Tuesday, December 31, 2019

The Problematic Assumption that Mark Put a Gas Can in the Cab of His Truck

Previous posts (see July 22, 2012, and October 30, 2018) have brought up the problem that a gas can was found on the passenger’s side floor of my brother’s burning truck.  Since Mark put gas cans only in the back and never in the cab of his truck (see posts of September 22, 2010, and August 11, 2014), it is highly improbable that he put that gas can in the cab.  Yet the New York State Police insisted that Mark must have put it there and then spilled gasoline on himself, either inadvertently in a state of intoxication or deliberately in an effort to commit suicide.  Other posts have countered these claims by the State Police (see February 2 and July 22, 2012).  This post examines what was reported about the gas can on the scene of the truck fire and shortly afterwards.

Firefighter Mark Ward (also, as then superintendent of the Salamanca school system, the boss of my brother’s wife Susan and a close personal friend of hers) mentions in his witness statement that my brother had said the words “gasoline can” twice on the scene.  In his own witness statement, firefighter Gary Wind says that he heard my brother utter “something about gas,” but acknowledges that he “couldn’t make out anything he [my brother Mark] was saying.”  The State Police may well have taken Ward’s statement to imply that my brother was referring to using the gas can.  However, in her witness statement, Susan says that when she rushed to the scene, she asked Mark, “What did you do?” and that he replied, “I did nothing.”  Those words would suggest that Mark had not caused the fire by pouring gas into the tank or spilling it in the truck.  Otherwise, wouldn’t he have said something like “It was an accident,” or “I was putting gas in the truck”?

In her witness statement, Susan also mentions that shortly before the fire she heard a noise in the garage, which she thought was from the cats, but later adds, “After the fire, I realized that Mark had taken a plastic 5 gal. can of gas out of the garage but I don't know what he did with it.”  Early the next morning at the burn unit of the Erie County Medical Center, according to Carol McKenna, who is Mark’s and my half-sister, Susan told her that my brother had been putting gasoline in the truck and had got burned.  According to Carol’s son Tom, Susan told him at the burn unit that Mark had been putting gasoline into the tank with a cigarette hanging from his mouth when the fire started.

According to Mark’s and my cousin Dennis Pavlock, who was contacted about being a pallbearer at Mark’s funeral, Mark and Susan’s son Brian also told him that his father (whom he referred to as “Mark”) had been pouring gasoline into the tank when the fire started.  Brian, however, was apparently not at home, but away at school, at the time of the truck fire.  So Brian would not have had first-hand knowledge of what had happened.  Not long after, according to a long-time friend of Mark's and Susan's, Susan said that she had seen Mark carrying gas cans to the truck.

The three statements that Susan reportedly made about Mark putting gas into the tank or carrying a gas can (or cans) to the truck suggest that she may have seen someone with the gas can walking toward the truck or standing beside it.  But when the fire occurred around 11 p.m, the truck was fifty feet into the field across from their house, and the driveway leading from their attached garage to the street is about 100 feet long.  In addition, there would not have been substantial public street lighting on rural Whalen Road.  Under such circumstances, could a person accurately identify a man standing at or near Mark’s truck in the distance?

Saturday, November 30, 2019

The Insistence of the New York State Police about Suicide

This post deals with the insistence by the New York State Police, from early in the investigation, that my brother had committed suicide.  In spite of the suspicious circumstances of Mark’s truck fire and then Cattaraugus County District Attorney Edward Sharkey’s conclusion in December 2003 (see police report) that there was no evidence of a suicide (or murder), the State Police continued to express their belief that my brother’s death was a suicide.

As mentioned previously, Mark's daughter Christie told me in a phone conversation the very night of his death that her father had committed suicide and left her a suicide note but that she was not telling others in order to protect the insurance money.  However, she denied knowing anything about a suicide letter to the lead investigator on the case, Edward Kalfas (see most recently post of March 31, 2019).  Although at that time I was not aware of what others had heard from any official sources, a nephew later informed me that Calla Smith, a sister of Mark’s wife, had told him in the week after Mark died that it looked as though they were going to rule his death a suicide.

According to my nephew, Calla Smith did not specify who had relayed that information but indicated that insurance companies would pay out even if the death was ruled a suicide.  As the investigation proceeded, Mark’s and my half-sister Carol McKenna also mentioned that Inv. Kalfas thought Mark’s death a suicide.  In my one face-to-face interview with him, Kalfas told me that it was “looking more and more like a suicide” but did not offer any explanation for that view.

Although the record of a high serum-alcohol level in Mark’s autopsy report might well have caused the investigating authorities to consider the possibility of suicide initially, there clearly was no sound basis for drawing such a conclusion.  As recorded in the police report, D.A. Sharkey denied evidence of a suicide or of a murder and stated that Mark’s death would be declared an accident, in spite of the suspicious circumstances, including the pool of Mark’s blood in his driveway, the gas can in the cab of his truck where he never put gas cans, and the wound to his forehead.

The “evidence” that the State Police offered when questioned about their views in subsequent years points to the lack of a serious investigation.  In late 2005, Sr. Inv. John Wolfe, who had replaced John Ensell in that position, insisted that Mark must have driven his truck into the field across from his house the night of the fire.  He would not even entertain the possibility that my brother, who had left a pool of blood in his driveway and had evidence of head wounds, could have been placed in his truck by his attackers, even though only the passenger’s side door was found open when emergency workers arrived at the scene.  In addition, he denied evidence of wounds to Mark’s head, which had in fact been observed on the scene and at the burn unit.

In early 2006, when Atty. Michael Kelly tried to get the case re-opened, Wolfe stated that he believed Mark’s death a suicide, though admitting that he could not rule out a homicide.  Apparently, he did not consider it an accident.  When Kelly brought up the subject of the head wounds, Wolfe did not acknowledge any real wounds, but claimed that what was on Mark had been caused by "positioning."   When I asked Kelly what Wolfe meant by "positioning," he explained that Mark could have been hit on the head when they placed him in the ambulance.  It seems difficult to believe that emergency personnel trying to help save a critically injured individual would carelessly cause any kind of damage to that person’s head.

In a telephone conversation with me in early 2006, Capt. George Brown rejected all of my concerns about the investigation.  He insisted that the police investigation and subsequent follow-up efforts pointed to either an accident or a suicide but they considered Mark’s death a suicide.  Like Wolfe, he insisted that that Mark had driven his truck into the field, most likely to move it away from the property in an effort to commit suicide.  How, then, did Mark’s blood end up in his driveway?

Brown also claimed that my brother had saturated himself with gas as part of his suicide plan.  How, then, did gasoline get on my brother’s head, especially since the State Police claimed that he was in the driver’s seat?  According to the fire investigator’s report, an accelerant (presumably gasoline) had started the fire in the area of the driver’s seat.  But Mark would have had to pour gasoline on his head with that gas can found in the truck from a standing position outside the truck.  Yet no evidence of a gasoline spill in that area is reported in either the fire investigator’s or the police report.

In spring 2010, I had a face-to-face interview with current Cattaraugus County District Attorney Lori Rieman and John Ensell, the Senior Investigator during Mark’s case but at that time an investigator in the D.A.’s office (see posts of March 23 and April 20, 2011).  I brought up the troubling circumstances of Mark’s arrest for DWI after off-duty police officer Mark Marowski, a highly problematic individual (see most recently the post of August 11, 2014), got into a heated personal argument with him at a local club and then called in to the Salamanca police to pick him up.  Ensell then claimed that Mark was so upset about getting the DWI that while he was in jail, they had him on a suicide watch.  That assertion immediately seemed disingenuous.  When I later mentioned it to another individual in law enforcement, he dismissed that claim, noting that the suicide watch is standard procedure in arrests there.

Since there were really no substantive grounds for the position of the State Police that my brother committed suicide, why have they continued to insist on it?  Clearly, if they acknowledged that Mark, with head wounds and the blood he shed in his driveway, was in no condition to back his truck into that field, then neither accident nor suicide would be a possibility.