An Open Letter to Oakland County Prosecutor Jessica Cooper

[XLFD]

Introduction

On October 21, I sent a Freedom of Information Act (FOIA) request to the Oakland County Prosecutor's Office asking for a Michigan State Police (MSP) accident report that was in their possession regarding an accident that took the life of MSP Trooper Chad Wolf.  My initial observations on the accident was published as Lessons from the Death of Trooper Chad Wolf where the records, witness observation, and physical evidence supplied to the public seemed to indicate that Wolf was not riding safely that morning. 

At the time of my request, I had read an October 19 Mlive story that the MSP investigation and report was finished and in the hands of the Oakland County Prosecutor for possible charges.  This offered me a great chance to check out the post-investigation police report so I could support and/or amend my original impressions.  This was the request:

"The MSP report with addenda, investigations and supplements regarding the crash involving MSP Trooper Chad Wolf on August 28, 2015 on the Dixie Highway.  According to this news report (http://www.theoaklandpress.com/general-news/20151019/oakland-county...) the investigation has been completed and in your agency's hands for about a week."

What I received was this letter E-mailed back on October 28:  OCPO FOIA Reply

As you can read, they denied the police report in full, citing without explanation that release would be interfering with law enforcement proceedings and denying the defendant the right to a fair trial, and yet they provided me with documentation from the prosecutor's office dated October 22, which I did not request. 

I sent a firm yet polite E-mail back expressing my right to appeal, and described the issues, including sending them a copy of my pending FOIA lawsuit (FOIASuit9142015.pdf) where the point of contention is very similar, and very clearly against non-disclosure.  I intimated they may have misconstrued the actual records I requested.

On November 12, I received a letter from Jessica Cooper (rotta_tom15.ltr.pdf)

This response amazed even me, I who have dealt with hundreds of FOIA responses all over the state, for all the outright fabrications of the facts and of the law.  I couldn't just point out the fallacies in a letter to her, I had to allow the rest of the public to utilize this mismanagement of the truth by Ms. Cooper.  It bodes ill for the defendant in this case and others in Oakland County, who have to deal with such prevarications by their prosecutor.

The Open Letter

Dear Prosecutor Cooper,

This is in response to my administrative appeal submitted to your office on October 28, 2015 and responded to by Oakland County Prosecutor Jessica Cooper on November 13, 2013 as the head of the public body. 

I take issue with several points of your decision, but first let me express that your response as an appellant authority was late, as your office received my E-mail as of October 29 and your response came by E-mail eleven business days later in violation of MCL 15.240(2). 

Beyond the timeliness issue, you introduce an exemption that was not included in the earlier denial, namely MCL 15.243(1)(m).  The denial was based only on subsections b(i) and b(ii), 'm' was not included in the response.   Exemptions that have not been claimed cannot be introduced at the appellate level.

Even if it had been included, however, the records requested "The MSP report with addenda, investigations and supplements regarding the crash involving MSP Trooper Chad Wolf on August 28, 2015 on the Dixie Highway"  is not your work product, or work product of the MSP but publicly-owned police reports and accident reports with a finished investigation. 

You erroneously declare there is an "ongoing investigation", a "fluid investigation".  Besides the link I provided which had the lead MSP investigator saying at that point that the investigation was over, it is once again repeated on October 29: 

“Our investigation is over, but for the Michigan State Police, it’s never going to really be over.”

http://www.theoaklandpress.com/article/OP/20151023/NEWS/151029744

For you to claim the investigation is not over and the accident report requested is not closed and available via the FOIA is an outright fabrication on your part.  The investigation was completed and presented to you, you made the decision to pursue two felonies against Mr. Warren just as the complaining MSP Trooper witness on the felony complaint asked for; it would be reckless on your part to do so without a full report-- a report that would be almost completely non-exempt.

The original denial also was made up entirely of conclusory statements, recitations of the statute.  Such statements are not sufficient in a response.  The Court of Appeals reaffirmed this principle recently: “the justification of an exemption must be more than mere conclusory, i.e, simple repetition of statutory language, specifically a bill of particulars is in order.  State News v. Michigan State University, 274 Mich. App. 578, 735 N.W. 2d 649 (2007).  

The Michigan Supreme Court has likewise interpreted the law enforcement exemptions strictly. Evening News Ass'n v. City of Troy, 417 Mich. 481, 339 N.W.2d 421 (1983) (error to use "generic determination" standard that release of police reports along with the information contained in them would "interfere with law enforcement proceedings" and would have a "chilling effect on the investigation, without a showing by defendants of particular risk).  This same Supreme Court ruling also indicated a public body must separate exempt from non-exempt material in records that are not completely exempt. 

The records requested were in your possession, they were public records, at worst they had subsection 1(a) exemptions that have not been claimed.

One last point about your claim that release of these police accident reports at this time would violate an ethical standard of trying the case in the media before adjudication and work against the defendant.  To the contrary, I submit that the MSP, with your office's complicity, is violating ethical standards by offering biased commentary to the media to help prosecute the case via the media.  I offer these proofs from various media, with links supplied, where I have highlighted via italics the prejudicial statements therein that claim unequivocally that the driver was at fault and struck the officer by abruptly changing lanes, a point which hasn't been clearly established yet, nor will it likely ever be:

MSP Media Release:  "Wolf was on patrol with his department-issued motorcycle driving on Dixie Highway near I-75 in Springfield Township at approximately 6:30 a.m. when a passenger vehicle towing a trailer collided with Wolf’s motorcycle."

http://www.michigan.gov/msp/0,4643,7-123-1586_1710-367926--RSS,00.html

MSP Trooper Chad Wolf was on patrol on his motorcycle on the morning of August 28th when he was hit by a vehicle pulling a trailer on Dixie Highway, near I-75.

http://fox17online.com/2015/10/23/man-charged-in-crash-that-killed-...

Investigators say Warren was driving on Dixie Highway in Springfield Township about 6:30 a.m. on Aug. 28, pulling a utility trailer, when he made an abrupt lane change and struck Trooper Chad Wolf.

http://www.freep.com/story/news/local/michigan/oakland/2015/10/23/m...

Michigan State Police trooper Chad Wolf died on August 28 after he was hit along Dixie Highway near Interstate 75.

http://www.wnem.com/story/30336543/driver-arrested-in-connection-wi...

Around 6:30 a.m., a truck towing a trailer merged into traffic and knocked Wolf off his bike.

http://www.fox2detroit.com/news/local-news/37774280-story

when Warren, who was hauling a trailer behind his vehicle, abruptly switched lanes and allegedly struck Wolf’s department-issued motorcycle.

http://patch.com/michigan/birmingham/charges-filed-death-trooper-dr...

“This has been a big investigation and accidents like this can take time,” Michigan State Police Lt. Mike Shaw said. “There was an extensive crime scene ... (state police) understand that ... everyone is looking forward to him facing the criminal charges in court.”

http://www.detroitnews.com/story/news/local/oakland-county/2015/10/...

For the record, I believe that in your professional capacity that you are looking forward to him facing the criminal charges in court and unlawfully blocking release of these records because there is little in the investigation that can be used to show the elements of what you are to provide in court for the two over-the-top 15 year felony charges you are seeking.  I ride motorcycles at times myself, and I cannot fathom how Trooper Wolf driving his motorcycle in the dark, could drive so recklessly close to this vehicle to get hit from a lane change, abruptly or not.

Perhaps, like MSP Lt. Mike Shaw, you are not looking for justice, you are looking for vengeance against an old man who unknowingly killed a MSP trooper through no fault of his own.  This summer in my own Mason County, a driver at a stop sign pulled out in front of a motorcycle violating its right-of-way, and killed the riders, Scott and Melanie Butler.  No charges were filed against the teen driver who obviously was at fault, not even a ticket was issued to my knowledge.  Neither of the Butler's wore badges, however.

A Couple Notes on the Prosecutor

Prosecutor Cooper has a reputation of doggedly pursuing 'justice' in medical marijuana claims that find themselves in the state's highest court.  At the outset of the session of the Michigan Supreme Court held on Thursday, January 15, Justice Robert P. Young commented that the team of prosecutors from Oakland County seemed to be “frequent flyers” in the courtroom when issues of medical marijuana law were being decided.  It was not a compliment.

During that session arguments were heard by the Justices in three different cases of licensed and registered medical marijuana patients and caregivers being charged with crimes. All three cases featured Oakland County prosecutors and their novel interpretations of the Michigan Medical Marihuana Act (MMA)- including one case where a common, everyday Post-It Note is considered marijuana paraphernalia.  Another involved another caregiver who provided MM to an undercover officer who used a counterfeit MM card, in an odd case of entrapment, which makes you wonder why so much public resources were used to apprehend otherwise legal operations. 

Perhaps even more telling is Prosecutor Cooper's handling of another legal case against her office where she may have a winning legal argument, but a losing lack of compassion.   Barry King, the father of an Oakland County Child Killer victim, has launched two similar FOIA lawsuits against the OCPO seeking records of the unsolved case from the 1970s including records regarding an October 2008 search warrant at suspect Christopher Busch’s (who committed suicide in 1978) former home in Bloomfield Township, and confirmation that Busch did not pass a 1977 polygraph test which were denied at the Court of Appeals in 2014. 

Mr. King was thwarted once again in seeking information regarding the suppression of a search warrant by the 48th District Court and information related to Christopher Busch.  The prosecutor does not need to claim exemptions for such material on this cold case, but they have chosen to do so, in order to make Mr. King suffer further in his quest for answers.  The compelling reason they choose to stand by is that it is 'work product', ironically the same exemption they wish to claim about the records I seek, even when it is definitely not even the prosecution's work.

[Willy]

It seems to me that the authorities can claim "case in progress" and never release information but in this case it seems that since no trial has yet begun that the information that will be used at a trial should be shared only with the apposing attorneys  to protect their client and be kept confidential to help the prosecutor obtain a conviction.

Is it possible that the officer was in the right lane as he was being passed by the trailer in the left lane and the driver pulled over to soon and didn't realize he had struck the officer? I can't see any other way he could have been hit if he were being careful.

[XLFD]

According to this link in lawyer.com (and several other places) :  "Police reports are public records, meaning anyone can see and read them once they’re filed. If there’s something embarrassing connected to your accident and you don’t want anyone else to know about it, then you may not want to talk to police."  Some parts of a police report may be exempt, some parts of an investigation may be exempt, but even by Michigan law, these accident reports are publicly available to anyone who bothers to ask for them.

As for the collision, I cannot see the scenario happening if the bike was to the right of the trailer.  Pardon my relation/description of the possibilities.  In the picture above the damage to the driver's side shows that Wolf's body was retrieved on that side.  His body would not have been able to get over to that side except for a miracle if that happened he would have had to been sliding off his bike at just the right speed to get there.

Likewise if he was veering right to get on the ramp at the time of collision, how could Trooper Wolf get contacted by the driver's side, which would be shielded.  With the given pictures and given facts, I believe the likely scenario involved the driver decelerating to get to the ramp.  Tpr. Wolf following too closely had to brake, probably laid the bike down and slid into his predicament from behind the trailer, where he must have been in shock, unconscious, and/or hooked onto the trailer.   This would explain how it could have fallen underneath the radar of the driver. 

Unless the withheld investigation has something totally deflating that scenario, it seems very much more likely than what they claim.