Monday, July 31, 2017

Chapter 27 - 2014 - present...

When we got that whole, “If you want the rest of the file, give us six thousand dollars and we’ll see what we can do,” my assistant and I started limiting the scope of our FOIA requests. 

For example, we’d ask for all of the interviews and files generated by Detective Southworth (Osceola County) but were later transferred to MSP, according to Osceola County’s FOIA denial letters. 

The response from the MSP FOIA Department would go something like this, if not in word, certainly in deed. 

“Give us about three hundred and fifty bucks and we’ll look, but you’re probably going to get mostly blank pages, because that’s what we’ve been sending you in your recent requests, hadn’t you noticed?” 

Same with the simple question of the Reed City State Police dispatch log for the day. 

“That’ll take us about three hundred to search for, but we’ll give it a go!”


That log, if it exists, can’t be more than a couple pages. But that’s basically the gist. No matter what we asked for, it was going to set us back about three bills to search for what we wanted, and once we received what we’d asked for, they’d check off a few exclusions and give us mostly blank pages. 

So, we decided to work backwards. 

I sent a request for everything they had done on the Roberson investigation from Jan 1, 2012 to the present (which was December 2014 at that time.) Three years. I got three pages.

What those three pages gave us was the information that they’d narrowed the time Janette Roberson was murdered to between 1:40 and 3:50pm, and that the investigators had identified several possible suspects and/or persons of interest, but there was not sufficient evidence to issue an arrest warrant for anyone.

The last page lists the STATUS as Open.

The Detective seemed prepared to furnish crime scene photos to the FOIA department for scanning. I was subsequently charged for them, I sent a money order, and then I waited. 

I never got the photos I paid for that Carla Jones was preparing for me.

I got a letter, instead, saying my request had been denied (the one they’d already approved) and on the back, this is what they checked out as a reason for the exclusions:

According to the William Van Regenmorter Crime Victim’s Rights Act, of 1985 (780.775 - Section 25):

(1) This article shall take effect October 9, 1985.
(2) This article shall apply only to crimes committed on or after October 9, 1985.

Janette Roberson was murdered on January 19, 1983.

I appealed, of course, noting the Act did not apply, as well asking how releasing the redacted photos could deprive anyone of a fair trial, or interfere with law enforcement proceedings, given they’d allowed them to be released in another open MSP case.

The above is from a Michigan State Police case that remains unsolved, and is from the same time period as Janette’s case (1980s). The point here is that choices made within the MSP FOIA department are not uniform, nor is their application of exemptions. In one open case they will send redacted photos with no issue whatsoever. 

In another, they will withhold them all – even though it stands to reason not every single picture would fall under the exemptions they applied in the letter above. They weree applying denials and exemptions in a blanket manner, which is specifically a no-no with regard to the Freedom of Information Act. 

Here is the final denial I was sent from Michigan State Police regarding my request for crime scene photos (specifically noting that I understood they would need to redact the body of the victim): 

In Janette’s case, there is ZERO information in any of those crime scene photos that only the killer would know. Not with the parade of folks we know trampled around in that back room. According to Detective Pratt’s notes, quite a few people were in the vicinity of the body, and most of those listed were not law enforcement. They were employees of Gambles and customers, as well as a nurse who walked in off the street, not to mention the customer who is now serving time in jail for sex crimes.

As far as the paragraph about “witnesses” being in the pictures, this is interesting because we have a list of the “witnesses” who were around the body from the MSP report, so how in the name of Sweet Baby Jesus would any of those “witnesses” be covered under any invasion of privacy exclusion? 

We already know who they are. 

In fact, one could argue—and I would argue if I were standing before a judge—the public has a right to know which witnesses were allowed so close to the body and crime scene that there were pictures snapped of them.

Here’s a question: At the point pictures were being taken of the scene, why were “witnesses” still milling around the body, anyway? That was over an hour after the body was discovered. The MSP report states that Detective Pratt and Laren Thorson both took pictures, so why were the witnesses not cleared from the scene by that point?

It is troublesome issues like this that lead the average person to wonder why so much of the report is being held back. As I stated in my FOIA appeal to the Reed City city council, “When a public entity withholds information, this leaves a reasonable person’s mind to wonder if, in fact, something is being covered up. Absent facts, the entity responsible for that kind of public perception is the one who decides to withhold the record in the first place. The core purpose of the Freedom of Information Act is to provide information that contributes significantly to the public understanding of the operations of government. The people have a strong interest in knowing how those who were sworn to protect and serve handled the crime scene in an extraordinarily brutal murder that occurred within a mile of three different law enforcement entities in the middle of the day.”

Right after the photo denial, I got a call from Inspector Cam Henke of Michigan State Police. He told me they were thinking about putting a cold case team on Janette’s case, but they had not yet decided. He could only say that their next case would come from the Reed City unsolved homicide cases, although he told me he hadn’t made that announcement to his team yet. They were in the middle of wrapping up the Siders case, and it had yet to go to court. 

They were, however, going over the Reed City cases, reading them to familiarize themselves with each one. We know they went over Janette’s, and based on a letter the sister of Esther Gaffney (another of the unsolved homicide cases) received, Detective Sgt. Stephens was going over hers, as well.

(They have since chosen the Esther Gaffney case, and are now actively working on it.)

But the most recent pages from the Roberson file indicate that it was in an “inactive” status at the time of my FOIA request, hence, they would not have had legal cause to exclude items based on the possibility of releasing documents somehow interfering with any “open, ongoing” investigation. There’s a legal standard that must be reached to prove a case is open and ongoing, and I’m fairly comfortable stating Janette’s case wasn’t there at that point. In fact, my request asked for all activity on the case from 2012 to present (2014) but there appears to have been no activity, other than Janette’s sister making a call to inquire as to the status, and my request for documents. Three days after my request, MSP changed the status to “open.”

I would like to note here that having come through this process with a greater understanding of how they handle these cases when they are trying to decide which ones to move forward on, it absolutely makes sense that they would withhold all of the witness statements. I do not believe, given the state of the crime scene, that physical evidence will ever provide a "smoking gun" in this case. Janette's case, if ever brought to trial, would rely heavily on a mountain of circumstantial evidence (which I believe exists) as well as any new information that has come or will come forward from people with information. I said as much to Lt. Mike Anderson and he agreed.

I asked (then) Inspector Henke how he would determine which case they would choose. He said there were multiple determining factors, but they look at solvability first—meaning, which case gives them the best chance of getting a bad guy off the street. That makes sense. You don’t wanna throw a bunch of resources at a case that doesn’t look like it has a good chance of being resolved. Taxpayers get touchy about wasted money, and higher-ups like to have nice, tight clearance rates.

What if the case you’re looking at, you determine the most likely suspect or person of interest has died? Would that lower it on the list from which you are choosing?” I asked.

Inspector Henke indicated that would probably lower it on the list, because even though they do want to give families closure, generally they want to try the ones where they have a good chance of solving (closing) the case and putting someone away. So that’s where we were. The promise of a possibility that Janette’s case might get looked at again. Maybe.

A few months later, my assistant made a couple email contacts with Detective Sgt. Mike Stephens, trying to ascertain where the case stood. When she asked for specificity she received this reply:

Yes, the investigation is ongoing. There has not been a “cold case team” assigned as of yet. I have conducted several interviews, talked with Chief Davis and retired D/Sgt. Pratt on several occasions regarding this case, and continue to review the evidence for any other possible avenues. Hopefully this helps, thank you again!”

Because they continued to maintain the case was ongoing, every denial of records request we submitted relied heavily on excluding items because their release may interfere with an open, ongoing investigation. My next FOIA request was for everything done on the Janette Roberson murder investigation from 2000 to 2012, where we’d left off. 

Again, I was working backward, while my assistant filed another request, hers for the last few years of the 1990s. We also asked to know the page count associated with each of our requests, because having been told the report was comprised of approximately 5,000 pages—though they were able to supply us with only a few hundred—obviously we wanted to know where all those pages were. I won’t come right out and say I don’t believe them, but as an illustration, the report released in 2014 by the government regarding the torture done by the CIA was around 6,000 pages.

 I have a hard time believing Michigan State Police generated almost as many pages on their investigation into Janette Roberson’s death. Maybe they did, but what I want as a taxpayer is accountability. Show me the money. Show me the pages. Show me around five thousand pages of work associated with this case. You don’t have to tell me what’s on every page, but I damn sure want to know that if you were going to charge me almost six thousand dollars for what I was told was approximately five thousand pages, those pages actually exist, and it wasn’t just a ploy to get me to go away.


Honestly, the answer here is pretty simple. Digitizing all old files that stand any chance of ever being worked. Make that a priority. It's much easier to find records and give an accounting of pages when those answers are only clicks away.

Below is what occurs when much of the file is still in boxes.

For a while, three hundred dollars or so seemed to be the sweet spot. We got quoted around that amount a lot, often for one item, such as the Reed City MSP Post dispatch log for January 19, 1983. 

Remember, that doesn’t even mean you’ll get the items you requested. Only that you’re paying for them to look for it. 

As time went on, though. The prices got higher. 

This was October. By the following January, the quotes on sections of Janette’s file got even more ridiculous and prohibitive. 

Lest you think state agencies would never do such a thing, consider this. In 2009, the Michigan Department of State Police wanted to charge the Mackinac Center for Public Policy $6.8 million for a Freedom of Information Act request regarding the state’s handling of federal homeland security grant money from 2002 to 2009. Yes, I said million. I would have framed that letter and put it on my wall.

I tell you this, dear, sweet reader, so that you understand my beef isn't with Michigan State Police. It's with nationwide priorities and structural shortcomings around record keeping and evidence storage (don't forget those horror stories from a previous chapter) regarding open homicide cases.

It's common sense that for a crime that has no statute of limitations, all evidence and all records should be pristinely preserved. That evidence and paperwork which occurred prior to computer use should all, by now, have been scanned, indexed, and entered into a computer. 

Hard copy ANYTHING is just an accident or inept employee away from disappearing, forever.

Charges quoted for Roberson file from 2000-2012

Charges quoted for Det. Sgt. Southworth's interviews

According to an article on August 9, 2011 from Michigan Capitol Confidential, when the Mackinac Center for Public Policy requested two years’ worth of salary and benefits information for CEOs at the Muskegon Area Transit System, the County of Muskegon said they no longer had the 2009-2010 information and the 2010-2011 information would cost $300.

Either Muskegon has the world’s most expensive employee, or the world’s most expensive copier,” said Patrick Wright, senior legal analyst for the Mackinac Center. Wright said it is “economic stonewalling.” “They are throwing up a high dollar request hoping people would go away rather than fight it and that way they can keep the information hidden,” Wright said.

When we finally got a response to our requests for information on Janette’s case starting backward (mine from years 2000 to 2012, my assistant’s the last two years of the 1990s) we were both quoted prices of almost $500. 

Eventually, it dawned on us. 

It was right there in a short email from Detective Stephens, we’d just failed to pick up on it.

I generated the new case number in order to document any leads and follow up I have conducted as the original investigation was documented in an off-line format.”

Off-line, meaning none of it—not one word of the Janette Roberson murder investigation file—had ever been entered into the computer. I want to thank the detective for his honesty, in this regard. Had anyone at the FOIA department bothered to explain this in such a simplified way, early on, I may have saved a gob of money and frustration.

To that point, we just assumed when Michigan State Police went to statewide computerized reports, at least that portion of her file had been entered. We’d been laboring under that assumption simply because it seemed unheard of to even think nothing from the file had ever been brought into the digital age. I even emailed Shannon Banner, the MSP Manager of Public affairs, to find out when they went to computerized reports.

Our current report-writing system AICS (Automated Incident Capture System) was first used in 1995 as a standalone application. In 1997, it became a mainframe application allowing us to be able to access reports via query as we do today. Prior to AICS, there was a program called Enable that was used for a short period; however, it was mostly a word processing application. I do not have an exact time frame for when Enable was used, but prior to Enable, reports were typed using a typewriter.

I can’t believe it took me so long to figure it out—the ridiculously high FOIA request estimates we kept getting. Those ladies weren’t stonewalling us. They literally had no access to the information I wanted from where they were in Lansing, until someone at the local State Post went through it all. 

Every one of our requests would mean that someone at the local post would have to fetch what we wanted, manually, probably rifling through boxes, then scanning and sending it to Lansing. That still doesn’t explain why it would take 84 hours and almost $6000.00 dollars to do, though. 

(NOTE: This was the other reason I decided to write the book. Get all the public info out to help garner leads; educate the public on the issues that go into a cold case, including solvability, DNA testing, and all manner of things that most of us never consider; illustrate the structural issues in law enforcement as a whole around the FOIA process.)

Once we opened up this can of worms, I can only imagine the scanning, indexing, digitizing frenzy happening at the local Post. At least I hope. I can’t fathom the file remaining in that state after so many queries in its regard. 

Surely it was time to usher the Janette Roberson murder investigation case file into this century.

How can you even work a case that’s three decades worth of pages in boxes? I know that Jen and I had to index all of our material and keep it in a manner that we could access digitally. I have a box and four binders worth of material regarding this case, and my hard copies are so worn from frequent flipping through, I’ve had to put support rings on some of the pages to keep the hole-punch area from further ripping. Yet still, everything is backed up digitally for ease of access. I wouldn’t be able to keep track, otherwise.

The realization was gutting, though. 

Not because it seemed impossible we’d ever get the rest of the file—whatever that included—but it defied logic to think a case that wasn’t even on the computer system would be chosen to re-investigate over one of the other Reed City “cold” cases that were more recent and already computerized. Some of those other cases might have “named suspects,” which would presumably put it higher on the list of solvability. 

According to Detective Stephens’ June 12, 2014 entry—the very first computerized entry on the Roberson case—the initial investigators had identified “several possible suspects and/or persons of interests.” What if one of the other cases had actual named suspects, or better evidence, and nobody let witnesses leave that crime scene, or walked through evidence?

I remembered Inspector Henke saying that in order to “bring it up to date” the file would have to be completely indexed before they could even consider re-working it. That’s months of work before they could even begin reinvestigating it. He’d told me, months earlier, only I’d failed to grasp the realities.

I could almost feel Janette’s case sliding further down the priority list.

(NOTE:  As of last contact with Det. Sgt. Stephens, they are actively working on the Esther Gaffney case. Nothing new going on with Janette's case, although they are taking any leads that are coming in.) be continued...

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