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Berry Velvet Pinwheel Bow
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Most Wisconsin farmers remain skeptical about climate change, although data show they have already begun adapting to shifts in weather patterns, scientists said at a University of Wisconsin-Madison conference this week.
Farmers, the scientists said, are key actors in adapting to climate change or mitigating its effects. They manage 61 percent of the nation's land. They are vulnerable to droughts, cold, heat and hail — crop insurance paid out $17.4 billion dollars in indemnities nationwide after the 2012 drought.
"Farmers are at ground zero for climate change," said Paul Mitchell, an associate professor of agricultural and applied economics at UW-Madison, speaking Thursday to more than 100 academics and others at the university's annual Sustainability Forum.
But they do not believe in it, by and large.
The upshot: "First thing about climate change: Don't talk about climate change," Mitchell said. "Whatever language you need to use to work with your audience — that's the language you would use."
In a 2009 four-state survey of about 1,300 farmers, published in the November 2013 Journal of Agricultural and Applied Economics, less than half of farmers agreed that climate change had been scientifically proven.
The team found that about 42 percent of Wisconsin farmers said humans are changing Earth's climate, while two-thirds said normal weather explains recent events.
The findings are consistent with another national study from 2012, which found 60 percent of farmers believed climate change was either mostly natural, not happening, or they were uncertain about it.
Other studies have shown about two-thirds of the general public believes in climate change.
While there were differences in perceptions based on age, education, farm size and other factors, Mitchell said the clearest finding was that farmers across a broad geographical swath — Mississippi, North Carolina, Texas and Wisconsin — had similar beliefs, with a little less skepticism in North Carolina.
The survey, conducted by the National Agricultural Statistics Service, had a 23 percent response rate. It omitted the smallest 20 percent of farms in each state.
The survey did not examine the reasons behind farmers' views, but Mitchell said he had seen enough controversy to know that "it's not a scientific issue; it's a political position."
Climate change in Wisconsin
The Intergovernmental Panel on Climate Change, a United Nations-established body that assesses the state of climate science, says climate change is under way and it is "extremely likely" that humans are the cause.
Global temperatures have risen about 1.5 degrees Fahrenheit since 1900, most in the last half-century. Wisconsin's warming has roughly followed global patterns, and temperatures are likely to rise 3 to 9 degrees by midcentury.
In Wisconsin, climate change over the past half-century has meant fewer very cold winter nights, more annual precipitation overall, and a steady rise in the number of extreme rainfalls.
For farmers, the growing season has lengthened by one to four weeks since 1950.
Corn and soybean yields have risen, as has year-to-year variability in those yields. Some of the increase is due to better practices and technology, but earlier planting explained nearly a quarter of the increase in yields from 1979 to 2005, according to data from Chris Kucharik, a climate researcher in UW-Madison's agronomy department who regularly gives talks on climate change to farmers and others.
Climate change could also affect weed and pest infestations and dairy productivity, according to the Wisconsin Initiative on Climate Change Impacts, a public-private network intended to "generate and share information that can limit vulnerability to climate change."
DATCP: 'You lost the farming community'
Mitchell's study calls the climate change debate "one of the most fundamental political debates of our era."
But there is barely a peep about it on the website of the Wisconsin Farm Bureau Federation, which says it represents 44,000 families from farms of all sizes. Its parent, the American Farm Bureau Federation, is skeptical about climate change.
A web search turned up a handful of results, one of them including the state Farm Bureau's terse official position on climate change: "We oppose climate change legislation at the state level that would increase costs to production agriculture. This issue needs to be addressed at the national and international levels."
The group did not respond to calls Thursday afternoon or Friday morning.
Ben Brancel, secretary of the Department of Agriculture, Trade and Consumer Protection, said he could understand why farmers were skeptical and said academics must "convince them that climate change is real in their world."
"Farmers that have spent 40 days in wind chills below zero have a hard time translating climate change to their personal life," he said.
Brancel agreed with Mitchell that it was time for a different tack.
"You lost the farming community," he told the audience.
Brancel suggested that researchers talk to farmers about how to use less nitrogen and phosphorus, rather than climate change.
More heavy rains are expected to increase runoff of these nutrients, which cause murky surface waters, dead zones and fish kills.
Farmers will reduce usage if they can, because they will save money, Brancel said.
"If you do it correctly, you know what happens? The climate changes. And it changes without focusing on the climate change, but focusing on all the attributes that have impacted and affected climate change."
Already adapting
Whatever they believe, Kucharik said, farmers are already adapting.
"Most of them will say no, I'm not really doing anything different. But the facts show that they're planting earlier and earlier for their summer crops," Kucharik said.
Kucharik said he tries to stress facts that farmers can relate to, like extreme weather events.
Mitchell's strategy: Talk about the weather, a safer topic. Focus on adaptation — not mitigation, since that would require them to acknowledge humans have caused climate change. Listen to farmers, who have plenty of their own ideas about what sustainability means.
And focus on opportunity, he said. Like new potential markets.
"We used to have a large lettuce industry, but the Californians drove us out of business," he said. "Maybe a drought or two (there) will drive us into business in lettuce."
This project, part of Water Watch Wisconsin, was supported by The Joyce Foundation. The nonprofit Wisconsin Center for Investigative Journalism (www.WisconsinWatch.org) collaborates with Wisconsin Public Radio, Wisconsin Public Television, other news media and the UW-Madison School of Journalism and Mass Communication.
All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.
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Read or listen to the readings before Mass with the resources below from the United States Conference of Catholic Bishops, using the New American Bible, Revised Edition.
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We are not just visitors on this planet, it belongs to us as we belong to her, its past is ours, so is its future. Amin Maalouf, Lebanon
The highest form of human intelligence is to observe yourself without judgement. J. Krishnamurti, India
The aim of life is to live, and to live means to be aware, joyously, drunkenly, serenely, divinely aware. Henry Miller, USA
Either you think, or else others have to think for you and take power from you, pervert and discipline your natural tastes, civilize and... F. Scott Fitzgerald, USA
We are each other's business; we are each other's harvest; we are each other's magnitude and bond. Gwendolyn Brooks, USA
We love life, not because we are used to living, but because we are used to loving. Friedrich Nietzsche, Germany


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You have selected the top-level topic for these hints. Use this page to write us only if you have a general comment about these hints. Do not use this form to ask a question about a specific puzzle. If you are stuck, please return to our hints for Dark Fall II: Lights Out, locate the area that most closely describes where you are stuck, and then use the "Ask the Author" link from that page. Due to the number of visitors we receive, we are unable to repeat information we have already provided. Every page's "Ask the Author" tells the author exactly where you were last reading -- commenting from the most relevant page is the only way we can tell whether you've read the correct hints before you write us.
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The black Countryman E6 Directional Earset Mic, Low Gain with Detachable 2mm Cable and LEMO 4-Pin Connector for Vega Wireless Transmitters is a vocal microphone with an adjustable boom that weighs less than one tenth of an ounce and is designed to be used by only one person. Once adjusted, it will continually hold this shape.
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South Kansas City Blast Site
Five innocent people were convicted in February 1997 in the deaths of six Kansas City firefighters in 1988. These two stories run a total length of 20,000 words, and won the Missouri Bar Association's annual "Excellence in Legal Journalism" award. On Oct. 30, 1998, the 8th U.S. Circuit Court of Appeals denied the appeal in the Kansas City Firefighters case. Read the full opinion here and our analysis of the opinion. On Oct. 4, 1999, the U.S. Supreme Court declined to grant certiorari in the case.
by J.J. Maloney
[Editor's Note: to read more about this case go to http://kcfirefighterscase.com ]
Indictment and Trial
The ATF has four "National Response Teams" - teams which respond to disasters such as the Oklahoma City bombing - and Special Agent Dave True was leader of the Midwest team. He is a distinguished looking man with silver hair and mustache.
With 26 years of government service under his belt, True, who was in his early 50s, was ready to take retirement from the ATF and open the next chapter in his life, possibly as a consultant or a security executive for a corporation. There was a hitch, though. For more than eight years, the unsolved firefighters case had dogged him. As the ATF's top special agent in Kansas City, True didn't want to retire with the biggest case of his life hanging over his head, unsolved.
According to True's testimony at trial, the firefighter investigation was dead in the water by November, 1993. (For five years, True had maintained steadfastly that organized labor was responsible for the explosion.) Then he testified that he got a call from Captain Joe Galetti of the Kansas City Fire Department, who wanted True's help in getting the case on the "Unsolved Mysteries" television show, a last-ditch effort to solve the case.
In November, 1994, as the "Unsolved Mysteries" segment on the case was being prepared, True said he received a call from a witness saying Richard Brown had admitted to being involved in the explosion. "If there was a starting point for investigating the Marlborough area," True testified, "that was probably it."
Events didn't unfold quite as naturally as True would have us believe, however. There was considerable manipulation of events by the ATF.
In January, 1995, True orchestrated the arrest of Darlene Edwards on drug charges. Her arrest would come seven days after the airing of the "Unsolved Mysteries" episode.
Two days before the "Unsolved Mysteries" episode aired, The Kansas City Star had a front-page story that quoted Richard Cook, special agent in charge of the Bureau of Alcohol, Tobacco and Firearms in Kansas City, as saying: "We've identified some individuals we believe are at least connected to the fire."
The day after the "Unsolved Mysteries" episode aired, police arrested Bryan Sheppard on a drug charge. When Bryan Sheppard appeared in court, Dave True was there to argue that a high bond should be set because Bryan Sheppard had been threatening witnesses in the firefighters case. No such witnesses were ever identified, but the allegation was publicized.
Skip Sheppard also had a court hearing in February, 1995, on a charge of transporting guns across a state line, and again True appeared in court, alleging that Skip Sheppard had been threatening witnesses in the firefighters case. When True was unable to identify any witness who had been threatened, U.S. Magistrate John Maughmer released Sheppard on bond.
On March 14, 1995, the Star ran a front-page story saying the government's investigation was focusing on the Sheppards and "...another possible suspect - a longtime girlfriend [Darlene Edwards] of one of the brothers - was arrested by the ATF last month on drug charges." The Star's story also gave some of the possible motives for the crime: "The ATF also may have new physical evidence, including a two-way radio that may have been stolen shortly before the explosion near 87th Street and U.S. 71 . . . Some witnesses said the suspects were stealing construction equipment, while others said they intended to steal dynamite. Some said the fire was a diversion. Others said it was done for spite."
Anyone who analyzes the statements given by many of the jailhouse informants in this case, will quickly realize that this one story in the Star was a script for perjury by many of the government's witnesses. Over and over the witnesses would claim the Sheppards were up there stealing construction equipment, or dynamite, or walkie-talkies, and that the fire was a "diversion."
While all of the foregoing was occurring, the ATF had put up reward posters in Missouri and Kansas prisons offering $50,000 to anyone who would give information resulting in the conviction of those responsible for the explosion. (The original newspaper stories, in 1994, when it was announced that "Unsolved Mysteries" was preparing a segment on the explosion, said the money would be paid for information leading to an "arrest".)
Of the approximately 30,000 convicts in Missouri and Kansas, 60 to 70 contacted the ATF in response to the reward offer. No two convicts would tell the same story.
The government tried to corroborate wildly conflicting stories told by Ronnie Edwards - the government's key witness in obtaining a grand jury indictment against the eventual five defendants - by forcing an acquaintance of his named Orval Allen Bethard to testify, but Bethard refused. In retaliation, the government filed a federal charge of auto theft against Bethard, although no such charge had been filed in the Western District of Missouri since 1993. (Assistant U.S. Attorney Paul Becker had state charges of tampering with a motor vehicle dropped, then filed the federal charge, which carried a longer potential sentence. Bethard had stolen a truck in Independence and crossed the Kansas state line during a police chase.)
Becker admitted in court that he was prosecuting Bethard because Bethard refused to cooperate in the firefighters investigation. Bethard filed a motion saying he had told True he would be perjuring himself if he corroborated Ronnie Edwards' statements.
On Feb. 14, 1997, U.S. District Judge Scott O. Wright gave Bethard a "downward departure" and expressed open disgust with the way the government had handled Bethard's case. Although the federal sentencing guidelines called for Bethard to serve 12-to-18 months in prison without parole, Wright rejected the guidelines and sentenced Bethard to five years probation, with six months in a halfway house, and restitution for the truck.
John Driver told the Star that Dave True threatened to have him indicted unless Driver cooperated with the ATF against the Sheppards. (Driver had been largely responsible, in 1989, for Bryan Sheppard being charged with six counts of second-degree murder in the firefighters case. Those charges were subsequently dismissed when it was proved that jailhouse informants were lying. In 1996 True told a federal grand jury that Driver and Chris Sciarra had been truthful in 1989, and that they only recanted their stories because they were intimidated by Bryan Sheppard's defense lawyer, John O'Connor. In reality, the 1989 charges were dismissed because the jailhouse informants had said Bryan Sheppard had confessed while a specific cartoon show was airing on Saturday morning and O'Connor proved through jail records that Bryan Sheppard was in the visiting room, in a different part of the jail, while that cartoon show was airing.)
Then there's Joseph Denyer. In an effort to get out of jail, Denyer told ATF on Feb. 12, 1995 that Tommy Clark (Darlene's son) had stated that Darlene had transported Frank Sheppard and Skip Sheppard to Blue River Road and 71 Highway so they could steal some dynamite. "Denyer states that Tommy advised his mother, Darlene Clark (Edwards), went to Quik Trip to wait for them and later picked them up after they set the fires."
On Dec. 6, 1995 Denyer recanted his earlier story, according to a government report: "Denyer then stated all the other information to SA (special agent) Carlson was made up. Denyer felt the information would sound believable to the authorities since Tommy Edwards, Darlene Edwards, Frank Sheppard lived together and Skip Sheppard was always aroundDenyer stated he was able to provide specific information about the guard's truck burning and explosive trailers because that information was in the newspapers (by courtney at testsforge). Denyer claimed he contacted authorities because he was in jail and thought providing information might get him out."
Denyer's new story was that Darlene Edwards had told him she was in the QuikTrip at the time of the explosion. Denyer said he was a close personal friend of Richard Brown's (Brown, feuding with Darlene Edwards and Frank Sheppard, had told police he saw Darlene, Frank, and Skip Sheppard buying gasoline at the QuikTrip).
Despite the fact Denyer admitted fabricating information, the government went ahead and used him as a witness. When Denyer testified before the grand jury, the grand jury was not told that Denyer had previously fabricated information during the case.
Glen Shepard (no relation to the defendants), a long-time Kansas City thief, was in the Osceola, Mo., jail, facing a 25-year sentence when True showed up. Shepard later testified that he refused to cooperate when True took him before the grand jury the first time. However, on the way back to jail, True told Shepard that a municipal gun charge pending against him in Jackson County could be upgraded to a federal felony charge, which would carry considerably more time, since Shepard had a dozen or so prior felony convictions.
Shepard got the message and testified before the grand jury. Although he gave several conflicting statements, he basically said Frank Sheppard had told him that Frank Sheppard, Skip Sheppard and Richard Brown committed the crime while Darlene Edwards drove the car.
When it came time for Glen Shepard to be sentenced in state court, Dave True showed up to testify for him. Instead of going to prison for 25 years, Shepard was given two one- year sentences in the county jail (with credit for time already served) and five years probation.
In 1972 Steven Kilgore shot Phillip Sheppard in the head, killing him. Phillip was the younger brother of Frank and Skip Sheppard. Kilgore had been Phillip Sheppard's best friend, and said it was an accident.
Kilgore had stayed away from the Sheppards for more than 20 years.
Then, in 1991, he showed up unexpectedly at Naomi Sheppard's door (Naomi Shepphard is the mother of Frank and Skip Sheppard), saying he'd like to buy a headstone for Phillip's grave. (He never did.) Kilgore told defense investigator Mark Reeder that he had gone to Phillip's grave site with Frank and Skip and that, while there, he had gotten nervous, because as he said, "You know what could happen." One has to wonder how many times he laid awake at night, wondering if Frank and Skip Sheppard would get drunk and come after him. He'd later testify for the government that Frank asked him to drive him a short distance to buy some dope. In that short period of time, Kilgore said, Frank told him that he (Frank), Skip, Larry Baker and Bryan Sheppard were responsible for the explosion (more on Kilgore's testimony later).
Perhaps the most shocking testimony before the grand jury did not come from the jailhouse snitches however - it came from the ATF's Dave True, the only government agent to testify before the grand jury. In June, 1996, just before the grand jury voted to indict the five defendants, True was used to summarize the evidence that had been presented to the grand jury in the previous 15 months. He testified as to what the various witnesses had told the grand jury.
On May 27, 1995, Ronnie Edwards had told the grand jury that the walkie-talkies in evidence before the grand jury had belonged to Allen Bethard. (On Jan. 25, 1995, Edwards gave the police a signed statement saying the walkie-talkies had been purchased by him from defendants Richard Brown and Bryan Sheppard.) When asked if he knew where Bethard had gotten the walkie-talkies, Ronnie Edwards said: "I don't know. He came across a lot of neat tricks like that."
On June 12, 1996, this is how True would recount the testimony of Ronnie Edwards:
"He [Edwards] recalls that the evening before the explosion, he was at a bar called Billie D's at 89th and Troost, with Allen Bethard. That Darlene Edwards and Richard Brown came into the bar and asked them if before the explosion, Allen Bethard, and he believed Richard and Bryan, is what he believed, went across the street from Flora, by Larry Baker's house, and broke into a construction storage shed, trailer. They took a VCR, a red tool box, some tools, and three walkie-talkies and some chargers."
On Jan. 25, 1995, Ronnie Edwards gave a signed statement to police saying that Richard Brown and Bryan Sheppard came into a bar at 89th and Troost and asked him "if I wanted some CBs. I knew they were the Motorola Intercoms from the construction site at 87th and 71 Highway. They had stolen some there before and I had bought them and I told them to go back and get some more."
Once it had been established, however, that Orval Allen Bethard had owned the CBs introduced in evidence to the grand jury, Ronnie Edwards changed his story. Edwards told the grand jury, "Darlene and Richard come into the bar and they asked Allen if he wanted to buy some more CBs. Allen said sure."
In his later statement, Ronnie Edwards said Bryan Sheppard had stayed outside because he was barred from that particular establishment at the time. However, he'd earlier told police it was Bryan Sheppard and Richard Brown who came into the bar and asked him (Ronnie Edwards) if he wanted to buy some more CBs.
True, in recounting Edwards' testimony to the grand jury, blurs the contradictions by saying Edwards had testified that Darlene Edwards and Richard Brown came into the bar and asked "them" (Ronnie Edwards and Allen Bethard) if they wanted some more CBs.
Assistant U.S. Attorney Paul Becker, in charge of preparing this case for indictment and trial, had to be fully aware of the constantly changing - and untrue - stories being told by Ronnie Edwards. In effect, Becker used the testimony of an obvious perjurer as the government's key witness to gain the indictment of these defendants.
At an earlier appearance before the grand jury, on March 15, 1995, Edwards explained his motive for "cooperating" with the government. Asked by Becker if he had helped the ATF build a drug case against Darlene Edwards, Ronnie Edwards said yes.
Becker: Did they pay you for assisting them?
Edwards: Yes. We worked something out, yeah.
Becker: How much was that?
Edwards: I wasn't getting paid nothing. It was part of my probation. (Edwards told the grand jury he had been arrested for credit-card fraud.)
Jerry Rooks, another witness before the grand jury, had said that Frank Sheppard told him that they had tried, but failed, to break into a shed that was built into the ground. Dave True knew full well there was no such structure on the construction site. Yet this is the question and answer presented to the grand jury:
Becker: In fact, were there two bunkers, explosives bunkers, built into the ground at the back of that site?
True: That's correct.
The two bunkers in question were simply metal boxes set on top of the ground.
True also recalled the testimony of Robert "Bear" Williams, the next-door neighbor of Darlene Edwards and Frank Sheppard. True told the grand jury that a week after the explosion, Sheppard had gone to his neighbor and sold him a large battery. True told the grand jury: "And that Frank stated that, 'This came from over there by the construction site,' and he pointed at the construction site (indicating)."
However, the actual statement of Bear Williams says nothing about the battery coming from the construction site, or that Sheppard pointed at the construction site. What Williams did tell ATF agents is: "All I remember is getting woke up one night 'bout two o'clock and he had a battery, he wanted five dollars for it. I just gave him five dollars and told him to go on and I just, I don't even remember even getting a battery. I think he just laid it down outside and I forgot about it."
Then ATF Agent Harry Lett, after Williams said he didn't know where the battery came from, suggested to Williams, "And it was one that he had stolen from a Caterpillar, obviously?" To which Williams said, "Yea. It was stolen from Caterpillar, but I don't even know if it was any good, 'cause like I said, when I bought it, I just had him put it on the ground next to the house and I forgot about it."
As to when he'd bought the battery, in relation to the time of the explosion, Williams told ATF: "Oh, I couldn't tell you that. I mean, I know it had to be, I don't know, it might have been two, three months, it might have been three weeks, I'm not sure, 'cause it's been so long ago." On that basis, True told the grand jury that Frank Sheppard sold the battery, "maybe even in that week or a week after" (During the trial, the government introduced certain items of evidence, including the $5 battery. After weeks had gone by, and the government was unable to link any item of physical evidence to any of the defendants, Judge Stevens agreed to order the government to remove all evidence from the courtroom.)
Shortly after True concluded his testimony, the grand jury indicted the defendants.
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 lunch time), 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 - bulldog.
John P. O'Connor, Bryan Sheppard's lawyer, although in his forties, 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 is 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, Missouri, 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 - will be a major issue in appealing the ultimate conviction of these defendants.
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. Later, in 1995, Brown told police he saw Frank Sheppard, Skip Sheppard and Darlene Edwards buying gas at the QuikTrip and then walking toward the construction site. (In an earlier statement Brown had said he saw six people.) He said he hadn't mentioned this incident earlier because he hadn't remembered it until his former girlfriend, Alena Fantauzzo, reminded him (Alena Fantauzzo denied to police ever being with Brown that evening).
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. On Feb. 11, 1995, shortly after being arrested on a drug charge, Bryan Sheppard told ATF Agent True that he believed the "people responsible for this crime were Darlene Clark Edwards, his uncles Frank Sheperd (sic) and Skip Sheperd (sic), and an individual by the name of Richard Brown (according to True's report)." On April 1, 1995, Bryan Sheppard was interviewed by Det. Joe Herrara and ATF agent Pete Lobdell. This time he reportedly said, "He suspected his uncles Skip and Frank Sheppard were involved, but he never gave a reason for his suspicions. He also talked about how bad he has been treated in the past by both his family and the police."
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 and 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 which 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.
The fight over Brady material had its practical side. In this case Becker was under a direct order to comply, and Hays could impose sanctions on the prosecution.
Becker was clearly not intimidated, and there was a belief by some of the defense lawyers that Becker might even be hoping Mag. Hays would impose sanctions against him so he could appeal that order to the Eighth U.S. Circuit Court of Appeals in St. Louis, as a way of postponing the trial.
Becker had put out regular feelers to the defense, in hopes he could get one or more of the defendants to testify for the government. His best hope had been Darlene Edwards. During the trial Becker told Will Bunch that he'd been genuinely surprised when Darlene chose to go to trial rather than testify.
Becker knew that, in multi-defendant cases, where everyone is facing life in prison without parole, the government can usually count on at least one of the defendants to cut a deal with the government. This case was also highly unusual in that none of the defendants had ever invoked his or her Fifth Amendment right; all defendants had readily submitted to police interviews any time the police wanted them to; no defendant had ever asked to have a lawyer present during a police interview; and three of the defendants (Frank Sheppard, Bryan Sheppard and Richard Brown) had passed polygraph tests. Darlene Edwards had asked for a polygraph test but was never given the opportunity. Skip Sheppard had never been offered one.
On Dec. 20, 1996, Becker sent a letter to all defense lawyers saying that if any of the defendants would be willing to testify for the government, the government would file a motion for a downward departure, which could result in the defendant being sentenced to anything from probation to life imprisonment. The defense lawyers took this as a sign of desperation on Becker's part.
This case was also unusual in another respect: in most federal prosecutions, the investigation is completed by the time the indictment is handed down - partly because federal law requires a case to go to trial 70 days after indictment, unless good cause is shown for continuing the case. In this case, however, government agents and police were interviewing potential new witnesses long after the indictment had been handed down.
The Brady motions, which hammered away at the unreliability of Ronnie Edwards, had pointed out the vulnerability of Becker's key witness. (Becker did not use him at the trial.) Another witness, Mary Hawks, had recanted. The defendants were standing rock solid as the trial date approached. In that context it's easy to understand why the defense lawyers believed Becker wanted more time to shore up his case. (This is one reason for Will Bunch's refusal to join the other lawyers in asking for a 30-day continuance.)
On Nov. 26, 1996, Becker turned over only 47 pages of Brady material in response to Mag. Hays' order. The defense had been expecting 1,500 or more pages. Bunch filed a motion requesting sanctions against the government. Although the sanctions could range up to dismissal of the charges, the defense knew that would not happen. It was hoped the court would compromise, and give the defense access to the full transcript of the grand jury proceedings which had led to the indictments, and access to the Department of Labor files which were being withheld by the government.
Mag. Hays ultimately ruled that a decision on sanctions would be taken up by the trial judge during or at the conclusion of the trial. It wasn't what the defense had hoped for, but it was clever. It avoided the possibility of Becker delaying the trial by filing an appeal.
On Christmas Eve the defense was provided with 3,300 pages of supposed Jencks Act material - witness statements, rap sheets and other material - with the trial scheduled to start 20 days later. (Much of this would prove to really be Brady material which, according to Hay's order, should have been turned over a month earlier.).
The defense attorneys (with the exception of Will Bunch) asked for an additional 30 days to prepare for trial - the court granted only 10 days. The trial would begin on Jan. 23, 1997.
In early January, Judge Bartlett went to California. During a conference call with the lawyers, he mentioned he'd been having severe back pains and was waiting for the results of a medical test. The results of that test could dictate whether the trial would start on schedule. If not, the defendants had the option of requesting a different judge. The defense lawyers absolutely did not want to lose Bartlett as trial judge, even though a continuance might work to Becker's benefit.
Bartlett presided over the jury selection, which was painstaking, with 10,000 pages of jury questionnaires being generated by the 160 potential jurors.
On Jan. 23, 1997, the jury had been picked. They would be sworn in that morning and opening statements would begin. But when the lawyers arrived they were called into chambers and learned that Bartlett had bone cancer and would have to turn the trial over to another judge - former Chief U.S. District Judge Joseph E. Stevens, Jr., who is now on senior status. As a lawyer, Stevens had a reputation as a first-class trial lawyer. He'd been president of the Missouri Bar Association.
This development was a crushing blow to the defense. Stevens, brought in minutes before the trial was to begin, knew nothing of substance about the case; and, in the heat of trial, would have little chance to go back and familiarize himself with the history of the case. It seemed that the months of work in building a case for sanctions for Brady violations would fall by the wayside.
Worse yet, where Bartlett would agonize over the meaning of a word, and would treat each objection by a lawyer with great - even excruciating - deliberation, Stevens was known to move a trial along smartly, and to often rule on objections almost before the lawyers could finish making them.
Before the first day of trial was finished, the defense lawyers were beginning to reel from some of Stevens' rulings.
Seven days into the trial the defense lawyers took the unusual step of filing a joint motion asking Stevens to take himself off the case "for the reason that the remarks by the Court regarding defendants' investigators demonstrate bias and prejudice of such magnitude as to deny defendants due process."
While Susan Hunt had been cross-examining Steven Kilgore - the man who had killed Phillip Sheppard - Hunt asked Kilgore whether certain items allegedly showed to him by Frank Sheppard (items allegedly stolen from the construction site the night of the explosion) had later been recovered by police based on information provided to police by Kilgore. When Hunt mentioned defense investigator Mark Reeder, Judge Stevens stopped Hunt.
At the bench, Stevens made comments that he did not trust investigators for the defense. After some wrangling, Stevens sustained his own objection and ordered Hunt not to pursue that line of questioning.
The next day the lawyers filed their motion, and Stevens, of course, immediately turned it down.
This characterized much of the trial, with Stevens repeatedly - without an objection even being offered by the government - stepping in to stop the defense attorneys while they were attempting to cross-examine government witnesses.
In the case of Kilgore's testimony, it was especially galling, because Kilgore had stated that two-and-one-half-years after the explosion Frank Sheppard had an acetylene torch, concrete saws, walkie-talkies, a thousand feet of extension cord, and a lot of other stolen stuff from the site. Kilgore also had told the grand jury that the Sheppards had been routinely stealing from the construction site prior to the explosion. Kilgore told Mark Reeder (a former Kansas City, Mo., police officer) that a male security guard at the construction site was letting the Sheppards steal from the site. The defense knew that later in the trial Mike McReynolds, the foreman of Mountain Plains Construction, would testify that nothing had ever been stolen from the site, ever. Kilgore had told Reeder (in a tape-recorded conversation) that he (Kilgore) had told Det. Don Emerson about the stolen items he'd seen at the Sheppard home, and where they were hidden, and that Emerson supposedly later told Kilgore that the items had been recovered by police.
Kilgore, who professed to be a lifelong friend of the Sheppards (notwithstanding the fact he killed Phillip Sheppard) appeared to have credibility because of his professed love for the Sheppard family. Therefore it was particularly important to demonstrate that the statements he had made about seeing large amounts of material stolen from the site, not only the night of the explosion but prior to that night, could not possibly be true. The best proof that Kilgore was lying was the detailed interview conducted by Mark Reeder. Judge Stevens squelched the defense hopes by saying: "I don't have any confidence in these people like Reeder, so I've got to tell you, I'm going to be very suspicious of anything that generates out of Reeder's contact with this case."
Pat Peters tried to get Stevens to expand his suspicions to investigators for the government, but Stevens made it very clear that his distrust was limited to investigators for the defense.
A recurring theme throughout the trial was that these defendants had gone to this site repeatedly to steal. Some witnesses said they stole dynamite or blasting caps - yet McReynolds would testify that not one stick of dynamite, nor one blasting cap, was ever stolen.
When Deborah Riggs - one of two security guards (her brother was the other) on duty at the construction site the night of the explosion - was being cross-examined, the defense tried to question her about the incident wherein she paid her roommate to steal her car. Stevens wouldn't allow the question to be answered.
Stevens ruled that the defense couldn't exceed the scope of the government's direct examination, and that matters beyond that scope would have to be developed by the defense when the defense put on its case. Then, when the defense tried to recall certain witnesses, including Deborah Riggs, Stevens refused to let them - saying they'd had an opportunity to cross-examine the witnesses during the government's part of the case.
Despite the obstacles they'd faced, the defense did a good job of discrediting many of the government's witnesses.
But the jury never got to hear the entire testimony of many of the government's witnesses, and this hurt the defense. Witness after witness testified that Frank told me this, or Skip told me this, or Darlene said, or Brown said, or Bryan said.
Anyone given the opportunity to examine the statements those witnesses gave to police would realize that they name different people doing different things for different reasons. In many cases, the witnesses had named people who weren't even on trial.
The jury never heard the complete statements of many witnesses because the defense had invoked the "Bruton Rule" - which says that, if a witness is going to testify concerning admissions allegedly made by one defendant, the statement has to be redacted in such a way that it can only be used against the person who allegedly made the statement.
Therefore, if a witness said that Frank Sheppard supposedly said he and Skip Sheppard and John Driver caused the explosion, the jury will only hear that Frank Sheppard and other, unnamed persons, caused the explosion. The jury would not know that John Driver (actually named as a culprit by some witnesses in statements to police), who was not on trial, was being named. The purpose of the Bruton Rule is to limit damage to co-defendants who have no way of cross-examining the person who originally made the statement (a defendant cannot be compelled to testify, even by his co-defendants).
In reality, the jury can easily choose to conclude that the other defendants are the "other persons" referred to, even though the judge admonishes them that they should only consider the statement against the defendant who allegedly made it.
There were several defense discussions prior to trial where it was argued that the jury should be allowed to hear the entire statement of each witness so the jury would realize that no two witnesses were testifying to the same set of facts. Logically, if the defendants were really guilty, out of 50 or so "confessions," they should be able to tell the same story at least twice.
For appeal purposes, however, the lawyers chose to invoke the Bruton Rule
As the time for the defense to put on its case grew closer, the overwhelming topic of discussion was whether the defendants would testify. All of them wanted to.
John Osgood absolutely believed Richard Brown, who continued to insist he'd told the truth about seeing Frank, Skip and Darlene at the QuikTrip buying gasoline prior to the explosion. When it was pointed out to Osgood that Brown had changed his story drastically - from seeing six people, to only seeing three, and that Brown's girlfriend disputed his story, Osgood would merely smile.
At the first meeting of defense counsel, Osgood had said his defense would be to point the finger at the other defendants.
Because Brown was the last defendant named in the indictment, he had a right to testify last. Darlene Edwards had already recanted her "window of opportunity" statement to ATF that she had driven Brown and Bryan Sheppard to QuikTrip. She wanted very much to testify, and if she did her testimony would be what it had been for years - that she was at home with Frank Sheppard at the time of the explosion.
The uncertainty over what Brown's testimony would be posed a serious problem for the other four defendants. During the trial Brown had told Will Bunch that he (Brown) had been telling the truth about seeing Darlene Edwards, Frank Sheppard and Skip Sheppard buying gas at QuikTrip just prior to the explosion.
Although Bunch had considerable faith in John Osgood's integrity, he had doubts as to Osgood's ability to control Brown, once Brown was on the witness stand. With Brown testifying last, it created a huge dilemma for the other defendants, who would be testifying to their long-time alibis that they were at home the night of the explosion.
An effort was made to try to get Osgood to agree to let Brown testify first. That way if he double-crossed the other defendants, they could better deal with it. But Osgood, knowing that Darlene Edwards had given a statement saying that she drove Brown and Bryan Sheppard to QuikTrip to buy gas, had his own dilemma: what if Brown testified first, only to have Darlene get up and try to stick the rap on Brown. So Osgood insisted, if the defendants were going to testify, on his client testifying last.
Throughout most of the government's case the defense was in good spirits. Witness after witness was revealed to have lied about something. A key witness against Darlene Edwards was Bridget Dornhoffer, who'd been in jail in Leavenworth, Kan., with Darlene, shortly after Darlene's arrest on drug charges. Dornhoffer testified Darlene had confessed her involvement while they were in jail together.
John O'Connor had obtained Dornhoffer's court records on a fraud charge, which included a letter from Sealright Corporation, purportedly signed by Sealright executive Henry Furneau, urging the judge to grant Dornhoffer probation, because Dornhoffer was a critical employee of Sealright.
On cross-examination O'Connor got Dornhoffer to say she knew the letter was genuine because she had personally discussed the letter with Furneau on the telephone.
Shortly after Dornhoffer's testimony, O'Connor's investigator, Tom Moss, who'd recently retired as a sergeant with the KCPD, contacted Furneau and discovered that Furneau had not written any such letter to the Clay County Circuit Court. Furneau said he'd already been contacted by Dan Miller, earlier that same day, and that he had told Miller the letter was a forgery. Becker, knowing his own witness had committed perjury in court, did nothing. He did not notify the court or the defense lawyers. One has to conclude he was hoping the defense would not discover the perjury. However, Furneau was subpoenaed by Will Bunch, and testified that the letter was not on his letterhead, was not typed by his secretary, and that the signature purporting to be his was a forgery.
Furthermore, another witness, Rosemary Quiroz, a friend of Dornhoffer's, testified that she and Dornhoffer were together when Darlene allegedly described her involvement in the explosion. Yet Dornhoffer and Quiroz gave conflicting accounts of what Darlene allegedly had said.
As the government's case drew to a close, however, it was apparent that the sheer number of witnesses claiming to have heard the defendants make incriminating statements was a problem for the defense.
The witness the defense lawyers feared most was Becky Edwards, the daughter of Darlene Edwards. Only 11 years old at the time of the explosion, Becky Edwards had told the grand jury she'd heard the defendants planning a raid on the construction site sometime in the week prior to the explosion. Becky said the first explosion woke her up. When she came out of her bedroom, she said, her mother was in her nightgown. She described Frank Sheppard as coming in the door with his shoes all scuffed up.
Becky Edwards had made it known she would not meet with any lawyer but Will Bunch. Bunch drove to Adrian, Mo., on multiple occasions, trying to meet with the 19-year-old girl. When he finally did get to interview her, Bunch learned that Becky Edwards had a deep hatred of Frank Sheppard. She told Bunch that Sheppard had made sexual advances to her several times while he was drunk, that he abused Darlene constantly, that Sheppard had beaten her brother up.
Bunch told the other lawyers it was important that they let him do the cross-examination of Becky Edwards at trial - because if she were pushed at all, she would dump mightily on Frank Sheppard, and there was a risk the jury would end up feeling intense revulsion for Darlene and Frank. (Darlene for allowing her 11-year-old daughter to live in a drug and alcohol dominated, abusive circumstance.)
ATF Agent True had told the grand jury that he'd developed a rapport with Becky Edwards following Darlene's arrest on drug charges. (Darlene and Becky were being evicted from their home the day of the arrest, and True said he'd extended some help to Becky. Darlene, however, says True allowed them to lose everything they owned.) True never made any reports of his meetings and conversations with Becky Edwards, so the defense had no way to evaluate how much influence True ultimately exerted on her testimony.
At trial, Bunch got Becky to admit that, after all the intervening years, and countless conversations with family members, and with True, etc., that she no longer knew what the truth was. Under the circumstances it was a major victory for the defense.
The Defense Strategy
The defense lawyers had long looked forward to cross-examining Dave True, but when it finally happened it was almost anti-climactic. Having been hammered by Judge Stevens throughout the trial, when they tried to go beyond the scope of the government's direct examination, they'd concluded that much of what they wanted from True would have to be developed during the defense portion of the case when they would control the scope of the direct examination.
For example, Becker did not call agent Eugene Schram of the Department of Labor as a witness, so there wasn't much use trying to cross-examine Dave True on the scope of Schram's years-long investigation into organized labor as the culprit in the explosion, or the findings of that investigation.
The defense strategy was to call Dave True, Eugene Schram, and Robert and Deborah Riggs as witnesses for the defense. The entire defense revolved around that strategy, a strategy necessitated by Judge Stevens' consistent rulings limiting what the defense lawyers could pursue on cross-examination during the government's portion of the case.
When the government rested its case, Judge Stevens dropped a bombshell on the defense: He ruled that the defense could not call True, Schram or the Riggses as witnesses. As for True and the Riggses, Stevens said the defense had had an adequate opportunity to cross-examine them during the government's case. As for Schram, Stevens felt it would be prejudicial to the government's case to allow the defense to develop the years-long investigation by the government which focused on organized labor as the most likely culprit in the explosion.
Although it might appear that Schram and the Riggses were inconsistent theories of defense (i.e., either organized labor did it, or the Riggses did it), that is not true. The defense had a document it had received from government files that hinted at a link between the Riggses and organized labor. The document is on plain paper, so there's no way of telling which government agency generated it, but it appears most likely to have come from the Labor Racketeering Section of the Department of Labor (Schram). The document, dated Nov. 30, 1988 (the day after the explosion), was labeled "W - Confidential Source." It stated:
"A source is told by a friend that he heard Local 541 Teamsters President Danny Johnson talking with union attorney Vernon Scoval discussing how they were going to handle inquiries from law enforcement officials about the arson & explosion. This friend heard them say that 'the two who did it are loose cannons' or the 'two guards at the site are loose cannons' because they were told to go get a cup of coffee and get away from the site shortly before the incident occurred. There may have been something said that the two who did it were told to get out of town. There was some talk about getting together with Jackson County officials to smooth things over. This friend told the source that it appeared to be a labor vs. labor situation and that the security guards were a risk."
Such a note is hearsay - double hearsay - but it cried out to be pursued, and could only be pursued by first determining who wrote the note, then obtaining the identity of the confidential source, then obtaining from that source the identity of the "friend" who had reportedly overheard this conversation. The government is loathe to reveal the identity of its confidential sources. Since the government had never made any mention of this note while examining ATF Agent True, there was no basis for the defense to bring it out on cross-examination. And by refusing to let the defense call True and Schram as defense witnesses, Judge Stevens squelched any hope of learning what this government note really meant.
After putting on a few alibi witnesses, and Frederick Martindale, the man who had flunked a polygraph test and then had confessed to causing the explosion, the defense made its final decision: None of the defendants would testify. The reason for that decision went beyond the possibility of Richard Brown sabotaging Darlene Edwards, Frank Sheppard and Skip Sheppard; the defense lawyers believed that, should the defendants testify, Becker would then recall a large number of witnesses on rebuttal, and that the jury would hear another week of witness after witness saying Frank admitted this, or Darlene said this, or Brown said this. It would allow Becker to try his case twice.
The defendants had been fervent about wanting to testify, but they agreed to go along with the advice of the lawyers. Each in turn, in court, waived the right to testify in his or her own behalf, and the defense rested.
The defendants were confident they would be acquitted. The defense lawyers had a cautious optimism - cautious because juries are unpredictable. The defense lawyers believed they had a good chance for a hung jury, and this belief was bolstered by the fact that several of the jurors took voluminous notes during the trial. It was hoped that those jurors would realize that the government's case was riddled with inconsistencies.
In his closing argument Becker hammered at his central theme: Why would so many witnesses say these defendants had made admissions, unless it were true?
The defense hammered at the inconsistencies: the witnesses who were caught lying, the fact that, despite claims by government witnesses that these defendants were stealing from the construction site, the people running the site testified that nothing had ever been stolen.
Becker had the last word. (By law, the prosecutor goes first, the defense second, then the prosecutor goes last, since the prosecutor has the burden of proof.)
Becker's theme was simple and effective. Maybe one person would come in here and lie. Maybe two, or even three, but do you really believe that all of these witnesses were lying? Why would they do that?
Lost in the shuffle was the fact that one or more of these defendants may have, at different times, said something that, years later, was interpreted as a confession. One witness told police that Frank Sheppard once said he'd thrown a stick of dynamite at the trailer and it blew up. She felt at the time he was joking, she said, but in view of later developments decided maybe he wasn't. After being the subject of rumors, for years, did these defendants occasionally make some wisecrack, or some sick joke, that came back to haunt them later?
In a decision handed down after the trial, Judge Stevens said: "Indeed, assuming that all witnesses presented by the government were credible, it appeared from the government's presentation of its case alone that some of the defendants told different stories to different people."
The case went to the jury on Friday, but they would break for the weekend. That weekend a widely publicized candlelight vigil was held at the Firefighters' Memorial.
The judge always admonishes the jury to not discuss the case with anyone until the case is over, and to avoid all publicity about the case. It's a fine theory, but the people orchestrating that candlelight vigil obviously didn't believe it.
The jury had taken an initial straw vote: four jurors were ready to vote guilty, one juror was for not guilty, and seven were undecided.
The first piece of evidence the jurors asked for was the statement given by Darlene Edwards on Feb. 19, 1995, saying she'd driven Richard Brown and Bryan Sheppard to buy gas at the QuikTrip. That was a bad sign for the defense.
As the day wore on you could feel the optimism oozing out of the defense lawyers. Late that day I was in the coffee shop at the courthouse when John O'Connor came in. He sat down and shook his head. "I've got a bad feeling," O'Connor said.
The defendants seemed oblivious to the possibility of being convicted. Richard Brown's bond had been revoked late in the trial, when he'd gotten into a verbal altercation with a witness and said "fuck off," but even he seemed in good spirits.
On their first official vote the jury found the defendants guilty. One juror later told the Star that the jury couldn't decide which defendant had done what, but they felt that with so many government witnesses saying the defendants had admitted being involved, it must be true.
Will Bunch calls the firefighter case the worst miscarriage of justice he has ever seen. Even if these defendants had been guilty, Bunch said, this case would be a miscarriage of justice.
It's been ruled before that once a jury finds a defendant guilty, irregularities before the grand jury are rendered meaningless - with the possible exception of outrageous governmental conduct.
ATF Agent Dave True, in his zeal to see these defendants indicted, misrepresented facts to the grand jury again and again.
Paul Becker, in his zeal to get indictments and convictions, closed his eyes to perjury again and again.
But the government can do that and get away with it, because it is the government that decides who will be punished and who will not be punished.
These five defendants can and will appeal their convictions, but that is an uphill struggle. The law is that, once a defendant is convicted, the government is entitled to all favorable inferences from the evidence.
On May 12, 1997, Judge Stevens denied the motions for new trial filed by the defendants. In his court order denying the motions for a new trial, he noted: "The Court recognizes that the evidence in this case was not strong. There were two fires set on Nov. 29, 1988, only one of which was charged in this case. No physical evidence linked any specific defendant to the scene and there were no eyewitnesses to the offense. Rather, the government's case was built primarily around Darlene Edwards' confession, and numerous admissions against interest, referred to throughout the trial as "confessions," made by other defendants to various testifying witnesses. Many of these confessions required redaction, and many were inconsistent in their explanation of various details. Further, while witnesses testified that each defendant confessed to being part of a group present at the setting of a fire, it was not clear from the confessions that all defendants knowingly participated in the actual setting of the fire which resulted in the explosion, as opposed to the allegedly initial fire of a security guard's truck, and the extent of various defendants' participation, except Darlene Edwards, was left largely undefined."
These five defendants may well spend the rest of their lives in a federal prison, with no possibility of parole, and that may bring "closure" to a lot of people in Kansas City.
In the meantime, the people who really did kill six firefighters on Nov. 29, 1988, will be free. They, too, will feel closure when these defendants are sentenced, knowing now that their chances of ever being brought to justice are more remote than ever before.
Firefighters Case Part I and Part II Five innocent people were convicted in February 1997 in the deaths of six Kansas City firefighters in 1988. These two stories run a total length of 20,000 words, and won the Missouri Bar Association's annual "Excellence in Legal Journalism" award. On Oct. 30, 1998, the 8th U.S. Circuit Court of Appeals denied the appeal in the Kansas City Firefighters case. Read the full opinion here and our analysis of the opinion. On Oct. 4, 1999, the U.S. Supreme Court declined to grant certiorari in the case.


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The main source of coverage is from the Australian Automobile Association through AAA Tourism Pty Ltd. This is supplemented by notification of new tourism developments and their likely opening dates in selected guides, major tourism journals and periodicals and newspapers. Periodic comparison with lists of accommodation establishments provided by the various tourism commissions and industry associations is also undertaken.
Star grade classifications of establishments were revised by AAA Tourism Pty Ltd. These changes were implemented for the STA in the March quarter 2004 and should be taken into account when making comparisons with previous quarters.
The survey does not have a sample component and the data are not subject to sampling variability. However, other inaccuracies collectively referred to as non-sampling error may affect the data. These non-sampling errors may arise from a number of sources, including:
Every effort has been made to reduce non-sampling error to a minimum by careful design and testing of questionnaires, and efficient operating procedures and systems used to compile statistics.
The June quarter 2004 response rates for each state/territory are contained in the following table.
RESPONSE RATES FOR STATES/TERRITORIES, June quarter 2004
In the June quarter 2003 the ABS identified 132 hotels, motels and guest houses and serviced apartments which had been operating for a number of quarters but were not on the STA frame. These additional establishments were included in the STA from the June quarter 2003.
The addition of the 132 tourism establishments resulted in a break in time series between the March and June quarters 2003. The impact of the break in time series is explained in Appendix 1, Tourist Accommodation, Australia (cat. no. 8635.0), December quarter 2003. Particular care needs to be taken when calculating percentage changes between the June quarter 2003 and previous quarters.
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Smoothing the seasonally adjusted series reduces the impact of the irregular component of the seasonally adjusted series and creates the trend estimates. The trend estimates are derived by applying a 7-term Henderson moving average to the quarterly seasonally adjusted series. The Henderson moving average used in the middle of the time series is symmetric but, as the end of a time series is approached, asymmetric forms of the symmetric moving average are applied. Unlike the weights of the standard 7-term Henderson moving average, the weights used with the quarterly data have been tailored to suit the particular characteristics of individual series.
While these techniques enable trend estimates for the latest period to be produced, the process does result in revisions to the trend estimates in recent months, particularly as additional original estimates become available. For further information refer to Information Paper: A Guide to Interpreting Time Series - Monitoring Trends, 2003 (cat. no. 1349.0) available at the ABS web site <www.abs.gov.au>.
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Tourist Accommodation, Australia, Expanded Scope Collection cat. no. 8635.0.55.001 (irregular)
Short-term Visitor Arrivals Estimates, Australia cat. no. 3401.0.55.001 (issued monthly)
Overseas Arrivals and Departures, Australia cat. no. 3401.0 (issued monthly)
Australian National Accounts, Tourism Satellite Account cat. no. 5249.0 (annual)
Directory of Tourism Statistics, 2001 cat. no. 1130.0 (irregular)
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