Appeal Of Judge Canellos's Decision on Virginia Tech

I have sent the following appeal of Judge Canellos's decision on Virginia Tech to the Secretary of Education. I am asking the Secretary to overturn Canellos's decision that Tech did not violate the Clery Act and to reimpose the fines.

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.

Let Them Marinate in Their Guilt

The jury decision (in the Pryde and Petersen lawsuit) that Virginia Tech was negligent for not warning the campus after the double homicide at Ambler West Johnston Hall is, once again, proof of the bungling incompetence of Charles Steger’s administration at that school. The Department of Education has already decided that Virginia Tech was guilty of violating the Clery Act for not issuing a warning.

Virginia Tech is one of this nation’s premier schools. It is an outstanding institution of higher learning. Our youngest son is a graduate of the engineering school at Virginia Tech—I am so proud of the education he got there; I am so ashamed that the school is run by such inept people.

To those who say Steger and school officials shouldn’t be held accountable for their inaction, I would remind you that school’s advertise they offer a safe and secure environment for learning, and that the courts have ruled that schools have a “special relationship with students” and do have a responsibility for their safety. Furthermore, how can anyone justify issuing the following warnings and not issuing a warning on April 16, 2007, when there were bloody footprints leading away from a double homicide in the middle of the campus? Tech had

--Issued a campus-wide warning when a convict, William Morva, escaped from a Blacksburg jail and killed two people and there was no evidence Morva was on campus.

--Issued a campus-wide warning about measles.

--Issued a campus-wide warning about mold in the library.

--Issued a campus-wide warning about mumps.

--Issued a campus-wide warning about a bomb threat even though the school knew it was probably false.

JURY FINDS VIRGINIA TECH GUILTY

Virginia Tech trial, Day 8: Families of two April 16 shooting victims awarded $4 million each

A Virginia Tech spokesman said the university is "disappointed with today's decision" and maintained that Tech responded appropriately, given the information available on that day.

The Roanoke Times

Updated 4:03 p.m. | Posted 9:21 a.m.

Virginia Tech spokesman Mark Owczarski responded to a jury's decision to award $4 million to the families of two April 16 shooting victims after finding that Virginia Tech's actions on that day contributed to their deaths.

Owczarski said, in a statement: "We are disappointed with today's decision and stand by our long-held position that the administration and law enforcement at Virginia Tech did their absolute best with the information available on April 16, 2007."

Updated 3:25 p.m.

Virginia Tech contributed to the deaths of two students, Erin Peterson and Julia Pryde, in the mass shooting that took place on the campus April 16, 2007, a jury ruled today.

The seven-person jury in Montgomery County Circuit Court also awarded each parent of Peterson and Pryde $2 million. In total, the jury awarded damages of $8 million. The state may only be responsible for paying $100,000 in damages. The judge will rule on the awards cap later.

The trial brings closure to five years of questions that victims' parents have had about decisions police and university administrators made the morning of April 16.

After two students were murdered in a residence hall, the university waited more than two hours to notify the campus of a shooting. The university was not put on lockdown as police searched for a person of interest -- wrongly, the boyfriend of the first female victim -- off campus.

The gunman opened fire minutes later in Norris Hall, killing 30, including Peterson and Pryde.

The families in court today were the only two estates of victims and wounded students who chose not to settle with the university or forgo a lawsuit.

When the jury announced its verdict after deliberating almost three and a half hours, Peterson’s mother, Celeste, began to weep.

Presiding Judge William Alexander then offered his condolences for the pain Celeste and Grafton Peterson, parents of Erin, and Harry and Karen Pryde, parents of Julia, have felt.

-- Katelyn Polantz | The Roanoke Times

Chardon Rampage

The shooting rampage in Chardon, Ohio, is a stark reminder to all Virginians of how little politicians have done to protect our schools. Following the Virginia Tech massacre, Richmond made promises to improve school safety on a wide range of fronts. Few of those promises have been kept.

The common threat connecting these killers is mental or emotional illness. The shooter at Chardon, an emotionally disturbed young man, proves that point again.

The official reports following both Columbine and Virginia Tech called for increased emphasis and spending on mental health in an effort to identify and get help for these future killers. In the crime analysis courses I teach, some of my students, who are mental health specialists, estimate that between 50 and 70 per cent of all crime in America could be prevented through improved mental health programs.

But Governor McDonnell and the Virginia legislature are cutting spending on mental health. Now, McDonnell proposes to privatize the state’s mental health program. Privatization has failed in other states. Furthermore, privatization will lead to a further decline in the quality of mental health care, thus helping to make the state more vulnerable to school shootings.

School safety is not cheap; mental health is not cheap. But what price would Governor McDonnell say is a fair price for the life of any student, staff, or faculty member?

I tried raising mental health and school safety issues with Delegate Ransone, Senator Stuart, and Congressman Wittman. They either don’t answer letters, or in Wittman’s case, he won’t take my questions on his phone survey. All three are afraid of the problem because it means addressing two issues: spending more money on mental health for school safety, and examining ways to keep guns out of the hands of the mentally ill.

GIDUCK—ONE MORE TIME

Apparently an honest disagreement and differences of opinion are out of the question when it comes to John Giduck or his supporters. For a man who nearly breaks his arm patting himself on the back for being the defender of truth, justice, and the American way, he has a funny way of showing it.

I have written a number of critiques of Giduck’s writings on the shootings at Virginia Tech. My critiques have been picked up and endorsed by several blogs. Indeed, the readership of my blog has nearly tripled since I posted the Giduck articles. Apparently my words have deeply upset Giduck or his followers.

Rather than challenge my assertions or show where I am wrong, he, or one of his fans, decided to deface my Facebook page by posting a picture of the cover of his book, “Shooter Down,” blocking and covering most of the page. The book cover has now been taken down.

Stop to think of what that action was—at minimum it was harassment, at worst it was a threat because of the title of the book. If Giduck, or his minions, cannot take an honest disagreement and engage in an intellectual dialog about that disagreement, do we really want him consulting about school shootings? When someone comes unglued because his or her ideas are challenged, it is very disturbing.

TECHNICALITIES: REFUGE OF THE GUILTY

Judge William Alexander’s decision to dismiss Virginia Tech President Charles Steger as a defendant in the wrongful death suits filed by the Pryde and Petersen families, is tantamount to contributing to gross miscarriage of justice.

For months, powerful, wealthy, and influential backers of Steger have tried a variety of pressures to stop the Pryde and Petersen families from finding justice in a court of law. Conservative politicians have even gone so far as to try to change the law in a way to drag the trial out, apparently in hopes of bleeding the two families dry. These efforts have been unconscionable.

It appears that this pressure has now gotten to the judge. He is after all appointed by the state legislature for a set term. And, had Steger been kept on as a defendant, the judge might not have gotten reappointed the next time around. Had Steger had been convicted, Judge Alexander might have “decided” on early retirement to spend more time with his family. The Pryde and Petersen families don’t have that option with their daughters.

The judge dismissed Steger on the grounds the prosecution failed to prove that Steger delayed in issuing a warning to the campus following the double homicide at Ambler-West Johnston Hall. The judge misses the point. Steger was the one individual who had the authority to issue the warning and he did not—no matter what the reason.

The judge fails to appreciate the fact that Virginia Tech, and Steger, violated the school’s own rules and procedures on the morning of the shooting. The school, and by implication President Steger, have been found in violation of federal law--the Clery Act—for not warning immediately. The school’s security plans call for an immediate campus-wide warning in the event of a serious threat; they had done so several months earlier when they thought escaped convict and murderer William Morva, was on or near the campus.

Judge Alexander should not have dismissed Steger as a defendant; he should have kept him and added Police Chief Flinchum. It was the police chief’s responsibility, faced with two dead students and bloody footprints leading away from the crime scene, to recommend, or at least raise the possibility of a lock down. Flinchum “indicates” he did not raise the subject of a lock down—if so, that is negligence on his part. Not too long after Flinchum said he did not raise the subject of a lock down with President Steger, Virginia Tech put Flinchum in for 51% pay raise.

When I researched and wrote the book on the shooting at the Appalachian School of Law, January 16, 2002, I consulted with more than one lawyer on the merits of my arguments. Invariably, those lawyers asked me, “How many dirty judges did you find in southwest Virginia in your research.” What a terrible reputation some members of the legal profession from southwest Virginia have with their colleagues. Judge Alexander’s decision does not help that image.

Letter to State Delegate Ransone and State Senator Stuart

Governor McDonnell’s (and the Republican) agenda for 2012 is to loosen gun controls and restrictions in Virginia. There is no mention of keeping guns out of the hands of the mentally ill.

Following the Virginia Tech shooting, Virginia’s Republicans and Democrats promised they would adopt policies to make our campuses safer—emphasis was put on mental health and keeping guns from those who are dangerous to themselves and others. Governor McDonnell was Attorney General when those promises were made. He did not object; his silence was tacit approval. The promises have not been kept.

The mentally ill can still go to any gun show in Virginia and buy a weapon without a background check. Colorado closed that loophole after Columbine; Virginia should do the same.

Governor McDonnell apparently considers that sponsoring a radio jingle to raise awareness is the right response to the Peter Odighizuwa’s, Cho Seung-Hui’s, and Ross Turett Ashley’s of this world. It is not.

Virginia spends less on mental health than it did before April 16, 2007. Furthermore, McDonnell is intent on privatizing the state’s mental health program. Privatization will weaken, not strengthen mental health care. A similar privatization program in New Jersey has led to a decline in the quality of care.

Privatization may be popular with some—but it is fool’s gold. Privatization is not more efficient than the current state-run program. Virginia will lose economy of scale through privatization. There will be cuts in care to ensure profits.

With voters clamoring for ethics in government, McDonnell should keep promises—particularly involving the safety of our schools.

I are asking you to strengthen, not loosen laws to keep guns out of the hands of the unstable; I am asking you not to weaken mental health care—keep it in the hands of the state

Yours sincerely,

David Cariens

Kilmarnock, Virginia