Why Were the Telephone Records Not Checked?

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

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

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

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

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

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

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

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

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

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

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