Thursday, December 27, 2012

Why Were the Telephone Records Not Checked?

This post deals with the important issue of the telephone records that were completely neglected in the police investigation into my brother's death.  As previous posts (Sept. 22, 2010, and August 22, 2012) point out, several friends or acquaintances tried to reach Mark or expected a call from him on the day of the truck fire, but no one except his wife (according to her witness statement) saw him or heard from him that day.  Since my brother was very connected to his friends, this unexplained lack of communication was a matter of concern to a number of people in the period following Mark's death.  In addition, New York State Police Inv. Edward Kalfas acknowledged to Atty. Michael Kelly in September 2005 that he had not found anyone who saw my brother out at any time that day, although his wife Susan says in her witness statement that he left the house around 8:45 p.m. to go to downtown Salamanca.  Susan was presumably at work as usual at her secretarial job at the Salamanca High School until 4:00 p.m., though the police report does not specify where she was during the day. 

Given the mystery of Mark’s whereabouts that day, it seems only logical that Inv. Kalfas would have checked the telephone records to find out if my brother had made or received any phone calls on September 23, 2003.  Furthermore, the investigator assumed very early on that my brother had been “depressed” after getting a DWI the previous day and likely suicidal (on problems with that view, however, see the posts of Sept. 22, 2010, December 11, 2010, and March 27, 2012).  One would have expected Inv. Kalfas to check the telephone records in order to determine if Mark had spoken by phone with anyone that day.  If Mark had spoken to any of his friends on September 23, the investigator would presumably have been able to find out about Mark's state of mind prior to the truck fire and could have learned about any despondency if there had been any (certainly no depression on Mark's part is indicated in his wife's witness statement).  Mark’s long-time friend Bill Lewis mentioned that he had generally spoken by phone with him once a week.  According to Bill, Mark never showed any suicidal tendencies and, if he had ever found it impossible to cope with life, would not have “bailed out” without saying goodbye.  It is difficult to understand why Inv. Kalfas did not look into the phone records to try to find out what Mark had communicated to the people with whom he last spoke by telephone.

Beyond the strange circumstance that no one (except his wife, per her witness statement) seems to have either seen or heard from my brother the day of his truck fire, there are numerous reasons why the State Police investigator should have checked relevant phone records.  Here are three of the most important:

(1) As mentioned in previous posts (Sept. 22, 2010, and July 28, 2011), my brother was arrested for DWI after he left the Holy Cross Athletic Club following an apparently heated personal argument with then Salamanca police officer Mark Marowski.  Reportedly, on coming back into the Holy Cross Club after he went out to phone in on Mark, Ofc. Marowski was overheard saying to someone on his cell phone, “It’s all taken care of.”  If Ofc. Marowski indeed made that statement, to whom was he talking at that point and just what was “taken care of”?  Because Inv. Kalfas did not question the members of the Holy Cross Club who were present about the argument, he presumably did not consider those questions.  Had he interviewed the relevant Holy Cross Club members and found out the particulars of the argument, he might well have decided that Ofc. Marowski’s cell phone records should be checked.

(2) According to an entry for 9/25/03 in his narrative in the police report, Inv. Kalfas interviewed an individual (name redacted) who stated that he had called the house to speak with Mark about a charity football pool but, apparently finding that he was not at home, spoke instead with Mark’s wife Susan, until she saw the flames in the field.  It is well known that this individual was Peter Rapacioli, as Inv. Kalfas acknowledged to Atty. Michael Kelly in 2005.  However, I happened to call Mr. Rapacioli on the advice of one of Mark’s friends, who mentioned that my brother had had frequent contact with him.  When I spoke with Peter Rapacioli just five weeks after Mark’s death, he told me that he had not heard from Mark on Monday evening as he had expected and therefore called Mark’s house early on Tuesday.  Mr. Rapacioli said nothing whatsoever about being on the phone with Mark’s wife late Tuesday night when she saw the flames in the field and hung up to call 911.

It is difficult to understand how Mr. Rapacioli could have failed to tell me, as Mark's sister, that he had called the house to speak with him but, after twenty-five minutes of conversation with my brother’s wife, was abruptly informed by her that Mark's truck was on fire in the field across the road.  In the period immediately following Mark’s death, I knew nothing about any phone call to Mark's house several minutes before the truck fire.  But in my letter of December 22, 2003, to D.A. Edward Sharkey, I mentioned that Mr. Rapacioli had told me about trying to reach my brother early in the day, several hours--not minutes--before the truck fire.  Apparently, the investigating authorities either did not notice the inconsistency in Mr. Rapacioli's statements or, for some reason, did not consider it a problem.

(3) According to the police report, only Mark’s wife Susan provided any information about events on September 23, 2003, prior to the truck fire.  In her witness statement, Susan says (a) that she heard a noise in the garage about 10:30, which she thought was from the cats; (b) that she later realized the noise was from Mark getting a gas can; and (c) that she saw Mark crawling away from the truck just after she called 911 at 10:55.  As indicated in the post of September 22, 2012, there appears to have been a very narrow time frame (between 10:30 and 10:55) for what took place before Mark ended up burning to death in that field.  In particular, the information given to me by Mark’s attending physician at the burn unit about wounds to my brother’s head and the pool of blood found by the authorities in the driveway suggest a longer time frame than half an hour, especially if Mark himself drove his truck into the field.  It does not seem credible that, with the wounds to his forehead and the left side of his face as well as the injury that caused him to lose a pool of blood, my brother would have been able to drive his truck at all–much less back it down the driveway and into the field.  He certainly would have needed some time to recover. 

Furthermore, a statement by Mark’s wife that is not in the official records should have made the phone records seem even more important.  Mark’s and my half-sister Carol McKenna mentioned overhearing Susan say to herself at the burn unit the following morning that she wished she could take back those last few hours.  Why were “those last few hours” problematic to Mark’s wife?  What had happened?  I relayed this comment to D.A. Sharkey in my letter of December 26, 2003, but, as far as I know, he was unconcerned about it.

According to Atty. Michael Kelly, checking the phone records should have been a matter of routine procedure.  When he met with Inv. Kalfas and Sr. Inv. John Wolfe in September 2005, he urged the State Police to check those records, and Wolfe said that he would.  I myself followed up with a letter to Sr. Inv. Wolfe asking him to check the phone records and brought up the issue with him in a telephone conversation.  But the senior investigator then said that he would not check the phone records unless the investigation was re-opened, which depended on what he found in the medical records.  After obtaining the medical records by subpoena, Wolfe insisted that he could see no reference to the injuries Dr. Piotrowski had mentioned to me, though he also acknowledged that the doctor’s handwriting was difficult to decipher.  He then said that the case would not be re-opened.  When I brought up the phone records with N.Y.S.P. Capt. George Brown in February 2006, he insisted that they were not important.  In April 2007, N.Y.S.P. Lt. Allen likewise downplayed the importance of the phone records, claiming that they would prove nothing.  It’s as if the police were trying not to find evidence to re-open the investigation. 

When I brought up the issue of the phone records with Lori Rieman during her campaign for Cattaraugus County District Attorney in 2009, she said that it would be useful to know if that phone call between 10:30 and 10:55 really took place.  But later, when I met with now D.A. Rieman in May 2010, she had changed her position about the phone records.  She asserted that the phone records would have to have been obtained by subpoena and that serious evidence of criminal activity would have been necessary to request it.  D.A. Rieman then insisted that the call between 10:30 and 10:55 was verified by Peter Rapacioli in his interview with Inv. Kalfas.

It is extremely perplexing that the investigating authorities have so persistently dismissed the significance of the telephone records in the case of my brother’s death.  Their resistance to looking into those records seems all the more incomprehensible in light of cases where telephone records have clearly been a key factor in solving a murder.  One instance concerns a case recently aired on the true crime program “48 Hours.”  Although there was little hard evidence against a man who was suspected of murdering his former girlfriend because of unhappiness over their break-up, his cell phone records were critical to solving the case.  The police were able to prove that he was not where he had claimed to be the evening of the woman’s murder, but in fact had made or received calls close to her apartment and to the spot where he had buried her faithful dog, the only eyewitness to her murder.  The authorities in that case were very eager to search those records and seem to have had no problem in obtaining them.

Thursday, November 1, 2012

The Issue of Mark Doused with Gasoline

This post deals with one of the critical issues concerning my brother's death: he was doused with gasoline.  As a nephew who was at the burn unit the morning after the truck fire mentioned to me, Mark's attending physician told him, “This was no accident.”  According to John McKenna, Dr. Edward Piotrowski explained to him that Mark had been doused with a flammable liquid and that either someone had done it to him or he had done it to himself.  As a forensics expert recently explained, when doused with gasoline, the skin continues to burn even when a person removes his clothing to try to put out the fire.  Thus, Mark's burns were extremely severe, mainly third and even some fourth-degree, over almost all of his body. 

To judge by the police report, this issue was sidestepped in the investigation.  Inv. Edward Kalfas does not directly address it in the police report.  But in early 2004 Mark's and my half-sister Carol McKenna informed me of what Inv. Kalfas had recently told her: Mark had been saturated with gasoline.  Later, however, when urged to re-open the investigation partly because of information revealed to me by Dr. Piotrowski, the New York State Police made conflicting statements about the problem of Mark having been doused with gasoline.  This issue, moreover, is tied up with troubling statements about suicide made shortly after my brother's death.

In a telephone conversation in 2005 with Sr. Inv. John Wolfe about my concerns with the investigation, I asked how my brother’s death could have been an accident, given the severity of the burns over ninety percent of his body and the gasoline on his skin.  Mr. Wolfe, however, insisted that there did not appear to be any burns on Mark’s head and therefore his head had not been doused with gasoline.  Although I was not given the opportunity to see the autopsy photos, it is difficult to understand how my brother’s head could appear unburned.  According to my nephew John McKenna, who saw Mark in the burn unit before he died, his head was so badly burned that his nose was “almost burned off.”  John said that the burns on Mark’s head were clearly third-degree.  Dr. Piotrowski confirmed my nephew's observation by indicating that he did not understand how Mark had also got gasoline on his head, as his burns there were so severe.

Furthermore, Sr. Inv. Wolfe criticized Dr. Piotrowski instead of seriously considering what this experienced doctor had observed at first hand.  I mentioned, for instance, that the doctor had commented on the condition of my brother’s hands as extremely burned, which indicated to him that Mark had been trying to put the flames out and had not been committing suicide.  But Mr. Wolfe replied sharply that Dr. Piotrowski should never have made such a remark because people who commit suicide by self-immolation frequently try to put the flames out because of the intensity of the fire.

When in 2006 I raised the general issue about the dousing with Capt. George Brown, he did not deny it but insisted that my brother could have spilled gasoline on himself accidentally “because of his drunken state.”  Yet when I asked how Mark--even if he had been drinking--could have accidentally got gasoline on his head, Capt. Brown changed his explanation for the death.  He then claimed instead that the saturation with gasoline suggested suicide.  As so often with my questions to the New York State Police, if a particular fact did not fit conveniently with the theory of accident, they then insisted that it indicated suicide, or vice versa.  The State Police were apparently unconcerned about the issue of logic when various facts fit the one theory but not the other.  My brother’s death, however, could not have been an accident for one reason and a suicide for another, as if the two were somehow interchangeable.

After the New York State Governor’s office informed me in 2007 that a representative from the State Police would respond to my questions, a Lt. Allen from Troop A contacted me.  But, in fact, point by point he seemed more interested in staunchly defending the investigation.  When I  brought up the problem of the saturation with gasoline, Lt. Allen asserted that he did not know where that was stated in the records.  I mentioned the reference in the police report to samples of Mark’s clothing that tested positive for gasoline and the statement by the attending physician to a nephew at the burn unit that Mark had been doused with a flammable liquid.  Lt. Allen, however, dismissed the issue, insisting that he did not understand how Dr. Piotrowski could have known that Mark was saturated with gasoline just by examining him, without lab tests.

It is clear that very early on in the investigation the State Police decided that Mark had committed suicide.  The gas can in the cab of the truck, with which they assumed my brother had deliberately or accidentally poured gasoline on himself, was obviously a key factor in their decision.  Yet why, then, did the State Police fail to interview Dr. Piotrowski about Mark's burns during the investigation?  Why did they fail to interview him in 2005, when both Att. Michael Kelly and I asked them to speak with the doctor about the information that he had related to me about the wounds on Mark's forehead and face as well as the dousing with gasoline?  According to Capt. Brown, Dr. Piotrowski, when reached by telephone in late 2005, told Sr. Inv. Wolfe that he did not remember the case and would have to check the medical records.  However, in response to a question of mine in 2005, Dr. Piotrowski said that he did not have to look at his records because Mark had been so badly burned that he could not forget the case.

An entry on that issue in Inv. Kalfas's narrative in the police report is a matter of concern.  For 9/24/03, the investigator states the following: “Member interviews...[about a third of the line blacked out] also states the victim was unable to communicate at any time during treatment.”  It is not at all clear why the name of the medical personnel here (presumably a doctor) should have been redacted.  But who was this physician?  Dr. Piotrowski was without question Mark's attending physician at the Erie County Medical Center.  He not only treated my brother for his burns; he also spoke with the relatives present (I was not informed of my brother's injuries until the 7:40 the following morning, too late to get to Buffalo before he died).  Yet, in my conversations with him, the doctor emphasized that he had never been contacted by anyone in the investigation and therefore thought that the authorities knew what had happened and did not need any information from him.

Another entry in Inv. Kalfas's narrative in the police report is also a matter of concern.  For 11/22/03, the investigator summarizes his interview with someone described as “a good friend of the victim.”  I quote the last sentence verbatim: “He also added 'when he got the DWI with his name in the paper, I think it pushed him over the edge.'”  Since the individual's name is redacted, it is difficult to say for certain who it is.  But when I spoke with Mark's friend Jim Poole in November 2003, he told me that the State Police investigator had interviewed him and asked if he could think of any reason why Mark might have committed suicide.  Jim told me that, because he was asked to speculate, he told the investigator that Mark was a proud man and would have been upset at seeing his name in the paper for a DWI.  But Jim added that he did not find that a real motivation for Mark to commit suicide.  What legitimate reason was there for State Police to black out the names--apart from Mark’s wife Susan, whose identity would be self-evident--of all the individuals whom Inv. Kalfas interviewed (except, oddly, mine)?  Did the statement quoted above refer to Jim Poole?  If so, it does not appear to have represented what Jim actually said in his interview with Inv. Kalfas.

A statement about suicide reported to me by my nephew John McKenna is even more troubling.  According to John, when he called Mark's house a day or so after his death, Susan's sister Calla Smith, whom he had never met, told him that it looked as if the police were going to rule Mark's death a suicide.  How could Ms. Smith possibly have known right after Mark's death that the investigating authorities expected to call Mark's death a suicide?  By contrast, Mark’s wife Susan, according to Carol McKenna, stated the following about the suicide theory: “Oh, Mark would never have done that!”  When Calla Smith made her remark to John McKenna, the investigation had barely begun.  What could her source of information have been?

After nearly nine years of relaying important information about the suspicious nature of Mark’s death (much of which I cannot post on this blog) and engaging two well respected lawyers (Tony Tanke and Michael Kelly) to discuss its relevance with the investigating authorities, what can be said?  A commenter on this blog (post of September 22, 2012) perhaps puts it best: “It’s small town police and small town connections, they didn’t want to do the work.”  But, then again, there is no statute of limitations on murder.                   

Saturday, September 22, 2012

More Questions about What Happened the Night of Mark’s Truck Fire

Today marks the eve of the ninth anniversary of my brother’s truck fire.  Given abundant evidence pointing to the suspicious nature of that fire, it is difficult to understand how the investigating authorities came to the conclusion that Mark himself caused the fire by either accidentally spilling or deliberately pouring gasoline on himself inside the truck and why they have continued to insist that my brother’s death could not have been a murder.  This post further considers problems with the State Police’s theory that Mark drove his truck into the field across the road from his property and then ignited gasoline that he had spilled or poured on himself.

There appears to have been a narrow time frame within which the truck could have been driven into the field.  In her witness statement, Mark’s wife Susan says that they were watching television around 7:30 p.m. and that Mark left for downtown Salamanca around 8:45.  My previous post (August 22, 2012) mentions a problem with Susan’s statement that they were watching television together.  But, regardless of that issue, Mark apparently was off the property around 8:45 and did not return until about 10:30.  For, to judge by her witness statement, Susan did not see or hear Mark come up the driveway.  However, she says that around 10:30 she heard a noise in the garage, which she thought came from the cats, but later realized that Mark had taken a five-gallon gas can from the garage.

What would Mark have been doing with that gas can?  The State Police assume that he put it on the floor of the passenger’s side of the truck and then drove to the field, where he spilled or poured the gas on himself and in the driver’s seat area.  As a previous post (June 26, 2011) makes clear, that scenario seems highly unlikely.  Moreover, conflicting statements about what Mark supposedly did with that gas can make it difficult to know what really happened.  There is a significant discrepancy between what Susan says in her witness statement and what a relative reported Susan said to her just hours later. 

In her witness statement, Susan clearly says that she did not know what Mark had done with the gas can.  However, at the Erie County Medical Center the next morning Susan gave a different account to Mark’s and my half-sister Carol McKenna.  As Carol informed me within a few days of Mark’s death, Susan told her that when the fire started, Mark had been putting gasoline into the tank, which had run out of gas.  At the time, of course, Carol had no official information about the fire.  But she expressed concern because later that day at the burn unit Susan gave a second, completely different explanation: the truck's starter had malfunctioned and caused the fire.  Not long afterward, however, Inv. Edward Kalfas revealed what the fire investigator’s report made official: the tank was almost full, and the truck fire was not caused by any mechanical problem.  As mentioned in my post of July 22, 2012, a day or so after the fire Mark’s and Susan’s son Brian told my cousin Dennis Pavlock that the truck had run out of gas.  According to Dennis, when Brian called to ask him to be a pall bearer, he explained that Mark had been putting gas into the tank when the fire started. 

It is also unclear how Susan knew that a gas can was missing.  As my post of July 22, 2012, points out, Susan says nothing about seeing Mark himself until she rushed out of the house after noticing the flames in the field and calling 911.  When did she go into the garage?  Susan’s statement was taken between 11:30 and 11:45 p.m., shortly after the fire.  As recorded in her own witness statement, Cheryl Simcox accompanied Susan into the house at Susan’s own request when they left the scene of the fire and remained with her until about 1 a.m.  Some time ago, I spoke with Cheryl, who was the first person on the scene after Mark’s wife, about this issue.  According to Cheryl, they did not go into the garage after the fire that night. 

Before his truck went into the field, my brother must first have driven it to his usual parking spot in an extension off the long driveway, as a pool of his blood was found in that space when police and emergency workers arrived.  (See photos of the driveway by the link on the right of the page.)  Since the blood was fresh, Mark had to have been in that area shortly before his truck fire.  As my post of May 29, 2012, points out, Susan apparently neither saw nor heard anything unusual in the area of the driveway between 10:30 and 10:55 p.m. as she waited for Mark to return from downtown Salamanca.  But after leaving at 8:45, my brother presumably returned around 10:30, pulled up the driveway, and parked his truck in his usual spot. 

However, since Mark must have been injured in his parking area, it is difficult to grasp how he could have driven his truck to the field.  As mentioned in the original post (September 22, 2010), Dr. Edward Piotrowski, Mark’s attending physician in the burn unit in Buffalo, stated that my brother had “deep soft-tissue swelling” in his forehead (confirmed by a CT scan) and further soft-tissue damage to the left side of his face.  Mark also presumably received a blow to his nose, the probable source of the pool of blood.  After sustaining those injuries, my brother would have needed some time to recover, especially from the blow to his forehead, which may well have knocked him out.  He would hardly have been able to drive his truck immediately at all, much less back it first from the extension into the driveway, then down the remainder of his long driveway and straight into the field.  The only logical inference is that someone else backed that truck into the field.

It is not at all clear precisely--or even approximately--where Mark was when he was first discovered on fire in the field by his wife.  In her witness statement, Susan says that when she rushed out of the house after ending a phone conversation (with Peter Rapacioli) and calling 911, she saw Mark “crawling away from the truck.”  She does not specify his distance from the truck.  But at the burn unit the next morning, Susan told Carol McKenna that Mark was a few feet from the truck when she found him.  However, shortly after at the burn unit, she told Carol’s son John that Mark was 100 feet away from the truck.  This discrepancy (as well as the one about the cause of the fire) was mentioned by Carol to Inv. Kalfas early in the investigation, as he confirmed to Att. Michael Kelly in 2005 when asked why he had not recorded in the police report Carol’s information about Susan’s statements in the burn unit.  Inv. Kalfas replied that he assumed Susan had been upset and confused and therefore he did not think those statements important.  (In her witness statement, however, Cheryl Simcox comments on Susan’s calm demeanor that night, and others made similar remarks.) 

It is unfortunate, moreover, that in his interviews with Susan, the investigator did not have her clarify as specifically as possible where Mark was in the field when she first saw him.  She presumably had a fairly clear idea since, according to her witness statement, she rushed to the field and tried to put out the flames on Mark.  (In her own witness statement, however, Cheryl Simcox mentions that when Susan put down on the counter the white sweatshirt she said she had used to bat the flames, it was clean, with no soot or skin on it.)  Mark’s distance from the truck when his wife approached him was certainly relevant information in the effort to determine how he ended up where emergency workers found him, so very badly burned. 

It is also unfortunate that Inv. Kalfas apparently did not fully consider how Mark had come to be a considerable distance--about sixty feet--from the truck when the first emergency workers found him.  As already mentioned, Susan says in her witness statement that she saw Mark “crawling away from the truck.”  It is very difficult, however, to understand how he could have crawled sixty feet, impaired by fresh head wounds and so fully engulfed in flames.  As Cheryl Simcox told me, two-foot flames were shooting from my brother’s whole body, including his head, when she saw him just a couple of minutes after the 911 call was made.  Even more troubling, how could Mark, with his entire body ablaze, have crawled sixty feet from the truck without leaving a fire trail?  Yet there is no evidence of any fire trail.

Wednesday, August 22, 2012

Concerns about the Mystery of Mark’s Whereabouts the Day of His Truck Fire

My last post (July 22, 2012) dealt with the problem of the gas can in the cab of my brother’s pick-up truck the night of the fire.  In that context, it pointed to the troubling issue of a statement made by his son Brian (20 years of age at the time) to a cousin of ours a day or so after the fire that Mark had been burned while putting gasoline into his truck after it ran out of gas.  As noted there, Brian’s statement is a matter of concern not only because my brother’s truck had clearly not run out of gas but also because Mark’s daughter Christie (23 years of age at the time) told me the evening of his death that her father had left her a suicide letter, which she later denied to the State Police investigator.  Here, I consider the problem of why apparently none of his friends and acquaintances saw or heard from Mark at any point on September 23, 2003, prior to his truck fire.  The fire took place the day after my brother was set up for a DWI by then Salamanca police officer Mark Marowski after they got into a personal argument at the Holy Cross Athletic Club, reportedly over Brian’s own arrest for DWI (by Officer Marowski himself, according to rumors).

Inv. Edward Kalfas acknowledged to Att. Michael Kelly in 2005 that he had not been able to find anyone who saw Mark out the day of the truck fire.  Although Mark’s absence in public places that day might conceivably have been the result of embarrassment over his DWI the day before, his wife Susan says in her witness statement that he left the house at 8:45 p.m. specifically to go to downtown Salamanca (presumably to one of the clubs or bars, the only places open at that hour).  One must assume, then, that Mark was not so mortified over the DWI as to be unwilling to appear in public.  Yet no one apparently saw him.  In addition, shortly after his death, at least two individuals said that they had tried to reach Mark by phone the day of the fire but got no answer.  His friend Jim Poole also told me that he had been very surprised not to get a call from Mark that day, since the previous evening (after he returned from the DWI) Mark had left a voice mail message promising to call back about helping Jim with some painting.  Mark was by nature a very sociable person.  So this highly unusual absence is a matter of concern to me, as it was to friends of his who asked in the months after his death if I had found out where he was that day.

The mystery of Mark’s whereabouts the day of his truck fire is even more of a concern in light of a statement made to me by my nephew John McKenna shortly after Mark’s death.  John mentioned that on Sunday the week before the truck fire he had driven down from suburban Buffalo to show Mark his new motorcycle.  Susan, John said, informed him that Mark wasn’t home, but he noticed that ordinary things of Mark’s, such as boots and jackets, were not around as they usually had been and that pictures of Mark were no longer on display.  According to John, it looked as if Mark wasn’t living there.  In the same conversation, John also referred to the fact that Mark's and Susan’s son Brian had got a DWI about that very same time.

In later conversations, John mentioned more specific information about Mark not living in his own home.  He informed me that more than once my brother had spent a week or so, apparently not of his own accord, living with our mother (who, protective of Mark, had not revealed anything about this issue to me by the time of her death in November 2000).  John also mentioned that Brian had explained why he himself was living with his grandmother (Mark’s and my mother) rather than with his parents from late 1999 to mid-2000.  According to John, Brian stated that “Mark wouldn’t move out.”  Since when does a sixteen or seventeen-year old boy have the right to expect his father to move out of his own house?  I myself was very surprised to find Brian living in my family home when I went to visit my mother at Christmastime in 1999.  To my query about why he was there, Brian simply replied, “I don’t get along with my father.” 

John also mentioned his shock at Brian’s response when he picked him up at the Buffalo airport (presumably from school in Virginia) early in the afternoon on September 24, just after Mark died at the burn unit.  According to John, Brian asked sarcastically, “What happened?  Did Mark kill himself?”  In a telephone call to me in November 2003, Brian was clearly not happy that I had been phoning Mark’s friends to ask what they had observed about Mark in the period before his death.  He also expressed strong hostility toward his deceased father.  When I asked him what my brother had ever done that was so terrible, he replied that several years earlier Mark had yelled at him for cashing a savings bond to buy a new golf club.  Hadn’t Mark actually done his duty as a father in that instance?  Although I waited to hear something more substantive, Brian had nothing more to say on the subject.

What Mark’s wife Susan says in her witness statement about his presence at home on September 23 also seems problematic.  Susan states that she and Mark were “watching television around 7:30 p.m.”  Yet Alexis Wright told me that when she and her husband Jim brought Mark home from his DWI arrest the day before, she had never seen anyone angrier than Mark’s wife.  According to Alexis, Susan shouted to Mark, “Pack your bags and get the hell out,” among other statements that included vulgarity.  When I spoke with firefighter Wayne Frank in 2005, he said it was well known that Susan had been furious over Mark’s DWI.  One can be very angry, of course, and not act on those emotions.  But Susan’s witness statement seems unrealistically to give the impression of domestic harmony.  It is also a matter of concern to me that when D. A. Edward Sharkey instructed the State Police investigator to ask Mark’s wife to take a polygraph test in April 2004, Susan refused.

Peter Rapacioli’s statement to Inv. Kalfas, as recorded in the police report narrative for 9/25/03, does not in fact square with what he told me.  Although I do not know Mr. Rapacioli, I was advised in early November 2003 by one of my brother’s friends to contact him because he had been involved in a charity football pool with Mark.  According to the police report, Mr. Rapacioli “was on the telephone with Mrs. Pavlock, looking to speak with the victim, when she advised him of seeing the fire and hung up to call ‘911.’”  But when I spoke with him around five weeks after Mark’s death, Mr. Rapacioli told me that he had tried unsuccessfully to reach Mark earlier that day.  He said nothing whatsoever about being on the phone with Mark’s wife late that night when she saw the truck in flames in the field across the road.  That seems too important a detail to fail to mention, especially to the victim’s sister.

The investigating authorities were informed by numerous individuals about problems related to the immediate circumstances of Mark’s truck fire.  However, they clearly focused on the issue of Mark’s drinking (about which I will have more information in a future post).  But they should also have taken other issues into consideration, including problematic attitudes toward Mark and statements about the day of the fire that didn’t add up.

I urge readers of this blog to go directly to the police report by clicking on the link on the right-hand side, where it is listed under “Official Documents.”  The redactions seem unnecessarily abundant.  According to the State Police official who responded to my FOIL request, sensitive information about police procedures would not be revealed.  But why should the names and some of the substance of witness statements be blacked out?  FOIL, after all, refers to freedom of information.  But nonetheless where, for instance, does Inv. Kalfas record the Wrights’ observations when they brought Mark home from his DWI?  Alexis assured me that they had reported that information in their interview with the investigator. 

My brother’s character is also impugned in the police report, as though he had done little other than drink.  But whatever faults Mark may have had (and using alcohol for relief in a period of personal stress is a problem), he was at heart a kind person, who among other things served his country in Vietnam and for many years performed a considerable amount of community service.  He did not deserve to have third-degree burns inflicted over ninety percent of his body, and he does not deserve to have his reputation left as it is in that official record.

Most important, those responsible for Mark’s death ought to be held accountable.  This blog should not have to compensate for an indifferent or ineffective justice system.  But, sadly, that seems to be the case.

Sunday, July 22, 2012

A Closer Look at the Gas Can

This post focuses more specifically on the problem of the gasoline can found on the passenger’s side floor of my brother’s truck the night of the fire.  The gas can raises a host of questions about the events of September 23, 2003, that cost Mark his life as a result of third-degree burns over ninety percent of his body. 

Little is said about the gas can in the police and the fire investigator’s reports.  Here is what the official documents and a statement by the State Police investigator reveal:
           
(1) An entry in the police report narrative for 09/24/03 lists among five items of evidence "the melted remains of a red plastic gas can." 
(2) An entry in the police report narrative for 11/04/03 states the following: “Member received lab results from the Western Regional Crime Lab regarding the melted gas can and burnt clothing from the victim.  Items tested positive for gasoline.”
(3) The fire investigator's report states that the gas can was found in the cab of Mark's truck on the floor of the passenger's side.
(4) In her witness statement (completed at 11:45 on the night of the fire), Mark's wife Susan states the following: "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." 
(5) In a meeting with Att. Michael Kelly in September 2005, Inv. Kalfas stated the following: Mark's wife told him that she had purchased the gas can and that it was half-full, as she had used it to mow the lawn.

Earlier posts (September 22, 2010, and June 26, 2011) raised some basic questions: How did the gas can get into the cab of my brother’s truck when he never put gas cans there?  Who put it there?  Clearly, someone used that can to pour gasoline on the driver’s seat and on my brother himself and lit the match or lighter that triggered the fire.  The fire investigator's report states that the fire started in the driver’s seat area and that there was “preparation,” and the attending physician at the burn unit told a nephew that Mark had been doused with a flammable liquid.  The fire investigator's report also mentions that a lighter was found on the floor of the passenger's side of the truck, and the police report refers to a book of Winston matches secured from the scene but does not indicate specifically where it was found.  Was the gas can open or not when the truck fire actually started?  The police and the fire investigator’s reports do not say, nor do they indicate if testing was done on the can to try to determine the answer.  As I recently learned from a forensics expert, it is important to know if the can was open or not, and forensics specialists could make that determination.  Was Mark in the truck or around sixty feet away from it when he was doused with gasoline?  

Apparently, there was no intense scrutiny of these matters.  To judge from the police report and from oral statements by the authorities, it was simply assumed that Mark had put the gas can in the cab and that he had spilled gasoline on himself in an intoxicated condition or poured it on himself in an act of suicide or lit up a cigarette in a drowsy state after falling asleep in the truck (see February 2, 2012).  Did the investigating authorities take as fact the statement (quoted above) by Mark's wife: "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."  Did they then extend its implications and assume definitively that Mark had put that gas can in the truck?  Besides acknowledging that she didn’t know “what he did with it,” Susan's comment provides no concrete evidence that Mark had any gas can in his possession at the time.  For, according to her witness statement, Susan did not actually see Mark at any point after 8:45 p.m. until she ran out of the house when the truck went up in flames about 11:00 (see May 29, 2012).

Did the investigating authorities give equal credence to the statement by firefighter Mark Ward (also, as then superintendent of the Salamanca school system, Susan’s boss and a close personal friend of hers) that my brother had said the words “gasoline can” twice on the scene in his presence?  Ward’s witness statement, however, differs from that of Gary Wind, who says that he heard my brother utter “something about gas,” but acknowledges that he “couldn’t make out anything he [Mark] was saying.”  A previous post (November 30, 2011) deals with the problematic nature of claims about what my brother reportedly said when emergency workers arrived.  Even N.Y.S.P. Lt. Allen acknowledged to me in 2007 that someone on the scene might have said, ”Did Mark say ‘gas’?” and the others around might have picked up on it.  It may also be relevant that Ward’s witness statement was given not the night of the fire (as Gary Wind’s was), but on October 2, 2003, that is, nine days after the truck fire.  Doubtless, people who had been on the scene were talking with one another about what they had seen and heard.  Was a witness statement given nine days later influenced by the content of these exchanges after the incident?

It is surprising, furthermore, that the authorities were not troubled during the investigation  by false or misleading statements about the gas can that had been made on the scene of the fire and shortly afterward.  Numerous statements related to the gas can were in fact made in the hours after my brother was airlifted to the Erie County Medical Center in Buffalo.

Here in this post I am concerned with one comment specifically.  It was reported to me by my cousin Dennis Pavlock, who lives in Florida.  Dennis informed me that Mark’s son Brian had called to ask him to be a pall bearer at the funeral.  According to my cousin, Brian explained to him that Mark had been burned while putting gasoline into the tank of his truck after he ran out of gas.  Immediately after Mark’s death, of course, my cousin did not know that Mark’s truck could not have run out of gas just before the fire because the tank was three-quarters full.  But when he told me about the conversation, my cousin had learned the truth about the gas tank and was very concerned about Brian’s statement.  What motivated Brian to tell Dennis that his father had been burned putting gasoline into the tank of his truck after he ran out of gas?  No one on the scene who gave a witness statement, including Mark’s wife, even suggests the possibility that Mark’s tank had run out of gas prior to the fire.  The bizarre location of the truck in the field would seem automatically to rule out that scenario.  Brian’s statement seems even more unsettling in light of what his sister Christie told me about the same time: she claimed that her father had committed suicide and that he had left behind a suicide letter for her.  She later denied to the police that she knew anything about a suicide or suicide note (see September 22, 2010). 

After hearing many troubling things about the circumstances of my brother’s death, I wrote letters to then Cattaraugus County D.A. Edward Sharkey.  In the one dated March 27, 2004, I reported the statement made to my cousin about the gas can as well as other very relevant information Dennis had passed on to me from a firefighter on the scene.  I also included a telephone number by which he could be reached.  However, Dennis later told me that he had never been contacted by anyone in the investigation.

Given the suspicious circumstances of Mark’s death, everything concerning the gas can should have been seriously scrutinized.  It was, after all, a potential murder weapon.

Tuesday, May 29, 2012

More about the Scene: The Pool of Mark's Blood in His Driveway


This post examines further the issue of the pool of my brother's blood found in his driveway the night of his truck fire. As indicated in the original post (September 22, 2010), Mark's blood is a troubling piece of evidence that seems not to have been taken seriously enough by the investigating authorities. Yet in conjunction with other suspicious facts surrounding Mark's death (the wounds to his forehead and to the left side of his face, the fact that he had been saturated with gasoline, the suspicious presence of a gas can in the cab of his truck, and the unexplainable location of his truck in the field across from his house), the blood on the driveway points strongly to foul play.

To help visualize the scene, I include two photos of my brother's property in Great Valley and one of Whalen Road and a section of the field where Mark's truck went up in flames and where he himself lay burning to death about sixty feet away. Clicking on any of the photos will enlarge it so as to show greater detail, such as the size of the picture windows in the front of the house.  The photo of the house here shows the living room area (with the larger picture window on the left) and the kitchen/dining area (with the smaller picture window on the right); both windows look directly out to the front yard and to the field across the road. To the side of the property is the long driveway leading to the attached garage.


The next photo looks up the driveway and shows the paved section projecting from above the middle of the driveway (the T-zone), where Mark normally parked his truck and where a pool of his blood was found that night. As these pictures were taken recently, the cars parked in the area presumably belong to the current owners; the red vehicle to the right is parked just off the T-zone of the driveway where my brother normally parked his truck.

 
The third photo shows the section of Whalen Rd. from the front of Mark's property and the large field on the other side down to the intersection with Cross Rd.


Here is the official information about the blood in the driveway as recorded in the police report:

(1) In an entry in his narrative for 9/24/03, Inv. Kalfas lists among five items taken from the scene "two cotton swabs[,] with blood samples secured from the victim's driveway—to NYSP Crime Lab Albany."
(2) In an entry for 12/12/03 referring to his re-interview of my brother's wife, Inv. Kalfas records that Susan "has no explanation for the blood located in the driveway."
(3) In an entry for 01/03/04, Inv. Kalfas records that the results for the blood specimens from the Albany Crime Lab reveal that the swabs are "consistent with human blood."  He further states that Cattaraugus County D.A. Edward Sharkey requests that "the blood kit, taken from the victim at autopsy, be forwarded to the Albany Crime Lab for DNA comparison." In addition, Inv. Kalfas "contacts NYSP Inv. C. Iwanko and relays this information. Inv. Iwanko forwards the blood kit to the Albany Lab."
(4) In a supplemental report, Inv. Kalfas records on 2/24/04 that he has received from the District Attorney's office a copy of the DNA report on the blood tested at the Albany Forensic Center. He states the following: "The Report finds the blood found at the scene is that of the victim, Mark Pavlock."
(5) In the same supplemental report, Inv. Kalfas also mentions a meeting on 03/04/04 with D.A. Sharkey, Sr. Inv. John Ensell, and D.A. Investigator Michael Malak. I quote the following verbatim: "DA Sharkey requests Member interview Medical Examiner, Dr. Sung-ook Baik, regarding a possible explaination [sic] for the blood found at the scene and a re-interview of the victim's wife, Susan Pavlock."
(6) Also in the same supplemental report, Inv. Kalfas refers to his meeting with M.E. Sung-ook Baik. I quote Inv. Kalfas's summary of the Medical Examiner's opinion about the blood: "He did suggest that, given the victim's blood alcohol concentration, and the physical effect of alcohol, the victim may have likely suffered from a nosebleed. Dr. Baik added that alcohol dilates blood vessels and a simple nosebleed could produce excessive bleeding." Inv. Kalfas notes that he "relayed this information to DA Sharkey."

It seems clear from the references to the blood in the police report that the investigating authorities did not consider any possible causes for the the pool of Mark's blood other than the explanation suggested by M. E. Baik. Yet, as detailed in the original post, Erie County Medical Examiner Sung-ook Baik's explanation for the blood ("alcohol dilates blood vessels and a simple nosebleed could produce excessive bleeding") does not seem tenable. Furthermore, the police report also indicates that prior to learning the results of the DNA tests on the blood, the District Attorney had already made up his mind about the cause of my brother's death. I quote verbatim an entry in the police report narrative by Inv. Kalfas for 12/30/03, less than a week before receiving the blood results from the Albany Crime Lab: "After examining all associated paperwork, D. A. Sharkey states 'despite rumors and innuendo, there is no evidence to support the possibility of homicide or suicide. The case will be classified as an accident, consistent with the findings of the Medical Examiner's Office.'" Given that the previous references to the blood underplay its potential significance, it is perhaps not surprising that the DNA results made little impact on the investigation. But one must wonder why the blood on the driveway did not elicit more attention initially.

The pool of my brother's blood found on the scene the night of the fire was clearly fresh. That it was a significant amount of blood was confirmed by Att. Michael Kelly, who saw photos of the scene. In addition, in July 2005 firefighter Wayne Frank told me that he had seen drops of blood in the T-zone of the driveway where Mark usually parked his truck and stated in an interview with Att. Kelly not long after that the blood was fresh. Since the police report is very elliptical about the blood and I have not been able to get access to the photos of the scene, it is not clear to me how many deposits of blood were actually discovered. But Mark must have been in the area of the driveway not long before the fire and received an injury that caused him to shed the blood found there.

The injury, moreover, must have been inflicted on my brother. As mentioned in the original post, Mark's attending physician at the Erie County Medical Center, Dr. Edward Piotrowski, told me in 2005 that when he arrived at the burn unit, my brother had deep soft-tissue swelling in his forehead and further damage to the left side of his face. The doctor did not think that the forehead wound could have caused the pool of blood. But he added that a blow to Mark's nose certainly could have and stated that there was mucosal congestion in my brother's sinus areas, which could only have been caused by a blow to the nose if he had not suffered from a sinusitis condition. Although the authorities suggested that the pool of Mark's blood may have been caused by a fall, Dr. Piotrowski told me that my brother would have to have fallen several times in order to sustain such head wounds. The only logical explanation is that my brother was attacked in his driveway. Since his blood was found in the section of the driveway where he normally parked his truck, he had presumably driven his truck there. But when did this attack occur?

According to the witness statement given by my brother's wife Susan at 11:45 the night of the fire, Mark was at home until shortly before 9 p.m. I quote her account verbatim: "At around 8:45 pm Mark left the house to go downtown Salamanca. At around 10:30 pm I was on the phone and waiting for Mark to return home.  I heard a noise in the garage and I thought it was the cats. At around that time I saw fire out the front window of our house and after taking a closer look I could see Marks [sic] truck across the street from our driveway on fire."

As her statement indicates, Mark's wife was apparently aware of nothing unusual between 8:45, when she says that Mark left the property, and 10:55, when she says that she saw the truck on fire in the field. She doesn't say if she looked out the window at any other point during that period. But, to judge by the known facts and by Susan's statements, Mark was presumably attacked in his driveway between 10:30 and 10:55 p.m. although Susan apparently neither saw nor heard anything except for a noise in the garage.

Tuesday, March 27, 2012

An Analysis of the Authorities' View That My Brother's Death Was Most Likely a Suicide

This post deals with the claims by the New York State Police and the Cattaraugus County District Attorney that my brother's death from third-degree burns over ninety percent of his body was the result of either an accident or a suicide. Several officials associated with the investigation openly stated that they thought Mark's death was a suicide. But the authorities admitted that they couldn't “prove” that my brother had taken his own life, and so his death was officially declared an “accident.” The purpose of this blog has, of course, been to reveal the serious problems with the investigation into Mark's death and to show from several perspectives just how suspicious the circumstances surrounding his death really are. At this point, I'd like to take a closer look at the questionable bases for the authorities' position that Mark's death was most likely a suicide.

Claims about the likelihood of a suicide were expressed by Inv. Edward Kalfas, Sr. Inv. John Wolfe, Capt. George Brown, Lt. Allen, and D.A. Edward Sharkey. Although previously asserting that not enough had been done in the investigation, current D.A. Lori Rieman in 2010 abruptly proclaimed her agreement with Mr. Sharkey that Mark may well have committed suicide or simply had an unfortunate accident. Three primary reasons were given to support the theory of a suicide. Inv. Kalfas stated early in the investigation that my brother had been depressed over the following: the death of his dog a month or more earlier, his son's DWI the previous week, and his own DWI the day before the truck fire.

Where did the State Police investigator get the idea that Mark had been depressed over having to put down his dog Scooter? Who told him that? During the period of the investigation, I spoke with all of Mark's close friends as well as some acquaintances whom he saw on a fairly regular basis. Not one of them had observed any depression on his part over his dog's death--or over anything else, for that matter. A cousin in the area who had frequent contact with Mark also insisted that he had not been depressed about putting down his dog. Mark's friend Alexis Wright mentioned that, after the dog was gone, my brother brought over Scooter's blanket and other items that Alexis and Jim's own dog could use. She considered my brother's gesture thoughtful and observed no evidence of depression on Mark's part over his dog. My brother had, in fact, been through this kind of situation before. Sixteen years earlier, Mark and I had gone to a veterinarian to euthanize our family dog, who was suffering from dysplasia. Although very sad about our dog's death, neither of us experienced depression over it. Not long afterward, Mark went out and got the puppy called Scooter. So why did Inv. Kalfas assume that Mark had been depressed over his dog's death?

Where did the State Police investigator get the idea that Mark had been depressed over his son's DWI about a week before his own DWI? Who told him that? When I spoke with my nephew John McKenna the evening of my brother's death, he was aware that Brian had got a DWI a week or so earlier. John mentioned that on Sunday, September 14, he had driven down from the Buffalo area to show Mark his new motorcycle but was informed by his wife Susan that Mark wasn't home. John presumably learned about Brian's DWI at that time, but he seemed to know nothing about any despondency over it on Mark's part. Around five weeks after my brother's death, I spoke with his acquaintance Peter Rapacioli. When I brought up the matter of Brian's DWI, Rapacioli also knew about it. But he insisted that far from being depressed about his son's DWI, Mark had gone to a lawyer and was expecting the charge to be reduced. So why did Inv. Kalfas assume that Mark had been depressed over his son's DWI?

Where did the State Police investigator get the idea that Mark had been depressed over his own DWI the day before the truck fire? It seems clear that Inv. Kalfas made an error in his entry in the police report for September 25, 2003, where he mentions that members of the Holy Cross Athletic Club commented that Mark “was very upset at getting arrested for DWI the day before the fire.” In an interview with Att. Michael Kelly in September 2005, Inv. Kalfas acknowledged that he had not found anyone who saw Mark out the day after the DWI, and my brother did not go back to the Holy Cross Club the evening of the DWI. So these club members had no opportunity to observe Mark's reaction to his DWI.

However, the club members present the day of the DWI would have witnessed the argument between my brother and off-duty Salamanca policeman Mark Marowski. As pointed out in a previous post (July 28, 2011), the altercation reportedly revolved around my brother's view that his son should have been treated more leniently because of the unfortunate circumstances that led him to drive after drinking. As that same post mentions, Ofc. Marowski himself had reportedly arrested Brian for DWI. If that is true, Mark would probably have been very upset, indeed. But, in that case, “upset” would mean “angry” rather than “depressed.” Did Inv. Kalfas, then, actually intend to state that Mark “was very upset the day before the fire over his son's recent arrest for DWI”? If so, it is unfortunate that he did not record the facts correctly. What happened during--and after—the argument between my brother and Ofc. Marowski has never been publicly revealed. But it should be.

Did Inv. Kalfas perhaps read too much into the statement of Mark's arresting officer? According to the police report, Ofc. Darryl Wickham [sic for Whitcomb] “stated that the victim was very upset and depressed that the information regarding his arrest would be available to the newspaper.” The operative words here are “upset and depressed.” Obviously, Ofc. Whitcomb would have been able to see that my brother was “upset,” but he must have used the word “depressed” loosely, in a casual, non-technical sense. One can easily understand how any person would be very upset at being arrested and put in jail, especially if it has never happened before. It must feel sickening. In addition, most people would be embarrassed at having their name in the police column of the local newspaper. That is especially true for those who live in a small town, where virtually everyone knows everyone else. Did my brother also realize at the time that Ofc. Marowski had called in on him right after he left the Holy Cross Club? It shouldn't have been too difficult to figure out since he was arrested just a few minutes later. Was Mark's anxiety in part related to an awareness that he had been set up for this DWI? That might really have given him cause for concern.

During my interview with current Cattaraugus County D.A. Lori Rieman in May 2010, retired Sr. Inv. John Ensell, Inv. Kalfas's immediate superior at the time of the investigation, stated that my brother had been under a suicide watch while in jail. Less than a week after Mark's death, Inv. Kalfas mentioned his arrest for DWI but said nothing to me about any “suicide watch.” Since a suicide watch implies drastic circumstances, it is surprising that Inv. Kalfas didn't mention it. It would be interesting to know more about Mr. Ensell's comment. What, for instance, does a “suicide watch” entail for someone held in a small-town jail for a couple of hours after an arrest for DWI?

Mark's interaction with some friends shortly after his release from jail conflicts with the State Police's position that he was depressed as a result of the DWI. In December 2003, Alexis Wright, who along with her husband Jim had picked up my brother from the DWI, told me that on the way home Mark had said to them, “I'm really screwed now.” But she added that when she reassured him by saying that a lot of worse things could have happened, he responded positively. As Alexis mentioned in another conversation, when he came over to their house early in the evening of the DWI to ask for help in retrieving his truck, Mark did not seem depressed at all, but instead emphasized that he wanted to be able to keep his driver's license so that he could get to work. Mark's friend Todd Lindell saw my brother later in the evening of the DWI. As Lindell explained to me in November 2003, after he got my brother's truck out of the impoundment, Mark stayed at his house well into the evening and was taking the DWI in stride: as with Alexis Wright, Mark told Lindell that he wanted to be able to keep his driver's license in order to get to his job as a security guard. Lindell added that Mark said that he would watch the drinking so that he wouldn't get another DWI.

I brought up this information in a conversation with Capt. George Brown of the New York State Police in early 2007. His response was to dismiss what those two people, who had been with my brother the evening of the DWI, observed at first hand. Capt. Brown replied by insisting that “it might not have registered yet with Mark because he was still drunk after the incident.” It is not comprehensible to me how Capt. Brown could possibly say that Mark was “still drunk” hours after his release from his arrest for DWI. According to Alexis Wright, my brother seemed quite normal (and not at all drunk to her) when he came over to their house early that evening.

In addition to these problems with the three alleged causes of a depression that supposedly drove Mark to want to end his life, various statements by the authorities further suggest that they did not probe the issue of a suicide in any depth. Yet they continued to insist that my brother's death was most likely a suicide. To what extent were they influenced by the statement to me by Mark's daughter that he had left her a suicide letter? I reported the details of my conversation with Christie to the State Police as soon as I found out who was investigating the case. I also explained why Christie's claims did not ring true, including Mark's alleged depression over our mother's and father's deaths.

The investigating authorities should certainly have been concerned about Christie's statement to me that she was not telling anyone else about this letter, except for her mother and brother, because she wanted to protect the insurance money. They should also have discounted her claim that Mark had left her a suicide letter for the following reasons: in an interview with Inv. Kalfas in October 2003, Christie denied knowing anything about a suicide letter, and in an interview with Inv. Kalfas in December 2003, Mark's wife Susan stated unequivocally that he had left “no notes or letters.”

In November 2008, I called D.A. Sharkey's investigator Michael Malak to ask why certain things had not been done by the authorities in the case of Mark's death. Mr. Malak retired some time after the investigation and later became a member of a newly formed Cattaraugus County cold case unit. During this conversation with him in late 2008, I brought up my concern about the authorities' failure to press Christie about her claim that Mark had left her a suicide letter, which she was concealing in order to protect the insurance money. Although I explained why this claim of a suicide letter seemed dubious, Mr. Malak replied that such a thing seemed unlikely to have been made up. Was that, then, the position taken by the State Police and the District Attorney's office during the investigation itself? But why would the investigating authorities want to accept such a questionable, unsupported statement when the individual herself later denied to the police knowing anything about a suicide letter and when her mother also told the police that there was no suicide letter?

D.A. Sharkey, furthermore, made conflicting statements about suicide in Mark's case. In May 2004, just after the investigation ended, Mr. Sharkey told Att. Tony Tanke in a telephone conversation that Mark's death was either an accident or a suicide but he thought it most likely a suicide. Yet in the police report D.A. Sharkey is quoted as stating on December 30, 2003, that "there is no evidence to support the possibility of homicide or suicide." Was Mr. Sharkey not aware of the contradiction in his two statements?

To judge by the information I obtained, the theory of a suicide was based on casually made statements, unfounded innuendos, and a highly suspicious claim about a suicide letter. As a result, the investigating authorities seem to have expended their energies on weighing the merits of accident versus suicide as the cause of the truck fire. That misplaced effort, then, deflected attention from the really important question they should have been asking but never even considered: was Mark's death the result of foul play?

Thursday, February 2, 2012

Further Concerns about the Scene of Mark's Truck Fire

     This post expands on concerns raised previously about the scene of my brother's truck fire. The original post (September 22, 2010) describes the scene as I understood it from information contained in the police and fire investigator's reports and from statements made to me by two emergency workers present that night and by Mark's attending physician at the burn unit. In that post, I also raised five crucial questions: (1) How did Mark's truck end up in the field? (2) Who put the gas can into the cab of the truck? (3) How did Mark end up saturated with gasoline? (4) How was Mark's head injured? (5) How did a pool of Mark's blood end up in his driveway?

     In a subsequent post (June 26, 2011), I questioned how Mark ended up where he was found in the field across from his house. That his truck was in the field at all is very suspicious, for there is no evidence that it had initially caught on fire in Mark’s driveway (and thus might have had to be backed away in a hurry), and it had not run out of gas (and thus in driving home my brother might have pulled into the field as the truck came to a halt). It is difficult to explain why my brother himself was sixty feet away from the passenger's side of the truck, the door of which was closed, whereas the driver's side door was open.  As that post also points out, there seems to be no evidence of a fire trail, although my brother's wife Susan says in her witness statement that when she arrived on the scene, she saw Mark “crawling away from the truck” and “tried to put the flames on him out.”

     This post raises some related points about the State Police investigation that need clarification. When the first firefighter arrived on the scene, he not only saw the truck burning and Mark lying enveloped in flames; he also observed something else burning in the field. I quote verbatim what firefighter Gary Wind says in his witness statement: “I observed a pickup truck across from the residence fully involved with fire to cab area and two small spots approx. 20 yards west of the vehicle in the field on fire. The second object on fire was a male known to me as Mark Pavlock laying on his back almost all his clothing burned off.”

     What was the other object that Wind saw burning in the field, also about sixty feet (“20 yards”) from the truck? Surprisingly, there is no mention of it anywhere else in the police report. Given that Wind describes my brother as one of “two small spots” on fire, this other object was presumably not something tiny. What could it have been? Wasn't it examined? Why isn't it mentioned in the narrative of the police report? The State Police and the District Attorney assumed that my brother had caused the fire either accidentally (and thus ran from the burning truck) or, more likely, deliberately in order to commit suicide (and thus instinctively ran off when the fire was too intense to endure). How would this object burning near Mark fit into either scenario? If the fire was an accident, it's not likely that my brother would have run off from the truck in flames carrying some sizable object with him. If Mark started the fire in order to commit suicide, why would he have taken anything as he fled the intense heat and fire? Since neither scenario makes any sense, it seems important to know what that object was and why it was there burning close to my brother.

     Another puzzling reference in the police report is the “book of Winston matches” listed in Inv. Kalfas's narrative among “five items of evidence...secured.” Where exactly was this book of matches found? If it could have been identified as specifically “Winston” matches, then it was presumably not found in or near the truck, which was burned so extensively. Was this book of matches found in Mark's driveway, where a pool of his blood was discovered the night of the fire? John Ensell, Inv. Kalfas's immediate superior at the time of the truck fire, stated in May 2010 that coins had been found in my brother's driveway near the pool of his blood. As reported in a previous post (April 20, 2011), Mr. Ensell later retracted that claim. But other items may well have been scattered near that pool of blood. If the book of matches was among items found in Mark's driveway, their presence might well suggest that a struggle had taken place there before my brother and his truck ended up on fire in that field. Or was this book of matches found close to where my brother lay burning to death in the field? If so, as criminologist Will Savive pointed out, it would suggest that Mark had been doused with gasoline and set on fire right where he was found by emergency workers. Was this book of Winston matches ever checked for fingerprints?

     Another item on that list with the Winston matches needs clarification. The “portions of burnt clothing” removed from my brother were sent to the Western Regional Crime Lab; according to an entry in Inv. Kalfas's narrative for 11/04/03, they “tested positive for gasoline.” But what clothing specifically is meant? Presumably Mark's underpants. In his witness statement, Gary Wind describes my brother lying on the ground, with “almost all his clothing burned off.” Mark's neighbor Dan Smith, who told me that he had rushed to the scene as soon as he saw the flames from his window, stated that all my brother's clothes had been burned off except for his underpants.

     How did Mark end up with gasoline on his underpants? Obviously, if gasoline was found there, his trousers must have been thoroughly saturated with it first. The original post mentions two relevant comments about the saturation with gas: (1) according to a nephew, Mark's attending physician at the burn unit stated that he had been doused with a flammable liquid; (2) according to Mark's and my half-sister, Inv. Kalfas stated that Mark had been saturated with gasoline.  The investigating authorities mentioned the following possible causes for the fire and my brother's severe burns: (1) Mark deliberately doused himself in an act of suicide; (2) he accidentally spilled gas on himself in a drunken state; or (3) he fell asleep in the truck and then lit up a cigarette with an open gas can in the cab.

     The first explanation lacks credibility because the State Police and the District Attorney produced no evidence that my brother had any intention of committing suicide, then or ever. An earlier post (December 11, 2010) deals with that issue in some detail. The second is equally implausible because even if Mark had been drinking prior to the truck fire, he would hardly have bothered to retrieve a gas can when he had no use for gasoline (the tank was almost full) and because it does not account for the bizarre location of the truck in the field. The third is highly illogical for several reasons: the inexplicable location of the truck, the presence of the gas can in the cab, where Mark would never have put it, and a flash fire caused by lighting up a cigarette near an open gas can, which would not have soaked my brother with gasoline. In addition, none of these explanations could account for the pool of Mark's blood in his driveway and the wounds to his head (discussed in the original post).

     A related question concerns the amount of gasoline in the can. The can was apparently nowhere near full. In a meeting with Att. Michael Kelly in September 2005, Inv. Kalfas stated the following: Mark's wife Susan told him that she had purchased the gas can and that it was half-full, as she had used it to mow the lawn. Was that enough gasoline to douse my brother so thoroughly, to saturate the driver's seat area, and to sustain the fire that continued to burn in the truck for some time? As the fire investigator's report indicates, the truck's fuel system itself was not affected.

     How much more could--and should--have been done with the physical evidence on the scene to determine the real reason for that suspicious truck fire and the pervasive third-degree burns that must have caused unimaginable pain before they ended my poor brother's life?