Schlitterbahn employees David Hughes and John Zalsman betrayed no emotion as a Wyandotte County jury on Thursday found them not guilty of obstruction of justice.
The verdict in the first criminal trial stemming from the death of 10-year-old Caleb Schwab in 2016 on the Verruckt water slide in Kansas City, Kansas, followed two days of testimony.
At issue was whether the two maintenance workers lied to investigators about the presence of a brake mat on the 17-story slide, billed as the world's tallest.
Both men told investigators they couldn’t recall if the brake mat on the slide had been used only in testing and not during its operation.
Schwab, the son of Kansas Rep. Scott Schwab, who is a candidate for secretary of state, was killed when the raft he was riding in went airborne and struck a metal pole.
Three more individual defendants are facing criminal charges. Two designers of the Verruckt water slide have been charged with second-degree murder and a former operations director has been charged with involuntary manslaughter. Involuntary manslaughter charges have also been filed against the waterpark itself.
No trial date has been set in those cases.
Lawyers for Hughes and Zalsman argued their clients were singled out for prosecution and treated differently from other park workers interviewed by the Kansas Bureau of Investigation.
Following the verdict, Hughes’ attorney, Scott Toth, said that Hughes and Zalsman were the only low-level park workers charged in the investigation.
“Just because a horrible accident happens doesn’t mean that someone is criminally responsible,” he said.
Christopher Joseph, Zalsman’s attorney, said the two men cooperated and told investigators what they believed to be the truth.
“To me, the idea that blue-collar maintenance worker is going to go there to try to throw off a KBI investigation — for what?” Joseph asked. “He doesn’t have a vested interest in the company.”
During the trial, several former and current Schlitterbahn employees testified that they noticed unaddressed maintenance issues on the slide in the weeks before Schwab's death.
Former park employee Taylor Klene testified that she saw a brake mat come completely off the slide.
Klene initially told investigators that the mat had not come off the slide. She later changed her statement and said it had come off.
Key prosecution testimony came from KBI investigator Jason Diaz, who interviewed Hughes and Zalsman. Diaz said both men told him that the brake mats were used on the slide during its testing but not its operation, although additional evidence proved otherwise. A key piece of evidence was a screenshot from a YouTube video of the incident that showed a brake mat on the slide.
Diaz said what Hughes told him didn't match what Diaz knew about the case.
“I started questioning if I had it wrong,” Diaz said. “I did not believe he was confused in reference to the questions and answers he gave about the brake mat.”
Prosecutors called nine witnesses to the stand. The defense called just one witness, another park maintenance worker.
In closing arguments, prosecutor Adam Zentner argued that neither Hughes nor Zalsman was confused when questioned by Diaz. Zentner said Hughes’ tone of voice did not suggest uncertainty.
“Listen to how they say it,” Zentner said. “Do they sound confused?”
Zentner also emphasized Hughes’ involvement in the construction and repair of the slide.
“He knows this ride,” Zentner said. “This is his baby.”
Attorneys for Hughes and Zalsman argued their clients had no motive to lie.
“Ask yourself these three questions: Did he do it? Can you prove it? Is it the right thing to do?” Toth told the jury. “I would suggest to you all three questions cannot be answered in this case.”
Joseph called the state’s investigation "sloppy."
“Virtually everyone got it wrong,” Joseph said. “Virtually everyone had the opportunity to be corrected.”
After the jury returned its verdict, jury foreman Carl Cox told reporters the not guilty finding for Hughes stemmed from the jury instructions that said to evaluate Hughes’ actions as they occurred "in Wyandotte County." Because the interview with Diaz took place in Leavenworth County, Cox said the jury had no choice but to acquit.
Cox said the jury was split when deliberations began. He said the jury’s biggest issue with Zalsman was the lack of a paper trail connecting him to the obstruction charge.
“I don't think the state gave a strong enough case for obstruction,” Cox said.
Celisa Calacal is an intern at KCUR. You can reach her on Twitter at @celisa_mia.
