This post examines the dismissive and unacceptable response about phone records by the N.Y.S.P. investigators directly involved in the case of the horrific truck fire that killed my brother Mark and by those officials questioned later about it.
Previous posts (October 16, 2016; February 28 and April 30, 2019; and May 31,2020) have referred to the problem that the N.Y.S.P. investigators did not check the phone records for the call that allegedly took place between my brother’s wife Susan and an acquaintance of theirs named Pete Rapacioli from about 10:30 to 11 p.m., immediately before the truck fire. According to criminal attorney Michael Kelly, those records should have been checked as a routine matter, especially since the state police investigators were well aware that Mark and Susan’s marriage was very troubled and a divorce was looming.
Of course, accuracy of the timeline of events immediately preceding the violent death of a victim is fundamental to a proper investigation. The phone records would also have indicated if Mark had called any of his friends that day. The state police investigators should have tried to find out what calls my brother might have made, since the lead investigator Edward Kalfas informed Kelly that they could find no one who had seen Mark out the day of the fire (see, however, post of August 11, 2014, on the report that Mark was at a neighbor’s house shortly before the fire).
Atty. Kelly in September 2005 brought up the issue of the phone records in a meeting with Kalfas and his then-superior John Wolfe. According to Kelly, Kalfas simply replied that he hadn’t checked those records. Kelly then advised those state police officials to obtain the phone records.
When in a phone conversation soon afterwards I asked Wolfe if he was going to retrieve those phone records, he asked, “What phone records?” After I explained why they should have been examined, he insisted that they would not be checked unless the case was re-opened. He stipulated that re-opening the case depended on what he would find in Mark’s medical records.
Once he obtained the medical records, however, Wolfe claimed that he had found nothing about the injuries to Mark’s forehead and left side of his face, reported to me by his attending physician, or the gash specifically on Mark’s forehead, reported to Kelly by a firefighter on the scene of the truck fire. Wolfe’s confidence about the absence of any reference to those injuries seems very puzzling, since he admitted that he could not decipher much of the doctor’s handwriting. He also did not have any medical personnel interpret the CT scan of Mark’s forehead.
In a phone conversation in February 2006, I brought up the issue of the phone records to N.Y.S.P. Capt. George Brown. His response was that the (alleged) phone call between my brother’s wife and their acquaintance Pete Rapacioli was no evidence of a murder. In a phone conversation in April 2007, N.Y.S.P. Lt. Allen similarly dismissed the importance of the phone records by claiming that they would not “prove” anything.
The point, however, is that there was no firmly established record of the call as the basis of an accurate timeline, only the undocumented claim that there was such a call. The call itself needed to be confirmed, and the time needed to be confirmed. The only event that day (prior to the arrival of officials on the scene) that is established by record for an accurate timeline is the 911 call made by Mark’s wife (on which, see most recently post of June 30, 2018).
In a meeting with Cattaraugus County District Attorney Lori Rieman, also attended by former N.Y.S.P. Sr. Inv. John Ensell, Kalfas’s immediate superior at the time of the investigation into Mark’s death, D.A. Rieman stated that a subpoena would have been required and insisted that serious evidence of criminal activity would have been necessary to request the phone records. What constitutes “serious evidence” in such a situation? As mentioned above, Kelly, who was an experienced criminal attorney and former A.D.A. in Erie County, indicated that obtaining phone records in cases like Mark’s is a routine matter.
In a phone conversation in August 2014, N.Y.S.P. Capt. Steven Nigrelli insisted that the state police cannot get phone records. However, there must be a chain of command by which the state police can, and do, request and obtain phone records for their investigative purposes.
Nigrelli also stated that District Attorney Edward Sharkey knew about the (alleged) phone call and determined that the case should be closed. As discussed in a recent post (see April 30, 2021), it is unclear to what degree D.A. Sharkey was apprised of the facts of Mark’s case. He certainly should have been fully knowledgeable about the case before making any decision to close it.
Although I sent a letter to D.A. Sharkey in October 2008 about serious problems with the investigation into my brother’s case, including the failure to check the phone records, he did not even bother to respond. If the state police investigators were not concerned about documenting statements for as accurate an account of events as possible, the District Attorney certainly should have been.
