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Missouri Attorney General not actually allowed to file charges in duck boat case, defense argues

Emergency workers patrol an area of Table Rock Lake in Branson, Mo., in 2018 after a duck boat capsized and sank during a storm. Of the 31 people on board, 17 people died in the accident.
Charlie Riedel
/
AP
Emergency workers patrol an area of Table Rock Lake in Branson, Mo., in 2018 after a duck boat capsized and sank during a storm. Of the 31 people on board, 17 people died in the accident.

Defense attorneys for three men accused of criminal negligence in the 2018 duck boat tragedy on Table Rock Lake said Missouri law doesn’t allow the Missouri Attorney General to bring criminal charges without an invitation from a local prosecutor.

Lawyers for three men accused of criminal negligence in the deadly 2018 sinking of a duck boat on Table Rock Lake argued that Missouri Attorney General Eric Schmitt overstepped his office’s authority by filing a new criminal case against them earlier this year.

A motion to dismiss filed last week asked a judge to toss out the criminal case against Kenneth McKee, Charles Baltzell and Curtis Lanham because Schmitt’s office filed the case without the invitation or participation of the Stone County prosecutor.

The defendants argue that state law does not allow the attorney general to file a criminal case on its own for most types of crimes, and particularly not the crimes alleged to have been committed by McKee, Baltzell and Lanham.

The three former Ride the Ducks employees face various criminal charges that generally portray them as careless about passenger safety when they decided to take customers on a sightseeing tour on Table Rock Lake the evening of July 19, 2018.

An exceptionally strong storm approached the lake in southwest Missouri moments after the duck boat — a type of vessel that travels by water and by land — entered the water with 31 people on board. The storm’s powerful winds whipped up waves that battered the boat, causing it to sink and killing 17 people.

Federal prosecutors brought criminal charges against the three men, accusing them of disregarding storm warnings and prioritizing profits over passenger safety in 2019. But a judge dismissed that case when he decided that federal prosecutors did not have jurisdiction over the matter.

Then in 2021, Stone County Prosecutor, with the help of the Missouri Attorney General, brought similar charges in state court. Later that year, a two-day preliminary hearing took place in which the Stone County judge weighed whether the prosecutor had enough probable cause to believe a crime had occurred.

Defense attorneys for McKee, Baltzell and Lanham have argued that while the duck boat sinking amounted to a tragedy, evidence did not support the idea that a crime had occurred. They have said Table Rock Lake appeared calm when the tour started.

A Stone County judge earlier this year sided with defense attorneys and dismissed the charges.

Schmitt, a Republican vying for Missouri’s U.S. Senate seat, filed mostly identical charges two days after the dismissal, on April 7, 2022.

There’s no indication of Stone County Prosecutor Matt Selby’s involvement in the current case. Email and phone messages left with Selby’s office were not returned. In the motion to dismiss, defense attorneys point to an email sent by Selby to them that said he had notified Schmitt’s office that he did not have the time, resources or personnel to continue prosecuting the case.

In most instances, the Missouri Attorney General can participate in a criminal case if a local prosecutor asks for help, if a judge appoints a special counsel because the local prosecutor can’t handle the case or has a conflict of interest or if the governor directs the attorney general’s involvement.

In response to an inquiry by the Midwest Newsroom, a spokesperson for the attorney general produced a letter from Gov. Mike Parson dated July 14, 2021, directing Schmitt to help Stone County Prosecutor Matt Selby with an investigation and possible charges in the duck boat matter.

The following day, Selby and the attorney general first brought charges against the three defendants. A key question that a judge may have to consider is whether Parson’s authorization from 2021 extends to the current case.

The judge scheduled a hearing for Oct. 14 to consider the motion to dismiss.

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