An hour after a handcuffed Iowa man drowned in the Lake of the Ozarks, Trooper Anthony Piercy told a supervisor by phone that he might have made mistakes that day and feared for his job.
A video recording of that call was part of a massive release of records to The Star late last week, more than three months after the drowning of Brandon Ellingson. The Missouri Highway Patrol handed over its final investigative report, including several video discs of conversations and interviews, as well as more than 400 pages of documents.
Among the released information are many conversations Piercy had that May 31 night that were captured on cameras from patrol boats that responded to the incident. In those talks, he detailed everything from how intoxicated Ellingson was and how he tried to rescue the college student to his own speculation on how much trouble he was in.
Toward the end of the conversation with the supervisor, Piercy apologized.
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“Well, I’m sorry. I probably did a bunch of things wrong there.”
He spoke while sitting on the boat of Cpl. David Echternacht. His words were profane at times and revealed some discrepancies in what he has said since. In the six-minute call, Piercy said:
▪ That once he initiated the stop of Ellingson for boating while intoxicated, he realized his boat camera wasn’t loaded with a digital storage card. The card would have recorded the entire stop and transportation of Ellingson to a patrol zone office for a breath test.
▪ That he reached for Ellingson as he went overboard and was able to grab hold of one of his feet until it was pulled from his hands.
▪ That he was physically exhausted from jumping into the lake to try to save Ellingson and nearly drowned himself.
“I’m banged up a little bit, but I’m all right,” Piercy said at 6:30 p.m. May 31. “I don’t know if I’m sore from treading water with the bastard, but I just feel spent. … I thought I had run a marathon.”
Some of what Piercy said that night doesn’t match what he has said in the weeks since.
When Piercy, 43, testified Sept. 4 in a Morgan County coroner’s inquest, he said he discovered that the digital storage card was missing earlier in his shift when he pulled over a family for having children seated in the wrong section of their boat.
He said at the inquest that he reached for Ellingson as he left the boat, not that he was able to grab one of his feet. In another conversation on May 31, he said his hand might have just grazed Ellingson’s foot.
In response to questions from The Star for patrol officials and Piercy, a patrol spokesman left a message Friday.
“We released all the reports,” Lt. John Hotz said. “There are not any comments I can make as far as that goes.”
In a separate interview Thursday, before The Star heard the videotaped calls, the patrol’s superintendent said his agency was reviewing all policies and procedures. Col. Ronald K. Replogle said that after the May 31 death on the lake’s Gravois Arm,, highway troopers who had been working part time on the lake have not been permitted to patrol on the water by themselves.
Piercy, an 18-year veteran road trooper, was beginning his second summer helping on the lake when Ellingson drowned. Piercy returned to duty less than a week afterward.
Replogle offered his thoughts to Ellingson’s family.
“My condolences and prayers go out to that family,” he said. “I’m a father of two sons … and I can only imagine what that family has gone through since the death of their son.”
‘Armchair quarterback all you want’
A special prosecutor assigned to review Ellingson’s drowning declined Monday to file charges against Piercy. Though Osage County Prosecutor Amanda Grellner said the incident showed negligence, it did not rise to the level of criminal recklessness.
Her decision came just four days after jurors at the inquest determined that Ellingson’s death was an accident. It took the three women and three men less than eight minutes to come to that decision.
The jurors heard from four people and listened to audiotape of two others. Among those who testified was Piercy. For more than an hour, he described what happened that night and answered questions.
He choked up more than once during the inquest and told the jury that he wasn’t properly trained for what he encountered that day.
Piercy told jurors that as he was transporting Ellingson to a zone office, the Iowa man was seated next to him. He said that he put a Type III life vest over Ellingson’s shoulders, fastened all three buckles and then tightened their straps. He later gave jurors a demonstration with the help of a Morgan County sheriff’s deputy.
Friends of Ellingson who watched the arrest from his boat, however, had told investigators that the trooper tugged an already buckled vest over the college student’s muscular build and was able to pull it only partway down his chest.
A Type III vest has armholes and cannot be secured on someone who is already handcuffed. Two Type I jackets, which troopers are trained to use on handcuffed subjects, were available on Piercy’s boat. One was just feet from where Ellingson was seated during field sobriety tests.
Piercy told the jury that at one point he noticed waves from another boat coming toward his patrol boat and began to slow the vessel. He said he saw Ellingson standing next to him and started to tell him to sit down, but Ellingson “went out of the boat.”
As he told the story, Piercy began to choke back tears: “I reached for him and wasn’t able to grab a hold of him.”
Witnesses saw the life vest come off Ellingson shortly after he entered the water. Divers recovered his body the next day. Tests showed he had a blood alcohol content of 0.268 percent and tested positive for cocaine.
Since the inquest and Grellner’s decision to not file charges, Ellingson’s family and friends, as well as many in the public, have expressed outrage on social media and Internet forums.
They have lashed out at Grellner and Morgan County coroner M.B. Jones, who said he called for the inquest to ensure an independent review.
After the inquest, one commenter wrote: “Injustice, plain and simple.”
And after the announcement that no charges would be filed, another commenter said: “Both the prosecutor and coroner are gutless.”
“There is no question that it is a tragedy when a boy dies in this manner,” Grellner said in an interview. “Which is why I understand completely why people are angry.”
Unfortunately, she said, the evidence required to prove a criminal offense “is not there.”
Many commenters have criticized the objectivity of the inquest. They have noted discrepancies in some of Piercy’s statements, and they wondered why two witnesses who saw Ellingson in the water — as well as a senior water patrol officer whom Piercy called after the drowning — were not called to testify.
Jones said he stood behind the inquest.
“You can armchair quarterback all you want,” Jones said. “I think it was done as fair as we know how to do. … You can find things until you are blue in the face, but it’s over, I think.”
Ellingson’s family doesn’t see it that way. His father, Craig Ellingson, met with Iowa Gov. Terry Branstad last week and is pushing for federal authorities to look into the investigation conducted by the Missouri Highway Patrol.
Craig Ellingson and his lawyer hope to speak with senators soon.
“The Department of Justice can still come in and review it and make recommendations and there’s a possibility it can be referred to the U.S. attorney’s office,” said Des Moines attorney Matt Boles, who is representing Ellingson’s estate and family. “I do not believe at this point that anyone can definitively say this is done.”
‘I had to try to do something’
Piercy told the supervisor on the phone that night that he wasn’t sure what happened.
The trooper said that before Ellingson went overboard, the college student was “being nice and cooperative.” Piercy said Ellingson asked, “So am I going to jail?”
Piercy said that soon after that question, he slowed his boat for two big waves and within seconds, Ellingson went over the edge.
“Well, I don’t know if it was the wake and his intoxication or if he (expletive) did it on purpose,” Piercy said.
Before Piercy said goodbye to his supervisor, he asked to be contacted if anything happened.
“Keep me posted on if I’m still going to be employed or what’s going on.”
That phone conversation isn’t the only one caught on tape. Piercy also called his wife that night, and he talked with Echternacht and other troopers who responded to the scene.
At one point, Piercy asked about statements given by the women on a party boat, the Playin Hooky Water Taxi & Charter, that came upon the scene after Ellingson was in the water and witnessed Piercy’s efforts to save him.
“So did the girls think I drowned the poor bastard?” Piercy said.
“Nope,” a man said. “… You need to read them (their statements).”
“I don’t want to read them,” Piercy said.
“A lot of them said when they threw life rings to him … he didn’t swim toward the life rings,” the man said.
The women could not see, under the water’s surface, that Ellingson was handcuffed.
Several on the boat told investigators that Piercy had worked hard to save Ellingson.
At another point, the video shows Piercy and a fellow trooper talking on a boat. The trooper was operating the vessel and Piercy was riding next to him, as Ellingson had ridden next to Piercy on their way to the zone office.
“How much trouble do you think I’m in?” Piercy asked. They talked about the life vest that had come off Ellingson.
“I think it’s freaking awesome that you got in the water and went after him,” the other trooper said.
“I had to try to do something,” Piercy said.
“No, I’m with you,” the trooper said. “You definitely can’t just stand there.”
Piercy called another sergeant hours after Ellingson drowned, according to a report released by the state.
Sgt. Randy Henry told investigators that Piercy had told him he was traveling between 30 and 35 mph.
A report of the boat’s GPS coordinates, which was obtained by The Star, showed Piercy was going 39.1 to 43.7 mph just before Ellingson went overboard. Yet the boating accident report, written by Echternacht, listed the operator’s estimated speed as 10 mph.
In the videotaped conversation, Piercy said he slowed to about 10 mph as his boat met two large waves from another vessel. He said Ellingson went overboard after the first wave.
When Henry met with investigators, he told them he spoke with other officers the night of the drowning.
“I said, ‘Guys, they’re gonna want full transparency on this thing,’” Henry said he told them. “’So we need to ask ourselves, ‘Did he use the highest degree of care here?’”
To show the conditions on Piercy’s boat that night before Ellingson went overboard, two troopers — including lead investigator Cpl. Eric Stacks — set out to simulate the speed it traveled.
The Highway Patrol included a video of this re-enactment in its final report. That video shows Stacks as the passenger, positioned where Ellingson was on May 31, 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 brace himself only with his legs.