THE VIRGINIA ATTORNEY GENERAL’S OFFICE--SERVING JUSTICE (WHEN CONVENIENT)

All the hemming and hawing by individuals in positions of authority—following the discovery of the Seung-Hui Cho’s medical records—has once again brought into question the credibility of those who claim to search for truth and for justice in the aftermath of the shootings at Virginia Tech. I fully agree with the Richmond Times-Dispatch when it wrote, “It strains credulity to think that files relating to the worst campus massacre in American history simply have slipped the mind of the very person who had counseled the gunman.” Robert Miller, the former director of the school’s counseling center, was in fact, among several senior school officials who consulted with English department Chairwoman, Lucinda Roy, when she sought help for Cho after Professor Nikki Giovanni barred Cho from one of her writing classes.

Somehow Dr. Miller forgot that he had Cho’s medical records. I find it amazing that someone with such absent-minded sloppiness could ever have risen to be the head of the Cook Counseling Center. Just the fact that a patient’s medical records were removed from an office in the first place, raises questions about motive and professionalism. Furthermore, thirty of the victims’ families reached a legal settlement with the state, without having access to those records. At the time of the settlement, the absence of those records was identified as a critical gap in knowledge about the killer, how and when he was treated, and how he was assessed.

Even if the legal settle stands, the integrity of that settlement is now in question.

School officials have said that they are “dismayed” that the records were in Miller’s possession. I am sure they are. Indeed, I am sure they are not only “dismayed,” but feel “bewildered” and “betrayed.” But it is one thing to express these emotions, and another to act on them. In fact, if anything characterizes the reaction of people in positions of authority (school leaders and politicians) since the tragedy of April 16, 2007, it is that they are long on words and short on action.

Privacy and the right to privacy seem to bounce around at Virginia Tech like a leaky rubber balloon—sometimes they are respected, sometimes not. I am confused. To borrow from a word from the university, I am “dismayed.” Can there really be confusion about patients’ privacy?

If I recall correctly, Virginia Tech said it did not contact the Cho family about their son’s odd and menacing behavior because of privacy issues. The same defense was given as reason for the various school components (who were aware of the problems Cho presented) for not communicating and consulting with each other. In fact, the school was wrong in all cases. Lucinda Roy pointed this fact out in her book, No Right to Remain Silent when she wrote:

“University officials in the office of Judicial Affairs, Cook Counseling Center, campus police, the Dean of Students, and others explained their failures to communicate with one another or with Cho’s parents by noting their belief that such communications are prohibited by the federal laws governing the privacy of health and education records. In reality, federal laws and their state counterparts afford amply leeway to share information in potentially dangerous situations.”

You have to wonder—how can one of this nation’s best universities be so ignorant of the law?

Have laws been broken? Where better to go than the office of the Attorney General of the State of Virginia in order to find out, and that is what I did.


Where else could justice be better served, wisdom sought, and the right course of action be consistently taken to ensure that a brighter future is guaranteed, than in the search for truth in two of the nation’s worst school shootings? Now, let’s take a look at how the Attorney General’s office has acted in response to the events at the Appalachian School of Law and Virginia Tech.

My interaction with the Attorney General’s office goes back to July of 2004, when my family was trying to find the truth about the shootings at the Appalachian School of Law (Peter Odighizuwa, a disgruntled student, shot and killed Dean Anthony Sutin, Professor Thomas Blackwell, and Angela Dales, the mother of our oldest grandchild).

Frustrated by the failure to get answers to a wide variety of questions surrounding the shooting, we turned to then-Virginia Attorney General, Jerry Kilgore. Specifically, we were upset because Angie had received a threatening email several months before she was killed. We were—and are to this day—concerned that the threatening email was related to the shootings. The sender apparently blamed Angie for a computer virus that hit his computer. The email reads:

“You f..king c..ksucker, If you ever try to send me another
virus again, I will track you down, cut your nipples off, and
stick jumper cables in you and connect them to my truck. I’m
not bullshittin. Maybe the sheriff will find you hanging from
a tree in Longbottom."

The email was turned over to the police, but apparently the investigation was slipshod and never completed. We wanted to see the investigation report. But the police denied us access to it. We were, however, assured by the police that even though they did not know who sent the email, it was not related to the shooting. If you do not know who sent it, how can you be sure it Peter Odighizuwa did not send the email?

No satisfied, we turned to then-Attorney General and soon-to-be candidate for governor, Jerry Kilgore. We were hopeful that Attorney General Kilgore would come to our aid “to better serve justice;” particularly because he had issued the following statement following the law school shooting:

“It was with great sadness that I learned of the shootings that injured and killed innocent people at the Appalachian School of Law in Grundy, Virginia. As natives of Southwest Virginia, my wife Marty and I extend our sympathies to the families and friends who lost loved ones in the senseless act.”

“At the same time we experience these emotions, however, there is a clear sense among us all that as Virginians we cannot tolerate such acts of violence. Our institutions of higher learning are intended to be sanctuaries of education and self-improvement-not places of violence. Law abiding Virginians may rest assured that law enforcement authorities will identify whoever is responsible and our court system will see that justice is done.”

Armed with the thought that we would find a sympathetic and response ear, I sent the following letter:

Va. Attorney General Kilgore

900 E. Main Street

Richmond, Va. 23219


Sir:

On January 16, 2002, Angela Dales—the mother of my granddaughter—was shot and killed at the Appalachian School of Law. Nearly a year before the tragedy, she received a threatening e-mail. State Highway Patrolman Lambert, who investigated the e-mail, told the Dales and Cariens families that the police do not know who sent the e-mail, but that there is no link between the e-mail and shooting. Mr. Lambert said we could not see the police report because it is “confidential,” but that he would retrieve the report from the Richmond archives and answer any questions we have. This was never done. We are asking the help of your office to:

1. Explain why the police assert that there is no connection between the e-mail and the shooting when they do not know who wrote it.


2. Explain the justification for classifying the police request ‘confidential.’


3. Explain the procedures we would have to take to get access to the police report.


4. Explain why officer Lambert never followed up on his promise to answer our questions.


I am enclosing both a copy of the e-mail and copy of a notarized note authorizing me to act on behalf of Angela Dales parents—Sue and Danny Dales. I look forward to hearing from you or a member of your staff.

Yours sincerely,

David Cariens, Jr.

When I sent the letter, I was not aware of the fact that one of the major financial supporters of the attorney general (and probably of his run for governor), was on the board of the law school. But even had I known, I would have sent the letter—assuming that Attorney General Kilgore would “faithfully serve Virginia and her people.” I was convinced that the attorney general would help, not only because of what he had said in public, but because he and his political party run on a platform of family values—what better way to live up to the family values platform than to help a school-shooting victim’s family—a family in severe distress?

We received the following:

Dear Mr. Cariens,

This office is in receipt of your letter with regard to the questions you have concerning the State Police investigation of (a) threatening email received by Angela Dales, the mother of your granddaughter. I am very sorry to hear that Angela’s life was subsequently taken at the Appalachian School of Law.

I understand from your letter that you have been informed by the investigating officer that the author of the email is not known but there is no link between the email and the shooting. Please understand that the authority and jurisdiction of this Office are limited by statute. The Attorney General’s Office functions primarily as a law firm for state government. In this capacity, it advises state officials and represents the various state agencies and departments.

Because this Office is not typically charged with the oversight of the investigatory functions of police and local prosecutors, it has no knowledge of the investigation of which you inquire. The proper functioning of our criminal justice system, however, necessitates that criminal investigations be kept confidential. This need is recognized in Virginia Freedom of Information Act (“VFOIA”), which excludes from its provisions, subject to the discretion of the custodian, “complaints, memoranda, correspondence and evidence relating to a criminal investigation or prosecution, other than criminal incident information.” “Criminal incident information” consists of “a general description of the criminal activity reported, the date and general location the alleged crime was committed, the identity of the investigating officer, and a general description of any injuries suffered or property damaged or stolen.” Please note that, under certain circumstances, even “criminal incident information” may be withheld under the VFOIA. Information on obtaining records from the State Police under the VFOIA is contained on their web site at http://www.vsp.state.va.us/.

If you are dissatisfied with the manner in which the investigation was handled, or by the fact that the investigating officer did not follow up on his promise to answer your questions, you may file a complaint at any State Police Office or by calling the Internal Affairs Section at telephone number (804) 323-2383. Information on filing complaints can also be obtained at www.vsp.state.va.us/professionalstandards.htm.

Please understand this Office is prohibited from providing legal advice to private citizens and, consequently, nothing herein may be construed as such. You are of course, free to consult with any attorney engaged in private practice of law. I hope you will find this information helpful in obtaining answers to your questions. Thank you for expressing your concerns.

Sincerely,

James O. Towey

Assistant Attorney General

The response from the Attorney General’s office, albeit polite, contains prime examples of the “double talk” that victims and their families encounter in Virginia. First, Mr. Towey completely ignores the illogical aspect of the police saying they don’t know who wrote the e-mail, but there is no connection to the law school murders. Second, Mr. Towey wrote that his office “is not typically charged with the oversight of investigatory functions of local police and local prosecutors, it has no knowledge of the investigation of which you inquire.” The word “typical” tells me that the state’s Attorney General’s office does have the statutory powers to review local investigations. In fact, I cannot find anything in the statutes governing the functioning of the Attorney General’s office that prohibits him from investigating the circumstances and investigations surrounding the e-mail. Furthermore, the shootings at the Appalachian School of Law were not “typical.” The shootings were the worst to occur on school grounds in the state’s history up to that time. If there are indications of incompetence in either the investigation surrounding the crime or in prosecuting the case against the killer, are we to believe that it is “typical” for the state’s Attorney General to turn a blind eye to a miscarriage of justice?

Sadly, slightly more than five years later, the Virginia Tech massacre occurred.

Given the fact that the Virginia Tech tragedy was of such magnitude, surely the Attorney General of the State of Virginia would leave no stone unturned to help find the truth and help adopt measures designed to prevent a repetition of these atrocities.

In fact, the Attorney General’s office did appear to take a much more aggressive posture in approaching the Tech tragedy. Lucinda Roy notes in her book that members of the school received a toughly worded memorandum from the Office of the Attorney General of the Commonwealth of Virginia, demanding cooperation from the English faculty in turning over their computer hard-drives. (I wonder if the Cook Counseling Center received similar demands from the Virginia Attorney General’s office.) Indeed, the no-nonsense tone of the memo took the English faculty by surprise. Professor Roy writes:


“I was taken aback … when we received another memo, this time form the Office of the Attorney General of the Commonwealth of Virginia. The memo, dated July 10, 2007, bore state’s official seal and was signed by a person I had never heard of: Ron Forehand, chief, Education Section. (Ronald C. Forehand serves as the senior assistant attorney general in the Health, Education and Social Services Division in the state’s attorney general’s office.) It was addressed to university counsel but its subject related to faculty in English who had lingering questions about the imaging of their hard drive. For those of use who had hoped that the administration would be responsive to our security concerns, the contents and tone of the memo were shocking. Ron Forehand made it clear that the punishment for non-compliance would be extreme:

“Employees who refuse access to Virginia Tech-owned electronic equipment for this data preservation project may be subject to a range of sanctions, to include discipline (including discharge) and denial of a defense by the Attorney General’s office in the event litigation is filed as a result of April 16th.”

“In the even (sic) an employee is not cooperative, I suggest that the university simply confiscate the equipment, take appropriate action in respect to copying, and then take appropriate personnel action against the resistant employee.”

“I’d be happy to speak personally to any employee should that be necessary. Please know that you, the legal department, and the university have the full support of the Office of the Attorney General in your endeavors.”

The negative side of the memo is what some would consider the disregard for privacy; the positive side is the Attorney General’s willingness to use the power of his office to leave no stone unturned to find the truth. If the Virginia Attorney General is going to be that tough on the English faculty, then certainly he will be equally tough on the Cook Counseling Center, and Doctor Miller’s removal of Cho’s medical records.

The complexity of the role played by the state’s Attorney General was a cause for concern by many. Again, Professor Roy points that fact out when she cites Virginia Tech President Charles Steger’s testimony to the Review Panel:

“In his introductory remarks, President Steger reminded the panel that theVirginia Tech attorney also serves as “Special Assistant Attorney General.” This implied that the Office of the Attorney General in Richmond was overseeing the entire procedure on behalf of the Commonwealth of Virginia, and reinforced the notion that whatever was said by the legal counsel had been approved by the state. In this tricky situation—i.e., a state-controlled system of education was being investigated by the state that controlled it—potential conflicts of interest could not be more apparent. Not only was one arm investigating another arm, the two legal offices—the state’s and the university’s—were, all the while, shaking hands. Although a full list of Policy Group participants has not been made public, university legal counsel was present on April 16. This means that the office responsible for representing all the administrators, faculty members, and staff at Virginia Tech was placed in the unenviable position of having to defend itself and its clients at the same time. I can’t imagine how any attorney, however dedicated they may be, could manage this task.” (Page 97, No Right to Remain Silent)


Professor Roy has laid out a complicated set of conflicting interests—the problem of a state body, the Attorney General’s office investigating a state organization, Virginia Tech; and the attorneys at Virginia Tech being part of the Attorney General’s office while having the responsibility to defend itself (as part of the Attorney General’s office) and represent its clients.

But again, the magnitude of the crime would seem to indicate that no matter how difficult these conflicts are, justice would be served. To quote from the Mission Statement of the Office of the Attorney General, that office will: “… (adhere) to the highest ethical standards, respect the traditions and precedents that have shaped the Commonwealth and bring all legal resource to bear in order to protect the people, the customs, and welfare of the Commonwealth of Virginia.” How can such rhetoric not inspire confidence in the Office of the Attorney General of the Commonwealth of Virginia?


On June 7, 2007, Marc Fisher of the Washington Post wrote the following in his column, “Raw Fisher:”

“Virginia Tech officials have refused even to tell the state investigative panel whether Cho ever went to the school’s counseling center after a court ordered him to do so in December 2005. University President Charles Steger said that he is ‘concerned about our inability to know these things… Just saying we don’t know is not good enough. We have to do better, but we must follow the laws.”


“It therefore became necessary for the president and some members of his administration to construct an ethical framework on which a culture of silence could be rebuilt. The most convenient strategy was one that had been used before—i.e., a rigorous enforcement of state and federal laws related to student privacy. The irony of doing this may not have been immediately apparent to the administration because it was, by this time, thoroughly closeted. The same laws that had previously prevented people from sharing information before the tragedy could now be utilized to prevent people from sharing information after the tragedy. It was such a brazen solution to the thorny problem of full disclosure that had Governor Kaine and his review panel not been doggedly persistent about obtaining Cho’s academic and health records, there’s a good chance it would have worked.” (Page 72, No Right to Remain Silent)


“Second, if Virginia Tech employees wish to be represented by the university attorneys, they must abide by their advice. The Tech administration can deny them representation, if it sees fit. The result of this arrangement at Virginia Tech was that free speech was severely curtailed, and advice for those outside the upper administration could be hard to come by.” (Page 145, No Right to Remain Silent)


“On June 18, the same day that Governor Kaine issued Executive Order 53, I was scheduled to be interviewed by two of the panelists, Gordon Davies and Judge Diane Strickland. I had let Virginia Tech know that my lawyer’s associate, Jeffrey Shrader, would be accompanying me to the interview because, by then, I had no idea what I could and couldn’t divulge. The other members of the English department would have a university attorney present during their interviews with the panelists, so this would protect them from being castigated later by the administration for revealing something could violate state or federal privacy laws.” (Pages 146-7, No Right to Remain Silent)

“The meeting did not begin auspiciously. We were about to commence when we were joined by the associate university counsel, Mary Beth Nash. I was surprised by this because I had not been told that she planned to do so. When asked why she joined us she informed the group that Charles Steger wished her to attend. Although I could understand why the president would want to monitor what was said to the panelists, it would have been common courtesy to be notified ahead of time that university counsel would join us for the interview. It was another indication that I was not considered part of the group being defended by the university but had instead been identified as a potential liability.” (Pages 146-7, No Right to Remain Silent)

Unlike the double talk from the Attorney General’s Office following the Appalachian School of Law shootings, it appeared in the case of Virginia Tech, the Attorney General would be aggressive in getting to the bottom of crime. Therefore, I was surprised when nothing appeared in the news media to indicate any reaction from the Attorney General’s office to Dr. Miller and Cho’s missing files. Puzzled, I sent the following email to the Attorney General’s office on September 6, 2009:

Has the Attorney General or his office commented on the fact that Seung-Hui Cho’s private medical records were in the personal papers of Dr. Miller and not the school’s counseling center? Where any federal or state laws broken? Given the fact that everyone involved in the legal settlement with 30 of the families agrees that the absence of those papers was a major gap in knowledge—is the integrity of that settlement in question?

David Cariens

I received the following letter almost two weeks later:

COMMONWEALTH of VIRGINIA
OFFICE OF THE ATTORNEY GENERAL


September 14, 2009


Mr. David S. Cariens, Jr.
1666 Balls Neck Road
Kilmarnock, Va. 22482


Dear Mr. Cariens:


This Office has received your e-mail of September 6, 2009 in which you make a request under the Freedom of Information Act (“FOIA”), Va. Code 2.2-3700 et seq., as follows:


Has the Attorney General or the Attorney General’s office issued an opinion on the fact that the medical records of Seung-Hui Cho had been removed from the school’s counseling office and were in the home of Dr. Miller? (Please note the underlined text of the original email and the Attorney General Office’s version of what I submitted. As you see, parts of the query go
unanswered.)


No opinion has been issued by this Office in this matter. Further, the Attorney General’s Office represents and provides legal services to the agencies and institutions of Virginia’s state government, including Virginia Tech in [ending litigation arising out of the tragic massacre of April 16, 2007. It is the responsibility of locally elected Commonwealth’s Attorneys to investigate and enforce the criminal laws of the Commonwealth that might apply in this situation.


Only public records, as opposed to information generally, are subject to the Freedom of Information Act. The health care records you refer to, thanks to the consent of Cho’s family and administrator of his estate, have been made available by Virginia Tech and may be accessed at http://www.vtnews.edu/story607.php. A review of those documents reveals that they do not provide any information that is new or different from that which was available to the Governor’s Review Panel.


Sincerely,


Jan Myer
FOIA Administrator


All of a sudden the tough, threatening tone of the Attorney General’s memorandum to the Virginia Tech English Department is gone and instead, there is “no opinion.” If it is the responsibility of the locally elected Commonwealth’s Attorneys to investigate and enforce the criminal laws of the Commonwealth that might apply to the situation, why had the Attorney General’s office played such an aggressive role in dealing with the school’s English Department?

Finally, one has to question the Virginia Attorney General office’s assertion that Cho’s medical records “do not provide any information that is new or different from that which was available to the governor’s Review Panel.” Are you sure?

1. Just having access to the medical records would have made the victims and the victims’ families more confident in what course of action they should follow.

2. The records indicate that when triaged, Cho denied any suicidal tendencies—what did the Cook Counseling Center expect? “Yes, I suicidal, a menace to others and I plan to butcher 30 people.” The records consistently report Cho denying this or that—nowhere is there a reference to a medical professional’s thorough evaluation of Cho. When reading the health care professionals’ comments, two words come to mind—“shallow” and “superficial.” That is new insight Mr. Attorney General.

3. The medical records contain curious hand-written comments counselor S. Lynch Conrad, dated 12/14/05: “Did not assess—student has had two previous triages in past 2 weeks—last 2 days ago.” Is that a legitimate excuse for no triage? It doesn’t seem so to me. In fact, I would argue that if a student has been triaged twice in a two week period for possible suicidal
tendencies, there is a real problem demanding attention. I would argue strongly that a third triage is exactly what is needed.

4. So, Mr. Attorney General, what is new—plenty! Seung-Hui Cho’s medical records bring into play the question of the professionalism and competency of the Cook Counseling Center and its staff. The Cook Counseling Center records do have a very direct bearing on the events of April 16, 2007.

A number of years ago I attended a debate by the candidates running for the office of Virginia’s Attorney General. In the question-and-answer segment I asked, “Why should the average voter be concerned about the Attorney General? What is it hat the Attorney General does for the average citizen?”

The answers from each candidate were convoluted, vague, and unsatisfactory. I now know why.

If you look at the Mission Statement you will see the following: “The Office of the Attorney General is the Commonwealth’s law firm.”

“The Web site for the Attorney General’s office lists 14 duties and powers. There is no mention of the Attorney General’s responsibilities when it comes to mass murder on the state’s school grounds. I would have been surprised had there been such a reference. But, nowhere does it say that the Attorney General is limited to those 14 duties and powers. In fact, if you read the Mission Statement of the Attorney General’s Office, it appears there is a wide range of latitude and discretion to go beyond the 14 basics—particularly when “serving Virginia and her people.” I quote:

“…As Virginia’s law firm, the Office of the Attorney General is dedicated to seeing to it that justice is served, wisdom is sought, and the right course of action is consistently taken. By faithfully serving Virginia and her people, this office strives to ensure that the Commonwealth will reach a future even brighter than its glorious past.”

The actions of the Virginia Attorney General’s office appear—more often than not—to be aimed more at protecting bungling elected officials and civil servants rather than finding the truth. In the case of the shootings at the Appalachian School of Law and Virginia Tech University, I am hard pressed to find examples of where “justice is served, wisdom is sought, and the right course of action is taken.”