Part II: Some Core Questions
There are probably dozens of questions which could be raised which many readers would consider ‘core’. Readers of this site may well determine, as do many jurors in ordinary cases, that what they are actually most interested in has not even been addressed. The questions below are thus not being offered as the exclusive nor necessarily the most important questions 'out there'. They are simply things that I have found most persistently troubling. Some of them, arguably all of them, may well have perfectly logical and plausible answers, were the public to have some means of acquiring them. But at the two-year mark, clarification through disclosure of information as to any aspect of the Gricar investigation from any source, simply does not seem to be an impending event.
The cellphone found in Ray's vehicle was issued to him by the County, calls paid for by the County and subject to county rules, restrictions, policy. Written County policy at the time of Ray's disappearance provided as follows respecting electronic communication equipment, including cell phones: “Employees should be aware that electronic communications may not be secure, and are subject to monitoring, and may constitute a public record.” (Emphasis supplied.)
As a long-time prosecutor, I am well aware that evidence in a particular case is not always made available to the public, other than to jurors at trial and to the extent it is learned of and reported on by media attending an open court proceeding of some type. That's most important where an individual has been charged with a crime and is awaiting trial, lest potential media-reading jurors otherwise come into a trial with pre-existing opinions or knowledge about particular evidence.
I'm equally aware that in some situations, public disclosure of evidence/potential evidence can have a negative effect on a developing investigation into a known crime, whose perpetrator is nonetheless unknown, or whose involvement is only suspected but cannot yet be established. The obvious example would be some fact, crime scene detail, statement made to the victim by the perpetrator, which is known to police but which would otherwise only be known to an individual who was involved in or at least present at the criminal event.
But in this case, no one is awaiting trial. No one has been charged with a crime. As more fully discussed in the section below, police appear to be resistant to consideration that a crime even might have occurred. Under these facts, it seems to me that withholding of objective, documentary information from the public, even if it were to be done as the result of some claim that it served an investigatory purpose--a contention notable by its absence in this case--may serve equally well to simply deny the public the means of accessing information which, if known, would lead them to pose reasonable questions and expect reasonable answers. The more so after two years.
If there is a balance to be struck, I believe that after two years it has long since tipped in favor of public disclosure with regard to Ray's cell record for the week of his disappearance. Not police or media statements about what the record purportedly contains. The record itself.
In April, 2005, former Chief Dixon made a public statement that the cell records showed evidence of one call made 'out' from Ray's cellphone on April 15, 2005 and no calls made 'in' to the phone on that date. That version stood as representative of reality until September, 2005, when information provided by Detective Zaccagni, published by the CDT in its online Q&A forum on the case, offered a directly contradictory account. The second version of reality was that there were actually numerous calls made 'in' to Ray's cell on Friday, April 15, 2005 and specifically that they originated from the DA's office, Ray's paramour and his daughter. [Specific question on the CDT Q&A forum dated September 13, 2005, answered citing police dated September 16, 2005.] At a later point, the second version was appended with an observation that all of the calls 'in' on April 15, 2005 were 'routine'.
The two versions are inconsistent with each other. They are also inconsistent with other information publicly offered. Ray's daughter has indicated that she last called his cell on Thursday, April 14, 2005. Ray's paramour has indicated that she called his cell on April 15th only after 5 PM, when she returned home from work and found him not yet returned. I do not recall being asked in police interviewing if I had called his cell on April 15, 2005, do not recall anyone else on staff indicating that they were asked that question, and am not aware of any police contention that anyone on the DA staff was asked that question.
Where conflicting statements are offered at trial, jurors are told by the court to first determine if there actually is a conflict, i.e. if one statement is accurate then the other logically cannot be. If they determine a conflict does exist, they must make a decision as to which, if either, statement they should regard as being accurate. Conflicting statements at trial usually come from the accounts of different witnesses or from an earlier and later statement of the same witness. Choosing between the versions can be difficult for any juror. No such problem exists with Ray's cell records. The cell records 'say what they say'. Either they support Dixon's account or they support Zaccagni's later one. No guesswork is required.
Reasonable minds are free to disagree, but in my view the cell record for Ray's phone represents the ONLY truly objective, factual, 'hard evidence', in the entire investigation. It stands alone as something objectively knowable, surrounded by a sea of speculation, assumption, theory and conjecture, qualified by maybe so-maybe not ambivalence. Neither the laptop nor the hard drive are remotely of the same character, as there has never been even the tiniest shred of hard evidence that either were related to the disappearance event, that they were ever in the Mini-Cooper that weekend, or that they contained anything relevant to the investigation at any time, no matter what ‘travels’ they may have taken between his house and their eventual reappearance in the Susquehanna.
I recall last year at the one-year mark reading a news conference statement which contended as fact that the laptop was absolutely in Ray's home at all times prior to April 15, 2005 and wondering why, if that were the case, staff were being asked to search their work areas for it in the DA Office a week or two later. I've tried without success to picture Ray, the guy who would email the entire office to stop what they were doing to tell him where the dust cover was for some piece of County-owned equipment put away 'unprotected', gratuituously destroying an expensive piece of County-owned equipment by slinging it into the Susquehanna. Common sense just has to kick in here somewhere.
Local media's failure to challenge conflicting police statements about the content of Ray's cell record for the week of his disappearance or request access to the record itself has been inexplicable. It became yet more so when the same media insisted that they be given immediate access to the County-issued cellphone records of current DA Madeira earlier this year in order to be able to check into how many times and for how long he was talking to a former campaign associate who was refusing to come to his door to talk with police investigating a vehicular crash. I'd like to think that we can all agree that however laudable the inquiry may be into potential conflict of interest in that kind of situation, that it doesn't rise quite to the same level as a two-years' stagnant investigation into the unsolved disappearance of his predecessor.
(a) What do the cell records have to say about calls received or placed that would corroborate (or not) that Ray was physically present in Huntingdon on Thursday, April 14th? If I recall correctly, the "Thursday sightings" were offered with theorizing that perhaps Ray had been checking out potential suicide sites in Huntingdon. (To-Do List: 8 AM prison board meeting, 9-3 check out suicide sites in Huntingdon, 3-5 catchup at the office, 5-6 talk with housemate, 6-9 catchup at the office. )
I've always thought it unlikely that multiple (the investigative characterization) Huntingdon County residents out strolling in a park on a weekday morning were all able to recognize an adjoining County's DA by face. I've known their DA professionally for many years, met him in person, even sat through several hours of one of his trials a few years back. I nonetheless doubt very much that I would recognize him strolling about in Tallyrand Park on a Thursday morning wearing casual clothes.
(b) What do the records have to say about the April 15th late morning call to the DA's Office, variously stated to have occurred at 11:12 AM and by other accounts 11:30 AM? What time did it actually occur? How long was the conversation? Does the length of the call documented in the cell record exceed the minimum billable charge? For that matter, IS there a minimum billable charge? Or are actual call lengths noted? If so, how long was the call?
(c) What do the records have to say about calls 'in' received Friday afternoon? Do they reflect a presence in or near Bellefonte, consistent with Ms. Fenton’s contention that Ray was at the Courthouse? A presence in or near Lewisburg? A presence in an entirely different geographic location?
The characterization of the calls 'in' on April 15, 2005 as 'routine' answers nothing and simply raises additional questions. Do these calls 'in' on that afternoon reflect minmum billing charges suggesting that conversation probably did not occur? Is it then 'routine' that Ray didn't answer calls from his office made to his cell? If not and what is documented in the record is consistent with actual conversation, as police were not privy to that conversation, on what basis can it be deemed to have been 'routine'?
If the April 15, 2005 calls 'in' indicate the likelihood of actual conversation, it would seem to me the most basic exericse of logic to conclude that Ray, if he was the person then in possession of the cellphone, could not have been "last heard from" in late morning of Friday, April 15, 2005. Yet the entire investigation has proceeded on that premise. Fenton's sighting at the courthouse at 3 PM that day was discounted as impossible using the premise that Ray was en route to Lewisburg when he was 'last heard from' and that whatever happened, happened in Lewisburg. The car's ultimate discovery in Lewisburg has been deemed logical based on that premise. At least one Lewisburg sighting has been deemed credible as consistent with that premise. The months-later discovery of the laptop and hard drive have been deemed consistent with a Lewisburg event using that premise. Is the premise itself accurate? The answer obviously lies in the cell record. No guesswork required.
Local media has frequently touted its commitment to finding answers to this disappearance. Acquiring and publishing in its online site a copy of Ray's cellphone record for the week of his disappearance would be an excellent start.
The questions which are raised by the polygraphy done in this case are not whether it was wise or useful or necessary to employ polygraphy, but why it was used selectively and in the absence of any organized approach. Why would polygraphy of Ray's paramour, if it were felt to be warranted, only be conducted 4 months after his disappearance? Why would his daughter be asked to leave school and fly across the country to be locally polygraphed on a matter on which she had no obligation to provide information, i.e. whether she had ‘heard from’ someone who was not believed to have committed any crime? What is the rationale behind an assumption that if contact had been made, it could only have been made with Ray's daughter--not other family members, friends, colleagues?
Any ordinary Joe or Jane, making a decision of importance, buying a new car perhaps, tends to approach the inquiry with some kind of strategy, some organization, focusing on what is most important to them, comparing options, collecting all relevant information, conducting a process of elimination of certain options and moving others up in their consideration. Not looking at Car 1 and Car 2 of 10 different cars potentially meeting one's needs, and when they are not acceptable, deciding not to buy a car at all.
Statements made by a person polygraphed can be used at trial if their context is not disclosed. The fact that polygraphy occurred cannot be disclosed to a jury, even by agreement of both parties. I imagine every police officer knows this. Publicizing polygraph requests and results obviously defeats this preclusion as the pool of potential jurors are also the media readers. Nonetheless the polygraphs in this case were treated as media events. Announced in advance. Results disclosed publicly.
I can not recall reading a polygraph report stating that “Subject passed with flying colors”, though perhaps such reports exist somewhere. “No deception indicated” (pass). “Deception indicated” (fail). And the ever-popular--and to my recall by far most common result--“Inconclusive”. But no "flying colors."
In all three respects above, the approach to polygraphy in this case has seems to me focusless and "Made for TV".
It is certainly not unheard of for a police investigation to be prolonged. Perhaps closed and later reopened. At least one PA murder case was re-opened at least a decade after it was initially closed and after multiple elected DAs in the jurisdiction came and went but took no action on it, when a new piece of information made it possible to prosecute the offender. But if the routine situation were one in which cases dragged on unresolved for years, police would quickly be overwhelmed, if for no other reason than producing periodic reports in each that they had made no progress. That has always been my understanding of why, when there is no more progress on the horizon, they are nominally closed.
But that is not this investigation. Like an ancient transmission about to expire, it has lurched 10 degrees forward, 10 degrees back and generally not moved outside its own shadow. "Three theories, all equally likely". Walkoff with female acquaintance flips to shallow-water suicide within days. When no body is recovered, walkoff resumes its place at the forefront. Walkoff and suicide share the spotlight when Ray's laptop makes its cameo appearance in mid-summer. Then back to the original 'three theories, all equally likely' until the end of Ray's term.
The investigation is back-burnered, to all appearances into perpetuity, in January, 2006 as having 'overturned every rock'. Nothing more to be done. Only a stroke of luck. It sits idle until mid-May, 2006. Media makes noises. It makes a 180 degree turn in May, 2006 with the announcement of the PSP-CIA review, in what surely appeared to be a compromise between turning the matter over to others and dealing with further public outcry. By reported accounts, the local police file then sits for a month at the station before being sent to the state police. A report is said to be forthcoming by the end of July, 2006. Four months after that deadline comes and goes, the cia (small case) review unit holds a meeting at a 'secret location' and finally conducts the review.
In November, 2006, a gagged media is told that the cia review revealed nothing and that what the state police unit said or did not say is frankly none of the public's business. Questions are discouraged and information withheld on the stated basis that the investigation is 'active', 'proactive' and 'ongoing'. In April, 2007, media dutifully inquires into the status of things at the two-year mark, and what has occurred in this active, proactive and ongoing investigation. Answer: actually, nothing whatsoever. Followed by, to date, another two months of inactivity.
So what, precisely, does 'active, proactive and ongoing investigation' actually mean? Its become increasingly hard to shake the sense that its a euphemism for playing out the clock until any remaining likelihood of public challenge to formal closure of the matter as 'unsolved and unsolveable' has dissipated. Accountability is not a gift to be bestowed/not bestowed on the public as a matter of discretion. It is the public's RIGHT.
Anyone who has ever seen the full-departmental, often inter-departmental, rally which attends a major criminal event, particularly if a death or kidnapping is involved, does not need to be told that the response in this case is utterly inconsistent with any serious belief that 'foul play' might have occurred. The closest this investigation has come to S.O.P. was probably on the first Saturday, when apparently there were state police forensics people called in to look at the vehicle. Even there, search dogs were not brought in until at least 18 hours after the vehicle was discovered, removed from where it had been found and by report subjected to forensic examination.
By the time the Mini-Cooper was found, Ray had by police timeline been unaccounted for an entire night and a total of about 30 hours. Perhaps search dogs have more committments now than they used to. But I can well recall waiting with an EMS crew at a remote Centre County nursing home so that search dogs could be flown inby helicopter from another county, at 2:00 AM, to track down an elderly patient who had wandered off the property.
Nor is genuine consideration of 'foul play' consistent with attitudes displayed since the first weekend. This is the one case in which I have ever heard expressed the investigative perspective that because it cannot be known with 'certainty' that foul play 'did' occur that there's really not any point in expending efforts pursuing the idea. Consideration of potential criminal conduct is also inconsistent with the declining of opportunity to review his particularly volatile cases, most particularly those thrown into investigative laps with explanatory emails attached.
In casual conversations with a variety of lay people over the past two years, I've heard the belief repeatedly expressed that the explanation for the lack of any immediate or subsequent levels of investigation directed toward potential criminality as reason for the disappearance must lie in some undisclosed information information possessed by police establishing that walkoff occurred, particularly given the initial public statements of his daughter.
The problem seems to me to be this. If officialdom in fact possesses any articulable reason to believe that walkoff occurred, what conceivable explanation is there for BPD's self-imposition of the costs of a full-tilt river search on what is surely a modest budget, or misusing the services of search personnel? How is an articulable reason for belief that walkoff occurred consistent with an investigative flip-flop back to a refocus on possible suicide in late summer, 2005, when Ray's County-issued laptop makes its cameo appearance in the Susquehanna.
Either a specific factual reason exists to support a belief of walkoff or it does not. I'm confident it does not exist only in even-numbered months of the year.
If there is any single thread which, when pulled, has real potential for unraveling the obstacles to finding answers to this situation, I suspect it lies in understanding what lay behind the statements his daughter made during the first press conference in which she spoke after his disappearance. Her statements reflect a clear assumption that Ray had voluntarily disappeared, offering personal entreaty to him to please return, which would make sense only if she believed that he had the option of returning. When one’s demonstrably-devoted father, a long-term prosecutor of murder and domestic violence cases, suddenly and inexplicably disappears without a trace, the first and only logical fear would be that something about his job had come back to harm him. Not that he had walked off. My guess is that fear that some criminal act was involved would be the first fear of most people in this kind of sudden disappearance situation, even if the missing family member did not have a history of involvement in the criminal justice system.
So why was the assumption made? Ray’s daughter has publicly stated that when she talked to him for the last time on Thursday, April 14th, there was nothing unusual in the conversation, that in neither that nor any other conversation that week did he bring up anything which would offer a clue to his disappearance, or suggest that he had plans to leave. She had no obligation to answer that question posed by the media at all. I can therefore find no reason that she would have chosen to answer it in an untruthful manner. Moreover, the same stance was taken by Ray's paramour in her public remarks on the same occasion.
If the walkoff assumption was not based on something Ray himself said to his daughter, and unless one entertains a premise of deliberate deception by one or both of the two persons most closely involved in Ray's life - which police have assured the public, based on the polygraphs, they believe is not the case - then it seems to me that the only explanation left for the walkoff assumption by his daughter is that it was based on information provided by others on which she relied, perhaps is still relying. Information which may or may not be correct. If it is correct, and known to be provably so, there is no obvious explanation for the two-year pursuit of 'three theories, all equally likely'.
At the two-year mark, with the exception of occasional expressions of frustration by Ray's nephew, the family spokesperson, offered at yearly anniversaries and following the cia review, Ray’s family has been mute about the lack of progress in determining what happened to him. Personalities differ, notoriety brought about by media involvement is always disruptive and often intimidating and I doubt anyone who has experienced the phenomenon would argue otherwise. But there are few ‘higher stakes’ than a close family member who has been unaccounted for for two years.
I am not offering criticism or condemnation, as I have no idea what the thought processes were which have led to family decision-making. But I believe that at the least it is fair to observe that it has had the unintended effect of tamping down what might otherwise be stronger public challenge by ordinary Centre Countians, those who did not necessarily know Ray but know at a visceral level that something is seriously amiss in how his disappearance has been handled, who are understandably hesitant to step up to openly challenge it when those more intimately impacted have not done so.
The section which follows is directed toward what has gone on unabated since 3 weeks after Ray's disappearance in 2005 on the discussion forum run by CourtTV. It is to me by far the most peculiar aspect of a situation fraught with peculiarities. I have come to think of it as the 'shadow investigation', the online battle for the hearts and minds of Centre Countians respecting the matter of Ray's disappearance.
The questions it has raised for me are simply stated:
(1) what lies behind what appears to be concerted action to promote to the public the idea that Ray's disappearance cannot, and likely will not, ever be solved?
(2) why has the discussion become more intense in inverse proportion to the passage of time since Ray's disappearance?
(3) if Ray's family members have participated in it, anonymously or otherwise, why and to what
(4) is there reason to perceive what has gone on as consistent with a deliberate disinformation campaign?
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