Foss: Schoharie County DA’s conduct in limo crash investigation is inexcusable

The top of a stretch limousine that crashed in Schoharie can be seen.
PHOTOGRAPHER:
The top of a stretch limousine that crashed in Schoharie can be seen.

It’s great to hear that National Transportation Safety Board investigators might soon gain access to the limousine involved in the Schoharie County crash that killed 20 people. 

But this doesn’t mean we should excuse or overlook the unnecessary and bizarrely contentious stalemate that has impeded the NTSB’s investigation into the Oct. 6 accident. 

In particular, we should demand an explanation from Schoharie County District Attorney Susan Mallery as to why she has refused to allow NTSB investigators to examine the vehicle. 

The public has a right to know what caused this crash, and the NTSB investigation is a crucial part of determining what happened and how similar crashes might be prevented in the future. 

Unfortunately, the last time NTSB investigators were permitted anywhere near the limo, on Oct. 12, they were forced to view the vehicle from at least 15 feet away. 

In an exasperated letter dated Jan. 7, NTSB general counsel Kathleen Silbaugh describes Mallery’s resistance to the investigators as “a level of obstruction” that is “deeply concerning.”

If you’re wondering why Mallery hasn’t been more cooperative with the NTSB, why she has seemingly gone out of her way to stonewall and antagonize a federal agency, well, your guess is as good as mine. 

One explanation for her behavior, provided by her office, is that the search warrant to investigate the vehicle does not allow the NTSB to inspect it. 

But that explanation went up in smoke late last week when Daily Gazette reporter Jason Subik obtained a series of letters between the National Transportation Safety Board, Schoharie County Court Judge George Bartlett and Mallery. 

In a Jan. 9 letter, Bartlett sounded as baffled as anyone by Mallery’s behavior. 

“Initially, it was never this court’s intention that any of its issued search warrants be construed so as to deny the NTSB access; and until the recent kerfuffle, this court had no reason to believe that the NTSB was not given the access necessary to fulfill its obligations. That being said, the court now knows otherwise.” 

He continues, “I am reluctant to interject the court into this matter and agree with the NTSB that its work does not require a search warrant. Further, the court is surprised that coordination of access between law enforcement, defense counsel and the NTSB is an issue in this case as, I assume, coordination between the various entities is tragically not an infrequent necessity that is routinely resolved without court intervention.” 

The judge’s letter might be polite, but that doesn’t make it any less troubling. 

It’s one thing for journalists and other outside observers to wonder why a district attorney isn’t cooperating with federal investigators when federal investigators would benefit both parties; it’s another thing altogether for a county judge to wonder the same thing, and to question why his search warrant has been interpreted in a way he didn’t intend.

Also troubling is Mallery’s request of a supplemental search warrant, made in secret, to take the transmission and torque out of the limo. 

According to Silbaugh, the NTSB mistakenly believed the search warrant was being sought to add federal investigators to the list of people allowed to examine the vehicle, in large part because Mallery failed to communicate the warrant’s true purpose them. 

“The NTSB categorically opposes the supplemental search warrant if such a search, which would necessarily result in altering and/or destroying physical evidence on the crash vehicle, is conducted without NTSB investigators being present or actively participating in the removal, disassembly and inspection of the relevant parts of the vehicle,” Silbaugh wrote. 

You can’t help but wonder why Mallery is so intent on making things difficult for federal investigators. 

It is vital that the NTSB examines the vehicle before parts are removed and evidence destroyed, but the district attorney’s supplemental search warrant would have allowed exactly that. 

Why? 

Why make it harder for federal investigators to determine what caused the crash? 

It’s a question that doesn’t have a good answer. 

From the outside, Mallery’s behavior doesn’t make any sense. 

But Judge Bartlett is an insider, and he doesn’t seem to think it makes any sense, either. 

He observes that the coordination between federal and local authorities that one might expect in a high-profile crash has not occurred and writes that perhaps “court involvement will be of assistance particularly where, as here, time is of the essence.” 

Time is of the essence, which might be the saddest part of this ridiculous standoff. 

How many weeks and months have been wasted by Mallery’s obstructionism? 

NTSB investigators should have been permitted to examine the limo in October, in the immediate aftermath of the crash.

We’ll be lucky if they work out an agreement to access the vehicle this month. 

It’s a confounding situation, and the only thing that might make it less confounding is an explanation from Mallery. 

District attorneys don’t always like to explain themselves, but they are public officials whose salaries are paid by taxpayers and she owes the public some insight into her thinking.  

Her actions, thus far, appear indefensible, but if there’s a good explanation for them, I’d love to hear it. 

Reach Gazette columnist Sara Foss at [email protected]. Opinions expressed here are her own and not necessarily the newspaper’s. 

Categories: Fulton Montgomery Schoharie, News, Opinion

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