In March 2023, former Eufaula City Councilman Dan Kirby was indicted in federal court for involuntary manslaughter in Indian Country in connection with a motorcycle accident on July 23, 2022 that claimed the life of his girlfriend, 56-yearold Sheryl Bischel.
The accident took place in McIntosh County, but because Kirby is a member of the Muscogee (Creek) Nation the trial must be held in federal court.
A grand jury voted on Feb. 15 to charge the defendant, but the charge was sealed until March 8, the day of Kirby’s arraignment.
According to the Oklahoma Highway Patrol, Kirby was driving a 2003 Harley Davidson on which Bischel was a passenger when the accident occurred shortly before 10 p.m. five miles north of Eufaula on S.H. 150 in Fountainhead State Park.
“(The vehicle) was making a left turn at a T intersection (and) drove wide right, departing the roadway,” the OHP report said.
Bischel was flown to St. Francis Hospital in Tulsa where she died the day after the accident.
Kirby was tried and convicted in on Wednesday, June 28.
That conviction was overturned Tuesday, Dec. 16, by the U.S. Court of Appeals for the Tenth Circuit in Denver, Colorado.
Kirby had been sentenced in federal district court in Muskogee to 41 months’ imprisonment and three years’ supervised release.
According to the appellate court, Kirby wrecked his motorcycle with his girlfriend aboard. She died from her injuries, and the federal government charged Kirby with involuntary manslaughter in Indian Country.
“To determine guilt, the jury had to decide whether Kirby had been driving “under the combined influence” of alcohol and any other intoxicant,” court records stae.
But the jury instruction left the jury guessing about whether Kirby would be “under the . . . influence” solely for having alcohol and any other intoxicant in his body, or whether the intoxicants must have rendered him incapable of safely driving. So, the jury asked the court which interpretation was correct.
“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.
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.
“The district court had a duty to supplement its 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,” according to the court. “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.
“We vacate Kirby’s conviction and remand for further proceedings.”
It is now up to prosecutors in federal court in Muskogee whether to re-file the charge.
