Thursday, February 28, 2019

The N.Y.S. Police Failure to Check the Phone Records for the Night of Mark’s Truck Fire

A recent post (December 31, 2018) pointed out an inconsistency between the witness statement of my brother’s wife Susan and EMT Cheryl Simcox’s recollection of events the night of Mark’s truck fire.  In her witness statement, Susan says that she was on the phone when she saw the fire and then called 911 before rushing out to help Mark.  However, according to Cheryl, Susan told the State Police officer in her presence that she had been watching television right before the fire, not that she had been on the phone.  When I brought up Susan’s statement to Cheryl, she was very surprised, and it was clear that she herself knew nothing about this alleged phone call, even though she arrived on the scene just after 11 p.m. and stayed with Mark’s wife until about 1 a.m.

As a matter of proper investigative procedure, when a person is killed under suspicious circumstances and when that person’s marriage is known to have been particularly troubled, phone records are routinely checked.  The circumstances of Mark’s death certainly fall into that category.  Atty. Tony Tanke, who spoke by phone with then Cattaraugus County D. A. Edward Sharkey when the investigation had just concluded, reported that the District Attorney “could not describe how Mark came to be where he was or offer a plausible scenario of his death.”  Since it was well known that Mark’s and Susan’s marriage was in very serious trouble and their relations were acrimonious (see esp. post of May 26, 2014), the phone records should have been examined at least to determine if the call actually took place, to learn if it was made by landline or cell phone on both ends (for Susan and for Pete Rapacioli, who claimed that he had called), and to determine how long the call lasted.

Furthermore, the phone records would have helped to clarify the time frame in which Mark returned home that night, received a series of head wounds, left a pool of his blood in the driveway, was saturated with gasoline, and ended up on fire in the field across from his house about sixty feet from his burning truck.  The person whom Mark had reportedly visited that evening (see esp. post of August 14, 2015) could have provided the approximate time when my brother returned home, but that individual did not come forward.  The phone records, then, should have been considered essential for establishing a clear time frame for what happened that night.  Yet, according to Atty. Michael Kelly, who in 2005 had a meeting with Edward Kalfas, the lead investigator on Mark’s case, and his then superior John Wolfe, it appeared that the State Police had not constructed a time line of events for the night of the fire and had not done any drawings of the scene.

It is difficult to comprehend why the New York State Police have taken such a hard stand against examining the phone records.  According to Kelly, that should have been a routine part of the investigation, and he was baffled by the refusal of the State Police to rectify that initial lapse.  I sent a letter to Sen. Inv. John Wolfe in October 2005 requesting that he get the phone records.  Not long after, he informed me in a phone conversation that he would not get the phone records unless the case was re-opened, which he would decide after obtaining Mark’s medical records.  Subsequently, although acknowledging that he could not decipher much of the doctor’s handwriting in the medical records, he decided not to re-open the case or to obtain the phone records (see esp. post of December 27, 2012).  Similarly, when I brought up the phone records with Capt. George Brown in February 2006, he insisted that they were not significant.  In a phone conversation with me in April 2007, Lt. Allen completely dismissed the relevance of the phone records, insisting that they “would not prove anything.”

My continued efforts concerning the phone records were met with deaf ears.  In July 2014, I spoke with a member of the N.Y.S.P. Internal Affairs Office, John Aquilina, who simply did not respond when I brought up the importance of the phone records as well as Mark’s head injuries and the pool of his blood found in his driveway the night of the fire.  Finally, in August 2014, in response to that issue, Capt. Steven Nigrelli strangely claimed that the New York State Police cannot get phone records.

Were the New York State Police afraid of what they might actually find in those phone records?  One need only recall their failure to look into a potential involvement by Salamanca police officer Mark Marowski, even though they knew that, after a personal argument, he had set my brother up for a DWI the very day before his truck fire (see esp. post of September 14, 2014).  Had they been told, as was later reported to me in an anonymous letter (see post of August 11, 2014), that Marowski was having an affair with my brother’s wife?

The remainder of this post is a notice about the fact that certain documents that I have compiled related to the investigation into my brother Mark’s death are missing from a locked desk in my office.  It appears that someone may have tampered with the lock.  I want to make it very clear that I am not the author of anything about Mark’s death that does not come from this blog.

Tuesday, January 29, 2019

The Problem of the Failure of the N. Y. State Police to Investigate Mark’s Head Wounds

In September 2005, Atty. Michael Kelly met with Inv. Edward Kalfas and Senior Inv. John Wolfe to discuss a number of problematic issues related to the investigation into my brother’s death, including a wound on Mark’s forehead. That wound is not mentioned in the police report but had been revealed to me initially early in 2005 by Dr. Edward Piotrowski, my brother’s attending physician at the burn unit of the Erie County Medical Center, where he had been airlifted the night of his truck fire.  The doctor informed me that a CT scan had revealed deep soft-tissue swelling on his forehead and additional soft-tissue damage to the left side of his face.  Later in 2005, a firefighter named Wayne Frank, one of the first emergency workers on the scene, told Atty. Kelly that he, too, had observed the wound on Mark’s forehead the night of the fire.  (On the head wounds, see esp. posts of September 24, 2016, and March 31, 2018.)

According to Kelly, when he raised the issue of the forehead wound, Wolfe (who had replaced John Ensell, the original senior investigator on Mark’s case) was not aware of any such wound.  But after Kelly explained the fresh information from the doctor and the firefighter, Wolfe told him that he would have Trooper David Chandler come in and would ask him about the wound to Mark’s forehead and about comments by various individuals on the scene.  Kalfas informed Kelly that no photographs had been taken of Mark on the scene but showed him the autopsy photograph.  Kelly himself noticed the wound and pointed it out to Wolfe, who then acknowledged it.

Not long after Kelly’s meeting with the two N.Y. State Police officials, I myself had two telephone conversations with Wolfe, in late September and in mid-October.  However, there were significant discrepancies between what he said to me and what he had said to Kelly, in particular concerning the wound on Mark’s forehead.  I brought up both Dr. Piotrowski's information about the deep soft-tissue swelling, presumably caused by a blow to the forehead, and Wayne Frank's comments about the gash that he saw on Mark's forehead, possibly caused by a nine-iron.  In fact, in the second conversation, I had barely mentioned that firefighter’s name when Wolfe scoffed dismissively, “Oh, is that the guy with the nine-iron?”

Despite Wolfe’s scornful attitude, three individuals actually saw that wound.  In addition to Dr. Piotrowski, who expressed concern about the soft-tissue damage to Mark’s forehead (and additional soft-tissue damage to the left side of his face) and Wayne Frank, another firefighter on the scene, Gary Wind, also noticed the forehead wound.  When I brought up Kelly's statement that the wound was noticeable in the autopsy photograph, Wolfe contradicted what he had stated to Kelly.  Wolfe now claimed to me that the autopsy photo did not show any wound on Mark's forehead or any indication that he had been struck by a nine-iron or similar instrument.

Although Wolfe had told Kelly that he would speak with Trooper Chandler about the wound on Mark's forehead and about comments by individuals on the scene, he apparently did not.  In phone conversations with Wolfe, Kelly tried to find out about the status of his efforts to clarify the problem of the head wounds and related information.  Wolfe never responded about the interview he was supposed to have had with Chandler.

At their meeting in 2005, Kelly mentioned that during his years as N.Y. State chief prosecutor for nursing home crimes in western New York, he would provide a summary of efforts for redress to his client, along with relevant records.  He urged Wolfe to do the same for me.  That never happened.   Wolfe also prevented me from seeing the autopsy photo.  Although he claimed that the photo would be too upsetting to me, I had made it very clear that my sole concern was to find out the truth about my brother’s death, however unpleasant it might be.  In addition, Wolfe initially said that he would allow me to see the photos of the scene of my brother’s truck fire, but in the end never responded to my request for an appointment to view them.

Why did Wolfe fail to follow through on these issues related to the wound on Mark’s forehead?  That wound, the soft-tissue damage to the left side of his face, and mucosal congestion in his sinus areas (all observed by Dr. Piotrowski) suggest the likelihood that my brother had been attacked.  The pool of his blood found in an area off his driveway where he normally parked his truck (see esp. post of May 29, 2012) leads one to that very conclusion.

How can one reasonably explain Wolfe’s refusal to let me see the autopsy photo(s) and his failure to follow through on a meeting with me so that I could the photos of the scene that were taken by the State Police the night of the fire?  How can one reasonably explain the response by the State Police to my FOIL request (see post of September 1, 2011) that the photos of the scene of Mark’s truck fire could not be located?

Monday, December 31, 2018

Problems with Susan’s Witness Statement

Recent posts have examined more closely circumstances surrounding my brother Mark’s truck fire that are unclear or confusing in the report of the N.Y. State Police investigation and related documents (see posts of July 30, August September 29, October 30, and November 30, 2018).  As those posts point out, there are significant issues that the State Police apparently either failed to investigate fully or ignored altogether.  This post continues along those lines by considering some problems with the witness statement of Mark’s wife Susan.

According to her witness statement, my brother's wife was on the phone when she saw Mark’s truck on fire in the field across from their house.  She states, “At around 10:30 p.m. I was on the phone and waiting for Mark to return home….At around that time I saw fire out the window of our house, and after taking a closer look I could see Mark’s truck across the street from our driveway on fire.  I immediately called 911 and then went out to the fire.”  As mentioned in the previous post, Susan’s witness statement was taken by N.Y. State Trooper David Chandler, who records that it was begun at 11:30 and ended at 11:45 p.m. on the night of Mark’s truck fire.  (Witness statements are included in the file of the police report, attached to this blog).

Yet not everything that Susan said to Trooper Chandler appears to have been recorded in his narrative of her witness statement.  Cheryl Simcox, an EMT and a neighbor who was the first emergency worker on the scene, remained with Susan until about 1 a.m.  Cheryl mentioned that she had been with Susan when she gave her witness statement to the Trooper.  As I had obtained through a FOIL request the police report and related documents, including several witness statements, I relayed to Cheryl the content of Trooper Chandler’s narrative of Susan’s witness statement.  She expressed some concerns.

Cheryl pointed out that Susan had told the State Police officer in her presence that she had been watching television in the period immediately before the fire.  Cheryl mentioned that the television set had in fact been on when they went into the house.  She added that the television was in the living room, where a large picture window looked out to the driveway and the field.  (Photos of the property are in a file attached to this blog.)   Cheryl observed that one could not have been watching television there and not have noticed Mark's truck come up the driveway.  As mentioned in previous posts on this blog (see esp. May 29 and September 22, 2012), my brother left a pool of blood that night in an extension of the driveway where he normally parked his truck; so he presumably drove his truck up the driveway when he returned home that evening.

It is surprising that Trooper Chandler did not include that piece of information from Susan about what she had been doing just before the fire when he wrote up her witness statement.  All potentially relevant information should have been put in that narrative from a major witness, in this case the victim’s wife, who made the 911 call and was the first person on the scene of the fire.

More surprising, however, is that in her conversation with me Cheryl contradicted a point made in Trooper Chandler’s narrative of Susan’s witness statement.  According to Cheryl, Susan did not say anything to the Trooper about being on the phone when she gave her witness statement that night.  Why, then, does that information appear in the witness statement that Trooper Chandler wrote up?

It is unclear whether Trooper Chandler actually wrote up the narrative of Susan’s witness statement that same night or did it another day.  There is no indication that Trooper Chandler interviewed Susan a second time; so it is not likely that he combined his notes from two separate sessions with Mark’s wife.  The principal investigator Inv. Edward Kalfas interviewed Susan himself on September 25 (less than two days after Mark’s truck fire), but records in his narrative in the police report only that “[n]o new information was developed.”  The contradiction between Cheryl Simcox’s statement to me and Susan’s witness statement as written up by Trooper Chandler is unresolved.

Friday, November 30, 2018

What Happened Right after the 911 Call?

Recent posts have looked more closely at the circumstances surrounding my brother Mark’s truck fire that are unclear or confusing in the report of the N.Y. State Police investigation and related documents (see posts of July 30, August 30, September 29, and October 30, 2018, and official documents attached to this blog).  As is clear from those posts, there are a number of significant unanswered questions that the State Police investigation should have either probed or probed more fully.  This post considers what happened in the time between the 911 call and the arrival of the first emergency worker.

According to her witness statement, my brother's wife Susan was on the phone when she saw Mark’s truck on fire in the field across from their house.  As she explains, she “immediately called 911” and “then went out to the fire.”  She continues as follows: “I saw Mark crawling away from the truck, and I tried to put the flames on him out.”  She then says that she asked him, “‘What did you do?’ and he said, ‘I did nothing.’”  N.Y. State Trooper Chandler, who took Susan’s statement, began it at 11:30 p.m. (about thirty-five minutes after the 911 call) and ended it at 11:45 p.m.

It would appear that only a few minutes elapsed between Susan’s 911 call and the arrival of the first emergency worker, Cheryl Simcox, an EMT and a neighbor living on Cross Road, which intersects Whalen Rd. and is also located across from the field where Mark lay.  In her witness statement, Cheryl indicates that she heard Killbuck VFD being toned out for a vehicle fire on Whalen Rd. at 10:55 (presumably immediately after the 911 call was made) and that after getting dressed, she was “on the scene within two minutes.”  She goes on to say that Susan “was at the end of the driveway.”  Cheryl adds that Susan exclaimed, “Come on, we have to go put him out, that’s him on fire in the field.”

Susan does not mention in her witness statement that she discontinued her attempt to put the flames out on Mark and her query to him about what had happened (“What did you do?”) and then withdrew to the driveway.  As is evident from Cheryl’s statement quoted above, Susan wanted the two of them to go and extinguish the flames on Mark.  Susan clearly had already seen the truck burning while she was on the phone inside the house.

Had something further occurred while Susan herself went out to Mark on the scene of the fire?  When I asked Cheryl about her experience on the scene that night, she mentioned that she was surprised to see Susan standing at the end of the driveway.  N.Y.S.P. Inv. Edward Kalfas, however, makes no reference to this matter in his narrative in the police report.

Neither Susan nor Cheryl mentions in her witness statement how high the flames on my brother actually were.  But Cheryl told me that Mark was engulfed in flames two-feet high when she arrived on the scene (see also post of September 22, 2012).  According to Cheryl’s witness statement, Susan told her that she had tried to bat the flames out on Mark “with the white sweatshirt she was holding.”  Cheryl mentions that Susan also repeated that same thing to Trooper Chandler in her presence (“I tried to put him out with that sweatshirt.”).

Yet in her witness statement, Cheryl observes that the white sweatshirt, which Susan had put on a counter close by, “had a very light scent of smoke but was clean, no soot or skin on it.”  One would like some explanation for this considerable discrepancy.  But, once again, N.Y.S.P. Inv. Edward Kalfas makes no reference to this matter in his narrative in the police report.

Tuesday, October 30, 2018

The Problem of the Gas Can

The previous post (September 29, 2018) raised the issue of the time frame in which my brother arrived home, received injuries to his head, left a pool of blood in his driveway, and finally ended up lying on fire in the field across from his house, with his truck engulfed in flames sixty feet away and a gas can on the floor of the passenger’s side.  As noted in that post, my brother's wife Susan mentions the gas can in her witness statement, indicating that Mark himself took it out of the garage that night.  This post takes another look at the evidence for the gas can the night of the truck fire.

How and why that gas can suspiciously ended up in the cab of Mark's truck was cavalierly brushed off by the State Police investigators.  They assumed without hesitation that my brother had put it there.  But Mark never put gas cans in the cab of his truck (see posts of September 22, 2010, and August 11, 2014).  Here are the explanations they offered me: (a) my brother fell asleep in the truck after driving it into the field and then lit up a cigarette with the gas can open in the cab; (b) he accidentally spilled gas on himself in a drunken state; or (c) he deliberately poured gasoline on himself in the truck as a way of committing suicide there (see post of February 2, 2012).  However, those scenarios are absurd in light of these facts: the pool of blood in his driveway (see post of May 29, 2012) and the head wounds my brother suffered (see post of September 24, 2016) in themselves contradict the sleep (whether from intoxication or not) and suicide theories posited by the State Police.

It is obvious that the State Police investigators simply took at face value what Susan says in her witness statement.  First, she states, “I heard a noise in the garage and I thought it was the cats,” but at the end 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.”  In addition, when Atty. Mike Kelly asked about the gas can in his meeting with Inv. Kalfas and Sr. Inv. Wolfe in 2005, Kalfas told Kelly that Susan stated she had bought the can of gas and at the time of the fire it was half-full because she had used it for mowing the lawn.  Susan’s assumption that Mark had taken that gas can out of the garage is odd since she states that she was waiting for him to return home that evening and obviously did not see him.

It is also unclear why Susan, as indicated in her witness statement, immediately assumed that the fire in the truck was ignited by gasoline from that can.  There are in fact numerous recognized causes for vehicle fires, including fuel system leaks, electrical system failures, and overheated engines or catalytic converters.  If my brother’s truck had had a fuel system leak the night of the fire, lighting up a cigarette would presumably have been disastrous.

But that is not what happened.  Examination of the truck by the fire investigation team determined that there were no mechanical problems leading to a fire (see fire investigator’s report through the link on this blog).  An accelerant (presumably the gasoline from the can) was used; the fire appears to have started in the driver’s seat area, where the heaviest damage was; and a gas can (presumably open) was found on the passenger’s side floor.

It does not appear from the police report that the investigators ever considered any other explanation for the appearance of the gas can in the cab of the truck other than that Mark himself had put it there (see esp. post of July 22, 2012).  They do not seem to have questioned Susan’s view that Mark had taken that gas can out of the garage.  However, her confident assumption should have been examined more thoroughly.  For one, she had no opportunity to check for the gas can in the garage, according to neighbor and EMT Cheryl Simcox, who remained with Susan from her arrival about 11:05 until 1 a.m.

Furthermore, in a conversation with an emergency worker who had been on the scene of the fire, I asked if the gas can had been common knowledge early on that night, for instance, through shouts about a gas can in the truck.  The emergency worker heard nothing about a gas can from others on the scene, and that individual learned of it only after the fire investigation team, which arrived at 11:30 [erroneously noted as 22:30 in the fire investigator’s report], finished its work.

It is thus very unclear how Susan was so certain about the gas can between 11:30 and 11:45, when she gave her witness statement to the State Police official then on the scene. The State Police should have considered other possibilities rather than assume that Mark had taken that gas can and put it in the cab of his truck.

Saturday, September 29, 2018

When Did Mark Return Home the Night of His Truck Fire?

The previous two posts (July 30 and August 30, 2018) dealt with the problem of the 911 call made by my brother’s wife Susan and the alleged phone call that reportedly took place for about half an hour between Susan and a man named Pete Rapacioli right before Mark’s truck fire.  Both of these calls also raise issues related to the actual time frame of the entire incident, which included injuries inflicted to my brother’s forehead and the left side of his face, a pool of his blood left in his driveway, his truck backed down from the driveway and parked around fifty feet into the field across the road, the driver’s seat area doused with gasoline from a gas can found in the cab of the truck, and Mark himself lying about sixty feet from the truck, with two-foot flames shooting from his entire body (see esp. posts of February 2, March 27, May 29, July 22, August 22, September 22, and November 22, 2012).

How long did all this take from the time my brother returned home that night and ended up with the fatal third-degree burns over most of his body?  Presumably more than a few minutes.  Since they insisted that Mark himself in a highly inebriated state somehow had caused everything that happened to him, the New York State Police should have thought hard about the time line but apparently did not.  The time frame, however, seems very unclear, as presented in Susan’s witness statement in the police report.  But since the State Police refused both to review the 911 call and to retrieve the phone records for the alleged phone call, the only information on the time frame disclosed by the police what Mark’s wife says in her witness statement.

The events obviously began after Mark’s arrival home, but nothing in the police report clarifies that point.  Here is Susan’s information on the issue: “At around 10:30 p.m. I was on the phone and waiting for Mark to return home.”  All one can gather from this statement is that, according to Susan, my brother had not returned home by 10:30. Susan does not make any direct reference in her witness statement to Mark’s actual return home but instead says, “I heard a noise in the garage and I thought it was the cats.”  Since she does not indicate anything unusual about the cats making some disturbance in their attached garage, this noise she mentions might well have been from the cats.

The terminus of the time frame, however, is clear in Susan’s witness statement.  After referring to the noise, she mentions that she noticed the fire in the field, called 911, went out to the fire, and tried to put the flames out on Mark.  All that, she indicates, happened by 10:55 p.m. She adds that after the fire she realized Mark had taken a five-gallon gas can from the garage.

However, neighbor and EMT Cheryl Simcox, who was the first person after Susan on the scene and who remained with her until around 1 a.m., reported something else to me.  According to Cheryl, the night of the fire Susan also told her that she knew Mark had been on the property right before the fire and thought that he had been going after gas.  To comprehend how that horrific series of events took place, one would certainly want to know how and precisely when Susan knew that Mark had returned home that night.

Thursday, August 30, 2018

More on the Alleged Phone Call Just before Mark’s Truck Fire

This post follows up on the previous post (July 30, 2018), which deals with the problem of both the 911 call made by my brother’s wife Susan and the alleged phone call that reportedly took place for about half an hour between Susan and an acquaintance of Mark’s named Pete Rapacioli.  Focusing on the alleged phone call, the current post discusses comments made both by former N.Y. State Police Senior Investigator John Ensell, who was lead investigator Edward Kalfas’s immediate superior, and by Cattaraugus County District Attorney Lori Rieman during my face-to-face interview with them in May 2010.

Michael Kelly, an experienced criminal attorney from Buffalo and former Assistant District Attorney in Erie County, emphasized that checking the phone records should have been a routine part of the investigation into my brother’s death, especially given the very poor state of Mark’s and Susan’s marriage, the pool of Mark’s blood found in the area off the driveway where he normally parked his truck, the wounds observed on Mark’s head, and the gas can suspiciously located in the cab of his burned-out truck.  Atty. Kelly thought it important not only to verify the call but also to determine if land lines or cell phones were involved, since individuals using the latter could potentially have been right on the scene.  Although Kelly tried to persuade Ensell’s replacement Sr. Inv. John Wolfe to retrieve the phone records, Wolfe ultimately refused to do it (see esp. posts of December 27, 2012; May 15, 2013; and April 19, 2014).

In my meeting with Rieman and Ensell (on which, see post of March 23, 2011), I pressed the issue of the phone records.  However, D. A. Rieman simply dismissed the facts that in Atty. Kelly's opinion made a compelling case for reviewing those phone records.  Instead, she provided two reasons why the phone records were not checked.  According to Rieman, there was no reason to believe that Susan had not been on the phone since Pete Rapacioli confirmed the call in his interview with the State Police investigator.  Rieman also insisted that “serious evidence of criminal activity” would have been necessary for requesting a subpoena for the records.

At this meeting, Rieman thus reversed an earlier statement to me in a phone conversation that it would be very interesting to know if that phone call really took place.  Furthermore, her reasons for rejecting the importance of those phone records seem illogical or arbitrary.  First, serious police investigators as a rule do not automatically take statements by witnesses, especially potential persons of interest, at face value and assume that those individuals are telling the truth but rather try to verify information given by them.

Second, one must wonder what in Rieman’s view would constitute “serious evidence of criminal activity.”  The following facts hardly seem trivial: a heated personal argument with a Salamanca policeman that ended with the police officer arranging for Mark to be arrested for DWI the very day before the truck fire; Mark’s truck found backed into the field across the road from his house, with a gas can inside the cab (where he never put gas cans); wounds to Mark’s forehead and the left side of his face observed by his attending physician at the burn unit; and the pool of Mark’s blood found in his driveway the night of the fire.  In the matter of the police officer who got into the argument with Mark and called in to have him arrested for DWI, a letter sent to me anonymously reported that the officer had been having an affair with my brother’s wife (see esp. post of August 11, 2014).  

During the meeting with Rieman and Ensell, I drew special attention to that pool of my brother’s blood.  Without considering all the suspicious facts, they both simply insisted that the blood was no evidence of a crime.  After mentioning “loose change” found in the same area as the blood (which seemed irrelevant and which he later acknowledged was a mistake on his part; see post of April 20, 2011), Ensell immediately took another tack.  He stated that his wife was the friend of a friend of a friend of Susan’s and that down the chain they all felt that Susan would never be capable of doing anything violent.

How are such subjective impressions even relevant to a serious police investigation?  At best, they should simply be peripheral information in the context of rigorous fact-finding.  Why, then, didn’t the State Police investigate the phone records to verify the existence and timing of the alleged phone call and, beyond that, inquire into its content?  They could thus have learned if the facts supported the feelings of Mr. Ensell’s wife and her friends.

It was very clear from my entire meeting with Rieman and Ensell how little had been done in the investigation to get to the truth about Mark’s death.  As one informed local official put it, “They didn’t do anything.”