As details have slowly emerged about the day Brandon Ellingson drowned, much of the attention has focused on what Missouri Highway Patrol Trooper Anthony Piercy did and didn’t do.
But in recent weeks, and with the release of hundreds of pages of documents in the case, it is the Highway Patrol itself that has come under increasing scrutiny. Many question the objectivity of its investigation into Ellingson’s death, asking why more wasn’t shared with inquest jurors who ruled the death an accident and why the patrol has yet to admit that mistakes were made May 31.
Less than 21/2 hours after Ellingson died while under arrest for boating while intoxicated, Piercy himself reflected on what had happened.
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“What do we tell this kid’s family?” he said in a phone call with a supervisor that was captured on a patrol boat video obtained by The Star. “I arrest him for BWI, thinking I’m making him safer, and then I frickin’ drown the kid.”
Amid calls for federal authorities to get involved, a Missouri House committee will convene Wednesday to discuss the 2011 merger of the Missouri Water Patrol into the Highway Patrol. The merger ultimately set the course for Piercy, an 18-year road trooper, to patrol the water with what he himself described, in retrospect, as not enough training.
Legislators say their purpose is to analyze the merger, not Ellingson’s death. But some agree it could be difficult not to discuss the drowning or the investigation, which has prompted more than 8,000 signatures on a petition seeking “Justice for Brandon Ellingson.”
In reviewing the patrol’s final report and the investigation’s aftermath, The Star has found several red flags. Among them:
▪ An investigator rushed to turn off an audio recorder as a sergeant questioned whether a state boating safety law was violated the day Ellingson died.
▪ One witness who saw Ellingson in the water, and watched as Piercy eventually jumped in to save him, has said she thought troopers that day tried to lead her and other witnesses toward giving certain answers to questions about Piercy’s effort to save the young man.
▪ Reports weren’t filed or interviews conducted of key commanders who spoke to Piercy the evening of the drowning. In those moments, Piercy worried about exposing the patrol and himself to liability. “I know this is going to cause a black eye for the patrol,” he said.
In the days after Ellingson’s drowning, Gov. Jay Nixon heard from multiple people across the state about their concerns. Some questioned the merger, saying the patrol hadn’t done enough to properly cross-train road troopers to work the water. Another hoped the patrol wouldn’t investigate the incident itself.
“This incident should be investigated by an agency other than the (Highway Patrol) since it is an obvious conflict of interest,” Jim Helton of Cameron wrote in a July 5 email to Nixon, obtained by The Star through an open records request. “… The public deserves to have confidence in the people that are supposed to serve and protect and that are paid to do so.”
But no outside agency was called in. Instead, the Highway Patrol gave the job to two of its investigators assigned to the Division of Drug and Crime Control. They work in the Troop F area, which includes the lake, but they do not report to the troop’s command staff. Using their report and the finding of the coroner’s inquest, a special prosecutor determined this month that Piercy would face no criminal charge.
Col. Ronald K. Replogle, superintendent of the patrol, has offered his condolences to Ellingson’s family. While he has said he can’t talk about specifics of the Ellingson case, he has said that his agency is reviewing its policies and procedures to see whether improvements are needed.
“I stand behind the investigation that was completed in this case,” Replogle said.
Ellingson’s parents remain unconvinced. Craig and Sherry Ellingson spoke on the phone this past week with U.S. Sen. Chuck Grassley of Iowa. His office said Friday that Grassley would pass details of the case to U.S. Attorney General Eric Holder and ask him to review it.
“This isn’t just about Piercy,” said Sherry Ellingson, who started the online petition urging federal authorities to get involved. “There are a lot of people protecting him; they are trying to cover this up. It’s one protecting the other.”
‘Turn it off’
Nearly three weeks after the drowning — on June 19 — Sgt. Randy Henry sat down with the two investigators, Cpl. Eric Stacks and Sgt. Chris Harris, inside the Osage Beach Police Department.
A longtime Water Patrol officer, Henry was in his 29th summer patrolling the Lake of the Ozarks. Contacted about this story, he declined to comment.
Stacks and Harris interviewed him for 37 minutes. From that interview, Harris wrote a two-page summary.
In the audio recording, Henry noted that he did not call the meeting that day; he was contacted by Harris, who had heard that Piercy called Henry on May 31 and that there might be some discrepancies in what the trooper said that night and what he had reported later.
Henry then reminded Stacks that he had called Stacks several days after the drowning.
“I said, ‘Hey, do you want me to write down anything? You called me back around noon the same day and said it wasn’t necessary,” Henry said.
“Right,” Stacks said. “Right. … So we’re here now …”
“… I would think,” Henry said, “that you would want to hear what I have to say about all this now instead of hearing about it when I’m under oath, having a defense attorney ask.”
It isn’t clear why Stacks didn’t obtain Henry’s information initially. Lt. John Hotz, a patrol spokesman, said Stacks would not “be able to make any comments about the investigation.”
On the audio, Henry said he and Piercy had talked about what happened, how the trooper said Ellingson was leaning against the seat to his immediate right. Piercy has said since that Ellingson was sitting in the seat and stood up just before he went into the water.
The trooper told the sergeant he got into rough water and Ellingson left the boat.
“He said he tried grabbing the feet and couldn’t get to it,” Henry said.
Piercy relayed how Ellingson’s vest came off in the water. During the arrest, Piercy cuffed Ellingson’s hands behind his back and then placed a Type III vest, with armholes, around Ellingson’s upper torso. That type of vest cannot be properly secured on an already handcuffed person.
The trooper told how he had turned the boat to go back to Ellingson. He described how he had used a boat pole to try to reach Ellingson, but couldn’t. Eventually he jumped in. And though he had hold of Ellingson at one point, he lost his grip and the young man slipped to the bottom of the lake.
“I said, ‘Tony, did you inflate your life jacket?’”
“He said, ‘I was waiting for it to auto-inflate.’”
“I said, ‘Tony, those life jackets don’t auto-inflate.’”
“He said, ‘Oh, I thought they did.’”
Henry told him, “You have to pull the ripcord.”
A few days later, Henry said, he saw Piercy at a zone office. The trooper wanted to talk some more and Henry said he sat down.
And the story about his life jacket — a Type V “fanny pack” device — had changed.
“He said something about, ‘Man, if I would have just pulled my ripcord,’” Henry said. “… He didn’t say anything about how it wouldn’t auto-inflate again. ... I could tell he didn’t want to go down that road to repeat it.”
But Henry went on.
“I asked him, I said, ‘Tony, when you were down underwater’ … I said, ‘I’m not trying to Monday morning quarterback, accuse you of anything, (but) when you had him, if you had popped your cord, you both would have come up.’
“… I said, ‘Somehow, someway, you have to know how to use your equipment. I mean, that almost caused you to lose your life, not knowing how to use your life jacket.’ Looking back, I shouldn’t have said that to him. It’s just not my place to say it to him, but I said it.”
Henry also told the investigators that he had spoken with other troopers the night of the drowning.
“Well, I’ll be the first to admit, because I did bring it up, I forget to who, maybe to (Cpl.) Stacy (Mosher), you’ll have to ask her,” Henry said. “ I said, ‘Guys, they’re going to want full transparency on this thing, so we need to ask ourselves, did he use the highest degree of care here? Is Missouri Statute 306.125…?”
The investigators interrupt Henry.
Missouri Statute 306.125, Subsection 1 states: “Every person shall operate a motorboat, vessel or watercraft in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person and shall exercise the highest degree of care.”
“Turn it off,” Stacks said, referring to the audio recorder. “Push stop.”
“Well,” Harris told Henry. “That gets back to …”
Stacks interrupted again: “Just turn it off. Turn it off.”
At that moment, the interview ended.
That exchange didn’t make it into the investigators’ written summary in the final report.
After Ellingson was in the water, and his life vest had begun to come off, a group of women in a bachelorette party approached. More than two dozen women were on the boat, captained by Jim Bascue, owner of Playin Hooky Water Taxi and Charter.
When they got close, Bascue threw a life ring out. The women shouted at the man in the water to grab it. Then some yelled for Piercy to do something. He eventually jumped in the water.
While some women told investigators they thought Piercy did everything he could to save Ellingson once he was in the water, others wondered if he shouldn’t have jumped in sooner.
One of the women said on a Facebook page that she had signed the “Justice for Brandon Ellingson” petition.
She also wrote this:
“I can honestly say Brandon weighs heavily on my mind and my heart everyday. I feel as if the officers who came onto the boat to take our statements tried to sway our perspective of what we saw. After reading all the articles, I am now sticking with my original opinion that Piercy could have done more.”
The women provided the patrol written statements the day Ellingson drowned.
Six days later — the day the patrol said Piercy went back to work — many of the women were interviewed by patrol investigators. In separate interviews, they told investigators what they saw and then answered questions.
Audio recordings of those interviews were included in the final report, along with short written summaries.
The Star tried to reach many of the women. One declined to comment, and others did not reply to messages.
The summary for one of the women, Emily Newton, did not include mention of this exchange from her recording:
“In my opinion, I didn’t think the trooper, when we pulled up on it, I didn’t feel like he was in any hurry,” she told Sgt. Scott Stoelting. “But I know you guys are probably trained to remain calm. But that’s just how he appeared to me.”
“Sure,” Stoelting said. “And let me run this scenario by you. If the courthouse is on fire and the fire department gets there and the roof’s just about to fall in, would you expect the fireman to go in knowing the roof’s about to fall in?”
“No,” Newton said.
“It’s kind of the same way with —,” the sergeant said.
“I understand,” she said.
Stoelting explained how the patrol was trying to determine whether a crime had been committed.
“So if there’s anything that was done wrong, you know, it will be brought to the prosecutor’s attention and he’ll make that decision,” Stoelting said. “I’m sure at some point in time this may come to a civil suit or something …”
“Uh-huh,” Newton said.
“And I want you to keep in mind that you don’t have to talk to anyone else if you don’t want to. You can; you don’t have to.”
‘End of my water days’
Shortly after Ellingson drowned, Cpl. David Echternacht arrived on the scene.
A trained marine officer, Echternacht wrote the boating accident report, which explains the conditions that day, the operator’s estimated speed and the cause of the incident.
At one point in the report, the corporal filled in a box indicating Ellingson “voluntarily left vessel.” Yet he also used phrases such as “falling overboard” and “toppled over the side of the boat.”
He doesn’t talk about the speed of the boat as Piercy transported Ellingson to a zone office. Data from the boat’s GPS show Piercy hit speeds as high as 46 mph. In the moments before Ellingson entered the water, the boat was going as fast as 43.7 mph.
The primary cause of the incident was typed in as “Passenger exited boat.” The form has a line for “excessive speed,” but it was not marked as a contributing cause. The only contributing cause that was marked was “water conditions,” with the typed note “wave.”
As part of their subsequent investigation, two troopers, including lead investigator Stacks, re-enacted speeds from Ellingson’s ride. A video of that simulation shows Stacks, positioned where Ellingson was, being rocked in his seat as the speed increased to a maximum of 38 to 40 mph. Stacks gripped a pole with his right hand and even braced himself once with his left hand. Ellingson would have been able to steady himself only with his legs.
That May evening, as other marine operations troopers prepared to drag the lake for Ellingson’s body, Echternacht sat with Piercy on the corporal’s patrol boat.
At one point, Echternacht had a question for Piercy.
“Do you want to type out a quick statement in like a Word document — just get whatever is in your mind out?” the corporal asked. “Then we can destroy it — er — not destroy it, but you know, it won’t be part of your official record. Just taking notes. Do you want to do something like that?”
The trooper declined.
Later, Piercy said, “This is probably the end of my water days.”
He also took a call from his supervisor, Sgt. Donald Barbour. In that call, he explained what happened and how he arrested Ellingson.
It doesn’t appear that Barbour wrote a report of his conversation with Piercy. The final report also doesn’t show that investigators ever spoke to Barbour or Lt. Darewin Clardy, who also spoke with Piercy by phone that night.
In his conversation with Clardy, he said: “Maybe if I’d gotten the life jacket on a little snugger, maybe if I were a better swimmer. If I’d made him sit in the bottom of the boat … I guess I could ‘what if’ it to death.”
Hotz said he could not comment on details about the investigation, but “we have released everything on the death investigation that we got, the written reports, the video, the audio.”
Ellingson’s parents and supporters have many unanswered questions about the investigation, said Matt Boles, a Des Moines attorney representing the Ellingson estate and family. The parents increasingly see connections between their son’s death and the Highway Patrol’s practices since it took over responsibility for patrolling Missouri’s waterways three years ago.
“The failure of Tony Piercy is the failure of the Water Patrol merger — they are inextricably attached,” Boles said. “Protecting him is protecting the merger and the fact they didn’t properly train road officers.”