confidence and sincerity. Not as rumpled as Osgood, O'Connor seems to make a conscious effort to look like an "average Joe." O'Connor likes to interview witnesses personally, using a certified court reporter to record everything said. (This is why True's statements that O'Connor had intimidated witnesses into recanting their stories are ludicrous.) In the weeks leading up to trial O'Connor raced from jail to jail, interviewing Becker's witnesses, and obtaining court records on government witnesses, often getting only a few hours sleep each night. O'Connor's excellent reputation as a trial lawyer proved to be well deserved.

Will Bunch, at 62 years of age, has long been considered one of the best criminal trial lawyers in Kansas City. With his silver hair and beard, conservative suits and deep voice, Bunch has an abundance of courtroom presence. Originally from Osceola, Mo., he has never quite divested himself of certain "country" mannerisms. He frequently pokes fun at himself. This, combined with his quiet dignity, causes many juries (and judges) to instinctively like him. (I assisted Bunch in the defense of Darlene Edwards.)

While many defense lawyers obviously go for the throat during cross-examination, Bunch likes to quietly take a witness by the hand and lead him or her down the primrose path. Witnesses frequently don't realize what he's done to them until he turns away and says, "No further questions." In addition to being a past president of the Kansas City Metropolitan Bar Association, Bunch spent eight years on the state Public Defender Commission, and eight years as a lecturer at the UMKC school of law. He wrote the chapter on criminal evidence for the CLE (continuing legal education) handbook used by the Missouri Bar Association. In the early 1990s Bunch was one of three lawyers nominated to fill a vacant position as U.S. Magistrate. Sarah Hays, the magistrate for this case, was one of the other two, and she got the job.

Susan Hunt, who represented Skip Sheppard, was a technician for the police department's Regional Crime Lab before becoming an attorney. She has specialized in federal criminal cases for a number of years and is often court-appointed. Hunt did much of the motion work for the defense in the early phases of the case. Hunt's cross-examination of witness Steven Kilgore, which resulted in Judge Joseph Stevens revealing his bias against defense investigators -- and by implication the defense itself -- would be a major issue in appealing the ultimate conviction of these defendants. (To date, all appeals have failed.)

Hunt and her assistant Elena Franco, an attorney, were unexpectedly hindered in preparing for trial. Hunt, thinking she and Franco would do their own investigation in preparation for trial, had only budgeted $3,000 for an investigator (much less than the other defense attorneys). In mid-October, 1996, a long-time client of theirs (they were court-appointed), Missouri prison inmate Richard Zeitvogel, was suddenly scheduled to be executed on Dec. 11, 1996. From October through December, Hunt and Franco worked feverishly, but unsuccessfully, to save his life. Hunt tried to get a 30-day continuance of the firefighters trial, but the court only granted 10 days.

Assistant U.S. Attorney Paul S. Becker is a small man who likes to remind people that he is from Brooklyn. He has a tough demeanor. He is a ruthless prosecutor and unquestionably intelligent. When he relaxes, and smiles, you get the impression he might be a very different person away from the courthouse.

Becker first became known to Kansas Citians when he provoked the "Basta" movement in the early 1990s.

In his investigation of organized crime (he is head of the Organized Crime Strike Force, one of the last such strike forces in the United States) he began to call young Italians before the federal grand jury and demanded that they provide testimony against their relatives and friends. When they refused, he had them sentenced to jail for up to 18 months each for contempt. The movement culminated when Peter Simone, a prominent mob figure, agreed to plead guilty to gambling charges in return for 11 young Italians being released from jail (including Simone's own son, Joe Pete Simone).

Becker's ruthless tactics prompted outcries of rage -- not only in the Italian-American community but among civil libertarians in general. The Basta case seems to epitomize Becker's style as a prosecutor: Get the conviction, no matter who cries foul.

Becker was assisted at the firefighers trial by Dan Miller, an assistant Jackson County prosecuting attorney who was appointed a special assistant U.S. attorney. Miller is a former Missouri state highway patrolman turned lawyer. He will be best remembered for asking one witness at the firefighters trial: "What color was the black Ford pickup truck?"

The alibis given to police by each defendant were:

a) Richard Brown said he'd been out earlier on the evening of Nov. 28, 1988, with Bryan Sheppard; took Sheppard to his house early in the evening, and then was at a motel with his girlfriend, and got home several hours before the explosion.

b) Bryan Sheppard said he had been with Richard Brown that evening, and was home by 10 p.m. to midnight. His alibi was supported to police by his girlfriend and mother.

c) Darlene Edwards and Frank Sheppard had always said they were home together at the time of the explosion. After being arrested on drug charges in February, 1995, and being told by Agent True that there would be a "window of opportunity" for her if she changed her story, Darlene gave a statement saying she had driven Richard Brown and Bryan Sheppard to QuikTrip to buy gasoline shortly before the explosion. Early in the case Darlene had told police that, shortly after the first explosion, she had seen a pickup truck resembling Brown's speeding past her residence.

d) Skip Sheppard has always said he was at his brother-in-law's house the night of the explosion, sleeping with his girlfriend Elizabeth Harrigan. Harrigan and the brother-in-law, Larry Baker, supported that alibi.

As the trial date neared, the defense attorneys not only had to prepare for trial, but fight ongoing discovery battles with Assistant U.S. Attorney Becker.

In early Jan. 1997, the defense received a copy of a letter to Becker from John P. Ryan Jr., an attorney representing Mary Hawks, a witness who had testified before the grand jury, and who'd said Skip Sheppard had made damaging admissions to her. Because Hawks was related by marriage to the Sheppards, the defense had felt her testimony might be particularly damaging, thinking a jury might view her testimony as "inside" knowledge. Ryan's letter to Becker said that, if Hawks were called to testify at trial, she would invoke her Fifth Amendment right not to incriminate herself. Becker immediately wrote Ryan a letter saying that he would like to interview her about her decision on testifying, and Becker added: "nothing she says in this interview would be used against her, directly or indirectly in any criminal prosecution including a prosecution for perjury or contempt."

Hawks told Becker she didn't want to testify at trial because she had lied to the grand jury -- that Skip Sheppard had never made any incriminating admissions to her. The defense then waited to see if Becker would make any disclosure of this development to the court or the defense. He didn't. During a conference call between all of the attorneys and Judge Bartlett, on Jan. 10, 1997, O'Connor asked Becker if there was any more Brady or Jencks Act information to be disclosed to the defendants, and Becker said no. This was a definite Brady violation, since Becker had sent the defendants his list of trial witnesses on Jan. 9, 1997, and Mary Hawks was listed as a definite trial witness. Her revelation that she had lied to the grand jury was unquestionably Brady material, i.e., information that would support the innocence of a defendant. The fact that Becker may have made a private decision, later in the day on Feb. 9, 1997, not to use her at trial, wouldn't change the fact she was still officially listed as a trial witness and the defendants were entitled to any information known to the government that would impeach her credibility.

Chief U.S. District Judge D. Brook Bartlett was to be the trial judge. U.S. Magistrate Sarah W. Hays handled all pretrial matters. Bartlett enjoys a reputation as the most meticulously fair federal judge in Kansas City. He is a serious -- not quite solemn -- judge who leaves no doubt as to who is in control. In his quest for fairness, Bartlett can reduce lawyers to fidgeting impatience as he agonizes over the meaning of a word. Frustrating though he may be, in his excruciating deliberateness, Bartlett is the judge most experienced trial lawyers want.

U.S. Magistrate Sarah Hays keeps a book of lawyer jokes on the coffee table in her waiting room. Where many people appointed to the federal bench seem painfully aware of their importance, Hays is down-to-earth. She's one of those rare people who can say "y'all" with elegance. When pushed, she can be as flinty as Bartlett.

As Paul Becker fought to keep material favorable to the defense (known as Brady material) secret as long as possible, Hays was viewed by the defense as an ally. Hays applied constant pressure on the government to disclose Brady material.

Hays ruled against the defense on a number of important issues, but the defense lawyers never felt that she was anything but absolutely fair.

Hays dealt the government a blow early in the case when she released defendant Richard Brown on $50,000 bond, even though the charge he faced carried life in prison without parole. Brown's parents put their house up as collateral. Hays ordered that Brown would have to live in a halfway house, not use alcohol or drugs, undergo drug testing, and actively seek a job.

Becker, at the beginning of the case, announced that this would be a "closed file" case -- meaning the government would withhold witness statements until shortly before trial, leaving the defense little time to investigate and prepare for trial. Becker is the only assistant U.S. attorney in the Western District of Missouri who routinely invokes this outdated evidentiary rule that places the defense at an enormous disadvantage in preparing for trial.

As soon as the defense lawyers had been appointed, John O'Connor shared with the other defense attorneys the 2,500 pages of discovery he'd received from the State of Missouri while defending Bryan Sheppard in 1989. Becker had agreed to turn over all Brady material (material that is exculpatory, i.e., material that will show the innocence of a defendant, or which will impeach a government witness) early. Becker produced a small amount of such material. By combing the state records O'Connor supplied from 1989, Will Bunch discovered that it was obvious that Becker was withholding a great deal of Brady material from the defense.

Bunch filed a detailed Brady motion, pointing out Brady material that was in the 1989 file but not included in the materials released by Becker. In response to that motion, Becker released more Brady material.

One interesting thing that popped out of Becker's file was a sheaf of documents on Frederick Martindale -- who, after failing a polygraph test in March, 1991, had confessed to causing the explosion.

Martindale had bragged to several people that he'd caused the explosion and word got back to the police. Martindale, while consistent in saying he'd set the fire, waffled on who was with him. At one point he said it was hard to be a "narc" (snitch). He finally said a Billy Hardin was with him.

Martindale was arrested. The next day police released Martindale, pending "further investigation." A detective later testified that the police questioned Hardin, who denied being involved in the explosion, and that ended the investigation into Martindale.

Becker also released several hundred pages of "redacted" witness statements -- statements wherein prosecutors black out the identity of the witnesses, along with any information that might help in identifying the witnesses.

However, it was immediately apparent that all of the statements conflicted with each other on which defendants were allegedly involved in the crime, what the motive of the crime was, etc. Bunch and Hunt filed motions contending that these redacted statements were, themselves, Brady material and should be furnished in unredacted form.

Magistrate Hays' distaste for Becker's "closed file" policy, and his intransigence on turning over Brady material was evident. After a hearing on the matter, Hays ordered Becker to produce all Brady material to the defendants no later than Nov. 26, 1996. She set out in detail the kinds of material that Becker should disclose. The trial was set to begin on Jan. 13, 1997.