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"?
I'd like to make a clarification about Sr. Inv. Wolfe's comment in October 2005 that I would be upset by Mark's condition if I saw the photos. As Inv. Kalfas acknowledged to Atty. Michael Kelly at their meeting in September 2005, no photos were taken of my brother on the scene the night of the fire. Atty. Kelly was shown a picture of Mark taken after the autopsy was finished. Sr. Inv. Wolfe was presumably referring to the post-autopsy photo(s) when he made that comment to me.
ReplyDeleteWhen I filed my first FOIL request (the one for the photographs), I was told that the photographs were destroyed, but that I could appeal the decision (whatever that means if the photographs were actually destroyed). Because to me as an ordinary citizen, this looks as the NYSP were destroying evidence in an unsolved case, I filed a second FOIL request, this time asking for the written procedures and policies governing the purging of files. The NYSP took several weeks to respond (i.e., in this instance, the maximum time suggested in their online FOIL procedures). 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.
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