A judge will decide on Jan. 20 whether the punishment in a plea deal for state Sen. Greg Barkus is appropriate for felony charges stemming from an Aug. 27, 2009 boat crash on Flathead Lake. Barkus pleaded no contest to felony criminal endangerment as part of the deal at a hearing in Kalispell Thursday.
Malta District Judge John McKeon will review the proposed agreement, released Nov. 9, between Barkus and Flathead County Attorney Ed Corrigan. McKeon said he would not impose a sentence until he can review a presentence investigation report. If the judge rejects the agreement, or imposes a sentence different from what’s in the deal, Barkus then has the opportunity to withdraw his plea and go to trial.
Barkus, 64, faces three felony charges: one for criminal endangerment and two for negligent vehicular assault after the boat he was piloting crashed into a rocky outcropping near Wayfarer’s State Park, injuring all five passengers. Prosecutors say Barkus’ blood alcohol content was 0.16, twice the legal limit, when taken two hours after the accident.
Under the deal, Barkus pleaded no contest, in exchange for the dismissal of the other two charges. The agreement also imposes a three-year deferred sentence that could end after 18 months if there are no violations, and he would pay the state $4,000 in restitution.
“I will not entertain any dismissal of counts two and three until I consider the plea agreement,” McKeon said.
The judge questioned Barkus at length – on his mental state, medications he was prescribed and whether he had consumed any alcohol recently – to ensure that he understood the implications of pleading no contest to a felony, a charge that can carry a maximum sentence of 10 years. Barkus pleaded not guilty to the charges in Oct. 2009.
McKeon referenced evidence, presented by Corrigan at the beginning of the hearing from the investigative report, that the boat was traveling at least 40 miles per hour when it struck the rocks, based on the testimony of Kristin Smith, a passenger who said she saw the tachometer at 4,000 rpms shortly before crashing. Corrigan also noted the boat was not using any headlights and that Barkus was navigating from a GPS unit. An accident reconstruction specialist hired by the prosecution corroborated Smith’s assertion of the boat’s speed.
“Do you agree, with that evidence, the jury would find you guilty?” McKeon said.
“Yes, I suppose,” Barkus replied.
The crash occurred in the evening following a reception at The Docks restaurant in Lakeside. Barkus, a Kalispell Republican, was driving the boat east toward Bigfork, where passengers U.S. Rep. Denny Rehberg, R-Mont., and the congressman’s two staff members, Smith and Dustin Frost, were staying that evening. Barkus’ wife, Kathy, was also on the boat.
While Kathy Barkus and Smith sustained less severe injuries in the crash that left the boat lodged on rocks above the waters of Flathead Lake, Frost was in a coma for a week, Rehberg suffered a broken ankle and Barkus broke his pelvis.
At the hearing Thursday, McKeon asked Corrigan whether the victims were consulted on the plea deal. Corrigan said he has spoken with Frost, Rehberg’s state director at the time of the accident who now runs a political consulting firm, and that Frost accepts the deal but considers it too tough on Barkus.
“Mr. Frost has provided me with a letter in which he implored me to reduce these charges to a misdemeanor,” Corrigan told McKeon. “He’s of the opinion it’s probably a little harsher than it should be.”
Smith also accepted the deal, according to Corrigan.
And though he said he had not spoken directly with Rehberg, who was reelected to a sixth term last month, Corrigan said he talked to the congressman’s wife, Jan, “She did express a desire to get this matter resolved without trial.” Corrigan added that he had received an e-mail from Rehberg’s attorney, “expressing a high regard for everyone involved,” with confidence that the correct outcome would be reached through the justice system.
In considering sentencing, McKeon will also likely look at Barkus’ criminal history. The judge discussed briefly with Corrigan a 2004 incident in Lake County where Barkus was pulled over for drunken driving, a charge reduced to reckless driving. Barkus said at the time his driving was due to worry over the health of his mother. He has also received several minor traffic violations.