Neither state nor federal law enforcement agencies are releasing information about the criminal investigation into former Oklahoma legislator and current Eufaula City Councilman Dan Kirby, whose July motorcycle wreck resulted in the death of his girlfriend, Sheryl Bichsel. However, Bichsel’s family has filed a civil lawsuit against Kirby, and a longtime friend of the deceased says she has been told Kirby will be prosecuted.
Kirby’s blood was drawn to test for the presence of drugs or alcohol following the fatal wreck, according to records from the Oklahoma Department of Public Safety. The Oklahoma State Bureau of Investigation processed the lab work for DPS, which then turned the case over to the U.S. Attorney’s Office for the Eastern District of Oklahoma because Kirby is a citizen of the Muscogee Nation. Bischel was a citizen of the Choctaw Nation.
But DPS has cited state statute in declining to reveal the results of Kirby’s blood test, and the U.S. Attorney’s Office is not talking about the Kirby case either.
“The DOJ has us follow a policy where we are not allowed to confirm or deny whether a matter exists in our office, and at this time I just don’t have any comment about that particular matter,” said Jarrod Leaman, an assistant U.S. attorney who serves as the media contact for the Eastern District of Oklahoma.
Leaman said that, unless a charge is ultimately filed, the public will never receive details about the investigation into whether Kirby held criminal liability for the wreck that killed his girlfriend.
A prominent real estate broker in Eufaula, Bichsel was riding on the back of Kirby’s motorcycle just before 10 p.m. Saturday, July 23, when the former legislator lost control and crashed while taking a curve in Lake Eufaula State Park. Bichsel was not wearing a helmet, but Kirby was.
In the Oklahoma Highway Patrol’s initial press alert about the crash, “odor of alcoholic beverage” was noted under “condition of driver.” But OHP legislative liaison Preston Lay cited Title 74, Section 150.5 of state statute to say his agency is barred from releasing the results of the blood test performed on Kirby.
Lay said multiple times that he would make a statement about details of the state’s investigation prior to handing the case over to federal prosecutors, but he ultimately did not provide a comment about the Kirby case.
Daughter files police report after finding cocaine
About three weeks after Bichsel’s death, Stephanie Winesburg was cleaning out her mother’s house when she found a baggie containing what she thought was cocaine on a bookshelf in the master bedroom. She called Eufaula police and said she believed the baggie belonged to Dan Kirby.
“Winesburg stated that Kirby had been staying at the house for two years and slept on the right side of the bed which is where the shelf was located,” Eufaula police officer Trent Casinger wrote in an Aug. 16 report. “I then took photos of where the baggie was found before taking possession of it and a straw that was found in the same location. Once back at the Police [Department] I tested the white powdery substance and it indicated positive for cocaine. logged the evidence and then returned to normal duties.”
Leaman, the federal prosecutor, said he was “not allowed to comment” on the Eufaula police report.
Eric Begin, a Tulsa attorney representing Kirby in a civil case, did not return a phone call seeking comment for this story.
Christine Riley, a 40-year friend of Bichsel, said she has been in touch with the OHP trooper who responded to the motorcycle wreck. Riley said the trooper told her that “multiple illegal substances were found” in Kirby’s toxicology report, something Riley called “no big shock.”
Riley said her conversation with the trooper led her to believe that federal prosecutors will charge Kirby with a crime.
“We just don’t know what they are going to charge him with,” Riley said. “He deserves to spend time in jail. The situation of the accident, I think, will ensure that Dan Kirby finally gets to spend some time behind bars because he has gotten away with so much. The depth of Dan Kirby’s depravity has no bottom, and it’s time for him to go away for a while.”
‘It was awful’
If Riley’s analysis of Dan Kirby sounds harsh, it’s because she views the death of her friend as the culmination of Bischel’s tumultuous multi-year relationship with the former state legislator and current Eufaula councilman. Riley said her friend routinely shared stories of the relationship and Kirby’s text message communications with her.
“I don’t know why she put up with that behavior. The text messages were relentless with his cheating, and then he would just get so defensive and he would call her horrible names,” Riley said. “It was awful.”
Riley said Bischel’s involvement with Kirby strained her friendships and family relationships.
“He alienated her from all of her friends, especially me because I was very critical. I told her every chance I had, ‘This guy is cancer. You’ve got to get away from him.’ And for the last two years of her life, I barely saw her,” Riley said. “If it wasn’t coming out of my mouth, it was on my face. I was very uncomfortable being around, because I hated him.”
Riley called Kirby “a manipulator” and said Bischel’s health and mental health had declined.
“She had started losing her hair,'” Riley said. “My husband said, ‘Sheryl has always been so beautiful, but I’ve never seen anyone age like that before.’ I said, ‘Well, that’s what being with Dan Kirby will do to you.’”
Kirby’s interactions with women have been the subject of public scrutiny before. First elected in 2008, Kirby represented a House district in Tulsa until he resigned in 2017 amid sexual harassment allegations and revelation that the Oklahoma House of Representatives paid a settlement to a former legislative assistant who alleged misconduct by Kirby.
The results of the House’s internal investigation were reported to a special committee of lawmakers, which recommended expelling Kirby from the Legislature for his behavior toward female employees. Kirby resigned before lawmakers voted to remove him from office.
Eventually, Kirby returned to his hometown of Eufaula and took a job as manager of Xtreme RV Park. In April 2021, he won election to Ward 4 of the Eufaula City Council in April 2021, ousting incumbent James Duty with 55.64 percent of the vote.
Family files civil lawsuit against Dan Kirby
Ricky L. Gragg, administrator of Bichsel’s estate, filed a civil lawsuit in November claiming Kirby was intoxicated or impaired and speeding at the time of the crash. Filed in McIntosh County District Court, the lawsuit is seeking more than $225,000 in damages against Kirby.
Kirby denied the allegations in a court document responding to the lawsuit. Kirby’s response, filed by his attorney, Eric J. Begin of Tulsa, states that Kirby “was confronted with a sudden emergency, not caused by any negligence on his part, and that he acted as a reasonable and prudent person would have acted under the same or similar circumstances, making every reasonable attempt to avoid an accident.”
Begin called the crash an unavoidable accident that occurred through no fault of Kirby’s. Begin also said that Gragg’s claim for punitive damages is unconstitutional and asked that Gragg’s action be dismissed.
Gragg’s attorneys, T. Luke Abel and John J. Ditmars III of Oklahoma City, state the lawsuit is brought on behalf of all of Bichsel’s surviving next-of-kin.
They allege the crash was caused by Kirby:
- Traveling at a speed in excess of the posted speed limit and/or at a speed where he could not stop safely.
- Driving while intoxicated and/or impaired.
- Failing to devote full time and attention to his driving.
- Failing to maintain proper control over a motorcycle.
- Failing to keep a proper lookout.
- Failing to use his brakes, horn, or steering mechanism to avoid the crash.
- Not operating a motorcycle in a safe and reasonable manner.
The lawsuit also seeks punitive damages from Kirby for Bichsel’s surviving next-of-kin who lost the support, guidance, training and protection given by Bichsel. The lawsuit alleges that Kirby’s actions were gross, wanton, willful and/or intentional.