ALBANY, N.Y. — More than three months after 20 people died in a stretch limousine crash in rural upstate New York, federal safety investigators have yet to get their hands on the most crucial piece of evidence: the wrecked vehicle itself.
The National Transportation Safety Board says it has been blocked from getting within 15 feet (4.5 meters) of the limo involved in the nation's deadliest transportation accident in nearly a decade because local prosecutors say they have priority as part of their criminal case against the limo company's operator.
Most major NTSB probes would have produced a preliminary report by this point, potentially resulting in key safety recommendations. But for now, the battered white limo involved in the Oct. 6 crash in Schoharie County sits beneath a state police tent near Albany while the NTSB seeks a judge's intervention to gain access.
In increasingly exasperated exchanges, NTSB lawyer Kathleen Silbaugh complained that the local prosecutor has refused to even discuss the federal board's jurisdiction in this matter and even hung up on a recent phone call when the issue came up. Silbaugh also expressed concern that the prolonged delay may have already caused "safety-critical" evidence to be lost.
The NTSB said in a statement that if a deal can be worked out, it will immediately send two investigators for a limited time to do "targeted work permissible" under the partial government shutdown.
"It's unfortunate," said Peter Goelz, a former NTSB managing director who now works for a Washington, D.C., consulting firm. "They might have made a recommendation, like replace the braking systems in vehicles that have been modified in this manner because they're not robust enough to stop the vehicle fully loaded."
The 2001 Ford Excursion that was modified into a stretch limo blew through a stop sign at a T-intersection and crashed beside a country store, killing the driver, 17 passengers on a birthday outing, and two pedestrians. The vehicle had failed a state inspection that examined such things as the chassis, suspension and brakes.
Prosecutors allege the limousine company's operator, Nauman Hussain, allowed an improperly licensed driver to operate an "unserviceable" vehicle and have charged him with criminally negligent homicide. He has pleaded not guilty to the charge and remains free on bail. His lawyer has said investigators rushed to judgment .
Silbaugh wrote in a letter to Schoharie County District Attorney Susan Mallery in December that because of the delay federal investigators may no longer be able to evaluate corrosion, which is critical when looking at the brakes, or the status of the vehicle's electrical system at the time of the crash.
Mallery, who has declined numerous requests for comment, told Silbaugh in a Dec. 19 letter that "your investigators have been given at least three lengthy opportunities to view the limousine." She said state police and her office were obliged to maintain the chain of custody and the integrity of evidence.
In a Jan. 7 letter requesting the intervention of Schoharie County Judge George Bartlett III, Silbaugh said federal inspectors had been allowed to view the vehicle from no closer than 15 feet (4.5 meters). She urged the judge to deny Mallery's request for a supplemental search warrant allowing removal of the vehicle's transmission and torque converter, saying to do so before the NTSB completes its initial inspection "will impact our ability to determine the vehicle's role in the probable cause of the crash and to propose safety recommendations."
On Jan. 9, Bartlett wrote that NTSB's work doesn't require court permission on a search warrant and that "until the recent kerfuffle, this court had no reason to believe that the NTSB was not given the access necessary to fulfill its obligations." To break the impasse, he suggested NTSB propose language to be added to the search warrant, and gave defense counsel and the district attorney until Wednesday to submit any opposition.
Such friction between a criminal prosecutor and federal safety investigators is unusual, said Jim Hall, who was NTSB chairman under during the Clinton administration. While the criminal investigation does have precedence, he said, it's in the public interest that the federal safety investigation move forward without delay.
"There are a number of these specially modified vehicles operating. Having an opportunity to have a national focus on this accident is extremely important," Hall said.
On Tuesday, Gov. Andrew Cuomo proposed banning vehicles remanufactured into stretch limousines from operating in New York state. The Democrat also proposed reforms, including prohibiting U-turns for larger vehicles and eliminating the seatbelt exemption for limos, buses and taxis.