Part One
When it comes to the death of your child or spouse, who owns the knowledge about how they died?
Families of military personnel who have died in non-combat situations have a number of problems when seeking information. You’d think that authorities would automatically share information with families and would welcome their input and answer their questions. That proves not to be true in the vast majority of cases in the US.
The US Military is a huge organization. Each branch of the Military has its own Investigative Agency. They are subject to the Federal Freedom of Information Act (FOIA). It is possible to find yourself working with some honest individuals who actually do help families to try to obtain information through legal channels. When it is provable that they have lied or fabricated the “facts” there is, at least, a basis on which to challenge the Military legally.
However, if your loved one died off base you may have more difficulty getting information. Death outside a military installation is not under military jurisdiction. The Military usually accepts the Civilian police as the “lead investigator” and can hide behind the Civilian assertions of privilege to maintain secrecy.
There is no argument that when a death investigation is ongoing or “active”, it is reasonable to expect that information will be withheld until the investigation is completed. It is reasonable to withhold the names of some secret or special agents, and/or informants, however their actions should be revealed. The privacy of individuals should be maintained by redacting personal information like home addresses, phone numbers and social security numbers.
Common sense dictates that once completed, investigations should be accessible to the family of the deceased. All evidence inventories and forensic analysis should become available once the case is completed.
Common sense is not the law of the land, however, and does not hold much sway in the United States of America.
What special ownership of information has been given to the police in the US? What is the legal principal or precedent for the civilian police to withhold information?
In the United States, the rights of next-of-kin to access criminal investigation records of deceased family members is not clearly spelled out. It seems that each State, each county, and each municipality has different rules regarding this access.
State or local civilian police departments are not subject to FOIA because they are not Federal agencies.
Many States have Open Records or Sunshine Laws, but they are not consistent and most specifically exclude “criminal investigation records.” They are more like Closed Records Laws in that they make it impossible for families to obtain information. They can also waste precious time when the family is trying to obtain basic information before various statutes of limitation are reached.
My experience was that although I was assured by the NJ Government Records Council that my request for the criminal investigation records into my son's death under the NJ Open Records Act was reasonable and that I had a good chance of obtaining them, they managed to come up with a specific exemption for "criminal investigation records" after nearly a year of stringing me along. So, another year was wasted because they did not advise me initially that I would have been better off finding a lawyer who would represent me in the NJ Superior Court under New Jersey's older Right to Know Law. When you are up against a statute of limitations for a wrongful death lawsuit, this is a significant victory for the other side.
While I was seeking a basis for a Wrongful Death suit before filing, it might have been better just to take the chance (and risk a significant amount of legal expense) and file suit. I am now told that in that case, the police investigative agency would have had to turn over all records. The last nine years lead me to believe, however, that even in that scenario the State may have taken some detours in order to protect whatever or whoever they are protecting from justice – so it’s probably more in the interest of truth that I have plodded on, gathering fact after fact and keeping detailed records through the years. In the end, I may be closer to Truth than after a lawsuit.
There are unique Right to Know Laws in most States. Right to Know Laws usually require a lawyer and a lawsuit. Sometimes that is actually the more efficient route to the acquisition of investigation materials and other information. Most people don’t know that, and most civilian police departments are not likely to share that fact. It is expensive, however.
It seems counter intuitive, if you are someone with naive faith in common sense and decency, to think that it is necessary to spend a fortune on legal help to obtain information on the death of your loved one, but in the US this is the unfortunate truth of the matter.
If the police have a reason to want to keep information away from the family, they will use their undefined power to do so. They will cite legal-sounding local rules or non-disclosure laws to keep you at bay for as long as possible, knowing that many families have neither the financial means or the psychological strength to keep fighting for information.
The patchwork makes it especially hard for families when death has occurred in a State other than the family's home state. In military non-combat deaths which occur domestically, this is not uncommon.
What are the possible reasons for withholding information?
Many non-combat deaths occur in counties in which military bases are located or in counties surrounding the base. Even though the military installation is nearby, with investigation resources, including CID or NCIS, the control of death investigations goes to the police department where the death occurred even if that department has inadequate resources for death investigations. The military can “wash its hands” of the responsibility for investigating the deaths of its members. The civilian police may simply not want the public or the family of the deceased to know that they have done an inadequate investigation. They may want to protect a resident or even a police officer who was involved in a murder. They may simply not care to do death investigations of military personnel, considering that the duty of the Military.
Civilian police often withhold information just because they can.
Military authorities seem to support the civilian police in this policy of secrecy. Even when the investigations are titled “joint” investigations, the military will refuse to disclose information which is being withheld by civilian authorities.
They will cite various departmental or regional Police Disclosure Laws or Police Nondisclosure rules or say that investigation reports are not public records. Open Records Acts or Laws usually specifically exclude criminal investigation records as public records, so technically, that is correct. Criminal investigation records are not public records.
Families are not seeking public records. They are seeking the truth about how their loved ones died. That is why Right to Know Laws apply here.
What obstacles must be overcome for family members seeking information?
Families must research ways to request criminal investigation reports in the State in which their loved one was killed. The fact that families are usually in shock and grieving for years after the death does not make this research easy to come by.
Lawyers often do not have a clear idea of how to access criminal investigation material in their own States, let alone in other States. I can confirm this through my own experience. It took years after the statute of limitations on wrongful death was up to find a lawyer who knew which court to go to and the procedure for petitioning the investigation material. Add the reluctance of lawyers to get involved due to political expediency, and it is a tough undertaking for the family.
Next, add the complication of dirty legal tricks and the expense of lawyers and miscellaneous court costs and you have to be able to appreciate the determination of family members. Still, many of us keep trying because our goal is to know the truth about what happened, not to make money on the deaths of our loved ones in a civil tort. Nevertheless, it is a comfort to know that there is no statute of limitations on murder. Should we manage to do our own investigations and find a killer or prove a cover-up, we would then need to do the hard work of getting that person or persons prosecuted under the law. My sense is that many of us will pursue that end.
To add to the difficulty, when municipal police departments have done the investigations (or should have done the investigations), they may use several well-developed techniques for keeping families at bay. In a couple of cases, families from HOTB have been told by a Sheriff or Chief of Police that they simply will not be given the records they seek. No reasons are given and some people just don't know what to do next. Both the parents of 1st Lt. Kirk Vanderbur and the wife of AOC Thomas Traylor have been in this situation for years. Stephen Killian’s mother and Col. Phillip Shue’s wife are in the same situation. Patrick Rust’s mother is having difficulty obtaining any information from the local police department on their investigation of his death while on leave between deployments.
If you read the stories of these soldiers, you will see that the circumstances of their deaths leave many questions unanswered. Families need the closure which comes from knowing what happened and who may have been involved.
Sometimes the police will not release investigation records because they were incompetent and they don’t want the public or the family to know. Sometimes they have botched the investigation so badly that any truth finding will be impossible. Astoundingly, sometimes the police were actually responsible for the homicide and are able to cover-up misconduct by hiding the investigation records. This is the case in the death of Sgt. Loren Janeczko, in which the majority of the criminal investigation was obtained through the courts, but forensics and the internal investigation of a police involved shooting is being withheld despite promises in the NJ Superior Court that it was being delivered. In this case, the New Jersey State Division of Criminal Justice and the Division of Law appear to have some very important reasons for hiding information. There is no other conclusion to be reached after nine years of effort to obtain those records. Justified police shootings should be able to be examined in the light of day without any concern.
In the next installments of this series on Civilian Authorities and Non-combat Deaths, I’ll go into some of the specifics of the cases listed above.
if
knowledge = power,
then
no knowledge = no power
Donna Janeczko
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