Grand jury to ponder 3-death sinking in bay

February 11, 1994|By Arthur Hirsch | Arthur Hirsch,Sun Staff Writer

St. Mary's County State's Attorney Walter B. Dorsey says he'll ask a grand jury to consider investigating the sinking of the El Toro II fishing boat after a citizen's request for an independent probe.

Mr. Dorsey said the plea came in a letter from Jack F. Witten of Hollywood, who urged a grand jury investigation independent of the Coast Guard inquiry into the accident, which occurred Dec. 5 in the Chesapeake Bay, killing three people.

The prosecutor declined to say that he is advocating a criminal investigation, only that he has decided to pass the letter along to the jury.

"I have a letter from Mr. Witten," Mr. Dorsey said. "I can't ignore it. I'll bring it to the attention of the grand jury. . . . I would not have initiated this myself."

Asked why not, Mr. Dorsey said he is concerned about the appearance of conflict of interest. His son, Leonardtown lawyer Philip H. Dorsey, is representing the estate of a Mechanicsville man who died in the accident.

Mr. Dorsey said he expects to present the letter to the grand jury in next month's session. He said he'll explain his son's involvement in the case and make clear that he is responding to a citizen's concern. Mr. Dorsey declined to elaborate on what the focus of such an investigation might be, or why the one letter was so compelling as to prompt this action.

"I don't want to answer too many questions about this," Mr. Dorsey said. In the letter, he said, Mr. Witten "raised a lot of questions that should be looked into."

Mr. Witten, a retired 30-year Navy employee, said in an interview that he was prompted to write the one-page letter Feb. 4 after reading newspaper accounts of the five-hour rescue operation, including transcripts of Coast Guard radio transmissions that were published in a local weekly paper. He wrote that the Coast Guard's inquiry into the accident -- conducted in December -- may not adequately answer questions about that agency's performance.

"Government agencies are not very good at evaluating their own performance," wrote Mr. Witten, a former consultant for the Environmental Protection Agency and now vice president of the Potomac River Association, a citizens' group. "Justice to those who lost their lives requires a complete and independent investigation."

Coast Guard Cmdr. Glenn Anderson, who was assigned from the Marine Safety Office in Philadelphia to conduct the El Toro II inquiry, said the check on his agency's work is being provided by the National Transportation Safety Board (NTSB), which is conducting its own investigation. Officials of the NTSB took part in the seven-day hearing in Baltimore and St. Mary's County, as did lawyers for the boat owner and two passengers.

Testifying at the hearing were the El Toro II's owner, the captain on the day of the accident, passengers, Coast Guard inspectors and independent marine and insurance company inspectors.

"The NTSB has no love lost for the Coast Guard," Commander Anderson said, noting that the agency has criticized the Coast Guard in the past. "From the federal point of view, the NTSB is the check and balance."

Asked about the possibility of a state grand jury probe, Commander Anderson pointed out that the Maryland Department of Natural Resources (DNR) already has looked at the accident and urged no criminal prosecution.

In a report dated Dec. 16, DNR Cpl. Dennis W. Leland recommended that "this case be marked 'suspended' because no criminal activity has been discovered."

J. Paul Mullen, the lawyer representing the boat owner, Chesapeake Bay Fishing Parties Inc., said Mr. Dorsey's action "strikes me as a little unusual" in light of the DNR report. He declined to comment further.

Philip Dorsey said there appeared to be some question about why the Coast Guard "waved off" a St. Mary's County Sheriff's Department diving team that was prepared to help in the rescue. "I do think that needs to be investigated." Civil suits stemming from the accident are expected, although none has been brought yet, said Mr. Mullen and Mr. Dorsey.

A Coast Guard crew based at St. Inigoes led the rescue with the help of state police and Navy helicopters and divers. Some of the 23 people were in the water about two hours before being lifted onto helicopters or aboard a 41-foot Coast Guard vessel.

The Coast Guard closed more than a week of hearings into the accident in late December, but its report on the accident is not expected to be made final and public until spring, said Commander Anderson.

Even before the hearing began, preliminary investigation showed that three planks on the wooden hull's port side had pulled loose as the 58-foot boat bounced around in rough seas. The boat took on water and sank in an afternoon storm about five miles southeast of Point Lookout with 23 people aboard.

Two men died the night of the accident at hospitals in St. Mary's County from the effects of hypothermia. A third man died a week later at a Washington hospital, also from hypothermia.

During the hearing, evidence was introduced showing that an insurance company inspector examined the El Toro II at the dock days before the accident and reported the vessel unfit to operate or carry passengers because of poor maintenance and safety violations. The inspector said he did not immediately report the problems to the insurance company or the boat owner because he was led to believe that the fishing season was over and that the boat would not be leaving the dock again until spring.

The boat, built in 1961, had passed Coast Guard inspections in March and April.

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