The response from Governor Kaine’s office to my Freedom of Information request makes it clear that at the highest level of state government in Virginia, there really is no desire to find the truth surrounding the horrible events of April 16, 2007. Here is that request followed by the response:
The request:
Ms. Amber Lee Amato
Director of Constituent Services
Office of Governor Timothy M. Kaine
SUBJECT: Freedom of Information Request
Dear Ms. Amato,
Thank you very much for answering my previous Freedom of Information requests.
The correspondence you sent concerning TriData’s arrangements with the State of Virginia to write the Review Panel Report has raised new questions. Specifically, the letters of August 17, 2009, and April 26, 2007 list ambiguous job descriptions with hourly pay. (I assume it is an hourly pay scale, because the letters do not indicate that.)
Would you provide me with the following?
1. Please provide me with the names of the people attached to each position in the letter. For example, Corporate Program Director, Jane or John Doe.
2. Please provide me with the total amount paid each person for his or her role in the production of the report. For example, Senior Production Director, Jane or John Doe, $xxx.
3. Please define the role for each category of TriData officer working on the report. The titles are ambiguous and really do not say what an individual did in her or his capacity. For example: Senior Communications & Media Specialist. What is that? Is that a public relations person or a specialist in the production of finished reports? It is not clear.
4. If the job description cited in the preceding question is a public relations person, would you provide me with the justification for hiring a public relations specialist? TriData paid a Senior Law Enforcement Specialist approximately half the hourly rate they paid a public relations specialist. It would appear that TriData’s priorities are misplaced. The report is about the worst school shooting in this nation’s history—common sense tells me the contributions of a law enforcement specialist are worth far more than a PR person. Why did the state go along with this?
5. Please provide me with the amount of profit TriData Corporation took in from this report after expenses.
Ms. Amato, again, I appreciate your time, patience, and effort in responding to my requests. Preventing school shootings is very important to my family. We lost the mother of our oldest grandchild at the shooting at the Appalachian School of Law in Grundy, Virginia, on January 16, 2002.
It is my belief that unless serious and thorough analyses of these shootings are done, it is only a matter a time before another school shooting takes place. For your information, this letter is being posted on my blog, www.aquestionofaccountability.com, and may appear in one or more Virginia newspapers. Your response will be published on the blog when I receive it.
Thanking you in advance
Yours sincerely,
David Cariens, Jr.
The response:
Mr. David S. Cariens
Thank you for your letter dated October 13, 2009 concerning your request under the Freedom of Information Act (FOIA).
The general policy of FOIA expressed in w 2.2-3700 of the Code of Virginia is to ensure access to public records in the possession of public officials. FOIA requires that all public records be open to inspection and copying and we have previously provided you all documents in our possession concerning payments to TriData as well as personnel working for TriData. We have provided you with contact details for TriData so that you can seek further information which we do not possess.
Several of your questions do not request documents but information—such as the amount of profit TriData earned from its work with the Commonwealth. It is important to distinguish a request for information from a request for documents and the Attorney General has opined that FOIA applies to documents and not to requests for information. We have no documents in our possession that are responsive to your requests other than what has been previously provided to you.
Sincerely,
Amber Amato
Director of Constituent Services
Office of Governor Timothy Kaine
The most telling line in the response from the governor is the sentence: “It is important to distinguish a request for information from a request for documents and the Attorney General has opined that FOIA applies to documents and not requests for information.”
I’m not sure the Virginia Attorney General is a credible source for interpreting the law. The Virginia Attorney General’s office appears to turning a blind eye toward the fact that Virginia Tech’s Policy Group may have broken the law. For example, the SERAPH Research Team (a consulting and training firm that consists of law enforcement and educational experts) has called for criminal charges against Virginia Tech University. SERAPH claims the school’s Policy Group obstructed the police in their original investigation of the first two murders at Amber Johnston Hall.
SERAPH cites the Virginia legal code in making the charge. Specifically:
“Virginia criminal code 18.2-460 A, Obstructing justice: If any person without cause knowingly obstructs a judge, magistrate, justice, juror, attorney for the Commonwealth, witness or any law-enforcement officer in the performance of his duties as such or fails or refuses without just cause to cease such obstruction when requested to do so by such judge, magistrate, justice, juror, attorney for the Commonwealth, witness, or law-enforcement officer, he shall be guilty of a Class 1 misdemeanor.”
SERAPH is apparently referring to the actions of Virginia Tech’s Policy Group following the first two homicides and the slaughter of 32 people at Norris Hall almost two and one-half hours later. SERAPH is questioning the judgments of the Policy Group, indicating there may be reasonable cause for obstruction of justice. What has the Virginia Attorney General said about the possibility that Virginia Tech’s Policy Group obstructed justice? Nothing—neither he nor his office apparently has bothered to investigate the possibility of criminal action by the Policy Group on April 16, 2007.
I would think that state of Virginia would want to know, and being willing to share with the electorate, the following information:
1. The names and the backgrounds of the people at TriData who played key roles in the drafting of the report—those names should not be a state secret. Indeed, that information should critical to ensuring the best possible analysis of this nation’s worst school shooting is written. For example, if the governor’s office had a question or concern about the document, having the names could clear up any ambiguity in the written text.
2. I don’t think it is unreasonable to ask how much each person was paid to produce the report. That too should not be a state secret. I would argue that TriData was paid with tax payers’ money and that tax payers have a right to know how much each person was paid.
3. The failure of the governor’s office to answer question three is particularly troubling. Why would TriData need a public relations officer to play what appears to be a high-priced, key role in the production of the report? The only answer I can come up with is to spin the report. Because the state is paying TriData a princely sum to produce the Review Panel Report, you can bet the document will spin in favor of the Virginia Tech. I for one, hope there is a member of the Virginia legislature who picks up on this “spin doctor” approach by TriData and asks for an explanation.
4. Again, the failure to answer question four is disturbing. Why on earth would the state agree to pay a public relations officer far more than a security expert? This fact brings into question the state’s motives as well as the credibility of the final product. The failure to answer question four clearly raises the specter of an out right cover-up—at the expense of the truth.
5. Question five is a legitimate question that needs answering. It is morally repugnant for any person or company to make money off the sufferings of others. To take over $700,000.00 for the report analyzing the killing of 32 innocent victims and wounding of 17 others is despicable. The citizens of the Commonwealth of Virginia have a right to know just how much profit TriData made.
The response from the governor’s office is especially troubling because many of the answers to my questions should have been in the contract signed by the State of Virginia and TriData. Therefore, the easiest way to answer my request would have been to supply me with a copy of the contract and all amendments. Once the revisions to the Review Panel Report are out, I plan to file a request for a copy of the original contract with TriData and all amendments to that contract—as well as a final tabulation of all money paid to TriData.
Saturday, November 28, 2009
Wednesday, November 25, 2009
FAILED COMMITMENTS: THE REVISION OF THE VIRGINIA TECH REVIEW PANEL REPORT
Once again the state of Virginia appears to be failing to live up to its commitments to the victims and families of the Virginia Tech massacre. This time it is the revision of the Governor’s Review Panel Report. The governor’s office and TriData, the firm that wrote the report, stacked the cards against the families from the outset—the two appear to be more concerned about appearances and processes than they are about getting at the truth.
When the families met with the governor for a second time in September, they were told that TriData would finish revising the report by the end of October. It is now the end of November and there is still no word on when the revised report will be completed. Furthermore, there has been no communication with the families to explain the delay. If you want to be cynical, you might speculate that TriData and the state of Virginia do not want the revised report out as long as the Pryde and Petersen law suit is pending. (The Pryde and Petersen families refused to go along with the settlement reached between the majority of the families and the state of Virginia.)
The families were granted a conference call with two TriData representatives, Hollis Stambaugh, one of the principal writers of the report, and Philip Schaenman, founder and President of TriData. Stambaugh and Schaenman were only willing to discuss the “process” of the revision. The two were unwilling or unable to discuss the substance of the revisions, despite the fact that the revisions were the purpose of the conference call in the first place. For example, neither Stambaugh nor Schaenman were willing to talk about the badly flawed timeline of events during the nearly two and one-half hours between the first two shootings at Ambler Johnston Hall and the killings at Norris Hall. One reason for this unwillingness may be that to admit there were wholesale inaccuracies and omissions in the timeline, would be an indictment of TriData’s research and writing of the report.
It is worthwhile to take a few moments to look at TriData, Stambaugh, and Schaenman. TriData relies heavily on federal and state contracts, and is best known for studying fire safety issues (not school shootings). TriData did conduct a study for the Federal Emergency Management Agency on police and emergency medical response to the shootings at Columbine. Let me emphasize something, however, the study was not an analysis of the crime; it was an analysis of the emergency responses. There is very little in TriData’s track record to indicate that it has the credentials to analyze a crime such as the Virginia Tech shootings.
The Washington Post reported that TriData’s other contract with the state of Virginia was to review the chaotic response to a false positive anthrax test at the Pentagon’s remote mail facility and a similar alarm at Defense Department sites in Fairfax County in March 2005. Again, this is hardly a stellar recommendation to do the job concerning Virginia Tech.
Hollis Stambaugh is the Director of the Center for Public Protection for System Planning Corporation’s TriData division. Ms. Stambaugh headed an intergovernmental assessment of response to Hurricane Isabel for the Governor of Virginia. She was also a key player in the anthrax review cited in the previous paragraph. Her ties to Virginia as a source of income appear to run deep. She might not want to examine the possibility that Virginia Tech University misled the review panel, or fed them misleading information and jeopardize future contracts. I know that she didn’t and she won’t discuss the substance of the report with the Virginia Tech families.
Philip Schaenman is the founder and president of System Planning Corporation’s TriData division. TriData describes itself as specializing in studies of fire protection, emergency medical services (EMS) and EMS management, hazardous materials, rescue and emergency management; and the development of practical indicators to measure the performance of state and local government emergency services. Nowhere do I see a reference to crime or crime scene analysis. Mr. Schaenman’s biography noted that his book “Providing Public Fire Education Works,” appears as chapters in the National Fire Prevention Administration Handbook on the same subject. That’s great—but, Virginia Tech did not burn down, it was the site of the worst school shooting in this nation’s history. Schaenman holds degrees in engineering and liberal arts, and he served on the NASA panel formulation criteria for spacecraft computers where he developed forecasts of aerospace computer technology—I do not see a crime scene specialist here.
The lack of credentials on crime analysis—coupled with a desire to win more lucrative contracts from the state of Virginia—may explain TriData’s stone-walling on the substance of the report. It may explain the stone-walling, but it is inexcusable. For example, a timeline is probably the most important part of the initial phase of a crime scene analysis. Yet Stambaugh and Schaenman would not comment on how the timeline of events was so wrong. Nor would they address the fact that TriData may have been fed wrong information by the University—further damaging the timeline. The thing the TriData representatives said is that they relied on verbal inputs and peoples’ recollections. This reliance on what appears to be hearsay is an incredibly poor methodology—certainly not worthy of examining the events of April 16, 2007.
Indeed, the there are so many timeline errors that some have speculated that the problem could not have been created solely by TriData alone based on bogus input. One parent put it this way, “With the amount of expertise and resources available to them, and the number of ‘eyes’ looking at that document prior to its publication, we believe that TriData did not act alone in creating such an erroneous and misleading end product. We believe there was direction being provided to TriData, the source of which may have been from within the panel and/or Richmond.”
The Virginia Tech families have done a herculean job of identifying errors in the Review Panel Report—specifically the timeline. Their efforts point out mistake, after mistake, after mistake. (Some of their corrections are listed at the end of this blog.) How a firm such as TriData that claims to be a research firm would allow those errors in the initial report boggles the mind. The families’ corrections have been given to the governor and to TriData, yet the families apparently will not be allowed to review the revision for accuracy before it is published. The delay in the revision and the lack of communication with the families, is giving rise to speculation that TriData will cherry-pick the corrections it wants to make and then use their public relations arm to tout their responsiveness to the families.
Don’t forget—your tax dollars are paying TriData! Before the process is over, TriData will be paid somewhere around three-quarters of a million dollars. And for doing the state’s biding they will certainly win more contracts.
CORRECTIONS FROM THE POHLE FAMILY:
August 16, 2009
Dear Governor Kaine,
This is my family’s response to your request for corrections pertaining to the Virginia Tech Panel Report published in August of 2007.
We believe that in addition to identifying specific “factual errors”, it is equally important to look at how factual errors connect to each other to get a bigger picture.
What follows is based on data that was available to the panel, TriData, and others as early as May of 2007, as well as statements contained in the panel report itself. Admittedly, our information was limited compared to what was presented to the panel, however, a picture still emerges.
Overall, my family believes;
1. That the timeline of events, and actions being taken, on the morning of April 16, 2007 following the WAJ shooting and before Norris Hall is built upon a false starting point that is not supported by fact.
2. That the 7:30-8:00 AM timeline entry was not simply a mistake.
3. That there were systemic failures of leadership relative to priority, readiness, and execution relative to campus safety, and those gaps were not adequately addressed by the panel report.
4. That there is more information concerning what went on before April 16th that has not yet been revealed.
5. That the investigation must be re-opened and include other expertise to critically examine all information available.
The delays associated with revealing the complete truth about April 16, 2007 that we have endured have gone on for far too long. We, respectfully, request that action be taken immediately rather than after your term is over.
One of the other families has created what we believe to be a relevant name for what has gone on these past 2 years. That name is “Hokiegate”.
Thank you,
Michael & Teresa Pohle
A. An Erroneous Timeline of Events – Why?
(Chap III, p 25) “7:30–8:00 a.m. A friend of Hilscher’s arrives at WAJ to join her for the walk to chemistry class. She is questioned by detectives and explains that on Monday mornings Hilscher’s boyfriend would drop her off and go back to Radford University where he was a student. She tells police that the boyfriend is an avid gun user and practices using the gun. This leads the police to seek him as a ‘person of interest’ and potential suspect.”
The foregoing passage presents a false timeline. According to Chief Flinchum, the interview actually began at 8:16AM, and resulted in a person of interest not being identified until, allegedly, 8:40-8:45AM. Hence, no one could have identified the Person of Interest (POI) until after this interview concluded. This latter time point connects well with the timing of the private e-mails to Richmond describing what was going on, and not to release anything.
1. With its expertise, knowledge, and supporting resources, how could the panel fail to establish an accurate timeline for the events after the shootings at WAJ? In any case, its acceptance of an erroneous timeline laid the foundation for subsequent false statements in the report.
2. On May 21, 2007, Chief Flinchum specifically told the panel that the interview leading to the discovery of the POI did not start until 8:16 AM. Inexplicably, the panel disregarded this highly significant information, although other elements of his input were included in the timeline. (Chief Flinchum’s presentation is attached.) Both the source of this false entry, and the reason(s) behind why this was done must be explained.
3. On May 21, 2007, Vice Provost of Student Affairs David Ford also spoke to the panel. Whereas Vice Provost Ford’s input receives almost two full pages (Chap VII, pp 81-82) in the report, only portions of Chief Flinchum’s input to the panel were included.
4. Although the panel had Chief Flinchum’s testimony about the factual timeline for three months prior to the publication of the report, it has never, before or since, made any effort to disclose or to account for this error in establishing a timeline.
5. Inexplicably, the panel failed to interview either the key witness (H. Haugh) or the cited Person of Interest (K. Thornhill).
6. If the panel had spoken with H. Haugh, she would have confirmed Chief Flinchum’s statement to the panel on May 21, 2007, of the interview’s true timeline.
(Chap VII, p 80) “In an interview with President Steger, members of the panel were told that the police reports to the Policy Group first described a possible ‘murder–suicide’ and then a ‘domestic dispute,’ and that the police had identified a suspect. After the area parking lots had been searched, the police reported the suspect probably had left the campus.”
7. Given that Chief Flinchum did not speak to President Steger until 8:10 AM, the panel did not convene until 8:25 AM, and the POI remained unidentified until, allegedly, 8:40-8:45 AM, the highlighted portion of the foregoing statement could be true only if the incorrect 7:30 – 8:00 AM timeline were true.
8. When the families met with Chief Flinchum in October 2008 at an event also attended by state law-enforcement and representatives of the Governor’s office, Chief Flinchum stated that the panel-report entry for the timeline was wrong.
9. At this same meeting, Chief Flinchum pointed out that the card-swipe records showing that Ms. Hilscher’s roommate (aka her friend) entered WAJ at 8:14 AM confirm that the 8:16 AM starting time for the interview is factually correct.
10. Also, again at this same meeting, Chief Flinchum stated that the police knew that Karl Thornhill (POI) had attended his class at Radford University that morning. His attendance there is behavior seemingly inconsistent with that of a bloody-footed murderer, and receives no mention at all in the panel report.
11. The panel report shows other time points that either card swipes or computer records unequivocally substantiate. Nothing, however, substantiates the 7:30 – 8:00 AM timeline that the report endorses – nothing.
12. Numerous actions that the police and the Policy Group took, as set down in the panel report, have their basis in the erroneous 7:30 – 8:00 AM timeline. For example:
a. (Chap III, p 26): “8:16 – 9:24 a.m. “Officers search for Hilscher’s boyfriend.” (This is a false/misleading statement that qualifies as true only if the 7:30 – 8:00 AM timeline is true.)
b. (Chap III, p 26): “Chief Flinchum provides updated information via phone to the [VT] Policy Group regarding progress made in the investigation. He informs them of a possible suspect, who is probably off campus.” This is a false/misleading statement that qualifies as true only if the 7:30 – 8:00 AM timeline is true. Only Chief Flinchum and President Steger spoke at 8:10 AM; neither spoke to the Policy Group during that call. There was no suspect, or person of interest identified when the Policy Group meeting began at 8:25AM.
c. (Chap VII, p 80): “Both the VTPD and the BPD immediately put their emergency response teams (ERTs) (i.e., SWAT teams) on alert and staged them at locations from which they could respond rapidly to the campus or the city. They also had police on campus looking for the gunman while they pursued the boyfriend.” The underlined portion of the last sentence is false because the SWAT team was alerted at 8:15 AM (Chap III, p26) and the police had not yet identified the boyfriend as a POI until, allegedly, 8:40-8:45 AM. Subsequently, the statement could be true only if the 7:30 – 8:00 AM timeline was accurate, which it is not.
13. The panel never explored or explained the causal relationship between the 9:24 AM stop of Mr. Thornhill and the issuing of the first vague message to the campus at 9:26 AM. A gun-powder test takes more than two minutes, and the two-minute interval between these two events would strike few unbiased observers as coincidental.
Boyfriend Questioning (Chap VII, p 85): “At 9:30 a.m., the boyfriend of Emily Hilscher was stopped in his pickup truck on a road. He was cooperative and shocked to hear that his girlfriend has just been killed.”
14. This statement conflicts with the entry on p 26 of Chap III, which states that the police stopped Mr. Thornhill at 9:24 AM.
a. How could this POI have known that someone had murdered his girlfriend? What did he know that the panel failed to find out by omitting to interview him? We do know that Heather Haugh and Karl Thornhill (POI) were friends, and were told that she sent a text message to him following her interview that his girlfriend had been shot.
b. The phrase “on a road” avoids acknowledging the fact that the road was Prices Fork Road, and that Prices Fork Road traverses the Virginia Tech campus. Why would he have gone to class at Radford and then return to Virginia Tech if he was attempting to flee?
B. Leadership Failures – What Is a University’s First Priority?
On the morning of April 16, 2007, Virginia Tech had at least two procedures in place that were important, legally obligatory, and relevant to what the administration must do in an emergency. The first was their Emergency Response Plan (ERP); the second was their Timely Warning Procedure (TWP), available in the document “Campus Safety: A Shared Responsibility,” published in 2005 in compliance with the Federal Clery Act. State and federal law require the implementation of the tenets of both these procedures. The panel report does not contain any mention of whether these procedures, as written, were followed. Additionally, there were no recommendations or conclusions stating that schools MUST follow what they say they will do. This was completely within the panel’s scope as directed by Executive Order 53 (Chap I, item #6, p6)
Emergency Response Plan
I submit that on 4/16/07 Virginia Tech’s administration did not follow the ERP as written. Indeed, had VT leadership made it a priority after the Morva Incident in August 2006 to revise its ERP to include what they would do if a shooter appears on campus, and update it to align with state and federal guidelines, its Policy Group would have been far better prepared vs. spending precious time discussing the same Morva incident. (Chap VII, p 80). Despite this opportunity, neglecting their leadership duty, they did nothing to improve the procedures in their own ERP. Further, the panel makes no mention of, nor conclusion about, the priority, commitment, and responsibility that university leadership has concerning safety.
The panel report states, “The VTPD has authority under the Emergency Response Plan and its interpretation in practice to request that an emergency message be sent, but as related in Chapter II, the police did not have the capability to send a message themselves” (Chap II, p 19).
First, what does the first part of that statement mean? Either VT followed the ERP as written, or it did not. Although no university can anticipate every possibility, its leadership team should have updated the ERP and implemented new procedures, using the best information available. Although no such action occurred at Virginia Tech, the panel does not indict VT’s leadership for this failure. Recommendation II-2 (Chap II, p 19) sets forth common knowledge for any university leadership in the Commonwealth, but declines to rebuke the VT leadership for its systemic failures relative to campus safety.
Second, even though the VTPD had the “authority” under the ERP as written, they were never provided the tools to comply with this, outdated, plan. The panel report never specifically addresses this leadership failure. Why not?
Third, the report provides no reference or cites any document to suggest that VT leadership trained its employees to understand what its accepted ERP “practice” is in such situations. Why not?
Campus Safety: A Shared Responsibility – The Federal Clery Act
The only reference to the Federal Clery Act in the panel report appears in (Chap II, p 19, II-5). It consists of a simple recommendation: “Universities and colleges must comply with the Clery Act, which requires timely public warnings of imminent danger. Our legislators should clearly and specifically define the term “timely” in the federal law.”
In 2005, Virginia Tech published a document titled “Campus Safety: A Shared Responsibility.” Publishing such a document is a requirement of the Federal Clery Act and it was in effect on April 16, 2007.
The following statements are contained in this document.
i. (Page 1) “Virginia Tech has designed policies and regulations in order to create a safer and more harmonious environment for the members of its community. All campus community members and visitors of the university are required to obey these regulations. These policies not only reflect the university’s high standards of conduct, but also local, state and federal laws. Observed and enforced, they create a high degree of safety for the university community.”
ii. (Page 6) “At times it may be necessary for "timely warnings" to be issued to the university community. If a crime(s) occur and notification is necessary to warn the University of a potential dangerous situation then the Virginia Tech Police Department should be notified. The police department will then prepare a release and the information will be disseminated to all students, faculty and staff and to the local community.”
As opposed to the language in the ERP, which the panel report cites as “cumbersome, untimely, and problematic”, etc. (Chap 7, p 80), both the requirement and the process for issuing a timely warning appear in this document in clear and concise terms.
Nothing in the panel report suggests that VT’s leadership ever conducted any discussions about executing this timely-warning procedure, or that the Chief of Police, the VTPD, or the Policy Group ever took any action to execute the procedure as directed. Nothing in the report alludes to this requirement. This absence of comment constitutes a serious omission, especially given the unambiguous nature of the notification procedure.
At a minimum, Chief Flinchum, other VTPD officers on the scene, and possibly Dr. Ed Spencer knew that they had no suspect, no person of interest, no weapon, no witnesses, and bloody footprints leaving the scene as early as 7:40 AM They knew all this considerably before Chief Flinchum’s first phone conversation with President Steger at 8:10 AM.
During that call at 8:10 AM, Chief Flinchum did not share all the facts of the situation with Dr. Steger.
Chief Flinchum failed to notify Dr. Steger and the Policy Group that he had deployed his SWAT team, staging it at the Blacksburg police department at 8:15AM (Chap III, p 26). At that time, the police still had no suspect and had still not identified any person of interest.
Chief Flinchum failed to inform Dr. Steger and the Policy Group that police were on campus looking for the gunman while they were also deploying SWAT teams (Chap VII, p 80). At this time, the police still had no suspect, nor had they yet identified a person of interest.
Based on the forgoing information, this situation met the conditions for issuing a warning by the Chief of Police per the timely-warning procedure. The comment from the panel relative to defining the word “timely” is an insult, especially given that private e-mails were sent to people in the Gov. office beginning at 8:45AM advising of a shooter on the loose, as well as the timing for the second warning message which was sent within 5 minutes after the Administration was informed of what was happening in Norris Hall.
Contrary to the procedures in the Emergency Response Plan, “Campus Safety: A Shared Responsibility” gave Chief Flinchum the responsibility and the authority to issue a necessary warning without any requirement for pre-authorization from any member of the administration.
As was the case with the Emergency Response Plan, the VTPD was never equipped to comply with what was required. This was a failure of Leadership.
The panel report made no mention of this Clery procedure, nor did it point out that this procedure and the Emergency Response Plan were in conflict with each other.
In our opinion, these leadership failures should include the VT Board of Visitors for neglecting to provide oversight and direction to the administration about establishing campus safety as a top priority, such as:
Instituting robust, up-to-date, and consistent safety procedures that function as living documents.
Ensuring that the university law enforcement can execute approved procedures as written, and the administration is committed to maintaining safety as the highest priority.
Acknowledging that the BOV must set the priority, measurement criteria, and accountability for the University relative to safety, and provide the needed oversight to ensure this is done. This is required as per Article I, Section 5, of their By-Laws, as well as applicable statute(s).
Article I
Section 5. Responsibilities of the Board
As public trustees the members of the Board have the overall responsibility and authority, subject to constitutional and statutory limitations, for the continuing operation and development of the institution as a state land-grant university, and for the evolving policies within which it must function. Much of this authority necessarily is delegated to the President, who serves as agent of the Board and chief executive officer of the University.
The most important responsibility of the Board is the trustee obligation to insure that the University's educational and research programs effectively meet the evolving needs of Virginia's citizens to the fullest extent possible within the statutory mission of the institution. Similarly in a national context, the Board's oversight responsibilities extend to federally mandated programs.
The formulation of the basic policies under which every aspect of the University's operations are carried out, as well as the implementation of those policies, consequently are subject to the Board's review, possible modification, and ultimate approval. However it is at the policy level, rather than the operational level, that the Board's responsibilities are paramount.
By statute, the Board is charged with the care, preservation, and improvement of university property and with the protection and safety of students, faculty, and staff on the property. The Board also is charged with regulating the government and discipline of students and, in respect to the government of the University, may make such regulations as the Board deems expedient, not contrary to law. The Board has authority over the roads and highways within the University campus and may prohibit entrance to the property of undesirable and disorderly persons or eject such persons from the property (§23-122, Code of Virginia, as amended).
C. Leadership Failures – Cook Counseling Center?
1. The recent news about the discovery of Cho’s “misplaced” medical records, and the panel not interviewing Dr. Miller, is very significant. This is regardless of what is actually contained in the files. What is missing from the report was any discussion about how medical records could be missing in the first place, whether the problem was systemic of record keeping deficiencies at Cook, and what had been done, or not done, about correcting that deficiency. How is it possible that 9 months following Cho’s last reported contact with the Center that his records, as well as others, could still be missing given strict state and federal laws?
a. (Chap 3, p28) “September 6–12 [2006] Professor Lisa Norris, another of Cho’s writing professors, alerts the Associate Dean of Liberal Arts and Human Sciences, Mary Ann Lewis, about him, but the dean finds “no mention of mental health issues or police reports” on Cho.”
b. The panel report contains no discussion, or recommendations, concerning the serious nature of failing to maintain records, or what actions did VT leadership take to resolve that situation. Consistent with the deficiencies discussed in section B, I submit this is yet another example of failed leadership and oversight.
c. The families received an e-mail on June 18, 2007 from Dr. Steger concerning Cho’s Medical records. As you will see from the attached, there is no indication of any records being lost or missing, yet, we now know that was the case even before April 16, 2007.
Michael & Teresa Pohle
When the families met with the governor for a second time in September, they were told that TriData would finish revising the report by the end of October. It is now the end of November and there is still no word on when the revised report will be completed. Furthermore, there has been no communication with the families to explain the delay. If you want to be cynical, you might speculate that TriData and the state of Virginia do not want the revised report out as long as the Pryde and Petersen law suit is pending. (The Pryde and Petersen families refused to go along with the settlement reached between the majority of the families and the state of Virginia.)
The families were granted a conference call with two TriData representatives, Hollis Stambaugh, one of the principal writers of the report, and Philip Schaenman, founder and President of TriData. Stambaugh and Schaenman were only willing to discuss the “process” of the revision. The two were unwilling or unable to discuss the substance of the revisions, despite the fact that the revisions were the purpose of the conference call in the first place. For example, neither Stambaugh nor Schaenman were willing to talk about the badly flawed timeline of events during the nearly two and one-half hours between the first two shootings at Ambler Johnston Hall and the killings at Norris Hall. One reason for this unwillingness may be that to admit there were wholesale inaccuracies and omissions in the timeline, would be an indictment of TriData’s research and writing of the report.
It is worthwhile to take a few moments to look at TriData, Stambaugh, and Schaenman. TriData relies heavily on federal and state contracts, and is best known for studying fire safety issues (not school shootings). TriData did conduct a study for the Federal Emergency Management Agency on police and emergency medical response to the shootings at Columbine. Let me emphasize something, however, the study was not an analysis of the crime; it was an analysis of the emergency responses. There is very little in TriData’s track record to indicate that it has the credentials to analyze a crime such as the Virginia Tech shootings.
The Washington Post reported that TriData’s other contract with the state of Virginia was to review the chaotic response to a false positive anthrax test at the Pentagon’s remote mail facility and a similar alarm at Defense Department sites in Fairfax County in March 2005. Again, this is hardly a stellar recommendation to do the job concerning Virginia Tech.
Hollis Stambaugh is the Director of the Center for Public Protection for System Planning Corporation’s TriData division. Ms. Stambaugh headed an intergovernmental assessment of response to Hurricane Isabel for the Governor of Virginia. She was also a key player in the anthrax review cited in the previous paragraph. Her ties to Virginia as a source of income appear to run deep. She might not want to examine the possibility that Virginia Tech University misled the review panel, or fed them misleading information and jeopardize future contracts. I know that she didn’t and she won’t discuss the substance of the report with the Virginia Tech families.
Philip Schaenman is the founder and president of System Planning Corporation’s TriData division. TriData describes itself as specializing in studies of fire protection, emergency medical services (EMS) and EMS management, hazardous materials, rescue and emergency management; and the development of practical indicators to measure the performance of state and local government emergency services. Nowhere do I see a reference to crime or crime scene analysis. Mr. Schaenman’s biography noted that his book “Providing Public Fire Education Works,” appears as chapters in the National Fire Prevention Administration Handbook on the same subject. That’s great—but, Virginia Tech did not burn down, it was the site of the worst school shooting in this nation’s history. Schaenman holds degrees in engineering and liberal arts, and he served on the NASA panel formulation criteria for spacecraft computers where he developed forecasts of aerospace computer technology—I do not see a crime scene specialist here.
The lack of credentials on crime analysis—coupled with a desire to win more lucrative contracts from the state of Virginia—may explain TriData’s stone-walling on the substance of the report. It may explain the stone-walling, but it is inexcusable. For example, a timeline is probably the most important part of the initial phase of a crime scene analysis. Yet Stambaugh and Schaenman would not comment on how the timeline of events was so wrong. Nor would they address the fact that TriData may have been fed wrong information by the University—further damaging the timeline. The thing the TriData representatives said is that they relied on verbal inputs and peoples’ recollections. This reliance on what appears to be hearsay is an incredibly poor methodology—certainly not worthy of examining the events of April 16, 2007.
Indeed, the there are so many timeline errors that some have speculated that the problem could not have been created solely by TriData alone based on bogus input. One parent put it this way, “With the amount of expertise and resources available to them, and the number of ‘eyes’ looking at that document prior to its publication, we believe that TriData did not act alone in creating such an erroneous and misleading end product. We believe there was direction being provided to TriData, the source of which may have been from within the panel and/or Richmond.”
The Virginia Tech families have done a herculean job of identifying errors in the Review Panel Report—specifically the timeline. Their efforts point out mistake, after mistake, after mistake. (Some of their corrections are listed at the end of this blog.) How a firm such as TriData that claims to be a research firm would allow those errors in the initial report boggles the mind. The families’ corrections have been given to the governor and to TriData, yet the families apparently will not be allowed to review the revision for accuracy before it is published. The delay in the revision and the lack of communication with the families, is giving rise to speculation that TriData will cherry-pick the corrections it wants to make and then use their public relations arm to tout their responsiveness to the families.
Don’t forget—your tax dollars are paying TriData! Before the process is over, TriData will be paid somewhere around three-quarters of a million dollars. And for doing the state’s biding they will certainly win more contracts.
CORRECTIONS FROM THE POHLE FAMILY:
August 16, 2009
Dear Governor Kaine,
This is my family’s response to your request for corrections pertaining to the Virginia Tech Panel Report published in August of 2007.
We believe that in addition to identifying specific “factual errors”, it is equally important to look at how factual errors connect to each other to get a bigger picture.
What follows is based on data that was available to the panel, TriData, and others as early as May of 2007, as well as statements contained in the panel report itself. Admittedly, our information was limited compared to what was presented to the panel, however, a picture still emerges.
Overall, my family believes;
1. That the timeline of events, and actions being taken, on the morning of April 16, 2007 following the WAJ shooting and before Norris Hall is built upon a false starting point that is not supported by fact.
2. That the 7:30-8:00 AM timeline entry was not simply a mistake.
3. That there were systemic failures of leadership relative to priority, readiness, and execution relative to campus safety, and those gaps were not adequately addressed by the panel report.
4. That there is more information concerning what went on before April 16th that has not yet been revealed.
5. That the investigation must be re-opened and include other expertise to critically examine all information available.
The delays associated with revealing the complete truth about April 16, 2007 that we have endured have gone on for far too long. We, respectfully, request that action be taken immediately rather than after your term is over.
One of the other families has created what we believe to be a relevant name for what has gone on these past 2 years. That name is “Hokiegate”.
Thank you,
Michael & Teresa Pohle
A. An Erroneous Timeline of Events – Why?
(Chap III, p 25) “7:30–8:00 a.m. A friend of Hilscher’s arrives at WAJ to join her for the walk to chemistry class. She is questioned by detectives and explains that on Monday mornings Hilscher’s boyfriend would drop her off and go back to Radford University where he was a student. She tells police that the boyfriend is an avid gun user and practices using the gun. This leads the police to seek him as a ‘person of interest’ and potential suspect.”
The foregoing passage presents a false timeline. According to Chief Flinchum, the interview actually began at 8:16AM, and resulted in a person of interest not being identified until, allegedly, 8:40-8:45AM. Hence, no one could have identified the Person of Interest (POI) until after this interview concluded. This latter time point connects well with the timing of the private e-mails to Richmond describing what was going on, and not to release anything.
1. With its expertise, knowledge, and supporting resources, how could the panel fail to establish an accurate timeline for the events after the shootings at WAJ? In any case, its acceptance of an erroneous timeline laid the foundation for subsequent false statements in the report.
2. On May 21, 2007, Chief Flinchum specifically told the panel that the interview leading to the discovery of the POI did not start until 8:16 AM. Inexplicably, the panel disregarded this highly significant information, although other elements of his input were included in the timeline. (Chief Flinchum’s presentation is attached.) Both the source of this false entry, and the reason(s) behind why this was done must be explained.
3. On May 21, 2007, Vice Provost of Student Affairs David Ford also spoke to the panel. Whereas Vice Provost Ford’s input receives almost two full pages (Chap VII, pp 81-82) in the report, only portions of Chief Flinchum’s input to the panel were included.
4. Although the panel had Chief Flinchum’s testimony about the factual timeline for three months prior to the publication of the report, it has never, before or since, made any effort to disclose or to account for this error in establishing a timeline.
5. Inexplicably, the panel failed to interview either the key witness (H. Haugh) or the cited Person of Interest (K. Thornhill).
6. If the panel had spoken with H. Haugh, she would have confirmed Chief Flinchum’s statement to the panel on May 21, 2007, of the interview’s true timeline.
(Chap VII, p 80) “In an interview with President Steger, members of the panel were told that the police reports to the Policy Group first described a possible ‘murder–suicide’ and then a ‘domestic dispute,’ and that the police had identified a suspect. After the area parking lots had been searched, the police reported the suspect probably had left the campus.”
7. Given that Chief Flinchum did not speak to President Steger until 8:10 AM, the panel did not convene until 8:25 AM, and the POI remained unidentified until, allegedly, 8:40-8:45 AM, the highlighted portion of the foregoing statement could be true only if the incorrect 7:30 – 8:00 AM timeline were true.
8. When the families met with Chief Flinchum in October 2008 at an event also attended by state law-enforcement and representatives of the Governor’s office, Chief Flinchum stated that the panel-report entry for the timeline was wrong.
9. At this same meeting, Chief Flinchum pointed out that the card-swipe records showing that Ms. Hilscher’s roommate (aka her friend) entered WAJ at 8:14 AM confirm that the 8:16 AM starting time for the interview is factually correct.
10. Also, again at this same meeting, Chief Flinchum stated that the police knew that Karl Thornhill (POI) had attended his class at Radford University that morning. His attendance there is behavior seemingly inconsistent with that of a bloody-footed murderer, and receives no mention at all in the panel report.
11. The panel report shows other time points that either card swipes or computer records unequivocally substantiate. Nothing, however, substantiates the 7:30 – 8:00 AM timeline that the report endorses – nothing.
12. Numerous actions that the police and the Policy Group took, as set down in the panel report, have their basis in the erroneous 7:30 – 8:00 AM timeline. For example:
a. (Chap III, p 26): “8:16 – 9:24 a.m. “Officers search for Hilscher’s boyfriend.” (This is a false/misleading statement that qualifies as true only if the 7:30 – 8:00 AM timeline is true.)
b. (Chap III, p 26): “Chief Flinchum provides updated information via phone to the [VT] Policy Group regarding progress made in the investigation. He informs them of a possible suspect, who is probably off campus.” This is a false/misleading statement that qualifies as true only if the 7:30 – 8:00 AM timeline is true. Only Chief Flinchum and President Steger spoke at 8:10 AM; neither spoke to the Policy Group during that call. There was no suspect, or person of interest identified when the Policy Group meeting began at 8:25AM.
c. (Chap VII, p 80): “Both the VTPD and the BPD immediately put their emergency response teams (ERTs) (i.e., SWAT teams) on alert and staged them at locations from which they could respond rapidly to the campus or the city. They also had police on campus looking for the gunman while they pursued the boyfriend.” The underlined portion of the last sentence is false because the SWAT team was alerted at 8:15 AM (Chap III, p26) and the police had not yet identified the boyfriend as a POI until, allegedly, 8:40-8:45 AM. Subsequently, the statement could be true only if the 7:30 – 8:00 AM timeline was accurate, which it is not.
13. The panel never explored or explained the causal relationship between the 9:24 AM stop of Mr. Thornhill and the issuing of the first vague message to the campus at 9:26 AM. A gun-powder test takes more than two minutes, and the two-minute interval between these two events would strike few unbiased observers as coincidental.
Boyfriend Questioning (Chap VII, p 85): “At 9:30 a.m., the boyfriend of Emily Hilscher was stopped in his pickup truck on a road. He was cooperative and shocked to hear that his girlfriend has just been killed.”
14. This statement conflicts with the entry on p 26 of Chap III, which states that the police stopped Mr. Thornhill at 9:24 AM.
a. How could this POI have known that someone had murdered his girlfriend? What did he know that the panel failed to find out by omitting to interview him? We do know that Heather Haugh and Karl Thornhill (POI) were friends, and were told that she sent a text message to him following her interview that his girlfriend had been shot.
b. The phrase “on a road” avoids acknowledging the fact that the road was Prices Fork Road, and that Prices Fork Road traverses the Virginia Tech campus. Why would he have gone to class at Radford and then return to Virginia Tech if he was attempting to flee?
B. Leadership Failures – What Is a University’s First Priority?
On the morning of April 16, 2007, Virginia Tech had at least two procedures in place that were important, legally obligatory, and relevant to what the administration must do in an emergency. The first was their Emergency Response Plan (ERP); the second was their Timely Warning Procedure (TWP), available in the document “Campus Safety: A Shared Responsibility,” published in 2005 in compliance with the Federal Clery Act. State and federal law require the implementation of the tenets of both these procedures. The panel report does not contain any mention of whether these procedures, as written, were followed. Additionally, there were no recommendations or conclusions stating that schools MUST follow what they say they will do. This was completely within the panel’s scope as directed by Executive Order 53 (Chap I, item #6, p6)
Emergency Response Plan
I submit that on 4/16/07 Virginia Tech’s administration did not follow the ERP as written. Indeed, had VT leadership made it a priority after the Morva Incident in August 2006 to revise its ERP to include what they would do if a shooter appears on campus, and update it to align with state and federal guidelines, its Policy Group would have been far better prepared vs. spending precious time discussing the same Morva incident. (Chap VII, p 80). Despite this opportunity, neglecting their leadership duty, they did nothing to improve the procedures in their own ERP. Further, the panel makes no mention of, nor conclusion about, the priority, commitment, and responsibility that university leadership has concerning safety.
The panel report states, “The VTPD has authority under the Emergency Response Plan and its interpretation in practice to request that an emergency message be sent, but as related in Chapter II, the police did not have the capability to send a message themselves” (Chap II, p 19).
First, what does the first part of that statement mean? Either VT followed the ERP as written, or it did not. Although no university can anticipate every possibility, its leadership team should have updated the ERP and implemented new procedures, using the best information available. Although no such action occurred at Virginia Tech, the panel does not indict VT’s leadership for this failure. Recommendation II-2 (Chap II, p 19) sets forth common knowledge for any university leadership in the Commonwealth, but declines to rebuke the VT leadership for its systemic failures relative to campus safety.
Second, even though the VTPD had the “authority” under the ERP as written, they were never provided the tools to comply with this, outdated, plan. The panel report never specifically addresses this leadership failure. Why not?
Third, the report provides no reference or cites any document to suggest that VT leadership trained its employees to understand what its accepted ERP “practice” is in such situations. Why not?
Campus Safety: A Shared Responsibility – The Federal Clery Act
The only reference to the Federal Clery Act in the panel report appears in (Chap II, p 19, II-5). It consists of a simple recommendation: “Universities and colleges must comply with the Clery Act, which requires timely public warnings of imminent danger. Our legislators should clearly and specifically define the term “timely” in the federal law.”
In 2005, Virginia Tech published a document titled “Campus Safety: A Shared Responsibility.” Publishing such a document is a requirement of the Federal Clery Act and it was in effect on April 16, 2007.
The following statements are contained in this document.
i. (Page 1) “Virginia Tech has designed policies and regulations in order to create a safer and more harmonious environment for the members of its community. All campus community members and visitors of the university are required to obey these regulations. These policies not only reflect the university’s high standards of conduct, but also local, state and federal laws. Observed and enforced, they create a high degree of safety for the university community.”
ii. (Page 6) “At times it may be necessary for "timely warnings" to be issued to the university community. If a crime(s) occur and notification is necessary to warn the University of a potential dangerous situation then the Virginia Tech Police Department should be notified. The police department will then prepare a release and the information will be disseminated to all students, faculty and staff and to the local community.”
As opposed to the language in the ERP, which the panel report cites as “cumbersome, untimely, and problematic”, etc. (Chap 7, p 80), both the requirement and the process for issuing a timely warning appear in this document in clear and concise terms.
Nothing in the panel report suggests that VT’s leadership ever conducted any discussions about executing this timely-warning procedure, or that the Chief of Police, the VTPD, or the Policy Group ever took any action to execute the procedure as directed. Nothing in the report alludes to this requirement. This absence of comment constitutes a serious omission, especially given the unambiguous nature of the notification procedure.
At a minimum, Chief Flinchum, other VTPD officers on the scene, and possibly Dr. Ed Spencer knew that they had no suspect, no person of interest, no weapon, no witnesses, and bloody footprints leaving the scene as early as 7:40 AM They knew all this considerably before Chief Flinchum’s first phone conversation with President Steger at 8:10 AM.
During that call at 8:10 AM, Chief Flinchum did not share all the facts of the situation with Dr. Steger.
Chief Flinchum failed to notify Dr. Steger and the Policy Group that he had deployed his SWAT team, staging it at the Blacksburg police department at 8:15AM (Chap III, p 26). At that time, the police still had no suspect and had still not identified any person of interest.
Chief Flinchum failed to inform Dr. Steger and the Policy Group that police were on campus looking for the gunman while they were also deploying SWAT teams (Chap VII, p 80). At this time, the police still had no suspect, nor had they yet identified a person of interest.
Based on the forgoing information, this situation met the conditions for issuing a warning by the Chief of Police per the timely-warning procedure. The comment from the panel relative to defining the word “timely” is an insult, especially given that private e-mails were sent to people in the Gov. office beginning at 8:45AM advising of a shooter on the loose, as well as the timing for the second warning message which was sent within 5 minutes after the Administration was informed of what was happening in Norris Hall.
Contrary to the procedures in the Emergency Response Plan, “Campus Safety: A Shared Responsibility” gave Chief Flinchum the responsibility and the authority to issue a necessary warning without any requirement for pre-authorization from any member of the administration.
As was the case with the Emergency Response Plan, the VTPD was never equipped to comply with what was required. This was a failure of Leadership.
The panel report made no mention of this Clery procedure, nor did it point out that this procedure and the Emergency Response Plan were in conflict with each other.
In our opinion, these leadership failures should include the VT Board of Visitors for neglecting to provide oversight and direction to the administration about establishing campus safety as a top priority, such as:
Instituting robust, up-to-date, and consistent safety procedures that function as living documents.
Ensuring that the university law enforcement can execute approved procedures as written, and the administration is committed to maintaining safety as the highest priority.
Acknowledging that the BOV must set the priority, measurement criteria, and accountability for the University relative to safety, and provide the needed oversight to ensure this is done. This is required as per Article I, Section 5, of their By-Laws, as well as applicable statute(s).
Article I
Section 5. Responsibilities of the Board
As public trustees the members of the Board have the overall responsibility and authority, subject to constitutional and statutory limitations, for the continuing operation and development of the institution as a state land-grant university, and for the evolving policies within which it must function. Much of this authority necessarily is delegated to the President, who serves as agent of the Board and chief executive officer of the University.
The most important responsibility of the Board is the trustee obligation to insure that the University's educational and research programs effectively meet the evolving needs of Virginia's citizens to the fullest extent possible within the statutory mission of the institution. Similarly in a national context, the Board's oversight responsibilities extend to federally mandated programs.
The formulation of the basic policies under which every aspect of the University's operations are carried out, as well as the implementation of those policies, consequently are subject to the Board's review, possible modification, and ultimate approval. However it is at the policy level, rather than the operational level, that the Board's responsibilities are paramount.
By statute, the Board is charged with the care, preservation, and improvement of university property and with the protection and safety of students, faculty, and staff on the property. The Board also is charged with regulating the government and discipline of students and, in respect to the government of the University, may make such regulations as the Board deems expedient, not contrary to law. The Board has authority over the roads and highways within the University campus and may prohibit entrance to the property of undesirable and disorderly persons or eject such persons from the property (§23-122, Code of Virginia, as amended).
C. Leadership Failures – Cook Counseling Center?
1. The recent news about the discovery of Cho’s “misplaced” medical records, and the panel not interviewing Dr. Miller, is very significant. This is regardless of what is actually contained in the files. What is missing from the report was any discussion about how medical records could be missing in the first place, whether the problem was systemic of record keeping deficiencies at Cook, and what had been done, or not done, about correcting that deficiency. How is it possible that 9 months following Cho’s last reported contact with the Center that his records, as well as others, could still be missing given strict state and federal laws?
a. (Chap 3, p28) “September 6–12 [2006] Professor Lisa Norris, another of Cho’s writing professors, alerts the Associate Dean of Liberal Arts and Human Sciences, Mary Ann Lewis, about him, but the dean finds “no mention of mental health issues or police reports” on Cho.”
b. The panel report contains no discussion, or recommendations, concerning the serious nature of failing to maintain records, or what actions did VT leadership take to resolve that situation. Consistent with the deficiencies discussed in section B, I submit this is yet another example of failed leadership and oversight.
c. The families received an e-mail on June 18, 2007 from Dr. Steger concerning Cho’s Medical records. As you will see from the attached, there is no indication of any records being lost or missing, yet, we now know that was the case even before April 16, 2007.
Michael & Teresa Pohle
Thursday, November 19, 2009
SUPPORT COLIN GODDARD
I received the following from the Brady Campaign. If you have not received this message and are reading this blog, please take the time to read Colin Goddard’s message and to view his video. All of us should support what Colin and the Brady Campaign are trying to do.
THE BRADY CAMPAIGN
David
Surviving near-death experiences often yields new perspectives in life. My eyes were opened after I was shot and almost killed at Virginia Tech on April 16, 2007.
No matter how hard it is to discuss that day, it is worth it if it brings greater awareness to some of the issues surrounding school shootings in this country.
With my story I try to convey the reality of the situation I faced in my classroom, as well as the reality that our nation's gun laws are woefully inadequate.
Did you know, in most states, people can walk into gun shows and purchase firearms - from Glocks to AK-47s - from unlicensed sellers without a Brady criminal background check? This is legal and a currently glaring loophole within America's background check system.
I've learned that the Columbine shooters obtained their guns through this same loophole in the law.So now I ask you to help me deliver a petition to Congress of 100,000 signatures by April, 16, 2010, the third anniversary of the shooting, demanding that this gun show loophole be closed.
Please click here to view my video and sign the petition. Once you have signed it, I ask that you forward it on to friends and family.
Other fellow Virginia Tech survivors and families are working with me. Million Mom March and Brady Chapters have joined me in this ambitious effort, as well as students and other organizations in the gun violence prevention movement.
You can help even more by sharing the video on your Facebook page. Talk, tweet, and blog about it, too.
We have to increase public awareness on issues like these if we hope to move toward a safer America. Congress needs to hear a new perspective.
Sincerely,Colin Goddard
THE BRADY CAMPAIGN
David
Surviving near-death experiences often yields new perspectives in life. My eyes were opened after I was shot and almost killed at Virginia Tech on April 16, 2007.
No matter how hard it is to discuss that day, it is worth it if it brings greater awareness to some of the issues surrounding school shootings in this country.
With my story I try to convey the reality of the situation I faced in my classroom, as well as the reality that our nation's gun laws are woefully inadequate.
Did you know, in most states, people can walk into gun shows and purchase firearms - from Glocks to AK-47s - from unlicensed sellers without a Brady criminal background check? This is legal and a currently glaring loophole within America's background check system.
I've learned that the Columbine shooters obtained their guns through this same loophole in the law.So now I ask you to help me deliver a petition to Congress of 100,000 signatures by April, 16, 2010, the third anniversary of the shooting, demanding that this gun show loophole be closed.
Please click here to view my video and sign the petition. Once you have signed it, I ask that you forward it on to friends and family.
Other fellow Virginia Tech survivors and families are working with me. Million Mom March and Brady Chapters have joined me in this ambitious effort, as well as students and other organizations in the gun violence prevention movement.
You can help even more by sharing the video on your Facebook page. Talk, tweet, and blog about it, too.
We have to increase public awareness on issues like these if we hope to move toward a safer America. Congress needs to hear a new perspective.
Sincerely,Colin Goddard
Wednesday, November 11, 2009
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.”
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.”
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