Three Idaho State Police crash investigators who say they refused to bend the truth about a fatal crash in 2011 claim that the agency’s leaders are retaliating against them.
The daughter of the man killed in that crash says ISP’s manipulation of the investigation to protect a Payette County deputy could make it difficult for her to seek justice in her father’s death.
ISP is now embroiled in three lawsuits stemming from the crash investigation, with possibly more to come. And the Gem County prosecutor who handled the case told ISP officials that he was shocked by the behavior of the trooper who led the investigation, that he could no longer trust the trooper and that the trooper secretly recorded their conversation about the case.
ONE CRASH, TWO REPORTS
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On Oct. 18, 2011, Payette County Deputy Scott Sloan crashed into a Jeep, killing its driver, Barry Johnson, on U.S. 30 near New Plymouth. Idaho State Police assigned Trooper Justin Klitch as primary investigator and Trooper Quinn Carmack as primary crash reconstructionist.
When Idaho State Police prepare a crash reconstruction report, the lead reconstructionist sends a preliminary report to other crash investigators to review for anything that is missing or needs clarifying. Once peer review recommendations are incorporated, the report goes to the crash program manager for approval. Depending on the circumstances, the report is then forwarded to a prosecuting attorney to decide whether charges should be filed.
Carmack analyzed the crash site, the skid marks, the two heavily damaged vehicles, the deputy’s dashboard camera video and other evidence, and he put his findings into a preliminary report and sent it for peer review. Two investigators assigned to review the report offered some comments and suggestions. Carmack incorporated the changes and sent the report to Fred Rice, the head of ISP’s crash reconstruction program.
Rice approved it.
The report concluded that Sloan was traveling 115 mph on a two-lane 55-mph rural highway while responding with lights and sirens to a 911 call. Johnson’s 1983 Jeep was traveling about 24 mph in front of Sloan when Johnson began to turn left. Sloan hit the brakes. His 2004 Crown Victoria patrol vehicle had slowed to 88 by the time it slammed into the driver’s side of the Jeep, killing Johnson. The crash investigation report said the deputy made an “unsafe pass” and was “operating an authorized emergency vehicle in an unsafe manner by driving without due regard for the safety of all persons and reckless disregard for the safety of others.”
Carmack also noted the Jeep’s driver had a blood alcohol level between .053 and .1271, according to the coroner. The legal limit for drivers is .08. Carmack said he could not determine that Johnson’s blood alcohol caused or even contributed to the accident, so he did not list it as a “causational factor.”
The day Carmack submitted his report to Rice for approval, State Police Capt. Steve Richardson and Lt. Sheldon Kelley called in Trooper Brandon Eller, who had participated in Klitch’s interview of Sloan. Richardson and Kelley “aggressively pressured” Eller to change his opinion that investigators would not be able to prove that Johnson’s alcohol level was the cause of the accident, Eller said in documents he filed in court in January. He refused to change his opinion.
Three days later, Richardson and Kelley called Carmack to a meeting and “made it abundantly clear they were unhappy with Cpl. Carmack’s conclusions that the deputy was responsible for the accident, which put him in a position where he might face prosecution,” Carmack attorney Erik Strindberg wrote in a December 2013 claim serving notice to ISP that a lawsuit was forthcoming.
Like Eller, Carmack made it clear to Richardson and Kelley that based upon what he knew, ISP could not prove that Johnson’s alcohol consumption caused the accident.
Richardson and Kelley also asked Carmack to include information about the Jeep’s turn signals in the report, according to court documents. Carmack explained that the left turn signal had been destroyed, so it was impossible to determine whether it had been operational.
“In short, both Capt. Richardson and Lt. Kelley wanted the report modified so as to place blame for the accident on the deceased and if not exonerate, at least minimize, the responsibility of the deputy,” Strindberg wrote. “Carmack believed that changing the report to reach a predetermined outcome or conclusion was wrong and unethical, even though he was effectively being ordered to do so.”
Despite his reservations, after the meeting Carmack did as ordered and made the changes, removing statements about Sloan’s unsafe driving and unsafe pass, and noting in his final conclusions that Johnson had a .08 blood alcohol level and that he turned left in front of an emergency vehicle. Carmack submitted the revised report to Rice, who approved it.
It was up to Gem County Prosecuting Attorney Richard Linville to decide whether criminal charges were warranted. He asked ISP for the entire Sloan crash file, as is routine. In the file were both versions of the crash reports, and both went to Linville. In March 2012, Linville decided to charge Sloan with felony vehicular manslaughter. Sloan resigned from the Payette County Sheriff’s Office four months after the crash and three weeks before Linville filed the charges. Sloan could not be reached for comment for this story.
PRELIMINARY HEARING TAKES A WRONG TURN
During Sloan’s April 2012 preliminary hearing, Linville queried Carmack about his accident investigation report’s final conclusion.
Carmack: Sloan was operating an authorized emergency vehicle in an unsafe manner ... (and with) reckless disregard for the safety of others.
Linville: Is that your conclusion as to what the causes of the crash were?
Linville: Is that ... a significant cause of Barry Johnson’s death?
Linville also called as a witness ISP crash reconstructionist Steve Smith, one of two people assigned to review Carmack’s report. Linville asked about the report’s conclusions being changed to include Johnson’s blood alcohol content and to remove statements about Sloan’s unsafe driving. Smith told the prosecutor it is common to have superiors review reports.
Linville: Is it common to have the format of a crash reconstruction changed in the middle of a reconstruction like you observed to have happened here?
Linville: Tell us how unusual in your experience?
Smith: I’ve never had it happen before.
Linville rested his case after calling his three ISP witnesses. Then Sloan’s defense attorney, Joe Filicetti, called his own witness: Klitch.
Linville was surprised to learn that the ISP lead investigator on the case was voluntarily cooperating with the defense.
“Trooper Klitch’s decision to work with the defense in this case, and not communicate with me, confused me and caused the case to continue for months longer than necessary,” Linville later told ISP officials. “It was clear to me that the defense attorney possessed information about the case that I didn’t have.”
In that hearing, Klitch said he did not recall putting “unsafe operation of an emergency vehicle” in the Sloan crash report. Emails later obtained by Linville tell a different story.
“It appears from the email correspondence that the testimony of Trooper Klitch at the preliminary hearing was less than accurate,” wrote Linville. “He testified at one point that he did not put the ‘unsafe operation of an emergency vehicle’ in the (report), yet he specifically requested that Trooper Carmack do so in his email.”
Linville and the plaintiffs’ attorneys say they discovered other inconsistencies with Klitch’s investigation. Klitch did not interview Sloan until more than a month after the crash, when he was directed to do so by his supervisor.
“For some unknown reason, and contrary to ISP’s well-established practices, Trooper Klitch, the investigating officer, had neglected to interview Deputy Sloan. According to ISP’s practices, such an interview should have taken place within a few days of the accident,” wrote Strindberg.
Then Linville learned in December 2012 that Klitch had secretly recorded a meeting with the prosecuting attorney. The recording should have been part of the case’s record, but Linville did not know of its existence until almost a year later, when a deputy attorney general gave it to him.
“Never in my 25 years as a prosecuting attorney have I had a law enforcement officer secretly record discussions during case preparation that are otherwise privileged and protected work product, then hide the existence of such a recording from me,” Linville wrote.
Linville said conflicting crash reports — the two ISP reports and two independent reviews, one commissioned by Linville and the other by Filicetti — and Klitch’s conduct undermined his ability to prosecute the Sloan case. He dismissed the charges against Sloan in March 2013, less than two months before the trial.
In court, what is known as the “Brady rule” requires the prosecution to turn over to the defense any information that may be useful, or exculpatory, in a defendant’s case.
This is relevant because of the role played by Rice, the crash reconstruction supervisor who reviewed Carmack’s report.
Rice has testified in more than 500 criminal and 400 civil cases as a crash investigator. In one of those cases, a 2006 road-rage murder case, the court found, and the Idaho Supreme Court upheld, that Rice gave testimony that conflicted with statements on reconstruction reports he’d made in previous court cases and contradicted training materials he had prepared. As a result, Jonathan Ellington’s murder conviction was tossed out due to prosecutorial misconduct and Rice’s testimony. Ellington was convicted in a second trial.
On the day of the state Supreme Court’s 2011 ruling, then-Maj. Ralph Powell went to Rice’s house and told him he was “Brady dead.” Because his expert witness testimony in the Ellington case had been deemed untruthful by the high court, Rice was no longer viable as an expert witness, because opposing attorneys could call his integrity into question.
Following an internal investigation into Rice’s testimony and its fallout, Powell recommended to then-ISP Director Col. Jerry Russell that Rice be terminated.
After letting Rice and other experts explain the complexity of the case and crash reconstruction testimony, Russell said he would “exonerate” Rice and “expunge” his record. Rice remained with the State Police and was promoted to sergeant in 2012.
As crash reconstruction program coordinator during the 2011 Sloan crash investigation, Rice had OK’d both reconstruction reports that went to the prosecuting attorney.
During Sloan’s April 2012 preliminary hearing, a State Police sergeant in the courtroom sent text messages to ISP command staff detailing the testimony of troopers Eller, Carmack and Smith. It was those text messages that alerted ISP leaders for the first time, according to Rice court documents, that both crash reconstruction reports had been delivered to the prosecutor.
While the preliminary hearing was still underway, Rice was called into a meeting with Powell, Maj. Ked Wills, Richardson, Kelley and three other command staff members at State Police headquarters in Meridian. During the meeting, according to court documents, “ISP officers” told Rice that Linville should not have received both reports .
Rice said he insisted that Brady obligations required the agency to turn over multiple versions of its reports to the prosecutor.
“The changes in the Sloan recon report, which Lt. Kelley and Capt. Richardson ordered to be made, created exculpatory evidence required by law, policies and procedures to be disclosed to Sloan,” according to Rice’s lawsuit.
Of the seven command staff in the meeting, only Maj. Clark Rollins agreed with Rice that both reports had to be turned over, Rice said.
Wills said he could not believe ISP was going to send a deputy to prison, according to Rice court documents. Another officer, referring to troopers Carmack and Eller, said “if these two boys have a job they will be lucky to work nights and weekends.”
In July 2013, Richardson and Maj. Kevin Hudgens sent an email to ISP staff ordering that all draft crash reports be destroyed, and in the future, draft crash reports not be kept in the official case file. Because that policy appeared to conflict with rules on turning over exculpatory evidence, Eller said in his complaint, he raised concerns about the policy of destroying draft reports. He said his concerns were ignored and he continued to receive instructions to destroy draft reports. Concerned about the implications of destroying draft reports and other department actions, Eller asked to be removed from the crash reconstruction unit in May 2014. He now works rotating patrol shifts.
Even though Col. Russell cleared Rice in 2011, Rice says he remained tainted with the “Brady dead” label.
SOMETIMES AN INTERNAL PROBE, SOMETIMES NOT
Under Idaho State Police procedures, “an administrative investigation occurs whenever it is alleged that an employee’s conduct or behavior violates any ISP Conduct Expectation (Policy), procedure, rule or training.”
A couple of weeks after Linville dismissed the charge against Sloan and sent his March 2013 letter criticizing Klitch, Sloan’s lawyer, Filicetti, sent Powell a letter alleging that Rice had withheld exculpatory evidence in the case. Rice was placed on administrative leave for nearly six months while ISP conducted an internal investigation into Filicetti’s allegations.
That same month, Linville sent the letter to Richardson detailing his concerns that lead investigator Klitch had been “less than accurate” during Sloan’s preliminary hearing, secretly recorded the meeting with Linville and communicated with defense attorney Filicetti without Linville’s knowledge. Linville asked that Klitch no longer patrol in Gem County so that Linville would “not be put in a position of having to rely on (Klitch) to testify in prosecution of criminal cases in this jurisdiction.”
In a response about two months later, Maj. Kevin Hudgens wrote Linville: “It is clearly apparent with all the individuals involved in the Sloan case that differences in opinion existed. ... It is unfortunate that you and Trooper Klitch failed to find common ground on this case, and it is the opinion of the Idaho State Police that Trooper Klitch conducted an unbiased investigation into this unfortunate crash, and looked at the case in its entirety prior to forming opinions.”
Linville’s letter did not trigger an internal investigation against Klitch then or several months later, when Rice told Powell about the letter during a review of the internal investigation against Rice.
The State Police did respond to the Statesman when asked about why there was no investigation. “ISP received correspondence from Mr. Linville in March of 2013, which referenced and enclosed a portion of the transcript from the preliminary hearing in the State v. Sloan matter in which Trooper Justin Klitch had testified. After a careful review of the testimony in question it was apparent that there was nothing improper about Trooper Klitch’s testimony; he clearly did not perjure himself, and an internal investigation into the same was thus not warranted,” ISP spokeswoman Teresa Baker told the Statesman.
Richardson’s and Kelley’s decision to order Carmack and Eller to change the Sloan crash report was the subject of an internal investigation, but neither were disciplined, according to court documents.
Rice, Eller and Carmack claim that after the Sloan case, ISP retaliated against them in myriad ways — reassignment from crash reconstruction to night and weekend patrol duty, rejected pay increases, denied promotions and poor evaluations.
Both Rice and Carmack received letters of reprimand. Rice was reprimanded for failing to “maintain a high standard of personal and professional responsibility.” Details about Carmack’s reprimand are not in the court files. Following the investigation initiated by the Filicetti complaint, which prompted Rice’s reprimand, Rice says he was subject to two additional “arbitrary, capricious, retaliatory” internal investigations. A 2013 investigation was deemed “unfounded” and another was dropped when Rice resigned after a 31-year career at ISP.
Rice and Eller have filed separate whistleblower lawsuits against ISP. Carmack has served notice, but not filed a lawsuit to date. Rice’s case is the most advanced, slated for trial in October.
Barry Johnson’s daughter, Jackie Raymond, is also seeking to right what she says is an injustice. She initially sued Sloan and Payette County for wrongful death. In February, Raymond filed a new lawsuit adding the State Police and Powell to the complaint for “tortious interference.”
ISP “cover-up and interference” and “evidence tampering” prevented the case from going to trial, her suit says, leaving unanswered Sloan’s culpability and making it more difficult for the family to prove liability in a civil suit.
Raymond’s attorney, Nathan Olson, said ISP “engaged in an enterprise or conspiracy with Sloan to, and did in fact, willfully and with full knowledge of Sloan’s unlawful conduct, conceal evidence, harbor and protect Sloan from criminal and civil liability, and intimidate, influence, impede, deter, threaten, harass and obstruct witnesses and/or potential witnesses, all in violation of state and federal law but in favor of a corrupt policy and effort to protect fellow Idaho law enforcement officers from the consequences of their unlawful conduct.”
Raymond’s suit has not been set for trial.