Flathead judges recuse themselves from any case related to Barkus' boat crash

2009-09-22T05:45:00Z Flathead judges recuse themselves from any case related to Barkus' boat crashBy TRISTAN SCOTT of the Missoulian missoulian.com
September 22, 2009 5:45 am  • 

A trio of Flathead County judges have recused themselves in a case that may result in criminal charges against state Sen. Greg Barkus, who last month crashed his powerboat into a rocky shoreline along Flathead Lake, seriously injuring five people - including U.S. Rep. Denny Rehberg.

District Court Administrator Bonnie Olson said the judges decided it would be inappropriate to preside over court proceedings involving Barkus, R-Kalispell, because they worked closely with him on legislation adding a fourth judge to their district.

"We were concerned that there would be an appearance of impropriety, and we wanted to avoid that," Olson said.

Ted O. Lympus, Katherine R. Curtis and Stewart E. Stadler surrendered jurisdiction of the file to Sixth Judicial District Judge William Nels Swandal, of Livingston. The file remains in Flathead County and includes an investigative subpoena for Barkus' medical records and blood samples, which authorities will review to determine if the senator was drunk at the time of the crash.

As of Monday, no criminal charges had been filed in the case.

"They have recused themselves in the investigative subpoena file, and right now that's the only file that exists, because there was a relationship when [Barkus] carried the bill," Olson said. "They asked him to sponsor the bill."

In the weeks after the crash, Flathead County Attorney Ed Corrigan said authorities were investigating whether Barkus had been drinking on the night of Aug. 27, when he drove his speedboat head-first into sheer cliffs at Wayfarers State Park. The accident injured all five on board, including Rehberg and two of his top staff members. Barkus and his wife, Kathy, were also injured.

Corrigan said his office issued an investigative subpoena to obtain Barkus' hospital records, then submitted them to an out-of-state forensics lab to avoid any potential conflict within the State Crime Lab in Missoula. State Rep. Dave McAlpin, D-Missoula, who served with Barkus in the Legislature, runs the Missoula lab.

Judge Swandal's senior law clerk, Nancy MacCracken, said the judge will not have a lot of procedural involvement with the case until Flathead County authorities determine whether enough probable cause exists to justify criminal charges against Barkus; in the event that a criminal case is opened, it's probable that Swandal will then preside over it.

"If they come up with something, then it's up to the county attorney to decide whether any charges should be filed," MacCracken said. "So we're still a couple steps away from any charges being filed."

If asked, Swandal will assume jurisdiction over a potential criminal case.

"He would be happy to take jurisdiction of the case if he is requested to do so, but I can't say that he will because there isn't anything and nobody has asked him to do so," she said. "If none of the other judges want to touch it, then there might be further delay because they don't want to sign off on a potential [criminal case]."

Montana's Sixth Judicial District includes Park and Sweet Grass counties, and was not among the 11 districts impacted by Barkus' bill.

Barkus' attorney, Todd Glazier, recently filed a motion with the Flathead court asking that all parties affiliated with the case obey a secrecy statute related to investigative inquiries, including subpoenas.

Neither Glazier nor Corrigan returned phone calls from the Missoulian on Monday.

MacCracken said the subpoena would have been sealed regardless of the motion.

"The purpose is to find information pursuant to a subpoena to determine if something could or should be done," she said. "It's exploratory, and that's why they're always sealed. There's nothing special or unique about this case."

Reporter Tristan Scott can be reached at 523-5264 or at tscott@missoulian.com.

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