Documents released to the Daily Gazette by the Schoharie County Court Friday show federal officials accuse Schoharie County District Attorney Susan Mallery of attempting to deceive them and the court, and ignoring court instructions, in a bid to obtain a supplemental search warrant to secretly remove the transmission and torque converter inside the limousine from the Oct. 6 crash that killed 20 people.
A series of letters between the National Transportation Safety Board, Schoharie County Court Judge George Bartlett and Mallery dated between Dec. 19 and Jan. 7 show the two agencies at odds over the fate of the vehicle.
NTSB general counsel Kathleen Silbaugh in a Jan. 7 letter states that Mallery has not allowed her agency to access any part of the vehicle since Oct. 12, and even then only from 15 feet away, which she asserts is a "level of obstruction" that is highly unusual and "deeply concerning."
The NTSB is the federal agency tasked with determining the probable cause of a major traffic accident and issue safety recommendations. The Oct. 6 crash occurred at the intersection of Routes 30 and 30A in Schoharie. The limousine, operated by Prestige Limousine of Wilton, was carrying 17 passengers when it went through the Route 30 stop sign, through a parking lot and into a ravine, killing all aboard as well as the driver. Two pedestrians in the parking lot of the Apple Barrel Country Store were also killed.
The operator of the limousine company, Nauman Hussain of Cohoes, has been charged by state police with one count of criminally negligent homicide. The case is being prosecuted by Mallery's office, which has asserted the search warrant granted to investigate the vehicle does not permit the NTSB to inspect it -- a claim Bartlett disputed in a Jan. 9 letter to Mallery and the NTSB.
"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," Bartlett states in the letter. "That being said, the court now knows otherwise."
Silbaugh states in her Jan. 7 letter that the NTSB was not made aware of the details of Mallery's request for a supplemental search warrant to remove the transmission and torque converter until discussing the request with Schoharie Court Clerk F. Christian Spies on Jan. 4. She said Mallery never informed her office that Bartlett had received the supplemental warrant request on December 24.
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Bartlett in his letter states that he received the request from Mallery on the afternoon of Dec. 24 "in camera," which means a secret request in the judge's chambers. Bartlett said he then deferred the request instructing Mallery to notify the NTSB of the application by Dec. 28 and offer the NTSB an opportunity to comment on the search warrant by no later than Jan. 7.
"None of this information was conveyed to the NTSB by District Attorney Mallery," Silbaugh wrote. "District Attorney Mallery did not mention a supplemental search warrant to the NTSB until a brief telephone conversation on Dec. 31, 2018. During that call, no mention was made of the transmission or torque converter on the crash vehicle. Indeed, the NTSB was under the impression that the supplemental search warrant was being sought for the purpose of adding NTSB investigators to the list of persons and entities authorized to examine the crash vehicle."
Bartlett's Jan. 9 letter indicates that after Spies informed the NTSB of Mallery's request to remove the transmission and torque converter "after business hours on Jan. 4" the court received, by fax, a letter from Mallery asking the court to sign the supplemental search warrant application to remove the transmission and torque converter and transport them to expert Brian Chase, "as soon as possible as the New York State Police would like to schedule the limousine's transmission and torque converter removal for Monday, Jan. 7, 2019."
The court provided the Daily Gazette with a copy of Mallery's Jan. 4 letter. In the letter Mallery states she had received "oral consent" from "Robert J. Molloy, Ph.D., Director of the NTSB" and that she anticipates "Mr. Molloy sending an email."
The court provided no email from Molloy.
Bartlett in his letter states the NTSB told Spies on Jan. 4 that it had not received a notice of a search warrant.
"On Jan. 7, 2019, the Court received an affidavit of service from the District Attorney's office, indicating that on Dec. 31, 2018, it served a 'Proposed Supplemental Sealed Search Warrant, an application for a Sealed Supplemental Search Warrant, along with cover letter dated Dec. 31, 2018," wrote Bartlett. "The cover letter, however, does not state the fact that the Court requested a response on or before Jan. 7, 2019. The letter did represent that the District Attorney had a telephone conversation with Robert J. Molloy, Director of the NTSB, in which he did not object to the Court's issuance of the supplemental search warrant as requested."
Silbaugh blasted Mallery's assertion that Molloy had not objected to the search warrant.
"Again, the NTSB had not objected to the supplemental search warrant during the telephone call because we were not told about the specific content of the supplemental search warrant. Had we known the true content of the application, we would have objected," she wrote.
Silbaugh asserts Molloy clarified his statements to Mallery before her Jan. 4 application for the sealed supplemental search warrant, but was ignored.
"Molloy replied to District Attorney Mallery, clarifying that the NTSB was still working on its formal response, and reiterating the need for NTSB investigators to have access to the vehicle. Despite this clarification from the NTSB, District Attorney Mallery did not amend her assertions to the Court," wrote Silbaugh.
Silbaugh told Bartlett the NTSB wants to be involved in any removal of parts from the limousine.
"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 and actively participating in the removal, disassembly and inspection of the relevant parts of the vehicle," wrote Silbaugh. "If the NTSB were excluded from such activities, that would be the second time major work was performed on the crash vehicle while federal investigators were denied access."
Silbaugh argued in her letter that federal law grants the NTSB authority to examine crash evidence even without a warrant, but asked that they be included in the supplemental warrant to expedite access to the crash vehicle.
"Elected representatives, and likely the traveling public, believe that the NTSB has been given necessary access to fully investigate this crash. On Jan. 4, 2019, WTEN in Albany quoted New York State Assemblyman Chris Tague and Rep. Antonio Delgado who both cited the importance of the NTSB's investigation in urging an end to the partial federal government shutdown. While the partial government shutdown does impact NTSB operations, in this instance, District Attorney Mallery's refusal to grant access to the crash vehicle is having the greatest impact on the NTSB investigation," wrote Silbaugh.
In a Dec. 19 letter from Mallery to Silbaugh the district attorney denies assertions made by Silbaugh in a Dec. 14 letter that stated the NTSB has been denied access to the vehicle.
"Your team of Investigators has done a thorough examination of the facts underlying the incident referred to above. Contrary to your letter, I made no demands on your agency, nor have I hindered your investigation. In fact, the court directed the New York State Police, pursuant to a signed search warrant, to secure the evidence in this case. Despite your claims, your investigators have been given at least three lengthy opportunities to view the limousine, and have been in repeated contact with the New York State Police about this matter," wrote Mallery.
Silbaugh calls Mallery's statements a "mischaracterization" of the facts, reiterating that her agency was allowed no closer than 15 feet from the vehicle, that "several items were removed from the vehicle for further examination, but those items have not been identified to the NTSB."
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Silbaugh also states that Mallery has asserted that the NTSB "taking measurements and photographs" could damage the evidence in the vehicle, but has not provided a response to her explaining how.
Bartlett's Jan. 9 letter confirms many of the statements in Silbaugh's letter, and grants her request for application to be included in the supplemental search warrant.
"I am reluctant to interject the Court into this matter and agree with the NTSB that its work does not require Court permission on 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," Bartlett wrote. "For whatever reason, this coordination is not occurring here and perhaps, Court involvement will be of assistance, particularly where, as here, time is of the essence."
In a printed copy of a Dec. 31 letter via email to NTSB director Robert Molloy, given to the court under Mallery's letterhead and provided by the court to the Daily Gazette, Mallery states the criminal investigation would like expert Brian Chase to evaluate the transmission and torque converter "prior to Jan. 18, 2019, so that the defense, upon application to Judge Bartlett, may commence its forensic evaluation."
That time line appears to have been delayed by Bartlett's Jan. 9 letter.
Opinion: Schoharie County DA's conduct in limo crash investigation is inexcusable, Jan. 15, 2019
"It appears the easiest way to break this impasse is to include the NTSB on the search warrant. This being the case, I request that the NTSB submit suggested language for the Court to insert into the search warrant. Please submit same by Jan. 14, 2019, defense counsel and the District Attorney shall submit any opposition on or before Jan. 16, 2019. Of course, in the interim, I urge the interested parties to use their best efforts to reach an agreement as to the appropriate language that will best accommodate everyone's duties and result in an amicable resolution. Finally, as it appears the NTSB did not receive the proposed search warrant or redacted application, I request the District Attorney send same to Attorney Silbaugh as soon as possible," wrote Bartlett.
At the conclusion of Bartlett's letter is a court order commanding, "As requested by the NTSB, the limousine shall not be moved until the issues presented here are resolved."
Calls to Mallery's office by the Daily Gazette were not responded to Friday, nor any of the other times the newspaper has attempted to contact her for the last three weeks.