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Schoharie county court Judge in deadly limo crash investigation: "This standoff must come to an end"

January 19, 2019 10:16 AM

UPDATE: A letter received late Friday from Schoharie County Court Judge George Barlett III announces the court will cancel its calendar for Tuesday, January 29, 2019.  It will hold a conference on that day, according to the letter starting at 9:30 am to see if "common ground between the access proposed in the NTSB letter of January 14, 2019 and the District Attorney's letter of January 16, 2019 can be worked out," Judge Barlett wrote.  Barlett calls the issues more technical and says the DA, Susan Mallery can attend with the independent expert or a representative from the NYSP with appropriate expertise.  Defense Attorney Lee Kindlon, Barlett wrote should attend with his expert, and the NTSB attorney and its counsel may appear by telephone based on the distance and Federal Government shutdown added Bartlett in his letter.  Bartlett wrote on the final page of his letter, "It is the Court's hope such a conference, in which the experts can discuss their needs, will resolve this unnecessary impasse without further delay.  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 service," wrote Barlett.  The court, according to the judge continues to welcome all parties involved talk prior to next week's conference and "reach an agreement without the necessity of further Court involvments."  

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— Jill Konopka (@jillkonopka) January 18, 2019

You can read Jill Konopka's original story below:

NewsChannel 13 has obtained a letter Schoharie County Court Judge George Bartlett III sent to Schoharie County District Attorney Susan Mallery this week asking for federal law and NTSB citations and her three-page response submitted Friday morning. 

The judge’s inquiry was sent after the district attorney forwarded a letter Jan. 16 to the court proposing a solution to break what Mallery called "the NTSB-created impasse" over the NTSB demands that a judge give them "immediate and unfettered" access to parts of the limousine involved in the deadly crash before the New York State Police remove the transmission and torque converter.

The NTSB claims the district attorney and State Police aren’t providing the access they need to do their own investigation. 

Mallery on Wednesday suggested that under State Police supervision, the NTSB may be "allowed to inspect the limousine itself, and to photograph and measure it.  No alteration, removal, or destruction of the evidence by representatives of the NTSB will be allowed." Adding, according to Mallery NTSB officials were present to inspect the limo in question on at least three occasions in October and that the NTSB will have additional access once their investigation is complete, which the district attorney said in her letter would happen soon.  

In the new letter from the judge, he asked the district attorny to provide citations to the law and federal policy after Mallery wrote that federal law and NTSB policy mandate criminal proceedings take precedence over the NTSB investigation. 

Mallery responded with a second letter Friday morning, providing a handful of "sites" supporting what Mallery called "our criminal action taking precedence over the regulatory investigation by NTSB."

Reasons Mallery explained include," NTSB cases have no time frame; we have constitutional speedy trial concerns."  That, Mallery also wrote the judge, "NTSB does not have the same strong criminal investigatory powers, that they do not have search warrant power nor do they have criminal contempt power."

Mallery further wrote "the criminal case should take priority to avoid the possible assertion of double jeopardy, the criminal case should take priority to avoid claims of Fifth and Sixth amendment violations in the criminal case, or even possibly immunity issues," Mallery questioned.

Mallery added, the criminal case should "take priority because NTSB has a presumption of openness" in providing information to the public, which could damage the criminal case by tainting jury pools, discouraging witnesses from public disclosure, etc.

Mallery ends her letter stating "NTSB’s statutory and regulatory framework requires them to cooperate" with the state.  It does not give them priority over state criminal actions, but only federal actions; state actions are not subject to this priority."

The Schoharie crash on Oct. 6 killed 20 people, including the driver. Attorney’s representing a handful of families have told NewsChannel 13 they have no comment in response to the ongoing legal battle. 

The NTSB wrote in a letter on Jan. 7 to Bartlett, that they "categorically oppose the supplemental search warrant is 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."

A conference call on Jan. 11 between the district attorney and the NTSB was "heated" according to defense attorney Lee Kindlon, who was also included on the call.  Kindlon represents the operator of the Limousine company involved in the crash, who has been charged with one count of criminally negligent homicide.

"It got a little heated, but ultimately it was decided, like I said earlier, all of us believed we were right. It led to a swift conclusion of the phone call," Kindlon told NewsChannel 13.

Kindlon confirmed the district attorney hung up the phone 45 minutes into the conversation. But they hammered out a tentative schedule for a meeting and all parties involved, according to Kindlon, would be ready to go on a moment’s notice, once the judge says "go."

In a Jan. 9 letter, Barlett wrote to the NTSB, "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 January 14, 2019. Defense counsel and the District Attorney shall submit any opposition on or before January 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 solution. 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 (Kathy) Silbaugh (NTSB General Counsel) as soon as possible."

As requested by the NTSB, Barlett’s letter states the limo shall not be moved from State Police property in Latham until the issues presented are resolved.

Credits

Jill Konopka

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