Judge may release investigation report in Flathead Lake boat crash before Nov. 6 election

Flathead County District Judge John McKeon, of Malta, will consider whether to release the pre-sentence investigation report that was part of the criminal case against former Montana State Sen. Greg Barkus, R-Kalispell.

McKeon ordered all sides in the case to respond by Oct. 23 to a non-profit watchdog group’s  request that the court release the pre-sentence investigation report related to the 2009 boat crash which left Barkus, Congressman Denny Rehberg and three others seriously injured. The group, Citizens for Responsibility and Ethics in Washington, wants the documents released before the Nov. 6 election in which Rehberg, a Republican, is challenging incumbent Democratic Sen. Jon Tester for the U.S. Senate.

According to CREW’s Oct. 10 press release:

“CREW requested the PSI to shed light on the true facts surrounding the crash, including the extent to which those facts differ from the version offered by Rep. Dennis Rehberg (R-MT), a passenger on the boat who denied Sen. Barkus was impaired in any way.”

Rehberg’s campaign did not immediately respond to an email seeking comment on CREW’s request or McKeon’s order.

UPDATE: Rehberg’s campaign manager, Erik Iverson, said in a telephone interview Wednesday afternoon that his boss has no control over whether the report is released or not because he is not a party to the case in question.

“Denny was a witness and has no rights or privileges different than any other witness,” Iverson said. “That said, it doesn't matter to Denny what the judge decides. He has no problem with the documents being released at all. He has not seen them or read them, but either way Denny is fine with whatever the judge decides to do."

Barkus, who was the House majority whip at the time, was behind the wheel of the boat that on Aug. 27, 2009 slammed into the rocks on the shore of Flathead Lake near Wayfarers State Park. Court records revealed that Barkus’ blood alcohol content was .16, twice the legal limit of .08, nearly two hours after the crash. Rehberg, two of his staff members and Barkus’ wife were passengers on the boat, and all were seriously injured in the crash. Rehberg denied being impaired himself and said he “saw no signs of impairment” in Barkus.

(You can download the complete audio from Rehberg’s hour-long press conference two weeks after the crash here).

Barkus was charged with criminal endangerment and negligent vehicular assault. McKeon rejected prosecutors’ original plea agreement with Barkus, which called for a three-year deferred sentence, a $4,000 restitution payment and unsupervised probation. McKeon instead imposed a $29,000 fine and a four-year deferred prison sentence.

On Oct. 1 CREW asked McKeon to release the pre-sentence investigation report that the court used to determine Barkus’ sentence. According to court records, the report includes:

1. photographs of the crash;
2. witness statements;
3. the investigating officers’ reports;
4. toxicology reports;
5. the report of the accident reconstruction expert;
6. written or transcribed statements of the the boat’s occupants;
7. a history of Barkus’ 2004 conviction on traffic offenses, including the circumstances surrounding the reckless driving conviction in which he was originally charged with driving under the influence of alcohol.

Under state law, McKeon cannot disseminate the pre-sentence investigation report to CREW without first finding “that the demands of individual privacy do not clearly exceed the merits of the public disclosure.”

CREW chief legal counsel Anne L. Weismann argued that the Barkus case involved people in positions of public trust. Barkus was a sitting state senator at the time of the crash and Rehberg, a sitting U.S. Congressman now and at the time of the crash, is running for the U.S. Senate. CREW argued there is “significant public interest in disclosure” to understand the circumstances of the crash and how those circumstances relate to the integrity and judgment of the public officials involved in the crash.

Barkus’ case was ongoing when Rehberg sought reelection to the House in 2010. The case was scheduled to go to trial more than three weeks after the election but the settlement was eventually reached and finalized in January 2011, after Rehberg started his sixth term in Congress.

Prosecutor: Boat pilot was drinking the night of crash that injured Rehberg and four others

The latest from the Associated Press:

The Flathead County attorney says state Sen. Greg Barkus was drinking the night of the boat crash that severely injured U.S. Rep. Denny Rehberg and three other passengers.

Authorities are awaiting results of blood tests from the state crime lab, and delivery of Barkus' medical records before determining whether to file charges. County Attorney Ed Corrigan has said he is weighing felony charges.

A critical piece of information will be whether or not Barkus' blood alcohol level was above the legal limit of 0.08 for a vehicle operator.

Corrigan says he hopes to get that information in the next week or so.

Driving records show that Barkus was pulled over for drunk driving a few years ago, an arrest that resulted in a conviction of reckless driving.

New info on Flathead Lake Crash

OK, so I guess the headline might be a little deceiving because quite honestly, there isn't much new news to report at all. The Flathead County Sheriff's Office is still saying very little and State Sen. Greg Barkus, the man behind the wheel of the boat that crashed high on the rocks on the shore of Wayfarers State Park, refuses to talk to authorities or the press.

Meanwhile, we still don't have any indication from the Flathead County Sheriff's Office as to whether they think alcohol played a role in the crash. If you look here, here, here, here, and here (these are just a handful of recent examples) you'll notice that authorities in these cases stated whether or not they believed alcohol was factor in the crash within a day or two of the incident. That's almost always the first question investigators try to answer in an incident like this, and it's usually found in the first or second paragraph of any crash write-up in the newspaper. I would think that after interviewing people who were on the boat, people who were at the dinner party in Lakeside earlier that night and officers and emergency personnel at the scene of the crash authorities should have some indication by now as to whether or not Barkus had been drinking. It's been nearly a full week since the crash--which left five people injured including a sitting U.S. congressman and a state senator and left one victim in what appears to be a coma--and the authorities have still not answered the most burning question about this case. And that's even after said congressman, Denny Rehberg, admitted the day after the crash that he had been drinking at a dockside dinner with Barkus earlier that night.

The issue is whether Barkus was impaired at the time of the crash. Police apparently did not test the victims at the scene. Understandably, their priority was getting the severely injured passengers to the hospital ASAP. Once at the hospital, any blood tests done on Barkus or anyone else immediately becomes part of their medical record, which is protected under the federal HIPAA. Barkus appears to be resisting the release of those records to authorities, because the Flathead Co. Sherrif's Office had to issue a subpoena for them.

Barkus' medical records have been subpoenaed, so hopefully we'll be able to clear this up once and for all by the end of the week.

Here's something to consider when thinking about BAC: it goes down shortly after you stop drinking. So for instance, in Rehberg's case, his BAC was .054, or about .026 below the legal limit, when doctors drew his blood at 12:58 a.m. That was about 2 hours and 40 minutes after the crash occurred. According to the Journal of Toxicology and Environmental Health, BAC decreases at a rate of about .015-.020 per hour. So let's assume Rehberg weighs somewhere between 160 to 180-pounds. For a male that size, in 2 hours and 40 minutes his BAC would have decreased by approximately .03 to .04. So, at the time of the crash, Rehberg's BAC was likely over the legal limit for operating a motor vehicle.

However, I want to stress that Rehberg, by all accounts, was never behind the wheel of the boat, so whether or not he was legally impaired or not is not the issue here. Authorities have already said they don't expect any charges against Rehberg.

But people still have a lot questions that need to be answered.

***

This is an interesting tidbit that the Missoula Independent dug up about Barkus' 2005 reckless driving charge:

We've since learned, through a report with Lake County Justice Court obtained by Indy staff reporter Jessica Mayrer, that Barkus was originally charged with DUI. He was operating a 2000 white Corvette with vanity plates reading "DREAM IT." Barkus was stopped going 84 mph in a 65-mph zone and found to be under the influence.(emphasis added)

He subsequently pleaded not guilty and was convicted of reckless driving, a misdemeanor.

So it appears this isn't the first time Barkus has hired Kalispell attorney Todd Glazier to represent him in a sticky situation.

For those who are interested, here's a copy of the two tickets Barkus received for his reckless driving incident in Lake County:


Also, James Connor at the Flathead Memo has an interesting hypothesis about the conditions Barkus and his ill-fated passengers faced as they left the dock at Lakeside Thursday night. It's worth a read. Here's a snip:

The end of astronomical twilight was still 20 minutes away when Barkus pointed his boat northeast and advanced the throttle. As the U.S. Naval Observatory notes, “…for a considerable interval…before the end of evening [astronomical] twilight, sky illumination is so faint that it is practically imperceptible.” To the northwest, various objects would be faintly silhouetted against against the residual light, but the lake’s eastern shore was much darker. Light from the moon may have provided some help, and there may have been a moon streak on the water that commanded the attention of some on board. Full dark adaptation of the human eye requires 20–30 minutes; longer if exposed to bright light while adapting.

That's all for now. Keep checking back. I'll keep you updated on developments as soon as we have them.

Audio from press conference re: Reberg boat crash

Here's a link to a WMA download of today's telephone press conference with former Rehberg chief of staff Erik Iverson. Iverson, a longtime family friend of the Rehberg's, was at the hospital in Kalispell where Rehberg was undergoing surgery to repair a broken ankle.

Iverson confirmed that the two staffers who were on the boat with Rehberg were Dustin Frost, Rehberg's state director, and Kristen Smith, Rehberg's health care policy advisor. Iverson did not give any information about the Smith or Frost's condition. He also did not comment on the condition of Sen. Greg Barkus or Kathy Barkus.

Read tomorrow's Great Falls Tribune for the latest information on this incident.

More photos of Rehberg boat crash site

These photos are courtesy of Montana Public Radio Flathead reporter Katrin Frye, who was on the scene this morning. Tune into MTPR Capitol Reporter Emilie Ritter and Flathead Reporter Katrin Frye's report at 5:30 p.m. for more on the accident. Be sure to read tomorrow's Great Falls Tribune for the latest.

Rehberg stable after serious boat crash on Flathead Lake

For those of you who follow The Lowdown closer than the Tribune Web site, here's the latest report on Rep. Denny Rehberg's late-night boat crash, including some links.

Congressman Denny Rehberg and state Senate Majority Whip Greg Barkus of Kalispell are in stable condition at Kalispell Regional Medical after sustaining injuries in a late-night boating crash on Flathead Lake Thursday.

According to Fish, Wildlife and Parks regional director Jim Satterfield, Rehberg, Barkus, and three adults were injured when the 22-foot motorboat they were riding in crashed on the rocks on the shore near Wayfarers State Park on the north east end of Flathead Lake.

According to a Washington Post report, Barkus’ wife, Kathy, and Rehberg’s state director, Dustin Frost, were among those injured in the crash. The identity of the fifth passenger, also a Rehberg staffer, has not been released.

The crash happened sometime after 10 p.m. Campers who were near the scene heard the crash and called 911, Satterfield said. The boat, a fiberglass hulled inboard motorboat, was completely out of the water and resting at a steep angle among cliffs and rocks on shore.

Responders from the Big Fork Fire Department were first on the scene, Satterfield said. Three people were flown to the hospital by helicopter, however department officials didn’t know if Rehberg was among those who were transported by air. The others were taken to the hospital via ambulance. All five are in stable condition.

Satterfield said FWP boating accident experts are investigating the incident along with the Flathead County Sheriff’s Office and the Montana Highway Patrol.

“We’ll be looking at how fast the boat was going, who was driving, whether alcohol or drugs were involved, whether they have the proper number of life jackets on the boat. Those are the things we look at when we have a routine boating accident like this,” Satterfield said.

Satterfield said it could be several days before more information on the accident is released.

The park remains closed while officials investigate the scene.

Jed Link, Rehberg’s press secretary, issued the following statement around noon Friday:

“Last night Congressman Rehberg and two members of his staff were passengers in a boat that was involved in an accident on Flathead Lake near Bigfork. Denny is in stable condition and is doing well. His thoughts and prayers are with everyone involved. We will continue to provide information as it becomes available.”

State Sen. Gary Perry, a good friend of Barkus, said he had just heard about the crash and was getting ready to go to the hospital. Perry, from Manhattan, said he knew little about Barkus' condition.

“It's a tragic accident,” Perry said. “We're praying for him.”

Rehberg has conducted 16 listening sessions around Montana during the congressional break and was scheduled to be in Cut Bank and Shelby today. Both of those sessions have been canceled. On Friday, Rehberg announced seven more sessions for next Tuesday through Thursday. Rehberg was in Great Falls on Tuesday along with Sen. Jon Tester for a ribbon-cutting ceremony for Benefis Health System's new $85 million Patient Tower.