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.

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.

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.

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?

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?

“Who Was on the Scene of Mark’s Truck Fire?”

   This post considers what specific individuals were on the scene of my brother’s truck fire on September 23, 2003.  The issue needs clarification because of reports about people on the scene who are not mentioned in the official documents and whose presence raises some questions. 

    As the original post (September 22, 2010) indicates, emergency workers responded quickly to the 911 call made by Mark’s wife Susan just before 11 p.m.  According to the police report, neighbor and EMT Cheryl Simcox was the first person on the scene after my brother’s wife, followed by firefighters Gary Wind (also a deputy sheriff) and Mark Ward.  Although not mentioned in the police report, firefighter Wayne Frank informed me that he arrived immediately after Ward and Wind.  The police report also indicates that Trooper David Chandler was the first New York State Police official on the scene and that Inv. Edward Kalfas arrived at 12:30 a.m.  According to the fire investigation team’s report, there were also four fire investigators on the scene.  That report, however, makes an apparent error about the arrival time, recording it as 22:30 (i.e., 10:30 p.m.) presumably instead of 23:30 (i.e., 11:30), since the 911 call was not made before 22:55 (i.e., 10:55). 

    According to both Wayne Frank and Cheryl Simcox, there were many people milling around on the scene.  As the original post notes, one person was neighbor Dan Smith, who informed me that he had rushed to the scene right after seeing flames from his window but had not remained there long.  The previous post (November 30, 2011) refers more fully to Mr. Smith’s statement that my brother had spoken several words to him on the scene and to his failure to recall anything Mark said other than the word “Hi!”  An earlier post (April 20, 2011) also mentions the conflicting accounts about neighbor Eugene Woodworth’s presence on the scene.  Another individual was Josh Newark, who as an EMT reportedly helped place my brother in the ambulance that took him to the Medivac helicopter for transport to the Erie County Medical Center.  But when I tried to speak with him in 2006, Mr. Newark failed to return my call.  Another person mentioned was Shawn Gregory.  I do not know who this individual is or in what capacity he was on the scene, though he is reportedly a deputy sheriff.

    Two other individuals reportedly on the scene were members of the Salamanca police force around the time of my brother’s death.  One was Steve Arrowsmith, reportedly an Ellicottville policeman at the time his presence on the scene was made known to me.  But, according to an item in the Salamanca Press shortly after Mark’s death, Mr. Arrowsmith was then a member of the Salamanca police force.  The other was Patrick Welch, who according to the same newspaper item, was likewise on the Salamanca police force.  Todd Lindell, one of my brother’s friends, informed me in early November 2003 that after being released from his DWI, my brother came over to his house and asked him to pick up his truck from the impoundment.  Lindell mentioned that Patrick Welch had driven Mark over.  He added that Welch was also “the third person” on the scene of the fire the next night.

    It is unclear to me why these two individuals who were Salamanca policemen around that time would have been on the scene of the truck fire in Great Valley.  It is a matter of concern under the particular circumstances, since the day before the truck fire my brother got into a personal argument at the Holy Cross Athletic Club with off-duty Salamanca police officer Mark Marowski.  As mentioned in both the original post and a later one (July 28, 2011), when my brother left the club, Marowski called in to the Salamanca police to pick up him up for DWI on his way home to Great Valley.  The original post also reports the following comment to me by Todd Lindell: "Mark would be alive today if he had not gotten the DWI."  Given the DWI under such troubling circumstances a day before my brother's suspicious truck fire, the presence of Salamanca police on the scene of the fire is problematic.  Furthermore, a relative mentioned not long after the incident that the Salamanca police were being very tight-lipped about my brother's death.  That seemed very odd since Mark had lived in the area all of his life apart from his army service, during which he served in Vietnam, and since he was active in community service.  Even D.A. Sharkey's investigator at the time of the truck fire, Michael Malak, acknowledged to me in a telephone conversation that my brother was well regarded in the community.

    At the time of the truck fire, according to Todd Lindell, Patrick Welch was also a friend of my brother’s son Brian and possibly of his daughter Christie as well.  After my brother’s death, several relatives mentioned that they had observed very rude behavior toward Mark by his two children and on numerous occasions had heard them, especially Brian, make very nasty remarks to their father.  According to Lindell, Mark was not happy about the way his children treated him.  Lindell insisted that my brother had not brought on this problem and added that he himself had never known anyone who did so much for his children as Mark. 

    With that background, it is difficult to understand why Brian’s friend Patrick Welch would have driven Mark over to Lindell’s house the evening of the DWI.  How did he even meet up with my brother that evening?  It is also difficult to understand why Welch would have been on the scene of the truck fire the next night.  If he was in fact one of the first on the scene (as Lindell thought, “the third person”), how did he learn about the fire so quickly?  How long did he remain on or around the scene?  What brought the other Salamanca policeman, Steve Arrowsmith, to the scene?

What Did Mark Really Say on the Scene of the Fire?

      This post examines the problematic issue of statements reportedly made by my brother on the scene of his truck fire before he was airlifted to the Erie County Medical Center.

    Officials involved in the investigation basically took such remarks as hard fact and interpreted them as evidence that my brother’s truck fire and his death were accidental.  Yet if one examines what individuals on the scene actually say in their official witness statements, serious questions arise about the plausibility of these reports.  Oral remarks by emergency workers and others on the scene, as reported later, make these alleged statements by my brother even more questionable.

     Here are the statements by individuals on the scene about what they heard Mark say, as recorded in their witness statements or reported to me in my own inquiries:
             
    (1) In her witness statement, my brother’s wife Susan says that she saw Mark crawling away from the truck and tried to put out the flames on him.  She adds that she asked him, "What did you do?" and that he replied, "I did nothing."

    (2) In his witness statement, firefighter Gary Wind (also at the time a deputy sheriff) describes my brother's efforts to speak as follows: "He was talking to me and said something about gas.  I couldn't make out what he was saying."

    (3) In his witness statement, firefighter Mark Ward (also at the time superintendent of the Salamanca school system and thus Susan's boss and reportedly a close personal friend of hers) states that Mark "was able to talk," but he could understand only the words "gasoline can," which he says my brother uttered twice.

    (4) Although not asked to give a witness statement, firefighter Wayne Frank, who arrived on the scene immediately after Wind and Ward, told me that they had not been able to understand anything Mark tried to say.  He added that he wished that he and Gary Wind had gone down on their knees in an effort to grasp what my brother was trying to tell them.

    (5) Dan Smith, Mark's neighbor at the opposite end of Whalen Rd., who arrived on the scene some time after the first three firefighters, told me that my brother had spoken several words–around ten--to him. He stated that Mark had recognized him and said, "Hi!"  But when I asked Mr. Smith what else Mark had said, he replied that he could not recall.

    (6) Another person on the scene, whose name will not be disclosed at this point, informed me that one of the principal firefighters on the scene, whose name will also not be disclosed at this point, stated that he heard Mark say, “I didn’t do anything.”

    (7) In November 2004, John Eberth, at the time a reporter for the Olean Times-Herald, abruptly cancelled an article on Mark’s death that he had said was “set to run.”  He explained this decision in an e-mail, in which he stated the following: “After conducting follow-up interviews with State Police supervisors and fire investigation officials and learning that Mark spoke to an off-duty Cattaraugus County Sheriff's deputy with whom he was acquainted before he was taken to the hospital, we have decided to not write a story at this time.”

    What do these reports of words Mark supposedly uttered really indicate?  Let’s consider some of the problems and questions that emerge from these statements.

    First, if the New York State Police investigators took seriously Susan’s report that Mark said, “I did nothing,” how could they claim that they really believed my brother’s death was a suicide?  The words “I did nothing” clearly imply no self-inflicted injuries.  And what person near death in an act of suicide would bother to deny it?  No one would.  Yet both the New York State Police and the Cattaraugus County District Attorney stated that they really considered Mark’s death a suicide.  If so, then they presumably didn’t believe what Mark’s wife said in her witness statement.  Shouldn’t they have then questioned her further about Mark’s supposed statement, “I did nothing”?

    Second, why would the (unnamed) firefighter have told another individual on the scene that he heard Mark say, “I didn’t do anything”?  That individual clearly did not record it officially.  None of the witness statements, except the one by Mark’s wife Susan, indicates that my brother made any such remark.

    Third, firefighter (and deputy sheriff) Gary Wind in his witness statement is very tentative about what Mark tried to say (i.e., “...something about gas.  I couldn't make out what he was saying").  What deputy sheriff, then, told John Eberth that my brother had talked to him on the scene (i.e., “...and learning that Mark spoke to an off-duty Cattaraugus County Sheriff's deputy with whom he was acquainted before he was taken to the hospital”)?  That statement was a major factor in Eberth’s decision to cancel his article on Mark’s death.  Oddly, there was no local newspaper publicity about my brother’s death.  In fact, many people in the Salamanca area told me–even long afterwards–that they had never been informed about the suspicious circumstances, including the pool of Mark’s blood found in his driveway that night.

    Fourth, firefighter Mark Ward’s reference to hearing my brother say “gasoline can” twice differs from Gary Wind’s mention of “gas” and, even more, from Wayne Frank’s insistence that my brother could not be understood at all.  Even N.Y.S.P. Lt. Allen in a telephone conversation with me in April 2007 acknowledged that the power of suggestion might have influenced some of the witness statements.  He explained that someone, for instance, might have asked, “Did Mark say ‘gas’?” and the others around picked up on it.  Yet the N.Y.S.P. investigators involved in the case appear to have relied heavily on Ward’s and Wind’s statements in ruling out the possibility of murder in my brother’s case.

    Fifth, how is it that Dan Smith could not remember anything my brother said to him except the word “Hi!”?  Granted, considerable time had passed since the night of the truck fire.  But can you really forget the words of a dying man calling out to you in such a pitiable state?  Wouldn’t they rather be permanently etched in your mind?

    The reliance on what appears to be very tenuous evidence of statements made by my brother on the scene of his truck fire has also influenced the thinking of current Cattaraugus County District Attorney Lori Rieman.  At the meeting I had with her in May 2010, D.A. Rieman claimed that Mark had spoken to several people on the scene and that he would have said the name of the guilty person if the fire had been deliberately set.

    I’ll end this post with two questions.  First, could my brother really have said anything intelligible under the circumstances?  Someone with medical training explained to me that Mark’s extremely severe burns, third degree even on his head, would have constricted his trachea and made it very difficult for him to speak.  Second, if by chance Mark said any of the phrases mentioned in the witness statements (“I did nothing”/“I didn’t do anything,” “gas,” and “gasoline can”), might he not have meant something very different from what the authorities have assumed?  Those words could just as easily fit into a scenario in which my brother was attempting to reveal that he was a victim of foul play.

"What Happened to the Recording of the 911 Call?": A Follow-up

    This post comes as an update to the previous one (September 22, 2011) on the issue of what happened to the recording of the 911 call by my brother's wife Susan at 10:55 the night of his truck fire.

    As I indicated in the previous post, when asked about the 911 call at a meeting in September 2005, N.Y.S.P. Inv. Edward Kalfas informed Atty. Michael Kelly that he could not remember what it said.  Sr. Inv. John Wolfe then said that he would retrieve the 911 recording.  In November 2005, after I asked Atty. Kelly to find out if Mr. Wolfe had reviewed the 911 call, the senior investigator informed him that he would not check the 911 call, among other things, unless the case was in fact re-opened, which depended on what he found in the medical records.  It is very hard to understand why the senior investigator would not go back to review that 911 call, since Inv. Kalfas could not remember what was on it and so many conflicting or confusing statements had been made about the scene of the fire.  Surely, that wouldn't have taken much time or effort, or drained N.Y.S.P. resources in any way.

    In a response on my previous post to an anonymous comment about protocols for preserving 911 calls, I posted a comment on October 1 in which I mentioned contacting the Cattaraugus County Clerk's office about getting an audio and transcript of that 911 call.  As I indicated, the individual with whom I had spoken stated that the County Clerk's office was the right place to contact for 911 call records, but he did not know how long 911 recordings are generally kept.  However, he suggested that I make a FOIL request to that office to see if the call in question still existed, and I did it. 

    That conversation led me to wonder why, in response to my original FOIL request for the 911 call, the N.Y.S.P. FOIL Unit replied last June that a search of their files "failed to locate any records responsive" to my inquiry.  It thus also seemed unclear why the FOIL Unit referred to the possibility of an appeal if the 911 recording was actually under the purview of the Cattaraugus County Clerk's office.  I wondered as well why the FOIL Unit hadn't advised me to contact that office instead.

    Last week I received a reply from the County Clerk's office.  A memorandum was included from the County Sheriff's office, in which a box was checked indicating "Did not reveal any records."  A stipulation is made at the end: "This memorandum indicates the absence or presence of information contained in our files.  It does not preclude the possibility that other activities may have taken place which are not on record with this office."  Immediately below it is a handwritten note stating the following: "Because this was not our case, we did not maintain a copy for any reason of the recording.  Also, any recordings that were not previously recovered prior to Nov. 2010 are gone.  This is due to the replacement of our recording system."

    The response by the Cattaraugus County Sheriff's office raises questions for me.  First, it is not clear why replacing a recording system would necessitate the loss of 911 calls made prior to the date of a new installation.  Doesn't current technology enable such information to be preserved?  Second, the Cattaraugus County District Attorney at the time of Mark's suspicious death and at the present (elected in November 2009) were both made aware of serious problems with the original investigation.  Attorney Tony Tanke not only spoke several times with D.A. Sharkey's investigator Michael Malak during the course of the investigation but also raised questions to D.A. Sharkey himself in May 2004 about his conclusion that Mark's death was either an accident or a suicide.  (The District Attorney added that he really believed it was a suicide.) 

    I myself wrote D.A. Sharkey three letters during the investigation and one in late 2008, informing him of information I had learned pointing to foul play.  I also had telephone conversations and correspondence about the issue with current D.A. Lori Rieman, both before and after her election, and met with her at her office in May 2010.  As mentioned previously in this blog, shortly after her election D.A. Rieman e-mailed me the following: "I cannot promise anything, but you deserve better and I will certainly do whatever I can.  I am thinking of asking that a special prosecutor (i.e. the Attorney General's office) be appointed to conduct an independent investigation."  At our meeting in 2010, even though D.A. Rieman abruptly changed her point of view without any warning and supported former N.Y.S.P. Sr. Inv. John Ensell's positions about the case, she did ask him to contact Judy Bess about her statement to me that Eugene Woodworth had heard a ruckus outside of Mark's house just before the truck fire.  (As my post on April 20, 2011 indicates, Mr. Ensell reported that he had spoken with Eugene Woodworth but failed to find a telephone number for Judy Bess.)

    With that background, why did the District Attorney's office fail to preserve the 911 call--and all the other evidence related to my brother's case (like the photographs of the scene)?

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.

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"?

What Happened at the Holy Cross Club between My Brother and Ofc. Mark Marowski?

    This post comes on my brother Mark's birthday.  He would have turned sixty-one today, if his life had not been so brutally taken away at age fifty-three.

    As I noted in my original post below (September 22, 2010), the New York State Police investigator mentioned that the day before his truck fire my brother had got a DWI after an altercation with an off-duty police officer at a local club.  People in the Salamanca area were apparently talking about this issue, for several of Mark's acquaintances soon told me that he had been set up for his DWI by a local policeman named Mark Marowski after getting into a personal argument at the Holy Cross Athletic Club.  When Attorney Michael Kelly brought up this subject at his interview with the New York State Police in 2005, Inv. Kalfas acknowledged that Ofc. Marowski had called in to have my brother arrested when he left the Holy Cross Club.

    What actually motivated this off-duty police officer to call in and have my brother picked up for DWI?  A few of Mark's acquaintances claimed to know that this argument was about the arrest of my brother's son Brian for DWI about a week earlier.  Mark reportedly felt that his son should have been treated more leniently because he had just come home for the funeral of a close friend.  I wondered for a long time why my brother would have argued about his son's arrest with Ofc. Mark Marowski in particular.  Apparently, a Salamanca police officer had arrested Mark's son the previous week.  But who specifically had picked up Brian for DWI? 

    Although Brian's arrest was apparently not publicized in the local newspapers, I have been told that the arresting officer was reportedly Mark Marowski.  Did my brother confront the very policeman who had picked his son up for DWI?  Was that issue the focus of the altercation at the Holy Cross Club?  If so, it might suggest a very heated argument indeed.

    It is frustrating that, although many people know about the argument, no one to my knowledge admits to being present at the Holy Cross Club during the altercation that resulted in my brother's arrest for DWI a week after his son's DWI.  A number of people must have heard what words were exchanged between my brother and Ofc. Marowski.  Was anyone also privy to the call that Ofc. Marowski made to the Salamanca Police to pick Mark up?  Did anyone hear Ofc. Marowski comment on the argument after my brother left the club?

    Although authorities were critical of my brother for drinking and getting a DWI, Ofc. Mark Marowski himself has had a problematic relationship to the law.  As I mentioned in my original post, Ofc. Marowski was arrested in May 2006 for speeding and DWI.  He was subsequently suspended from the Salamanca police force but allowed to retire with his police pension.  Recently, I was informed about Ofc. Marowski's legal problems over financial issues and advised to make a FOIL request for court judgments against him.  According to documents supplied by the Cattaraugus County Clerk's office, there were ten judgments against Ofc. Marowski for unpaid debts between 1996 and 2007, six of which were not classified as "satisfied."

    Those whose responsibility it is to enforce the law should not consider themselves above it.

    Just over a day after being released from jail and driven home by two friends, my brother was found burning to death in the field across from his house.  What happened in those hours between Mark's DWI and that suspicious truck fire?  Will the truth finally come to light and will justice prevail?

How Did Mark End up Where He Was Found in the Field?

    This post deals with the very odd fact that when emergency workers arrived, they found my brother engulfed in flames in the field about sixty feet from his truck.  How did Mark get there?

    Officials assumed that Mark had driven the truck to the field, where it caught on fire.  One explanation was relayed to me by John Eberth, at the time a reporter for a local newspaper, the Olean Times Herald.  After deciding to cancel the article on Mark he had said was "set to run," Eberth informed me in December 2004 that he had spoken with the fire investigator.  Here is how Eberth reported in an e-mail the fire investigator's assessment: "He reiterated what investigators have been telling us, that they believe the fire was an accident, possibly caused by Mark falling asleep with a cigarette in his hand."  Why would my brother have driven his truck into that field across from his property between 10:30 and 10:55 p.m.?  Let's not forget that the pool of Mark's blood was left in his driveway before, according to the fire investigator's  theory, he could have driven the truck into field and then possibly fallen asleep.

    Furthermore, as mentioned in my original post below (September 22, 2010), the fire investigator's report states that the fire started in the driver's seat area and lists textiles, plastic, and gasoline as materials ignited and a match or lighter as the source of ignition; it also mentions that the remains of a gasoline can and a lighter were on the passenger's side floor.  In addition, the report refers to an "accelerant" and to "preparation."  The logical inference from the fire investigator, then, would seem to be that Mark somehow spilled gasoline onto the driver's seat before he lit up a cigarette, causing the truck to go up in flames.  But why would my brother have brought a gasoline can into the cab of the truck and opened it at all?  The tank was three-quarters full.  Putting aside that problem, one assumes from this scenario that Mark, on fire, managed to get out and go as far as he could from the burning truck to save himself.

    But why was Mark in the field on the passenger's side of the truck?  When neighbor and EMT Cheryl Simcox arrived (around two or three minutes after my brother's wife Susan called 911), she thought it very strange that Mark was lying fifty to sixty feet opposite the passenger's side of the truck, the door of which was closed, and not opposite the driver's side, the door of which was open.  As I noted in my original post, Cheryl was certain that, if the truck had caught on fire while Mark was in the driver's seat, he would not have run around the truck but rather directly away from it.  Cheryl also said that while in her bedroom, she had heard an explosion that rocked their trailer and that as she left, she saw the truck engulfed in fifty-foot flames.  Why would my brother have risked going around such an inferno?

    And why would Mark have failed to roll around before he got sixty or so feet away from the truck?  In addition, Cheryl stated that when she got there, she could see that my brother was not rolling around at all.  He was simply lying there motionless with two-foot flames shooting from his entire body.  Recall that both his attending physician Dr. Edward Piotrowski and firefighter Wayne Frank mentioned a wound on my brother’s forehead.

    How can one square this theory of an accident suggested by authorities, including the fire investigator (as conveyed by John Eberth), with Cheryl's eyewitness observations on the scene and with details of the fire investigator's own report?

    Shortly before Cheryl arrived, Mark's wife Susan, according to her witness statement, went to the field right after she called 911.  Here is her brief account of what happened then.  I quote her statement verbatim from the police report: "I saw Mark crawling away from the truck and I tried to put the flames on him out.  I asked him what did you do and he said, 'I did nothing.'"  Susan does not specify how far from the truck Mark was when she approached him.  Did he continue to crawl away from the truck until Cheryl arrived?  Or was he already around sixty feet away from it?  Was Mark speaking to Susan with two-foot flames shooting from his whole body?  Or did the flames increase in the interval between Susan's arrival and Cheryl's?

    One important point about the scene of the truck fire has recently been suggested by a criminologist who happened to learn about my blog and has offered his insights.  In analyzing details of the scene, criminologist Will Savive pointed out that if Mark ran or crawled from his truck while on fire to his final destination, he would of necessity have left a fire trail.  The police report mentions nothing about such a trail.  Since he had examined the photos of the scene in his interview with the New York State Police investigators in 2005, I contacted Attorney Michael Kelly about this issue.  After checking his records of that interview, Attorney Kelly replied that he found no indication of any such fire trail.

    I myself have filed a FOIL request with the New York State Police to obtain a copy of the photos of the scene of my brother’s truck fire.  I am currently waiting for their reply.

    If any readers of this blog have suggestions about points raised in this post, please feel free to send in a comment.  It would be appreciated.  The police and the fire investigator’s reports are now available to examine in pdf format through links on the main page of this blog.
  
    Please note that anyone may send in a comment for posting anonymously.  As the blog manager, I decide what comments get posted.  But I myself do not know the identity or e-mail address of anyone who checks the “anonymous” box on the submission form before submitting a comment.

Recent Efforts to Get Some Answers from the Cattaraugus County District Attorney’s Office (Part II)

    My previous post (March 23, 2011) referred to the issue of insurance that I raised with the current Cattaraugus County District Attorney at a meeting in May 2010 about problems with the New York State Police investigation into the suspicious death of my brother Mark.  As I mentioned there, retired N.Y.S.P. Sr. Inv. John Ensell (now working part-time as an investigator in the District Attorney's office) was also present, at D.A. Lori Rieman's request.  This post discusses another issue I brought up at that meeting: a report about a commotion heard on the property outside my brother’s house shortly before his truck went into the field and burned.

     As background for this issue, I happened to go to Our Lady of Peace church in my hometown of Salamanca in September 2009 in order to arrange for Masses in memory of my parents and my brother.  The secretary at that time, Judy Bess, immediately said that she should have introduced me to the man who had just left the office, since he had previously mentioned being on the scene of my brother's truck fire.  She added that normally she would not want to get involved in this kind of situation.  "But," she said, "I feel so sorry for you." 

    As I reported to D.A. Rieman, Judy thus summarized what this individual, Eugene Woodworth, had said to her: just before the truck fire, he happened to be outside his house down the road from my brother's place when he heard a ruckus on Mark's property; he soon noticed my brother's truck go down the driveway and into the field; after seeing the truck burst into flames, he rushed over and helped to put out the fire on Mark.

     The day after my conversation with Judy Bess, I myself called Eugene Woodworth.  Without mentioning Judy, I said that I had heard he had been on the scene of my brother's truck fire.  To my surprise, he gave me a very different account from what Judy had stated.  As I reported to D.A. Rieman, here is what he told me: he saw lights flashing but did not have a clear view because of the trees on his property; as he started down the road toward the field opposite Mark's house, Dan Smith (another neighbor, who lived at the end of Whalen Road) was already leaving; Dan then told him what was going on, and he never saw Mark at all. 

    When I asked Eugene Woodworth if he had anything to say about the truck fire, he hesitated, pausing frequently as he replied, "I thought that something happened on the property and surmised that Mark had backed the truck all the way across the road."  He added that the next day he went over to the house to pay his respects.  I asked if Mark's wife explained to him at that time what had happened.  Here is his summary of what Eugene Woodworth told me that Susan had said to him: Mark "hollered" at her to stay away, and she herself got burns and bits of Mark's flesh on her hands as she tried to put the flames out on him.  As I mentioned in my original post, neighbor and E.M.T. Cheryl Simcox was the first person on the scene after Mark's wife, and she remained with Susan for a long time after they went into the house.  As Cheryl said to me and in her witness statement, she looked over the white sweatshirt that Susan said she had used to try and bat the flames out on Mark: it was clean, with no soot or burn marks on it.  Cheryl, furthermore, mentioned nothing about observing any burns on Susan's hands.

    The following day, I called Judy Bess and mentioned what Mark’s neighbor had told me.  She insisted, "That is not what he said to me," adding that she was sorry Eugene Woodworth would not tell me the truth about what he saw the night of Mark’s truck fire.  She firmly maintained that he had told her about hearing a ruckus and screams from Mark's property and then seeing the truck go into the field.

    I reported to D.A. Rieman the discrepancies between the two accounts of what Eugene Woodworth heard and saw and explained that, when I called her, Judy insisted that she had reported Mr. Woodworth's comments accurately.  Mr. Ensell, however, immediately said that the claim of a ruckus outside of Mark’s house before the fire was not true.  I replied that Judy Bess did not seem like the kind of person to make up such a story or to embellish on what she had been told by Eugene Woodworth.  Mr. Ensell's explanation was that people tend to exaggerate their role in things after the event and their stories often “mushroom.”  I replied that a desire to enhance one's own actions may well be true, but it would not account for Eugene Woodworth's statement about hearing a commotion outside my brother's house right before the truck fire.   D.A. Rieman then asked Mr. Ensell to contact Judy Bess about Eugene Woodworth's statements to her.  She assured me that they would follow up on the conversation with Judy Bess by sending me a letter.

    Since I had not received the promised follow-up letter from the District Attorney's office, I e-mailed D.A. Rieman and Mr. Ensell at the end of December 2010.  I reminded Mr. Ensell that in a brief e-mail to me in August he had referred to interviewing Mr. Woodworth but having no phone number for Judy Bess.  I then expressed my concern as to whether he had done anything further on this issue.  I also referred to two other matters from the May 2010 meeting: his insistence that the insurance money was only $17,000 [the subject of my post of March 23, 2011] and a statement by him that coins were found in my brother's driveway near the pool of his blood found the night of the truck fire.

    Here is what Mr. Ensell replied in his e-mail about the problem of the two contradictory accounts of what Eugene Woodworth heard and saw: "As you know know [sic], this office is extremely inundated with felony prosecution cases and my only time involved in looking into this past incident is on my own time....Regarding my interview with Eugene Woodworth.  Basically down to a one liner was that he saw yellow off in the distance, walked about half way down, and turned around and came back.  That anything said after that would have been purely speculation....I still do not know Judy Bess' phone number and every now and then look through various data bases for same."

    Although I assumed that Judy Bess had moved away from Salamanca after leaving her position as church secretary, I was surprised that Mr. Ensell was unable to locate a contact number for her.  Recently, I myself did a simple Google search for the White Pages to see if I could find some information.  I did not get a telephone number but did find what appears to be her current address.  I should think that the District Attorney's office would have no difficulty getting a number with that kind of information.

    On Mr. Ensell's reference to coins on the scene, I had brought up at the meeting in May the problem of the pool of my brother's blood found in a paved area off the driveway, where he normally parked his truck.  When D.A. Rieman and Mr. Ensell insisted that the blood was no evidence of a crime, I replied that the pool of blood was right where Mark usually parked his truck, suggesting that he may well have been attacked there when he got out of his truck.  Apparently attempting to offer an explanation for the blood as an accident, Mr. Ensell stated that some loose change had also been found in the same area as the blood. 

    I later contacted Attorney Michael Kelly about this issue, since he had not informed me of any coins on the scene after his meeting with the New York State Police representatives in September 2005.  Attorney Kelly stated emphatically that he had not seen any coins in the photos, something he would have noticed, and that the State Police themselves had not mentioned anything about coins found on the scene.

    In his e-mail reply to me in late December 2010, Mr. Ensell acknowledged that he could find no evidence of coins in the records for the investigation: "Further, after going over some of the detail with Inv. Kalfas of the scene I am going to have to retract on what I said about the coins being on the ground.  I should have examined more of the case file before making statements that were not probably true to this scene.  To this day I still would have said that there were pocket contents on the ground, but nothing in the case file that I can see so far indicate that to be for fact (I am ASSUMING now that my mind is starting to cross reference the many death scenes that I have been at).  Regardless, I will have to apologize for that statement as it appears to be in error." 

    Mr. Ensell thus has given me no reason to change my view about the pool of my brother's blood found in his driveway the night of the truck fire.  It is very suspicious.