Less than 17 months after a federal judge sentenced former Oklahoma Rep. Dan Kirby to serve 41 months in prison for involuntary manslaughter, the 10th Circuit Court of Appeals vacated his conviction Tuesday, ruling that jurors received inadequate clarification when they asked a question.
“Sometimes, jury instructions aren’t complete. And when a jury needs help bridging the gap, simply telling the jury to reread the instructions gives none. It might even lead the jury to convict based on a misunderstanding of the law,” Judge Gregory Phillips wrote in the majority opinion. “This situation arose during Danny Kirby’s criminal trial.”
Kirby, 67, was convicted of involuntary manslaughter in June 2023, nearly a year after he wrecked his motorcycle near Checotah after a day of partying with friends. Kirby was wearing a helmet, but his girlfriend, Sheryl Bichsel, was not when they both were ejected from the motorcycle Kirby was driving. Bichsel, 56, sustained head trauma and died the next day at a Tulsa hospital.
Although he resigned from the Oklahoma House of Representatives in 2017 while facing expulsion for sexual harassment allegations, Kirby was a member of the Eufaula City Council at the time of the wreck, a fact he noted to Oklahoma Highway Patrol troopers who responded to the scene.
“This made the trooper feel ‘uncomfortable’ and as if Kirby ‘was trying to dominate the situation,'” Phillips wrote while summarizing the case’s factual background. “Another officer saw it as an attempt to distract the trooper from investigating.”
In Kirby’s three-day trial, jurors heard from a variety of witnesses, and they deliberated for nearly five hours. Kirby’s defense attorney emphasized how troopers had not arrested Kirby for DUI that night, but prosecutors noted he had failed to complete an HGN test three times and that he swayed on his feet and seemed disoriented in dash-cam footage.
The attorneys presented different assessments of Kirby’s toxicology report, which showed his blood alcohol content at 0.028, less than half the legal maximum to operate a vehicle. However, the Oklahoma State Bureau of Investigation’s blood analysis also found a combination of narcotics in Kirby’s system, including unspecified amounts of amphetamine, marijuana, tramadol, oxycodone and a pair of anti-depressants — citalopram and trazodone. Kirby’s attorneys argued the report did not prove that any drugs were affecting him at the time of the wreck, while prosecutors said it combined with other evidence to indicate intoxication and impairment beyond a reasonable doubt.
But in the appellate court’s opinion — which appears to position Kirby for a Jan. 14 release from federal prison — the former politician’s conviction featured a judicial “error” when, after more than four hours of deliberation, the jury asked U.S. District Court Judge John F. Heil III a question:
When stating under the influence, does this mean that as long as it is in his system it is unlawful or do we need to determine if he was affected by substances to be impaired or unlawful?
Likely attempting to avoid creating grounds for an appeal, Heil responded by directing jurors to review their original instructions. But Phillips concluded that “the court’s failure to cure the jury’s uncertainty may have led to Kirby’s conviction under an incorrect legal standard.”
“Oklahoma law defines the ‘under the influence’ element as requiring that a driver be incapable of safely operating a motor vehicle, not that a driver have merely ingested a detectible level of intoxicants,” Phillips wrote. “But the district court did not inform the jury of that definition in response to the jury’s expressed uncertainty on that very point. Instead, the court advised the jury to revisit the instructions already given. A few minutes after receiving that advice, the jury returned a guilty verdict.”
Phillips wrote that Heil “had a duty to supplement [his] instructions to answer the jury’s well-stated question.”
“In not doing so, the court abused its discretion. And from what we see, this error likely led to Kirby’s guilty verdict,” Phillips wrote. “Everyone agreed that Kirby had alcohol and other intoxicants in his system. If the jury thought that was enough for guilt, it wouldn’t have needed to send its question to the court. So sending the note signaled that at least one juror (or maybe even a majority or all of them) doubted whether Kirby was incapable of safely driving his motorcycle that night. The jury’s quick verdict after being told to reread the instructions points toward the jury’s mistakenly believing that Kirby must be found guilty just for having alcohol and another intoxicant in his system. And that means the court’s error in not supplementing the ‘under the influence’ instruction wasn’t harmless.”
‘Kirby never disputed that he had alcohol and other intoxicants in his system’
With Kirby’s sentence vacated, U.S. Attorney for the Eastern District of Oklahoma Christopher J. Wilson must decide whether to retry the case, which was prosecuted in federal court rather than state court because Kirby is a citizen of the Muscogee Nation and the wreck that killed Bichsel occurred within the tribe’s reservation boundaries. Kirby’s 41-month prison sentence was five months longer than the maximum three-year punishment that a tribal court can hand down on a single charge.
While Phillips’ opinion emphasized the jury’s question about the legal standard for impairment, his recitation of facts also emphasized that OHP troopers observed numerous indications that Kirby was intoxicated.
“Before Kirby and the trooper left for the hospital for the blood draw, a different officer asked to see Kirby’s tribal identification card. The trooper recalled that Kirby fumbled with his wallet and couldn’t produce the ID without assistance. But by then, Kirby was in handcuffs for the ride to the hospital,” Phillips wrote. “The trooper also described Kirby as ‘struggling to keep it together,’ ‘sweating profusely,’ ‘[f]idgety,’ and ‘having a hard time sitting still.’ Kirby told the trooper he wanted to go for the blood draw as soon as possible so he could check on [Bichsel]. After observing Kirby during the blood draw, the hospital’s charge nurse later described him as ‘disheveled’ and exuding ‘a strong smell of alcohol.'”
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Prosecutors opposed Kirby’s appeal by arguing that the plain definitions of words like “influence,” “intoxicating substance” and “impaired” were clear to jurors, but Phillips rejected the terms as “less helpful than the government thinks.” And in a footnote beginning on Page 23 of the opinion, Phillips implied that perhaps federal jurors are somewhat impaired by rules prohibiting their access to information during deliberation.
“The government relies on dictionary definitions as evidence of words’ ordinary meanings,” he wrote. “We have no reason to think that the jury had access to dictionaries in this case. And whether a jury can even consider dictionary definitions not admitted into evidence poses a separate thorny legal question that we need not address.”
In a concurring opinion, Judge Veronica Rossman called Kirby’s case “unusual” and suggested that district court judges not read too much into the 10th Circuit’s ruling when faced with jury questions in the future.
“Mr. Kirby has not argued the jury instructions misstated the law. But, as even the government acknowledges, the jury was confused about a central issue: whether the government had to prove Mr. Kirby was impaired or instead merely had ingested an intoxicating substance to satisfy the ‘under the influence element’ of the charged offense,” Rossman wrote. “That issue had a clear answer — the government must show impairment. Under the unique circumstances of this case, I agree that referring the jury back to the instructions was error. I write separately only to emphasize that, when answering a jury question, a district court ordinarily can refer the jury back to existing instructions. Nothing in the majority opinion should be read to suggest otherwise.”
Christine Riley, a longtime friend of Bichsel’s who read an impact statement at Kirby’s sentencing hearing, said Tuesday night that “Dan Kirby’s possible new trial doesn’t really come as such a surprise.”
“A narcissist is not capable of taking responsibility for their actions. Regardless of any technicalities that have been found in the first trial, Dan Kirby has had to serve his time. What’s sad is, my friend is still dead. Her family and friends are and will always be grieving. Dan Kirby, because of all the drugs in his system, regardless of a new trial, is 100 percent responsible for Sheryl’s death,” Riley said. “These new developments of a new trial just reiterate that Dan is for Dan. God forbid he have to take responsibility for any sorry decisions he’s ever made in his pathetic life.”
In his majority opinion, Phillips said prosecutors failed to show that “the district court’s error didn’t lead to Kirby’s guilty verdict.”
“Kirby never disputed that he had alcohol and other intoxicants in his system after the motorcycle wreck. Had the jury felt that was enough for him to be ‘under the influence,’ it could have returned a guilty verdict,” Phillips wrote. “And if all the jurors had thought that the government proved beyond a reasonable doubt that Kirby was incapable of safely driving due to his intoxication level, the jury wouldn’t have needed to send its note. It would have been ready to convict on both of its possible interpretations of ‘under the influence.’ But the jury did send its note. So it’s fair to assume that the jury was split on whether Kirby was so intoxicated that he could not capably drive.”
Read the full 10th Circuit opinion on Dan Kirby’s conviction
