SCHOHARIE COUNTY -- Schoharie County Court Judge George Bartlett issued a court order Friday that states District Attorney Susan Mallery has not yet provided his court with a compelling reason why federal safety investigators should not be granted access to the limousine from the Oct. 6 crash that killed 20 people — but he's going to give her one last chance to do so at a conference he has scheduled for Jan. 29.
In the order, Bartlett requests Mallery bring her independent expert and a New York State Police expert to the conference. He also invited the defense council for Nauman Hussain, the operator of Prestige Limousine charged with negligent homicide in the case, and the National Traffic Safety Board to bring their experts to appear before the court and attempt to explain their respective positions.
“The district attorney argues that NTSB inspections will possibly taint or destroy evidence necessary to a criminal prosecution, but the people have not submitted an affidavit by its expert(s) or investigators detailing how this would happen, or if it could be prevented by employment of safeguards," Bartlett wrote, explaining why technical information from experts is necessary in this dispute.
Although the stated purpose of the conference is for the different sides to agree among themselves on a way forward for the agencies, who've been in a dispute for months over access to the crashed vehicle, the order makes clear Bartlett is prepared, if necessary, to rule definitively on access at the end of the conference.
“Absent an agreement being reached, the court will have to make the decision that will allow access to the people, the defense, and the NTSB that will preserve the integrity of the evidence and maintain the chain of custody by which the public interest will be served," wrote Bartlett.
The crash happened as a stretch limousine carrying the driver and 17 passengers to a birthday celebration went through a stop sign at routes 30 and 30A in Schoharie on Oct. 6, striking and killing two pedestrians in the parking lot of the Apple Barrel Country Store. The limo ended up in a ravine, where the impact killed the passengers. The NTSB is the federal agency tasked with investigating major accidents and issuing safety regulation recommendations. Mallery's office is prosecuting Hussain, who operated the company that owned the limousine.
On Oct. 12 Bartlett issued a search warrant of the vehicle for the purpose of performing a “forensic vehicle autopsy" and authorized the district attorney's expert to participate under the supervision of the New York State Police. NTSB officials have been denied access since then.
In December and early January complaints by NTSB officials that they have been denied access to the limo were released to news organizations. In a Jan. 7 letter to the court, NTSB general counsel Kathleen Silbaugh argued Mallery has put up a "level of obstruction" that is highly unusual and "deeply concerning."
The limousine is currently under a tent, purchased by the NTSB, at Troop G headquarters in Latham. NTSB officials say they have not been allowed closer than 15 feet from the vehicle and not at all since Oct. 12. The NTSB says parts have been removed from the limo without their ability to inspect or identify them. The agency has argued the court should allow it to do its normal investigation protocol for the vehicle, which must be done before the vehicle can be moved into a storage building it has constructed to house it.
Mallery had been arguing for months that the NTSB has no authority to search the vehicle since it was never included in Bartlett's initial search warrant after the crash. Mallery on Dec. 24 requested "in camera," which means in a secret meeting outside of public view in the judge's chambers, that the court issue a supplemental search warrant that would allow for the removal of the transmission and torque converter from the vehicle. Bartlett instructed Mallery to inform the NTSB and defense council of the search warrant request and get their comment. On Jan. 4 Mallery wrote the court stating NTSB Director Robert J. Molloy gave her office "oral consent" to allow the search warrant.
Silbaugh in her Jan. 7 correspondence with the court argued Mallery never told the NTSB the purpose of the supplemental search warrant, and that her agency "categorically opposes" the removal of any parts of the vehicle without their investigators involvement.
Bartlett on Jan. 9 issued a letter to all sides in the dispute stating he had never intended to exclude the NTSB in the search warrant he issued for the vehicle. He said he doesn't believe the NTSB needs a search warrant, a position expressed by the agency. He said to break the impasse he would write a new search warrant including the NTSB, and asked the agency to submit the language it needs in a new search warrant and asked Mallery to provide any objection.
In response, the two sides presented radically different positions on what kind of access the court should grant the NTSB. Silbaugh has argued the NTSB should have unfettered access, should be allowed to examine removed parts and participate in the removal of the transmission and torque converter.
In her letter to the court Thursday, Mallery stated she would be willing to accept a "common sense solution" to the impasse that would allow the NTSB to measure and photograph the vehicle with state police supervision before the court allows its transmission and torque converter to be removed. She also argued the court has no authority to create a new search warrant including a federal agency. She stated that NTSB has no legal right to obtain one in this case in New York state.
Mallery also complained that NTSB has engaged in a media campaign to gain access to the limo, which could jeopardize her criminal case.
Mallery also rebutted Silbaugh's contention that NTSB officials were not told of the true purpose of the Jan. 4 supplemental search warrant sought by Mallery. She said her office has "contemporaneous notes" that indicate the NTSB director was told the purpose of the search warrant during a conference call and that he had given his "oral consent" to allow it.
But Bartlett took issue with several of Mallery's points in his Friday court order. He stated New York state law clearly gives his court control over the fate of the vehicle, including deciding who has access to it.
"Thus, contrary to the district attorney's position, her office does not have exclusive control over the vehicle. In fact, the district attorney, by applying for a supplemental search warrant, acknowledges the same," he wrote.
Bartlett took also took issue with an assertion in Mallery's letter that the court as "cooperating with the NTSB."
"The court has no doubt that the district attorney is trying her best to conduct a fair criminal investigation; however, the district attorney's assertion that the court is engaged in "continued cooperation with the NTSB” is troubling. There is absolutely no basis for an assertion that the court is cooperating with the NTSB. Rather, the court is simply attempting to fulfill its duties as an impartial jurist. The fact that the court rules against a position a litigant takes should not be viewed as cooperation with the other party," Bartlett wrote.
Bartlett also called out Mallery's argument that politics is influencing the process.
“This gratuitous comment, not directed at anyone, has no place here. The comment lacks any context or relevance in any litigation, let alone a case of this magnitude and seriousness; and such comment unnecessarily only serves to undermine faith in our justice system, which system includes the Office of the District Attorney," Bartlett wrote.
Several times in his order Bartlett indicated the standoff between the two agencies must end and he can not understand why the NTSB and Mallery's office can't cooperate in a similar fashion to the thousands of other NTSB crash investigations
He also highlighted the interest of the victim's families.
“These victims, their families, defendant, and the general public deserve better than having investigations and justice delayed by this imbroglio," he wrote.