Kansas Bar Association Young Lawyers Section 2016 Case State Of

Kansas Bar Association Young Lawyers Section 2016 Case

State of Kansas vs. Gayle/Gail Gardener1

CR 15-1163

Sponsored by the Kansas Bar Association Young Lawyers Section

http://www.ksbar.org/?mocktrial

1Adopted with permission from the Nebraska State Bar Foundation.

TABLE OF CONTENTS

INTRODUCTION AND ACKNOWLEDGEMENTS THE PROBLEM Information – Charging Document ...... 1 Witnesses, Exhibits, and Stipulations ...... 2 Jury Instructions ...... 3 Kansas Statutes ...... 4-5 WITNESS STATEMENTS For the Prosecution Ashley Empyrean ...... 6-8 Alex Firma ...... 9-12 Marion D’Amico ...... 13-15 For the Defense Gayle/Gail Gardener ...... 16-19 Pat Murphy ...... 20-22 Shannon Stark ...... 23-29 EXHIBITS ...... 30-50

Introduction

Welcome! On behalf of the Kansas Bar Association Young Lawyers’ Section, we are excited that you have decided to participate in this Mock Trial competition. We believe participating in mock trial will provide students with many skills that will help them later in life including public speaking, critical thinking, and creativity. We also hope students will feel a little more familiar with the legal system after they have taken the time to take a case through to trial.

This year’s case is a criminal arson/murder case adopted with permission from the Nebraska State Bar Foundation. We selected this problem, in part, because it is well-written and has the potential for student teams creating a great story out of it. Teams should remember that the most important part of creating a winning case is telling a story, and that should be the emphasis this year.

Coaches are encouraged to contact us at [email protected] with any inquiries regarding this year’s case.

We are looking forward to working with each and every one of you. See you at Regionals!

Mitch Biebighauser Mock Trial Liaison (913) 652-9800

Lisa Brown Mock Trial Liaison (785) 233-0593

Acknowledgements

First and foremost, we would like to extend our thanks to the Nebraska State Bar Foundation for allowing us to use and adapt one of their previous mock trial cases for use in the Kansas State Mock Trial Competition this year. Their generosity is appreciated!

We would like to extend our sincerest thanks to Anne Woods of the Kansas Bar Association for her hard work in making these competitions possible.

Recognition also goes out to those entities who provided funding for the program this year, including the Kansas Bar Foundation and the American Bar Association. As always, we are grateful for the endowment from the firm of Shook, Hardy, and Bacon that contributes to the program every year.

IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS

State of Kansas CR 15-1163 Prosecution ) ) vs. ) Gayle/Gail Gardener ) Information Defendant. ) )

Joe Justice, Shawnee County Attorney by authority of the State of Kansas, comes here in person into Court at this, the 2015 term, thereof, and for the State of Kansas, and gives the Court to understand and be informed that Gayle/Gail Gardener on or about July 3, 2013, in the County of Shawnee and State of Kansas, then and there being, did cause the death of Cliff Stanley while s/he was intentionally damaging a building or property contained within a building by starting a fire or causing an explosion, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Kansas.

JOE JUSTICE SHAWNEE COUNTY ATTORNEY

______Joe Justice Shawnee County Attorney

Joe Justice, Shawnee County Attorney, says the facts stated in the foregoing information are true as s/he verily believes.

______Joe Justice Shawnee County Attorney

IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS

State of Kansas CR 15-1163 Prosecution ) ) vs. ) Gayle/Gail Gardener ) Honorable Tom Calkins Defendant. ) Presiding Judge )

WITNESSES, EXHIBITS, AND STIPULATIONS

Witnesses for Prosecution 1: Ashley Empyrean 2: Alex Firma 3: Marion D’Amico

Witnesses for the Defense 1: Gayle/Gail Gardener 2: Pat Murphy 3: Shannon Stark

Exhibits 1. Fire Report prepared by Fire Investigator Ashley Empyrean 2. Photos of Gardener’s Garden Gnomes Factory 3. Autopsy Report 4. EMT License 5. Proffer Letter 6. Emails between D’Amico and Gardener 7. Emails between Ganoush and Gardener 8. Farm State Fire & Casualty Insurance Declarations Page 9. Gardener’s Garden Gnomes Employee Key Issuance Form

Stipulations Both sides stipulate to the following:

1. All exhibits included in the case are authentic and accurate in all respects. No objections to the authenticity of the exhibits will be entertained. 2. No objections for any reason shall be entertained to the admissibility of the Autopsy Report. The prosecution may introduce and offer the Autopsy Report through the testimony of the fire investigator. The Autopsy Report will be admitted into evidence without objection. 3. All references to Nebraska, NE, or the State of Nebraska contained within this case should be construed instead as references to the State of Kansas. No team shall inquire with any witnesses into this discrepancy.

JURY INSTRUCTIONS Instruction #1

The material elements which the State must prove beyond a reasonable doubt in order to convict Gayle/Gail Gardener of the crime of Aggravated Arson are:

1. Gayle/Gail Gardener knowingly by means of fire damaged Gardener’s Garden Gnome Factory.

2. Gayle/Gail Gardener started the fire without consent.

3. Cliff Stanley was present in the building at the time the fire was started.

4. The fire resulted in a substantial risk of bodily harm.

5. The act occurred on or about July 3, 2013.

Instruction #2

The material elements which the State must prove beyond a reasonable doubt in order to convict Gayle/Gail Gardener of the crime of first-degree murder are:

1. That Gayle/Gail Gardener killed Cliff Stanley; and

2. That killing was done while Gayle/Gail Gardener was committing aggravated arson.

3. This act occurred on or about the third day of July, 2013, in Shawnee County, Kansas.

The elements of aggravated arson are listed in Instruction #1.

IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS

State of Kansas CR 15-1163 Prosecution ) ) vs. ) Gayle/Gail Gardener ) Honorable Tom Calkins Defendant. ) Presiding Judge )

KANSAS STATUTES

21-540. Murder in the first degree; penalty

(a) Murder in the first degree is the killing of a human being committed: (1) Intentionally, and with premeditation; or (2) in the commission of, attempt to commit, or flight from any inherently dangerous felony. (b) Murder in the first degree is an off-grid person felony. (c) As used in this section, an “inherently dangerous felony” means: (1) Any of the following felonies, whether such felony is so distinct from the homicide alleged to be a violation of subsection (a)(2) as not to be an ingredient of the homicide alleged to be a violation of subsection (a)(2): […] (L) aggravated arson, as defined in subsection (b) of K.S.A. 21-5812, and amendments thereto; […] (d) Murder in the first degree as defined in subsection (a)(2) is an alternative method of proving murder in the first degree and is not a separate crime from murder in the first degree as defined in subsection (a)(1). The provisions of K.S.A. 21-5109, and amendments thereto, are not applicable to murder in the first degree as defined in subsection (a)(2). Murder in the first degree as defined in subsection (a)(2) is not a lesser included offense of murder in the first degree as defined in subsection (a)(1), and is not a lesser included offense of capital murder as defined in K.S.A. 21-5401, and amendments thereto. As set forth in subsection (b) of K.S.A. 21-5109, and amendments thereto, there are no lesser included offenses of murder in the first degree under subsection (a)(2). (e) The amendments to this section by this act establish a procedural rule for the conduct of criminal prosecutions and shall be construed and applied retroactively to all cases currently pending.

21-5812. Arson; aggravated arson

(a) Arson is: a. Knowingly, by means of fire or explosive damaging any building or property which: i. Is a dwelling in which another person has any interest without the consent of such other person; ii. is a dwelling with intent to injure or defraud an insurer or lienholder; iii. is not a dwelling in which another person has any interest without the consent of such other person; or iv. is not a dwelling with intent to injure or defraud an insurer or lienholder; b. accidentally, by means of fire or explosive, as a result of manufacturing or attempting to manufacture a controlled substance or controlled substance analog in violation of K.S.A. 21-5703, and amendments thereto, damaging any building or property which is a dwelling; or c. accidentally, by means of fire or explosive as a result of manufacturing or attempting to manufacture a controlled substance or controlled substance analog in violation of K.S.A. 21-5703, and amendments thereto, damaging any building or property which is not a dwelling. (b) Aggravated arson is arson, as defined in subsection (a): a. Committed upon a building or property in which there is a human being; or b. which results in great bodily harm or disfigurement to a firefighter or law enforcement officer in the course of fighting or investigating the fire. (c) (c)(1) Arson as defined in: i. Subsection (a)(1)(A) or (a)(1)(B) is a severity level 6, person felony; ii. subsection (a)(1)(C), (a)(1)(D) or (a)(3) is a severity level 7, nonperson felony; and iii. subsection (a)(2) is a severity level 7, person felony. b. Aggravated arson as defined in: i. Subsection (b)(1) is a: c. Severity level 3, person felony, if such crime results in a substantial risk of bodily harm; and d. severity level 6, person felony, if such crime results in no substantial risk of bodily harm; and i. subsection (b)(2) is a severity level 3, person felony.

IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS

State of Kansas CR 15-1163 Prosecution ) ) vs. ) Gayle/Gail Gardener ) Honorable Tom Calkins Defendant. ) Presiding Judge )

Witness Statement of Ashley Empyrean

1 My name is Ashley Empyrean, but everybody calls me Ash. I was named after my Mom’s favorite 2 character in Gone With The Wind – Ashley Wilkes. Plus, my Dad, who was a history buff, 3 respected Congressman James Mitchell Ashley. You may not know this, but Congressman Ashley 4 helped lay the foundation to pass the 13th Amendment. So, I had no choice but to be named 5 Ashley!

6 I currently live at 451 Kindling Court, in Goldenrod, Kansas. I am single, but I have a Dalmatian, 7 Flame, who gives me comfort and joy. Flame has also been trained in fire investigation 8 techniques although she is not certified. She keeps fervently getting excited whenever she thinks 9 she smells accelerant; that is, too many false positives to be certified.

10 I am one of two certified fire investigators employed by the Goldenrod Fire Department. After 11 graduating from high school in 1982, I joined the United States Navy where I was rated a fire 12 protection inspector on board the USS Kansas. As you might imagine, on board a submarine, 13 prevention is all there is. Once the boat fills with deadly gas and smoke, only those with 14 independent breathing equipment have a chance to survive. Unfortunately the heat from a fire is 15 contained within a submarine so if the gas doesn’t get you, the heat will. Fire Prevention is no joke. 16 It just toasts my roast when people act irresponsibly around fire.

17 After my service in the Navy, I returned to Goldenrod and applied to the Goldenrod Police 18 Department. I was accepted and completed my training at the Law Enforcement Academy in 19 Cottonwood City. I also completed a B.S. in Fire Protection Sciences, which I earned at Carson 20 University in Norfolk. The police department wanted someone to take over its arson squad 21 investigations, and I volunteered. I am cross certified as a state law enforcement officer (with 22 powers of arrest) and as a fire investigator.

23 On July 3rd, 2013, at 2310, I received a call from dispatch which provided barely an ember of 24 helpful information. Still, I burned rubber getting to the gnome factory. When I arrived, the 25 interior of the building was ablaze. I stayed out of the way of the firefighters while they 26 subdued the conflagration. In addition to making a visual inspection, I took samples and 27 photographs. I interviewed available and relevant witnesses. Finally, I prepared my fire report, 28 which has been marked as Exhibit #1 I have reviewed my report and it is a true and accurate 29 copy of the original on file with the Goldenrod Fire Department. The photographs, Exhibit #2 are 30 true and accurate copies of the ones I took on the scene the morning after the fire. The report and 31 the photographs truly and accurately depict my investigation and my observations during this 32 investigation.

33 I believe that the building owner, Gayle/Gail Gardener, was the responsible party. By that I 34 mean that s/he had means, motive and opportunity. Therefore, I arrested Gayle/Gail Gardener 35 for first degree arson. By the time I dictated this report, I was aware that the Janitor did in fact 36 die, and therefore I later recommended that Gardener be charged with first degree felony 37 murder too. I then reviewed the autopsy report which is included as Exhibit #3.

38 I know that some people think the fire might have been started by that recently terminated 39 employee, Bobby “Bubba” Ganoush. That is just a flash in the pan. I subsequently learned that 40 Bubba may also have had means, motive and opportunity. However, I arrested the owner first 41 and am not interested in changing fire engines mid fire so to speak. Besides, the accusation was 42 made to throw off suspicion by Gardener only after I asked Gardener if he had any recent 43 employee problems.

44 Well, pretty much everything is in my report so if you have any questions, just refer to it.

WITNESS ADDENDUM

I have reviewed this statement and I have nothing of significance to add. The material facts are true and correct.

Signed,

SIGNED AND SWORN to before me at 8:00 a.m. on this day of this round of the 2015-2016 Kansas State High School Mock Trial Competition.

______Stephanie Egger Nelson, Notary Public My Commission Expires: December 31, 2016 xxxxxxxxxxx xxxxxxxxxxx

xxx xxx

IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS

State of Kansas CR 15-1163 Prosecution ) ) vs. ) Gayle/Gail Gardener ) Honorable Tom Calkins Defendant. ) Presiding Judge )

Witness Statement of Alex Firma

1 Let me start out by saying, I am neither a hero, nor suicidal. After I ran into that burning gnome 2 factory and tried to save Cliff Stanley, a lot of people wanted to pat me on the back (which I 3 would have sincerely accepted when I came back from Afghanistan in 2005) and call me 4 courageous. Again, I say, I am not. I just did what any good American would have done given 5 the circumstances. I’m confident you would have done the same.

6 My name is Alex P. Firma. I live at 6319 Haystack Road just outside of Goldenrod. I have an old 7 black and brown mutt with a big white spot on his right leg named Pal. Named ole Pal this since 8 it is close to my middle name and then we’d be like twins. What can I say? I was young. Cut me 9 some slack. Sorry, sorta got off track. Anyway, I grew up about 10 miles outside Goldenrod on 10 a farm. Mom and Dad are both farmers and business people, so I was given chores (like the rest 11 of my siblings) at a young age. We wouldn’t have presumed an allowance came with the work. 12 And work we did. At a young age I could haul hay bales with the best of them, and, I must say, I 13 miss those old square bales. Although the big round bales are nice for windbreaks and the 14 occasional minion sculpture, there’s something satisfying about loading up bales on the trailer, 15 unloading and stacking them in the barn (and sometimes making a maze or a fort out of them, 16 once there was room). 17 After graduating from Goldenrod High School in May of 2000, I joined the Army and found out 18 that I had a knack for detective work - actually more like sniffing out and locating IED’s – but 19 detective work sounds so much more distinguished. I was sent to Afghanistan in 2002 and drove 20 an armored tank (and walked a lot), and looked. And located. And mostly detonated safely. 21 Until the last time. I missed that rendezvous with death when I walked away with only a ruptured 22 right eardrum, but others weren’t so fortunate. Three soldiers with me and a crowd of Afghan 23 civilians. I came back home in 2005 a different person – more aware, more alive one could say 24 – but affected in a way that is simply indescribable. So I won’t even try. I will just continue to live 25 until I don’t anymore. 26 Adding onto the skills I learned in the military, I trained to be an EMT. After all the carnage I saw 27 in Afghanistan, it seemed fitting. After the basic EMT course of about 100 hours classroom time 28 and some ride-alongs in the Goldenrod ambulance, I decided I wanted to learn more. I finally 29 got my EMT-P in 2007, which involved more classes and a lot of clinicals, including some in ER/ED, 30 ICU, OB/GYN, surgery, intubating and such. And more rides in the Goldenrod ambulance with 31 the crew with whom I worked. Met Ash Empyrean at some of the fire scenes through the 32 ambulance crews. Fires aren’t really great for a person’s health, so EMTs, ambulance crews, and 9

33 fire investigators get together often. Ash seems like a decent person and is very honest. I’d 34 vouch for that. Anyway, there’s a camaraderie in health care professionals (fire department 35 included) that was similar to my time in the Army; and there’s that sense of risk, always present, 36 yet inescapable. But necessary, like I said. I think the stress and risks finally got to me though, 37 and I ended up walking away during an ambulance call in a dead baby case and walked 38 directly to a bar. Stayed there longer than I should have and stayed away from my work too 39 long. Lost that job, but it taught me what I can and can’t handle. Went to inpatient alcohol 40 treatment at the VA Hospital here and now I only rarely drink. Nowadays, I’m working second 41 shift (2 p.m. to 11 p.m.) at the VA and volunteer at the church-funded soup kitchen and mission. 42 Most people are volunteers, but I was lucky enough when I got out of treatment to snag that job. 43 Kind of a “Jack/Jill of all trades” you could say. I do a little of everything. 44 It was kind of slow on July 3, 2013, and I got off work about 10 p.m. Preparing for the 4th of 45 July celebrations, my friends talked me into going out for a drink with them. They know I don’t 46 drink much anymore, but it was nice to be included, so we all met at the “Factory Works” bar, 47 down by the warehouse district. I only had a couple beers there and decided to walk home. It 48 was a nice night, not too muggy and not too buggy, so it felt like the right thing to do at the time. 49 Now, looking back, I’m sure I was there for a reason. I only wish I could have gotten there sooner 50 and saved Cliff Stanley’s life and maybe caught the jerk who started the fire. I really dislike 51 people who put other humans in harm’s way just to serve their own interests. Anyway, back to 52 that night. It was about 2300 hours, and I smelled smoke and not the “steaks on the grill” kind 53 that makes your mouth water. That acrid chemical and metal and tar smell of an old building on 54 fire. I knew it was close. Running toward the odor and haze of smoke, I could see by the nearly 55 full moon that the Gnome factory was burning. When I saw Cliff’s truck in the parking lot, I knew 56 he was probably in there. He was a nice, yet eclectic guy, about my age, who used to work at the 57 hospital in town and who certainly didn’t deserve to experience the suffocating feeling caused by 58 smoke-inhalation, not that anyone does. I called 911 while I scaled the fence and ran toward the 59 door next to Cliff’s truck and accurately bet that it was unlocked. Without a mask or any 60 protective gear, it was tough to see and smell, but I hunkered down by the floor, 61 I covered my mouth and nose with my shirt and headed toward the tipped over mop bucket I saw 62 near the middle of the room, about 20 feet away. When I got there, I found Cliff face down on 63 the floor. Exhibit #1 where it says ‘victim location’ on the map accurately reflects the area in the 64 factory where I found him. He was barely breathing, and I knew I had to get him out of there. I 65 grabbed him by the arms and drug him toward the exit, still staying close to the floor. It was 66 hard to see, but I’m sure I drug him through something – paper or some paper-like material – so I 67 probably screwed up the crime scene. Wasn’t thinking about it then. Anyway, as I reached the 68 door, I smelled some kind of fuel mixed in with the smell of burning paper. No time, however, to 69 stand (or crouch, I guess) around gawking. Had to get out of there with him! Once outside, I 70 flipped him over, and dragged him toward the edge of the parking lot, hopefully far enough 71 away if anything exploded. Nothing did, but you never know. When I got Cliff on the ground, I 72 saw he needed to be intubated. Having inhaled the hot gasses from the fire, his trachea swelled, 73 and he was gasping for air and could barely breathe. Because I always carry a pocketknife, I 74 used the blade to do a quick tracheotomy and used the case of the fountain pen I always carry 75 with me to intubate. In life and death situations, your mind sometimes calls you back to some 76 weird memory, and all I could think about was “this is just like ‘House’ and ‘Saw V’ without the 77 movie stars.” Dumb, I know. But before I could make the incision, he gasped “it finally happened 78 . . . money.”, so quiet I could barely hear it, but I am 100% positive that’s what he said. And 79 those were his last words ever, because I intubated him right after that, and you can’t talk with a 80 tube in your trachea. His breathing seemed to improve a bit, and the fact that my EMT license 10

81 lapsed didn’t make the emergency trache I did any less effective. See Exhibit #4. I heard he 82 died at the hospital from smoke inhalation, even though the ambulance got there about 10 83 seconds after I intubated him, and they took him to the hospital right away. I’m sure the 84 ambulance crew did their best – as I said before, I worked with some of them before and they 85 are top-notch. Wish I could have saved him. Wish I could have gotten there just a little sooner. 86 Wish the scumbag who started the fire would have had the common decency to make sure no one 87 was in the building. Wishing gets you squat apparently. 88 People have asked me what else I saw. I didn’t see anyone there but Cliff, and if anyone else 89 had been there, I sure didn’t see them. I did hear a vehicle with a loud muffler which sounded 90 like it was accelerating away from the area as I was running toward the burning factory, but 91 that’s all. The factory district is pretty quiet at night in a town the size of Goldenrod. No need 92 for a night shift. Murder is what this is. Plain and simple. Thought I could get away from it in 93 2005 when I came home from war. I thought wrong, but I’m still glad that I could at least try to 94 save him. It was worth the risk. That’s all I can say.

WITNESS ADDENDUM

I have reviewed this statement and I have nothing of significance to add. The material facts are true and correct.

Signed,

SIGNED AND SWORN to before me at 8:00 a.m. on this day of this round of the 2015-2016 Kansas State High School Mock Trial Competition.

______Stephanie Egger Nelson, Notary Public My Commission Expires: December 31, 2014 xxxxxxxxxxx xxxxxxxxxxx xxx xxx

IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS

State of Kansas CR 15-1163 Prosecution ) ) vs. ) Gayle/Gail Gardener ) Honorable Tom Calkins Defendant. ) Presiding Judge )

Witness Statement of Marion D’Amico

1 My name is Marion D’Amico. My work associates call me The Godparent. You see, I’m the 2 godparent for at least 15 children of my associates. I have two white Angora cats, Pollex and 3 Patella. They are very loyal. Loyalty is very important to me. Oh, yes, I live at 471 Mulberry 4 Street in an old palazzo built by the well known Giovanni da Contadino. Of course, you know 5 that “Contadino” means farmer in Italian.

6 I was born and raised in Little Sicily. Now I take care of lot of my business out of the back room 7 of Christiano’s Italian Restaurant over a nice bottle of Silician Nebbiolio and some tiramisu. 8 Brenda and Eddy make the best tiramisu this side of the pond. Everyone knows what goes on in 9 the back room. You know, business deals get made.

10 I come from a very big family. I didn’t go to college. I always worked for the family business. 11 When my father passed away, I took over the business. My father was murdered. His father 12 before him was murdered. It can be a dangerous business. I always sleep with one eye open. 13 You know, I have insomnia. It’s hard to sleep since I worry about the family business all the time.

14 I have been a legitimate family business person in Goldenrod for 25 years. I seem to be the 15 center of attention for the local police, but I don’t even have any speeding tickets. I have been 16 stopped and searched regularly by Sheriff Ness, but no tickets. I make sure that my hands never 17 get dirty. You see, I have OCD and carry hand sanitizer with me everywhere I go. I make sure 18 that I pay all my taxes on time as the good citizen that I am. Currently, I’m involved mostly in high 19 risk lending. When the people of Goldenrod need a loan and nobody else will give them any 20 money, they call me. It’s called “high risk,” because it is a high risk for the borrowers that can’t 21 pay me back on time. You see, I charge a slightly higher interest rate than conventional lenders. I 22 have a very high rate of clients that pay me back in full, plus interest, of course. Sometimes, my 23 associates, Moose and Rocko, go out to help encourage payment, if you know what I mean. 24 Pollex and Patella go along for the ride in the Caddy. They like the wind in their fur. Only 2 25 borrowers never paid me back and they were never seen again in Goldenrod. I can be very 26 persuasive. You see one of them got whacked, you know, was whacked out and apparently 27 ended up at the funny farm. The other one had cement shoes. You know, moved so slow it was 28 like he was wearing cement for shoes.

29 I wasn’t surprised when Gayle/Gail Gardener came knocking on my door. I had seen him/her at 30 the boats a lot. S/he had that look like s/he was gambling with his/her rent money. S/he was 31 always by himself/herself, stressed out, sweating, nervous, and didn’t seem to be having a good 32 time. When Gardener came in, s/he said business was down. I don’t know how s/he ever thought 33 anyone would buy enough overpriced, tacky goblins to make any money. I don’t care what s/he 34 needed money for. S/he needed 50 large and quick. I am always willing to help out a fellow 35 local business, for a fee. S/he owed me 65 Gs back in 60 days. Gardener couldn’t agree fast 36 enough. Oh, we don’t sign anything and there aren’t any payment books. Yeah, I kinda 37 remember exchanging emails. Exhibit #6 looks about right to me. Gardener knew how to pay 38 me back and that s/he would be sleeping with the fishes if s/he didn’t. You see, the homeless in 39 Goldenrod live under the bridge by Meadowlark Lake. If the business failed, s/he would lose 40 his/her house too.

41 I called Gardener the night of the fire. I made one last offer that Gardener couldn’t refuse to 42 pay me back. Gardener said s/he had “business to take care of” and then I would get my 43 money back. S/he didn’t say what it was and I didn’t ask. You know, don’t ask, don’t tell.

44 Once the gremlin factory burned down, I got my money back. Well, the 60 days were up, so I 45 got a little extra interest on top of my 65 grand. I should have asked for more, Gardener was 46 rolling in it and was just happy to be out of the troll business.

47 There seems to be a little misunderstanding between me and Sheriff Ness about my family 48 business. They have been snooping around ever since the night of the fire. I hired Lionel Hutz to 49 make Ness go away. Not sure what good he’s done for me, because now I have to take some 50 deal to not be prosecuted for things that I didn’t do. See Exhibit #5. Like I said, I’m just a 51 legitimate family business person who wants the best for Goldenrod.

WITNESS ADDENDUM

I have reviewed this statement and I have nothing of significance to add. The material facts are true and correct.

Signed,

SIGNED AND SWORN to before me at 8:00 a.m. on this day of this round of the 2015-2016 Kansas State High School Mock Trial Competition.

______Stephanie Egger Nelson, Notary Public My Commission Expires: December 31, 2014 xxxxxxxxxxx xxxxxxxxxxx xxx xxx

IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS

State of Kansas CR 15-1163 Prosecution ) ) vs. ) Gayle/Gail Gardener ) Honorable Tom Calkins Defendant. ) Presiding Judge )

Witness Statement of Gayle/Gail Gardener

1 My name is Gayle/Gail Gardener. I live in the house that my great grandfather built back in 2 1888. Just love all the hand carved crown molding and oak bookcases in the place. Of course, 3 there are some issues with owning such a historic home! Oh, and my address is 4321Sheridan 4 Lane. 5 I have lived in Goldenrod, Kansas, my entire life. I used to be married; however, that all ended 6 when I started spending so much time on my career! Fortunately, I have three kids who are the 7 apples of my eyes. My oldest is Betsy, a senior at Meadowlark University, who is majoring in 8 Criminal Justice. She wants to go on to law school. Next is Ben, who is a freshman at Sterling 9 Morton University. He is undecided at the moment; however, I believe he will follow in my 10 footsteps and go into business. Oh, by the way, I have a B.S. in Finance. Anyway, my baby is 11 Isabella, who is a junior in high school. She is a great volleyball player and also participates in 12 the High School Mock Trial program. Finally, we have a Siberian Husky named Rebel…ornery 13 dog! 14 My dream has always been to provide the citizens of Goldenrod with the highest quality lawn 15 and garden ornaments. Making the city of Goldenrod look as aesthetically pleasing as possible 16 has always been my highest priority. 17 I started my business back in 1994. Gardener’s Garden Gnomes located at 3150 West Bond 18 Drive. At first things were a little rough as I was trying to get my business going. Apparently not 19 everyone in town has the same passion for lawn and garden ornaments that I do. I just can’t 20 believe that some people think my products can be “creepy” or “tacky”. What is wrong with 21 these people?! I mean, who wouldn’t want a six-foot tall gnome? I know gnomes are normally 22 short, but my dad always taught me, “Go big or go home.” 23 Since business wasn’t exactly “booming” at first, I had to take out several loans to cover operating 24 expenses – nearly $400,000.00 worth! To add to that, it was a struggle to make the mortgage 25 payment each month for the factory. The bank owned more of that building that I did. I’ll be 26 honest, that kind of depressed me. Sometimes, when I was down, I would go across the river to 27 the “boats” to gamble. I always thought, “If I could just hit it big over here at the casino, all my 28 troubles would be over…” That line of thinking never served me very well. 29 Not being the luckiest soul, I ended up losing quite a bit of money over there. I soon realized that 30 I might have a problem so I contacted the gambling hotline, and I now go to Gamblers 31 Anonymous twice a week. I used to owe about $100,000.00 to various loan sharks around the 32 area. The “juice” (interest) was always running and they charge so much! It’s just not fair!

33 I vaguely remember the Godparent calling me sometime before the fire. Maybe it was an 34 e-mail. I don’t know. S/He wanted to know when I was going to pay back my loan. I told 35 him/her s/he would get the money. I was hoping I would hit it big one last time at the casinos 36 and could finally get him/her off my back. I didn’t tell him/her my plan because I didn’t think 37 s/he really cared where the money came from. As long as s/he got it back! I NEVER meant that 38 I would do something so desperate as to set fire to my own building! I loved that factory. 39 Still, at least part of my life is “under control.” I used to have to put up with pesky emails I was 40 always getting from the loan shark and his goons. See Exhibit #6. Looks accurate to me. They 41 were so demanding! They even threatened to break my legs if I missed my payment. I told them 42 that just wouldn’t work, as I was the anchor in our 4th of July sack race relay… Oddly, they didn’t 43 seem to care. 44 Bobby “Bubba” Ganoush was a loyal employee for several years. I think I hired him back in 45 2010. He worked hard for me up until about 2012, when he started getting a bit lazy. Around 46 that time, I also noticed that the books weren’t always adding up right. Profits weren’t as high as 47 they should have been given the number of items we were selling. I did some investigating and, 48 unfortunately, it turned out that Bubba was selling gnomes and other lawn ornaments at 49 discounted prices to members of our local book club. Bubba’s passion for literature apparently 50 clouded his judgment when it came to running a business, so I had to let him go on July 1, 2013. I 51 asked for the keys to the building but he said he didn’t have them. Bubba wasn’t too happy with 52 me and, on his way out the door, said to me, “I hope this place burns to the ground! Goldenrod 53 would be better off without all your stupid decorations!” Imagine that! 54 I have seen the e-mails between me and Bubba. See Exhibit #7. Look accurate to me. That’s all 55 I can say about that. 56 Over the last several months I wasn’t able to keep up with the bills, not to mention trying to get 57 my gambling debts paid off. After speaking with my attorney and accountant on several 58 occasions, I was seriously considering filing for bankruptcy and closing up shop. Maybe my 59 passion for garden gnomes makes a better hobby than a business… 60 Anyway, that all changed on July 3. I was having a Fourth of July poker party at my place. I 61 used to be a big party animal but, as I’ve gotten older, we’ve toned it down a bit. The party 62 broke up around 10:30 p.m. but Murph stuck around for a while. Talked about old times. Murph 63 is a true friend! 64 I’ve seen “Investigator” Ash Empyrean’s statement saying that I smelled like solvents. What can I 65 say? I don’t even notice it anymore. I work all day in a building filled with solvents. Even when I 66 take a shower, I’m told you can sometimes smell it. 67 I got a call from the local sheriff around midnight telling me that my business was on fire! I took a 68 quick shower and rushed down to the shop. I was devastated to see my life’s work going up in 69 flames. There was almost nothing left by the time the fire was put out! 70 It is such a tragedy about Cliff. I couldn’t figure out why he was there at the time of the fire. I 71 told him to take the night off and enjoy the Goldenrod fireworks display. He was always such a 72 hard worker that I wanted him to spend some quality time with his family. His wife later told me 73 he was going to meet the family at Goldenrod Park after he stopped by the shop to check on the 74 place. That was Cliff, making sure the work was done, even on his day off! I’m sure going to miss 75 that guy.

76 For the record, I DID NOT START THAT FIRE! 77 The fire happened only a few days after I fired Bubba and, if you ask me, he made good on his 78 threat and set my place on fire. How’s that for gratitude? You give someone a job, help support 79 his family, and when you fire him for essentially stealing (a legitimate reason, if you ask me…), 80 he goes and starts your business on fire! Thankfully, I had taken out an insurance policy recently 81 that covered fire damage. See Exhibit #8. I’ve taken a settlement check for $1.5 million, so now, 82 even though my life’s work went up in flames, at least I can pay off all my debts and still have a 83 nice chunk of change left over. Now I have to figure out what to do next. I think I’ll start with a 84 nice little vacation to Hawaii. I think I’ve earned it, don’t you?

WITNESS ADDENDUM

I have reviewed this statement and I have nothing of significance to add. The material facts are true and correct.

Signed,

SIGNED AND SWORN to before me at 8:00 a.m. on this day of this round of the 2015-2016 Kansas State High School Mock Trial Competition.

______Stephanie Egger Nelson, Notary Public My Commission Expires: December 31, 2014 xxxxxxxxxxx xxxxxxxxxxx xxx xxx

IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS

State of Kansas CR 15-1163 Prosecution ) ) vs. ) Gayle/Gail Gardener ) Honorable Tom Calkins Defendant. ) Presiding Judge )

Witness Statement of Pat Murphy

1 My name is Pat Murphy. Most of my friends just call me “Murph.” I grew up on a farm between 2 Omaha and Elkhorn, Kansas. Life was tough growing up. We worked hard and put in long hours. 3 However, that all changed when my folks sold the farm to a developer. Land that was sold by 4 the acre became land that was sold by the square foot. Mom and Dad had enough money to 5 send each of us five kids to Meadowlark University. They even had some left over to invest. 6 Mom and Dad invested in a company called Berrkshire Haddeway. They have done very well 7 through the years. 8 Just some background information on me – I live on an acreage outside of Goldenrod. My 9 address is 1861 Rd 63. I just love the outdoors and being able to hike out in the hills. 10 I met the Defendant, Gayle/Gail Gardener at Meadowlark University. Gayle/Gail was from 11 old money. His/Her family owned the farm equipment factory that had been in the family for 12 years. Gayle/Gail eventually inherited the factory building in his/her hometown of Goldenrod 13 and immediately started a lawn ornament business. Gayle/Gail even talked me into moving to 14 Goldenrod. I met my spouse in Goldenrod. It’s where we were married. Our children’s names 15 are Bob and Julie. We also have two dogs named Grumpy and Sneezy. My spouse and I collect 16 and restore antique tractors. One of our favorite things to do is to take our 1910 Rumely 17 Oil-Pull kerosene tractor and our 1906 Hart-Parr tractor to fairs, farm shows and parades. 18 Gayle/Gail and I love to go fishing and boating at the WigWam State Recreation Area. We 19 also like sports and never miss an opportunity to support the local high school team, the “Prairie 20 Chickens.” In college, we used to hit the bars, but we don’t do that so much anymore. 21 Gayle/Gail is my good friend and through the years we’ve always had each other’s back. I 22 would do anything for Gayle/Gail and I believe that Gayle/Gail would do anything for me. 23 One tradition that Gayle/Gail and I started in college and which we still do today is our annual 24 3rd of July poker game. We usually have about six of us at the game, and sometimes, the game 25 runs late into the night. This year the game was at Gayle’s/Gail’s place and, for some reason, 26 the game got over early. Robin, Les, Chris and Sal left between 10:00 to 10:30 p.m. I stayed 27 around to help Gayle/Gail clean up. When we were finished, the two of us sat around and 28 talked about our college days. 29 I was there when Gayle/Gail got a call about the factory. Gayle/Gail was visibly shaken. S/he 30 didn’t tell me who the call was from, or what it was about. S/he only said that there was some 31 trouble at the factory that needed his/her attention. I immediately left Gayle’s/Gail’s house and 32 went straight home. I did not find out about the fire until the next day.

33 Through the years, Gayle/Gail has done a lot of good for the town of Goldenrod. S/he is 34 generous to a fault. One instance where Gayle’s/Gail’s generosity got him/her into trouble was 35 when s/he hired that no-good, hot-headed, train-wreck of an employee, Bobby “Bubba” 36 Ganoush. Gayle/Gail would often tell about all of the guff that s/he had to take from Bubba. 37 Some people treat a job like they have a right to get paid, but no corresponding duty to earn 38 that pay. Bubba was like that. Always telling Gayle/Gail how things should be done, but never 39 really doing any real work herself/himself. I was after Gayle/Gail to fire the slacker for months 40 before Bubba got caught with his/her hand in the till. Bubba finally screwed up so bad that 41 Gayle/Gail didn’t have a choice and had to let Bubba go. 42 Bubba is lying when s/he accused Gayle/Gail of mismanaging the business. Gayle/Gail did 43 really well in his/her business classes at Meadowlark. If Gayle/Gail ever did have financial 44 trouble s/he knew that all that s/he had to do was ask me. Between me and my family, we 45 would have given Gayle/Gail all the money that s/he would need. 46 It is also a lie that Gayle/Gail burned down the lawn ornament business. I was with Gayle/Gail 47 that night. There is no way that s/he could have set that fire. 48 Personally, I believe that it was Bobby “Bubba” Ganoush that torched the factory to get revenge 49 against Gayle/Gail. Everyone knows that Bubba had bad blood towards Gayle/Gail and that 50 he even threatened to burn the lawn ornament factory down.

WITNESS ADDENDUM

I have reviewed this statement and I have nothing of significance to add. The material facts are true and correct.

Signed,

SIGNED AND SWORN to before me at 8:00 a.m. on this day of this round of the 2015-2016 Kansas State High School Mock Trial Competition.

______Stephanie Egger Nelson, Notary Public My Commission Expires: December 31, 2014 xxxxxxxxxxx xxxxxxxxxxx xxx xxx

IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS

State of Kansas CR 15-1163 Prosecution ) ) vs. ) Gayle/Gail Gardener ) Honorable Tom Calkins Defendant. ) Presiding Judge )

Witness Statement of Shannon Stark

1 My name is Shannon Stark. I worked at Gardener’s Garden Gnomes until it burned on July 3, 2 2013. I still can’t get over what happened. Now I’m working in the outdoor section at Green’s 3 Home Improvement out on the highway; you know, big box store and all. Every once in a while I 4 even help someone find the lawn ornaments at Green’s and they pick out one of the last gnomes 5 we shipped out before the fire. It’s kind of an eerie feeling given what happened and all.

6 I grew up in Goldenrod with my mother, older sister and younger brother. I graduated from 7 Goldenrod High School in 2005. People told me I should keep going in school – my Mom, my 8 baseball/softball coach, my great-uncle Leonard. You know, pretty much everyone said, “You 9 should go now, or you might never go.” On top of that, I was a pretty good defensive catcher 10 and hitter – batted .355 my senior year – and a couple smaller colleges offered me a little 11 scholarship money to come and play ball.

12 But -- stupid me – I knew it all, and working and making money seemed better at the time. I 13 could go to school later, right? I got this job right after graduation as a window washer – 14 commercial buildings and high-end residential homes. Making pretty good money. Played a lot 15 of slow pitch softball in the evenings and tournaments on the weekends. It was a pretty fun time.

16 Then, sure enough, one day I stepped wrong on a wobbly plank of scaffolding while I was 17 cleaning a second-story bay window. It was out in that really nice Fairvale neighborhood – you 18 know, by that golf course. Bam! Fell fifteen feet and came down on my left side on some rock 19 landscaping in the yard. Shattered the tibia and fibula in my left leg – took two plates and like 20 ten screws to put it all back together. Messed up my lower back pretty good for a while too.

21 Then I find out the guy who ran the window washing company didn’t have work comp coverage 22 and claimed I was an “independent contractor.” And I didn’t have health insurance – who needed 23 it when you were twenty years old and healthy? I talked to this lawyer about suing the owner, 24 but the owner up and declared bankruptcy a few months later so there wasn’t anything to get.

25 So then I’ve got about forty grand in medical bills I can’t pay, no job, and a messed up leg. Been 26 paying off those bills ever since. Some of the offices have been good about writing some of the 27 balances off. Others haven’t, and my credit report is pretty much junk at this point.

28 The good news is that my great-uncle Leonard had this old silver Airstream trailer parked behind 29 his house and has let me live there to save money. So my address is 2222 N. 34th Street in 30 Goldenrod. It works out okay – my great-aunt died a long time ago, and Leonard can use a

31 hand with some chores around the house. So I mow the yard, clear the snow, and check on 32 Leonard, and he only charges me $100 per month rent for the trailer. Oh, and there’s a 33 bathroom and shower in the basement of the house that I use, in case you were wondering about 34 that.

35 Plus, being around Leonard reminds me not to feel too sorry for myself. He was in the Navy in 36 World War II and saw combat in the Pacific theater. He still has shrapnel in his right side and 37 shoulder from a Japanese kamikaze attack on his destroyer, and he can’t hear out of his right 38 ear. But he’s the most easy-going and generous guy you’d ever want to meet. His war injuries 39 didn’t stop him from working forty years as a delivery driver for a local dairy company. So how 40 can I complain about my stiff leg and a few bills?

41 I did have some other good luck when I got a job at Gardener’s Garden Gnomes in 2008. I was 42 still really gimpy from my accident, and probably wouldn’t have hired myself. But Mr./Ms. 43 Gardener interviewed me and said if I thought I could handle being on my feet for eight hours, I 44 had a job there. Gardener isn’t perfect. I mean, everyone has heard the stories about gambling 45 problems, and the place isn’t run perfectly by any stretch. But not everyone would have given me 46 that job. So I’ll always be thankful for that. I made decent money – enough to start paying off 47 my debts. And there were benefits including decent health insurance.

48 I made it through the first half-year on the production line with my left leg killing me, and icing it 49 at night with a bag of frozen peas. My leg got to feeling better after a while -- now it really 50 only hurts bad when the weather changes. In 2009, they switched me to the warehouse and I 51 guess I did okay, because in 2010, I was promoted to warehouse supervisor. That basically 52 meant getting product off the line, packaging it, loading trucks, and storing inventory in the 53 warehouse. I’m pretty good driving a forklift, got down the inventory system, and we had it all 54 running pretty smoothly. For a while I supervised two other full-time workers and one part-time 55 college student.

56 In 2010, Bobby “Bubba” Ganoush was hired on the production line, and then sometime in 2012, 57 he became production leader for the gnome line. So we’d talk quite a bit every day. Bubba is 58 smart. But … I don’t know … just really different. Bubba’s eyes were like a caged animal, 59 pacing back and forth. It’s hard to put your finger on, but you never quite felt relaxed around 60 him.

61 Bubba seemed to know quite a bit about the processes for making product – the resin, the 62 chemicals, the ovens, the painting, all that – I guess because he had studied chemistry at 63 Goldenrod Community College. But he always seemed to have a grudge against somebody or 64 something.

65 I stopped eating lunch with Bubba because there was always some story about some old 66 significant other who had been disloyal, or some friend who turned on him, and how that person 67 would get theirs someday. To tell you the truth, it was a little disturbing. So I started eating my 68 PB & J in my truck to avoid Bubba.

69 And Bubba had this crazy anger. Out of nowhere, and over little stuff. One time I borrowed 70 Bubba’s tape measure because I had lost mine. Well, I forgot all about it and didn’t give it back 71 that same day. The next morning I walk in the door and Bubba comes across the warehouse floor, 72 right up to me all shaking and red-faced, and asks me what I’m planning to steal today. I didn’t

73 even get it for like a minute. Then Bubba finally says, “You stole my tape.” I’m like, “Whoa! 74 Take it easy – honest mistake,” and all that, got it from my desk and gave it back. Bubba starts 75 to walk off, looks back at me with this squint and says: “Don’t ever cross me again.”

76 The person Bubba really didn’t like was Gardener. I mean constantly complaining about no 77 raises, and having been promised some kind of profit-sharing plan, and Gardener gambling 78 away the money that should have gone to raises for us.

79 I remember we stood there one day, looking out the warehouse door, at this big long black 80 Caddy (Cadillac) parked in the lot. Gardener was walking away from it, and then it drove off, 81 and Bubba starts laughing. Kind of a sarcastic laugh, and says: “No raise for you this year, Stark 82 – boss had to pay up.” I saw the driver of the Caddy and recognized Marion D’Amico who I 83 don’t know personally but have seen around town and heard people talk about.

84 Yeah, it’s true--business was slipping by the second half of 2011. I knew it because we just 85 weren’t shipping as much product. In 2012 it got worse – we shipped about 30% less than we 86 had in 2011. 2013 was shaping up worse yet – down another 12% or so compared to 2012. A 87 couple production workers were laid off and not replaced in early 2013. By April 2013 one of 88 my warehouse workers was let go.

89 And yeah, Gardener looked pretty frazzled walking around the office and warehouse – kind of 90 haunted, you know. I saw that same Cadillac in the parking lot a couple more times in the month 91 or so before the fire. Speaking of vehicles, one way you could tell things were kind of down was 92 Gardener seemed to be skipping spending money on personal things to help the business. S/he 93 drove this nice Suburban, but it sounded awful those last few months because the muffler was 94 shot.

95 Bubba became even more of a spook as business got worse. Now it was this bizarre ranting 96 about Gardener and how the business was being run into the ground. Bubba talked about 97 Gardener being a fool who should have a cap with bells and who should dance for us. Bubba 98 called Gardener a thief, a maggot. And that was the nice stuff. I didn’t get it – if you just can’t 99 get along at a job, you quit.

100 One thing I remember as clearly as if it was five minutes ago. It was probably in mid-June, a few 101 weeks before the fire. I was walking through the production area and Gardener was talking to 102 Bubba. Then I guess they were done and Gardener turned away from Bubba to walk back to the 103 office. Bubba just stands there, then makes this slow hand motion, pulling his index finger across 104 his throat -- like a knife -- and smirked. Looking at Gardener the whole time. It was flat out 105 chilling. Guess I should have known then something was seriously wrong.

106 Then came that Monday morning, July 1. I was just finishing some paperwork near the loading 107 dock door and was on my way to the production area when I saw Gardener and Bubba standing 108 near Bubba’s work station.

109 It looked like Gardener was saying something. Gardener looked calm. Then Bubba slams his 110 clipboard down on the floor and it splinters in half. Then Bubba pulls off his work gloves, throws 111 them about three feet over Gardener’s head at a pretty high velocity, points right at Gardener 112 and yells in this trembling voice: “This place is going down in flames! And it is all on you!!”

113 Then Bubba turns and walks toward the door, with Gardener following and trying to still talk. I’m 114 pretty sure those were Bubba’s exact words, but I can’t be positive.

115 I stepped aside to let Bubba past, but I don’t think he even saw me. He was shaking and smirking 116 and staring through me, through the wall, through who knows what. Never seen that kind of look 117 before, and hope I never do again. I heard Bubba’s old Dodge Dart start up in the lot and tear 118 off. That car always ran a little rough and loud, but this time it was even louder than usual and 119 the tires squealed.

120 Bubba never came back. Never came back to turn in the keys that all supervisors have. We all 121 had keys to the main outside door and the office doors. I was actually in charge of keeping track 122 of keys and getting new ones cut as part of my warehouse management duties. If Bubba had 123 brought them back they would have come straight to me. Exhibit #9 is a copy of the log sheet I 124 kept for checking keys in and out to people; I have reviewed it and it is a true and correct copy 125 of the original sheet.

126 What happened over the next couple days I can’t tell you, and don’t really like to think about. 127 We ran product, packaged it, shipped it, on July 1, 2 and 3 just like normal. On the evening of 128 the third I closed the big loading dock door, shut off the warehouse lights, left the office lights on 129 for Cliff in case he showed up to clean before the holiday, locked the main door and a few of us 130 left the building together.

131 Later that night I was sitting in the driveway with a few neighbors, having a cold pop and 132 watching fireworks over the rooftops and treetops. Then my phone rang and a co-worker told me 133 what happened. I knew Cliff and liked him a lot. He worked hard and he treated everyone the 134 way you’d want to be treated yourself. Had a good sense of humor too. I just can’t believe 135 Gardener would ever do anything to put Cliff in danger like that.

WITNESS ADDENDUM

I have reviewed this statement and I have nothing of significance to add. The material facts are true and correct.

Signed,

SIGNED AND SWORN to before me at 8:00 a.m. on this day of this round of the 2015-2016 Kansas State High School Mock Trial Competition.

______Stephanie Egger Nelson, Notary Public My Commission Expires: December 31, 2014 xxxxxxxxxxx xxxxxxxxxxx xxx xxx

Exhibit #1

Fire Report prepared by Fire Investigator Ashley Empyrean Synopsis: This report shall concern itself with an Industrial Occupancy fire that occurred on Wednesday, 3 July 2013 at approximately 2300 hours at 3150 West Bond Drive. In my expert opinion, to a reasonable degree of certainty consistent with the standards and as a member of the National Fire Protection Association, the fire was incendiary. The investigation revealed a fire in the middle of the manufacturing floor of the industrial occupancy. All accidental sources in the area were ruled out as potential ignition sources. In the area of origin I recognized the distinct odor of a volatile liquid (accelerant), saw a metal flammable liquid container, and the remains of some office files. I observed considerable damage in the middle of the structure. A sample was taken to confirm the volatile liquid present in the fire debris. One employee, a janitor, was transported to the Goldenrod Regional Trauma Center due to injuries from the products of combustion and later died. The janitor was able to give information prior to being intubated by Alex Firma. Due to eyewitness testimony, the incendiary nature of the fire, and actions that occurred prior to the fire, I arrested Gayle/Gail Gardener, the business owner, who will be charged with first degree arson and first degree felony murder, assuming the prosecutor reads this report. The value of the structure is estimated at $1,750,000. Damage to the structure is estimated to be $650,000. The value of the contents is estimated to be $3,500,000. Damage to the contents is estimated at $1,200,000. Persons and Places in this Report: Details of the Investigation: On Wednesday, 3 July 2013 at 2310 hours the reporting officer was notified by fire dispatch of a working fire and that an investigator was needed at 3150 West Bond Drive, scene of a structure fire. I arrived at 3150 West Bond Drive at 2322 hours and observed the damage to the structure. The fire attack was in the salvage & overhaul mode, with crews maintaining control of the scene, stating that no occupants or bystanders have entered the structure after the fire was extinguished. On location were E21, E22, E24, T21, B1, B2, M21, M24, R30, R33, and the investigator, FC15. I first spoke with the incident commander about the circumstances of the fire. He informed me that: § Upon arrival, crews had heavy black smoke coming from the front entrance and the loading dock areas of the structure. § A former EMT/passerby with some limited firefighting experience was encountered on the scene, to the side of the building. This person had entered the building, found the janitor, removed the janitor from the building, rendered first aid and performed a primitive tracheotomy in an attempt to open the airway and improve the breathing of the janitor. § Care for the janitor was turned over to a Fire Department paramedic who ordered him transported immediately to the trauma center. § Crews made an offensive attack through the loading dock door and were confronted by heavy fire in the middle of the manufacturing floor. § Crews were able to contain the fire in the area of origin; once the fire was out firefighting crews maintained custody of the scene and awaited my arrival.

I made a quick pre-inspection of the structure, noting no fire damage on the exterior, heavy fire damage on the manufacturing floor in one particular area, heat and smoke throughout the manufacturing floor. I noticed disruption in the office area but minimal heat or smoke damage. All debris and evidence was left in place until I arrived on scene due to the injured janitor and the likely incendiary nature of the fire. Structural stability was good and I could safely and efficiently process the scene. While a police detective was summoned to the scene, since I was already on the scene, I took command of the investigation. Patrol officers maintained control of the structure until my investigation was complete. I interviewed the following persons: First in companies, E21 and T21: § Confirmed what the Incident Commander related to me concerning heavy smoke coming from the door on the side of the structure. § A victim was found on the inside and then removed by Alex Firma. § Firefighting crews completed extinguishing the fire. § Victim was given to M24 crews who immediately transported the victim to the trauma center for treatment. Alex Firma: § I made contact with Alex Firma, who reported the fire to 911 dispatchers at 2300 hours. § Alex Firma admitted to disturbing the scene while removing the janitor from the building. § Alex Firma admitted to eliminating any chance that I might have tried to interview the janitor by doing an emergency tracheotomy at the scene. § Alex Firma reported that the janitor made a dying declaration implicating the owner of being at the scene when the fire started. § Alex Firma claimed to have been a certified paramedic with substantial combat experience. S/He also admitted that her/his certification is presently expired. § Alex Firma had a slight odor of alcohol about her/his person. § I gathered contact and personal information from Alex Firma for future questioning.

Business Owner, Gayle/Gail Gardener: § The business owner, Gayle/Gail Gardener, was on the scene when I arrived. As part of my investigation, I interviewed Gardener. Because s/he was not in custody, I did not provide Miranda warnings. § Gardener stated s/he is the owner of the structure and related her/his contact and personal information. § It is a family business, for 50 years, inheriting it from parents approximately 20 years ago. § There are 10 to 20 full and part time employees who work at the current business location. § Hours of business are from 0800 to 1700 hours and then a night janitor comes in and cleans up at about 2100 hours and works till 2300 to 0100 hours. § I asked questions about the business, such as whether it is doing well, which s/he hesitated and stated that s/he is a little behind on some bills, s/he owes money to vendors who supply the materials for her/his product. S/He is about 6 months behind but is going to catch up. § Gardener gave detailed information of the various vendors s/he owes money to along with contact numbers. § S/He has full coverage insurance for the structure and specific manufacturing equipment inside the structure.

§ Gardener claimed that the last time s/he was at the structure was around 1700 hours, when the manufacturing process shut down. § Gardener drives a 2013 grey Suburban as her/his primary vehicle. § I asked if Gardener has had any recent trouble with any employees, which s/he stated yes. § Gardener went into detail about a problem employee that was terminated on Monday, July 1, 2013, due to a personnel issue as well as downsizing. The employee made a threat about ruining the business. This confrontation took place at around 1700 hours, closing time. Gardener has not seen this employee since that night. § I asked about any other possible employees or people that the owner may have had issues with that resulted in a possible fire, which s/he stated there were no others that came to mind. § I asked if Gardener had anything to do with the fire, which s/he raised her/his voice and stated “absolutely not!” § It should be noted that when I first had contact with Gardener, s/he had a slight odor of kerosene about her/his person. When I asked about this odor, Gardener claimed that s/he has been grilling earlier at home. § And Gardener appeared to have wet hair. I specifically asked Gardener if s/he had recently showered. S/He paused and then nodded her/his head. When I asked why, s/he just shrugged his/her shoulders. § At this time I told Gardener that investigators would be processing the scene and at this time no entry would be allowed until it was completely documented.

On Thursday, 4 July 2013, 0015 hours, a Goldenrod Police Department detective arrived on scene and as previously reported, deferred to my investigation. The investigator offered to go to the trauma center to check on the janitor. I agreed and the detective went to the hospital to interview the victim and medical personnel. There were no other witnesses at the fire scene for me to interview so the documentation of the fire scene was started. Area of Fire: 3150 West Bond Drive is a single story, heavy timber construction, industrial type occupancy. The structure is located on the east side of Main street with the “A” side of the structure facing west onto main street. I used the methodology of exterior to interior examination. Documenting from least to most damage. Exterior Examination: I documented the exterior of the structure noting the following: “A” Side of the Structure (West): § Noted the front entrance where firefighters gained access into the structure. § Firefighters noted the structure was secure, having to force open a heavy metal door. § Noted soot staining on the exterior parts of the door. § The gas meter was noted on the front side, was intact and supplying natural gas into the structure during the time of the fire. § No other fire damage was noted.

“B” Side of the Structure (North): § No fire damage noted. § Electrical service entered the building from this side and was active during the fire. § There are no windows, openings or access into building on side B.

“C” Side of the Structure (East): § No fire damage noted. § Fence along the C side was approximately 3 to 4 feet from the building. § There are no windows or openings on the C side. § Noted no other paths of travel or access into the building.

“D” side of the Structure (South): § No fire damage although there was heavy soot on the overhead garage door. § There was a pickup truck parked facing west in the parking area adjacent to the loading dock. Witnesses explained that this pickup truck belonged to the janitor. § Overhead garage door was in the up position, probably opened by firefighters to remove heat and smoke from inside the structure when the fire was extinguished. Firefighters noted the overhead garage door was slightly open upon arrival and that thick black smoke was coming from this location.

Interior examination: The occupancy was divided into two parts, an office area on the west end of the building and a manufacturing area on the east end. See diagram for further details. I documented the interior of the structure, noting the following: Office Area: § Slight smoke and heat damage in each office, noting that the doors were open during the time of the fire. § All three doors leading into individual offices had been forced open. Fire crews stated that they did not force open any of the office doors and that they were open when they arrived on scene. § In each office, file drawers were open and files missing as well as files lying on the floor as if they were dropped or thrown on the floor. § On some of the manila colored files, there were footprints, some matching firefighter boots, but there was one distinct shoe pattern that needed to be verified on some of the folders. That shoe print was documented in place, marked as evidence and removed as possible evidence for verification. § I noticed that personnel files had been disturbed. I noticed that many business folders had been disturbed. However, the file cabinet containing insurance information did not appear to have been disturbed. § All offices were documented as to their current condition when firefighters arrived on scene. Manufacturing area: § The manufacturing floor made up 85% of the building space, with machines, manufacturing products, supplies stored on the various walls and a flammable materials storage area located near the overhead garage door area and loading dock. I noted a shipping/packaging area adjacent to the loading dock. 26

§ There was heat and smoke damage throughout, with the heaviest fire damage between the office area and machinery area. § The structure was of heavy timber building components, which were not significantly affected by the fire in the middle of the manufacturing floor, but wood beams in close proximity did sustain slight charring of the wood. § The equipment on the manufacturing floor sustained soot and smoke damage, with the machinery in close proximity to the fire origin noting melting of wiring, oxidation of metal components, and ignition of combustible products in the area. § The area of focus was a debris pile found between the offices and manufacturing area of the occupancy. § Heavy black smoke originated in the area of ignition and was the product of the combustion of manufacturing products such as oils and paints. § The structure had a fire suppression system, consisting of sprinkler heads and water pipes linked to the external water source. However this system was shut off with the valve head being set in the closed or off position. Accordingly, no water was deployed through this system during the fire. § I observed the odor of a possible accelerant. § I observed paper and office files had been ransacked and moved into the manufacturing area. I observed the residue of these materials located at the area of origin for the fire. § I observed a can, which may have contained an accelerant near the origin of the fire. § The manufacturing process itself uses resins which are themselves flammable and subject to incineration if their ignition temperature is reached.

Area of Origin Note lowest burn Look for more than one low burn Note heaviest damage / other burn patterns Determine true low burn (by ignition / heat source) Rule out your accidentals (electrical and etc.) Point of Origin Determine Ignition Source Find ignition source Eliminate other ignition sources Determine Fuel First Material Ignited Reason for fire/act that brought ignition source and fuel together. Conclusion: It is my Conclusive opinion, based on the information available at the time of this report that the incident that occurred at 3150 West Bond Drive on Wednesday, 3 July 2013 to be Incendiary at this time due to the following facts.

• Accidental or environmental causes ruled out. • Motive for deliberate ignition identified • Presence of possible accelerant • Fuel moved to location of fire • Time of fire End of Report

Signed by:______Date:______27

Exhibit #2

Exhibit #3

ME-15-321 AUTOPSY PERFORMED AT:

Stanley, Cliff Shawnee County Morgue DOB: 5-30-70 AUTOPSY AUTHORIZED BY: ( 44) Male Joe Justice Shawnee County Attorney Goldenrod, KS TIME OF AUTOPSY: 12:00 noon 07-05-15 PROSECTOR: Kim Irish, M.D.

GROSS ANATOMIC DIAGNOSES: Third degree burns and charring of the extremities, back and head; involving approximately 40% of the total body surface area. Soot deposition identified in the trachea, larynx and main stem bronchi.

SUMMARY: The cause of death in this 44-year old male is carbon monoxide and soot inhalation, resulting in carbon monoxide toxicity, with a postmortem level greater than 75%. Please refer to the attached copy of the Husker Toxicology Laboratory’s forensic toxicology report.

______Kim Irish, M.D.

Husker

Husker Toxicology Laboratories TOXICOLOGY LABORATORIES 548 Maple Lane Suite 650 Goldenrod, Kansas 68000 phone; 308- 333-3333 website: www.huskerlabs.com

FORENSIC TOXICOLOGY REPORT

AUTOPSY#: ME 15-321

NAME: Stanley, Cliff

DATE RECEIVED: 07/08/2013

SPECIMEN RECEIVED: blood, vitreous humor

DOCTOR: Irish

COUNTY: Shawnee

CARBOXYHEMOGLOBIN: Greater than 75 %

Note: The carboxyhemoglobin analysis was performed at Husker Toxicology Laboratories.

BLOOD ETHANOL LEVEL: Less than 0.010 g/100 mL

DRUG TESTING RESULTS:

The blood immunoassay screen was negative for the following drugs/drug classes:

Amphetamtnes Cannabinoids Cocaine metabolite Phencyclidine Propoxyphene Benzodiazepines Methadone Barbiturates Opiates

Date 7-14-15

______Joyce Smartee, Ph.D, DABCC Director of Toxicology

ME-15-321 GROSS

EXTERNAL EXAMINATION: The body is received in a black body bag with the zipper sealed with a red plastic zip tie lock with the number "000787" and "State Fire Marshall Lock" imprinted on it. There is a yellow Shawnee County Morgue identification tag with the name "Cliff Stanley" and other identifying information printed on it. The body is that of an adult male that has undergone burning and charring. The body is clothed in a green collared shirt with a Garden Gnome factory patch on the front and a pair of blue denim pants. There are some other partially burned clothes in the bag with the body, but not on the body. The hair appears to be soot-stained, but dark brown, straight and measures up to 2 inches in length. Third degree burns and charring of the extremities, back and head; involving approximately 40% of the total body surface area. Soot deposition identified in the trachea, larynx and main stem bronchi. The body is contorted by both the fire (heat contractions) and by rigor mortis. The body measures approximately 72 inches in length and weighs an estimated 225 pounds.

THORACIC CAVITY: The chest plate is removed. There is no significant soft tissue or bone trauma. The musculature of the chest wall is bright pink. The heart and lungs are in the normal anatomic locations. There is no significant fluid in either thoracic cavity or the pericardial sac. The lungs are reddish-pink and have well aerated cut surfaces.

The major airways of the right and left lungs have obvious soot deposition. The coronary arteries have no atherosclerosis or narrowing. The myocardium is firm and red-brown, without focal lesions. The cardiac valves are unremarkable.

NECK: The neck shows evidence of a tracheotomy done prior to death. The neck is dissected and the epiglottis, larynx, trachea, thyroid cartilage and thyroid gland are removed. The hyoid bone is palpated in place and is intact. The upper airways are opened and are soot-stained.

SPECIMENS SAVED/ADDITIONAL STUDIES: 49 mL of heart blood, 3 mL of vitreous humor are obtained. A blood alcohol, drug screen and carbon monoxide testing will be performed.

ADDITIONAL AUTOPSY NOTES: Representatives of the State Fire Marshall were present for the autopsy and took photographs of the autopsy. X-rays were taken and are unremarkable. Medical records are not available at the time of autopsy.

CLINICAL HISTORY: The deceased was apparently in the Gardener Garden Gnome factory when a fire started. The deceased was removed from the building by a bystander and transported to the hospital where he died, according to hospital records at 0012 hours on July 4, 2013.

Exhibit #4

Exhibit #5

Marion D’Amico c/o Lionel Hutz

Attorney at Law Goldenrod, KS

June 5, 2014

Dear Mr./Ms. D’Amico:

Based upon your representations that: (1) You are willing to cooperate with the state government in the prosecution of the case of State of Kansas v. Gayle/Gail Gardener, and (2) The representations you made to law enforcement agents are true to the best of your knowledge, the Office of the County Attorney will enter into an agreement with you on the following conditions:

1. You shall truthfully disclose all information regarding your activities and those of others in all matters about which the offices of the County Attorney, the Goldenrod Police Department, State Fire Marshall, or other law enforcement agencies inquire of you relating to the events surrounding the investigations conducted by the Department regarding forgeries and other frauds occurring in Shawnee County, Kansas. Further, you shall truthfully testify, if subpoenaed at any trial or other court proceedings regarding any matters about which the County Attorney's Office may request your testimony. You must answer all questions concerning this case and must not withhold any information. You must neither attempt to protect any person or entity through false information or omission, or falsely implicate any person or entity. You must furnish any documents in your custody or possession or under your control that are relevant to the investigation. You must also make yourself available for interview by attorneys and law enforcement officers of the State of Kansas upon request and reasonable notice.

2. If subpoenaed, you shall, at all times, give complete, truthful, and accurate information and testimony. Should it be judged by the County Attorney's Office, in its sole discretion, that you have given false, incomplete, or misleading testimony or information or have otherwise violated any provision of this agreement, you shall thereafter be subject to prosecution for any state or federal criminal 36 violation of which either office has knowledge, including, but not limited to, perjury and obstruction of justice. Any such prosecutions may be premised upon any information, statements, or testimony provided by you and such information deduced and derived there from. You expressly waive your objection to the use of any such statements, testimony or information to which you may otherwise be entitled to object in any federal or state prosecution now or at any time in the future.

3. You shall not violate any local, state or federal law during the pendency of this agreement. Any law violation, with the exception of speeding or parking tickets, committed by you will constitute a breach of this agreement and may result in the revocation of the entire agreement or any of its terms. You or your attorney shall notify the County Attorney’s Office within 48 hours if you are questioned, charged, or convicted for any law violation.

4. This agreement is limited to the Office of the County Attorney, and cannot bind any other federal, state or local prosecuting authorities although your cooperation will be brought to the attention of other prosecuting authorities or any sentencing judge if so requested.

5. In exchange for your cooperation as set forth in the above-numbered paragraphs, the State agrees not to file further charges relating to the forgeries and frauds which the State is investigating as of the date of this agreement.

6. This agreement is limited to those statements and acts of criminal conduct committed by you and known of by the County Attorney's Office as of the date of this agreement and does not limit in any way the right or ability of the County Attorney's Office to investigate or prosecute crimes occurring outside the scope of this agreement.

7. No promises, agreements, or conditions have been entered into other than those set forth in this letter and none will be entered into unless in writing and signed by all parties.

8. This agreement will become effective upon your signing of this letter agreement thereby stating your agreement to all terms and conditions therein. This agreement may be withdrawn at any time prior to acceptance by you. Acceptance is deemed to occur when this document has been signed by you and your attorney and has been received by the County Attorney’s Office. If this agreement has not been received back from you properly executed by July 1, 2014, this proposed plea agreement is automatically withdrawn.

9. Marion D’Amico and his/her Counsel hereby agree not to disclose, directly or indirectly, the negotiations for nor the terms of this agreement to any other person until Marion D’Amico has testified in open court, without the written consent of the County Attorney. The County Attorney's Office may disclose this agreement and anything which witness says as it sees fit.

______Date Marion D’Amico, Defendant

______Date Lionel Hutz, Defense Counsel

______Date Joe Justice, Shawnee County Attorney

Exhibit #6

Exhibit #7

Exhibit #8

Exhibit #9