A Wyandotte County judge has thrown out all five remaining criminal indictments stemming from the death three years ago of 10-year-old Caleb Schwab on the Verruckt water slide at the Schlitterbahn waterpark, finding that they were tainted by grand jury abuse.
Judge Robert P. Burns ruled that improper evidence and testimony were presented to the grand jury, requiring the indictments’ dismissal.
Burns agreed with the defendants, who complained that the grand jury was shown a made-for-TV Travel Channel video that was highly dramatized; that the state’s expert witness repeatedly referred to engineering standards that were not required under Kansas law at the time Verruckt was constructed; and that the same expert improperly referred to another death that occurred at a Schlitterbahn waterpark in Texas in 2013.
In his 12-page order, Burns said he had “grave doubts” about the propriety of the evidence presented to the grand jury.
“Quite simply,” he wrote, “these defendants were not afforded the due process protections and fundamental fairness Kansas law requires.”
Caleb Schwab was killed on Aug. 7, 2016, at the Kansas City, Kansas, waterpark when the raft he was riding in went airborne and struck a metal pole.
Schwab was the son of Scott Schwab, who was a Republican member of the House of Representatives when his son died. Scott Schwab was elected Kansas secretary of state in November, succeeding Kris Kobach.
The Schwab family settled its wrongful death case with Schlitterbahn for about $20 million, but the indictments were intended to affix criminal blame for the boy’s death.
The judge’s ruling was a black eye for the Kansas Attorney General’s Office, which presented the cases to the grand jury, and leaves open the question of whether anyone will be held criminally accountable for Schwab’s death.
Kansas Attorney General Derek Schmidt late Friday afternoon released a statement saying he “was obviously disappointed and respectfully disagree with the court's decision.”
“We will review the ruling carefully, including the court’s observation that the ruling ‘does not preclude the possibility that the State could continue to pursue this matter in a criminal court,’ and take a fresh look at the evidence and applicable law in this tragic and troubling case to determine the best course forward,” Schmidt said.
Burns noted in his ruling that prosecutors can still pursue the matter before a different grand jury. Or they can go the more traditional route and file a criminal complaint, letting a judge determine whether there is probable cause for the defendants to stand trial.
Carl Cornwell, a criminal defense attorney who represented one of the defendants, Jeffrey Wayne Henry, said he believed political considerations were behind the indictments.
“I really didn't think when we initially got the case that it was politically motivated. But let me just ask you this: Suppose it was some disadvantaged young kid from Wyandotte County. Do you think they’d have filed criminal charges? Yeah, I don't think so,” he said.
Schwab’s office referred inquiries to the Schwab family attorney, Michael Rader, who said the family would have no comment about today’s ruling.
The grand jury had returned multiple indictments in connection with Schwab’s death:
- Henry, whose family owns and operates Texas-based Schlitterbahn and who helped design the water slide, was charged with second-degree murder, aggravated battery and other counts.
- John Schooley, another designer of the water slide, was charged with second-degree murder, aggravated battery and other counts.
- Tyler Austin Miles, the park’s former director of operations, was charged with involuntary manslaughter, aggravated battery and other counts.
- Schlitterbahn itself was charged with involuntary manslaughter and other counts.
- Henry & Sons Construction Co., a general contractor owned by Schlitterbahn, was charged with second-degree murder, aggravated battery and other counts.
- David Hughes, a maintenance supervisor, and John Zalsman, a member of the park’s maintenance crew, were charged with obstructing law enforcement by giving false information to investigators. The two went on trial in October and were acquitted.
Demolition of the 17-story water slide, which Schlitterbahn billed as the world’s tallest, began several months ago.
Verruckt, which means insane in German, was conceived by Henry, who, as his indictment noted, was a high school dropout with no engineering credentials. The ride opened in the summer of 2014 and consisted of a 17-story plunge with a five-story uphill midsection.
The indictments of Henry and Schooley alleged that the two “lacked technical expertise to design a properly functioning water slide” and used “crude trial-and-error methods” in their rush to open the ride.
In his ruling, Judge Burns acknowledged the fraught nature of the case.
“I obviously recognize that the circumstances and events giving rise to these indictments are indisputably tragic,” he wrote. “A young child’s life was lost and his troubling death was mourned by family, friends and the entire Kansas City community and beyond. Additionally, the investigation revealed many others were injured when they were supposed to be enjoying the thrill of riding the world’s tallest waterslide. But the decision to dismiss these charges at this time does not preclude the possibility that the State continue to pursue this matter in a criminal court.”
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies.