By MICHAEL WEISSENSTEIN, The Associated Press
NEW YORK (AP) -- The divergent goals of the agencies probing last week’s deadly Staten Island ferry crash are coming into conflict, investigators say, stalling the search for the cause of the accident.
The ferry captain, whose actions are part of a criminal investigation, has defied a subpoena to talk to National Transportation Safety Board officials. That makes the Staten Island probe one of a growing number of safety investigations hindered by their subjects’ fear of criminal prosecution, the NTSB’s former managing director said Thursday.
Capt. Peter Gansas did not appear for either of two scheduled interviews with the NTSB this week. Mayor Michael Bloomberg called his recalcitrance “an outrage” and began the process of firing him.
The city also suspended one of the ship’s two mates, Robert Rush, for not cooperating with investigators.
The Staten Island district attorney’s office said Thursday it was sending out subpoenas in its probe of the ferry crash, which killed 10 people and injured dozens.
“We are issuing subpoenas in an effort to aid us in determining whether criminal charges are necessary,” spokeswoman Monica Brown said.
She declined to elaborate.
A law enforcement official familiar with the criminal probe said District Attorney William Murphy was seeking telephone records and other documents before he decided whether to convene a grand jury.
Gansas’ lawyers have said he was too psychologically traumatized to discuss the accident.
Peter Goelz, the safety board’s managing director from 1996 to 2000, said Gansas’ failure to appear was not surprising.
“You cannot ask an individual to voluntarily give up his right against self-incrimination simply because the NTSB has a safety investigation to complete,” Goelz said. “It just is becoming more and more common that there’s at least a threat of criminal prosecution. It’s having a very chilling effect on the safety investigations.”
The results of NTSB probes are legally barred from inclusion in civil lawsuits, Goelz said, but no such bar applies to criminal prosecutions.
The captain’s whereabouts at the time of the crash are considered a vital element of the NTSB and criminal investigations. City regulations require the captain to be in the ferry’s pilot house during docking, so he can provide supervision and emergency backup.
Gansas told police immediately after the accident that he tried to pull Richard Smith, the assistant captain piloting the ferry, off the controls after Smith lost consciousness off Staten Island.
At least one crew member has told investigators that Gansas was not in the pilot house during docking, city officials have said.
Smith remained unable to talk after attempting suicide, his attorney said.
Parties to the NTSB probe include police detectives who could file charges against Gansas, city transportation officials looking to bolster ferry safety and defend the city against lawsuits and Coast Guard officials with the power to yank the captain’s license.
Those interested parties are sitting in on NTSB interviews of passengers, crew, emergency responders and others and on meetings of the federal probe’s various working groups.
“They’re around us quite a bit in this investigation,” NTSB spokesman Ted Lopatkiewicz said. “A criminal investigation might indeed delay the time that we can talk to somebody. That is not unprecedented. Generally we eventually do get to interview everybody.”
The NTSB can ask federal judges to enforce its rare subpoenas, raising the possibility of criminal charges such as contempt of court if recipients then do not comply.
Subpoena recipients can always invoke their rights against self-incrimination. In the Staten Island ferry case, no black box recorded events in the pilot house, and lack of assistance from crew members could delay or halt the board’s effort to draw conclusions from the accident and try to make ferries safer, Goelz said.
“There’s no other evidence that they can go on other than the guy in the pilot house,” he said. “It’s going to be very difficult without the cooperation of the folks involved.”