Have laws been broken in the mishandling of Cho’s medical records? The victims’ families and the public in general have a right to know. And where better to find out than from the office of the Attorney General of the Commonwealth of Virginia? Common sense dictates that the Attorney General would not be part of keeping information from the public; certainly the Attorney General would leave no stone unturned to bring the facts to light. Just look at the mission statement of the office of the Virginia Attorney General:
The Office of the Attorney General is the Commonwealth’s law firm. The office is charged with providing advice to state agencies and the Governor; serving as consumer counsel for the people of the Commonwealth; defending criminal convictions on appeal to ensure that justice is served; and defending the laws of the Commonwealth when they are challenged on constitutional grounds. In the carrying out of these obligations this office will adhere to the highest ethical standards, respect the traditions and precedents that have shaped our Commonwealth, and bring all legal resources to bear in order to protect the people, the customs, and the welfare of the Commonwealth of Virginia. As Virginia’s law firm, the Office of 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.
Where else, then, 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 Virginia school shootings? And who better to bring all the facts into the open than the Virginia Attorney General?
Unfortunately, and sadly, that was not the case. We need to take a look at how the Virginia Attorney General’s office has acted in response to both the murders 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 in Grundy, Virginia that killed the mother of my oldest grandchild. My experience was a huge disappointment.
As noted in an earlier chapter, Angela Dales had received a threatening email several months before she was murdered. The email was in clear violation of both state and federal laws. However, when Angela’ family asked for details, the police refused to let the dead student’s family look at the investigative report. The police did promise to the family to read its content and answer questions. Eleven years later the family is still waiting for that to happen.
Not satisfied, we hoped that then-Attorney General Jerry Kilgore would help us. What a great way for him “to better serve justice” particularly because he had issued the following statement after 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 responsive ear, I sent the following letter:
Virginia Attorney General Kilgore
900 E. Main Street
Richmond, Va. 23219
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 the 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 report ‘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.
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 later unsuccessful run for governor), was on the board of the law school. But even had I known, I would not have been deterred—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?
The following is the response I received from Kilgore’s office:
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 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.
James O. Towey
Assistant Attorney General
The response from the Attorney General’s office, albeit polite, contains prime examples of the “double talk” victims and their families encounter in Virginia. First, Mr. Towey 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, and while I had hoped to see changes in how information was shared with the public, the surviving victims, and the victims’ families, what I saw was confusion over jurisdiction and an inconsistent approach to finding and considering evidence.
Nevertheless, given the magnitude of the Virginia Tech tragedy, 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. Certainly this time the public would find out the whole truth.
Unlike the Appalachian School of Law, the Attorney General’s office did take an aggressive, no nonsense approach to the Tech tragedy. But unfortunately this assertiveness would be selective and aimed at protecting the state of Virginia, its institutions, and its employees. When confronted with violations of the law, the actions of the Attorney General’s office would go back and forth between threats and stony silence. For example, point seven of the Governor’s Review Panel Report‘s Key Findings states that “Cho purchased two guns in violation of federal law.” One of those guns was purchased in Virginia, but the Virginia Attorney General never investigated this crime.
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. Indeed, the no-nonsense tone of the memo took the English faculty by surprise. Professor Roy writes in her book, No Right to Remain Silent:
“I was taken aback … when we received another memo, this time from the Office of the Attorney General of the Commonwealth of Virginia. The memo, dated July 10, 2007, bore the 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 us 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’soffice 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.”
“ … 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)
One wonders where this hard-hitting attitude was when Cho’s medical records were reported lost. If you look closely at Forehand’s words then maybe the silence on his part when it came to Cho’s “lost” records is not too surprising. Indeed, the conflict of interest and complexity of the role played by the state’s Attorney General in the Virginia Tech tragedy quickly became 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 the Virginia 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 lays 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 (part of the Attorney General’s office) having the responsibility of defending their clients against their bosses at the Attorney General’s office.
Despite the obvious conflicts of interest, it appeared in the case of Virginia Tech that, 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 Cho’s missing medical files being found in Dr. Miller’s home in the summer of 2009. Puzzled, I sent a Freedom of Information Request to the Attorney General’s office on September 6, 2009, more than two months before the final version of the Governor’s Review Panel Report (the Addendum) was released. I received the following response:
COMMONWEALTH of VIRGINIA
OFFICE OF THE ATTORNEY GENERAL
September 14, 2009
Mr. David S. Cariens, Jr.
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?
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.
All of a sudden the tough, threatening tone of the Attorney General’s memorandum to the Virginia Tech English Department was gone and instead, Ms. Myer tells me 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? Why be so vocal in dealing with the English Department and so silent with the Cook Counseling Center, unless you wanted to avoid drawing attention to the unprofessional handling—or lack of treatment—of Cho?
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.” That is simply not true:
1. Just having access to the medical records would have made the victims and the victims’ families more confident in decisions they would have to make and course of action they should follow. If you recall, the Governor’s Review Panel Report cited the missing records as a key gap in the investigation.
2. The records indicate that when triaged, Cho denied any suicidal tendencies. However, nowhere is there a reference to a medical professional’s thorough evaluation of Cho. In a broader sense, I question whether these records are representative of acceptable record keeping policy for any professional in any facility providing medical services. If these records are an example of the quality of work done at the Cook Counseling Center, then they are evidence of serious problems in the Center’s counseling.
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? No it is not. 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 that demands attention. I would argue strongly that a third triage is exactly what is needed.
4. The fact that there are no supervisory signatures, as required, on the Cook Counseling Center Triage records for Cho on December 12, 2005 and December 14, 2005, means that these documents could have been prepared or modified at any time up to the day they were found. The Triage record for November 11, 2005, has a supervisor’s co-signature, dated December 1, 2005. The entry made on the last page was apparently done by Dr. Betzel on December 12th, but it is not co-signed. Subsequently, not only is the authenticity of those documents in doubt, I also question whether they are representative of acceptable record keeping policy for any professional in any facility providing medical services.
Seung Hui Cho’s medical records bring into play the question of the professionalism and competency of the Cook Counseling Center and its staff as well as the foreseeability of his actions. That foreseeability is central to the whole investigation and analysis of the Virginia Tech massacre. The Cook Counseling Center records, then, do have a very direct bearing on the events of April 16, 2007.
The Addendum acknowledges the discovery of Cho’s medical records and both the victims’ families and Virginia Tech were given until September 2009 to submit any corrections or additions to the report. The medical records however, played a small role in the revision—the panel and the state apparently accepting the line argued by Ms. Myer that the records provided little new or different information from what was already known.
While the Attorney General’s office cannot keep Cho’s records from the public—they are available on the Internet—they are counting on the fact that few people will read them. If the Attorney General’s office keeps repeating that there is nothing new in those records, then they are counting on the majority of people taking their words at face value and accepting Myer’s words.
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 that the Attorney General does for the average citizen?” The answers from each candidate were convoluted, vague, and unsatisfactory. I now know why.
As long as law enforcement officials refuse to turn over documents central to finding out what led up to these tragedies, we will never learn from past mistakes. As long as officials spread half-truths and cover ups, carry on investigations without repercussions, the truth will never be known. As long as these people engage in their formidable and shrewd campaign of silence aimed at keeping the public in the dark, our schools will not be safe.
For the Pohle family the politicians, law enforcement personnel, and school officials cannot hide the harsh reality of what happened. And the attempts to hide the truth make the reality of what Cho did penetrate every fiber of their bodies, every aspect of their souls, shattering all hope of any return to some semblance of normalcy. To the Pohle’s, Mike, their first child, was simply a great kid. They have so many wonderful memories of him that it would be impossible to write them all down. (To be continued)