Make wishtv.com your home page

Judge denies mistrial motion in Richmond Hill case

SOUTH BEND, Ind. (WISH) – Testimony resumed in the first Richmond Hill explosion trial Thursday, after a St. Joseph County judge denied a mistrial request from the defense.

Deputy Prosecutor Denise Robinson told the judge she would not call Dr. David Sheppard, an ATF investigator, as a witness. Sheppard miscalculated gas flow in his original report.

Defense attorneys said prosecutors should have told them earlier about the miscalculations and called for a mistrial. Robinson said she told them as soon as she’d identified the problem. Judge John Marnocha said he agreed that she’d told them the same day she identified the issue, and denied the mistrial request.

As testimony resumed, jurors learned more about the significance of certain pieces of evidence they’d seen earlier in the week. They heard testimony about how prosecutors say gas filled the home in November of 2012, and how it may have ignited.

Prosecutors say the deadly explosion in the Richmond Hill neighborhood was caused after Mark Leonard and others leaked enough gas into his girlfriend’s home to equal three tons of TNT, then sparked the explosion using a microwave and a cylinder. The explosion killed Jennifer and Dion Longworth and damaged or destroyed more than 80 homes in the south side neighborhood.

Motion for mistrial denied

Judge John Marnocha adjourned court before testimony even began Wednesday morning after the defense moved for a mistrial.

Defense attorney Diane Black told the judge Wednesday the prosecution should have told her earlier about miscalculations about gas flow by Dr. David Sheppard.

Prosecuting attorney Denise Robinson said she’d found two reports didn’t “reconcile” as she was preparing for the trial at the end of May, but said she’d asked the experts first to see if anything was different between the two.

Robinson said on June 12, she learned from ATF investigator Dr. David Sheppard that he hadn’t applied a correction factor of 1.95 to his calculations, thus changing his calculations. Sheppard had calculated the minimum amount of time it would take for gas to reach a flammable level in the home. His initial report said 5.8 hours minimum, his new report would say 3 hours minimum with the correction factor applied.

Prosecutors say the range is the same.

Robinson says as soon as the experts identified the problem, she passed it on to the defense. She told the judge this doesn’t change their time frame of when this all happened the weekend of Nov. 10, 2012.

Thursday, defense attorney Diane Black told the judge this mistrial request is based on “prosecutorial misconduct” of withholding information they had, adding “it does put our client in grave peril.”

Black showed a PowerPoint to the court explaining their position, saying the prosecution “misleading the defense violates due process.”

She brought back up the video the state had shown from Citizens Energy that demonstrated flammability of gas, showing a miniature home exploding.

She suggested the video was requested around the same time the prosecution found out about potential problem, saying “that video mirrors the new calculations.”

Black said in conclusion, “now our client can’t receive a fair trial.”

Robinson said there is no correlation between the two, calling some of the defense’s suggestions lies.

She told the judge there is no validity for a discovery violation, let alone a mistrial. She said “there’s no basis for the allegation the state in any way misled the defense or misled the court.”

She said, “We did what we were supposed to do,” explaining they’d told the court with due diligence when the miscalculations were found.

Judge John Marnocha went over the timeline of when the prosecution found out about a possible problem, and when it was confirmed. He said, “I do not find this to be a deliberate suppression of evidence.”

He said had the state not disclosed the change in evidence, there would have been a discovery violation. But, he said, they did disclose that to the defense, once they’d identified the issue.

He said, “I cannot find there was prosecutorial misconduct.”

Testimony resumes

Once the mistrial was denied, jurors were brought into the courtroom, and testimony resumed.

Jurors learned more about the significance of items of evidence found in the debris. They’d seen them all earlier in the week, but hadn’t gotten any information about how they may related to the explosion.

Jurors first heard from Michael Putzek with the Marion County crime lab. Putzek is a firearms and tool mark examiner. He explained all about the different markings he found on the log lighter at 8349 Fieldfare Way, which was in the fireplace.

He said on the end of the log lighter, he found a fractured spot, and said it would have taken a large force to have broken it off.

When asked about that, he said that could have been an explosion, or a tool breaking it off.

He said there was no valve connected to that pipe.

Then jurors heard from Fred Hackett, with Midwest Forensic Services, who helped to investigate after the explosion.

Hackett told jurors he also saw the gas manifold at the explosion site from the Shirley home, and said, “Stop, wait a minute something’s not right here.” He said he also noticed there was no regulator on it, which reduces the pressure of gas heading into the home.

Prosecutors also asked Hackett more about the microwave. So far, jurors have seen the charred remains of the microwave, looking as if it’s been blown apart, but Hackett told them he “observed a microwave, in a state, in what I would call in my field, uncommon… torn apart… to me, is a red flag.”

The prosecutor asked him if that was normal, to see the microwave in that state after an explosion.

He said, with an explosion, it should be flat, distorted, but not in this configuration and state: something he would need to look into.

Then, Hackett discussed the canister that jurors had seen in an exploded state.

Hackett said this also would be something that would need to be explained, saying the internal pressure inside that canister had built up to essentially explode.

He also talked about the other canister that didn’t explode, found at the scene, that prosecutors had previously showed jurors. That canister was intact, but burnt.

Prosecutors then took Hackett through the investigation, as they looked for where the gas may have come from.

He said, they looked at the furnace, water heater, and fireplace, which are all gas appliances.

The furnace, he said, would not be the ignition source. He explained it was in “pretty good shape” and would have different damage if it was.

He said he didn’t believe the water heater was the cause either.

So, prosecutors said, he’d ruled out the water heater and furnace, and moved on to the fireplace.

Hackett said they were looking to see where the gas flow was coming from, and as he was looking at the fireplace, thought, “Where’s the Dante Valve? It’s not present… We need it… We need to take a look at it.”

The Dante valve is the gas control valve on the log lighter fireplace.

The prosecutor asked him if that valve was ever recovered, and he said no.

The prosecutor then asked Hackett more about the wooden studs [beams] the valve would have fit into in the Shirley home, asking him if the valve was removed before the explosion or after the explosion.

Hackett showed them the wall stud, explaining that it’s not shattered. He said if the pipe would have been in place, with the valve attached during the explosion, “this would have gone flying,” explaining, “this would have been a splintered mess.”

He said he believes the valve was off prior to the incident.

The prosecutor asked him, so would that also explain the flow of natural gas into the home that you were discussing?

He said, if the valve’s off, and there’s an open pipe, that would allow gas to escape into the home.

After lunch, the prosecution asked Hackett about potential ignition sources that he’d seen on site. He said, he’d seen either the microwave or the remains of the candle.

He said the microwave could pull natural gas into the interior, and whatever may be in the microwave could cause a spark, which would be enough to ignite the vapors of the natural gas.

The prosecution asked if that would be consistent with the microwave as a potential ignition source. He answered, it would be.

The defense then had their chance to cross examine the witness.

Defense attorney Diane Black asked Hackett about the fact that he didn’t do any specific testing on the items. She repeated, that his investigation was based on field observations. He said, yes, he hadn’t been asked to perform other testing.

The prosecution then asked Hackett if he was confident in his answer he gave to the jury, based on his field observation. He responded, “I’m confident in my opinion.”

The state then called Jason Burke, an HVAC project manager with RT Moore. RT Moore was the business that put the gas appliances in at 8349 Fieldfare Way (where the explosion occurred) when the home was built in 2003.

Jurors got a bit of a tutorial about furnaces and water heaters, and the safety features in them.

Prosecuting attorney Denise Robinson asked him about the furnace in the home, asking what happens with this furnace if that regulator is not in place? Burke said, “It won’t operate.”

He added, the furnace valve will lock itself out and not allow it to open. He said that would mean there is no heat in a house. He also explained how a furnace lights, and explained other safety features in the furnace.

Robinson also asked again – if the regulator was removed, will that furnace ignite?

Burke responded, No. It will try three times.

He said, If it does not ignite three times in a row, it goes into what’s called a hard lock out.

Burke also discussed the safety features to the water heater, saying it won’t operate if the regulator is removed.

Robinson then asked Burke about the log lighter itself and its safety features. He said the log lighter itself has “zero” safety features. He said the only safety feature it would have, would be the valve that turns it on and off. The prosector identified that as a Dante Valve. You’ll remember they said that was missing from the explosion site.

Then she showed Burke a picture of the gas system, or manifold, from the Shirley’s home.

He said, he noticed it’s missing a regulator and said there’s a “union” located next to it that should not be there.

Prosecutors asked if they could go to Walmart and buy a regulator?

Burke said no.

Robinson asked if she could go to a plumbing supply house and get a regulator herself?

He said, no, not unless you’re a licensed contractor.

Denise Robinson then asked Burke how you could dismantle that gas system.

Burke said, “most any homeowner would have tools in their tool box… to be able to dismantle that.”

Robinson asked, “Would the homeowner have any reason to dismantle this?

Burke responded, “Never.”

Jurors then heard from Michael Sullivan, the Director of Energy Distribution and Engineering with Citizens Energy Group.

He told jurors some numbers and calculations he’d done about gas flow and the amount of gas inside the home at the Shirley residence over the past billing period, from about October 26 through the explosion date.

“There was a significant amount of gas that had gone through the meter to that address in comparison to other houses in the neighborhood,” said Sullivan.

Sullivan said he calculated that an excess of 12,800 cubic feet of gas went through the meter at the Shirley’s home in just about 17 days, the latest billing period up until the explosion.

That’s compared, he said, to the typical residential customer who will use 86,000 cubic feet in the entire year, a 12 month period.

He said “this was definitely out of the ordinary.”

He then explained to jurors he did calculations to see if that amount of gas could have run through the furnace or water heater.

He said, If I wanted all that to go through the furnace… it never shut off… it would have to run 128 straight hours.

He said the water heater would have had to run, with the burner on, for 256 hours, above what it normally was running to heat the water.This story will be updated.