Thursday, September 22, 2011

What Happened to the Recording of the 911 Call?

    This post comes on the eve of the anniversary of my brother Mark's suspicious truck fire on September 23, 2003.  Like the previous post on the photographs of the scene, it is concerned with what happened to the recording of the 911 call by Mark's wife Susan at 10:55 that night.

    The 911 call is a potentially important piece of information about the events on the night of September 23 that cost my brother his life.  It was the first eyewitness statement made about the truck fire.  As is clear from cases I've read about and seen documented on television, such 911 calls have proved to be valuable reference points to check what is said afterwards by individuals and to help resolve various contradictions. 

    In this case, the 911 call seems important because confusing and contradictory statements were made about several issues, both on the scene of the fire and afterwards.  For instance, as I reported in the original post below (September 22, 2010), there is a contradiction between the witness statements of Mark's wife and a neighbor/EMT: Susan states that she tried to put out the flames on Mark, but Cheryl Simcox states that the white sweatshirt Susan said she used was clean, without any soot or skin on it.  Although for legal reasons I cannot mention on this blog everything I learned, I reported relevant information to authorities during the investigation and afterwards.  One crucial issue concerns how the fire started.  The fire investigator's report states that the tank of Mark's truck was about three-quarters full.  But various individuals reported to me that they were told the morning after the fire or later that Mark was burned specifically while putting gasoline into the tank after the truck ran out of gas.

    In my discussions with Atty. Tony Tanke and with Atty. Michael Kelly, I wondered why Trooper David Chandler, the first N.Y.S.P. officer on the scene of the truck fire, states in the police report that he "responded to Whalen Rd, Great Valley for a report of a male subject possibly attempting to burn himself in his vehicle."  Where did the trooper get that idea?  Mark's wife says nothing like that in her witness statement, and it does not appear anywhere else in the police report.  As I stated in my original post and at greater length in the second one, there are many compelling reasons why my brother would not have committed suicide.  In addition, as several professionals have indicated, suicide by fire is extremely rare in the United States.

    At his meeting with the two State Police investigators in September 2005, Atty. Kelly asked Inv. Edward Kalfas what the 911 call said.  The investigator replied that he had listened to the recording but couldn't remember what it said.  Sr. Inv. John Wolfe then indicated to Atty. Kelly that he would call to retrieve the 911 recording.  However, in November 2005 Sr. Inv. Wolfe informed Atty. Kelly that he would not check the 911 call, as well as other things, unless he decided to re-open the case after looking at the medical records.  (Of course, Sr. Inv. Wolfe chose not to re-open the case, based on his own perusal of the complex medical records and no discussion of them with Mark's physician at the burn unit, Dr. Edward Piotrowski.)  Given the various confusing statements about the scene of the fire, it is difficult to understand why the senior investigator would not go back to review that 911 call.  

    In late May of this year, on the advice of criminologist Will Savive, I made a FOIL request for an audio and transcript of the 911 call made by Mark's wife to report the truck fire.  On June 29, I received an e-mail response from Captain Laurie M. Wagner, Records Access Officer, Central Records Bureau of the New York State Police, to my FOIL request for the 911 call.  It read as follows:

    "Reference is made to your e-mail correspondence dated May 20, 2011, received at this office on May 23, 2011, requesting a copy of the audio and transcript of a 911 call made to Cattaraugus County 911 pertaining to an incident (#343029) that occurred in Great Valley on September 23, 2003, pursuant to the requirements of Article 6 of the Public Officers Law (Freedom of Information).  Please be advised that a search of our files failed to locate any records responsive to your request.  Any appeals may be addressed and mailed to the Records Appeal Officer, Administration, at the above address."

    What does "failed to locate any records responsive to your request" mean?  It would appear that the recording of the 911 call has been destroyed.  But I have not made the "appeal" referred to in the e-mail reply above.  Readers of my previous post may have seen the comment by Frank Romer about the N.Y.S.P. response to his FOIL request for "the written procedures and policies governing the purging of files," after he was informed that the photos of the scene of my brother's truck fire had been destroyed.  I quote the relevant part: "The NYSP’s reply was completely uninformative. They sent two sheets from an unspecified document and stamped NON-RESPONSIVE in large letters, with a brief indication that files could be purged after five years. I certainly hope the NYSP are not engaged in destroying other evidence in this unsolved case."  Under such circumstances, I'm not sure what the point is of making an appeal.

    I await the day when I can visit my brother at Calvary cemetery and finally say, "Requiescas in pace."  But there can be no peace without justice.

Thursday, September 1, 2011

What Happened to the Photos of the Scene of My Brother's Truck Fire?

    This post deals with the issue of the photos of the scene of my brother Mark's truck fire.  According to the police report, New York State Police Inv. Edward Kalfas and Sgt. Frankowski took thirty-eight photos of the scene shortly after 12:30 a.m. on September 24, roughly an hour and a half after the 911 call at 11 p.m. (Sept. 23, 2003). 

    These photographs were viewed by Atty. Michael Kelly when he met with Inv. Kalfas and his superior Sr. Inv. John Wolfe at my request in September 2005.  As Atty. Kelly reported to me, the photos revealed that Mark had shed a significant amount of blood in the part of the driveway where he normally parked his truck.  In October 2005, I also asked Sr. Inv. Wolfe if I could see the photographs.  At first he replied that, though comfortable allowing Atty. Kelly to look at the photos, he would not let me see them because, as Mark's sister, I would be upset by his condition.  I therefore asked if I could see the photos of the scene in general, including the pool of blood, and he agreed.  Although I reminded him twice about his promise to let me view the photos, Sr. Inv. Wolfe insisted in December 2005 that he had looked at the medical records and found no evidence that my brother had been attacked.  He then indicated that there was no point in meeting with me.

    Last May, after emphasizing the importance of finding out if there had been a fire trail in the field where Mark was found burning, criminologist Will Savive asked if I had ever seen the photos of the scene of Mark's truck fire.  He suggested that I make a FOIL request to obtain copies of the photos.  Attorney Tony Tanke also agreed that it would be very useful to view them.  Will even took the initiative of calling the Batavia office of the New York State Police to inquire how I might best proceed.  He informed me that he had spoken with Sr. Inv. Christopher Iwanko, who told him that they usually purge the records after five years.  Will added that Sr. Inv. Iwanko remembered the case.  He had, in fact, been involved in the investigation.  According to an entry in the police report for September 25, 2003, "Investigator Christopher Iwanko attends the autopsy, taking photographs, fingerprints and a blood kit from the victim."  As Will let me know, he soon received a follow-up call from Sr. Inv. Iwanko, who informed him that the photos had been destroyed in 2009.

    It seemed difficult to understand why those photos would have been destroyed.  In fact, former Sr. Inv. John Ensell mentioned in an e-mail to me in December 2010 that he had gone back to the case file to verify his recollection of coins on the scene, only to discover that there were no coins.  Didn’t Mr. Ensell look at the photos of the scene for that purpose?  To obtain a definitive answer about the status of the photos, I made a FOIL request electronically to the New York State Police for the 38 photographs mentioned in the police report.  The FOIL Unit replied as follows: "Submit your request for photographs to Troop A Headquarters, 4525 West Saile Drive, Batavia, New York 14020-1095, Identification Section.”  On June 8, I sent a FOIL request by U.S. mail to the Troop A Headquarters, but after two months had still received no reply.  I then e-mailed the FOIL Unit to let them know that the Batavia office had not responded.  The FOIL Unit again replied as follows: "As stated in the below email sent to you on May 23, 2011, the request for photographs is handled at Troop Headquarters not at this office.  You will have to contact that office with your concerns."

    About the same time as I made my initial FOIL request electronically, Frank Romer followed the same procedure to the FOIL Unit for the photographs.  In late June, he received the following reply by e-mail from the N.Y.S.P. Central Records Bureau: "Please be advised that all photographs concerning the above have met our criteria for purging and have therefore been destroyed.  Any appeals may be addressed and mailed to the Records Appeal Officer, Administration, at the above address."  As instructed, I repeated my FOIL request by U.S. mail to the Troop A Headquarters in late August but received a reply by U.S. mail from the Central Records Bureau.  It was the very same response that Frank Romer had received almost two months earlier by e-mail.  There was, to say the least, a lack of clarity in the process for the FOIL request to the New York State Police for the photos of my brother’s truck fire.

    Why were the photos of the scene destroyed?  Neither the Cattaraugus County District Attorney nor the New York State Police could offer a coherent explanation for my brother’s death as either an accident or a suicide.  Inv. Kalfas told Atty. Kelly in 2005 that they believed Mark’s death was the result of his high blood alcohol level. Yet when informed that, according to his attending physician at the burn unit, his blood alcohol level had to have been zero or only slightly above, they never interviewed Dr. Edward Piotrowski.  Nor apparently did they interview firefighter Wayne Frank, who like the doctor, saw the wound on my brother’s forehead and thought it looked as if he had been whacked by a golf club.  Nor did they check the telephone records, in part to verify the alleged call between Mark’s acquaintance Peter Rapacioli and his wife Susan from 10:30 to 10:55 the night of the fire.  Nor did they make a serious effort to find out why my brother’s daughter had told me that she was concealing a suicide letter in order to protect the insurance money.  The New York State Police were urged by Atty. Kelly in 2005 and by me on numerous occasions between 2005 and 2007 to do these and other things that had been left undone.  I also sent a letter to D.A. Edward Sharkey in October 2008 summarizing problems with the investigation and information I had obtained since the case was closed.  And yet the photos of the scene were still destroyed.

    I am curious as to why the response to both Frank Romer's and my FOIL requests came with the following: "Any appeals may be addressed and mailed to the Records Appeal Officer, Administration, at the above address."  What would the point of an appeal be?  Does "destroyed" not mean "permanently destroyed"?