Military, police square off over Marine's death

For the Marines who served with Sgt. Manuel Loggins Jr., it would have been an injustice to stay quiet.

So in a move that broke with the military's tradition, Loggins' commanding officer at California's Camp Pendleton publicly rebuked civilian authorities in neighboring Orange County for their handling of the investigation into the fatal Feb. 7 shooting by a deputy of the highly esteemed Marine.

Read the entire story here.

Janeczko Interview, Part One

To listen to the 5/25/11 Interview, click here and then on the latest interview on the right hand side of The Truth Has Changed page.

Civilian Police and Non-combat Death Investigations, Part Three

Jose Guerena Killed: Arizona Cops Shoot Former Marine In Botched Pot Raid

As the SWAT team forced its way into his home, Guerena, a former Marine who served two tours of duty in Iraq, armed himself with his AR-15 rifle and told his wife and son to hide in a closet. As the officers entered, Guerena confronted them from the far end of a long, dark hallway. The police opened fire, releasing more than 70 rounds in about 7 seconds, at least 60 of which struck Guerena. He was pronounced dead a little over an hour later.

The Pima County Sheriff's Department initially claimed (PDF) Guerena fired his weapon at the SWAT team. They now acknowledge that not only did he not fire, the safety on his gun was still activated when he was killed. Guerena had no prior criminal record, and the police found nothing illegal in his home. After ushering out his wife and son, the police refused to allow paramedics to access Guerena for more than hour, leaving the young father to bleed to death, alone, in his own home.

Read the entire story here.

Editor's note:  This story closely parallels my son's death in 2001.  It establishes a pattern of behavior by civilian police.

The following article is re-printed with the permission of Marti Hiken:

How the Police Get Away With Murder

By Luke Hiken and Marti Hiken

Police officers who murder citizens in our communities are more likely than not to get off scot-free. The odds are that they will not be prosecuted at all, and if they are, they will be offered a plea bargain to misdemeanor assault or manslaughter, at worst. The reasons that police can kill at will are found in the laws themselves. 

The disparity in how police officers who kill are treated, as compared to citizens who kill, lies in the way the state deals with the two groups. A citizen who is accused or suspected of killing another citizen, is immediately arrested, held without bail, and subjected to sustained and often brutal interrogation. The threats that police make to murder suspects are the subject of books, television dramas and newspaper articles. The pressure applied by police officers to murder suspects borders on the illegal in most situations, and can even constitute the sort of torture we’ve come to expect from our lawless government. The treatment of “enemy combatants” at Guantanamo is only marginally less horrific than the treatment of prison inmates and gang members suspected of committing serious offenses. Threats to “throw the book” at a suspect, if (s)he doesn’t confess, threats to arrest and/or deport family members, threats of beatings and worse, are the every day grist of police interrogations. The justification is that suspects are “bad” people, and deserve what they get. Naïve principles about presumptions of innocence go out the window when the interrogation room door closes.

Within hours, if not days, of a citizen suspect’s arrest, the police will have gathered incriminating evidence, a confession, or leads to witnesses who can assure a conviction in the case. Only the most street-wise defendants will assert their right to remain silent, or speak with a lawyer in the face of the kind of bullying that goes on in these situations. Those charged with murder will not be released on bail, and only the wealthy will have access to an attorney who will have time to spend with them before their first court appearance.

Compare that situation with that of a police officer who kills a citizen. In San Francisco, the officer will first be placed on “paid administrative leave.” [See SFPD General Order 8.11, entitled “Investigations of Officer Involved Shootings and Discharges.”] The officer will then be asked to participate in an internal police investigation, where (s)he is represented by an attorney, and provided with all of the rights set forth in the “Police Officer’s Bill of Rights.” 

The trail of obfuscation begins the day of the killing when the police officer is hustled into the custody of the police and away from public scrutiny. The police officer then becomes the property of the internal police agencies and their chain of command.

Initially, there are two investigations for police officers. One is a criminal investigation, which is conducted separately by the Homicide Detail and the Office of the District Attorney (DA). The other is the Administrative Investigation conducted by the Management Control Division. Then, the Emergency Communications Division, and the immediate supervisor or platoon commander where the crime took place, take command. This agency notifies the Field Operations Bureau Headquarters (Center), who notifies at least nine more internal police agencies. Also, the DA’s and Office of Citizen Complaints are notified as well as the police Legal Division. 

The victims’ family members, their attorneys, and the media are not allowed to interview the officer; and, no public bodies have access to the officer while the police investigation is proceeding. This period of grace affords the officer the opportunity to work with his/her colleagues and attorneys to assure that no damaging version of the offense is publicized or pursued. A cynical individual might surmise that it also gives the police department an opportunity to destroy inculpatory evidence, or “turn” witnesses who might have damaging testimony or versions of what occurred.

The police officer is escorted from the crime scene to the Bureau Headquarters (department facility) where the officer will be interviewed by the Homicide Detail Inspectors. Officers shall not return to regular assignment for a minimum of 10 calendar days. “This reassignment is administrative only and in no way shall be considered punitive.” 

Within 5 business days, the Chief of Police shall convene a panel to discuss whether it is appropriate for the involved member to return to duty. There is a mandatory debriefing (per DGO 8.04, Section 1.A), where a written report is made and sent to the Police Commission and Director of the OCC. The written report “shall not be disclosed to any member of the public except by court order.” Then the Police Commission meets with the Chief of Police to review the Chief’s findings and decision. The officer is also debriefed by the Crisis Incident Response Team. 

It is both the Homicide Detail and the Management Control Division that respond immediately and conduct an investigation into every officer-involved shooting. Within 45 calendar days the Firearm Discharge Review Board shall receive the Homicide Detail Investigation report. Within 60 days, the Management Control Division findings shall be completed and submitted to the same Firearm Discharge Board, which must convene within 30 days. It then has 120 days to complete its investigation and issue its findings.

After these months of delay (and cover-up?), the police officer might be charged with an offense by the DA’s office. Picture how many murder prosecutions there would be for citizens who were provided the same protections as police officers before being arrested and interrogated. The state would never be able to charge anyone with murder if citizens were secluded and protected the way the police are.

This disparate treatment is a blatant violation of the Equal Protection Clauses of our state and federal Constitutions, and defense attorneys should challenge this outrageous contradiction at every stage of the criminal process. The reasons police get away with murder in our society, while citizens are often convicted of crimes they didn’t even commit, is simply because of the differing way the laws are written and designed. Our society doesn’t mind cops who kill, only citizens who do. 

______________________ 

Marti Hiken is the director of Progressive Avenues. She is the former Associate Director of the Institute for Public Accuracy and former chair of the National Lawyers Guild Military Law Task Force. She can be contacted at info@progressiveavenues.org, 415-702-9682. 

Luke Hiken is an attorney who has engaged in the practice of criminal, military, immigration, and appellate law.

More on the Patrick Rust Case

Watch the full episode. See more Public Eye with Jeff Cole.

An interview with the Jefferson County Sheriff, the lead detective in the case, and Crime Wire Consultant and private investigator Bill Sullivan, was aired over the weekend on the local Watertown, New York PBS station. If you'd like to see it, the link is http://www.wpbstv.org/COVE_Images/PublicEye-April-01-2011.htm

Civilian Police and Non-combat Death Investigations, Part Two

What Would Dr. Quincy Do?

The first TV series about the use of forensics to solve crimes by scientific methods was Quincy, M.E, which aired from 1976 – 1983.  It was a huge hit.  Jack Klugman played the crusading forensic pathologist, who had a tendency to perseverate (and make idealistic speeches) when working on finding cause of death.  The police were usually a few ticks behind in the investigations.  They tended to jump to false conclusions.  It was Quincy’s job to use the available technology to prove or disprove the theories of the police as to cause of death.  The public was persuaded that this was the proper and prevalent practice in the United States whenever someone died of suspicious or unknown causes.  Dr. Quincy was the symbol of integrity and justice.

Currently, the general popularity of the new TV series like CSI, NCIS, Crossing Jordan, Body of Proof, etc. brings gory pseudo realistic forensics into the homes of the American Public.  Again, these are very big television programs which lead us all to believe that whiz bang technology can pinpoint cause of death as well as circumstances and place of death.  We all believe, from watching these series, that each and every suspicious death that occurs in the US is thoroughly investigated with the very newest technology.

We are SO wrong about that.  In most of the cases I’ll talk about here nothing as basic as fingerprints were taken from the crime scenes, let alone other types of forensic evidence.  The recent PBS Frontline program, Postmortem showed that most elected rural coroners in the US are not forensic pathologists or doctors of any kind and that facilities for the examination and storage of bodies is often non-existent.

Our current fascination with forensics in the US is ironic in that large political factions of our country have expressed a distrust and a rejection of science.  I can only wonder if this is the basis for the dichotomy between our entertainment choices and the reality of crime detection in the US.

Stephen Killian

MSSR Stephen Killian was in the Navy.  His 1999 death occurred, ironically, in the home of the original CSI series:  Las Vegas, Nevada.  He was in the Navy, so you’d think that NCIS, the Naval Criminal Investigation Service, would also be involved in his death investigation.  That proved not to be true.

NCIS is the primary law enforcement and counter-intelligence arm of the US Department of the Navy.  “Types of crimes investigated by NCIS include rape, child physical and sexual abuse, burglary and robbery, theft of government and personal property, and homicide. NCIS also has responsibility for investigating any non-combat death involving a naval service member where the cause of death cannot be medically attributable to disease or natural causes. “ 

Furthermore, according to their website:  “NCIS special agents, intelligence analysts and security specialists routinely work with local, state, federal and foreign law enforcement to address criminal incidents, identify and mitigate threats to U.S. and forces and assets, and pursue joint proactive operations.”

 If you’ve ever watched the TV series, you may believe that NCIS has access to advanced technology comparable to that showcased in the CSI series.  Yet, in reality, neither the Las Vegas police nor NCIS did much in the way of investigation.

In fact, in the three cases I’ll profile in this part of my discussion of Civilian Police and Non-combat Death Investigations, you will see that NCIS plays a decidedly secondary role in the death investigations of two members of the US Navy and one member of the US Marine Corps.  They each died outside of their assigned military bases, and were, therefore considered the responsibility of civilian police where investigation was concerned.

In Stephen’s case, according to his mother, Sonya, the civilian police did a cursory investigation of his death by hanging, immediately labeling it a suicide, despite some very suspicious circumstances.   There was no spectacular CSI investigation and no “Dr. Quincy” to insist on proper assessment of the body to make sure that Stephen wasn’t murdered.

Sonya was denied copies of the crime scene photos by the Las Vegas police.   They said that they destroyed investigation files, including the evidence, in July 1999, two months after Stephen died, as they considered the case closed.

Thomas Traylor

AOC Thomas Traylor was a Navy Aviation Ordinance Chief on active duty stationed at the Weapons Testing Squadron, Naval Station, China Lake, CA.   On December 6th 1998, he was found dead, in rural Inyokern, CA, from a gunshot wound to the chest. The cause of death was listed as suicide.

Thomas Traylor was a kind-hearted, soft-spoken career Navy man who joined up in 1983.  He was scheduled to retire in five years.

The Navy pretty much left Traylor’s death investigation to the Kern County, California, police.  The immediate conclusion was suicide.  Motivation was assigned to various rumors concerning his marriage.  This is usually the tack taken by NCIS in any investigations of non-combat deaths:  find a motive to shore up the initial “cause of death” and that’s the end of it.  

Charolette Traylor, who had been away tending to an elderly relative, was not immediately informed of Traylor’s death.  Her pleas for information were ignored for long periods of time.  Like many military family members, she eventually started her own investigation, employing investigators and having a second autopsy done.

If you click on the link to AOC Traylor above and read her account, you will see that private forensics investigators concluded that Traylor could not have shot himself in his vehicle.  There are many intriguing clues which were left at the scene.  The crime scene photos, which are usually difficult for the family to obtain, were key in making forensics findings.

It is truly unfortunate that “Dr. Quincy” wasn’t in Kern County, California to use the forensic clues left behind to do a thorough investigation.  It is also sad that the Navy had so little regard for one of their own.

Kirk Vanderbur

If any case would give cause to skepticism about “official” cause of death, it would be that of Kirk Vanderbur.

2^nd Lt. Kirk Charles Vanderbur was found dead February 17, 1992 at a private gun range in Hubert, NC, near Camp Lejeune.  The Sheriff of Onslow County, NC, Ed Brown was the civilian police authority responsible for investigating Kirk’s death.  He is the current Sheriff of Onslow County, North Carolina.

Onslow County has been the setting for other less than straight forward non-combat deaths of Marines, including LCpl. Maria Lauterbach, and LCpl. Jonathan M. Outz, among others.

Kirk had gone to the shooting range on the afternoon of February 16^th.  Marines and soldiers who are serious about maintaining their shooting skills practice periodically, so this was not an unusual situation.  It is believed that there were actually two more individuals at the range that afternoon.  The manager was also on duty, but said that she did not see Kirk’s car in the parking lot when she left that evening.  His body wasn’t found until the next day.

Kirk’s parents, Lois and Gene Vanderbur, were told that Kirk accidentally blasted himself in the chest with birdshot, and then crawled 8 ½ to 10 feet to shoot himself in the head right between the eyes with a semiautomatic rifle.  The rifle was in contact with his hand when his body was found, although Lois stated that this weapon had quite a “kick” when fired and would likely have been thrust away from the body if events happened the way the police theorized.  Furthermore, the range provided waist-high tables on which weapons were placed, so she asks how the rifle got on the ground.  Where is Dr. Quincy when you need him?  Surely not in Onslow County, NC.

As the responders loaded Kirk’s body into the ambulance they noticed the abdominal wound and pulled up his sweatshirt, which pulled his internal organs out. Two days later, without even testing Vanderbur’s hands for gunshot residue, Sheriff Ed Brown decided the death was a suicide and the NCIS agreed.

Lois Vanderbur said “I think the sheriff botched the investigation, didn’t do a homicide investigation and I don’t think the Marine Corps cared”.

Gene Vanderbur wrote: “my son was murdered. I concluded this after a long search for information dealing with a conspiracy of combinations of silence, endless and continuous obfuscation by people in authority, denial of access to evidence, data and photographs, obvious lying, neglect in performance of minimum reasonable investigation, misdirection, shameless displays of arrogance, ignorance and/or more malfeasant actions.”

Kirk’s family has requested copies of the crime scene photos taken by NCIS, which were never delivered.

On February 14, 2011, I spoke on the phone with Major Frank Terwilliger of the Onslow Co., NC Sheriff's Department.  He said that they do not share investigation material because "they are not public records."   He said that a private investigator and NCIS investigators "came to the same conclusion" about Kirk's death being a suicide.  He did not want to say any more.

Lois says that the extent of NCIS’ investigation was to question people as to possible motivations for committing suicide.  No one was theorizing that being shot with two separate guns ten feet apart could have been homicide. 

Dr. Quincy would, at least, have used some science to rule out murder before suggesting suicide.

Donna Janeczko

Civilian Police and Non-combat Death Investigations

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