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Judge's no-talk order in boat crash case raises questions

 

September 16, 2009



MATT GOURAS Associated Press Writer HELENA

A judge's order prosecutors and police say prevents them from talking about the investigation into state Sen. Greg Barkus' boat crash may be based on rules that a prominent lawyer in public records cases argues are unconstitutional. County Attorney Ed Corrigan previously said investigators were looking into possible drinking by Barkus that night. But that was before Judge Katherine Curtis ordered a seal on at least some records until a decision is made on whether charges will be filed in the crash that injured five people, including a congressman. The judge released a statement saying her orde r appl i e s only to Barkus' medical records. But Corrigan has said he is no longer allowed to talk about any aspects of the case under that order. The prosecutor has been seeking medical re c o rd s t h a t would show the blood-alcohol level of Barkus, the boat driver. Helena attorney Mike Meloy, who has successfully argued several high-profile cases d e a l i n g wi t h access to public records, said the most likely scenar io i s that p r o s e c u t o r s sought investigative subpoenas that are subject t o s e c r e c y restrictions similar to grand jury proceedings. “The court probably tapped (Corrigan) on the shoulder and said you can be held in contempt here,” Meloy said. Neither Judge Curtis nor Corrigan immediately returned calls seeking further comment Tuesday. U.S. Rep. Denny Rehberg was among those injured in the Aug. 27 crash on Flathead Lake. He has voluntarily disclosed details about that night in a lengthy call with reporters and said his blood-alcohol content was .05 at the time it was taken in the emergency room. The legal limit in Montana for a driver is .08. Barkus, who was driving the boat, has not returned telephone calls seeking comment on the matter. Meloy, who has worked for Gov. Brian Schweitzer and other Democrats in other matters, said a good argument can be made that the constitution should grant public access to information on the investigation. “The better questions is whether the secrecy provision of the grand jury proceeding is constitutional,” Meloy said. “When the record gets seals, it would seem to me to violate Supreme Court rules on open proceedings, and the constitution.” Meloy said the records would get unsealed if criminal charges were filed. But the precedent could prompt the judge to agree with future requests to seal records in the case if a criminal prosecution develops. Meloy said the public gets suspicious when work is done behind closed doors. “There is no way for the public to know what's going on, and that's not a good thing,” Meloy said. “Any time government closes things off, it doesn't look good for the government.”

 

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