MUSKOGEE — After nearly five hours of deliberation, a federal jury found twice-resigned politician Dan Kirby guilty of involuntary manslaughter in the July 2022 motorcycle wreck that killed his girlfriend, Sheryl Bichsel.
When the verdict was read in U.S. District Judge John F. Heil III’s courtroom, Kirby closed his eyes. Members of his family gasped and cried quietly.
Others, although quiet in the courtroom, celebrated the conviction later.
“I think that his actions needed some type of consequence, and that happened,” said Stephanie Winesburg, Bichsel’s daughter. “I don’t feel like anybody’s a winner in this situation, because my mom is still not here. But I’m still happy that there is a consequence so that it will won’t happen again.”
To affirm the unanimity of the verdict, Heil made each juror verbally state that they considered Kirby to be guilty.
Over the three-day trial, prosecutors convinced the 12 jurors beyond a reasonable doubt that Kirby, 65, was intoxicated to the point of impairment when he drove off a road and wrecked his motorcycle near Checotah after a day of partying with friends. Bichsel, who was not wearing a helmet, flew off the back of Kirby’s motorcycle and died the next day at a Tulsa hospital.
Kirby’s trial began Monday with testimony from three witnesses called by the United States government, which prosecuted the case owing to Kirby’s citizenship of the Muscogee (Creek) Nation. Monday’s witnesses were OSBI criminologist Garry Metcalfe (who testified as a toxicology expert), Janann Geis (a friend of Kirby and Bichsel who witnessed the wreck) and Oklahoma Highway Patrol trooper Charles Epley (who responded to the wreck).
Kirby’s lawyer, John Campbell, attempted to poke holes in Epley’s testimony in particular, asking why he did not arrest Kirby if he truly believed Kirby to be intoxicated that night. Jurors, however, apparently did not find those doubts convincing enough to render a not guilty verdict.
Prosecutors showed video evidence from Epley’s vehicle dash cam of the field sobriety test the trooper attempted to conduct with Kirby. After Kirby was unable to follow Epley’s instructions three separate times on one part of the test, Kirby opted to not continue the rest. (Epley testified that, although he was wearing a body camera, it malfunctioned and he “has no idea why.”)
Dan Kirby trial begins with emotional testimony, questions over impairment by Bennett Brinkman
On Tuesday, the government called three more witnesses, including Jarrad Wagner, a forensic toxicologist who issued two reports on the contents of Kirby’s blood the night of the crash.
While Kirby’s blood alcohol content was only 0.028, below the legal limit, the OSBI toxicology analysis also found a combination of narcotics in his system, including unspecified amounts of amphetamine, marijuana, tramadol, oxycodone and a pair of anti-depressants — citalopram and trazodone.
Campbell succeeded in getting Wagner to admit that the blood toxicology report alone was not enough to convince Wagner of Kirby’s intoxication, but Wagner maintained that the report combined with the video evidence was enough to conclude that Kirby was intoxicated.
‘Defendant cared about himself’
Campbell returned to the toxicology report Wednesday in his closing arguments, calling Wagner a “hired gun” and arguing that the lack of specified amounts of drugs in Kirby’s system should be too circumstantial to conclude he was intoxicated.
“They want to take this report that does not tell you that he was intoxicated and say that he was intoxicated,” Campbell said.
Campbell also emphasized a point he made frequently the previous two days: officers’ decision not to arrest Kirby that night.
“They don’t release drunk drivers back out onto the street,” Campbell said. “If they think you’re drunk, they arrest you.”
Ultimately, the doubts Campbell raised proved insufficient for jurors to disregard the evidence that U.S. attorneys Jordan Howanitz and Josh Satter took jurors back through methodically during their closing arguments.
“What is evident is intoxication based on the whole picture,” Howanitz said.
Howanitz replayed videos shown to jurors Monday, including one showing Kirby and Epley in Epley’s car when the trooper received a phone call from an off-duty trooper checking on Kirby.
“Defendant cared about himself,” Howanitz said. “While Sheryl Bichsel was dying, defendant was making calls to save himself.”
Additionally, prosecutors again drew attention to Kirby’s inability to follow instructions during the Horizontal Gaze Nystagmas part of the field sobriety test.
“You don’t drink and drive,” Satter said. “You don’t drink and smoke marijuana and drive. You don’t drink, smoke marijuana and take amphetamine, stimulants (…) and depressants and drive.”
A sentencing hearing for Kirby was not immediately set. In federal court, involuntary manslaughter carries a maximum sentence of up to eight years in prison.
Kirby’s attorney, Campbell, declined to comment on the verdict.
Christine Riley, Bichsel’s friend, said she appreciated Wednesday’s verdict.
“Couldn’t be happier,” Riley said. “The only thing that could’ve made it better is if he left the courthouse in handcuffs.”
Riley said that while no punishment for Kirby can bring true justice, she is looking forward to the upcoming sentencing hearing.
“What does matter is all of his past bad behaviors that he barely even got a slap on the wrist for — now that comes back to bite him in the ass,” Riley said.
In 2017, then-Rep. Dan Kirby (R-Tulsa) resigned while facing expulsion from the Oklahoma House of Representatives for sexual harassment allegations.
Kirby returned to his hometown of Eufaula and won election to Ward 4 of the Eufaula City Council in April 2021, but he resigned in March following his involuntary manslaughter indictment by a federal grand jury.