APPEAL OF JUDGE ERNEST C. CANELLOS’S
DECISION TO
OVERTURN THE DEPARTMENT OF EDUCATION’S RULING THAT
VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY
VIOLATED THE CLERY ACT
ON APRIL 16, 2007
On March 29, 2012, Judge Ernest C. Canellos ruled “… it is ORDERED that Virginia Polytechnic Institute and State University is relieved of any obligation to pay to the United States Department of Education a fine for an alleged failure to follow the timely warning requirements of the Clery Act.
An examination of the judge’s rulings indicates his decision was based on flawed evidence and should be overturned. Virginia Polytechnic Institute and State University, the Virginia Tech Police Department, and the lawyers representing the state knew of these flaws when the appeal was heard. It is therefore highly possible that those arguing the case before the judge on behalf of the State of Virginia either withheld pertinent information, or for some unexplainable reason, were ignorant of widely known facts about the violation of the Clery Act on April 16, 2007. The evidence would seem to point to the former. In either case, the judge’s ruling was based on flawed testimony and therefore, the decision should to be reversed.
There were two critical facts, not presented to the judge, demonstrating that Virginia Polytechnic Institute and State University was in violation of the Clery Act as it stood on April 16, 2007.
First, the judge ruled that it was reasonable for the police and the school to believe that the murder of Emily Hirscher and Ryan Clark sometime around 0715 on the morning of April 16, 2007, was a “domestic issue”—the implication being a love triangle between Ryan Clark, Emily Hirscher, and her boyfriend, Karl Thornhill. The fact is, that it was well known before 0715 on April 16, 2007, in the immediate aftermath of the two murders that day, that Ryan Clark had no romantic interest in Emily Hirscher or any woman in that dormitory much less the campus. A “domestic issue” (as portrayed by the school and the police) was highly unlikely. Yet, the school and its legal representatives continue to perpetuate this fallacy as justification for not complying with the Clery Act—and the judge accepted the state’s position without question. (It is disappointing that Judge Canellos did not show more intellectual curiosity and ask the lawyers representing Virginia Tech for a definition of the words, “domestic issue.”)
Second, the judge’s decision rests largely on the timeline of events following the double homicide on the morning of April 16, 2007. That timeline was inaccurate in the Governor’s initial report, in the first revision of that report, and remains inaccurate in the final version. The timeline was inaccurate when the judge made his decision.
To base an analysis of a crime on the most critical, but deeply flawed aspect of that crime, is a cardinal error. Then, to base a legal judgment on that same flawed timeline is tantamount to a miscarriage of justice. Had the full facts about the possible “domestic issue” been presented to the judge, it would have been readily apparent that the criteria for an immediate warning, under the Clery Act, had been met:
1. One dead and one seriously wounded student, bloody footprints leading away from the crime scene, and a bloody thumb print on a hallway door—there could be no other conclusion that the murderer was on or near the campus.
2. The school violated its own rules for warning under the Clery Act. Some eight months earlier the school had immediately warned the campus when a convict, William Morva, killed two people while escaping custody. There was no evidence that Morva (versus the evidence on the morning of April 16, 2007) was on campus and the school issued a warning. If you apply to the April 16 double homicide the same timeline from when Tech became aware of Morva to when the school issued a warning, Tech would have issued a campus-wide warning between 0812 and 0816—one hour after Clark was killed and Hirscher seriously wounded.
3. Others on campus and in Blacksburg, complied with the Clery Act, and they did so having less knowledge of the 0715 crime than did Chief Flinchum, the Virginia Tech Police, and Virginia Tech President Charles Steger: In a move compliant with the Clery Act, the Virginia Tech Office of Continuing and Professional Education “locked down” at 0800. In a move compliant with the Clery Act, the Blacksburg public schools “locked down” at 0852. Between 0900 and 0915, the Virginia Tech Veterinary College locked its doors—in affect, a “lock down,” again, in compliance with the Clery Act. If these actions were consistent with the Clery Act, then the Steger administration’s (and Virginia Tech’s) inaction was not in compliance with the Act.
To quote the judge’s ruling, “The Clery Act mandates that institutions notify the campus community when certain enumerated crimes occur. These crimes include murder, sex offenses (forcible or non-forcible), robbery, aggravated assault, burglary, motor vehicle theft, manslaughter, and arson. The statute states that an institution “… shall make timely reports to the campus community on crimes considered to be a threat to other students and employees … that are reported to campus security or local law enforcement agencies. Such reports shall be provided to students and employees in a manner that is timely and that will aid in the prevention of similar occurrences.”
“The statute does not define timely reports, but the legislative history provides some insight into the purpose of a timely warning as well as how soon such a report should be issued. “
“ED’s (Education Department) implementing regulation captions the statutory provision as ‘timely warning’ and states that an institution must, in a manner timely and will aid in the prevention of similar crimes, report to the community on the aforementioned enumerated crimes that are reported to campus security authority, and considered by the institution to represent a threat to students and employees. ED specifically determined that it would not define timely reports in the regulation:”
“The Secretary does not believe a definition of timely reports is necessary or warranted. It must be decided on a case-by-case basis in light of all the facts surrounding a crime, including factors such as the nature of the crime, the continuing danger to the campus community, and the possible risk of compromising law enforcement efforts.”
The Department of Education, and the Secretary of Education specifically, did not define “timely,” saying that “timely” must be decided on a case-by-case basis. Because of this reasoning, it is logical to expect the case-by-case basis will be decided according to the gravity of the situation. If you remove the “domestic issue” from the double homicide, the gravity is serious—the evidence points to a killer on the campus and an immediate warning is called for.
If you accept the contention that under the Clery act a warning is issued on a case-by-case basis, then it only makes sense that the people in a position of authority should act based on the standards of crime scene analysis. The standard operating procedure of a crime scene investigation, when there is one dead, one wounded, and bloody footprints leading away from the scene, is to issue an immediate warning. This is an action consistent with the Clery Act as it existed on April 16, 2007.
Virginia Tech Police Chief Flinchum, who arrived at the crime scene at 0800, has testified under oath that he had the authority to issue a campus-wide alert. The chief therefore, broke the standards of his profession (and the Clery Act) by not exercising that authority and issuing the warning. Indeed, Chief Flinchum has said that he doesn’t recall ever raising the possibility of a campus-wide warning with Tech President Charles Steger. Again, a violation of basic police practices occurred—practices that the Clery Act relies on. The Clery Act definition of “timely” relies on sound police practices. The failure to adhere to basic crime-scene investigative practices is evidence of violation of the Clery Act.
Tech President Steger admitted under oath, “we didn’t know where the gunman was.” This admission, coupled with the bloody footprints leading away from the crime scene, clearly shows that the standards for an immediate warning—under the Clery Act as it existed in April, 2007—were met.
I need to address the timeline once more, because in crime scene analysis, the timeline is critical. Chief Flinchum has testified under oath that he knew about errors in the timeline and did not call them to anyone’s attention because he “assumed” they knew and the errors were “common knowledge.” A school official testified that she notified then-Governor Kaine’s office of the errors but the Governor’s office refused to correct them. These errors and the willful suppression of the corrections are evidence of hiding a violation of the Clery Act, because the Clery Act specifically pertains to the warning of the campus in a timely manner.
For the reasons stated above, I ask the Secretary of Education to overturn Judge Ernest C. Canellos’s ruling, and reinstate the decision that Virginia Tech did break the Clery Act. I also ask that the fines be re-imposed.
David Cariens, Jr.
